New Brunswick Reports Volume 13 (Paperback)

Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: Kerr r. Scovil. clause in the first section ? Clearly none. The statute is by no means clear, but to render it consistent, it must mean, that the trustees take all the estate of the absconding debtor not divested out of him by act and operation of law, since the first publication in the Royal Gazette. In my opinion, nothing more passes than would pass by the fullest'assignment the absconding debtor could have made to them, they taking the necessary steps to secure the rights so assigned. The judgment creditor stands in a very different position from a purchaser from the absconding debtor, and the principles which have governed one class do not apply to the other. In re Atkinson's Trusts, 16 Jurist 1003, Lord Chancellor (St. Leonards) says, "I consider it to be a settled question, that the assignee under the Insolvent Act, took only precisely what the insolvent himself had, and clearly subject to all .the equities to which the insolvent himself was liable. That proves the nature of the estate. They do not take all independent property as if they were the original person to whom it belonged, but they take it as the representatives of the insolvent and stand in his shoes; they take what he had to give, and are liable to all the incumbrances and equities by which he himself was bound. Now it is said at the bar, that the effect of the Act of Parliament is to vest the property so wholly in the assignees, that the. insolvent cannot by any act afterwards divest it. There are no words giving that effect to the assignment, but the Act directs the insolvent to give an assignment; and the assignment when executed will of course have as high but it cannot have a higher operation (unless more operation is given to it by the Act of Parliament, which the Act of Parliament does not confer) t...