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![handle is hein.slavery/ssactsengr0882 and id is 1 raw text is: THE EMPEROR OF AUSTRIA V. DAY
of the existing Bankrupt Act, when any person shall have been adjudged a bankrupt,
all his estate and effects, present and future, become absolutely vested in the assignees
for the time being. Nothing can be more clear than this. Nothing, therefore, can
be more clear than that the state of things upon which the whole decision in Copeland
v. Stephens proceeded, viz., that nothing vested until the power was exercised, is no
longer applicable to the right of those who claim by assignment under assignees in
bankruptcy.
[627] It is very true that, under the 145th section, the Legislature deals with
the right of election on the part of the assignees in bankruptcy. But Lord Ellen-
borough treated as settled law what Lord Kenyon had previously laid down that the
assignees in bankruptcy are not bound to take a damnosa heereditas. Their right is
to be exercised with a view to the benefit of the creditors. Therefore, the 145th
section of the Bankrupt Act gives to those assignees who have vested in them all the
property of the bankrupt the right to renounce and give up the legal interest which
they shall think it not for the benefit of the creditors to take ; and, in order to secure
to those to whom it is of importance that the election may be made in due time, the
latter part of the 145th section provides that, if the assignees should not elect
whether they will accept, any person entitled to the rents of the leasehold property,
or any person claiming under him, shall be entitled to apply to the Court; and the
Court shall order election to be made. But no such right is reserved to the bankrupt;
and yet it is argued that till the election not to renounce but to take the legal
interest is made by the assignees, notwithstanding the 142d section, the bankrupt is
the owner of the leasehold interest, and has the term of years vested in him. I have
pointed out already that the old decision of Copeland v. Stephens, where the commis-
sioners could only act in execution of a power, has no application to the present
law. It only remains to consider that the bankruptcy occurred in August: and in
September the assignees sold and conveyed to the leasehold interest: and the
question is whether the fact that the bankrupt remained in possession and paid a
quarter's rent six months after the bankruptcy is enough to give a right to the
bankrupt to exclude the right of the assignees. I am of opinion that it is not.
This motion proceeds on a mistake, and must therefore be refused, but without costs.
[628] THE EMPEROR OF AUSTRIA V. DAY AND KOSSUTH. Feb. 28, March 19,
April 15, 16, 17, 18, 19, 20, May 4, 1861.
[Affirmed, with variation, 3 De G. F. & J. 217; 45 E. R. 861 (with note, to which
add Stevens v. Chown [1901], 1 Ch. 904).]
The Defendants having manufactured a large quantity of printed paper to represent
the public paper money of the kingdom of Hungary, in order to use it, when
opportunity should occur, for purposes hostile to the sovereign ruling power of
that kingdom-they were restrained, at the suit of the Emperor of Austria, as
King of Hungary, and decreed to deliver up the paper to be cancelled, and
restrained by perpetual injunction from manufacturing such paper.
Her Majesty, to which any bankrupt is entitled; and all interest to which such
bankrupt is entitled in any of such lands, tenements or hereditaments, and of which
he might, according to the laws of the several countries, dominions, plantations or
colonies, have disposed ; and all such lands, tenements and hereditaments as he shall
purchase, or shall descend, be devised, revert to or come to such bankrupt before he
shall have obtained his certificate, and all deeds, papers and writings respecting the
same shall become absolutely vested in the assignees for the time being, for the benefit
of the creditors of the bankrupt, by virtue of their appointment, without any deed or
conveyance for that purpose; and as often as any such assignee or assignees shall
die, or be lawfully removed or displaced, and a new assignee or assignees shall be duly
appointed, such of the aforesaid real estate as shall remain unsold or unconveyed,
shall, by virtue of such appointment, vest in the new assignee or assignees, either
alone or jointly with the existing assignees, as the case may require, without any
conveyance for that purpose.
2 GIPF. 627.](ViewImageLocal?handle=hein.slavery/ssactsengr0882&div=1&collection=&method=preview&ext=.png&size=3)