Mulvenna v The Admiralty
| Jurisdiction | Scotland |
| Judgment Date | 05 June 1926 |
| Docket Number | No. 85. |
| Date | 05 June 1926 |
| Court | Court of Session |
Lord Constable, Lord Sands, Lord Blackburn, Lord Ashmore.
ArrestmentSubjects arrestable Wages Workman in Government employmentArrestment of wages for arrears of alimentFurthcomingAct of Sederunt of 11th June 1613CrownRights and immunities.
The wages of a workman in the employment of a Government Department are not subject to arrestment.
The wife of a telephone attendant at a Royal Dockyard obtained a decree against her husband of separation and aliment with expenses. The husband fell into arrears with his payments of aliment, and paid only a part of the expenses. The wife, in virtue of her decree, used arrestments in the hands of the Admiralty of such sums as might be due by them to her husband, and thereafter brought an action of furthcoming against the Admiralty as arrestees, and against her husband as principal debtor. Defences were lodged by the Admiralty, who pleaded that the sums payable by them to the principal debtor were not subject to arrestment, in respect that he was a servant of the Crown.
Held that the wages in question were not subject to arrestment, on the ground that the rule whereby the remuneration of the holders of public offices was exempt from arrestment applied to the wages of an ordinary workman in the employment of a Government Department. Opinion further (per Lord Blackburn) that it is an implied condition in all contracts of service with the Crown that the servant shall not be entitled to sue the Crown for his remuneration, and accordingly that, as the principal debtor could not sue for the sums arrested, the arrestments were incompetent.
On 2nd June 1924 Mrs Euphemia Marr or Mulvenna, residing at 32 South Street, Armadale, West Lothian, brought an action of forthcoming against the Commissioners for executing the office of Lord High Admiral of the United Kingdom of Great Britain and Ireland as arrestees, and against her husband, James Mulvenna, 7 Ritchie Place, Edinburgh, as principal debtor. The conclusion of the summons was that the arrestees should be ordained to make payment to her of the sum of 100 sterling, or of such other sum or sums as may be owing by them to the said James Mulvenna, and arrested in their hands at the instance of the pursuer upon the 1st day of November 1923, with interest thereon, or at least of such part thereof as should satisfy the sum of 65, being arrears of aliment for herself and for her pupil child; the sum of 1,12s. 4d. being interest on the arrears of aliment; and the sum of 23, 12s., being balance of the taxed amount of the expenses of processall in terms of a decree obtained by the pursuer against the said James Mulvenna.
The pursuer averred that, in an action of separation and aliment against her husband, she had obtained decree for aliment for herself of 1 per week and for her pupil child of 5s. per week, with expenses; that her husband had fallen into arrears in payment of the aliment, and had paid only part of the expenses; and that, in virtue of her decree, she had arrested in the hands of the Admiralty the sums due by them to her husband.
Defences were lodged by the Admiralty who, in the course of their answers, averred:The pretended arrestment on which the pursuer founds is inept and incompetent. The said James Mulvenna is a servant in the employment of the Crown. He is employed as a telephone attendant at His Majesty's Dockyard, Rosyth. He receives pay at the rate of 2, 5s. per week, a sum which is no more than sufficient for his maintenance. The said James Mulvenna's remuneration is paid by these defenders, as representing His Majesty, out of moneys voted by Parliament for a particular purpose. The money so paid to him is not arrestable, and the present action is accordingly incompetent. Explained further that, on the date when the said pretended arrestment was used, the amount owing to the said James Mulvenna was 3, 15s. 3d.
They pleaded, inter alia;2. The action being incompetent ought to be dismissed. 3. The pretended arrestment founded on being inept and incompetent, these defenders ought to be assoilzied from the conclusions of the summons in so far as directed against them. 4. The sums payable by these defenders to the said James Mulvenna are not arrestable, in respect that (1) the said James Mulvenna is a servant of the Crown; (2) his pay is intended for his maintenance as a Crown servant; and (3) his pay is provided out of moneys appropriated by the Crown for a particular purpose.
By interlocutor, dated 20th March 1925, the Lord Ordinary (Constable) sustained the fourth plea in law stated for the defenders, and dismissed the action.
