Ex parte Bates and others.

rails throughout upon the broad gauge. That must follow what I have just said, because, à fortiori, they have power to lay down the narrow gauge concurrently with the broad gauge between Abbotswood and Wolverhampton. And then I am generally asked to restrain the opening of the railway; and if that is to be done, it could only be done upon the ground that it is illegal; and as to that, I do not think it right, for the reasons I have stated, to interfere. There is no reason whatever for interfering to that extent. With respect to the costs of this application, I had better not say any thing about them. The course of the court provides for the costs of these motions in a way that is most just. Nothing is said about costs. If the suit fails, the party moving must pay the costs: if the suit succeeds, then the order for taxation of the costs provides a better way than any special order made by me would do.

Rolt. Then nothing is said about the costs?

PARKER, V. C. Nothing is said about the costs. That will make them costs in the cause.

Ex parte BATES & others; in re WILLIAMS & others, Bankrupts.1 February 17, 1852.

Bankruptcy-Jurisdiction of Commissioner as to the Removal of the Solicitor of the Assignees.

The commissioner, objecting to the solicitors employed by the creditors' assignees, on the ground that they were connected by marriage with the bankrupts, requested the assignees to change such solicitors, and upon their refusal to do so, made an order removing them from their office of assignees:

Held, upon appeal from the order of the commissioner, that the matter was one entirely in the discretion of the commissioner; and that, there being nothing to show a wrongful exercise of such discretion, the court had no power to interfere.

THIS was a petition presented by the creditors' assignees in the bankruptcy, by way of appeal from the decision of the commissioner removing them from the office of assignees. It appeared that the two firms of solicitors employed by the petitioners to act for them, at Newport and at Bristol, in the bankruptcy, a member of one was an uncle of the wife of one of the bankrupts, and a member of the other was a cousin of the wife of another of the bankrupts. Upon being informed of this, the commissioner requested the petitioners to change their solicitors, alleging that the interest of the creditors and of the estate required that persons acting as solicitors should be unconnected

1 16 Jur. 459. Before the Lords Justices the RIGHT HON. SIR JAMES L. KNIGHT BRUCE, and the RIGHT HON. LORD CRANWORTH.

Ex parte Bates and others.

with the bankrupts. The petitioners declined to accede to the request of the commissioner, alleging as a reason, that the solicitors had been appointed with the sanction and approbation of the principal creditors of the estate; that they had been acting for some time as such solicitors; and that having made themselves acquainted with the state of the accounts, and with the multifarious and extensive transactions of the bankrupts, their removal, and the introduction of other solicitors, would considerably increase the expenses of the proceedings under the adjudication. Under these circumstances, they respectfully declined to change their solicitors, and stated that if the commissioner should make an order upon them to do so, it was their intention to disobey such order. The commissioner thereupon made an order removing the petitioners from their office of assignees, and appointed a meeting of creditors for the purpose of electing other persons to the office. Against this order the present petition of appeal was presented. The reasons for making the order appealed from were thus stated by the commissioner (Mr. Commissioner Stephen) in his judgment delivered on the 9th February, 1852:

"The appointment of solicitors made by the assignees in this case being in my opinion objectionable, for reasons already stated, and which it is unnecessary to repeat, I think it also clear that it falls within my province, as the commissioner before whom the petition is presented, to take the objection. I apprehend this to be incident to the general power and duty unquestionably residing in this court to superintend the whole course of proceedings in every bankruptcy placed upon its file, and to see that those proceedings are conducted (so far as the court has the opportunity of becoming officially acquainted with what is doing) in the manner best adapted to promote the objects of the bankrupt law. Upon the present specific question, namely, whether the court has power to interfere with the choice made by the assignees of their solicitors, the only argument against its possessing the power that occurs to my mind, as carrying with it sufficient color to require notice, is, that the right which the court does unquestionably possess of rejecting an assignee whom it may deem unfit to be appointed, is given by the express provision of the Bankrupt Law Consolidation Act, 1849, (sect. 139;) and it may be said, perhaps, that the express insertion of such a power leads to the inference that it would not otherwise have existed, and therefore to the inference that the power now in question does not exist. Neither of these inferences, however, seems to be legitimate. The 139th section containing as it does an express enactment that the appointment of assignees may be made by the major part in value of creditors, it became necessary to add the express proviso in order to obviate the implication that might otherwise have seemed to arise, that this choice was, even in the case of an unfit person, to be absolute and conclusive. But even without the proviso, I conceive that this court must have possessed, as incident to the general jurisdiction with which this act so largely clothes it, and to an extent so much greater than any preceding act, the power to reject or remove an unfit

Ex parte Bates and others.

