Er parte (L. R. 9 Ch. 609), followed and extended. Simmonds, Ex parte, Carnac, In re, 55 L. J., Q. B. 74; 16 Q. B. D. 308; 54 L. T. 439; 31 W. R. 421-C. A.

On the 23rd of February the execution creditor, upon the authority of a decision of the Court of Appeal, which was afterwards reversed, paid the proceeds of the sale to the trustee under the bankruptcy :-Held, that though this was a voluntary payment made under a mistake of law, yet the trustee, being an officer of the Court, was bound to repay the money to the person properly entitled to it. James, Ex parte, Condon, In re, 43 L. J., Bk. 107; 30 L. T. 773; 22 W. R. 937.

ment mentioned in the 4th schedule" of the Act of 1883. Chudley, In re (14 Q. B. D. 402), explained. Cornish,. In re, Board of Trade, Ex parte, 65 L. J., Q. B. 106; [1896] 1 Q. B. 99; 73 L. T. 602; 44 W. R. 161; 3 Manson, 48-C. A.

Trustee Act, 1888, s. 8.]-The provisions of section 8 of the Trustee Act, 1888, have no application to a trustee under a liquidation. Ib.

After Removal-Scheme of Arrangement.]— The Board of Trade has power to require a trustee appointed under a scheme of arrange ment to transmit a verified account of all his receipts and payments, even though such trustee may have been removed from office; and, in case of refusal, the court will make an order against such trustee to enforce compliance with the requirements of the Board of Trade. Board Trade, Ex parte, Rogers, In re, 35 W. R. 457,;

Order to pay over Funds.]-Upon an application on behalf of the Board of Trade, an order was made under s. 162 of the Bankruptcy Act, 1883, directing the trustees of an estate to pay over certain undistributed funds and dividends into the Bank of England. Board of Trade, Ex parte, Pearce, In re, 1 Morrell, 56.

Directions.]-Under s. 20 of the Bankruptcy Act, 1869, a trustee in bankruptcy is entitled to apply to the court for directions in relation to any particular matter arising under the bank-of ruptcy, as to which the creditors have already, | 4 Morrell, 67. by resolution at a general meeting, given him directions, and the court has power for just cause shown to direct the trustee to disregard the directions of the creditors and to act contrary to them. In such a case the court ought not to ender the resolution to be vacated or to declare it void, but simply to direct the trustee to disregard it. Even though there be no fraud in the passing of a resolution giving the trustee directions as to the administration of the estate, yet, if the majority of the creditors have voted, not simply with the view of administering the estate in the best way for the benefit of all the creditors, but with the view of favouring the debtor or persons whom he is alleged to have fraudulently preferred, the court ought to direct the trustee to disregard the resolution. Sect. 20 is to be construed with reference to s. 14. Cocks, Ex parte, Poole, In re, 52 L. J., Ch. 63; 21 Ch. D. 397; 47 L. T. 496; 31 W. R. 105—C. A.

To Prepare for Public Examination.]-It is the duty of a trustee, prior to the public examination of the bankrupt, to examine into the accounts, and require the production of his books and all such information as may be necessary for the explanation of his affairs. Lawrence, In re,

2 L. T. 246.

Order for Account-Non-compliance.]-When the Board of Trade applies to the court under s. 102, sub-s. 5 of the Bankruptcy Act, 1883, to enforce an order made by the Board under s. 162, sub-s. 2, against a trustee to submit to them an account of receipts and expenditure, the court will in the first instance make an order that the trustee obey the order of the Board of Trade, but will not add to that order a conditional order for the committal of such trustee. Board of Trade, Ex parte, Margetts, In re, 32 W. R. 1002; 1 Morrell, 211.

