The court will not postpone sale on the application of assignees, if mortgagee object: Ex p. Belcher, 2 D. & C. 587.

Mutual Debts.]-By 6 Wm. IV., c. 15, s. 61, same as 6 Geo. IV., c. 16 s. 50, Eng., where there has been mutual credit or debts between the Bankrupt and others, the Commissioner shall state the accounts between them, one against another, notwithstanding any act of Bankruptcy prior to credit given or debt contracted, and shall strike a balance thereon, provided the Creditor had no notice of the act of Bankruptcy committed, "and what shall appear due on either side, on the balance of such account, and no more, shall be claimed or paid on either side respectively." As to notice, if given by some, though not all of a co-partnership, it is sufficient: Hawkins v. Whitten, 10 B. & C. 217; Dixon v. Gass, 1 B. & Ad. 343. The mutual credits must be given before the Bankruptcy: Hewison v. Guthrie, 3 Scott, 298. Promissory note by endorsement over, after issuing, not proveable by holder as a set off-Marsh v. Chambers, 2 Str. 1234; and see Dixon v. Evans, 6 T. R. 57—and even before issuing, where indorser and indorsee had notice of Insolvency-Ex p. Stone, I Glyn & J. 191-this, however, was under the old statute, for by the present statute, notice of Insolvency is no ingredient, as in the case of Hawkins v. Whitten above, where there was notice of Insolvency, although not of an act Bankruptcy actually committed. The debt must be due by the Creditor to the Bankrupt (whether payable or not, is immaterial), before the act of Bankruptcy on which the commission is founded: Abbott v. Hicks, 7 Scott, 715. A banker paying on account of a Bankrupt after notice of Bankruptcy, cannot set off: Vernon v. Hankey, 2. T. R. 113; 3 Bro. 313; and see Raphael v. Birdwood, 5 Price, 604. Untaxed costs had been no set off-Ex p. Rhodes, 15 Ves. 539-but now being proveable under sec. 69 of 6 Wm. IV., c. 14, they may be a subject of set off: see section, and see Arch. B. L. 138, and further on the subject, ibid 150.

Expunging and reducing proofs.]-Before 6 Wm. IV., c. 14, s. 71, the same as 6 Geo. IV., c. 16, s. 60, Eng., the commissioner had no power to expunge without consent-Ex p. Graham, 1 Rose, 456-the remedy was by Petition to the Chancellor. Under this change, however, even the Petitioning Creditor's debt may be expunged-Ex p. Neale, 2 Gly. & J. 308fraud is a good ground for expunging-Ex p. Cawthorne, 2 Rose, 186; 15 Ves. 260-the concealment of securities, a ground: Buck. 390. Statute of Limitations no objection to expunging, nor to refunding dividends-1 Mon. & A. 60; 1 Dea. & C. 556—and the Bankrupt's examination receivable in evidence-4 D. & C. 404-and see the cases cited: Edens, B. L. 376, and Archbold, 192. It does not follow that if a debt be expunged, the dividends must be refunded: Ex p. Bolton, 1 Mon. & A. 60; 1 D. & C. 556. After seven years, dividends not refunded, where received under a mistaken view of the law: Ex p. Soper, 2 Mon. & A. 55; 4 D. & C. 569. Proof not expunged, because Creditor held security, for the proof was an election to abandon lien : Ex p. Rolf, 2 Dea. 421; 3 Mon. & A. 305. Nor because the instrument wanted a stamp: Ex p. Byrom, 3 M. D. &

D. 53. A mere claim cannot be expunged: Ex p. Dobson, Mon. & A. 670. If application to expunge be unsuccessful, costs incurred may be ordered: Ex p. Kirkaldy, 4 Dea. & C. 52; 1 Mon. & A. 642. Where successful to a large amount, reasonable costs to Creditors: Ex p. Margerison, 4 Dea. 80.

The above are given as a few of the most useful cases, under the head of Proof of Debts. It may be well, however, to state that no change has taken place therein by the recent statute for Ireland, and that the law does not differ here from that laid down in the English books, which may, with safety, be consulted and followed upon the subject.

Those who are desirous of acquiring more minute and accurate knowledge, upon this very extensive topic, are directed to 1 Arch. B. L. 10th Ed. (1844) pp. 119 to 193; 1 Dea. B. L. by De Gex, 2nd Ed. (1848) pp. 191 to 331; Mont. & Ayr. B. L. by Koe & Miller, 2nd Ed. (1844) pp. 163 to 191, where the whole of the law is collected with great industry, and set forth in practical detail.

