PART VII.

trustee by death, resignation or otherwise (i). The regulations CHAP. VIII. also empower the court upon cause shown, and the creditors by special resolution, to remove the trustee and appoint another (k).

Sect. 83, par. 4.

Sect. 83.

"The Bankruptcy Rules, 1870," provide that

Rule 115. "Where in consequence of a bankruptcy being closed, or of a vacancy in the office of trustee, the registrar becomes trustee, the attorney (if any) who has theretofore acted in the matter of the bankruptcy shall not be changed unless the court shall by order, setting forth the reasons for the change, otherwise direct."

Rule 120. "Where a creditor desires a meeting of creditors to be held to remove a trustee or a member of the committee of inspection, he shall apply to some member of the committee of inspection to specially summon a meeting for that purpose, and for the purpose of appointing another person to fill the office, by sending a notice to each creditor seven days before the meeting is to be held; and where such member refuses to summon a meeting, or there is no committee of inspection, the creditor may apply to the court upon an affidavit stating specifically the facts which would appear to justify the removal of such trustee or a member of the committee of inspection, and the court may direct the registrar to summon a meeting accordingly, or if it think fit may direct notice to be given to the trustee to show cause why the court should not remove him."

Rule 121. "Where a trustee resigns, dies, or is removed prior to obtaining his release, the creditors shall determine what, if any, remuneration shall be paid for the services which he may have rendered."

Rule 126. "Where a trustee shall resign, or be removed from his office, he shall, within four days thereafter, render to the registrar, to be filed with the proceedings, an account in writing showing what he has done while trustee, and shall duly account for all monies or property of the bankrupt. If he do not comply with these requisitions within the prescribed time the court shall enforce obedience thereto."

No. 46. Notice of Meeting to be held on Resignation of Trustee.
"The Bankruptcy Act, 1869."

In the London Bankruptcy Court [or the county court of

holden at

The committee of inspection hereby give you notice that a meeting of creditors will be held at

at

o'clock in the

on the

187

day of noon, for the purpose of appointing a trustee in the place of the late trustee, who has resigned the office [or

who has died or has become bankrupt].

To X. Y.

For the committee,
E. F.,

One of the said committee.

p. 276.

(i) See sect. 83, sub-sect. (2), ante,

p. 276.

(k) Id. sub-sects. (3) & (4), ante,

No. 47. Minutes at Meeting for receiving Resignation of Trustee, &c.

"The Bankruptcy Act, 1869.”

In the London Bankruptcy Court [or the county court of

holden at

].

In the matter of A. B. of

on the

day of

Minutes of proceedings had at a meeting of creditors of the said bankrupt, held at Chairman of the meeting, E. F. of

187

We the undersigned (here should follow similar resolutions to those appointing the late trustee, &c., at the first meeting).

E. F., chairman of this meeting.

No. 48. Report and Certificate of Appointment of Trustee to fill a Vacancy caused by a Resignation.

"The Bankruptcy Act, 1869."

In the London Bankruptcy Court [or the county court of

holden at

].

day of

at

o'clock in the

1. That a meeting of creditors in this bankruptcy was held at on the noon, for the purpose of receiving of G. H. his resignation of the office of trustee and of appointing a person to fill such office [or for the purpose of appointing a trustee, who is dead, or who has been adjudged bankrupt].

2. That the said G. H. resigned the office of trustee, and by resolution at such meeting N. O., of was appointed to fill the office of

trustee of the property of the bankrupt.

3. That by another resolution it was declared that the said N. O. should give security for the due performance of the said office, by entering into a bond in the sum of with two sufficient securities

[or as the case may be].

PART VII.

CHAP. VIII.

Sect. 83.

F. K., chairman.

§ 5.-DUTY OF THE TRUSTEE.

"The Bankruptcy Act, 1869," enacts thatSect. 20. "The trustee shall, in the administration of the property of the bankrupt and in the distribution thereof amongst his creditors, have regard to any directions that may be given by resolution of the creditors at any general meeting, or by the committee of inspection, and any directions so given by the creditors at any general meeting shall be deemed to override any directions given by the committee of inspection ; the trustee shall call a meeting of the committee of inspection once at least every three months, when they shall audit his accounts, and determine whether any or what dividend is to be paid; he may also call special meetings of the said committee as he thinks necessary.

