until the nominee of the creditors superseded him; but the 88 54, 55. registrar, although the estate vested in him, had no power either to administer the estate or to take possession thereof without the direction and order of the Court, and the same rule would seem to be applicable to the official receiver. (See Sects. 9 and 10.) Evidence of Appointment. The certificate is the document to be regarded as the foundation and evidence of the trustee's title. The words of par. 4 have been taken from Sect. 83, sub-s. 8 of the Act of 1869. The trustee, it must be borne in mind, is merely the legal representative of the bankrupt, and can take no higher rights, in respect of his property, than the bankrupt himself would have possessed, except where the transaction becomes void under some one of the provisions of the Act, or is void generally by force of some law in favour of the creditors (g). onerous pro 55. (1.) Where any part of the property of the bank- Disclaimer of rupt consists of land of any tenure burdened with onerous perty. covenants, of shares or stock in companies, of unprofitable Bankruptcy Act, 1869, contracts, or of any other property that is unsaleable, or ss. 23, 24. 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 that he has endeavoured to sell or has taken possession of the property, or exercised any act of ownership in relation thereto, but subject to the provisions of this section, may, by writing signed by him, at any time within three months after the first appointment of a trustee, disclaim the property. Provided that where any such property shall not have come to the knowledge of the trustee within one month after such appointment, he may disclaim such property at any time within two months after he first became aware thereof. (g) Ex parte Caldecott, 4 Ch. D. 150; Ex parte Holthausen, 9 Ch. 722; Harris v. Truman, 7 Q. B. D. § 55. R. 28, 1870. S. 24. (2.) The disclaimer shall operate to determine, as from the date of disclaimer, the rights, interests, and liabilities of the bankrupt and his property in or in respect of the property disclaimed, and shall also discharge the trustee from all personal liability in respect of the property disclaimed as from the date when the property vested in him, but shall not, except so far as is necessary for the purpose of releasing the bankrupt and his property and the trustee from liability, affect the rights or liabilities of any other person. (3.) A trustee shall not be entitled to disclaim a lease without the leave of the Court, except in any cases which may be prescribed by general rules, and the Court may, before or on granting such leave, require such notices to be given to persons interested, and impose such terms as a condition of granting leave, and make such orders with respect to fixtures, tenant's improvements, and other matters arising out of the tenancy as the Court thinks just. (4.) The trustee shall not be entitled to disclaim any property in pursuance of this section in any case where an application in writing has been made to the trustee by any person interested in the property requiring him to decide whether he will disclaim or not, and the trustee has for a period of twenty-eight days after the receipt of the application, or such extended period as may be allowed by the Court, declined or neglected to give notice whether he disclaims the property or not; and, in the case of a contract, if the trustee, after such application as aforesaid, does not within the said period or extended period disclaim the contract, he shall be deemed to have adopted it. (5.) The Court may, on the application of any person who is, as against the trustee, entitled to the benefit or subject to the burden of a contract made with the bank rupt, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the contract, or otherwise, as to the Court may seem equitable, and any damages payable under the order to any such person may be proved by him as a debt under the bankruptcy. (6.) The Court may, on application by any person either claiming any interest in any disclaimed property, or under any liability not discharged by this Act in respect of any disclaimed property, and on hearing such persons as it thinks fit, make an order for the vesting of the property in or delivery thereof to any person entitled thereto, or to whom it may seem just that the same should be delivered by way of compensation for such liability as aforesaid, or a trustee for him, and on such terms as the Court thinks just; and on any such vesting order being made, the property comprised therein shall vest accordingly in the person therein named in that behalf without any conveyance or assignment for the purpose. Provided always, that where the property disclaimed is of a leasehold nature, the Court shall not make a vesting order in favour of any person claiming under the bankrupt, whether as under-lessee or as mortgagee by demise except upon the terms of making such person subject to