No Evidence of Money in Trustee's hands.]-The fact that there is no evidence of any moneys remaining in the hands of a trustee who is ordered by the Board of Trade to furnish an account under s. 162 of the Bankruptcy Act, 1883, will not justify such trustee in refusing to comply with the reAfter Discharge.]-A trustee under the Bank-quirements of the order so made. Where, thereruptcy Act, 1869, who has obtained his statutory release and discharge under that Act, after the 25th of August, 1883 (the date of the passing of the Bankruptcy Act, 1883), is not thereby reFeved from rendering an account to the Board of Trade of his receipts and payments as such trustee, if, on that date, he had in his hands any Endistributed funds, although such funds may have been disposed of by a subsequent resolution of the creditors. Board of Trade, Ex parte, Chudley, In re, 14 Q. B. D. 402; 33 W. R. 708; 2 Morrell, 8.

fore, a scheme of arrangement under a liquidation petition was accepted by the creditors by which 208. in the pound was paid, and the debtor obtained his discharge, but the trustee after his release was required by the Board of Trade to furnish a proper account :-Held, that the Board of Trade was entitled to demand that an account should be rendered, and that the trustee must comply with the order. Board of Trade, Ex parte, Calderwood, In re, 6 Morrell, 104.

Unclaimed Funds or Dividends.]-By s. 162 sub-s. 2 (a),of the Bankruptcy Act, 1883, where, Order Directing Accounts-Unclaimed Funds.] after the passing of this Act, any unclaimed or -The fact that the trustee of an estate in liqui- undistributed funds or dividends in the hands of dation under a former Bankruptcy Act has not any trustee empowered to collect, receive, or had in his hands as trustee any funds on behalf distribute any funds or dividends under any Act of the estate since the passing of the Bankruptcy of Parliament mentioned in the fourth schedule, Act. 1883, will not exempt him from being called or any petition, resolution, deed, or other proceedtpen to return an account to the Board of Trade ing under or in pursuance of such Act, have reunder s. 162, sub-s. 2 (b), provided he comes mained or remain unclaimed or undistributed for under the description of a trustee or other per-six months after the same became claimable or son empowered to collect, receive, or distribute distributable, or in any other case for two years any funds or dividends under any Act of Parlia- | after the receipt thereof by such trustee, it shall

Application to Commit.] having failed to pay certain moneys in respect of the estate into the Bankruptcy Estates Account, or to comply with an order of the Board of trade forthwith to pay over such moneys, the Board of Trade applied for an order to commit :-Held, that an immediate order for committal must be made, but that the order should lie in the office for a week in order that the trustee might have opportunity within that time to pay over the said moneys. Board of Trade, Ex parte, Nicholson, In re, 37 W. R. 239; 5 Morrell, 278.

Subsequent Bankruptcy of Trustee.] -An order having been made against a trustee to pay into the bankruptcy estates account a sum found due from him to an estate, an application for his committal was made. It appeared that he had been adjudicated bankrupt between the date of the order and of the application-Held, that the court would not make a committal order unless it was proved that the trustee wilfully disobeyed its order or that he had improperly disposed of the money. Board of Trade, Ex parte, Culderwood, In re, 8 Morrell, 135.

by any subsequent resolution. If the terms of the first resolution apply to past and future matters the committee of its own motion cannot interfere with the amount then agreed to, but the proper course is for the committee to come to the court and ask it to set aside the resolution. Board of Trade, Ex parte, Marsden, In re, 9 Morrell, 70.

VII. RELEASE.

Charges of Trustee-Power to Tax in Compo- | neration which is to apply only to past matters, sition under s. 28 of Bankruptcy Act, 1869. the committee has no power to alter the terms The creditors of a liquidating debtor resolved on a liquidation by arrangement, and appointed a trustee and a committee of inspection, and they resolved that the remuneration of the trustee should be such as the committee of inspection should from time to time determine. Afterwards the creditors authorised the trustee to accept an offer made by the debtor, under s. 28 of the Bankruptcy Act, 1869, to pay a composition, he also paying the costs, charges, and expenses of the solicitors, receiver, and trustee in relation to the settlement of his affairs and Jurisdiction of Court over Trustee after Reof the scheme of arrangement. The arrangelease. The trustee of a liquidating debtor sold ment was approved by the court-Held, that the whole estate for a sum equal to 78. 6d. in after the confirmation of this scheme the court the pound upon the amount of the provable had jurisdiction to tax the trustee's charges, not- debts, to be paid in three instalments, on the withstanding that his account had been audited 23rd of April, the 23rd of June, and the 23rd of and approved by the committee of inspection August. On the 23rd of April the creditors sequently to the confirmation of the compo-esolved that the debtor should have his dison arrangement. Ranby, Er parte, Ranby, charge as from the 30th of April, subject to a In re, 14 Ch. D. 467; 43 L. T. 11; 28 W. R. 804 certificate by the trustee that the first instalment of the purchase-money had been paid, and had been delivered to him, and that the close that promissory notes for the other instalments of the liquidation should take place, and the trustee be released on and from the 23rd of October:-Held, that, notwithstanding the release of the trustee, the court had jurisdiction to order him to pay a dividend to a creditor. L. J., Bk. 124; 3 Ch. D. 115; 34 L. T. 665. Prager, In re, Societe Cockrill, Ex parte, 45

