The Law Reports (Queen's Bench Division)

[1953] 1 QB 533
[DIVISIONAL COURT]

REGINA v. MISKIN LOWER,

GLAMORGANSHIRE JUSTICES.
Ex parte YOUNG.

1953 Jan. 20, 21;

Feb. 6.

Lord Goddard C.J., Croom-Johnson and Pearson JJ.

Husband and Wife — Justices — Maintenance — Arrears —Committal order — Suspended

on conditions — Non-compliance — Accrual of further arrears — Payment of original
arrears — Husband entitled to discharge of committal order — No implication of
appropriation of sums paid to current payments of maintenance — Appropriation to
original arrears — Summary Jurisdiction (Married Women) Act, 1895(58 & 59 Vict. c.
39), s. 9 — Bastardy Laws Amendment Act,1872 (35 & 36 Vict. c. 65), s. 4 — Summary
Jurisdiction Act,1848 (11 & 12 Vict. c. 43), ss. 28, 35 — Summary Jurisdiction
Act, 1879 (42 & 43 Vict. c. 49), ss. 5, 21 (1), 54 — Criminal Justice Administration
Act, 1914 (4 & 5 Geo. 5, c. 58), ss. 3 (1), 32 (3).

A husband was £7 12s. 6d. in arrears under a maintenance order requiring him to pay £2
10s. a week to his wife. Justices made a committal order in respect of the arrears, suspended
on condition that he paid the sums provided for in the maintenance order and in addition 2s. a
week in respect of the arrears. The husband made three payments of £2 each and, on being
arrested, a further payment of £1 12s. 6d.; he was then released on the footing that he had paid
the original debt in full. No other payments having been made, the wife applied to the justices
to implement the terms of the suspended committal order; and the justices refused. On the
ground that the payments should have been appropriated to current payments of maintenance
and that the justices were wrong in refusing her application, the wife applied for an order of
mandamus directed to the justices and requiring them to exercise their discretion under
section 9 of the Summary Jurisdiction (Married Women) Act, 1895, and section 8 of
the Money Payments (Justices Procedure) Act, 1935 , and in particular to consider
committing the husband to prison for non-payment of arrears under the maintenance order:—
Held, first, that the committal order remained throughout the sanction for non-payment of the
original debt, and the postponement on condition that the husband regularly paid the
amounts of the weekly payments plus an addition on account of the arrears which constituted
the original debt merely gave him a beneficial option and did not deprive him of the right,
which could not be taken away, to secure a discharge of or a release from the committal order
by payment of the original debt. The husband was therefore entitled to secure a discharge or a
release from the committal order by paying the original debt, notwithstanding that he had not
complied with the conditions on which it was suspended and further arrears had accrued.

Held, secondly, that the question whether the payments made by the husband should be
appropriated to the original debt depended on the particular facts of the case. The husband
would be likely to wish the payments to be utilized in discharge of the original debt, and there
was no evidence of any express appropriation of any of the sums paid to current weekly
payments, nor were there any grounds for implying such appropriation. The husband was,
therefore, entitled to have the payments appropriated to the discharge of the original debt and
was accordingly rightly considered to have paid it. The application failed.

Observations on the desirability of all appeals relating to matters under the Summary
Jurisdiction (Separation and Maintenance) Acts, 1895–1949 , being brought to the Probate,
Divorce and Admiralty Division.

Ruther v. Ruther [1903] 2 K.B. 270 questioned.

APPLICATION for order of mandamus.

The following statement of facts is taken from the judgment of PEARSON J. A maintenance
order was made by justices on May 16, 1951, under the Summary Jurisdiction (Separation and
Maintenance) Acts, 1895 to 1949 , and the material provisions of the order were that (1) the
legal custody of a child of the marriage between the applicant and her husband, the defendant,
be committed to the applicant; (2) the defendant do pay to the collecting officer on behalf of
the applicant the weekly sum of £2, together with the additional sum of 10s. for the
maintenance of the child, the first of such payments to be made on Wednesday, May 25,
1951, and the subsequent payments on every Wednesday in each succeeding week; and (3)
the defendant do pay the sum of £2 12s. 6d. for the costs of the court and of the applicant
incurred in obtaining the order.
On July 12, 1951, the applicant caused to be issued a summons in respect of arrears under the
maintenance order amounting to £7 12s.6d., and on August 1, 1951, the justices made an
order committing the defendant to prison for one month, such order to be suspended so long
as the defendant paid the weekly sum of £2 10s. 0d. provided for in the maintenance order,
and in addition 2s. per week on account of arrears. The sum for non-payment of which the
committal order was made was the above-mentioned sum of £7 12s. 6d. In each of the next
two weeks the defendant paid to the collecting officer the sum of £2 only, so that the
condition on which the committal order was suspended was not complied with, but a total of
£4 was paid. On August 18, 1951, the applicant applied for a warrant to commit the
defendant. A warrant of commitment was issued for the balance of £3 12s. 6d. on the footing
that £4 of the original debt of £7 12s. 6d. had already been paid. While the warrant was in the
hands of the police the defendant made a further payment of £2, and, on being arrested, a
further payment of £1 12s. 6d., and the defendant was released on the footing that he had by
that time paid the full amount of the original debt.

