of the first part; [official assignee], of &c., of the second part; [commissioner or commissioners], of the third part; [bankrupt], of &c., of the fourth part; [purchaser], of &c., of the fifth part; [trustee for purchaser to prevent dower], of &c., of the sixth part; and a [person appointed to surrender copyholds], of the seventh part. WHEREAS, by indentures of lease and release ―of indentures bearing date respectively the and days of, in

RECITALS,

of lease and release limiting freeholds to the

uses to prevent

the year

the indenture of release being made between

&c., the freehold hereditaments hereinafter described, with dower in favour their appurtenances, were limited to such uses as the said of the bankrupt; [bankrupt] should by any deed or deeds direct or appoint, and in default of such direction or appointment, To the use of the said [bankrupt] and his assigns for his life, without impeachment of waste, with remainder To the use of the said [trustee for bankrupt] and his heirs during the life of the said [bankrupt], in trust for him and his assigns, with remainder To the use of the said [bankrupt], his heirs and assigns; AND WHEREAS, at a court baron held for the manor of in the county of day of, in the year

-of the bankrupts's admission to copyholds;

on the

the said [bankrupt] was admitted tenant of the copyhold hereditaments hereinafter described, to hold to him and his heirs at the will of the lord, according to the custom of

of the issuing the said manor; AND WHEREAS a fiat in bankruptcy, under of a fiat [or Lord Chancellor of England, bearing date

in the year

commission] in the hand of the bankruptcy; the day of was issued against the said [bankrupt], who was thereupon adjudged a bankrupt;

,

stand convey; for the creditor's assignees are the proper persons to conduct the sale, and the commissioners are merely instruments to give effect, by a legal alienation, to the contract of the assignees. But where the bankrupt is not tenant to the lord, there is no necessity for resorting to the commissioners, since the assignees may sell the equitable interest, and the legal tenant may surrender by their direction to the purchaser. The clauses relating to copyholds in the act 6 Geo. 4, c. 16, are not very lucid. It should be observed, that by neither of these acts is the general practice in bankruptcy disturbed; so that, for example, if a creditor, holding a mortgage or other security, is desirous of having his pledge sold and of being admitted to prove for the deficiency, the sale must be made in conformity to Lord Loughborough's order of 8th March, 1794. (See Ex parte Aple, Mont. & Ayr. 631). That order does not enable a first incumbrancer, without power of sale, to enforce a sale against a subsequent incumbrancer, who has a right to stand upon his security until foreclosed. (Ex parte Jackson, 5 Ves. 357).

pre

that parties

cond, and third parts, are respectively creditors' assignees, official assignee, and commissioner, and join in those characters;

of the first, se

of contract holds and copyholds, and ap portionment of price.

for sale of free

AND WHEREAS the said [assignees] are the assignees chosen by the creditors of the estate and effects of the said bankrupt, and the said [official assignee] is the official assignee of the estate and effects of the said bankrupt, and the said [commissioner] is the commissioner of the court of bankruptcy acting in the execution of the said fiat, [or, are the major part of the commissioners acting in the execution of the said fiat], and are respectively parties to and join in these sents in their respective characters aforesaid, and not otherwise (103); And WHEREAS the said [assignees] have contracted with the said [purchaser] for the absolute sale to him of the freehold and copyhold hereditaments hereinafter described, with their appurtenances, free from incumbrances, at the entire price of £; AND WHEREAS, &c. [apportionment (104) of the price as in No. 21, ante]. Now THIS INDENTURE WIT- TESTATUM. NESSETH, that, in pursuance of the said contract, so far as concerns the said freehold hereditaments, and in consideration of Consideration. the sum of £ of lawful British money, being such part of the said entire price as on the apportionment thereof between the said freehold and copyhold hereditaments has been attributed to the said freehold hereditaments, paid by the said [purchaser] to the said [official assignee], at or before the execution of these presents, the receipt of which said sum the said [official assignee] hereby acknowledges, and from the same sum hereby releases and for ever discharges the said [purchaser], his heirs, executors, administrators, and assigns, and also in consideration of 10s., at the same time paid by the said [pur

(103) This declaration renders it unnecessary afterwards to append to the names of the assignees, &c., the qualifying expression, "as such assignees as aforesaid," &c.

