Herbert Reed for the trustee : 1884. EX PARTE There appears only to be one question in the case. The rent of IN RE MOSER, the three rooms is 2007., and this will be paid up to the date of the THE TRUSTEE. disclaimer. But there are on the premises certain tenant's fixtures which are valued at about 857. Under the Bankruptcy Act, 1869, in case of disclaimer the fixtures belonged to the landlord. But it is now provided by section 55, sub-section (3), of the new Act that "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." This latter provision was inserted to remedy the evil which formerly existed when a trustee paid the rent and was obliged to leave the fixtures. I submit that it would be a just order in this case either (1) that the landlord should pay a fair sum for the fixtures; or (2) that the landlord should allow the trustee to take them away. Mr. Scoles, solicitor, for the landlord: I would submit that the rent should be paid at any rate up to quarter day. Herbert Reed: If a trustee keeps a landlord out of his property for the benefit of the estate, or with the intention of benefiting the estate, then the landlord ought to be paid. But in this case the trustee was not appointed until July 25th. He has come to the Court quite promptly. WILLS, J.: That is so. I think it would be just that the landlord should Judgment. either pay for the fixtures or allow the trustee to remove them, but in the latter case I am of opinion that the trustee ought to pay rent until the fixtures are actually removed. (An order was subsequently drawn up in the following terms: Leave to disclaim. The trustee to pay rent up to the date of the disclaimer. The landlord 1884. to have two days to say whether he will accept the offer to set off IN RE MOSER, the fixtures against the rent. If this offer not accepted, the trustee EX PARTE to have four days allowed after to remove the fixtures.) THE TRUSTEE. Solicitors: Lindsay, Mason, Greenfield & Mason, for the trustee. COURT OF BEFORE L. J., BOWEN, L. J., FRY, L. J. 1884. October 31. PRACTICE. IN RE J. J. WALLACE, EX PARTE WALLACE. Bankruptcy Rules, 1883, Rule 125-Petition by Creditor-Signature of Petition by Attorney. Held: That a bankruptcy petition presented by a creditor may be signed on behalf of such creditor by his duly constituted attorney. THIS HIS was an appeal from an order of Mr. Registrar Brougham making a receiving order against J. J. Wallace, who had carried on business as a merchant and steamship broker in Great St. Helen's under the firm of Wallace & Co. The petition on which the order was made was presented by William Richards, of Prince Edward's Island, Canada, and set out that the said J. J. Wallace was indebted in the sum of 8007. on a bill of exchange given to the said William Richards in payment for 32 shares in a certain ship. The petition was signed "William Richards by his attorney Thomas Picton Richards," the signature being attested by a witness, and the attestation clause contained the words "signed by the petitioner by his attorney Thomas Picton Richards in my presence.' Amongst other objections to the validity of the receiving order it was urged that the bankruptcy petition could not be signed by an attorney on behalf of the petitioner; and further, even if this could be done the power of attorney in the present case did not authorize the attorney to sign a bankruptcy petition for his principal. F. C. Willis for the appellant: I wish first to call attention to the petition itself. The petition is signed" William Richards, by his attorney Thomas Picton Richards." Could Thomas Picton Richards sign this petition? Rule 125 of the Bankruptcy Rules, 1883, provides that "Every petition shall be fairly written or printed, or partly written and partly printed, and no alterations, interlineations, or erasures shall be made without the leave of the registrar, except so far as may be necessary to adapt a printed form to the circumstances of the particular case. A debtor's petition shall be in Form No. 4, and a creditor's petition shall be in Form No. 10, in the Appendix, with such variations as circumstances may require." And Form 10 provides, that the petition shall be signed by the petitioner, and the attestation clause contains the words "signed by the petitioner in my presence." But it is asserted that in the present case the petition could be signed by an attorney by virtue of a power of attorney given to Thomas Picton Richards by William Richards. Even if the petition could be signed by an attorney at all he must at any rate be properly and sufficiently authorized for that purpose, and in the present case I submit that the authority is not sufficient. This power is dated February 8th, 1879, and, amongst other