cumstances, the court will not give to the solicitor under the fiat leave to bid (0); and the resolutions of a public meeting of the creditors as to the sale of estates will not be carried into effect by theourt, without a reference, unless it appears that the consent of all the creditors has been obtained (p).

But, where the estate has been offered to sale by public auction, and no bidder appeared, the Lord Chancellor, upon petition, allowed the assignee to bid, but upon an undertaking that his solicitor should not have the management of the sale (q).

And where the estate had been mortgaged for £48,000, and the equity of redemption had been valued at £63,000, the court allowed the assignees to make a reserved bidding, they undertaking to pay the mortgagee his principal, interest, and costs (r).

In the sale of an office, the course is, for the assignees first to agree for the price with the party wishing to purchase it, and get him approved of by the person having the appointment; and then the bankrupt may, if necessary, be compelled by an order of the court to surrender the office, and the purchaser will thereupon be appointed to it (s).

In general, the assignees, like all other vendors, are bound to make out a good title to the bankrupt's lands, before they can compel a vendee to complete his purchase (t). But where the assignees put up for sale the bankrupt's interest in an estate as he lately held the same, an abstract of which may be seen at the office of Messrs. I. & Co.," it was holden that the vendee could not insist upon any other title than such as the bankrupt had (u); and the same in all cases, where the vendee wishes to compel the assignees to a specific performance (x); and, where the purchaser, with a full knowledge of defects of title, granted a lease of the premises, it was holden to be an acceptance of the title (y). Where title-deeds cannot be delivered, the assignees, like any other vendor, must give attested copies of them, at the expense of the estate; but their covenant for the production of the deeds should in prudence be confined to the period of their continuance as assignees (z); but the court refused to order the bargain and sale from the commissioners to the assignees to be given by them to a purchaser, although it was alleged that the property purchased was the only real estate of the bankrupt (a).

Formerly the bankrupt could not be compelled to join with his assignees in the conveyance of his property to purchasers (b). But now, by stat. 6 Geo. 4, c. 16, s. 78, it shall be lawful for the Lord Chancellor, upon the petition of the assignees, or any purchaser from them of any part of the bankrupt's estate, (if such Marsh. 583.

(0) Ex p. Towne, 4 Dea. & C. 519; 2 Mon. & A. 29.

(p) Ex p. Farmer, 1 Dea. & C. 110. (9) Er p. Morland, Mon. & M.A. 76. (r) Er p. Ellis, 3 Dea. & C. 297. (8) Er p. Butler, 1 Atk. 210, 215; Amb. 73: Er p. Joynes, Cook, 316.

(t) Macdonald v. Hanson, 12 Ves.277: White v. Foljambe, 11 Ves. 343: see Bartlett v. Tuchin, 6 Taunt. 259; 1

(u) Freme v. Wright, 4 Mad. 364. (x) Pope v. Simpson, 5 Ves. 145. (y) Er p. Sidebotham, 3 Dea, & C. 818; 1 Mon. & A. 655: Ex p. Barrington, 2 Mon. & A. 245.

(2) Er p. Stuart, 2 Rose, 215. (a) Ex p. Pocock, 1 Dea. & C. 104. (b) See Ex p. Blakes, 1 Cox, 389: Selkrig v. Davis, 2 Rose, 291.

bankrupt shall not try the validity of the commission, or if there shall have been a verdict at law establishing its validity), to order the bankrupt to join in any conveyance of such estate or any part thereof; and if he shall not execute such conveyance within the time directed by the order, such bankrupt, and all persons claiming under him, shall be stopped from objecting to the validity of such conveyance; and all estate, right, or title which such bankrupt had therein, shall be as effectually barred by such order, as if such conveyance had been executed by him (c). If the bankrupt is proceeding at law to try the validity of his commission, he will not be ordered to convey until he has had a fair opportunity of so doing (d). But unless he disputes the validity of the fiat, the order for him to join in the conveyance is of course (e).

And by stat. 6 Geo. 4, c. 16, s. 87, no title to any real or personal estate, sold under any commission, or under any order in bankruptcy, shall be impeached by the bankrupt, or any person claiming under him, in respect of any defect in the suing out of the commission, or in any of the proceedings under the same, unless the bankrupt shall have commenced proceedings to supersede the said commission, and duly prosecute the same, within twelve calendar months from the issuing thereof. This section protects bonâ fide purchasers of the bankrupt's property from vexatious actions by the bankrupt, or those claiming under him; but it does not extend to protect the purchaser of property under a fiat which has been superseded from the claim of the assignees under a subsequent fiat (f).

But although the sale is under an order of the Court of Bankruptcy, the Court of Review has no jurisdiction to compel the vendee to complete his purchase (g), though formerly it was held otherwise (h): and where a sale of the bankrupt's property is effected by the assignees otherwise than under an order, the court has no jurisdiction over the purchaser with respect to his purchase (i); and if the purchaser re-sell the estate before conveyance, the court will order the assignees to convey to the second purchaser, although the estate is sold at a profit, if the first sale is not impeached (k).

