deed was irregular, and could take effect only by the common law, the judges disregarded this point, and held that the trustees might elect to take or decline onerous shares.1 In this country it is held that trustees for creditors, though by deed or voluntary bankruptcy, need not take onerous property. But it is said that an acceptance of a trust created by deed, with full knowledge that a term of years is part of the property assigned, may be an acceptance of the term.3 § 378. Assignees may Enforce a Contract for Lease. Though the utter insolvency of one who has agreed to take a lease may be ground for refusing him a decree for specific performance, because his covenants have become worthless, yet, if he is actually bankrupt, his assignees are in a better position, and may elect to enforce the contract, because they have the right to take onerous property and sell it for the benefit of the creditors. If, however, the contract requires the lessee to enter into covenants which the assignees do not choose to assume, they cannot have specific performance, nor can they if the contract is personal to the lessee, as where a mother agreed to demise a house to her son for his own occupation.7 § 379. Disclaimer, Effect of. If the trustees disclaim onerous property, they cannot claim its benefits, such as the return of a deposit or of money expended in anticipation of a lease.8 Trustees disclaiming can take the rent of sub-tenants only to the time of the bankruptcy and the landlord may, in equity, recover subsequently accruing rents. If they disclaim a term, 1 Levi v. Ayers, 3 App. Cas. 842. 2 Pratt v. Levan, 1 Miles, 358; Journeay v. Brackley, 1 Hilt. 447; Martin v. Black, 9 Paige, 641; Comm. v. Franklin Ins. Co., 115 Mass. 278. 3 See Bagley v. Freeman, 1 Hilt. 196; Young v. Peyser, 3 Bosw. 308; Astor v. Lent, 6 Bosw. 612; Lewis v. Burr, 8 Bosw. 140; Dennistoun v. Hubbell, 10 Bosw. 155. 4 Boardman v. Mostyn, 6 Ves. 467; Brooke v. Hewitt, 3 Ves. 253; Buckland v. Hall, 8 Ves. 92; O'Herlihy v. Hedges, 1 Sch. & Lef. 123. 5 Buckland v. Papillon, L. R. 1 Eq. 477; L. R. 2 Ch. 67. Fry, Specif. Perf., 3rd ed. § 949; Powell v. Lloyd, 1 Y. & J. 427. Flood v. Finlay, 2 Ball & B. 9. 8 Ex parte Barrell, L. R. 10 Ch. 512; Kane v. Jenkinson, 10 N. B. R. 316, Fed. Cas. No. 7607; Ex parte Ladd, 3 Dea. & Ch. 647. 9 Haley v. Boston Belting Co., 140 Mass. 73, citing Story Eq. § 687; Fonbl. Eq. c. 3, § 3, & c. 5, § 5; Goddard v. Keate, 1 Vern. 87; Wylie v. Smith, 2 Woods, 673, Fed. Cas. No. 18,110. they cannot afterwards remove trade fixtures, unless the provisions of the lease give the lessee such right upon the determination of the lease in whatever mode.2 It has been doubted in England whether, after removing fixtures, the assignees can disclaim, unless under one of the leases last mentioned. But it is to be noted that the late statutes in England make the surrender relate back to the adjudication. If, instead of disclaiming, the trustees and landlord agree for a surrender, the trustees will have all the rights which the bankrupt would have had on a similar surrender.1 § 380. Unfinished Contracts. The assignees having the right to complete beneficial contracts, not involving personal qualities, a seller of goods for cash must tender them to the assignees of the buyer, though this obligation may involve him in expense without a certainty of reimbursement. If goods are agreed to be sold on credit, and the buyer is bankrupt, the assignees may take the goods, if they will pay cash for them, because the right of the seller is only to a lien for the price; but the duty of tender or notice is upon the assignees, and a failure on their part to give notice within a reasonable time will be evidence of abandonment. If the goods are to be forwarded with bills of exchange for acceptance, they should be sent, because the court has power to authorize the bills to be accepted by the assignees, if that course is beneficial to the creditors.7 If the seller has in such case drawn bills on a bank under a letter of credit which required him to forward bills of lading, 1 Kearsey v. Carstairs, 2 B. & Ad. 716; Ex parte Hope, 3 De G. & J. 92. 