To give this subject at greater length, might be more satisfactory to the reader, but would be proportionally discreditable to the compiler, as it would amount to nothing short of direct and open plagiary, by appropriating the labors of eminent individuals, to purposes selfish and unprofessional.

CHAPTER VII.

Sect. 1. Of Assignees generally.

2. Of Provisional Assignees.

3. Of Official Assignees.

4. Of Creditor's Assignees.

SECTION 1.-OF ASSIGNEES GENERALLY.

Assignees, in Bankruptcy, were persons to whom the Bankrupt's estate was assigned, and in whom it vested for the benefit of the Creditors: 2 Bl. Com. 480. They were chosen by the major part in value of the Creditors, who proved their debts, but might have been, originally, appointed by the Commissioners, and afterwards approved or rejected by the Creditors, ibid. They were in the nature of trustees, and their authority became limited to

the purposes of their trust: 1 Cooke, 287. So late as 6 Geo. IV., c. 16, s. 63, Eng., the Commissioners in England were directed to assign the personal estate to Assignees; but by 1 & 2 Wm. IV., c. 56, s. 25, Eng., a deed of assignment became unnecessary, it being enacted that all the Bankrupt's "personal estate and effects, present and future, which by the laws now in force may be assigned by Commissioners, acting in the execution of a commission, against such Bankrupt, shall become absolutely vested in, and transferred to, the Assignees or Assignee for the time being, by virtue of their appointment, without any deed of assignment for that purpose, as fully to all intents as if such estate and effects were assigned by deed to such Assignees and the survivor of them." The substance of these provisions, taken from the foregoing English statutes, were incorporated in the 6 Wm. IV., c. 14, ss. 74, 75, Ir., by which the law, in respect to Assignees with us, became assimilated with that of England, and no deed of assignment is any longer necessary in either country. And now whilst the origin of the name Assignee no longer exists, the name itself is preserved.

SECTION 2.-THE PROVISIONAL ASSIGNEE.

The period which necessarily elapsed between the adjudication, and the choice of Assignees by the Creditors, exposed the Estate to certain contingencies. For instance, an Extent might issue at the suit of the Crown, which would have the effect of binding the estate, if issued before it vested in assignees; or the Bankrupt's business might be of such a nature, as to require immediate care or constant snperintendence. To remedy which, the Commissioner was empowered by 6 W. IV., c. 14, s. 55. Ir., to appoint a Provisional Assignee as often as he should think fit, who, however, was removable by the Creditors at the meeting for choice of Assignees. This provision was taken from 6 Geo. IV., c. 16, s. 45, Eng., with the exception that, in the Irish act, it was unnecessary for the Commissioner absolutely to assign by deed, the estate of the Bankrupt vesting directly by virtue of the appointment itself. This clause for the appointment of a Provisional Assignee, may now be said to be virtually, although not actually, repealed by the adoption of the Official Assignee, as copied from 1 & 2 W. IV., c. 56, s. 22, Eng.

SECTION 3.-THE OFFICIAL ASSIGNEE.

By 12 & 13 Vic., c. 107, s. 28, Ir., one or two persons, being Merchants, Brokers, or Accountants, or persons who are, or have been, engaged in Trade, shall be appointed by the Lord Chancellor to act as Official Assignees. One of these is to be the Assignee of each Bankrupt's estate and effects, together with the Creditor's Assignee, when chosen, ibid. He is removable at the discretion of the Lord Chancellor, who is empowered to supply his place by another upon any vacancy: s. 32;* and the Commissioner is to

*

Under this head all references to sections, mean to the sections of the Act 12 & 13 Vic., c. 107, Ir.; and references to Rules and Orders mean the Rules and Orders of 1 Nov. 1849, unless otherwise specified.

appoint an Official Assignee to act in the same Bankruptcy matter, subject to the Rules framed under s. 70, which see post, (Rules and Orders relating to Off. Assignees, 1 Nov. 1849).

The appointment of Official Assignees is by the Lord Chancellor, under s. 28, and their duty in acting "together with the Assignee or Assignees, to be chosen by the Creditors," is laid down in the same section; and by Rule 1, "no Official Assignee shall, either directly or indirectly, carry on trade or business," or hold any other "office or employment" than that of Official Assignee.

They are to give security in the sum of £5000 in manner set forth in Rules 2 & 3; and on the first of January, in each year, or within a week thereof, they shall make a declaration as to the existence, or solvency, or change of residence of their sureties (Rule 5); and of their death or insolvency, if such take place, immediate notice shall be given, in writing, to the Commissioners: (Rule 6.)