From November 22, 1951, to January 8, 1952, there was correspondence between the
applicant's solicitor and the clerk to the justices. The clerk to the justices, in a letter of January
4, 1952, referred to the sums of £4, £2 and £1 12s. 6d. paid by the defendant, and said that the
defendant had paid the amount for which he was summoned, that the commitment could not
be issued again, and that the applicant should apply for a further summons for arrears, then
amounting to £20 13s. 6d., with a view to the defendant again being brought to the court to be
dealt with. In reply to that letter the applicant's solicitor wrote on January 5, 1952: “Re Young
v. Young. I thank you for your letter of yesterday's date, the contents of which I note. I regret
that I cannot agree with your contention. The sum of £4 paid by the defendant by August 18
was in respect of the current order and not the arrears. The arrears were not reduced at all, and
in fact increased by the sum of 10s. per week. The warrant, therefore, should have been issued
for £7 12s. 6d., the full amount of the arrears, of which the defendant has now paid only the
sum of £3 12s. 6d. If your contention was correct a defendant could escape the consequences
of the committal entirely by merely paying the current order and could say that any sum paid
was on account of arrears. It is my contention that the weekly payments made must be set off
firstly against the current order and it is only any balance which can be set off against the
arrears.”

The clerk to the justices wrote on January 8, 1952: “Young v. Young. I am obliged for your
letter of the 5th instant. The legal position as to the appropriation of payments made to
the collecting officer after the committal order has been made and suspended so long as
certain fixed payments are made is not free from doubt. There has been a great deal of
correspondence in the Justice of the Peace and Local Government Review on this question
during the past 12 months. Opinions have been expressed by some of the correspondents that,
unless a special direction is given by the sender, a collecting officer is bound to appropriate
the whole of such payment to that part of the total amount due which first accrued, namely,
the arrears. In your client's case that course was followed, with the result that the total amount
of arrears due in respect of the commitment was paid. I therefore regret that I can do nothing
to assist your client, but suggest that she issues a further summons for the arrears now due
under the order, which amount to £20 13s. 6d.”

The applicant moved for an order of mandamus directed to the justices and requiring them to
exercise the discretion conferred on them by section 9 of the Summary Jurisdiction (Married
Women) Act, 1895, and by section 8 of the Money Payments (Justices Procedure) Act, 1935,
and in particular to consider committing the defendant to prison for non-payment of arrears
under the maintenance order. The grounds of the application were that, the applicant having
applied orally to the justices to implement the terms of the suspended committal order and to
commit the defendant to prison, such application was refused by the justices by letter dated
November 23, 1952, and that their refusal so to do was wrong.

David Pennant for the applicant referred to Devaynes v. Noble (Clayton’s case)1; Leeson v.
Leeson.2
Elwyn Jones for the respondents.

Cur. adv. vult.

February 6. LORD GODDARD C.J. Pearson J. will deliver the first judgment.

PEARSON J. This case arises out of a maintenance order made by the court of summary
jurisdiction for the petty sessional division of Miskin Lower, in the county of Glamorgan, and
a suspended committal order made by the same court on the ground of non-payment of arrears
under the maintenance order.

1
(1816) 1 Mer. 572
2
[1936] 2 K.B. 156.
[His Lordship stated the facts as set out above and continued:] Two questions arise, namely
(a) whether the defendant was entitled to secure a discharge of or release from the committal
order by paying the original debt of £7 12s. 6d. notwithstanding that he had not complied with
the conditions on which the committal order was suspended and further arrears had accrued,
and (b) whether the defendant was rightly considered to have paid the original debt by making
the payments of £2, £2, £2 and £1 12s. 6d. mentioned above.

