Re Michael Murphy, A Bankrupt

• Jurisdiction: Ireland
• Judgment Date: 07 May 1895
• Date: 07 May 1895
• Court: Court of Appeal (Ireland)

In Re Michael Murphy, A Bankrupt (1).

Appeal.

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1895.

Judgment — Not registered within twenty-one days from date of entering — Irish Bankrupt and Insolvent Act, 1857 (20 & 21 Vict. c. 60), s. 336 — Debtor's summons — Adjudication.

A judgment, though not registered within twenty-one days from the date of its recovery, if sufficient in amount and otherwise valid, will support an adjudication in bankruptcy upon a debtor's summons taken out by the judgment creditor.

Thomas Delany obtained judgment against Michael Murphy on the 9th November, 1883, in an action for seduction, for the sum of £100 and £44 16s. 9d. for costs. The judgment was registered on the 11th December, 1883. No proceedings were taken on foot

of the judgment at that time, as the defendant had no means. The defendant's father died on the 6th November, 1890, leaving a considerable amount of property. Delany obtained liberty to issue execution against the defendant, on foot of the judgment in the month of July, 1891, and the sheriff seized. Two men named Byrne and Gallagher claimed all the property under the will of the defendant's father. Delany authorised the sheriff to withdraw. A debtor's summons was issued by Delany against Murphy, and on non-payment Murphy was adjudicated bankrupt on the 23rd February, 1895. On an application to show cause against the validity of the adjudication, on the ground that the judgment was void, under sect. 336 of the Bankruptcy Act, 1857, through its not being registered within 21 days from the date of its being entered, Boyd, J., by order dated the 4th March, 1895, allowed the cause shown, and annulled the adjudication.

From that order the petitioning creditor appealed.

Meredith, Q.C., and Robert Doyle for the appellant:—

In any point of view we submit that the order of Boyd, J., is wrong, and we are entitled to sustain the adjudication. Even if sect. 336 of the Bankruptcy Act, 1857, will render the unregistered judgment void as against the assignees in bankruptcy, the result cannot follow until assignees are appointed. The question is—Whether there is a good subsisting debt as between the petitioning creditor and the bankrupt? We contend that there is. There is no necessity for registration of a judgment inter partes, and the section does not say that an unregistered judgment shall be void as against the debtor, but only as against his assignees in bankruptcy. But sect. 336 was not passed in relief of a debtor to enable him to get rid of his just liabilities, but in relief of the creditors of a bankrupt, and its true construction is that a judgment creditor, who has not registered his judgment within 21 days from its date, is, on the subsequent bankruptcy of the judgment debtor, to be put on the same footing as unsecured creditors: Assignees of Kelly v. Keeffe (1); Gowan v. Wright (2); Bryan v. Child (3).

Matheson, Q.C., for Murphy:—

The section cannot be limited to cases where execution has been issued. If not, then the effect is that immediately upon the appointment of assignees the judgment becomes void as against them. Their duty is to assert every right they have. Ex parte Brown (1) shows that the effect of non-registration is to destroy the debt in so far as it depends on the judgment. The judgment being void as against the assignees, the effect is to throw the creditor back upon the cause...