Re Patrick Murray

JurisdictionIreland
Judgment Date13 December 1915
Date13 December 1915
CourtCourt of Appeal (Ireland)
In re Patrick Murray (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.

1916.

Practice — Bankruptcy — Debtor's Summons — Debtor out of the Jurisdiction — Substitution of Service — Jurisdiction — Trader.

Goods were supplied by F. to M., a trader carrying on business in Ireland. M, sold his business, and left to reside in Scotland, entrusting the collection of his book-debts to his solicitor, R. F. obtained an order for substitution of service on R. of a writ of summons in an action to recover the debt, and subsequently obtained judgment for the debt and costs against M. F. then issued a debtor's summons, and obtained an order from the Court of Bankruptcy for leave to substitute service of the summons on R., which was done, and M., not having complied with the debtor's summons, was adjudicated a bankrupt. On an appeal from an order of Boyd J., disallowing the cause shown by M., against the adjudication:

Held, that as M. was neither carrying on trade nor resident in Ireland, there was no jurisdiction to order substituted service of the debtor's summons, and that the adjudication should be annulled.

This was an appeal from an order of Boyd J., dated the 29th October, 1915, disallowing the cause shown by Patrick Murray against his adjudication in bankruptcy in this matter.

Messrs. Fisher & Sons, the petitioning creditors, on the 23rd June, 1915, obtained judgment in the King's Bench Division against Patrick Murray for a sum of £43 11s. 9d. and £10 18s. 4d. costs, for goods sold and delivered to him in the year 1914, when he was carrying on business at Castlehlayney, county Monaahan. In October, 1914, Murray sold his premises in Castlehlayney, with the stock-in-trade, to his two brothers for £1050, and in November, 1914, having executed the deed of conveyance of the said premises, he left Castlehlayney for Glasgow, where he had a business. Since that date he had resided at Glasgow, and had not returned to Ireland, the business formerly belonging to him being carried on by his brothers. Murray, when he sold his business, handed over his day-books and ledgers to his solicitor, Mr. J. G. Reid, with instructions to collect his debts and pay the proceeds to his creditors; and Mr. Reid did, in fact, collect certain of Murray's debts, and paid instalments amounting to five shillings in the pound to Murray's creditors. Service of the writ in the action against Murray was by leave of the Court effected by substitution of service on Mr. Reid.

On the 7th July, 1915, particulars of demand were served by Messrs. Fisher & Sons on Murray, directed to his address in Glasgow; and a debtor's summons for recovery of the said judgment debt and costs was issued on the 12th July, 1915, directed to Murray at Castlehlayney. By an order of the Court of Bankruptcy, dated the 16th July, 1915, it was directed that service of a sealed copy of the debtor's summons, together with a sealed copy of the said order, to be made personally on the said Mr. J. G. Reid, solicitor for the debtor, should be deemed to be good and sufficient service of the debtor's summons on Murray. The debtor's summons not having been complied with, a petition in bankruptcy was filed by Messrs. Fisher & Sous on the 14th August, 1915; and on the 1st September, 1915, Murray was adjudicated a bankrupt, an order being made by the Court that, in addition to the service of the duplicate order of adjudication on the bankrupt personally, or by leaving the same at his usual or last known place of abode or place of business, a duplicate order of the adjudication should be also served on the said Mr. J. G. Reid. Murray subsequently showed cause against the adjudication, and this having been disallowed, he now appealed.

Blood K.C., and F. W. Price, for the appellant:—

The cause shown by Murray against the adjudication should have been allowed. At the date of the attempted service of the debtor's summons he was neither carrying on trade in Ireland, nor was he resident in Ireland, and the Irish Court of Bankruptcy had accordingly no power to order substitution of service of the debtor's summons. Non-compliance with a debtor's summons within twenty-one days in the case of a non-trader amounts, under sect. 21 (6) of the Bankruptcy (Ireland) Amendment Act, 1872, to an act of bankruptcy, and there is no power to extend the time. Consequently great hardship might ensue to a foreign debtor if this practice of allowing substitution of service of a debtor's summons directed to such a debtor were to be sanctioned. We contend that there was no jurisdiction in the Irish Court empowering this to be done. In Ex parte O'Loghlen, In re O'Loghlen (1), it was held that on the true construction of the English Bankruptcy Act of 1869, and the General Order of January, 1870, a debtor's summons could not be served out of the jurisdiction. James L.J. there said: “I am of opinion that the English Court of Bankruptcy has no jurisdiction over a man de facto living in Ireland, and having neither de facto, nor in the contemplation of the law, any residence here.” Nothing in the Irish statutes or rules confers a larger jurisdiction on the Irish Court. Sec. 309 of the Irish Bankruptcy and Insolvent Act, 1857, provided for substitution of service when a person was keeping out of the way, and could not be served personally. Sec. 124 of the Bankruptcy (Ireland) Amendment Act, 1872, empowered the judges of the Court to make general rules for the effectual execution of the Act, and enacted that any general rule might prescribe regulations as to the service of summonses and orders, “including provisions for substituted service.” The Rules of the Supreme Court (Ireland), 1905, now regulate all proceedings in bankruptcy in Ireland. Order 88, Rule 19, provides that a debtor's summons is to be served personally, or by substitution of service as mentioned, where the Courtis satisfied that a debtor is keeping out of the way to evade service, or that from any other cause prompt

