Choice. self as signee. One creditor, if his debt be sufficiently large, may elect As to cre- himself assignee of the bankrupt's estate, within the meanditor elect- ing of the statute, which directs that the choice shall be ing himmade by the major part in value of the creditors. And the proof of such a creditor is not to be rejected, because he has interests or claims inimical to the general creditors, and may, by virtue of such proof, elect himself to be assignee. But if a person of the latter description do elect himself as the Lord Chancellor would, upon an immediate application, remove him- (1) the commissioners may now also, under such circumstances, equally reject him. In some cases of this kind, where a length of time has been suffered to elapse before the application for the removal or where transactions of importance have taken place under the commission, which may be affected by removing such an assignee, the Lord Chancellor has appointed another person to be a co-assignee, or as agent, or inspector, solely for the purpose of investigating and contesting the claims of the assignee so self-elected. (2) In one case, indeed, before Lord Hardwicke, where an assignee died, leaving the bankrupt his sole representative, who thereupon chose himself (the debt being sufficiently large) to be assignee of his own estate, it was held, that such choice was valid. (3) Bankrupt But in a late case, where the majority of the creditors cannot be chose the bankrupt to be assignee, Lord Eldon held, that whether a bankrupt was certificated, or not, there was too much inconvenience in it, to permit him to be assignee of his own estate. (4) assignee of his own estate. When creditors may prove, in order to vote. If a creditor will make oath of a certain sum being due to him—as his account may be afterwards fully investigated — he ought to be permitted to prove to that amount, for the purpose of choosing assignees, unless there appear to the commissioners to be any reasonable objection to the fairness (1) Ex parte Martell, 1 Rose, 328. (2) Ibid. Ex parte De Tastet, ibid. 324. 1 Ves. & B. 280.; and see ex parte Bazarro, 1 Rose, 266. Ex parte Miles, 2 Rose, 68. 5 V. (3) Cooper's case, Green, 260. 221. of the debt, in which case they should only suffer him to Choice. claim, till he makes out his demand to their satisfaction. (1) And a creditor, holding a security for part of his debt, may, if he is desirous of voting in the choice of assignees, petition to have a value put upon the security, and prove for the difference before the security is sold. (2) But an application of this nature will depend upon its special circumstances, of which the general benefit of the creditors, and the amount of the applicant's debt, are two of the most material. (3) A Corporation vote in the choice of assignees, by a spe- Corporcial power of attorney under their common seal. (4) ation. has no A Receiver appointed by the Court of Chancery to prove A receiver and receive dividends does not, in consequence of that ap-right to pointment, possess the power of voting in the choice of vote. assignees (5); for the order admitting him to prove is not declaratory of an anterior right, but originates his title; and if the order does not pronounce that he had an antecedent right to prove, he cannot have any right to vote. (6) tion for The choice of assignees is subject to the most unqualified Grounds control of the Lord Chancellor (7), and he will always of applicadirect a new choice, when they have been improperly a new elected. But it is not a sufficient ground to apply for a choice. new choice, merely because creditors were abroad, or were prevented by accident from voting, or have given a defective power of attorney to another person to vote. (8) For if that practice were to prevail, the choice might be postponed to a great length of time, which would be inconsistent with the general provisions of the Bankrupt laws. (9) But if creditors are kept back by fraud, then the Court will attend to such an application. (10) Nor is it a suf Choice. Where one of several as signees rejected, choice set aside al ficient ground to apply for a new choice, that two or three creditors were excluded by the judgment of the commissioners, who, if they had been allowed to prove their debts, might have turned the choice; unless, indeed, they were excluded by some improper conduct or fraud practised upon the (1) commissioners. But, where the commissioners improperly rejected the proof of a debt to a very large amount, whereby two creditors for comparatively trifling sums were enabled to choose the assignees, a new choice was directed, upon condition that the petitioner indemnified the estate against all the costs. (2) And where, through the error of the commissioners, the great body of the creditors is excluded, the Lord Chancellor, in this case, will permit them to have the opportunity of voting, and will direct a new (3) choice. Such an application, however, should be made as soon as possible after the rejection of the proofs; for the Court will not interfere, where the applicant has been guilty of delay. (4) Where, upon a choice of three