be analogous to making a petition on an act of bankruptcy more than three months old. The Court will not amend after time. THE LORD CHIEF JUSTICE (COLERIDGE): 1884. IN RE HASTINGS, EX PARTE DEARLE. On the first point I am of opinion that this appeal must be dis- Judgment. missed. I am of opinion that the decision of the Registrar was right. The general rule was, and that rule is apparently continued by the Bankruptcy Act, 1883, that a mere trustee could not be a petitioning creditor without joining the cestui que trust, if the latter is capable of dealing with the debt. There was good reason for that practice. The trustee might make a man a bankrupt on a debt to which the cestui que trust had no real right at all, and to which the man as against the cestui que trust had a good defence. The Bankruptcy Act of 1869 decided that the nonpayment of an equitable debt was an act of bankruptcy. Upon that state of things, the Judicature Act having been passed in the year 1873, it was contended that by the Bankruptcy Act of 1869, and by the Judicature Act, 1873, which ordained the administration of law and equity concurrently, the old rule of practice had been abrogated. But in the year 1878, in the case of Ex parte Culley, In re Adams, an express decision was given on the Bankruptcy Act, 1869, and the Judicature Act, 1873, by the Court of Appeal, and that Court was clearly of opinion that the old law was to be maintained. That was in 1878; but the Bankruptcy Act of 1883 is now passed, and in the present case the trustee of a debt is the sole petitioning creditor in these bankruptcy proceedings; the cestui que trust, in whose benefit the petition was presented, is his sister, and it has been suggested that the old rule is now set aside. The grounds put forward in support of that argument are that amongst a variety of acts of bankruptcy, sub-section (1) (g) of section 4 of the Bankruptcy Act, 1883, provides—[his Lordship read the sub-section]. In this case the trustee signed final judgment under Order XIV., and the terms of the bankruptcy notice not being complied with, an act of bankruptcy was committed. Then comes the question, who is to take advantage of it? The appellant says the person who has obtained final judgment. The words of sub-section (1) (g) of section 4, "If a creditor has obtained final judgment, &c., and has served, &c," and the words of section 5, 1884. IN RE HASTINGS, EX PARTE DEARLE. "on a bankruptcy petition being presented either by a creditor, &c.," show, it has been urged, that "a creditor" in section 5 means the same creditor who has obtained judgment, and that one only. Now, in my opinion, that does not follow. Another creditor, upon the act of bankruptcy created, if I may so term it, by the former creditor, may present the petition. There is nothing to show that it is "the" creditor who has obtained the judgment. Unless some words can be found to take away the old practice, the old practice must remain, that the cestui que trust must be joined in the petition. All the arguments which were urged in 1878 have been addressed to us to-day, and I must say they have been addressed in vain; the appeal must therefore be dismissed. Then as to the question of amendment. Under sub-section (3) of section 105, we have clearly power to allow an amendment, and having the power, ought we to exercise it? I think so, clearly. A slip or mistake has been made, and it is now proposed to amend it. By doing so we shall not alter the position of any party. Ada Dearle will be added, and the petition will go on for her benefit. Then the question arises, on what terms? On the whole, I think that those who make the mistake must pay for it. A week will be given to make the amendment on the consent of Ada Dearle being obtained, and the appellants must pay the cost of the appeal and the costs of the amendment. THE MASTER OF THE ROLLS (BRETT): The only question here is whether the petitioning creditor, as described in the petition, was a proper one. Before the year 1869 there was this rule in bankruptcy, and it had become the established rule, that a bare trustee could not be the petitioning creditor without joining the cestui que trust. The reason for the rule remained over after the Bankruptcy Act, 1869, and the reason remains over after the Bankruptcy Act, 1883, as it did before. The new Act has not said one word either to affirm or negative who shall be the petitioning creditor. There is moreover this stronger fact that the new Act was passed after the decision of Ex parte Culley, In re Adams, and if the legislature wished to alter it, it might have done so. The argument has been put forward that the creditor in section 5 must be the same creditor as that men tioned in section 4, sub-section 1 (g). It does not follow. Any creditor can petition on the act of bankruptcy. With regard to the question of amendment I entirely agree with what the Lord Chief Justice has said. LINDLEY, L. J.: years The rule has been inflexible for something like the last 100 that the trustee must join the cestui que trust in the petition. The reason was the protection of the bankrupt. The point was considered and confirmed in Ex parte Culley, In re Adams, and I am of opinion that the rule still remains. I am also of opinion that any creditor may petition after the act of bankruptcy. If after the act of bankruptcy in this case another creditor had presented a petition, would the old rule have applied? Certainly it would. I think that the decision of the Registrar was right, but that we ought to give leave to amend, the appellant paying the costs. Solicitors J. G. Dearle for the appellant. Ben Davis for the respondent. 