Subject to the provisions of this act, and to such directions as aforesaid, the trustee shall exercise his own discretion in the management of

Conduct of trustee, and court against

appeal to

trustee.

PART VII. CHAP. VIII.

Sect. 20.

Sect. 20.

Rule 112.

the estate, and its distribution amongst the creditors. The trustee may from time to time summon general meetings of the creditors for the purpose of ascertaining their wishes; he may also apply to the court, in manner prescribed, for directions in relation to any particular matter arising under the bankruptcy.

The bankrupt, or any creditor, debtor, or other person aggrieved by any act of the trustee, may apply to the court, and the court may confirm, reverse, or modify the act complained of, and make such order in the premises as it thinks just. The court may from time to time, during the continuance of a bankruptcy, summon general meetings of the creditors for the purpose of ascertaining their wishes, and may, if the court thinks fit, direct the registrar to preside at such meetings.

The trustee shall, in relation to and for the purpose of acquiring or retaining possession of the property of the bankrupt, be in the same position in all respects as if he were a receiver of such property appointed by the Court of Chancery, and the court may, on his application, enforce such acquisition or retention of property accordingly."

"The Bankruptcy Rules, 1870," provide that

Rule 112. "Where a trustee desires to apply to the court for directions in relation to any particular matter arising under the bankruptcy, he shall file his application, according to the form in the schedule, and the court shall then hear the application, or fix a day for its hearing, and direct the trustee to apply by motion."

No. 53. Application for directions by Trustee.

"The Bankruptcy Act, 1869."

In the London Bankruptcy Court [or the county court of

holden at

j.

I desire to make application to the court for its directions [here state the particular matter in relation to which they are sought].

Let this application be heard on the

o'clock in the

day of

Trustee.

at

noon [and let the trustee give notice to [here insert the persons to whom it is to be given]. Dated this

day of

18

Sect. 20.

Rule 112.

Registrar.

No. 54. Order on Application of Trustee for Directions.

"The Bankruptcy Act, 1869."

In the London Bankruptcy Court [or the county court of

holden at

J.

, a bankrupt.

In the matter of A. B. of Whereas at a court held this day the trustee of the property of the bankrupt applied to this court for its directions [here state the particular matter in relation to which they are sought]. Now upon hearing of C. D. on the matter, it is ordered [here set out the order], and that the trustee do pay out of his own monies [or out of the property of the bankrupt] the sum of the costs of this order, and the sum of to C. D. for his costs [or that C. D. do pay the sum of

of

"The Bankruptcy Act, 1869," further enacts that

Registrar.

be paid for services.

Sect. 29. "A trustee shall not, without the consent of the committee Trustee, if a of inspection, employ a solicitor or other agent, but where the trustee is solicitor, may himself a solicitor, he may contract to be paid a certain sum by way of per centage or otherwise as a remuneration for his services as trustee, including all professional services, and any such contract shall, notwithstanding any law to the contrary, be lawful."

into bank.

Sect. 30. "The trustee shall pay all sums from time to time received Trustees to by him into such bank as the majority of the creditors in number and pay monies value at any general meeting shall appoint, and failing such appointment into the Bank of England; and if he at any time keep in his hands any sum exceeding fifty pounds for more than ten days he shall be subject to the following liabilities; that is to say,

(1.) He shall pay interest at the rate of twenty pounds per centum per annum on the excess of such sum above fifty pounds as he may retain in his hands:

(2.) Unless he can prove to the satisfaction of the court that his reason for retaining the money was sufficient, he shall, on the application of any creditor, be dismissed from his office by the court, and shall have no claim for remuneration, and be liable to any expenses to which the creditors may be put by or in consequence of his dismissal."

