§§ 86, 87, 88. Proceedings in case of vacancy in office of trustee. Bankruptcy Act, 1869, ss. 83, 84. As to necessary majority. Limitation of voting powers of trustee. It may be intended however (Sub-s. 2) to vest the right of removal of the trustee for misconduct, &c., in the Board of Trade in substitution for the Court, with an ultimate appeal to the Court, and in lieu of the power the Court had under the Act of 1869. In that case the creditors themselves may appeal against the act of the Board of Trade. 87. (1.) If a vacancy occurs in the office of a trustee the creditors in general meeting may appoint a person to fill the vacancy, and thereupon the same proceedings shall be taken as in the case of a first appointment. (2.) The official receiver shall, on the requisition of any creditor, summon a meeting for the purpose of filling any such vacancy. (3.) If the creditors do not within three weeks after the occurrence of a vacancy appoint a person to fill the vacancy, the official receiver shall report the matter to the Board of Trade, and the Board may appoint a trustee; but in such case the creditors or committee of inspection shall have the same power of appointing a trustee as in the case of a first appointment. (4.) During any vacancy in the office of trustee the official receiver shall act as trustee. This section does not say by what majority the resolution is to be carried, but probably, from the language of the section, is meant the same resolution as is required in a first appointment under Sect. 21, i.e., an "ordinary resolution," that is to say, a majority in value of creditors who have proved and who are voting. See as to convening general meetings, Sched. 1, Rule 6. A retiring assignee must allow his name to be used in any proceeding already begun (sss). Voting powers of Trustee. 88. The vote of the trustee, or of his partner, clerk, solicitor, or solicitor's clerk, either as creditor or as proxy for a creditor, shall not be reckoned in the majority required for passing any resolution affecting the remuneration or conduct of the trustee. (sss) Re Roberts, Buck, 465. This section is new. There is nothing, it seems, to prevent a person voting as a proxy in favour of his own appointment; and also in regard to the administration of the estate generally, for the word used here restrictively, is "conduct," and strictly relates to the trustee's personal conduct. See, as to voting by proxies, Sched. 1, Rules 15, 18. Control over Trustee. §§ 88, 89. thereof. Act, 1869, 89. (1.) Subject to the provisions of this Act the Discretionary powers of trustee shall, in the administration of the property of the trustee and bankrupt and in the distribution thereof amongst his control creditors, have regard to any directions that may be given Bankruptcy 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 in case of a conflict be deemed to override any directions given by the committee of inspection. (2.) The trustee may from time to time summon general meetings of the creditors for the purpose of ascertaining their wishes, and it shall be his duty to summon meetings at such times as the creditors, by resolution, either at the meeting appointing the trustee or otherwise may direct, or whenever requested in writing to do so by one-fourth in value of the creditors. (3.) The trustee may apply to the Court in manner prescribed for directions in relation to any particular matter arising under the bankruptcy. (4.) Subject to the provisions of this Act the trusteeshall use his own discretion in the management of the estate and its distribution among the creditors. Control over Trustee. This section must be read in conjunction with Sects. 56 and 57, as to such acts as the trustee may perform, both with and without the permission of the Committee of Inspection. Reference must likewise be made to the sanctions and directions s. 20. §§ 89, 90. contained in other sections of the Act, as, for instance, "disclaimer" under Sect. 55, and "dividend" under Sects. 58, 59, 60, 61, 62 and 63, and chiefly Sect. 62 as to the permission of the committee to declare a final dividend. Also Sect. 64 as to the permission of the committee to appoint the bankrupt to manage the property or carry on the business. Also to Sect. 50, which places the trustee in the position of a receiver of the High Court. Resolutions must not be ultra vires. Directions. Appeal to Court against trustee. Bankruptcy Act, 1869, 8. 20. The resolutions of the creditors must be consistent with and not contrary to the provisions of the Act itself, otherwise they will be deemed ultra vires, and the Court will intervene, but if the resolution is within the authority of the creditors, although in the opinion of the Court an erroneous exercise of such authority, the Court cannot intervene (t). And it has also been recently held that, under Sects. 