Books to be kept.]—Under Rule 12 they are bound to keep the following books:

1. The Commission Book.

2. The Bankrupt's Books' Register, containing a list and description of all the books delivered to such Official Assignee under each estate.

3. The Register Land Book.

4. Debtor and Personal Property Book.

5. Bill Book.

6. Fair Cash Book.

7. Audit and Dividend Book, together with such other books as may be necessary for the clear and satisfactory discharge of his duties as Official Assignee.

At foot of the Rules are appended a Schedule, which gives two Forms of letters for the instruction of the Official Assignee. The first is to be directed to the Bankrupt, upon his appointment over the estate, informing him thereof, and requiring him to deliver in forthwith, a list of all his Creditors, according to a printed form, which is the same as that hitherto sanctioned by the Court of Bankruptcy; and also notifying to him the necessity of applying himself to the preparation of his Schedule and Balance Sheet; and further informing him where he shall find his Trade Books, which had been seized by the messenger, &c.

The second is a Form of Circular to each of the Debtors, notifying the amount and nature of the Debt, by reason of which he is returned as a Debtor to the estate.

The Official Assignees' duty, with regard to those communications and their results, is fully set forth in Rules 14 and 15.

Making Estate available.]-Under Rule 19 this duty devolves particularly upon the Official Assignee, who is to use all diligence and energy in collecting in the debts due to the estate, and constantly communicating with the Commissioners upon the subject; and, by Rule 23, when he has succeeded in calling in £100 belonging to any one estate, he shall give notice thereof to the Creditors' Assignees.

Making Lodgments in the Bank.-When the amount received upon

L

any estate exceeds £50, he must lodge the excess forthwith in the Bank of Ireland, to the joint credit of himself and the Creditors' Assignee, and he is never to hold in his hands more in the aggregate, for all the estates over which he is appointed, than £250, under a penalty of £20 per cent. per annum on the excess, and at the risk of dismissal: (Rule 28.)

Cheque Book.]-He is to keep a Cheque Book for each of his estates, and to initial each cheque before delivering it to the Creditors' Assignee for signature (Rule 22), preserving the date and all particulars on the Block (Rule 23). At what time the cheque is to be filled, see Rule 35; and in what manner. (Rule 36.)

When Dividend declared.]-The Creditors' Assignee, together with the Agent to the commission, is to make out Three Lists of the Creditors in the order of their proofs, with dates, amounts, &c., and stating whether same be a first or other dividend, and sign and date these three Lists, and deliver same to the Official Assignee, who, after due examination and computation of the share to which each creditor is entitled, shall sign and date same, keeping one for himself, and delivering the others to the agent, who shall place one of the two on the File, and post the other in the Court. (Rule 34.)

Notice of Dividend.]—Notice thereof within one week after, is to be published in the newspapers, if so directed by the Commissioner, and notified by a circular to the Creditors through the post office, giving all necessary particulars. (Rule 37.)

Payment to Creditors.]-Creditors holding Securities must produce them to the Official Assignee, to be marked by him with the amount of the dividend thereon, previous to delivering the Dividend Cheque, the Official Assignee taking the Creditor's receipt. In the event of non-production of the security, the Creditor to be examined on oath before the Commissioner, and also to indemnify the Official Assignee. (Rule 38.)

Remuneration.]-A provision exists in s. 37, for remuneration to the Official Assignees for their labours. The Commissioner is given the power of apportioning such sum as may be "just and reasonable," according to the services bestowed and the amount of the Bankrupt's property, taking care that it shall always be made by way of per centage on the total amount of the monies realised," a proviso not to be found in the corresponding enactments 1 & 2 Wm. IV., c. 56, s. 57, Eng., nor in 5 & 6 Vic., c. 122, s. 51, Eng., which respectively relate to the remuneration of the town and country Official Assignees. Under Lord Brougham's Gen. Rules and Orders, Jan. 12, 1832 (Rule 27), it was a recommendation to the Commissioners to allow the Official Assignee 1 per cent. on the monies received by him, and 1 per cent. more on the monies to be divided, at the same time subject to be increased or diminished by the Court of Review. As yet, no fixed per centage has been determined in any of the foregoing Rules and Orders.

Authority. The Official Assignee is restricted from in any manner interfering with the Creditors' appointment or removal of a solicitor or attorney, or with the time and manner of effecting a sale of the property (s. 31), although it is he alone who is to possess and receive the proceeds