Re A Debtor's Summons

• Jurisdiction: Ireland
• Judgment Date: 18 April 1917
• Date: 18 April 1917
• Court: Court of Appeal (Ireland)

In re A Debtor's Summons (1).

Appeal.

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.

1917.

Bankruptcy — Debtor Summons — Execution or enforcement of a judgment — leave of the Court — Courts (Emergency Powers) Act, 1914 (4 & 5 Geo. 5, c. 78), sect. 1, sub-s. 1 (a).

Procedure by debtor summons is not execution or enforcement of a judgment or order of any Court within the meaning of the Courts (Emergency Powers) Act, 1914, sect. 1, sub-s. 1 (a), and it is not necessary to obtain leave of the Court before issuing such a summons.

Appeal on behalf of N., a debtor, against an order made by Mr. Justice Pim in Bankruptcy, on March 30, 1917, refusing an application by the appellant to dismiss a debtor summons on the grounds of irregularity, want of jurisdiction, and that no order had been obtained under sect. 1, sub-s. 1a, of the Courts (Emergency Powers) Act, 1914, before the issue of the said summons.

It appeared that a judgment had been obtained on July 5th, 1906, by Patrick J. O'Connor against the debtor for £318 10s., debt and costs; and that down to the month of February, 1914, no application had been made to the debtor for payment of the judgment debt. On February 11th, 1914, an order was made by the King's Bench Division giving the judgment creditor liberty to issue execution against the debtor on foot of the judgment, notwithstanding the fact that six years had elapsed since the date of the judgment. Execution was not issued. On February 28th, 1917, a debtor summons was issued at the suit of the creditor

against the appellant, under sect. 30 of the Bankruptcy (Ireland) Act, 1872, claiming payment of the sum due under the judgment.

No order had been obtained under sect. 1, sub-s. la, of the Courts (Emergency Powers) Act, 1914, before the issue of the summons.

J. Henry, for the appellant:—

The debt on which the debtor's summons was founded in this case is a judgment obtained so far back as 1906. Before proceedings can be taken to enforce a judgment, leave must be obtained from the Court under sect. 1, sub-s. 1 (a), of the Courts (Emergency Powers) Act, 1914 (4 & 5 Geo. 5, c. 78). The analogous proceeding in England under the Bankruptcy Act, 1914, is a bankruptcy notice founded on a final judgment, and under the bankruptcy practice in England leave is required before a bankruptcy notice can be served: Annual Practice, 1917 edition, pp. 1368, 1385. And I submit that there is no distinction between a bankruptcy notice in England and proceedings by debtor summons in Ireland.

The procedure by debtor summons, which was in operation in England under sect. 7 of the Bankruptcy Act, 1869, was replaced by...