further consideration, but a difficulty arose as to the proper form of order, in consequence of the defendant having become bankrupt since the making of the decree. The adjudication of bankruptcy was made on the 13th of June, 1865, upon the defendant's own petition.

It was alleged that the defendant, although bankrupt, was in a position to complete the purchase. The deposit-money, 201., had been brought into court by the vendor, upon a motion for injunction to restrain an action at law.

Mr. W. J. Bovill, for the plaintiff, asked that specific performance might be decreed. against the assignee, or (in the event of the assignee declining to accept the contract), against the bankrupt himself. It was clear that the bankruptcy did not vacate the contract

Lord St. Leonards' Vend. & Pur. 14th edit. 176.

Brooke v. Hewitt, 3 Ves. 255.

Ex parte Hunter, 6 Ibid. 94, note. The 145th section of the Bankruptcy Act, 1849 (not repealed by the act of 1861), empowered the assignee to elect whether he would accept or decline the contract; and the 146th section, also still in force, provided as follows: "If any bankrupt shall have entered into any agreement for the purchase of any estate or interest in land, the vendor thereof, or any person claiming under him, if the assignees shall not (upon being thereto required) elect whether they will abide by and execute such agreement, or abandon the same, may apply to the Court, and the Court may thereupon order them to deliver up the agreement, and the possession of the premises to the vendor or person claiming under him, or may make such other order therein as such Court shall think fit."

[KINDERSLEY, V.C.-The Court there referred to is not this Court, but the Court of Bankruptcy.]

The bankruptcy does not abate the suit in this Court—

Mitford on Pleading, 79-82, 5th edit. It is still liable to be dismissed for want of prosecution

Levi v. Heritage, 26 Beav. 560; s. c. 28 Law J. Rep. (N.S.) Chanc. 704. As to costs, the plaintiff is entitled to prove under the 181st section, and stand in the

same position as if there had been no bankruptcy.

Mr. Townsend, for the assignee (who had been brought into the suit by a supplemental order), stated that he had already, by letter, declined, and still did decline, to accept the contract; but was willing to assist the plaintiff as far as he could upon the terms of having his costs

Gabriel v. Sturgis, 5 Hare, 97; s. c. 15

Law J. Rep. (N.s.) Chanc. 201. Mr. C. T. Simpson, for the defendant, the bankrupt (who had been served with notice to appear), contended that he was freed from all liability in respect of the suit as well as of the contract; that no decree could be made against him; and that his appearance in court, after the bankruptcy, was irregular. The plaintiff's only right was to prosecute the suit against the assignee, or to obtain an order for its dismissal, with costs.

Mr. Bovill, in reply.

KINDERSLEY, V.C.-I think that if the frame of the suit admitted of such an order being made, the plaintiff would be entitled to have the estate re-sold, and then, in case of any deficiency in the amount of the purchase-money, he might go in under the bankruptcy and prove for the deficiency; but the prayer of the bill does not admit of that relief, and I do not see how the plaintiff can be liberated from the suit. It seems to me that the best decree which I can make under the circumstances is one which will render unnecessary any further application to this Court, and place the plaintiff in his original position as if there had been no suit; I shall, therefore, direct, that inasmuch as the defendant has become bankrupt, and his assignee declines to accept the contract, all further proceedings in the suit be stayed, without prejudice to any application which the plaintiff may be advised to make to the Bankruptcy Court under the 146th section of the Bankruptcy Act of 1849. The deposit-money must be paid back to the vendor, who paid it into court. I can give no costs either to the assignee or to the bankrupt.

Solicitors-Messrs. Lucas & Showler, for plaintiff; Mr. W. J. Holt, for the defendants J. W. Nokes; and Mr. C. Hanslip, for Walter Nokes.

further consideration, but a difficulty arose as to the proper form of order, in consequence of the defendant having become bankrupt since the making of the decree. The adjudication of bankruptcy was made on the 13th of June, 1865, upon the defendant's own petition.

It was alleged that the defendant, although bankrupt, was in a position to complete the purchase. The deposit-money, 201., had been brought into court by the vendor, upon a motion for injunction to restrain an action at law.

Mr. W. J. Bovill, for the plaintiff, asked that specific performance might be decreed against the assignee, or (in the event of the assignee declining to accept the contract), against the bankrupt himself. It was clear that the bankruptcy did not vacate the contract

Lord St. Leonards' Vend. & Pur. 14th edit. 176.

Brooke v. Hewitt, 3 Ves. 255.

Ex parte Hunter, 6 Ibid. 94, note. The 145th section of the Bankruptcy Act, 1849 (not repealed by the act of 1861), empowered the assignee to elect whether he would accept or decline the contract; and the 146th section, also still in force, provided as follows: "If any bankrupt shall have entered into any agreement for the purchase of any estate or interest in land, the vendor thereof, or any person claiming under him, if the assignees shall not (upon being thereto required) elect whether they will abide by and execute such agreement, or abandon the same, may apply to the Court, and the Court may thereupon order them to deliver up the agreement, and the possession of the premises to the vendor or person claiming under him, or may make such other order therein as such Court shall think fit."

[KINDERSLEY, V.C.-The Court there referred to is not this Court, but the Court of Bankruptcy.]

The bankruptcy does not abate the suit in this Court

Mitford on Pleading, 79-82, 5th edit. It is still liable to be dismissed for want of prosecution

Levi v. Heritage, 26 Beav. 560; s. c. 28 Law J. Rep. (N.s.) Chanc. 704. As to costs, the plaintiff is entitled to prove under the 181st section, and stand in the

same position as if there had been no bankruptcy.

Mr. Townsend, for the assignee (who had been brought into the suit by a supplemental order), stated that he had already, by letter, declined, and still did decline, to accept the contract; but was willing to assist the plaintiff as far as he could upon the terms of having his costs

Gabriel v. Sturgis, 5 Hare, 97; s. c. 15

Law J. Rep. (N.s.) Chanc. 201. Mr. C. T. Simpson, for the defendant, the bankrupt (who had been served with notice to appear), contended that he was freed from all liability in respect of the suit as well as of the contract; that no decree could be made against him; and that his appearance in court, after the bankruptcy, was irregular. The plaintiff's only right was to prosecute the suit against the assignee, or to obtain an order for its dismissal, with costs.

Mr. Bovill, in reply.

KINDERSLEY, V.C.-I think that if the frame of the suit admitted of such an order being made, the plaintiff would be entitled to have the estate re-sold, and then, in case of any deficiency in the amount of the purchase-money, he might go in under the bankruptcy and prove for the deficiency; but the prayer of the bill does not admit of that relief, and I do not see how the plaintiff can be liberated from the suit. It seems to me that the best decree which I can make under the circumstances is one which will render unnecessary any further application to this Court, and place the plaintiff in his original position as if there had been no suit; I shall, therefore, direct, that inasmuch as the defendant has become bankrupt, and his assignee declines to accept the contract, all further proceedings in the suit be stayed, without prejudice to any application which the plaintiff may be advised to make to the Bankruptcy Court under the 146th section of the Bankruptcy Act of 1849. The deposit-money must be paid back to the vendor, who paid it into court. I can give no costs either to the assignee or to the bankrupt.

Solicitors-Messrs. Lucas & Showler, for plaintiff; Mr. W. J. Holt, for the defendants J. W. Nokes; and Mr. C. Hanslip, for Walter Nokes.