at or subsequently to such first meeting, shall be allowed §§ 21, 22. to be present and to vote thereat. Dealings with Bankrupt's Property. trustee. 22. Where any portion of the property of the bankrupt Possession of property by consists of stock, shares in ships, shares, or any other property transferable in the books of any company, office, or person, the right to transfer such property shall be absolutely vested in the trustee to the same extent as the bankrupt might have exercised the same if he had not. become bankrupt. Where any portion of such estate consists of copyhold or customary property, or any like property passing by surrender and admittance or in any similar manner, the trustee shall not be compellable to be admitted to such property, but may deal with the same in the same manner as if such property had been capable of being and had been duly surrendered or otherwise conveyed to such uses as the trustee may appoint; and any appointee of the trustee shall be admitted or otherwise invested with the property accordingly. Where any portion of the property of the bankrupt consists of things in action, any action, suit, or other proceeding for the recovery of such things instituted by the trustee shall be instituted in his official name, as in this Act provided; and such things shall, for the purpose of such action, suit or other proceeding, be deemed to be assignable in law, and to have been duly assigned to the trustee in his official capacity. The trustee shall, as soon as may be, take possession of the deeds, books, and documents of the bankrupt, and all other property capable of manual delivery. The trustee shall keep, in such manner as rules of Court shall direct, proper books, in which he shall from time to time. make or cause to be made entries or minutes of pro §§ 22, 23. ceedings at meetings, and of such other matters as rules Disclaimer as to onerous property. of Court shall direct, and any creditor of the bankrupt may, subject to the control of the Court, personally or by his agent, inspect such books. The power given to any creditor "personally or by his agent" to inspect the books, papers, &c., of the bankrupt, and the books directed to be kept by the trustee, must, of course, be limited to creditors who, in the prescribed manner, have proved a debt, or to their duly authorised agents. 23. When any property of the bankrupt acquired by the trustee under this Act consists of land of any tenure burdened with onerous covenants, of unmarketable shares in companies, of unprofitable contracts, or of any other property that is unsaleable, or not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act, or to the payment of any sum of money, the trustee, notwithstanding he has endeavoured to sell, or has taken possession of such property or exercised any act of ownership in relation thereto, may, by writing under his hand, disclaim such property, and upon the execution of such disclaimer the property disclaimed shall, if the same is a contract, be deemed to be determined from the date of the order of adjudication, and if the same is a lease be deemed to have been surrendered on the same date, and if the same be shares in any company be deemed to be forfeited from that date, and if any other species of property it shall revert to the person entitled on the determination of the estate or interest of the bankrupt, but if there shall be no persou in existence so entitled, then in no case shall any estate or interest therein remain in the bankrupt. Any person interested in any disclaimed property may apply to the Court, and the Court may, upon such application, order possession of the disclaimed property to be delivered up to him, or make such other order as to the possession thereof as may be just. Any person injured by the operation of this section shall be deemed a creditor of the bankrupt to the extent of such injury, and may accordingly prove the same as a debt under the bankruptcy. The very large powers of disclaimer given by this section. are intended to meet many of those cases of onerous contracts and of unsaleable and unprofitable property which, especially in reference to shares in joint stock companies, held by a bankrupt have produced so much litigation. The right given. by the following section (24) to any person interested in the property to require the trustee within twenty-eight days, after notice in writing, to disclaim or not, will, it is presumed, induce the trustee in all cases of difficulty to ascertain the wishes of the creditors at a general meeting, to be summoned for the purpose, or to act under the direction of the Court. In connection with the general subject of these liabilities, see also the Companies Act, 1862, 25 & 26 Vict. c. 89, s. 75, which enacts that:-"It shall be lawful in the case of the bankruptcy of any contributory to prove against his estate the estimated value of his liability to his future calls, as well as calls already made." Sect. 76 enacts: "If any contributory becomes bankrupt, either before or after he has been placed on the list of contributories, his assignees shall be deemed to represent such bankrupt for all the purposes of the winding up, and shall be deemed to be contributories accordingly, and may be called upon to admit to proof against the estate of such bankrupt or otherwise to allow to be paid out of his assets, in due course of law, any monies due from such bankrupt in respect of his liability to contribute to the assets of the company being wound up." In the case of In re the General Estates Company, Ex p. Hastie, 38 Law J. Rep. N. S. Chanc. 