Hollinshead and Another, Appellants; M'Loughlin and Another, Respondents

CourtHouse of Lords (Ireland)
JudgeH. L.
Judgment Date20 November 1916
Date20 November 1916
Hollinshead and Another
M'Loughlin and Another
Respondents (1).

H. L.











Bankruptcy — Examination of Witnesses — Unsatisfactory Answering — Committal — Irish Bankrupt and Insolvent Act, 1857 (20 & 21 Vict. c. 60), s. 385 — Appeal to House of Lords from Order reversing Committal Order — Competency of Appeal.

Upon appeal to the House of Lords from the decision of the Court of Appeal, [1916] 2 Ir. R. 583, sub nom.In re M'Loughlin:

Held (agreeing with the judgment of Ronan L.J.), that the order of Boyd J. having been made on the grounds that the evidence of both the bankrupt and his wife as a whole was characterized by fencing and shuffling and a desire to avoid giving any definite answers if possible, and that it was plainly not candid, that the judge was entitled to form the opinion that it was false and unsatisfactory and justified in coming to the conclusion that a committal might induce the witnesses to make a full, true, and candid statement.

Held, that an appeal lay from the order of the Court of Appeal reversing the committal order made by Mr. Justice Boyd.

And held, that the order of the Court of Appeal should be reversed and that of Boyd J. should be restored.

Appeal by Alfred Hollinshead and James A. Kiernan, assignees of Patrick M'Loughlin, a bankrupt, from an order of the Court of Appeal (2), reversing the order of Boyd J. committing to prison the bankrupt, Patrick M'Loughlin, and his wife, Ellen M'Loughlin, for unsatisfactory answering.

Healy K.C., Wylie K.C., and E. S. Murphy, for the appellants.

Serjeant Sullivan K.C. and Martin Maguire, for the respondents.

Viscount Haldane (3):—

My Lords, this is an appeal from the Court of Appeal in Ireland, which raises a question of practice of considerable importance, because, if the reasons for the judgments of the

majority stand as they do at present, a considerable restriction will be placed upon a certain procedure under the Irish Bankruptcy and Insolvency Act of 1857, which hitherto has been regarded in a somewhat different light from that in which the Court of Appeal, by a majority, have regarded it.

My Lords, in the present case two people called M'Loughlin, a man and his wife, had a house, and apparently when the house was bought, and when the property was developed by further building being put upon it, the wife had made considerable advances. A time came when the husband was minded to sell the property, and he entered into a contract to do so, but it turned out that he had made what appeared on the face of it to be an absolute assignment to his wife, which appeared in the abstract of title, and the purchaser took objection, and an endeavour was made to cure the objection by an affidavit, in which it was stated that there was a verbal agreement between the husband and wife that the property assigned should stand only as security to the wife for the amounts she had advanced, and that for the rest it belonged absolutely to the husband. But it was held by Mr. Justice Barton, and, I think, affirmed by the Court of Appeal, that a vendor who contracts to make a title cannot make out his title by showing that there is a title vested in somebody else, who, there being nothing to that effect in the contract, volunteers, but is not bound, to come in and convey; and, further, that the statements in the affidavit of the verbal agreement were not of such a kind as satisfactorily cured the difficulty, and that the vendor had not shown an absolute title in himself.

My Lords, these proceedings having failed, the husband then brings an action for negligence against the solicitor who had advised him in this matter, an action in which he did not succeed. It was tried, but he failed, and he was ordered to pay the costs of the solicitor. In that action, which was brought by the husband, he alleged in his statement of claim that he was the absolute owner, subject only to the advances made by his wife, which amounted, as it is put there, to £150.

My Lords, it is said now that that was merely a pleading statement, that it does not represent the mind of Mr. M'Loughlin at that time. But it is very difficult to imagine that the solicitors

who had taken up his case, and brought the action for him against the original solicitor, would or could instruct counsel, without endeavouring to ascertain the facts; and certainly the allegation in that statement of claim affords, to my mind, a very strong presumption that Mr. M'Loughlin throughout took the view that he was the absolute owner, subject only to a mortgage to his wife, in whom the legal estate was vested.

Then, my Lords, came the proceedings out of which the present question arises. M'Loughlin is adjudicated a bankrupt at the instance of the solicitor, whose costs in the action for negligence he has been ordered to pay; and then the assignee endeavours to get in M'Loughlin's assets, and one of the assets he wants to get in is this house. But M'Loughlin says the house is his wife's. Then, under sect. 385 of the Bankruptcy and Insolvency (Ireland) Act, 1857, M'Loughlin and his wife are examined. Now, the...

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