peal, and an affidavit, that a copy of such case has been delivered to the solicitor for the other party eight days prior to such tender thereof (g). SECTION 18. ASSIGNEES. 1. Official Assignees. Duties.] By General Order, Jan. 12, 1832, each official assignee shall follow the instructions of the commissioner under whom he acts, according to the exigencies of each particular case, subject to such directions as shall from time to time be prescribed by the Court of Review. By 1 & Will. 4, c. 56, s. 23, nothing herein contained shall extend to authorize any such official assignees to interfere with the assignees chosen by the creditors in the appointment or removal of a solicitor or attorney, or in directing the time and manner of effecting any sale of the bankrupt's estate or effects. By General Order, February 2, 1832, each official assignee shall present for acceptance all unaccepted bills of exchange, as soon as he shall receive the same, and before he deposits them in the Bank of England, as hereinafter directed; and by General Order, February 15, 1832, as often as any bill, note, or other negotiable instrument that shall have come to the hands of any official assignee shall be dishonored, such official assignee shall forthwith give such notice thereof as is by law required from the holder of such bill, note, or other negotiable security respectively. And by 6 & 7 Will. 4, c. 27, s. 7, the official assignee must file a certificate of unclaimed dividends and undivided surplus of any bankrupt's estate under his care and management, as directed by 5 & 6 Will. 4, c. 29, s. 7, p. 309, ante. Where, under a commission transferred into the Court of Bankruptcy, the provisional assignee had been directed to carry on the business of the bankrupt for the benefit of the creditors, the official assignee was ordered to supply him with the necessary funds (h). The office of official assignee is ministerial only; and, therefore, where a creditor receives the usual circular for the payment of his dividend, the official assignee cannot resist the payment (i). The Court of Review will not interfere to compel an official assignee to join the other assignees as a plaintiff in a suit, as the object of the suit may be attained by his being made a defendant; but if he improperly refuse, and thereby occasion any extra costs, or embarrass the other assignees in the pursuit of (g) See Er p. Woodward, 3 Dea. 303. (h) Ex p. Wyatt, 1 Dea, & C. 229. (i) Er p. Alexander, Mon. 503; 1 Dea. & C. 513. proper litigation, the Court of Review might refuse to allow him his costs (h). Where the creditors' assignees sold the stock in trade and effects of the bankrupt to the bankrupt's father, the court refused to order the official assignee to execute the conveyance containing special covenants, without a reference to the registrar to settle the conveyance, and approve of a proper indemnity to the official assignee (i). Disabilities and Liabilities.] We have seen (p. 8, ante), that no official assignee shall, during his continuance in office, be capable of being elected or sitting as a member of Parliament; and by General Order, Jan. 12, 1832, no official assignee shall either directly or indirectly carry on any trade or business, or hold or be engaged in any office or employment other than his said office and employment as official assignee; and each official assignee shall find sureties to the extent of £6,000, and shall, together with such sureties, (except otherwise especially directed by the Court of Review), execute a joint and several bond to the two registrars for the time being, and the survivor of them, in the penal sum of £6,000; and the official assignees to be made liable to the whole amount, and the sureties to be liable together to the like amount, in such proportions as shall be approved of by the Court of Review; provided that no one surety shall be made liable for more than £3,000, nor for less than £1,000; and each official assignee shall, on pain of his dismissal, give immediate notice in writing, to the chief registrar for the time being, of the death or insolvency of either of the sureties; and shall, if required, cause a new bond to be executed to the like amount by another surety, to be approved of as above. If the official assignee becomes insolvent, the court will give leave to the creditors' assignees to use the names of the registrars in an action against the sureties on their bond (*). We have seen, (p. 168, ante), that in case of the official assignee neglecting to transfer, pay, or deliver to the Accountant-general the monies and securities belonging to the estate, he shall be liable to be charged in the same manner as by 6 Geo. 4, c. 16, (p. 167, ante), is provided, in case of neglect by assignees to invest money in the purchase of Exchequer bills. The official assignee will also be liable to the penalties which may be incurred under the 1 & 2 Will. 4, c. 56, s. 58. (See p. 8, ante). At law the official assignees