For the purpose of determining the first question it will be necessary to consider the relevant
statutory provisions. Section 9 of the Summary Jurisdiction (Married Women) Act, 1895,
provides: “The payment of any sum of money directed to be paid by any order under this Act
may be enforced in the same manner as the payment of money is enforced under an order of
affiliation.” The maintenance order in this case was made under that Act as amended or
extended by the Married Women (Maintenance) Act, 1920 , and the Married Women
(Maintenance) Act, 1949 .

The main provisions for enforcement of the payment of money under an order of affiliation
are contained in section 4 of the Bastardy Laws Amendment Act, 1872, and with later
amendments are as follows: “… and if at any time after the expiration of 14 clear days from
the making of such order as aforesaid it be made to appear to any one justice, upon oath or
affirmation, that any sum to be paid in pursuance of such order has not been paid, such justice
may, by warrant under his hand and seal, cause such putative father to be brought before any
two justices, and in case such putative father neglect or refuse to make payment of the sums
due from him under such order, or since any commitment for disobedience to such order as
hereinafter provided, together with the costs attending such warrant, apprehension, and
bringing up of such putative father, such two justices may, by warrant under their hands and
seals, direct the sum so appearing to be due, together with such costs, to be recovered by
distress and sale of the goods and chattels of such putative father, … but if upon the return of
such warrant, or if by the admission of such putative father, it appear that no sufficient
distress can be had, then any such two justices may, if they see fit, by warrant under their
hands and seals, cause such putative father to be committed to the common gaol or house of
correction … there to remain, without bail or main-prize, for any term not exceeding three
calendar months unless such sum and costs, and all reasonable charges attending the said
distress, together with the costs and charges attending the commitment and conveying to gaol
or to the house of correction, and of the persons employed to convey him thither, be sooner
paid and satisfied.”
Section 1 of the Affiliation Orders Act, 1914 , provides for the appointment of collecting
officers and prescribes their duties. Section 54 of the Summary Jurisdiction Act, 1879,
provides: “This Act shall apply to the levying of sums adjudged to be paid by an order in any
matter of bastardy, or by an order which is enforceable as an order of affiliation, and to the
imprisonment of a defendant for non-payment of such sums, in like manner as if an order in
any such matter or so enforceable were a conviction on information. … This Act shall be
construed as one with the Summary Jurisdiction Act, 1848, so far as is consistent with the
tenour of such Acts respectively, and save as aforesaid shall be subject to the exceptions
specified in section 35 of the Summary Jurisdiction Act, 1848.”

Section 35 of the Summary Jurisdiction Act, 1848, provides: “… nor shall anything in this
Act extend or be construed to extend to any complaints, orders, or warrants in matters of
bastardy made against the putative father of any bastard child, save and except such of the
provisions aforesaid as relate to … the levying of sums ordered to be paid, or to the
imprisonment of a defendant for non-payment of the same.”

Section 28 of the Summary Jurisdiction Act, 1848, provides: “… and in all cases in which any
person shall be imprisoned as aforesaid for non-payment of any penalty or other sum he may
pay or cause to be paid to the keeper of the prison in which he shall be so imprisoned the sum
in the warrant of commitment mentioned, together with the amount of the costs, charges, and
expences (if any) therein also mentioned, and the said keeper shall receive the same, and shall
thereupon discharge such person, if he be in his custody for no other matter.”

Section 21 (1) of the Summary Jurisdiction Act, 1879, provides: “A court of summary
jurisdiction to whom application is made, either to issue a warrant of distress for any sum
adjudged to be paid by a conviction or order, or to issue a warrant for committing a person to
prison for non-payment of a sum of money adjudged to be paid by a conviction, or in the case
of a sum not a civil debt by an order, or for default of sufficient distress to satisfy any such
sum, may, if the court deem it expedient so to do, postpone the issue of such warrant until
such time and on such conditions, if any, as to the court may seem just.”

The Criminal Justice Administration Act, 1914, s. 3 (1), as amended by section 79 and the
Ninth Schedule to the Criminal Justice Act, 1948 , provides: “(1) Where a term of
imprisonment is imposed by a court of summary jurisdiction in respect of the non-payment of
any sum of money … that term shall, on payment of a part of such sum to any person
authorized to receive it, be reduced by such number of days as bears to the total number of
days in the term less one day the proportion most nearly approximating to, without exceeding,
the proportion which the part paid bears to the sum in respect of which the imprisonment is
imposed. (2) Provision may be made by rules under section 29 of the Summary Jurisdiction
Act, 1879, as to the application of sums paid under this section and for determining the
persons authorized to receive such payments and the conditions under which such payments
may be made.”

