1856. WEARING D. ELLIS. authorities which will be relied on of Kernot v. Pittis (a), Rochfort v. Battersby (b), and Tudway v. Jones (c), there was no evidence to show that the debts of the insolvent were all paid and in each of those cases the proceedings in insolvency were in full force, which distinguishes them from the present case. Here the jurisdiction in insolvency was at an end. Having regard to this distinction where a bill was filed by a bankrupt and contained an allegation that all the debts were paid a demurrer was overruled; Lautour v. Holcombe (d). It is also to be observed that the insolvency in the present case is not under the 1 & 2 Vict. c. 110 but under the the 5 & 6 Vict. c. 116 the first section of which referring to adopts the provisions of the 6 Geo. 4, c. 16, and by the 132nd section of that Act the assignees are required after payment of all the debts to pay over the surplus to the bankrupt. Mr. Malins and Mr. Prendergast for the Defendant in support of the appeal. We submit that the proper course under the circumstances would be for the Plaintiff to apply to the Insolvent Court to appoint a new assignee to get a re-assignment of the estate by means of the vesting order prescribed by the 92nd section of the 1 & 2 Vict. c. 110. The estate being wrongfully conveyed is as it were not conveyed at all, and if so according to the doctrine of this Court was never devested out of creditors for whom the assignee was a trustee, Stump v. Gaby(e); and when a new assignee is appointed the estate would revest in him by relation: at all events it is quite clear that an insolvent cannot sue without having the estate revested in him and the mere allegation of a surplus will (a) 2 Ellis & Bl. 406. (d) 8 Sim. 76. not (e) 2 De G. Mac. & G. 623, see p. 630. not dispense with the necessity of having the assignee before the Court, Rochfort v. Battersby (a). Assuming that all the creditors in the insolvent's schedule have fully released his estate there may still be other unsatisfied creditors for whom the Official Assignee would be a trustee. By the 37th section of the Act 1 & 2 Vict. c. 110 all the real and personal estate of the insolvent vests in the Provisional Assignee and there being no mode under the Act 5 & 6 Vict. c. 116 to get the estate back it cannot be got back except by the means indicated in the 92nd sect. of the 1 & 2 Vict. c. 110. They relied upon the cases of Kernot v. Pittis (b), Tudway v. Jones (c), and Cooke v. Sturgis (d), before the Lords Justices. Mr. Wigram in reply. In the present case the proceeding is not, as the Appellant contends, under the 1 & 2 Vict. c. 110 but under the 5 & 6 Vict. c. 116 and the Bankrupt Act therein referred to is the 6th Geo. 4, c, 16 by the 132nd sect. of which Act there is an express direction to pay the surplus of the real and personal estate to the bankrupt, which words as referable to real estate must imply or amount to a direction to reconvey. In none of the cases relied upon by the Appellant was there a suggestion as in this case that the proceedings in Bankruptcy had come to an end, an element which constitutes a material distinction between them and the present. On this principle where a bankrupt filed a bill to redeem a mortgage and an objection was taken by the mortgagee that the estate if any was vested in the Official Assignee such objection was not sustained, Preston v. Wilson (e). The (d) Weekly Reporter, 1853-4, page 389. (a) 2 H. L. Cas. 388. (b) 2 Ellis & Bl. 406. (c) K. & J. 691. (e) 5 Hare, 185. 1856. WEARING V. ELLIS. 1856. WEARING v. ELLIS. The LORD CHANCELLOR at the conclusion of the argument said, I will not finally dispose of this case without looking into the authorities which have been cited. I may observe however that some points connected with the question before me are quite clear. As a general rule it is established that no question can be litigated between a bankrupt and a third party with respect to any alleged property in the bankrupt without the sanction of the Court of Bankruptcy which has exclusive jurisdiction in the matter. In other words a bankrupt cannot sue but by his Official Assignee. I am of opinion that the same doctrine applies to Insolvency. I think the cases of Kernot v. Pittis (a), Tudway v. Jones (b), are distinguishable from the present inasmuch as in those cases the insolvencies were subsisting and nothing was done, as in the present case, to make them exceptions from the general rule to which I have adverted. Here however the assignee of the insolvent having executed a conveyance, which for the purpose of the argument before me. I assume to be impeachable, and all the creditors being satisfied and having released the insolvent's estate the question arises by what process is the assignee to be compelled to account for the surplus. That is not precisely the question here but it is one upon the due solution of which the case before me will have to be determined. The insolvency here is under the Act 5 & 6 Vict. c. 116 and the question is by what process is the insolvent to get back the surplus of his estate when all his creditors have been satisfied. The language of the 6 Geo. 4, c. 16, s. 132 under which this case falls is that the assignees "shall upon request made to them by the bankrupt declare to him how they have disposed of his real and personal estate and pay the surplus if any to such bankrupt his executors administrators or assigns." I should (a) 2 Ellis & Bl. 406. (b) 1 K. & J. 691. I should be inclined to say that such accountability to the bankrupt would give him a right of action. I do not commit myself to this opinion but as at present advised I think it would give him a right of action. It may however be that the correct construction of that section is that the Commissioners of Bankrupts are the proper persons to compel the assignee to account with the bankrupt. There is no express provision in the Act (6 Geo. 4, c. 16) as to how the surplus of the real estate of the bankrupt is to be dealt with but if after payment of the debts of a bankrupt he is entitled to sue for the surplus money it would I think imply an authority in this Court to entertain a suit at the instance of the bankrupt for a reconveyance of the real estate. I will consider the question and give my judgment in the course of a few days. 1856. WEARING v. ELLIS. The LORD CHANCELLOR. This case turns so far as the present appeal is concerned upon a very short point, which is this, whether an insolvent, having taken the benefit not of the ordinary Insolvent Act, but who has presented a petition under the Act 5 & 6 Vict. c. 116 and whose real and personal estate have been duly conveyed and assigned to an assignee under the provisions of 6 Geo. 4, c. 16 (all the creditors having been satisfied and the assignee having conveyed away the property which was vested in him) can maintain an action without first going through the process of applying to the Insolvent Court for an order discharging him and giving him the property back again. I did not at the hearing entertain much doubt upon the subject, but I wished to look into the Acts because there is a little conflict between the several Acts which were in operation Nov. 19. 1856. WEARING v. ELLIS. operation relating to bankruptcy and insolvency and those relating to insolvency inter se. At the time when the transactions, to which this suit relates, occurred the Act 6 Geo. 4, c. 16 may be treated as being the Act which was in operation. That Act provides, by the 132nd section that the assignees shall, when called upon by the bankrupt account to him for the mode in which they have disposed of his real and personal estate and if there is any surplus after satisfying all the creditors in full with interest upon their debts it enacts that they shall pay over the surplus if any to the bankrupt. I intimated an opinion at the conclusion of the argument that the language of that section gave a right of action to the bankrupt after his debts with interest were all satisfied. I do not myself see how that clause can be construed otherwise than as giving a right of action to the bankrupt. I do not find that this point has been expressly decided. The provision in question, however, has been since somewhat modified and altered and it therefore is now a mere matter of speculation though I think that must be the proper construction, because when a clause in an Act of Parliament declares that a person fulfilling a particular function shall, after certain conditions have been performed, pay over a sum of money to another, that of itself would give the other a right of action of debt against the person for the sum which was so directed to be paid over. Not a word is said in the Act as to any property not being property capable of being paid over, as for instance, real estate; but common sense would suggest that for which there is very clear authority, that as to such surplus the assignees would become trustees for the bankrupt. This was expressly so stated by Sir Wm. Grant in the case of Charman v. Charman (a). The question arose there |