things, empowers the said Thomas Picton Richards, on behalf of William Richards, "to commence and carry on, or to defend at law or in equity, all actions, suits or other proceedings touching anything in which I or my ships or other personal estate may be in anywise concerned," and further, gives him power to sign charter-parties, cheques, receipts and other instruments of a like nature, or to execute such other documents relating to his property as he shall see fit. There is no power to sign a bankruptcy petition, which has been done in this case. [Counsel then proceeded to deal with other questions in relation to the validity of the petition founded upon the facts of the case.] R. V. Williams, for the petitioning creditor, was not called upon. BAGGALLAY, L. J., after dealing with the other circumstances of 1884. IN RE J J.WALLACE, WALLACE. The next question is-Could the petition be signed by attorney? Judgment, 1884. IN RE J.J.WALLACE, EX PARTE WALLACE. I have no doubt whatever that this could be done, provided a sufficient power of attorney was given. Here the words of the power give Thomas Picton Richards authority to carry on actions, suits or other proceedings in which the ships or other personal estate of William Richards may be in anywise concerned. That is, in my opinion, sufficient to authorize him to sign a bankruptcy petition. The power of an attorney to act on behalf of his principal in bankruptcy matters has been undisputed ever since the decision given by the Court of Appeal in Ex parte Frampton, In re Frampton (1 D. F. & J. 263), twenty-five years ago. The present case carries the principle a step further. In Ex parte Frampton it was held that the attorney was authorized to do an act, viz., to instruct a solicitor to show cause against an adjudication of bankruptcy. In this case we are deciding that the attorney is empowered to sign a document on behalf of his principal. But the signature of the document is the necessary form of commencing a proceeding in relation to something in which the principal or his personal estate is concerned. I am, therefore, of opinion that the decision of the registrar was right. BOWEN, L. J.: I am of the same opinion, and I have no doubt that the view expressed by the Lord Justice is the right view. The power of attorney was wide enough here to authorize the attorney to commence proceedings in bankruptcy by signing a petition. FRY, L. J.: I am entirely of the same opinion. Appeal dismissed. Solicitors: J. T. Watson for the appellant. Hollams, Son & Coward for the petitioning creditor. Case referred to : Ex parte Frampton, In re Frampton, 1 D. F. & J. 263; 28 L. J., B. 21. PRACTICE. IN RE WALKER & SON, EX PARTE NICKOLL & KNIGHT. COURT OF Bankruptcy Appeals (County Court) Act, 1884, Section 2-Appeal from Divisional Court-Leave to appeal. Held: (1) That an application for leave to appeal under section 2 of the Bankruptcy Appeals (County Court) Act, 1884, from the decision of a Divisional Court sitting as a Court of Appeal from a County Court in bankruptcy, should be made in the first instance to a Divisional Court. (2) That such application for leave to appeal ought to be made to the Divisional Court immediately after such Divisional Court has pronounced its decision. THIS was an appeal from a decision of a Divisional Court of the Queen's Bench Division sitting as a Court of Appeal from a County Court in bankruptcy, under the Bankruptcy Appeals (County Courts) Act, 1884 (47 & 48 Vict. c. 9). Section 2 of that Act provides that "An appeal shall lie in bankruptcy matters at the instance of any person aggrieved from the order of a County Court to a Divisional Court of the High Court of Justice, of which the judge to whom bankruptcy business shall for the time being be assigned shall, for the purpose of hearing such appeal, be a member. The decision of such Divisional Court upon any such appeal shall be final and conclusive, unless in any case it shall seem fit to the said Divisional Court or to the Court of Appeal to give special leave to appeal therefrom to Her Majesty's Court of Appeal, whose decision in such case shall be final and conclusive." The case was originally heard before the Divisional Court, consisting of Justices MATHEW and CAVE, on June 25th last, and will be found reported ante, p. 188. The appellants, Messrs. Nickoll & Knight, subsequently applied to the Court of Appeal under section 2 of the above Act for leave to appeal to that Court. The Court of Appeal were of opinion, however, that such application should be made in the first instance to a Divisional Court. On July 12th, therefore, the appellants applied ex parte to a APPEAL. BEFORE BAGGALLAY, L. J., BOWEN, L. J., FRY, L. J. 1884. October 31. |