and such Receiver

His right to remu

may retain as a remuneration for the performance of his duties a commission, to be fixed by the Court, not exceeding the rate of five per centum upon the amount of the balance so distributed (the amount of the commission so retained being deemed a disDelivery of surplus. tribution), and shall deliver the surplus, if any, to the insolvent or his legal representative.

neration.

Under the direction of the Court.-This proviso must not be lost sight of. Always it must be remembered that virtually the receiver is an officer and representative of the court, and is bound to apply to the court for instruction and guidance on every occasion on which he may feel any doubt as to how to proceed, or may require authority to do a necessary act.

"A receiver, when in possession, has very little discretion allowed him; but he must apply, from time to time, to the court for authority to do such acts as may be beneficial to the estate. Thus, he is not at liberty to bring or to defend actions; or to let the estate; or to lay out money; unless by the special leave of the court." Story, § 833, a.

A

With regard to the rights and duties of a receiver, it is stated in Smiths Ch. Prac., 1032, that:-"A receiver as a general rule, ought not to present a petition or originate proceedings in a cause; but if he finds himself in circumstances of difficulty, he should apply to the plaintiff to make the necessary application, and on his default the receiver may then properly apply to the court. receiver cannot bring or defend an ejectment without an order, and if allowed to bring an action in the name of another, that party must be indemnified. A receiver is at liberty to distrain, upon his own discretion, for rent in arrear within the year; but if an arrear for more than a year, an order is necessary. A receiver, where the tenants have not attorned, must distrain in the name of the party having the legal estate, who must be indemnified. A receiver having, without the sanction of the Court, defended actions arising out of a distress for rent made by him on a tenant of the estate, the court refused to allow him his costs of the actions. A receiver who, without the sanction of the court defends an action brought against him by a party to the cause, is not on that account disentitled to the assistance of the court in recovering from such party the extra

costs of the action, although, if his defence had failed, he would not, under such circumstances, have been entitled to reimbursement."

"A receiver is at liberty, with the approbation of the judge at chambers, to let the estate to the several tenants upon parol from year to year, without obtaining an order either to sanction or confirm such letting; and the judge at chambers receives any proposal for the management and letting of the estate from the parties interested, and gives his directions thereon." Smiths Ch. Prac., 1033.

Convert the property into money.-This may not be done in a rash and hasty manner, and I apprehend that in some cases it should not be done at all. Under the Bankruptcy Act, 1869, the trustee is empowered to divide in its existing form among the creditors, according to its estimated value, any property which from its peculiar nature or other special circumstances cannot advantageously be realized by sale. He may mortgage or pledge any part of the property of the bankrupt for the purpose of raising money for the payment of his debts. And he may carry on the business of the bankrupt so far as may be necessary for the beneficial winding up of

the same.

The trustee may bring or defend any action, suit, or other legal proceeding relating to the property of the bankrupt. (As to the receiver, see Sec. 370.)

And when any of it consists of land of any tenure burdened with onerous covenants, of unmarketable shares in companies, of unprofitable contracts, or of any other property that is unsaleable, or not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act, or to the payment of any sum of money, the trustee may disclaim' such property, and by so doing determine the contract or lease, or forfeit the shares, or put an end to the bankrupts estate or interest, or as the case may be.

I feel a great doubt as to what meaning should be put upon the words "the property" where the insolvent has mortgaged or hypothecated or otherwise pledged his field. Should that of the plenum dominium (absolute ownership) be given to them, or that of what is usually styled the equity of redemption, in other words of what will remain to the owner after satisfaction of his debt?