"The Bankruptcy Rules, 1870," direct that

Rule 109. "Where the creditors shall have failed to appoint the bank Sect 30. into which the trustee is to pay all monies received by him, he shall pay them into such bank as the committee of inspection, or, where there is no committee, the court shall appoint."

Duty of the Trustee to keep Books.]-"The Bankruptcy Rules, 1870," direct that

Rule 242. "The trustee shall keep a book to be entitled 'The Record,' according to the form in the schedule, in which he shall record all minutes, all proceedings had, and resolutions passed at any meeting of creditors, or of the committee of inspection, statement of bankrupt's affairs, reports and all proceedings necessary to give a correct view of the management of the bankrupt's property, but he shall not be bound to insert in the record any document of a confidential nature (such as the opinion of counsel on any matter affecting the interest of the creditors), nor need he exhibit such document to any person other than the members of the committee of inspection."

Rule 243. "The trustee shall also keep a book to be entitled the 'Estate Book,' according to the form in the schedule, in which he shall enter from day to day the receipts and payments made by him” (1).

Rule 244.The record and the estate book may be inspected by the committee of inspection and the creditors or their agents.'

Rule 245. "The trustee shall submit the record and estate book, to(1) "The Bankruptcy Rules, 1871," provide (Rule 13) that "the estate

book referred to in Rule 243 of The
Bankruptcy Rules, 1870,' may be kept

PART VII. gether with a copy of the latter, to the committee of inspection at the CHAP. VIII. quarterly meeting required by section twenty of the act."

Power of

trustee to deal with

property.

Sect. 25, par. 6.

Rule 249. "Upon a trustee resigning, or being released or removed from, his office, he shall deliver over to the registrar of the court all books kept by him and all other books, documents, papers and accounts in his possession in any way relating to the office of trustee."

§ 6.-POWER of the Trustee.

Having in the preceding division of this chapter treated of the duties of the trustee, his powers for the most part of a discretionary kind, to be exercised as occasion arises, may be conveniently noticed separately and as dealt with by the Bankruptcy Act, 1869.

"The Bankruptcy Act, 1869," enacts that—

Sect. 25. "Subject to the provisions of this act, the trustee shall have power to do the following things:

(1.) To receive and decide upon proof of debts in the prescribed manner, and for such purpose to administer oaths:

(2.) To carry on the business of the bankrupt so far as may be necessary for the beneficial winding-up of the same:

(3.) To bring or defend any action, suit or other legal proceeding relating to the property of the bankrupt :

(4.) To deal with any property to which the bankrupt is beneficially
entitled as tenant in tail in the same manner as the bankrupt
might have dealt with the same; and the sections fifty-six to
seventy-three (both inclusive) of the act of the session of the
third and fourth years of the reign of King William the Fourth
(chapter seventy-four), for the abolition of fines and re-
coveries, and for the substitution of more simple modes of
assurance,' shall extend and apply to proceedings in bank-
ruptcy under this act as if those sections were here re-enacted
and made applicable in terms to such proceedings:

(5.) To exercise any powers the capacity to exercise which is vested
in him under this act, and to execute all powers of attorney,
deeds, and other instruments expedient or necessary for the
purpose of carrying into effect the provisions of this act:
(6.) To sell all the property of the bankrupt (including the goodwill
of the business, if any, and the book debt due or growing due
to the bankrupt) by public auction or private contract, with
power, if he thinks fit, to transfer the whole thereof to any person
or company, or to sell the same in parcels (m):

(7.) To give receipts for any money received by him, which receipt
shall effectually discharge the person paying such monies from
all responsibility in respect of the application thereof:
(8.) To prove, rank, claim, and draw a dividend in the matter of the
bankruptcy or sequestration of any debtor of the bankrupt."

in the form of an ordinary debtor and
creditor account in lieu of the form
prescribed by such rule." The form,
therefore, is not given in this work.

(m) By Rule 119 of "the Bank-
ruptcy Rules, 1870," "where the trus-

tee is an auctioneer he shall not by himself or any partner act as such in the sale of any of the property vested in him, except with the consent of the committee of inspection, and upon such terms as it may think fit."