The relevant rules are the Summary Jurisdiction Rules, 1915 (S.R. & O., 1915, No.
200), rules 18–25 as amended by S.R. & O., 1933, No. 1120.

Section 32 (3) of the same Act (the Criminal justice Administration Act, 1914) provides:
“Where in any proceedings for the enforcement of an order in any matter of bastardy or of an
order enforceable as an order of affiliation the court commits the defendant to prison then,
unless the court otherwise directs, no arrears shall accrue under the order during the time that
the defendant is in prison.” Moreover, the imprisonment discharges the defendant from
liability for the arrears for which he was imprisoned. (Halsbury's Laws of England, Hailsham
edition, Vol. 21, p. 650, note (o); Lushington's Law of Affiliation and Bastardy, 7th ed., p. 64,
note (h); Robson v. Spearman. 3)

Section 5 of the Summary Jurisdiction Act, 1879, provides a scale of maximum terms of
imprisonment for non-payment of money, the maximum terms being proportioned to the
amounts unpaid.

In my opinion, it appears from these provisions that (subject to possible additions in respect of
costs, which do not in principle affect the present question) (1) the committal order is
the sanction for non-payment of what may conveniently be called “the original debt,” being
the specific sum which is mentioned in the application for the committal order and proved to
the justices to be in arrear; (2) if there were a distress warrant, it would be for the levying of
the amount of the original debt; (3) a committal order cannot be made if the original debt has
already been paid by the time when the application for the committal order is made to the
justices; (4) even after the defendant has been committed to prison, he can secure his release
by payment of the original debt, and he can secure a proportionate reduction of the term of
imprisonment by payment of part of the original debt; (5) the maximum term of imprisonment

3
(1820) 3 B. & Ald. 493
depends on the amount of the sum for non-payment of which it is imposed; and (6) where a
committal order is “suspended” on conditions, as in this case, there is a postponement of the
issue of the committal order only so long as certain conditions are complied with, and there is
no enlargement of the scope of the committal order.

In my opinion, the committal order remains throughout the sanction for non-payment of the
original debt, and the postponement of the issue of the committal order on condition that the
defendant regularly pays the amounts of the weekly payments plus some addition on account
of the arrears which constitute the original debt merely gives to the defendant a beneficial
option and does not deprive him of the right to secure a discharge of or release from the
committal order by payment of the original debt. The option is beneficial to the defendant,
because, if he exercises the option, no further arrears accrue and he gradually pays off the
original debt for which the committal order is the sanction, so that the committal order
remains suspended and eventually is discharged or ceases to have effect. If he does not
exercise the option and fails to keep up the current payments, he is liable to, further
proceedings and a new committal order in respect of the new arrears, but the existing
committal order retains its original character as the sanction for the original debt and is not
converted into a sanction for the growing total of the original debt plus the accumulating new
arrears. If the existing committal order, which is for a short term of imprisonment related to
the small amount of the original debt, were converted into the sanction for the growing total,
he could “work off” by imprisonment for a short term a large amount of old and new arrears
for which a longer term of imprisonment would be appropriate.

In my opinion, the answer to the first question is that the defendant was entitled to secure a
discharge of or release from the committal order by paying the original debt of £7
12s. 6d. notwithstanding that he had not complied with the conditions on which the committal
order was suspended and further arrears had accrued.

The second question is whether the defendant was rightly considered to have paid the original
debt of £7 12s. 6d. by making the payments of £2, £2, £2 and £1 12s. 6d. mentioned above.
The answer to that question must depend on the facts of the particular case. In this case the
defendant did make those payments and they did amount to £7 12s. 6d. He would be likely to
wish these payments to be utilized in discharge of the original debt so that he would secure
his release from the committal order. He was obviously not exercising his option to comply
with the conditions of suspension, because he was not paying £2 12s. 0d. per week regularly
or at all. Nor was he paying regularly or at all the amounts of the current weekly payments
due under the maintenance order at the rate of £2 10s. 0d. per week. There was no evidence of
any express appropriation of any of the sums paid to the current weekly payments, and there
are no grounds for implying any such appropriation. So far as appears from the evidence, the
first two sums paid were not appropriated, except that by payment to the collecting officer
they were appropriated generally to the indebtedness of the defendant to his wife under the
orders of the court. The third payment probably was and the last payment, made to avoid
arrest, certainly was appropriated to discharging the balance of the original debt. In those
circumstances, I am of opinion that the defendant was entitled to appropriate or have
appropriated all these sums to the discharge of the original debt and he was rightly considered
to have paid the original debt.