-C. A.

Disallowance of Remuneration voted by Creditors.—When the comptroller has reported to the court that a trustee has failed to perform the duties imposed on him by the act and the les, the court has power to disallow the trustee by the creditors. Lister, In re, Simmons, Er parte, 45 L. J., Bk. 113; 2 Ch. D. 749; 34 L. T.

the remuneration which has been voted to him

744.

Solicitor Professional Charges.]-Secon 73, sub-s. 2 of the Bankruptcy Act, 1883, does not enable a trustee, who is a solicitor, to contract that his remuneration shall be his proper professional charges for the work done, but is governed by s. 72, sub-s. 1, which declares that a trustee's remuneration shall be in the nature of a commission or percentage. Official Receiver, Er parte, Wayman, In re, 59 L. J., Q. B. 28; 24 Q. B. D. 68; 61 L. T. 644; 38 W. R. 95; 6 Morrell, 272.

Amount fixed by Committee of InspectionJurisdiction of Board of Trade to alter Amount fixed. Where the amount of the remuneration of the trustee of a bankrupt has, under s. 72, sub-s, 1 of the Bankruptcy Act, 1883, been fixed by the committee of inspection, the Board of Trade has, under sub-s. 2, the same power of reviewing the decision of the committee as if the amount had been fixed by an ordinary resolution of the creditors. Harris, Er parte, Gallard, In re, 61 L. J., Q. B. 425 ; [1892] 1 Q. B. 532; 66 L. T. 452; 40 W. R. 385; 9 Morrell, 52-C. A. Where the remuneration of the trustee has been fixed by resolution of the committee of inspection, the duty of the Board of Trade in exercising the powers conferred upon it by s. 72, Fabs. 2 of the Bankruptcy Act, 1883, ought to le performed with great care and upon such fxel principles that persons who fill the office of trustee may be assured that the supervision rantained by the Board of Trade over their acts will in no case cause injustice, so that such e may be undertaken willingly by persons of the highest integrity and experience in the sation of bankrupt estates. Board of Trade, Er parte, Shirley, In re, 9 Morrell, 147.

Where a committee of inspection passes a resoIn as to the amount of the trustee's remu

After the release of a trustee in liquidation, the Court of Bankruptcy has no jurisdiction to order the trustee to pay rent due to the landlord of leasehold property occupied by the trustee during the liquidation. Carter, Ex parte, Ware, In re, 8 Ch. D. 731; 39 L. T. 185; 27 W. R. 106.

VIII. ACCOUNTS.

Right of Bankrupt.]-An uncertificated bankrupt cannot petition that his assignees may be ordered to account, without alleging that his estate will produce a surplus after paying 208. in the pound. Ryley, Ex parte, 4 Deac. & C. 50.

The bankrupt, or those claiming under him, are not bound by the account taken by the commissioners from the assignees. It is generally taken behind his back. Therefore, plaintiff must have liberty to surcharge and falsify this account before the Master. Montgomery v. Montgomery, 2 Moll. 446.

Bankrupt pending commission, has a right to an inspection in respect of surplus, and court will take care at the close of it he shall have justice. But in this case bankrupt was not permitted to surcharge and falsify in Master's office the accounts settled by commissioners long ago, though palpable errors specifically pointed out by short petition would be rectified. Twogood v. Swanston, 6 Ves. 485.

