8 56.

Powers exer.

which receipts shall effectually discharge the person paying the money from all responsibility in respect of the application thereof:

(3.) Prove, rank, claim, and draw a dividend in respect of any debt due to the bankrupt:

(4.) Exercise any powers the capacity to exercise which is vested in the trustee under this Act, and execute any powers of attorney, deeds, and other instruments for the purpose of carrying into effect the provisions of this Act:

(5.) 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 it; and 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 recoveries, and for the substitution of more simple modes of assurance," shall extend and apply to proceedings under this Act, as if those sections were here re-enacted and made applicable in terms to those proceedings.

The powers contained in this section are exercisable by the cisable without trustee, in his discretion, and without the express permission permission. of the Committee of Inspection; and see as to powers exercisable with such permission, Sect. 58. Subject to these provisions the trustee is, by Sect. 89, in the administration of the property, &c., to 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 in case of conflict the directions of the creditors generally shall override those of the Committee, and see Sub-s. 3 and 4 of Sect. 89.

Bankrupt can purchase.

Sell the Property.

It has been held that the trustee may sell a right of action relating to the bankrupt's estate (n). The bankrupt himself

(n) Seear v. Lawson, 15 Ch. D. 426; 49 L. J. Bank. 69; 42 L. T. 893.

may become the purchaser, and in such a case the trustee will § 56. not be allowed to repossess himself of the property, or that which grows out of it as property after-acquired by the bankrupt (o).

trustee.

A trustee or other person standing in a fiduciary capacity as But not regards the estate cannot become such purchaser, for they come within the rule, as regards purchasers of the estate from cestui que trusts except, perhaps, upon the terms of paying more than anyone else; but in such a case the sanction of the Court should be expressly sought and obtained (p).

Where the debts are sold by the trustee, the assignee may sue in his own name, under the powers conferred by the Judicature Act, 1873, Sect. 25, Sub-s. 6, if the assignment is in writing, and notice in writing is given to the person liable to pay.

No section corresponding to Sect. 111 of the Act of 1869, Effect of enabling an assignee from a trustee to sue in his own name, assignment. is to be found in this Act, apart from the right of a joint contractor with the bankrupt to sue in his own name, so that all such assignments must now be in writing and notice given to the debtor (q).

By Sect. 27 of the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), the transferee of a statutory mortgage may apparently sue on it in his own name (r).

It seems a trustee has a discretion as to when and how he will sell a contingent reversionary interest of the bankrupt, and the Court will not interfere with the discretion at the instance of a creditor, unless it is shown that he is acting so very absurdly that no reasonable man would thus act (s).

A trustee cannot sell the estate to his partner even by auction, and such a sale is invalid (†).

See as to taking accounts of mortgaged property, General Rules.

(0) Ex parte Tinker re France, L. R. 9 Ch. 716; 43 L. J. Bank. 91; 30 L. T. 615 and see Kitson v. Hardwick, L. R. 7 C. P. 473; Re Wainwright, 19 Ch. D. 140.

(p) See Kitson v. Hardwick, supra; Ex parte Forder re Sparks, W. N., 1881, p. 117, in Re Wainwright ex parte Greener, supra. This

was actually carried out.

(q) See also Turquand v. Fearon, 4 Q..B. D. 280.

(r) See Wilson's Judicature Acts, 3 ed., p. 28.

(s) Lloyd ex parte re Peters, 47 L. T. 64.

(t) Ex parte Moore re Moore, 51 L. J. Ch. 72; 45 L. T. 558.

§§ 56, 57.

Powers exer-
cisable by
trustee with
permission of
committee of
inspection.
Bankruptcy
Act, 1869,
ss. 27, 29.

Prove, &c., for Bankrupt's Debt.

The affidavit should be a joint affidavit of the bankrupt, creditor and the trustee (u). Where the creditor after the adjudication assigned his debt it was held the assignee could not prove, but had a right to call upon the assignor (the bankrupt) to prove the debt as a trustee for him (x).

Exercise Powers, &c.

See as to his powers in the realization of property as a Receiver of the High Court, Sect. 50, Sub-s. (2). As to transfer of shares, Sect. 50, Sub-s. (3). As to dealing with copyhold and customary property, Sect. 50, Sub-s. (4). As to applying for writ of sequestration, Sect. 52. Powers of disclaimer, Sect. 55. As to exercising powers in, over, or in respect of property exercisable by the bankrupt, Sect. 44, Par. (ii), and notes to that section.

Bankrupt's Tenancy in Tail.

