Sparks v Younge

• Jurisdiction: Ireland
• Judgment Date: 13 November 1858
• Date: 13 November 1858
• Court: Exchequer (Ireland)

Exchequer.

SPARKS

and

YOUNGE.

Wintle v. Williams 3 Exch., N. S. 288.

Johnson v. DiamondENR 11 Exch. 73.

Hirsch v. CoatesENR 18 C. B. 757.

Dalton v. Selly Cro. Eliz. 184.

Leuknor v. Huntley ro. Eliz. 712.

Roberthon et uxor v. Norroy Dyer, 83 a.

Milward v. ThatcherENR 2 T. R. 81.

Robbins v. StandardENRENR 1 Sid. 327; S. C., 2 Keb. 202.

Dalton v. SellyENR 3 Leon. 236.

Ingram v. Bernard 1 Lord Ray. 637.

M'Daniel v. HughersENR 3 East., 367.

Westoby v. Day 2 Ell. & Bl. 605.

Jones v. Thompson 27 Law Jour., N. S., Q. B., 234.

Holmes v. Tutton 5 Ell. & Bl. 65.

Turner v. Jones 1 Exch., N. S., 878.

COMMON LAW REPORTS. :251 SPARKS v. YOUNGE. M. T. 1858. Exchequer. Nov. 9, 10, 13. TN this case, P. Creagh had, on the 18th of August last, obtained A debt due by a third party, an order from O'Brien, J., in Chamber, under the 63rd section of but not pay able until a the Common Law Procedure Act, 1856, whereby it was ordered future day, is within the that the two several judgments recovered by the defendant against garnishee clauses of the 'John Farrall, as of Michaelmas Term 1856, for the several Common Law sums of £1550 and £394, should be, and they were, thereby Procedure Act, 1856, and attached, to answer the plaintiff's debt of £225. ls. 6d., and may be at tached. £7. 9s. Od. costs, to the extent of said debt and costs, without The mere possibility that further notice • and it was further ordered, that the said John when the day Farrall should appear on the 2nd day of November, and show of payment arrives, there cause why he should not, out of the amount due by him to the - may be a de fence against defendant, on said judgments, pay to the said plaintiff the said the recovery of the debt, is no sums of £225. Is. 6d., and £7. 9s. Od. costs, in satisfaction of his ground for re sisting an said judgment debt. attachment order.-[Per It appeared that J. B. Younge, the defendant, was owner of a PIGOT, C. B.] In I t leasehold interest in a house and 108 acres of land in the county the Court dis, case- of Kildare, held for a term of sixty-one years, under a lease of charged the conditional the 12th of February 1852, at the yearly rent of £180; that in order to pay, but allowed November 1856, he sold to J. Farrall, the garnishee, the furniture the attachment in the house, for a sum of £197, and also agreed to sell to him his order to stand. interest in the lease of the 12th of February 1852. Upon the occasion of that sale, on the 29th of November 1856, two bonds were executed ; one for the penal sum' of £394, conditioned for the payment, without interest, on the 1st of October 1861, of £197, the price of the furniture ; and the other for the penal sum of £1550, conditioned for the payment, without interest, of the sum of £775, on the 1st of October 1863. On the same 29th of November 1856, J. B. Younge demised the house and lands to Farrall, for a term of seven years, from the 1st of August 1856, at the yearly rent of £300 ; and an agreement, of same date, not 252 COMMON LAW REPORTS. M. T. 1858. under seal, was entered into, and signed by both parties. A state Exchequer. ment of the agreement will be found in the judgment of the LORD SPARKS CHIEF BARON. An affidavit was made by J. Ferran, the garnishee, v. YOUNGE. in which he stated that the judgments referred to in the agreement, and which were the subject of the garnishee order, were still outÂstanding and unpaid, and that he had no intention of paying them off before the periods agreed upon. Cause having been shown on behalf of the garnishee, against the conditional part of the order, upon the opening of the motion, it was admitted by the plaintiff's Counsel, that the order to pay the money could not be sustained ; but the garnishee's Counsel insisting that the attachment order also should be set aside, it was suggested by the Court that the case should be argued as if upon a motion to set aside that order. Accordingly, the case was now argued by William A. Exham and E. Beytagh, for the garnishee. We have it now admitted, on the part of the plaintiff, that the conditional order to pay must be discharged ; and it follows, as a necessary consequence, that the attachment order also must be set aside. Wintle v. Williams (a) shows that where the order to pay has been discharged, it was not the intention of the Act to leave the attachment order pending over the garnishee. It would be a great hardship upon him if the law were otherwise. Even if that case does not govern the present, there is no debt due by the garnishee, capable of being attached. The Act contemplates only the attachment of debts payable in presenti ; for it says the service of the attachment order on the garnishee "shall bind such debts in his hands ;" it speaks of an execution issuing immediately, and gives but one defence to the garnishee against the judgment debtor, viz., payment. The Act, therefore, contemplated that there should be no. interval of time between the attachment and payment.-[GREDNE, B. There must be a debt established ; but is your argument this-that a debt absolute, but not payable until a future day, is not liable to be attached ? Take the case of a bond, conditioned for the payment of £500, two years hence. In (a) 3 Exch., N. S., 288, COMMON LAW REPORTS. 253 Johnson v. .Diamond (a), Parke, B., says :-" I agree that if the M. T. 1858. h eq uer. " bond had not been conditioned for the payment of a sum certain, Exc " or a sum capable of being ascertained without the intervention SPARKS v. " of a jury, the statute would apply."]-In Johnson v. Diamond, YOUNGE. the debt there in question was held not to be attachable, and the jndgment must be read secundum subjectam materiem. Here, there •is clearly no absolute debt ; for the amount of the judgment might never be recoverable as between Younge and Farrall. Take the case of the larger judgment. Young was bound to assign the lease free from incumbrances ; and, supposing it were ascertained that incumbrances had been created by him, would not that be a defence against the payment of the amount of the judgment ? The payment is conditional upon events which, possibly, may not happen ; and it is more than probable that, when the day of payment arrives, Farrall may have a good defence (in Equity at all events) against the payment. There is, certainly, no unconditional absolute debt due by Farrall ; and the statute, it is submitted, was intended to apply only to clear cases. P. Creagh, contra. The attachment order must stand. The proposition for which we contend is this, that wherever a debt exists, it is not the less attachable because it is payable on a future day. The language of the statute could not be'satisfied by any other construction : the debts attachable under the 63rd section are " all debts owing or accruing from such third person ;" and if these judgments conÂstitute a debt, they are clearly "accruing" debts within the meanÂing of that section. Wintle v. Williams has been cited to show that, where the order to pay is discharged, the attachment order also must be set aside; but the case does not establish any general proposition of that kind, although, in that particular case, such was the course adopted. In Hirsch v. Coates (b), the attachment order was allowed to stand, upon a principle which applies directly to this case, that the plaintiff cannot get from the garnishee anything to which the judgment debtor was not entitled. We shall have all our (a) 11 Exch. 73. t (b) 18 C. B. 757. 254 COMMON LAW REPORTS: M. T. 1858. judgment debtor was entitled to at Law and in Equity. It is quite Exchequer. • clear, that a debt payable at a future day was attachable under the SPARKS custom of foreign attachment. Dalton v. Selly, as reported by v. YOUNGE. Croke, is the only authority to the contrary ; but Croke's report is not correct, as appears by the note to Croke Eliz., p. 712, and the report of the same case in 3 Leonard; p. 236 ; Ashley on Attachment, p. 26. Again, the amount due on foot of the judg, ments is a debt ; the agreement is...