A certificated bankrupt is entitled to an account against the assignees upon showing only a probability of a surplus. The statement in the petition here was, that there would be enough, if properly got in, to pay 20s. in the pound. Malachy, Ex parte and In re, 1 Mont. D. & D. 353; 10 L., J. Bk. 7; 4 Jur. 1092.

In general an uncertificated bankrupt cannot file a bill against his assignees for an account of their dealings under the bankruptcy, nor can the bankrupt obtain this relief indirectly, by charg

ing fraud and collusion between the assignees a loss occasioned by their joint act; and the and a third party; where the bill states no objection, that the defendants acted only specific acts of fraud on the part of the assignees, conformity upon the representation and advic and prays no relief against them on the ground of the plaintiff, will not prevail. Lingard of fraud. Tarleton v. Hornby, 1 Y. & C. 172. Bromley, 1 V. & B. 114; 2 Rose, 118; 12 R. R When a trustee has been appointed under the 195. 279th of the Bankruptcy Rules, 1870, for receipt Neglect to Account-Committal.]-The mere and distribution of a composition, and after all the creditors have been paid a balance remains fact that a trustee in bankruptcy has within fourt in the trustee's hands, the Court of Bankruptcy days after his resignation or removal from office has jurisdiction to take an account as between neglected to render the accounts prescribed by the trustee and the debtor in order to ascertain General Rule 126 of the Act of 1869, is not the amount of the surplus, and to order the sur-sufficient ground for his committal to prison by plus so ascertained to be paid over by the trustee to the debtor. Carew, Ex parte and In re, 44 L. J., Bk. 67; L. R. 10 Ch. 308; 32 L. T. 318;

23 W. R. 459.

Just Allowances.]-An assignee is entitled to his travelling expenses incurred by him subsequent to the choice of assignees. Lovegrove, Ex parte, Cooper, In re, 3 Deac. & C. 763; 2 Mont. & Ayr. 4.

the Court of Bankruptcy, as for a contempt. T warrant such committal there must be com evidence that he has after notice from the cour wilfully failed to perform the duties imposed apar him by the rule. Pookes Royal. In re, a Royle, In re, 50 L. J., Q. B. 656; 7 Q. B. D. 9 44 L. T. 314.

See also D. V.

IX. COSTS.

Assignees are entitled to the expenses of journeys solely and properly undertaken for the Liability to pay.] If a trustee mak benefit of the estate. Joyner, Ex parte, 2 Mont. an unsuccessful application to the court, he wil & Ayr. 1. Overruling Elsee, Ex parte, 1 Mont. 1. in the absence of special circumstances, I Assignees, being accountants, not permitted to ordered to pay the costs; and if the estate charge the estate for business done as account-insufficient for payment of the costs, the truste ants. Read, Ex parte, 1 Glyn & J. 77.

The assignees are not entitled to be allowed, in their accounts, the expense of a meeting of creditors which they had called to consider what they should have determined on themselves, nor the tavern expenses of the bidders at a sale of the bankrupt's property. Molineux, Ex parte, Dennis, In re, 2 Deac. 33; 3 Mont. & Ayr. 721. Law charges incurred by petitioning creditor, of which assignees afterwards have the benefit, may be allowed the assignees as just allowances. Christy, Ex parte, Barrow, In re, 3 Mont. & Ayr. 90: 2 Deac. 115; 6 L. J., Bk. 68.

The costs of double sittings will not be allowed in public meetings. Chisholm & Woolsey, In re, 1 Fonb. (N.R.) 50.

Trustees under an assignment for benefit of creditors employ an agent to proceed to America to recover part of the assigned property. Afterwards the debtors become bankrupt, and three of the trustees are appointed assignees :- Held, that under the circumstances of the case the assignees ought to be allowed in their accounts the expense of employing the agent. For the purpose of bringing expenses within the description of just allowances, it is not necessary to show that they have actually benefited the estate, if there was a fair probability of their so doing. Shaw, Ex parte, Robbins, In re, 1 De G. 242.