This section corresponds to Sect. 208 of the Act of 1849, and also Sect. 25, Sub-s. (4) of the Act of 1869 (y). As to the provisions of 3 & 4 Will. IV. c. 74, so far as they affect bankruptcy, see Shelford's Bank., 3rd Ed., p. 440 et seq.

57. The trustee may, with the permission of the committee of inspection, do all or any of the following things:

(1.) Carry on the business of the bankrupt, so far as may be necessary for the beneficial winding up of

the same:

(2.) Bring, institute, or defend any action or other legal proceeding relating to the property of the bankrupt:

(3.) Employ a solicitor or other agent to take any proceedings or do any business which may be sanctioned by the committee of inspection:

(u) And see Ex parte Robson re Amner, 2 M. D. & D. 65.

(x) Ex parte Dickenson, 2 Dea. &

Ch. 520.

(y) And see as to disentailing assurances under this section, Sturgis v. Morse, 29 L. J. Ch. 766, 774.

(4.) Accept as the consideration for the sale of any property of the bankrupt a sum of money payable at a future time subject to such stipulations as to security and otherwise as the committee. think fit:

(5.) Mortgage or pledge any part of the property of the
bankrupt for the purpose of raising money for the
payment of his debts:

(6.) Refer any dispute to arbitration, compromise all
debts, claims, and liabilities, whether present or.
future, certain or contingent, liquidated or un-
liquidated, subsisting or supposed to subsist be-
tween the bankrupt and any person who may have
incurred any liability to the bankrupt, on the
receipt of such sums, payable at such times, and
generally on such terms as may be agreed on :
(7.) Make such compromise or other arrangement as

may be thought expedient with creditors, or persons
claiming to be creditors, in respect of any debts

provable under the bankruptcy:

(8.) Make such compromise or other arrangement as may be thought expedient with respect to any claim arising out of or incidental to the property of the bankrupt, made or capable of being made on the trustee by any person or by the trustee on any person:

(9.) Divide in its existing form amongst the creditors, according to its estimated value, any property which from its peculiar nature or other special circumstances cannot be readily or advantageously

sold.

The permission given for the purposes of this section shall not be a general permission to do all or any of the above-mentioned things, but shall only be a permission to do the particular thing or things for which permission is sought in the specified case or cases.

§ 57.

§ 57.

Powers under 1869 Act.

Changes

Act.

An important change in the law as to the circumstances under which the trustee's power may be exercised has taken place:

In the first place, under the Act of 1869 (by Sect. 25), the trustee (subject to the provisions of the Act) had general power (1), to carry on the business of the bankrupt; (2), bring or defend any action, suit, or other legal proceeding relating to the bankrupt's property; (3), deal with estates tail; (4), exercise powers and execute deeds, &c.; (5), sell the bankrupt's property; (6), give receipts and discharges; (7), prove and claim dividends under Sect. 26 of the same Act. Secondly (with the sanction of the creditors), he could appoint the bankrupt to manage the property, or to carry on the business. Thirdly, the sanction of the committee was required (2) to enable the trustee to do the following things:-(1) To mortgage or pledge the property. (2) Refer disputes to arbitration, and to make compromises both with debtors and creditors, as to claims arising out of, or incidental to the bankrupt's property. (3) Divide in specie property from its nature unrealisable.

But the sanction required for the purposes of these last enumerated powers might have been a general permission by the committee to do all or any of the above-mentioned things, or a permission to do all or any of them in any specified case

or cases.

Now it will be observed that Nos. 1 and 2 (a) of the first effected by this category have been taken out of the general powers of the trustee, and can only be done with the permission of the committee (b). Whilst those in the same category numbered 3, 4, 5, 6, and 7, are still within the general powers of the trustee.

Where bank

manager.

The powers contained in the Sects. 26 & 38 of the 1869 Act, rupt appointed to appoint, with the sanction of the creditors, the bankrupt to manage the business, &c., and to remunerate him, are to be found in Sect. 64 of this Act, but the permission of the committee is to be first obtained (Sect. 64).

And where either the bankrupt (c) or a stranger has been appointed as a special manager of the business under Sect. 12,

(z) By s. 27.

(a) (1) To carry on the business of the bankrupt; (2), to bring, institute, or defend actions, &c.

(b) In the absence of a committee, the Board of Trade can direct the

trustee, s. 22, par. 9.

(c) It is not clear that the bankrupt can be appointed at all, and the probability is that he would not be appointed under s. 12, but see infra.