14 and 20 of the 1869 Act, the Court could order the trustee to disregard directions given him by resolutions not bonâ fide passed in the interest of creditors (u). As to applications to the Court for directions, it has been. held that they are in substitution of actions at law and that if unsuccessful the trustee will, in the absence of special circumstances, be ordered to pay the costs, and that if the estate be insufficient for the purpose, the trustee will be ordered to pay them personally (x). See Sect. 22, Sub-s. 9, as to the sanction of the Board of Trade when there is no committee. 90. If the bankrupt or any of the creditors, or any other person, is aggrieved by any act or decision of the trustee, he may apply to the Court, and the Court may confirm, reverse, or modify the act or decision complained of, and make such order in the premises as it thinks just. Appeal to Court. As to appeals generally, see Sect. 104. As to the general power and jurisdiction of the Bankruptcy Courts, see Sect. 102, and notes. (t) Ex parte Emmanuel re Batey, 17 Ch. D. 35; 50 L. J. Ch. 305; 44 L. T. 832. (u) Ex parte Cocks re Poole, 21 Ch. D. 397. (x) Ex parte Angerstein re Angerstein, 9 Ch. 479; 43 L. J. Bank. 131. Person Aggrieved. § 91. "Bankrupt," "creditor," or "any other person," are included Who are within the scope of the section. Where a trustee has been guilty of a misfeasance, either the bankrupt or any of the creditors it was held, under similar words, were entitled to make an application of his own to the Court, and if dissatisfied with the order made, to appeal, but the refusal of the Court to act upon the report of the Comptroller in bankruptcy was held not to afford to such person the right to apply (y). So also it was held that a bill of sale holder was entitled to appeal from the adjudication founded upon an act of bankruptcy alleged to have been committed by the execution of the bill of sale (z). The words "person aggrieved" do not really mean a person disappointed of a benefit which he might have received if some other order had been made by the Court; but he must be a person who has suffered a real grievance and against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something (a). The Court can order the trustee, as its officer, to deliver up a chattel in his possession which the debtor has wrongfully detained against its rightful owner, and after judgment in an action of detinue (b). Where it is desired to enforce against a receiver an undertaking to pay damages there should be no unreasonable delay (bb). By Rule 25, Sched. 2, a creditor, if dissatisfied with the decision of a trustee as to his proof, is also entitled to apply to the Court to reverse or vary the decision, and under Rule 26, the Court can expunge or reduce a proof if the trustee declines to interfere. As to appeals from the Board of Trade to the High Court, see Sect. 139. (y) Ex parte Sidebotham, 14 Ch. D. 458. (z) Ex parte Ellis, 2 Ch. D. 797. (a) See Judgment of James, L.J., in Ex parte Sidebotham, supra. See as to receivers, Ex parte Browne re Maltby, 16 Ch. D. 497. (b) Ex parte Drake re Ware, 5 Ch. D. 866; 46 L. J. Bank. 105; EE 36 L. T. 677; and see also Ex parte (bb) Ex parte Hall re Wood, 49 aggrieved persons. § 91. Control of Board of Trade over trustees. Bankruptcy Act, 1869, s. 57, 58, r. 251. 91. (1.) The Board of Trade shall take cognizance the conduct of trustees, and in the event of any trustee not faithfully performing his duties, and duly observing all the requirements imposed on him by statute, rules, or otherwise, with respect to the performance of his duties, or in the event of any complaint being made to the Board by any creditor in regard thereto, the Board shall inquire into the matter and take such action thereon as may be deemed expedient. (2.) The Board may at any time require any trustee to answer any inquiry made by them in relation to any bankruptcy in which the trustee is engaged, and may, if the Board think fit, apply to the Court to examine on oath the trustee or any other person concerning the bankruptcy. (3.) The Board may also direct a local investigation to be made of the books and vouchers of the trustee. The control which the Board of Trade by virtue of many of the sections of this Act now exercises over trustees and official receivers, is a new and important feature in this Act. Examine the Trustee. The Comptroller formerly could make inquiries and direct the trustee's examination, and have his books and vouchers examined. This power now belongs to, and will be exercised by, the Board of Trade. It would seem, therefore, that where the complaint of the party is, in respect of disputed rights and liabilities, his application should be to the Court, but where his complaint is in respect of conduct merely, or of any matters expressly within the control of the Board, then to the Board of Trade. But this distinction should be kept in mind, that the official receiver is the officer of the Board of Trade, and acting under the general authority and direction of the Board of Trade, as well as the officer of the Court to which he is attached (see Sect. 66), and having the same powers as a receiver of the High Court (see Sect. 70); but the trustee is the nominee of the creditors, subject to the special control given to the Board of Trade by this Act, and is only in relation to and for the purpose of |