assignee. And even supposing the contrary, yet the case of the solicitor is very different from that of the assignee. The assignee being once appointed, his nomination of a solicitor unfit, for whatever reason, to be employed, is a breach of his duty as trustee for the creditors; and on that ground, independently of any other, the interference of the court in such a case seems to be clearly authorized. Besides which, it is to be considered that the court has a more direct and peculiar interest in the fitness of the solicitor appointed, because that solicitor, when appointed, becomes as it were the minister and assistant, in a sense, of the court itself. For it is laid down, on the high authority of Lord Eldon, 6 Ves. 1, at the time when bankruptcies were under the immediate cognizance of the Court of Chancery, that the solicitor was to be deemed a minister of the court;' and if so, it seems to follow, on the same principle, that he is now a minister of the court in which the petition is prosecuted. It may be added to these remarks, that if I am right in holding the appointment made by the assignees in the present case to be of a nature tending to compromise the interests of the creditors and the claims of public justice; and if it be, indeed, true, as contended for, that the court has no power of interference; then it follows that the creditors and the public remain in this respect without protection; for I am aware of no other quarter in which an original jurisdiction on this subject can be supposed to reside. There would, therefore, be a great defect in the law; and although we know that such defects are occasionally discovered, I need scarcely say that they are never to be presumed, and that, in any case of doubt, it is to be taken as more probable that the law has intended its existing institutions to comprise some remedy for a given abuse, than that it has left that abuse wholly unprovided for. Under these circumstances, I should have thought it right to make a formal order on the assignees directing them to change their solicitor; but as they declared to the court at the last sitting, that, in the event of such an order being made, it was their intention not to obey the same, it would seem futile to take that course; and I therefore now proceed to order, and do hereby order, that the assignees be removed from their office, on the ground of their persisting in the choice they have made of solicitors, and refusing to obey any order the court should make for changing their solicitors; and that a sitting be held on the 23d day of the present month, at eleven o'clock in the forenoon, for the choice of the new assignee or assignees; and that the time of the sale of the bankrupts' property, now advertised for the 2d March next, be enlarged until the 16th March, by advertisement; and I do adjourn the last examination of the said bankrupts until the said 23d day of February, at eleven o'clock in the forenoon. "H. J. STEPHEN, Commissioner."

The commissioner afterwards, on the 11th February, added the following:

On the 11th day of February following, Mr. Stone, of counsel for the said assignees, and Mr. Abbott, the bankrupts' solicitor, being

Ex parte Bates and others.

both in court, I called their attention to the 151st section of the Bankrupt Law Consolidation Act, 1849, which I had omitted to notice in the above judgment, and which provides, that the assignees shall be subject to the orders of the court in their conduct as assignees.' "HENRY J. STEPHEN, Commissioner."

Bacon and Giffard, in support of the appeal. There is no case in the books in which it has been held that the commissioner has power to interfere with the assignees in their choice of a solicitor. If the creditors' assignees selected a solicitor who conducted himself with impropriety as regards the estate, or as against whom it became necessary to take proceedings under the bankruptcy, the commissioner might properly insist upon the removal of such solicitor; and if the assignees, in opposition to his wish, continued to employ their solicitor, they would be properly removable. The mere fact, however, that the commissioner, differing from the principal creditors of the bankrupts, entertained an opinion that a distant degree of relationship between the wives of the solicitors to the assignees and the bankrupts, cannot be maintained as a ground for the removal of such solicitors. The Bankrupt Law Consolidation Act contains nothing which is material upon the question, except a provision in the 40th section, which enacts, that the creditors' assignees shall be unfettered as to the choice or removal of a solicitor; at all events, so far as regards the interference of the official assignee.

[KNIGHT BRUCE, L. J. My impression is, that the assignees cannot be compelled to employ any solicitor except one of their own choice. How can they be compelled to rely on one in whom they may have no confidence?]

Not disputing the right of the commissioner to insist on the removal of the solicitor for misconduct, we contend that the grounds on which the commissioner has acted are insufficient to give him jurisdiction. The 151st section of the act, referred to by the commissioner, has reference to the conduct only of the assignees in the particular proceedings under the bankruptcy. The power of rejec tion given to the court by the 139th section applies to cases of misconduct on the part of the assignees in their office, and not to the case of their persisting in the employment of a solicitor against whom no misconduct is alleged.

Swanston and Roxburgh, who appeared for the petitioning creditor, were not called upon.

LORD CRANWORTH, L. J. I entertain some doubt whether, had I been in the place of the commissioner, and had to exercise a discretion, I should have acted as this learned commissioner has done. The whole matter, however, rested in the discretion of the commissioner, and this court ought not to interfere with that discretion unless it is satisfied that such discretion has been improperly exercised. For this reason I put the case, during the argument, of the father of the bankrupt being appointed solicitor of the assignees.

Ashley v. Allden.

In that, which is an extreme case, every one may see that the discretion which has been exercised by the commissioner would have been very probably a right one. That being so, and relationship being evidently in some cases a ground for interfering with the appointment of a solicitor, it is impossible in every case to measure the degree of relationship which is to influence the commissioner's mind. This may depend upon the state and habit of society in the locality, and other matters best known to the commissioner of the district in which the adjudication has taken place. That being so, I am of opinion that it would be extremely improper for the court, which can have no knowledge of the reasons influencing the commissioner in his conclusion, to interfere with that conclusion merely on the ground that one member of the court has a doubt whether he would himself have acted in the same way as the commissioner has acted. I think the petition should be dismissed, with costs.

KNIGHT BRUCE, L. J. If the learned commissioner had made an order upon the assignees to change their solicitors, or any one of them, what I should have thought of such an order it is totally unnecessary to say. Upon that I abstain from giving any opinion. But what the commissioner has done, in itself, I understand to be this. He has said to the assignees, "You are respectable men, and you have employed respectable solicitors, but there are reasons consistent with your and their respectability which induce me to think it would be better for the administration of the estate, and perhaps of justice, so far as this estate and bankruptcy are concerned, that other solicitors should be employed. That is my judicial opinion. Will you, therefore, retire from the assigneeship, or employ other solicitors?" In answer to this, the assignees, in effect, say, "We will do neither the one nor the other." I agree entirely with the conclusion my learned brother has arrived at. The petition will be dismissed, with costs, not out of the estate.

ASHLEY V. ALLDEN; JONES v. ASHLEY.1

April 30, 1852.

Infant-Next Friend-Costs where several Suits.

On a motion, some time previously, to have a second bill on behalf of an infant taken off the file, the court had not made an order in the terms of the motion, but by an order intituled in both suits had retained the second bill, and reserved the costs of it and of that motion. The question coming on now to be finally settled as to the costs of the second suit and of that motion:

Held, that it was not now open to the court to omit all provision for the costs of that second suit.

1 16 Jur. 460.