M'Creery v Bennett

• Jurisdiction: Ireland
• Judgment Date: 29 October 1903
• Date: 29 October 1903
• Docket Number: (1902. No. 9504.)
• Court: King's Bench Division (Ireland)

M'Creery

and

Bennett (1).

K. B. Div.

(1902. No. 9504.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1904.

Practice — Equitable execution — Receiver — Clerk of Petty Sessions — Salary of — Assignment — Public policy.

A Petty Sessions clerk covenanted to assign his official salary to plaintiff to secure an annuity. The plaintiff, having recovered judgment for arrears of the annuity, obtained an order for the appointment of a receiver by way of equitable execution over the future salary of the Petty Sessions clerk:—

Held, that the order for the appointment of a receiver by way of equitable execution ought to be discharged.

Per Kenny, J., a clerk of Petty Sessions is a public and judicial officer, and the assignment of his salary would be contrary to public policy and unenforceable.

Motion on Notice.

By an agreement dated 20th August, 1889, and executed by one G. W. Bennett and the defendant of the one part, and the plaintiff and J. M'Creery, her husband, of the other part, the said G. W. Bennett and the defendant, in consideration of the plaintiff and her husband refraining from taking legal proceedings to enforce payment of certain trust funds recited to have been misappropriated by the said G. W. Bennett, jointly and severally covenanted with the plaintiff and her husband to pay to them, and the survivor of them, an annuity of £40 per annum. The agreement provided that for the better securing payment of the said annuity G. W. Bennett charged his salary as sessions clerk at Hospital, county Limerick, and other places, with the payment thereof, and further provided that if, during the life of the plaintiff and her husband or the survivor of them, the said G. W. Bennett should die or resign or be deprived of his position as sessions clerk, and the defendant should be appointed to that position in the place of the said G. W. Bennett, the defendant should immediately thereupon assign and charge to and in favour

of the plaintiff and her husband, or the survivor of them, the salary to which he would be entitled as such sessions clerk to secure the payment of the said annuity, and should appoint the plaintiff or her husband his lawful attorney, to receive such salary as and when the same should become due and payable.

G. W. Bennett died on the 14th June, 1900, whereupon the defendant succeeded him as clerk of the Petty Sessions district of Kilfinan, at a salary of £80. No assignment of his salary was executed by the defendant in pursuance of the agreement.

In the month of July, 1901, the plaintiff recovered judgment against the defendant for the sum of £35, arrears of the annuity due under the covenant in the said agreement, and by an order in the action dated 31st July, 1901, reciting the deed of 1889, the plaintiff was appointed receiver by way of equitable execution over the beneficial interest of the salary of the defendant as Petty Sessions clerk of the district of Kilfinan.

The defendant paid off the amount of this judgment.

The present action was brought by the plaintiff on the 23rd July, 1902, to recover further arrears of the said annuity, judgment being entered for the plaintiff by consent for the sum of £60, together with the taxed costs of action, and by an order in the action dated 26th August, 1903, which followed in its terms the order dated 31st July, 1901, the plaintiff was again appointed receiver by way of equitable execution over the defendant's salary, which order the defendant now sought to have discharged.

T. J. Smyth, for the defendant:—

The order should be discharged. The defendant is not estopped by having complied with the former order, which was made in a different action. Holmes v. Hillage (1) decides that a receiver cannot be appointed over the future earnings of a judgment creditor. A receiver may be appointed over an instalment of a salary actually accrued due: Picton v. Cullen (2)...