are subject to the same personal liabilities as other assignees, and therefore, an action for money had and received, may be maintained by the bankrupt to recover money received by the official assignee under a void fiat; and although the official assignee was appointed at the instance of the bankrupt (1); but the Court of Review will extend to official assignees the same protection as courts of equity are accustomed to extend to receivers ; and (h) Er p. Evans, 1 Mon. & A. 335; 3 Dea. & C. 470. (i) Ex p. Young, 2 Dea. 240; 3 Mon. & A. 363. (k) Ex p. Topham, 1 Dea. 192; 2 Mon. & A. 484. (1) Munk v. Clark, 2 M. & Scott, 463; 10 Bing. 102; 2 Scott, 475; 2 Bing. N. C. 299. therefore, where the bankrupt seeks to invalidate the fiat by an action against the official assignee, such assignee should apply to the court for instructions (m). If the official assignee joins in a petition or appearance to a petition in his official character merely, he does not pay costs (n); but he will be personally liable to the costs of an unnecessary separate appearance to a petition (0) and if a petition of the official assignee and others is dismissed with costs, generally, the order for payment of costs may be enforced against him alone, in the same manner as against any other party (p). : Allowance.] By 1 & 2 Will. 4, c. 56, s. 57, it shall be lawful for the commissioner before whom any such person shall be adjudged a bankrupt in the said Court of Bankruptcy, or who shall appoint an official assignee under the power hereinbefore given for that purpose, to order and allow to be paid out of the bankrupt's estate, to the official assignee thereof, as a remuneration for his services, such sum of money as shall appear to such commissioner, upon consideration of the amount of the bankrupt's property, and the nature of the duties to be performed by such official assignee, to be just and reasonable. The Court of Review has jurisdiction to revise the allowance made by the commissioner to an official assignee; but as the conduct and duties of the assignee are always under the immediate observation of the commissioner, the court will not control the exercise of his discretion in the allowance, unless in extreme cases (q). By General Order of the Court of Review, Jan. 12, 1832, it is recommended by the commissioners to allow the official assignees 1 per cent. on the monies they respectively receive, and 1 per cent. more on monies actually to be divided, subject nevertheless to be increased or diminished in any case, under special circumstances to be referred to the Court of Review; but the remuneration to the official assignee is discretionary; and where there is little for him to do, he is entitled to a small remuneration (r). So, where the official assignee had rendered no service in the sale of mortgaged premises, and the proceeds of the sale was insufficient to pay the mortgage money, the official assignee was held not entitled to any commission thereon (s). 2. Creditors' Assignees. Their Rights.] As soon as assignees are chosen and appointed, (see ante, p. 162), the whole of the property which passes under their appointment (see ante, p. 175-254) vests in them absolutely, so as to give them precisely the same rights and remedies with (m) Ex p. Rains, 2 Dea. £29; 3 Mon. & A. 55. (n) Ex p. Benham, 1 Dea, 26; 2 Mon. & A. 272. (0) Exp. Hendrie, 1 Dea. 76; 3 Mon. & A. 20. (p) Ex p. Murray, 1 Mon. & A. 475. (q) Er p. Tiplady, 1 Mon. & A. 161; Dea. & C. 570. (r) Ex p. Ellis, Mon. & B. 116; 1 Dea, & C. 218. (8) Ex p. Whisson, 3 Dea. 646. relation to it, as if the property vested in them in their own right individually. And where there are two or more assignees, they stand seised or possessed of the property thus assigned to them, in joint-tenancy, with a right of survivorship in case of death. They represent the bankrupt in every matter relating to his property; they have the same rights that he had, with some additional ones given them by statute, which have been already noticed in the course of the work; and they are in general bound by the same equities (8). Where a trader, before his bankruptcy, agreed with his surety that he might retain, towards the liquidation of the debt for which he was surety, the amount of any goods he should purchase of him in the way of his trade; it was holden that the assignees could not maintain an action against the surety for the amount of the goods so purchased by him of the trader, after the agreement and before the bankruptcy, the surety having paid the principal debt (†). So, where the assignees received payment of a bill of exchange, which had been fraudulently obtained by the bankrupt from the owner, it was holden that the owner might recover the amount from the assignees in an action for money had and received (u). So, in all cases where a bankrupt would be considered a trustee for another, the assignees will be deemed trustees also (r). So, if a bill of exchange have been transferred to a person by