Accordingly, in my opinion, this application fails and should be dismissed.

CROOM-JOHNSON J. [read by Pearson J.]. I agree that the defendant husband was entitled
to secure a discharge from his liability to be committed to prison by paying the amount of the
arrears, £7 12s.6d., outstanding at the time when the committal order was made. I agree that
the justices were empowered by section 21 of the Summary Jurisdiction Act, 1879, if they
thought it expedient so to do, to postpone the issue of the warrant on such conditions, if any,
as to them might seem just, but I can find no power in them in so doing to deprive the
defendant of his right to pay off the arrears and so avoid committal and preserve his liberty,
and they did not purport to do so. The question whether the defendant was rightly considered
to have paid the arrears of £7 12s. 6d. is, in my opinion, a question of fact. The defendant was
not bound to take advantage of the terms upon which the justices suspended the committal
order and he was obviously not doing so. I agree with Pearson J., whose judgment I have had
the advantage of reading in advance, that there was no evidence of any express appropriation
by the defendant of any of the sums paid to the weekly amounts continuing to accrue under
the maintenance order, and I know of no right in the collecting officer to make any such
appropriation. On the figures, the last payment of £1 12s. 6d. must have been intended by the
defendant to discharge the balance of the £7 12s. 6d.; it can refer to nothing else and is not, I
think, a mere arithmetical coincidence. On the facts of this case, I have come to the
conclusion that the defendant was rightly considered to have paid off all the arrears of £7
12s. 6d., and I agree that the application for mandamus should be dismissed.
LORD GODDARD C.J. I agree with the judgment of Pearson J., and, in view of the
importance of this matter, I will shortly state my opinion.

At first sight it would seem that if justices suspend the operation of a committal order on
certain terms, with which the person affected thereby does not comply, the order ought to take
effect and a warrant should issue, but a person can only be committed for arrears, and those
must be arrears which had accrued when application for committal was made. If, then, he is
ordered to pay off arrears at so much a week and to keep up the payments under the original
maintenance order, and if he pays a sum which wipes out the arrears, if he were then sent to
prison it would follow that he was being committed for arrears accruing since the date of the
order. I think, therefore, that the justices were right in refusing to issue a warrant, but they
could have made a fresh order in respect of the arrears which had accrued since the date of the
committal order, and this they offered to do.

In my opinion, the matter does not depend on the law relating to appropriation of payments,
but solely on the statutory provisions relating to the power to commit and to the defendant's
right to avoid committal by paying off the arrears. This latter right cannot be taken away. If
the justices had powers similar to those conferred by rule 6 of the recent Matrimonial Causes
(Judgment Summons) Rules (S.I. 1952, No. 2209), the present difficulty and seeming
anomaly would not arise, but these rules cannot without legislation be applied to orders of
courts of summary jurisdiction. The proceedings in this case took the form of an application
for mandamus, but I have no doubt that the matter could be raised by way of special case, and
I think that it would be most desirable if all appeals under the Summary Jurisdiction Acts
relating to separation and maintenance were brought to the Probate, Divorce and Admiralty
Division. In Ruther v. Ruther 4 it was held that a special case arising out of an application to
commit for arrears lay to this Division and not to the Probate, Divorce and Admiralty
Division, but, if I may say so, the reasons given do not appear to be wholly satisfactory, and
evidently the Divisional court of the Probate, Divorce and Admiralty Division which
heard Adams v. Adams 5 did not regard the decision with favour. If the practice could be
changed by rule or by an order of the Lord Chancellor under section 57 of the Judicature
(Consolidation) Act, 1925 , it would, I think, be a desirable alteration.

I agree that this application fails and should be dismissed.

4
[1903] 2 K.B. 270
5
[1914] P. 155.
Application dismissed.

Solicitors: Rhys Roberts & Co. for Graeme Kemp, Cardiff; Theodore Goddard & Co. for
Morgan, Bruce & Nicholas, Pontypridd.

J. F. L.