Upon other pro ceedings. for the application appear on the face of the bill, or were known to the defendant at the time of filing the bill. (1) The usual security for costs required of a plaintiff in equity amounts to 40%.; and the Court will not, even under special circumstances, depart from the general rule in this respect. (2) 865 CHAP. XXIII. OF THE SOLICITOR TO THE COMMISSION. SECT. 1. Of his General Rights and Duties. 3. Of the Taxation of his Bill, and his Remedy for 4. Of Actions and other Proceedings by and against 5. Of his Liability for Misconduct, and herein of his SECTION I. Of the General Rights and Duties of the Solicitor. THE solicitor to the commission is nominated by the ma- How nojority of the assignees, and when so nominated is entitled minated. to the custody of the proceedings under the commission. (1) He may also be removed by such majority, and in that case must deliver up the proceedings under the commission to any other solicitor who may be appointed in his room; for he has no lien upon them (as he has upon other papers) for his costs. (2) The solicitor is a minister of the Court (3), and is bound so far to watch over the interests of the bankrupt's estate, as to protect it even against his own demands—that is, where other parties have preferable claims upon it. Thus, in the case of a separate commission, it his duty to attend to the interest of (1) Ex parte Watson, 1 C. B. L. 105. Ex parte Scarth, 15 Ves, 293. Ex parte Tomlinson, 2 Rose, 66. (2) Anon. 2 Rose, 207. Ex parte Rights and duties. cation. the separate creditors, and not to permit the joint debt of himself and his partners to be proved to the prejudice of those creditors. (1) It is inconsistent with the duties, also, of Disqualifi- the solicitor to the commission, to act as solicitor for the bankrupt (2); though it has been held to be no cause for superseding the commission, that he is also assignee. (3) He cannot, however, act as banker to the estate (4); nor can he be a commissioner under the same commission to which he acts as solicitor. (5) He is disqualified, also, from be coming a purchaser of any part of the bankrupt's property, even though the purchase is perfectly fair on his part, and he bids openly in the presence of different persons interested in the property. (6) Cannot take a bond or gift from his client during of a suit. So in order to prevent any abuse of the great power and influence which an attorney must generally possess over his client, and which might (if uncontrolled) enable a dishonourable practitioner to commit the grossest impopendency sitions-the Courts will never give effect to any bond or security, which is given or entered into by a client to his attorney during the pendency of the cause or proceeding in which the attorney is retained. In such a case the security will be either set aside entirely — or, at any rate, be restricted in its operation to the amount of such fees, as may be found due to the attorney upon a regular taxation of his bill. The principle of these decisions is the policy of the law founded upon the safety and convenience of mankind, and is quite independent of all fraud in the particular transaction, according to the ordinary understanding of the term. An attorney, therefore, is not permitted to take a (1) Ex parte Story, Buck. 74. and du ties. gift from his client while the relation subsists, though the Rights transaction may be, not only free from fraud, but the most moral in its nature. (1) But after a suit is entirely at an end, a client may then give his attorney a reward for services over and above his legal fees. (2) ed in issu ing a com mission. In suing out a commission against a bankrupt, the solicitor must be careful to observe the rules and regulations which have been at different times laid down by the Court for his conduct in this respect (3); otherwise, the commission will not only be superseded, but he himself will be made to pay the costs. By a general order of Lord Rules to Loughborough (4), it is provided, (as we have before be observseen (5)) that after the expiration of fourteen days from the date of a town commission, and twenty-eight days in the case of a country commission, the commission is supersedable for want of prosecution; and that the application for a new commission, which shall (in the course of the following day) be first made by any other attorney or solicitor than the one at whose instance the supersedable commission was issued, shall be preferred to an application for the same purpose by the attorney, who sued out such supersedable commission. But by a subsequent order (6), any solicitor, who acts merely as agent for the attorney in suing out the first commission, is not prevented from applying for a new commission as agent for a different attorney, provided he indorses upon the affidavit his own name, and the name and place of residence of the person for whom he acts as agent in suing out such second commission. And by the same order, whenever any attorney sues out a commission as agent for another, he is required to make a similar indorsement. An attorney or solicitor cannot, as has been formerly Cannot be observed (7), be made a bankrupt himself in his profes (1) 2 Atk. 298. Cas. temp. Talbot, 115. 2 Ves. 549. 4 Bro. 350. 2 Ves. jun. 199.; and see 7 Ves. 584. 3 Anstr. 769. (2) 2 Ves. 260. 2 At. 30. (3) See ante, Ch. V. Sect. 1. made bankrupt quá attor ney. Rights and du ties. As to the production of the pro ceedings. sional capacity; though he is liable (like any other person) to a commission of bankruptcy, if he acts in the character of a scrivener, or follows any other calling which the bankrupt law has denominated a trading. The solicitor to the commission is, in general, the depositary of the commission and the proceedings; and he is bound to keep them in safe custody, until required by the assignees, or an order of the Lord Chancellor, to deliver them up to any other person; for (we have already seen (1) he has no lien upon them, and if he refuses to produce them when legally required, costs will always be given against him. (2) But it seems, that he has a lien upon the proceedings under a commission which has been superseded, and cannot be compelled to deliver them up until his costs are paid. (3) If he is served with a subpœna duces tecum to produce the proceedings in a collateral action, the better opinion seems to be that he is bound to do so (4), and that this is an obligation incumbent upon him as a public duty (5); though Lord Kenyon in one case held the contrary, saying that the proceedings belonged not to the solicitor but to the assignees. (6) Conflicting opinions have, also, been expressed by dif ferent judges upon his liability to produce them when the production might tend to the detriment of his clients the assignees-Lord Chief Justice Abbott holding, that he was not compelled to do so (7)- whilst Lord Gifford, on the contrary, decided on one occasion that he was bound to produce certain books of the bankrupt, in order that entries relating to the matters in issue, but to them alone, might be read upon the trial — notwithstanding there was in this case a possibility of the assignees being prejudiced by the (1) Ante, p. 865. (2) Ex parte Bullen, 1 Rose, 134. Ex parte Hardy, ibid. 595. Ex parte Titley, 2 Rose, 85.; and see Ex parte Sandison, 1 Rose, 275. (3) Ex parte Shaw, 1 G. & J. 124. (4) Cohen v. Templar, 2 Star. 260. per Holroyd J. (5) Pearson v. Fletcher, 5 Esp. 90. per Lord Ellenborough. (6) Bateson v. Hartsink, 4 Esp. 45. (7) Laing v. Barclay. 5 Star.38. |