Lord Constable'sopinion.The pursuer in this case is the wife of James Mulvenna, who is a telephone attendant in the employment of the Admiralty at Rosyth. On 26th October 1919 she obtained against her husband a decree of separation, with the custody of the pupil child of the marriage, aliment at the rate of 1 weekly for herself and 5s. weekly for the child, and expenses which were taxed at 67, 12s. The husband apparently ceased to pay aliment in September 1922, and on 1st November 1923 the pursuer used arrestments in the hands of the Admiralty for arrears of aliment due from 22nd September 1922 to 26th October 1923, and for the expenses awarded in the action of separation less certain sums paid before the decree. She has now raised the present action of furthcoming against the Commissioners of Admiralty as arrestees, and against her husband as principal debtor, in order to obtain payment of the amount arrested. Defences have been lodged by the Admiralty, who admit that, at the date of the arrestment, they were due to the principal debtor the sum of 3, 15s. 3d., but plead that the money is not arrestable on the grounds (1) that James Mulvenna is a servant of the Crown; (2) that his pay is intended for his maintenance as a Crown servant; and (3) that his pay is provided out of moneys appropriated by the Crown for a particular purpose. The question is whether this defence is well founded in law.
The legal position as to the arrestability of the wages of an ordinary servant is well settled. At common law servants' wages were considered alimentary and were only arrestable in so far as they exceeded what was necessary for subsistence. The Small Debts (Scotland) Act, 1837 (7 Will. IV. and 1 Vict. cap. 41), sec. 7, applied the same rule to the wages of labourers and manufacturers. Later statutes have protected wages from arrestment up to a certain amount, viz., 20s. a week in 1870 and 35s. a week in 1924The Wages Arrestment Limitation (Scotland) Act, 1870 (33 and 34 Vict. cap. 63), and the Small Debt (Scotland) Act, 1924 (14 and 15 Geo. V. cap. 16)but these statutes do not affect arrestments for alimentary debts. In any case, James Mulvenna's wages are 45s. per week and are thus well above the statutory limit. The amount is also, in my opinion, clearly sufficient to render a portion of the wage arrestable at common law in the hands of an ordinary employer.
But in this case the employer is a Government Department administering public funds, and it has long been well settled, both in this country and in England, that on grounds of public policy the salaries of public officers paid from State funds are not assignable or subject to attachment. The question is whether this rule extends to a Government employee who holds no office in the proper sense of the term, who is simply a workman dismissible at pleasure. I think that I must assume that this is the position of the employee in the present case. The defenders' only averments are that he is employed as a telephone attendant at His Majesty's Dockyard, Rosyth. He receives pay at the rate of 2, 5s. per week, a sum which is no more than sufficient for his maintenance. The said James Mulvenna's remuneration is paid by these defenders as representing His Majesty out of moneys voted by Parliament for a particular purpose. The question has never been definitely decided; and in view of the ever increasing scope of employment by Government Departments it is of considerable practical importance.
In the case of the holder of a proper public office, section 148 of the Bankruptcy (Scotland) Act, 1913 (3 and 4 Geo. V. cap. 20), following section 149 of the Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. cap. 79), provides a remedy by empowering the judge in the sequestration, with the consent of the chief officers of the Department to which the bankrupt may belong, to pay to the trustee a certain portion of the bankrupt's salary or pension. But the provision is obviously inapplicable to the case of the ordinary workman. He might be imprisoned for an alimentary debt; but, if the rule of public policy applies to him, he can simply defy his ordinary creditors.
It is desirable therefore to trace with some care the origin and development of the rule founded on by the defenders. In Scotland it dates from an Act of Sederunt dated 11th June 1613, declaring that it shall not be lawful for any man to arrest in the treasurer or receiver's hands, any pension, fies, monthly wages, or other sums of money directed to be paid to any by precept from His Majesty, and that notwithstanding of any such arrestment, the treasurer, &c. may make payment of the saids pensions, &c. to them that has right thereto, without danger to have these sums repeated from them by the arresters.A. S., 11th June 1613, Campbell's Acts of Sederunt, p. 71. The term pension is obviously used in the general sense of any regular payment. Following upon the Act of Sederunt there is a record, dated 30th November 1626 (ibid., at p. 79), of a supplication to the Lords of Council by the High Treasurer and others complaining that certain fees, pensions, monthly wages, and other sums granted by the King to certain persons had been arrested in their hands, whereupon the Lords directed payment to be made notwithstanding the arrestments. Again, on 27th February...
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