the same liabilities and obligations as the bankrupt was subject to under the lease in respect of the property at the date when the bankruptcy petition was filed, and any mortgagee or under-lessee declining to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property, and if there shall be no person claiming under the bankrupt who is willing to accept an order upon such terms, the Court shall have power to vest the bankrupt's estate and interest in the property in any person liable either personally or in a representative character, and either alone or jointly with § 55. § 55. the bankrupt to perform the lessee's covenants in such lease, freed and discharged from all estates, incumbrances, and interests created therein by the bankrupt. (7.) Any person injured by the operation of a disclaimer under this section shall be deemed to be a creditor of the bankrupt to the extent of the injury, and may accordingly prove the same as a debt under the bankruptcy. See, as to instances in which there may be disclaimers without any leave, General Rules. This section in many respects differs from the two corresponding sections of the 1869 Act. For the purpose of comparison, those sections are given below, the italicised words being such as are affected by the change in the new sections. By Sect. 23 it was provided that "When any property of the bankrupt acquired by the trustees 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 (h) may, by writing under his hand (i), 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 (k), 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 person in existence so entitled, then in no case shall any estate or interest therein remain in the bankrupt (7). Any person interested in any disclaimed property may apply to the Court, and the Court may upon such application (W) order possession of the disclaimed property to be delivered up to him, (h) See added words in this section, sub-s. 1. (2) It was held that a disclaimer signed by the trustee's solicitor, was not a valid disclaimer under this Act within three months, Wilson v. Wallani, 5 Exch. D. 155. (k) See change in sub-s. 2: disclaimer determines interests as from its date. (1) See sub-s. 2, and Ex parte Glegg, 19 Ch. D. 7. (U) See sub-s. and 6. or make such 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 ” (m). The 24th section of the 1869 Act enacted "that the trustee should not be entitled to disclaim any property in pursuance of that Act in cases where an application in writing had been made to him by any person interested in such property requiring such trustee to decide whether he would disclaim or not, and the trustee had for a period of not less than twenty-eight days (n) after the receipt of such application, or such further time as might be allowed by the Court, declined or neglected to give notice whether he disclaimed the same or not." § 55. By Rule 28 of the Rules of 1871, made in pursuance of the R. 28, 1871. Act of 1869, it was also provided that where the property sought to be disclaimed consisted of a leasehold interest, the leave of the Court should first be obtained (o). This obligation upon the trustee to obtain the leave of the Court has now found its proper place in the text of the Act itself (p), with this addition that notices are to be given to the persons interested, and the Court is at liberty to impose such terms as a condition of granting leave, and make such orders with respect to fixtures, tenant's improvements, and other matters arising out of the tenancy, as the Court thinks just. No doubt one of such matters over which the Court can exercise its power to impose conditions, will be the payment of such rent as it thinks (m) In Ex parte Llynvi Coal and Iron Co. re Hide, L. R. 7 Ch. 28, it was held that the measure of the injury sustained upon disclaimer was the difference between the rent, to be paid under an agreement, and what the landlord would at the time of proving obtain for the property; and see also Ex parte Blake re McEvan, 11 Ch. D. 572. (n) In Ex parte Lovering re Jones, L. R. 9 Ch. 586; it was held that the leave for the extension of time should be asked for within the twenty-eight days. The words "not less than" do not now occur in sub-s. 4; and see Ex parte Harris re Richardson, 16 Ch. D. 613, as to what are grounds for such extension of time. (0) In Ex parte Ladbury re Turner, 17 Ch. D. 532, it was questioned whether this rule was not ultra vires, having regard to the words of the Act, but a disclaimer without leave was held to have been valid as against the landlord, Reed v. Harvey, 5 Q. B. D. 184; 49 L. J. Q. B. 295. It had previously been held that the Court would exercise a discretion (Re Wilson, 13 Eq. 186); and in doing so would look to any conduct of the lessor amounting to a waiver of his right to have a disclaimer in twentyeight days (Ex parte Moore re Stokoe, 2 Ch. D. 802). (p) See sub-s. 3; and where such leave may be dispensed with. (See General Rules.) A A |