An assignee, who had acted as solicitor to the fiat, was allowed to charge for his clerk's time employed in the business of the bankruptcy, as costs out of pocket, but not any profit thereupon. Newton, Ex parte and In re, 5 De G. & S. 584; 18 L. J., Bk. 1; 13 Jur. 94.

Contribution.]-A messenger sues the assignees for his costs and expenses, and obtains a judgment against them; and one of them pays the debt and costs under the judgment; he has a right of action for contribution against his coassignee, and is not bound to show that any funds came into his hands from the bankrupt's estate. Hart v. Biggs, Holt, 245.

Contribution is enforced among assignees, to reimburse a payment of one under an order, for

must bear them personally. Angerstein. E
parte, Angerstein, În re, 43 L. J., Bk. 131 ; L.
9 Ch. 479; 30 L. T. 446; 22 W. R. 581.

A trustee in bankruptcy can be made pers ally liable for the costs of a suit to which he is party, subject to the Court of Bankruptcy allo ing him to recoup himself out of the bankra estate, if his conduct has been bonâ fide. P v. La Fontaine, 50 L. J., P. C. 8; 6 App. C 482; 43 L. T. 519-P. C.

The sole defendant becoming bankrupt. 1 trustees were added as defendants, and an era made that the action proceed against the truste The trustees did not move to discharge the cr and on the hearing appeared and cross-examin the plaintiff's witnesses:-Held, that they we liable to the costs of the action, but the accu of profits was limited to an account of the pr received by the bankrupt. Watson v. Hollid 52 L. J., Ch. 543; 48 L. T. 545; 31 W. R. 536 C. A. Affirming, 20 Ch. D. 70.

Assignees who are brought before the court a supplemental bill may be made liable to costs of the whole suit. Whitcombe v. Minch 5 Madd. 91.

Assignees were made to pay the costs of a tr of an issue directed to try the validity of commission, they being the plaintiffs, and bankrupt the defendant; but they were made to pay the costs of the petition to supers the commission. Edwards, Ex parte, Buck 2

Where one of two assignees refuses to join in action, or suffer his name to be used, the costs the application to enable the other assignee sue alone will not be given against the ass 7 who refuses, unless the other had previo offered to indemnify him. Broadbent, Er p Crofts, In re, 7 L. J., Bk. 22.

If the assignees continue to defend a s instituted against the bankrupt which is dec. in favour of the plaintiff with costs, and th have no assets, they are not personally s unless they vexatiously continued the defen Gibson, Ex parte, Phillips, In re, 1 Mont. & A 479; 3 L. J., Bk. 72. S. P., Kindersley Cas In re, 1 Mont. & Ayr. 479, n.

Where an assignee, having paid a dividend in | 3 Morrell, 202-C. A. See Edmunds, Ex parte, his own wrong, compels the proper party to Green, In re, 53 L. T. 967. petition the court, he will be ordered to pay the costs personally, and not be permitted to retain them out of the estate. Jackson, Ex parte, Mandy. In re, 11 L. J., Bk. 17.

Before the Act of 1869 assignees might in a proper case be ordered to pay costs personally, and not be allowed them out of the bankrupt's estate, notwithstanding they acted pursuant to a resolution of creditors. Watts, Ex parte, Atticater, In re, 3 De G. J. & S. 394.

The official and creditors' assignees of a legatee and executor who became bankrupt claimed from the testator's estate a sum of 3501., and refused to concur in a sale unless paid that sum. In consequence of their refusal, a bill was filed by the co-executor to administer the assets, and it appearing that nothing remained due in respect of the bankrupt's share, the court ordered the signees to pay the costs of the suit. Pattison Graham, 2 Sm. & G. 207.

Semble, where reasonable evidence of the state of accounts in which a bankrupt is interested is tendered to his assignees they are not entitled insist on a judicial decision on their claims. Ib. Trust funds stood in the bank books in the me of a bankrupt and another as trustees. The assignees made no claim to them, but resed to sign a paper stating so, and which was ecessary, by the rules of the bank, to obtain a ransfer into the names of a new trustee :-Held, hat such conduct was unjustifiable, and that the signees ought to pay the costs occasioned. Primrose, In re, 23 Beav. 590.