1884. IN RE EX PARTE IN RE PAGE, EX PARTE THE TRUSTEE. Bankruptcy Act, 1883, Section 55, Sub-section (4)—Disclaimer—Personal Liability of Trustee for Rent. BEFORE MR. JUSTICE CAVE. 1884. Where notice had been served on the trustee requiring him to decide December 15. ̊ whether he would disclaim or not within twenty-eight days, in accordance with the terms of section 55, sub-section (4), of the Bankruptcy Act, 1883, and the trustee did not within that time signify his intention as required, leave to disclaim given only on condition of payment of a month's rent to the landlord, such rent, together with the costs of the landlord, to be paid by the trustee personally. THIS was an application on behalf of the trustee in the bank ruptcy for leave to disclaim the lease of certain premises situate at 263, Pentonville Road. Section 55, sub-section (4), of the Bankruptcy Act, 1883, provides that "The trustee shall not be entitled to disclaim any 1884. EX PARTE THE TRUSTEE. property in pursuance of this section in any case where an IN RE PAGE, 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." Judgment. F. C. Willis, for the trustee, asked leave to disclaim. Herbert Reed for the landlord : The trustee was appointed on October 11th. On November 5th notice was served on him by us requiring him to decide whether he would disclaim or not. The trustee, however, never communicated with the landlord, and he never disclaimed. The twentyeight days allotted by section 55, sub-section (4), expired on December 3rd. Notice of motion was not even given until December 6th. Under these circumstances I submit that if the trustee now applies for an extension of time for leave to disclaim it ought only to be upon terms. I submit that he should, at any rate, be directed to pay rent from the expiration of the twentyeight days. CAVE, J.: The trustee may have leave to disclaim within a week, on payment of a month's rent. F. C. Willis: I presume the rent will be paid out of the estate? CAVE, J.: No. The trustee has been altogether negligent, and must pay the month's rent, and also the costs of the landlord, personally, and not out of the estate. Solicitors: Jackson & Evans for the trustee. Yeo & Co. for the landlord. DIGEST OF CASES REPORTED IN THIS VOLUME. ACT OF BANKRUPTCY.]—(1) Held: 1. That where a debtor had committed an act of bankruptcy under the Bankruptcy Act, 1869, and no proceedings in bankruptcy had been taken against him prior to January 1st, 1884, when the Bankruptcy Act, 1883, came into operation, proceedings in bankruptcy under the Bankruptcy Act, 1883, might be taken against such debtor founded on the act of bankruptcy previously committed. 2. That where proceedings in liquidation were pending on January 1st, 1884, which afterwards came to an end, proceedings to obtain an adjudication against a debtor founded on the act of bankruptcy committed by him by filing the liquidation petition might be taken under the Bankruptcy Act, 1883. In re Pratt, Ex parte Pratt p. 27 (2) A notice given by a debtor under sect. 4, sub-s. 1 (h), that he has suspended, or that he is about to suspend, payment of his debts, need not, in order to constitute an act of bankruptcy, be necessarily given in writing. In re Walker & Son, Ex parte Nickoll & Knight Compare also In re Friedlander, Ex parte Oastler & Co. p. 188 p. 207 (3) Held: 1. That where a verbal statement was made by a debtor to one of his creditors that he was unable to pay his debts in full, such statement did not amount to a notice by the debtor “that he has suspended, or that he is about to suspend, payment of his debts," so as to constitute an act of bankruptcy under sect. 4, sub-s. 1 (h), of the Bankruptcy Act, 1883. 2. That although such notice need not, in order to constitute an act of bankruptcy, be necessarily given in writing, still if it is given verbally it must be a formal notice, and given with the intention of giving such notice. In re Friedlander, Ex parte Oastler & Co. p. 207 Compare also In re Walker & Son, Ex parte Nickoll & Knight p. 188 (4) Held: That where a deed of assignment of the whole of their property executed by the debtors for the benefit of their creditors generally contained a provision for the payment out of the assets in the first instance of the costs and expenses of the trustee under the said deed of assignment, such trustee was not entitled (on the debtors being adjudged bankrupt upon a petition founded on the deed as an act of bankruptcy) to retain as against the trustee in the bankruptcy assets in his hands, on the ground that a sum exceeding the said assets was due to him for work and labour done. In re J. and H. Richards, Ex parte The Official Receiver p. 242 (5) Held: 1. That where a debtor has assigned the whole of his property to a trustee for the benefit of his creditors generally, and such trustee has taken possession of the property and carried on the debtor's business, in the event of the debtor subsequently being adjudged bankrupt on a petition founded on the act of bankruptcy committed by the execution of the deed of assignment, the trustee in the bankruptcy must elect to treat the trustee under the deed either M.B. U |