tion has been realized, and that the alteration is in the sense of the contention, approved of by the Lord Justice. § 55. Sub-section (6) gives power to the Court to make vesting Sub-s. (6). orders of property disclaimed where any person claims an Vesting interest therein which is not discharged by this Act. In the orders. case of leaseholds, however, a person claiming under the bankrupt will not be entitled to an order vesting the property in him, unless he consents to be placed in such a position with regard to the property as the bankrupt was in at the date when the petition was filed. Possibly the remedy provided by this new sub-section may be applicable to such a case as Re Mercer and Moore, 14 Ch. D. 287. There the owner of freehold property burdened with onerous covenants and equitably mortgaged by deposit of title deeds became bankrupt. The trustee disclaimed, and subsequently he and the bankrupt purported to convey the property to the mortgagee, whose assigns contracted to sell to a purchaser. It was held on a summons taken out by the purchaser under the Vendor and Purchaser Act, 1874, that the purchaser was not obliged to complete, the conveyance to the mortgagee being inoperative, and the legal estate outstanding and not capable of being got in under the Trustee Act, 1850, it having apparently on the disclaimer reverted to the Crown. Perhaps if this sub-section had then existed the Court might, on the application of the vendors, have vested the disclaimed freehold in them. Sub-section (7) is a re-enactment of the concluding words of Sub-s. (7). section 23. The following cases were decided on that section, and seem still to apply: In Ex p. Llynri Coal and Iron Co., re Hide, L. R. 7 Ch. 28, where a bankrupt was lessee for a term of years at an annual rental of £500, and the trustee having disclaimed the lease, the landlord was unable to relet the premises at so high a rent, it was held that the landlord was entitled to prove in the bankruptcy for the difference between the present worth of the £500 per annum agreed to be paid by the bankrupt for the residue of the term, and the present worth for the same period of the letting value of the premises, that being the injury caused by the operation of the section, and that since, in estimating the injury, it must be taken into consideration that the landlord regained possession of the premises, it would be nil if the landlord were able to let them at as high a rent as before. In Ex p. Blake, re McEwan, 11 Ch. D. 572, upon disclaimer by the trustee of a bankrupt lessee of a lease for twenty-one years, determinable at the end of the first seven or fourteen years on written notice and due performance of covenants, it was held that as the demised premises, which were out of repair, could only be relet at a reduced rent, the measure Proof for damages. § 55. Ex p. Walton, re Levy. Effects of of proof was the loss in rent up to the seventh year of the term, and the cost of repair. As to the forfeiture of a deposit by a trustee who disclaims, see Ex p. Barrell, re Parnell, 33 L. T. 115. When a trustee disclaims a lease of premises used by partners for partnership purposes, the lessor has a right to prove against the separate estate of each partner for the injury caused him by the disclaimer. (Ex p. Corbett, re Shand, 14 Ch. D. 122.) It has already been pointed out that the present statute, embodying the principles laid down in Ex p. Walton, re Levy, 17 Ch. D. 746, provides that the disclaimer 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, and it follows, therefore, that the state of things may arise again which arose in that case, viz., an underlease by a bankrupt at a rent less than that reserved by the original lease continuing in force notwithstanding the disclaimer, subject, however, to the right of the lessor to distrain for the rent reserved by the original lease, and to re-enter for nonpayment or breach of the covenants contained in the lease. In such a case it was held that the underlessee was entitled to prove, amongst other things, for the value of the difference between the two rents. Generally, although the above section differs from section 23 changes made of the Act of 1869, mainly by merely incorporating the by this secdecisions under that section, yet it does seem as if it was tion. intended to make some considerable changes in principle. In the first place, the main object of section 23, as construed by the decisions, would seem to have been to relieve the trustee personally from liability, and one consequence of this was that, except in cases where the trustee could incur a personal liability by the mere fact of the vesting of the property in him, i. e. in the case of leases and possibly shares, section 23 remained a dead letter, because a disclaimer would have served no useful purpose; whereas, under the present section, if the view suggested in this note is correct, the effect of nondisclaimer after notice will be that the estate of the bankrupt will be rendered liable for breaches of contract, not in the shape of proof, but to the full amount. If this is so, disclaimer will probably become frequent in cases of contracts other than those of contracts of lease. It does not seem quite clear whether the legislature intended the provision as to a contract not disclaimed within due time after notice being deemed to have been adopted by the trustee to give lessors any larger rights against either the trustee or the bankrupt's estate than they would have had by virtue of the doctrine of privity of estate; in other words, it does not seem quite clear whether non-disclaimer in the case of a lease will give rights to lessors (other than rights of