2 Ex parte Maundrell, 2 Mad. 315; Ex parte Nixon, 1 Rose, 445; Stansfeld v. Mayor of Portsmouth, 4 C. B. N. s. 120; Sumner v. Bromilow, 34 L. J. Q. B. 130. 3 See dicta in Saint v. Pilley, L. R. 10 Ex. 137; Ex parte Brook, 10 Ch. D. 100. 4 Saint v. Pilley, L. R. 10 Ex. 137. 5 Gibson v. Carruthers, 8 M. & W. 321; N. E. Iron Co. v. Gilbert R. R. Co., 91 N. Y. 153; Pardee v. Kanady, 1 Cent. Rep. 250. 6 Bloxam v. Sanders, 4 B. & C. 941, 949, per Bayley, J.; Morgan v. Bain, L. R. 10 C. P. 15; Re Phoenix Bessemer Steel Co., 4 Ch. D. 108; Ex parte Stapleton, 10 Ch. D. 586; Ex parte Chalmers, L. R. 8 Ch. 289; Hobbs v. Columbia Falls Brick Co., 157 Mass. 109; Bloomer v. Bernstein, L. R. 9 C. P. 588; Re Wheeler, 2 Lowell, 252, Fed. Cas. No. 17,488. 160. 7 Ex parte Tondeur, L. R. 5 Eq. the insolvency of the bank after acceptance will not excuse his failure to forward the bills of lading.1 § 381. Shares in Companies; Laches. - Receiving and offering for sale shares of a corporation, or even attending and voting at a meeting is not per se an acceptance of the title.2 Whether the assignees or the company are bound to take the first step will depend on the bylaws. If these require no notice of calls or notice only to the registered owners, the assignees may lose their rights by forfeiture for non-payment, if they have neglected to register, though they have had no notice of the calls.3 Delay in asserting their rights may estop the assignees if there has been a serious change in the market or other intervening equity.4 § 382. Negligence of Assignees. Besides a liability for intentional breaches of trust, assignees have been required. to indemnify creditors for a loss happening through their negligence; as where a creditor lost his dividend by the accidental omission of his name from the dividend sheet; 5 or where a loss arose from an unauthorised sale upon credit, or through the default of an agent. In such cases the trustees may have contribution from each other if some have made good more than their share of loss. They will not be held responsible for errors of judgment or even mistakes of law in doubtful matters.8 Trustees cannot delegate any of their discretionary powers.9 They are not responsible for agents necessarily employed, for instance in foreign countries, nor for brokers and other intermediaries usually engaged in selling and collecting, if there has been no personal negligence by the trustees.10 §383. Assignees are Fiduciaries. Trustees in bankruptcy like other trustees have all the title and power of the bankrupt. Their fiduciary character makes it inequitable for them to buy any of the trust property or prospective dividends; if they are secured creditors, they can take no part in selling the property with a view to proving for the deficiency.1 § 384. Joint Assignees. They are not responsible for each other, unless they have either acted or held themselves out as acting jointly in the particular matter in question, or have submitted to an order which implies joint liability.3 They must all join in making sales, compromises, etc.; but if some of them refuse to do a reasonable and beneficial act, the court of bankruptcy may order them to join, or may remove them; or they may be made defendants, in equity, to suits brought by the others.5 In summary petitions in bankruptcy it is sufficient if an assignee who refuses to join is served with notice of the petition. § 385. Liability of Assignees.Trustees are personally liable upon all their own undertakings. Thus if they have accepted a term of years they and their executors are bound by the covenants of the lease, until they have parted with their estate in the premises; they are personally bound for the charges of the messenger and solicitor and other expenses of the proceedings, incurred after their appointment; so for any promises or covenants which they may make; and it is no defence that they have received no funds.78 They are responsible in trover or other appropriate form of 1 Pooley v. Quilter, 2 De G. & J. 327. 