233, where the assignee of a bankrupt shareholder in a limited company, registered under the Act of 1862, has repudiated the bankrupt's shares, and the company is wound up after the discharge of the bankrupt, the Lords Justices held that the bankrupt's name was properly retained on the list of contributories. And also "that, prima facie, future calls to be made by a company not in course of wind § 23. § 23. ing-up, are not capable of valuation at the date of the bankruptcy, and therefore are not provable under sect. 154 of the Bankruptcy Act, 1861." As to the liabilities of assignees with respect to covenants in leases, see Dyke v. Taylor, 2 Giff. 566, and 3 De Gex, F. & J. 467. In that case by a lease a tenant entered into a covenant that "he or a person to be approved by the landlord, would reside on the property demised to him, and that he would not assign without licence; and it was provided that in the event of the bankruptcy of the tenant, the landlord should have a right to re-enter and avoid the lease. The tenant having taken possession of the property demised to him, became bankrupt, and the landlord received rent from his assignees, and accepted them as tenants. The Vice-Chancellor was of opinion that the assignees came in by contract upon the terms of the lease, and that they were bound by the stipulations therein; and granted an injunction upon an interlocutory application, restraining the assignees from assigning, underletting, or otherwise disposing of, or parting with, the possession of the demised property without the consent in writing of the landlord. There having been certain dealings between the assignees and one S., for a letting of the farm, which it was contended was a breach of the injunction, a motion was made for a committal of the assignees for contempt, and the Vice-Chancellor, although he made no order on the motion to commit, directed that the assignees should pay the costs of the motion:-Held, on appeal, that the evidence of the transactions between the assignees and S. was too doubtful to warrant the Court to order the assignees to pay the costs of the motion to commit, and that as to the injunction against assigning and underletting, it must be dissolved, the inconvenience from maintaining it erroneously being probably greater than that of erroneously dissolving it." These cases are cited to show the risks and responsibilities which creditors' assignees might incur, and as, by the Act, creditors' trustees are in the same position as creditors' assignees, with this exception, that such trustees will have additional powers, and will be exposed to additional risks and penalties, it may be doubted whether the terms of the section will afford adequate protection to disclaiming trustees, or to bankrupts after they have obtained their discharge. In Martin's Patent Anchor Company v. Morton, and the Same v. Hewitt, it was decided by the Court of Queen's Bench that if a shareholder in a company incorporated under the Companies Act, 1862, becomes bankrupt, and obtains his discharge, but still continues to hold his shares, he is liable to pay calls made in respect of such shares subsequently to the adjudication. Sect. 154 of the Bankruptcy Act, 1861, does not apply to such calls. Sect. 75 of the Companies Act, 1862, does not apply to the case of a bankruptcy where the bankrupt is discharged before the commencement of the windingup of the company, but only to the case of a bankruptcy pending during the winding-up. (37 Law J. Rep. N. S. Q. B. 98. See further Warburg v. Tucker, 28 Law J. Rep. N. S. Q. B. 56.) H. obtained from the owner the agreement for the lease of certain houses for ten years, at an annual rental of 5007. After the first year he filed a petition for liquidation. The trustee disclaimed, and the lessors claimed to prove, as creditors, for the injury they had sustained "by the operation of the section." The Registrar rejected their claim:-Held, on appeal, that they were entitled to prove, and that the measure of the injury sustained was the difference between the rent under the agreement, and what they could obtain for the property. (Ex p. Llynvi Coal and Iron Company, in re Hide, L. R. 7 Ch. 28.) Lord Justice James said: "Before the act of 1869 a great number of cases occurred in which bankrupts were left liable to claims of various kinds, and the persons who had those claims were entirely excluded from any participation in the general division of the assets amongst the creditors. Then came this Act of Parliament, which, dealing in words with almost every one of the cases which had ever occurred before, says there is nothing whatever, except demands for damages for absolute personal torts, for which a right to proof shall not be given; every possible demand, every possible claim, every personal liability shall be the subject of proof in bankruptcy, to be ascertained in the best way the Court of Bankruptcy, by itself or with the aid of a jury, or in any other way, can ascertain. The broad purview of this act is, that the bankrupt is to be a free man-not only free from debts, but from contracts, liabilities, engagements, and contingencies of every kind; and that, on the other hand, all the persons from whose claims, and in respect of whose liabilities he is so freed, shall come in with the other creditors, and share in the dis § 23. |