And where a lease was sold by auction under the usual order obtained by an equitable mortgagee, the purchaser obtained an order that upon payment of the purchase-money the assignees should execute an assignment, and the bankrupt should deliver up the possession to the purchaser; and upon the bankrupt refusing to deliver up possession he was committed (1).

(c) See Er p. Jackson, 2 Dea. & C. 458.

(d) Ex p. Thomas, 2 Glyn & J. 278; Mon. & M'A. 64.

(e) Er p. Brown, 2 Dea. 479; 3 Mon. & A. 262.

(f) Gould v. Shoyer, 6 Bing. 738. (g) Ex p. Cutts, 3 Dea. 242; 2 Mon. & A. 549.

(h) Er p. Gould, 1 Glyn & J. 231: Ex

p. Sidebotham, 1 Mon. & A. 655; 3 Dea. & C. 811; 4 D. & C. 693; 2 Mon. & A. 146: Er p. Barrington, 4 Dea. & C.461; 2 Mon. & A. 245: Er p. Brettell, 3 Dea. 111; 3 Mon. & A. 543.

(i) Ex p. Holder, 1 Mon. & A. 518. (k) Er p. Anderdon, 1 Dea. 585; 3 Mon. & A. 698.

(1) Ex p. Hawkins, Mon. & M'A.115.

The produce of the sale, in country fiats, must be paid into the hands of the bankers appointed by the creditors (see ante, p. 167); or, in town fiats, to the official assignee (p. 168, ante); and the surplus, if any, after payment of all the debts proved under the fiat, and interest upon such of them as legally bear interest (m), must be paid to the bankrupt, or if he be dead, to his heir or personal representative; and between the heir and personal representative the heir is entitled to be indemnified out of the surplus of the personal estate to the extent that it shall ultimately appear the real estate was not required for the payment of the debts (n). (See further, tit. “ Assignees," post).

SECTION 10.

The Bankrupt's Surrender.

When.] THE bankrupt may attend and surrender himself at the private meeting, in order to obtain his protection (o); in prudence, perhaps, he ought to surrender himself at the first public meeting, and attend the subsequent meetings, for the purpose of affording what assistance he can in preventing persons not legally authorized from proving under the fiat; but he is not liable to any penalty, unless he fail to attend at the second public meeting.

By stat. 6 Geo. 4, c. 16, s. 112, if any person against whom any commission has been issued, or shall hereafter be issued, whereupon such person hath been or shall be declared bankrupt, shall not, before three of the clock upon the forty second day after notice thereof in writing to be left at the usual place of abode of such person, or personal notice in case such person be then in prison, and notice given in the London Gazette, of the issuing of the commission and of the meeting of the commissioners, surrender himself to them, and sign or subscribe such surrender, and submit to be examined before them from time to time upon oath, or, being a quaker, upon solemn affirmation; every such bankrupt shall be deemed guilty of felony, and be liable to be transported for life, or for such term (not less than seven years) as the court before whom he shall be convicted shall adjudge, or shall be liable to be imprisoned only, or imprisoned and kept to hard labour, in any common gaol, penitentiary house, or house of correction, for any term not exceeding seven years. (See this section, post, p. 277).

There was nearly the same enactment in stat. 5 Geo. 2, c. 30, s. 1, amended by 1 Geo. 4, c. 115, s. 1, excepting that the bankrupt had the entire of the forty-second day to surrender; and proclamation must have been made, requiring him to do so, before he incurred the penalty of the statute. The proclamation is now unne

(m) Ex p. Koch, 1 Rose, 317; 1 V. & B. 342: Er p. Williams, 1 Rose, 39: Ex p. Morris, 1 Ves. 132.

(n) Banks v. Scott, 5 Mad. 493.
(0) Ex p. Wood, 1 Rose, 46; 18 Ves. 1.

cessary all that is required is the notice or summons to the bankrupt (see the form, ii. p. 22), and the advertisement in the Gazette (see the form, ii. p. 24); and the bankrupt must now surrender himself to the commissioners before three o'clock in the afternoon of the forty-second day. But when the bankrupt is in prison at the time he ought to surrender, he is not bound to give notice to the commissioners; and though the bankrupt, so being in prison, neither surrender nor apply to enlarge the time for his so doing, or to be brought up to surrender under the 119th section of the statute, he is not thereby guilty of felony under this section, and although his detention in prison is collusive (p). (See the form of the Memorandum of Surrender, ii. p. 26; and of the Memorandum that the bankrupt has not surrendered, ii. p. 26.)

Time, how enlarged.] By stat. 6 Geo. 4, c. 16, s. 113, the Lord Chancellor shall have power, as often as he shall think fit, from time to time, to enlarge the time for the bankrupt surrendering himself, for such time as the Lord Chancellor shall think fit, so as every such order be made six days at least before the day on which such bankrupt was to surrender himself.

