Re, Bolton

• Jurisdiction: Ireland
• Judgment Date: 16 April 1920
• Date: 16 April 1920
• Court: King's Bench Division (Ireland)

K. B. Div.

In re Bolton.

In the MATTER of the BANKRUPTCY (Ireland)AMENDMENT ACT, 1872, and in the MATTER of the INSOLVENT ESTATE of EDWARD FRANCIS BOLTON, of Cape Town, in the Union of South Africa

Bankruptcy Amendment (Ireland) Act, 1872 (35 & 36 Vict. c. 58), sect. 71 -Insolvency in Union of South Africa - Vesting land in Ireland in trustee appointed by South African Court - Jurisdiction - Creditors in Ireland - Form of order.

Motion.

By an order made on the 15th August, 1918, by the Supreme Court of the Union of South Africa (Cape of Good Hope Provincial Division), under the Insolvency Act (No. 32) of 1916, of the Union of South Africa, the estate of Edward Francis Bolton, of Cape Town, in the Province of the Cape of Good Hope, was sequestrated for the benefit of his creditors. On the 6th September, 1918, Alexander Mitchell Souter was elected trustee of the insolvent estate, and was declared entitled to administer the estate in accordance with the provisions of the said Insolvency Act. It appeared from the affidavit of a member of the Bar of the Supreme Court of the Union of South Africa that, according to the law of the Province of the Cape of Good Hope, Alexander M. Souter as trustee of the insolvent estate was entitled to the immovable property of the insolvent situated in Ireland, in so far as such right did not conflict with the law or the policy of the law of Ireland. The insolvent was entitled to an undivided share in certain freehold and leasehold house property in Ireland. By an order made on 11th November, 1918, by the Supreme Court of South Africa, it was ordered that aid be sought from the Courts in Ireland, requesting the said Courts, and especially such Courts as have jurisdiction in bankruptcy, to act in aid of and be auxiliary to the Supreme Court of the Union of South Africa, for the purpose of recognizing the appointment of the said trustee of the estate and effects of the insolvent and his title to administer the same, and generally to exercise the like jurisdiction which the Supreme Court of the Union of South Africa could exercise in regard to the matter and similar matters within the said Court's jurisdiction.

By an order of the Supreme Court of the Union of South Africa, made under the Insolvency Act, 1916, of the Union of South Africa, the estate of an insolvent was sequestrated for the benefit of his creditors; subsequently a trustee of the estate was elected, and was declared entitled to administer the estate in accordance with the said Act. The insolvent was entitled to certain freehold and leasehold property in Ireland. Under the law of the Union of South Africa the trustee was entitled to the immovable property of the insolvent situate in Ireland, so far as such right did not conflict with the law in Ireland. The Supreme Court of South Africa having requested the Irish Courts to act in its aid, the trustee applied for an order vesting the said property in him.

Held, that he was entitled to such order.

Dodd J. :—

The mutter is entirely new, and arises upon the construction of one section of the Act of Parliament in force in this country, and upon the general principles to be found in the Roman law, and the Dutch law, and the British law. As regards the matters involved in this case, the difficulty arises from the use of words more than from anything else. The word "bankruptcy" is a word well known in the English language. It has, as far as I know or can remember, no equivalent in the Roman law or the Dutch law. The word "insolvent" is a word known to the Dutch law, and is an interpretation in the Dutch law of the old Roman law of cessio bonorum. A bankrupt in British phraseology meant

a man who had broken his bench, and had indicated thereby that he had not enough money to pay his creditors, and in our vocabulary up till 1872 was applicable to...