proof) against the trustee personally, or as representing the bankrupt's estate, founded on privity of contract. If the view suggested in a former part of this note is correct, a trustee who has not disclaimed will require to assign away the lease in order to get rid of personal liability by privity of contract, but will be able to get rid of such liability by so doing. Another result of non-disclaimer after notice may be that the estate of the bankrupt may not be able to take advantage of a lease being vested in the trustee to get payment from the lessor for valuations or other payments covenanted to be made by him without giving him credit for sums due for breaches of covenant committed by the bankrupt. (See Alloway v. Steere, 47 L. T. 333.) § 55. The discretion exercised by the judge in giving leave to Appeal. disclaim is not properly the subject of appeal. (Ex p. East and West India Dock Co., re Clarke, 17 Ch. D. 759; Ex p. Edmonds, re Tipping, 48 L. T. 77.) trustee to deal with pro 56. Subject to the provisions of this Act, the trustee Powers of may do all or any of the following things: (1.) Sell all or any part of the property of the bank- perty. rupt (including the goodwill of the business, if any, and the book debts due or growing due to the bankrupt), by public auction or private contract, with power to transfer the whole thereof to any person or company, or to sell the same in parcels : (2.) Give receipts for any money received by him, 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 is vested in the trustee under this Act, and execute (5.) Deal with any property to which the bankrupt is § 56. Incapacity to purchase. Sub-s. (1). . 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 trustee should have regard to the wishes of creditors in dealing with the bankrupt's property. (See section 89.) By section 90, the bankrupt, any creditor, or person aggrieved thereby, may appeal to the Court from any act or decision of the trustee. The Court will not interfere with the trustee's discretion at the instance of a creditor, unless it is shown that the trustee is acting as no reasonable man would. (Ex p. Lloyd, re Peters, 47 L. T. 64.) Some persons are incapacitated to purchase the bankrupt's estate. Under the old law, the assignees, a commissioner, a solicitor, and an auctioneer employed to sell to the bankruptcy were all held incapable of purchasing; and such a sale, unless it seemed beneficial to the creditors, would be set aside, and the property resold, and such improper purchaser would be charged with the loss, if any, on a resale (Ex p. Lewis, 1 Glyn & J. 69), but leave of the Court would, under very peculiar circumstances, be obtained. (Pooley v. Quilter, 2 De G. & J. 327; Ex p. Bennett, 10 Ves. 381; Ex p. Turley, 3 Dea. & C. 110; Ex p. Towne, 4 Dea. & C. 519; 2 Mont. & A. 29.) A sale to a brother and alleged partner of the trustee was set aside. (Ex p. Moore, 45 L. T. 558.) To enable an assignee to bid he must either have been first removed or have obtained the consent of the Court, which would not have been granted unless a meeting of the creditors called for the purpose had given their consent, which perhaps must have been unanimous. (Ex p. Molyneaux, 4 Dea. & C. 490; Ex p. Thwaites, re Knowles, 1 Mont. & A. 323; Ex p. Beaumont, 1 Mont. & A. 304; 3 Dea. & C. 323.) By section 132 of the Act of 1861, a mortgagee by leave of the Court might bid at the sale of the mortgaged property, but this has always been the law without express enactment. (See Ex p. Say, 1 D. & C. 32.) The sale of the bankrupt's property may be to the bankrupt himself. (Kitson v. Hardwick, L. R. 7 C. P. 473.) § 56. Sale may be Book debts include all such debts as would in the ordinary to the bankcourse of carrying on the bankrupt's business, be entered in rupt. books, although they have not, in fact, been so entered. Book debts. (Shipley v. Marshall, 32 L. J. C. P. 258.) Trustees are bound, like other vendors, to make a good title, unless they expressly stipulated to sell with such title only as they had got. (Macdonald v. Hanson, 12 Ves. 277; White v. Foljambe, 11 Ves. 343. See Bartlett v. Tuchin, 6 Taunt. 259.) A purchaser from the trustee of a business and goodwill cannot restrain the bankrupt from bona fide beginning a new business and soliciting his old customers. (Walker v. Mottram, 45 L. T. 659.) As to a receipt by one assignee, see Smith v. Jamieson, 1 Esp. Sub-s. (2). N. P. 114; Bristow v. Eastman, ib. 174. It would seem that a bankrupt should join with his trustee Sub-s. (3). in making the affidavit necessary for proving. (Ex p. Robson, 2 M. D. & D. 65. See also Ex p. Smith, 1 D. & C. 267.) As to what are the powers, "the capacity to exercise which" Sub-s. (4). is vested in the trustee under this Act, see ante, section 44 (ii.), p. 195. The powers given to tenants for life by the Settled Land Act, 1882 (45 & 46 Vict. c. 38), do not pass to a person as being, by operation of law or otherwise, an assignee of a tenant for life, and remain exerciseable by the tenant for life after and notwithstanding any assignment, by operation of law or otherwise, of his estate or interest under the settlement. (See sect. 50 of that Act.) Sub-section (5) corresponds to section 208 of the Act of 1849. Sub-s. (5). As to the effect of disentailing assurances made under this section in enlarging or confirming defective estates, see the remarks of Turner, L.J., in Sturgis v. Norse, 29 L. J. Ch. 766, 774. Powers exerciseable by trustee with 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 permission of may be necessary for the beneficial winding up of the inspection. same: (2.) Bring, institute, or defend any action or other committee of |