2 Primrose v. Bromley, 1 Atk. 89; Abbott v. Fisher, 124 Mass. 414; Ex parte Dawson, 4 Dea. & Ch. 130; Ex parte Ridley, 3 M. D. & De G. 413; Ex parte Benham, 1 Dea. 26. 8 Ex parte Winnall, 3 Dea. & Ch. 22; Ex parte Booth, Mont. 248. Ex parte Smith, Dea. 385; Ex parte Underhill, 3 Dea. 326. 5 Ex parte Evans, 3 Dea & Ch. 470. See Ex parte Burn, 1 Dea. 194; Re Fosbrooke, 1 M. D. & De G. 533; Ex parte Randall, 1 M. D. & De G. 562; 614. 7 Abercrombie v. Hickman, 8 A. & E. 683; Hanson v. Stevenson, 1 B. & Ald. 303. Ex parte Dressler, 9 Ch. D. 252. 8 Stephens v. Pell, 4 Tyrwh. 6; Pell v. Stephens, 2 Myl. & K. 334; Chilson v. Adams, 6 Gray, 364; Ex parte Hartop, 9 Ves. 109; Hart v. Biggs, Holt, N. P. 245; Ex parte Johnson, 1 Gl. & J. 23; Ex parte Coates, 3 Dea. & Ch. 626. action for the property of third persons which comes to their possession; and for acts injurious to third persons.1 It is held, however, that if receivers are authorized to operate a railroad, they are liable to an action for damages occurring through the negligence of their servants only as receivers, that is, to charge the funds in their hands and not themselves.2 And that if, without notice, trustees have dealt with the property of a third person and have gone on in good faith and divided all the assets, they may plead plene administravit.3 § 386. Revocation by Bankruptcy. — The decree which vests the bankrupt's property in his trustees revokes all agencies and powers given by him, unless such as are held by creditors or purchasers in connection with some valid interest in property, or, as the phrase is, "powers coupled with an interest." Assignees, says Sir George Rose, are affected by the equities, but not bound by the covenants of the bankrupt. The test therefore is whether the creditor has an equitable lien upon or other valid interest in the property of the bankrupt; if not, the vesting order is a revocation. § 387. Licenses and Covenants. A mere license or covenant or even power by act of Parliament to a creditor to distrain or seize chattels, if the true construction be that the interest depends upon the entry and seizure, cannot be availed of after the property is changed.5 This is clearly pointed out by Lord Westbury in Reeve v. Whitmore,6 “A present contract that the mortgagee shall have a right and an interest 1 Aldridge v. Johnson, 7 E. & B. 885; Ex parte Simpson, 2 Mont. & A. 294; Ex parte Nat. Bank Scotland, 1 Mont. & A. 644; Ex parte Morton, 5 Ves. 449; Leighton v. Harwood, 111 Mass. 67; Ex parte Bond, 1 M. D. & De G. 10; Ex parte Cotterell, 3 Dea. 12; Ex parte Cunningham and three other cases, 3 Dea. & Ch. 58 to 87; Re Wiley, 4 Biss. 171, Fed. Cas. No. 17,655. 119. • Ex parte King, 1 Mont. D. & De G. 5 Freeman v. Edwards, 2 Ex. 732; Fuller v. Emerson, 7 Cush. 203; Re Dyke, 9 N. B. R. 430; Fed. Cas. No. 4227; Belding v. Read, 3 Hurlst. & C. 955; Howes v. Ball, 7 B. & C. 481; Ex parte Hill, 6 Ch. D. 63; Tripp v. Armitage, 4 M. & W. 687; Jolly v. Arbuthnot, 4 De G. & J. 224; Rouch v. Great 2 See High, Receivers (3d ed.), §§ Western Rwy. Co., 1 Q. B. 51; Ex parte 395 to 398 b. 3 Ex parte Havens, 8 Ben. 309, Fed. Cas. No. 6230; Allen v. Whittemore, 8 Ben. 485, Fed. Cas. No. 241. Barter, 26 Ch. D. 510. 64 De G. J. & S. 1, 18, referred to by the Court in Brown v. Bateman, L. R. 2 C. P. 272, 283. |