(104) The Stamp Act, 55 Geo. 3, c. 184, Schedule, part 1, title "Conveyance," provides "that where any copyhold estate shall be conveyed by a deed of bargain and sale by the commissioners named in a commission of bankrupt, or by executors and others by virtue of a power given in a will, or by act of parliament or otherwise, when a surrender shall not be necessary, the deed of bargain and sale shall be deemed (with reference to the ad valorem stamp) the principal instrument." But we have seen, (ante, n. 102), that under the Bankrupt Act, 6 Geo. 4, c. 16, a surrender, in addition to the bargain and sale and deed inrolled, is necessary. It is understood, however, that the officer has refused to enrol the deed until stamped with the ad valorem stamp, alleging that the copyholds pass by the deed.

Stamp on sale of bankrupt's copyholds.

Creditor's assignees and bankrupt appoint.

And creditors'

assignees release.

And bankrupt

confirms.

chaser] to the said [bankrupt], the receipt whereof is hereby acknowledged, The said [assignees, cred. & off.], by virtue of all powers and authorities vested in or given to the said [bankrupt], and which they are competent to exercise (105), do direct, limit, and appoint, And also the said [bankrupt], by virtue of all powers and authorities vested in or given to him, Doth direct, limit, and appoint to the uses hereinafter expressed (106); And the said [assignees, cred. & off.], Have and every of them Hath bargained, sold, and released, and by these presents Do and every of them Doth bargain, sell, and release, And the said [bankrupt] Hath granted, bargained, sold, released, ratified, and confirmed, And by these presents Doth grant, bargain, sell, release, ratify, and confirm unto the said [purchaser], his heirs

Effect of bankruptcy on powers of appointment.

Appointment

to uses.

(105) The Bankrupt Act, 6 Geo. 4, c. 16, s. 77, enables the assignees to execute all powers vested in the bankrupt which he might have legally executed for his own benefit, except the right of nominating to a vacant benefice. A question sometimes arises as to the effect of bankruptcy where property is subject to the joint appointment of the bankrupt and his wife, and in default of appointment is limited to the bankrupt for life, with remainders over. It is an established principle, founded on natural reason and justice, that if a man having a power, and also an interest ulterior to the power, aliens his interest without exercising his power, he shall not afterwards be permitted to exercise the power to the prejudice of his own alienation. (Long v. Rankin, Sugd. Pow. 6th ed. App. No. 2). The principle holds equally where the power is given to himself and another jointly; he cannot afterwards concur with the co-donee in defeating his own act. So, the bankruptcy, though it is a general and, in most cases, an involuntary alienation, operates to preclude the bankrupt from concurring with his wife in executing the power. (See 12 B. & A. 93; 17 Ves. 388, 460; 7 Bing. 695; 1 Myl. & K. 32: Hole v. Escott, 3 Myl. & Cr. 187). The assignees cannot concur in its exercise, because the power was not such " as he (alone) could have legally executed for his own benefit;" the bankrupt cannot concur, because his concurrence would defeat the interest of his creditors claiming under his alienation in bankruptcy. As the alienation, by one of several donees of a joint power, of an interest limited to him ulterior to the power is thus equivalent to a release of the power pro tanto, it follows, first, that one of several donees of a joint power may release it by deed; secondly, that he may release it in respect of some particular estate or interest, so as to take that estate or interest only out of the operation of the power.