Under Sec. 40 of the Bankruptcy Act, 1869, a secured creditor may prove for his whole debt, on giving up his security, and may get a dividend with the rest in respect of the balance due to him after realizing or giving credit for the value of his security, in manner and at the time prescribed. If he do not comply with these conditions, he shall be excluded from all share in any dividend. But Sec. 12 of the same provides that the power of a secured creditor to realize or otherwise deal with his security shall remain unaffected. In England, therefore, a secured creditor who thinks his security insufficient, may be advised either to give up his security and claim with the rest, or to stand aloof during the continuation of the bankruptcy, and not claim a share in any dividend. Under this Chapter a secured creditor may stand aloof, or he may come in and be scheduled with the rest under Sec. 352, and without giving up his security get a dividend "without any preference" under this section. Whichever he does, if "the property" in a pledged field is to be taken to be the owners plenum dominium, such creditor, particularly if he happens to be in possession and enjoyment of the field, may suffer a great hardship and injustice. On the other hand if he comes in and claims, and "the property" is to be taken to be the equity of redemption and no more, the other creditors may complain with justice that the secured creditor has lessened the assets both by withdrawing the pledge and by taking out his dividend. See the notes to Sec. 213.

The scheduled creditors.-Whether secured or unsecured. See the notes above.

357. An insolvent discharged under Section 355 shall not be arrested or imprisoned on account of any of the scheduled debts. Effect of discharge. But (subject to the provisions of Section 358) his property, whether previously or subsequently acquired (except the particulars specified in the first proviso to Section 266 and except the property vested in the Receiver), shall, by order of the Court, be liable to attachment and sale until the decrees against him held by the scheduled creditors are fully satisfied or become incapable of being executed.

When Court may declare insolvent absolved from further liability.

Procedure in case of dishonest applicant.

358. If the aggregate amount of the scheduled debts is two hundred rupees or a less sum, the Court may declare the insolvent discharged as aforesaid absolved from further liability in respect of such debts.

359. Whenever, at the hearing under Section 350, it is proved that the applicant has

(a) been guilty, in his application, of any concealment or of wilfully making any false statement as to the debts due by him, or respecting the property belonging to him, whether in possession or in expectancy, or held for him in trust;

(b) fraudulently concealed, transferred or removed any property; or

(c) committed any other act of bad faith regarding the matter of the application,

the Court shall, at the instance of any of his creditors, sentence him to imprisonment for a term which may extend to one year from the date of committal.

Or the Court may, if it think fit, send him to the Magistrate to be dealt with according to law.

360. The Local Government may, by notification in the official Gazette, invest any Court other than a District Court with Investment of other the Courts with powers of 344 to 359 (both. inclusive), and the District Judge powers conferred on District Courts by Section may transfer to any Court situate in his district and so invested any case instituted under Section 344.

District Courts.

Transfer of cases.

Any Court so invested may entertain any application under Section 344 by any person arrested in execution of a decree of such Court.

PART II.

OF INCIDENTAL PROCEEDINGS.

CHAPTER XXI.

OF THE DEATH, MARRIAGE AND INSOLVENCY OF PARTIES.

No abatement by

party's death, if cause

of action survive.

361. The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives.

Illustrations.

(a) A covenants with B and C to pay an annuity to B during C's life. B and C sue A to compel payment. B dies before the decree: the cause of action survives to C, and the suit does not abate.

(b) In the same case, all the parties die before decree. The cause of action survives to the representative of the survivor of B and C, and he may continue the suit against A's representative.

(c) A sues B for libel. A dies. The cause of action does not survive, and the suit abates.

(d) A, a member of a Hindú joint family under the Mitákshará law, institutes a suit for partition of the family property. A dies leaving B, a minor son, his heir. The cause of action survives to B, and the suit does not abate.

Rule 1 of Order L of the Rules S. C. is: "An action shall not become abated by reason of the marriage, death, or bankruptcy of any of the parties, if the cause of action survive or continue, and shall not become defective by the assignment, creation, or devolution of any estate or title pendante lite." Compare Sec. 372.

The above Rule and those which follow it are in the place of "proceedings to revive" in law and equity, proceedings very hard to comprehend.

Abate. This word, according to Cowells Interpreter, "seemeth to be taken from the French Abatre. i. decutere, destruere, prosternere. It is in the writers of the common law used both actively and passively, or rather neuterly: as to abate a cattle or a portlet. And to abate a writ, is by some exception to defeat or overthrow it.........In the neuter signification it is used of joint tenants; viz.