A trustee in bankruptcy has a right to initiate Toceedings and obtain payment of his costs out the assets of the estate if such proceedings are per and necessary, but if he acts recklessly in mencing litigation and bringing matters beore the court in cases in which by proper anagement litigation might have been avoided, he costs of such proceedings will not be allowed at of the estate, but the trustee will have to ay them himself. Gordon, Ex parte, Bryant, Ire, 6 Morrell, 262.

Of Appeals.] Where, in a case of legal culty, a trustee in a bankruptcy has obtained the decision of the court, and he appeals from decision unsuccessfully, the order for costs ll be made against him personally. James, E parte, Malden, In re, 55 L. T. 708; 3 Morrell,

185.

Where the county court had refused to approve of resolutions for a scheme of settlement under 825 of the Bankruptcy Act, 1869, and the trustee appealed to the chief judge, who reversed the erler, and the Court of Appeal finally restored the order of the county court judge, the trustee Vas allowed the costs of his application to the County court judge out of the assets, if any, but Was ordered to pay the costs of the appeals to the chief judge and to the Court of Appeal. Strawbridge, Ex parte, Hickman, In re, 53 L. J., 1.323; 25 Ch. D. 266; 49 L. T. 638; 32 W. R. 173-C. A.

Adoption of Bankrupt's Defence.]—An interlocutory order for an injunction and receiver having been made against the defendants in an action, they gave notice of appeal, and shortly afterwards became bankrupt. An order was made for carrying on the proceedings against their trustee. The trustee gave notice to the plaintiff that he should not proceed with the appeal. Shortly after this the trustee entered an appearance and demanded a statement of claim. He declined to undertake to pay the costs of the appeal incurred by the plaintiff before the notice that the appeal would not be proceeded with, and the appeal came on that the question as to the costs might be decided :Held, that the appeal must be dismissed with costs to be paid by the trustee, for that having adopted the defence of the bankrupts he had placed himself in their position as to the whole of the action, and could not reject part of the proceedings in it. Borneman v. Wilson, 54 L. J., Ch. 631; 28 Ch. D. 53; 51 L. T. 728; 33 W. R. 141-C. A.

Of Petition-Refusal to pay to Debtor's Solicitor-Fraudulent Preference.]-A trustee in bankruptcy cannot refuse to pay out of the estate the taxed costs of the solicitor appearing for the debtor on the filing of his own petition, by reason of the fact that certain payments have been made by the debtor to such solicitor shortly before the bankruptcy, which the trustee is of opinion amount to a fraudulent preference; but in such case the trustee must pay the taxed costs of the solicitor and move the court to set aside the previous payments. Raphael, Ex parte, Coster, In re, 39 W. R. 190 ; 7 Morrell, 284.

Allowance of, to Trustees Committal on Non-payment.]-A trustee in liquidation was ordered to pay the taxed costs of the solicitor and the costs of the motion upon which the order was made. On default, he was committed to prison for his contempt of court in disobeying the order :-Held, that the order of committal was wrong, for that the costs of the motion could not be said to be moneys in his hands as a trustee within s. 4, sub-s. 3 of the Debtors Act, 1869. Sharp, Ex parte, Hind, In re, 37 L. T. 168.

The Court of Bankruptcy had authority, independently of s. 153 of the Act of 1849, to allow the assignees in their accounts the costs of an unsuccessful action brought by them, although not one which the bankrupt but for his bankruptcy could have brought; and creditors Rejection of Proof.]-The court, in reversing who did not object to an order sanctioning an the decision of the trustee in a bankruptcy, re-action until after the result was ascertained jecting a proof, ordered him to pay the costs personally, being of opinion that he had acted reasonably and improperly in rejecting it. Broca, Ex parte, Smith, In re, 17 Q. B. D. 488;

could not be heard to object that the action should not have been sanctioned. Edmondson, Ex parte, Thomson, In re, 4 De G. F. & J. 486; 31 L. J., Bk. 32; 6 L. T. 234.