(106) It is more accurate to appoint thus, "to the uses," &c.; but if these words were omitted, the appointment would, in construction, still be applied directly to the uses. (See Wynne v. Griffith, 3 Bing. 179; 5 B. & C. 923; 1 Russ. 283).

sion clause.

and assigns, (in the actual possession of the said [purchaser] Actual possesnow being, by virtue of a bargain and sale made to him by the said [assignees, cred. & off. and bankrupt], in consideration of 58. a-piece, by indenture bearing date the day next before the day of the date of these presents, for one year, commencing from the day next before the day of the date of the said indenture of bargain and sale, and by force of the statute made for transferring uses into possession), All [freehold parcels], To- Parcels. gether with all the rights, members, and appurtenances to the

said hereditaments and premises belonging; And also all the All estate, &c. estate, right, title, and interest of the said [assignees, cred. &

off. and bankrupt], respectively, in or to the said hereditaments

use of

To such uses as purchaser shall appoint; in default of appointment, to

TESTATUM.

and premises, with their appurtenances; And also all deeds All deeds, &c. and writings relating to the title to the said hereditaments and premises, or any part thereof, either alone or together with any other hereditaments of less value, now in the custody or possession of the same parties or any of them: To HAVE AND TO HABENDUM. HOLD the said messuages or tenements, hereditaments and premises hereby released or otherwise assured, or intended so to be, with their appurtenances, unto the said [purchaser], his heirs and assigns, To such uses, upon such trusts, and in such manner as the said [purchaser] shall by any deed or deeds appoint (107), And in default of appointment, To the the said [purchaser], his heirs and assigns for ever. AND him in fee. THIS INDENTURE FURTHER WITNESSETH, that, in pursuance of FURTHER the said contract, so far as concerns the said copyhold hereditaments, and in consideration &c., the receipt &c., [state the Consideration. consideration for the copyhold and the receipt &c., as in the former testatum], The said [commissioner] Hath bargained and sold, and by these presents Doth bargain and sell, And the said [assignees, cred. & off.], Have remised, released, and quitclaimed, and by these presents Do remise, release, and quitclaim, And the said [bankrupt] Hath ratified and confirmed, and by these presents Doth ratify and confirm unto the said [purchaser], his heirs and assigns, All [copyhold parcels], Together with &c., and also all the estate &c.: TO HAVE AND TO HOLD the said copyhold pieces or parcels of land, hereditaments and premises hereby bargained and sold, or intended so to be, with the appurtenances, unto and to the use of the said

(107) Vide ante, Vol. 1, Chap. v., (3 & 4 Will. 4, c. 105).

[purchaser], his heirs and assigns for ever, at the will of the lord, according to the custom of the said manor, by the rents, Appointment, suit, and services therefore due and accustomed. And the said by commissioner, of a per- [commissioner] Doth hereby entitle and authorize the said [person to surrender son to surrender], at the next or any subsequent court baron the copyholds. to be held for the said manor, or out of court, as soon as may be, to surrender into the hands of the lord of the said manor, according to the custom thereof, the said copyhold pieces or parcels of land, hereditaments and premises hereby bargained and sold, or intended so to be, with their appurtenances, To the use of the said [purchaser], his heirs and assigns, at the will of the lord, according to the custom of the said manor, by the rents, suit, and services therefore due and accustomed. And each of them the said [creditors' assignees], (so far only as concerns his own acts and defaults), for himself, his heirs, executors, and administrators, hereby severally covenants with the said [purchaser], his heirs and assigns, that he (the covenanting party) has not done or permitted any act, matter, or thing, by which the said freehold and copyhold hereditaments and premises respectively, or any part thereof respectively, are, is, shall, or may be aliened, charged, or prejudicially affected (108). IN WITNESS &C.

Covenant by creditors' assignees against incumbrances.

Covenants by bankrupt for

title.

(108) The bankrupt is not compellable to enter into covenants for title, nor indeed to join in the conveyance. If he should be willing to covenant, here may be added covenants similiar to those in No. 22, ante. But the act, 6 Geo. 4, c. 16, s. 78, authorizes the Chancellor, on the petition of the assignees or purchaser, to order the bankrupt to join in the conveyance, and, on his non-compliance, gives to the order the effect of a conveyance by him.