And the court will thus enlarge the time, where the bankrupt's not having duly surrendered has arisen from unavoidable necessity (q), or from accident (r), or from his being abroad or absent at the time (s), or from the commissioners not attending on the fortysecond day (t), or from any innocent default of the bankrupt (u), or the like, even although the assignees should object to it (x); but not where the bankrupt has absented himself purposely (y), except under special circumstances (z).

If the application is made six clear days before the time appointed for the surrender, i. e. the forty-two days, have elapsed, the order to enlarge may be obtained as of course by lodging a petition at the office of the secretary of bankrupts (a); but unless the application is made at least six days before the time appointed for the surrender, the court has no power to enlarge the time; but after that time an application may be made to the court, on petition, to permit the bankrupt to surrender (b); the petition must be presented and come on for hearing in the ordinary way. This petition may be either by the bankrupt himself or by the assignees; stating the fiat and adjudication shortly, and the summons, and then the facts of the case, and praying that the time for his surrender and examination should be enlarged to a day named, and that the commissioners be directed to call a meeting for the purpose of taking his surrender and examination. And as a sur

(p) Rer v. Michell, 3 Car. & P. 251. (q) See Anon., 15 Ves. 1.

(x) Ex p. Shiles, supra.

(1) Ex p. White, 2 Bro. 47: Ez r. Rodgers, Amb. 307: Er p. Grey, 1 Ves.

(r) See Er p. Dawson, Cox, 48. (8) Fuller's case, 10 Ves. 183: Ex p. 195. Dodd, 1 Dea. & C. 76; Mon. 506.

(t) Ex p. Grey, 1 Ves. 195.

(u) Ex p. Higginson, 12 Ves. 496: Er p. Shiles, 2 Rose, 381; 1 Mad. 241: Ex p. Jeffrey, 2 Dea. & C. 686.

(z) See Ex p. Berryman, 1 Glyn & J. 223.

(a) Erp. Rose, 1 Dea. & C. 37; Mon. & B. 268.

(b) Ex p. Burrell, 2 Dea, 212.

render is for the benefit of the estate, the bankrupt, petitioning for leave to surrender after the first or second day, and not being guilty of any default, is always entitled to his costs out of the estate (c); but the application for enlarging the time cannot be made by the commissioners (d).

The order is not mandatory upon the bankrupt; nor will he be guilty of any contempt by not surrendering at the time thus given him (e). On the other hand, it seems, it does not relieve him from his liability to be prosecuted for his not surrendering within the forty-two days (ƒ); it merely indicates the opinion of the court in favour of the bankrupt, which indeed may have the effect of preventing such a prosecution, as the court has it in its power to render such a prosecution ineffective by annulling the fiat (g). But the court will not order a meeting to take the surrender of the bankrupt where a true bill has been found against him for nonsurrender (h).

Upon the production of the order to the commissioners, a memorandum of it is filed among the proceedings (see the form, ii. p. 77), and a meeting is called accordingly. (See the form of the Advertisement, ii. p. 78).

How surrendered, if in Custody.] By stat. 6 Geo. 4, c. 16, s. 119, whenever any bankrupt is in prison, or in custody under any process, attachment, execution, commitment, or sentence, the commissioners may, by warrant under their hands, directed to the person in whose custody such bankrupt is confined, cause such bankrupt to be brought before them, at any meeting either public or private; and if any such bankrupt is desirous to surrender, he shall be so brought up, and the expense thereof shall be paid out of his estate and such person shall be indemnified by the warrant of the commissioner for bringing up such bankrupt. (See the remainder of this section, post. See the form of the Warrant, ii. p. 71).

And by stat. 6 Geo. 4, c. 16, s. 115, if any bankrupt apprehended by any warrant of the commissioners (see 6 Geo. 4, c. 16, 8.36, in the next section) shall, within the time hereby allowed for him to surrender, submit to be examined, and in all things conform, he shall have the same benefit as if he had voluntarily surrendered.

His Privilege from Arrest.] By stat. 6 Geo. 4, c. 16, s. 117, the bankrupt shall be free from arrest and imprisonment by any creditor in coming to surrender, and after such surrender during the said forty-two days, and such further time as shall be allowed him for finishing his examination, provided he was not in custody at the time of such surrender; and if such bankrupt shall be

(c) Ez p. Smith, 4 Dea. & C. 810; 2 Mon. & A. 382.

(d) Ex p. Hall, Mon. 3.

(f) See Ex p. White, 2 Bro. 47. (g) See Ex p. Ricketts, 6 Ves. 445; 1 Atk. 222: and see Er p. Wood, 1 Atk.

(e) Er p. Johnson, 14 Ves. 40: Ex p. 221: Ex p. Lavender, 1 Rose, 55. Jackson, 12 Ves. 119.

(h) Ex p. Levi, 2 Mon. & A. 86.