personal service cannot be effected. Order 88, Rule 95, enacts that “the provisions of Order 9, Rule 5, so far as applicable, shall apply in all proceedings under the rules of this order.” There is no suggestion here that Murray is keeping out of the way to evade service, and, allowing the fullest effect to the incorporation into the existing bankruptcy rules of Order 9, Rule 5, it is clear that, as this was not a case in which an order could have been made for service out of the jurisdiction of the debtor's summons, substitution of service could not be directed. This would be to do indirectly what could not be done directly: O'Connor v. Star Newspaper Company (1). In In re Hodges (2), where a debtor's summons was taken out in the name of the secretary of a limited company for a debt due to the company, Lord Selborne L.C. said:— “This summons is a special statutory proceeding, involving important consequences, and all proper forms must be strictly complied with. The appeal must be allowed, and the summons dismissed with costs.”

In Ex parte Blain; In re Sawers (3), it was decided that the English Court of Bankruptcy will not make an order for service out of the jurisdiction of a bankruptcy petition on a foreigner, though a member of an English firm which has traded and contracted debts in England, and against which an execution in respect of a judgment debt had been levied by seizure and sale of goods of the firm in England. [They also referred to In re Pearson (4), Ex parte Crispin, In re Crispin (5).]

Hanna K.C., and Cusack, for the respondents:—

If the appeal succeeds, the respondents will be left without a remedy; they cannot take bankruptcy proceedings in Scotland. Murray himself has acknowledged the jurisdiction of the Irish Courts. No steps were taken by him to set aside the order for substitution of the service of the writ of summons for the debt. No doubt substitution of service under sect. 309 of the Act of 1857 could be effected only when the debtor was keeping out of the way; but Order 88 goes much further. It expressly incorporates

Order 9, Rule 5, dealing with substitution of service. O'Connor v. Star Newspaper Company (1) has no application. Murray could have been served personally out of the jurisdiction without an order of the Court. At the date of the service of the debtor's summons, Murray was still a trader within the jurisdiction of the Irish Court. In O'Loghlen'sCase (2) the debtor was a non-trader, who had no residence in England. Here Murray, if resident in Scotland, was still a trader in Ireland. He had contracted trade debts in this country which remained unpaid, and his agent, Mr. Reid, was still engaged in collecting his book-debts. He was, therefore, answerable to the bankruptcy jurisdiction in Ireland: Dewdney, Ex parte; Seaman, Ex parte (3); Stronge v. Hawkes (4); Ex parte Griffiths (5); In re Reynolds; Ex parte White Brothers, Limited (6); In re Clark; Ex parte Pope and Owles (7).

[The following cases were also cited and discussed:—Ex parte Schomberg (8): Ex parte M'George; In re Stevens (9); In re Bogers (10); In re Sanderson (11); In re Hazleton, a Bankrupt (12); Lewis v. Herbert (13); Bailie v. Grant (14).]

Blood K.C., in reply.

Cur. adv. vult.

Blood K.C., and F. W. Price, for the appellant:—

Hanna K.C., and Cusack, for the respondents:—

O'Brien L.C.:—Lord Justice Molony will deliver the judgment of the Court.

Molony L.J.:—

This is an appeal from an order of Mr. Justice Boyd, dated the 29th October, 1915, disallowing the cause shown against the adjudication in bankruptcy of Patrick Murray.

It appears that Patrick Murray had been a publican carrying on business in Castleblayney up to October, 1914, when he sold his premises to his two brothers, and left for Glasgow in the

following month, where he has since resided. There were some book-debts due to him, and he...

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