persons to act jointly as assignees, the Court rejects the nomination of one of them, it will set aside the choice altogether; as it cannot be collected, from such joint nomination of the three, whether it was the intention of the creditors to entrust the adtogether. ministration of the bankrupt's affairs to two only of the three (5), if one should be rejected. But in another case, where one of three assignees refused to act, and the estate would have derived no advantage from the choice of another in his room, the Vice-Chancellor did not think a new choice to be necessary. (6) Whether bankrupt In the case of Ex parte Shaw, the right of the bankrupt to canvass among the creditors for particular assignees was much discussed; and the Vice-Chancellor was of opinion, particular that the choice should, on that ground alone, be set aside. assignees. may canvass for (1) Ex parte Durent, Buck. 201. Ex parte Mathieson, ibid. 202. (note.) Ex parte Hawkins, Buck. 520. (2) Ex parte Edwards, Buck. (3) Ex parte Hawkins, supra. The Lord Chancellor, upon appeal, did not go into this Choice. question, but avoided the election on different grounds; observing, however, that there was great difficulty in determining, what degree of interposition on the part of the bankrupt would render the choice null and void; for that, in some cases, the advice and solicitation of the bankrupt might not be (1) improper. prove Joint creditors are, by the 62d section of the new act, Joint creentitled to prove under a separate commission, for the ditors may purpose of voting in the choice of assignees, and of as- under a senting to, or dissenting from, the certificate. (2) But separate commisthere is no provision enabling separate creditors to prove sion, for for this purpose under a joint commission. The law as to the purthem, therefore, stands as it was before, which prevents voting. them from voting in the choice of assignees under a joint commission. (3) Upon some occasions, indeed, if the interest of the separate creditors require it, an order will be made, that an inspector shall be appointed for the separate estates, as a check upon the proceedings of the assignees. (4) pose of should be As soon as the assignees are finally appointed, a proper Assignassignment should be executed to them by the commis- ment sioners of all the bankrupt's estate and effects (5), which entered of should be entered of record at the bankrupt office, as well record. as the commission and the adjudication of bankruptcy, pursuant to the requisitions of the 96th section of the statute; otherwise, none of these documents are now receivable in evidence in any court of law or equity. (1) 1 G. & J. 152. (2) Before the new statute they were not so entitled, (Ex parte Simpson, 2 Rose, 338.) unless there were no separate creditors qualified to vote. Ex parte Jones, 18 Ves. 283. Ex parte Taylor, ibid. 284. Ex parte Laycock, 1 Rose,32. (3) Ex parte Parr, 18 Ves. 65° 1 Rose, 76. Ex parte Hamer, ibid. 321. Ex parte Jepson, 19 Ves. 224. (4) Ex parte Batson, 1 G. & J. 269. (5) For the Form see Vol. II. Assignees have no interest before assignment. to take property of doubt SECTION III. Of the Interest which Assignees take under the Assignment. The assignees (when duly chosen, and an assignment is made to them by the commissioners) stand in the same situation, both with respect to legal and equitable interests, as the bankrupt himself; and are entitled absolutely to all property of whatever description, which the bankrupt was entitled to for his own benefit, either in possession, reversion, remainder, or expectancy. (1) But the bankrupt is not actually divested of his property, neither does any property whatever pass to the assignees, before the assignment is Not bound actually executed to them by the (2) commissioners. Nor does any property, the value of which is of a doubtful nature, and in regard to which it is uncertain, whether it ful value. will be a profit or a burthen to the estate, absolutely vest in the assignees, before they have done some act to manifest their acceptance (3) of it. For they are not bound to take all the property of the bankrupt- but only such as they may consider will prove beneficial to the creditors, having power to reject all that may be included under, what Lord Kenyon termed, a damnosa hæreditas. (4) They have an election, therefore, whether they will take such property, or not; but they must make their election promptly; and when they have once elected, they cannot afterwards renounce the property. (5) Trust property does not pass. But TRUST property of no description passes in any way to the assignees, if it can be distinguished from the general (1) Tyrrell v. Hope, 2 Atk. 562. Rushworth v. Hodson, 2 Show. 103. Pope v. Onslow, 2 Vern. 286. Anderson v. Mottley, 2 Ves. 255. Ex parte Herbert, 13 Ves. 188. (2) 2 Co. Rep. 26 a. Warner v. Barber, 2 Moore, 71. 8 Taunt. 176. (3) Copeland v. Stephens, 1 B. & A. 593.; and see post," Assignment of Personal Property," and "Leases." (4) Bourdillon v. Dalton, 1 Esp. 235. Peake, 238. Brome v. Robinson, cit. 7 East, 329. (5) Per Lord Ellenborough, 1B. & A. 307. Hanson v Stevenson. |