a bankrupt before his bankruptcy, but not indorsed; although the court have no jurisdiction to compel the bankrupt to indorse it, yet, as the indorsement of the assignees will equally give a title to the holder, the court will order the assignees to indorse it, and will frame the order for a special indorsement that will prevent the assignee from being personally liable (y). And on the other hand, the assignees may adopt a contract made by the bankrupt, even after his bankruptcy; as, for instance, where a trader who had delivered goods to a factor, and taken a bill upon the credit of them, agreed with a factor, after an act of bankruptcy, to return the bill and take back the goods, and the bill was accordingly returned, but the factor refused to give up the goods: it was holden that the assignees might adopt the contract made by the bankrupt, and maintain the action founded on it (z). And assignees have a right to affirm the acts of a person interfering with the bankrupt's estate, even though his acts would otherwise amount to a conversion of the effects; but if they once affirm such acts, they cannot afterwards disaffirm them or treat the party as a wrong-doer (a). And where a bankrupt sells goods under the value, no action will lie by the assignees to recover the difference between the price for which they were sold and their real value; for the bankrupt himself could not maintain such an action (b). (8) See 2 V. & B. 309; 13 Ves. 188; 13 Ves. 349; 9 Ves. 100; 2 Ves. 255; 9 Vern, 286: 2 Atk. 562; 2 Show. 103; 1 Ves, sen. 331. (t) Dodson v. Lockhart, 5 T. R. 133; and see ante, p. 199. (u) Harrison v. Walker, Peake, 111; and see ante, p. 195. (z) Tyrrell v. Hope, 1 Atk. 558. (y) Er n. Mowbray, 1 Jac. & W. 438. (2) Butler v. Carver, 2 Stark. 434. (a) Brewer v. Sparrow, 1 Man. & R. 2. (b) Mogg v. Mitchell, 1 Stark. 241: Burra v. Clarke, 4 Camp. 355. The assignees, as soon as they are chosen, appoint the solicitor, who is thenceforth to conduct the proceedings under the fiat; either the solicitor who sued out the fiat, or another. So, they may remove the solicitor they have thus appointed; and, upon being removed, he will be obliged to give up the fiat and proceedings, &c. to the assignees (c), or to another solicitor appointed by the surviving assignee; and without waiting for the appointment of an assignee in the room of the one deceased (d), even although his bill have not been paid (e); and if the solicitor refuse to deliver up the proceedings to the assignees, he pays the costs of obtaining an order to compel him (f). The solicitor is chosen or removed by the majority of the creditors' assignees (g); and if the solicitor refuses to deliver up the proceedings to the order of a majority of the assignees, the order to compel him so to do with costs is of course, except in a case of gross misconduct on the part of the assignees, and a cross petition for their removal (h): and in town fiats, the official assignee shall not interfere in the appointment or removal of a solicitor. (See p. 28, ante.) In town fiats, the fiat and proceedings remain of record of the Court of Bankruptcy (see p. 31, ante); in country fiats the assignees, as heretofore, are entitled to the custody of the proceedings; although in practice, the solicitor usually has possession of them (i). And the solicitor, it seems, cannot be compelled to produce them upon a subpoena duces tecum (k); the proper course is to apply to have them enrolled, and then produce a copy (1); or the Court of Review, in some cases, upon application, will order them to be produced (m). In a case where the file of proceedings was lost, but the commission and assignment existed, Lord Eldon directed that the creditors should prove over again; and in another case, where the proceedings were lost, but a list of the debts was preserved, and authenticated upon oath, Lord Eldon directed the commissioners to declare dividends upon it, in the same manner as they would have done upon the original proceedings (n). In commissions of bankrupt existing at the time the 1 & 2 Will. 4, c. 56, came into operation, and which have been transferred into the Court of Bankruptcy, we have seen (p. 160, ante), that upon the appointment of an official assignee, the commissioner has authority to direct the existing assignees to deliver over to such official assignee all monies, books, papers, and effects, in their possession and custody as such assignees; but by General Order, Jan. 12, 1832, the assignees appointed under such commissions, shall be at liberty to retain, until further order, the custody of the commission and proceedings heretofore taken thereon, according to the present practice in bankruptcy. (e) Ex p. Hardy, 1 Rose, 395. (g) Er p. Tomlinson, 2 Rose, 66. (k) Bateson v. Hartsink, 4 Esp. 43. (7) Id. (m) See Ex p. Warren, 1 Rose, 276; 19 Ves. 162: Er p. Bernal, 11 Ves. 557; see 8 Ves. 314; see Ex p. Shaw, Jac. 270: Es p. Tipton, Mon. 214. (n) 1 Christian, B.L. 557; Cooke, 124. |