Ex parte De Tasted, 1 Rose, 324; Ex parte Surtees, 12 Ves. 10; Ex parte Townshend, 15 id. 470; Ex parte Shaw, 1 Glyn & J. 127; Shelton v. Walker, 10 Law Reporter, 124. Shaw, C. J., in this last case, which occurred under the insolvent law of Massachusetts, said: "The grounds of complaint against the assignee in this case, were, that he had exercised undue influence in procuring his appointment as assignee; that his interests were adverse to those of the other creditors; and that he had used improper means to secure his claims against the insolvent. It had been decided in England, that one who had an adverse interest, or who pursued his interest in opposition to that of the creditors generally, was an unfit person to be assignee. It was not merely on account of the large amount of the demand for which the assignee might be interested; for all creditors might be supposed to have opposing interests in their claims upon an insolvent estate. But to disqualify him, he must be in such a situation as to be under temptation to secure himself from a scrutiny to which he would have been subjected had another been assignee, or he must have manifested some intention to use his position to obtain some undue advantage. It has been held, under the present law, that the assignee must not be related to the bankrupt: Ex parte Powell, New Jersey, 2 Bank. Reg. 17; and that he must be a resident of the district: Ex parte Havens, New Jersey, I Bank. Reg. 126.
(ss) Section 18. (st) The following points have been decided under the English statutes: If, accidentally, a large proportion of the creditors have been absent at the choice of the assignee, a new choice may be ordered. Ex parte Greignier, 1 Atk. 90; Ex parte Hawkins, Buck, 520; Ex parte. Dechapeaurouge, 1 Mont. & McA. 174; Ex parte Edwards, Buck, 411. And if, after choice made, the commissioner should decide that the person chosen is, for any reason, unfit for the discharge of the duties, and refuse to admit him to the care of the estate, an appeal lies to the Supreme Court of Bankruptcy. Ex parte Candy, 1 Mont. & McA. 197. And
*The statute, to a considerable extent, defines, or declares his duties and his powers. Some cases have already the court also in general has power to remove an assignee who proves incompetent, from any reason, to discharge his office; or if there has been a fraud in procuring the appointment. In Ex parte Shaw, 1 Glyn & J. 156, Lord Eldon said: " Assignees" owe a duty to every creditor, and each creditor owes a duty to the other creditors. With respect also to the solicitors under the commission, I can only say, that it sometimes happens that the best men are employed for parties having adverse interests; yet I cannot permit my observations to be closed without saying that it is the duty of the solicitor employed by the bankrupt, if he find that he is employed by the assignees, to see that he can do his duty to every creditor, as well as to the bankrupt. If he is the agent of all, he must do his duty to each and all of them, however difficult it may be to discharge that duty. I must say, that I never saw proceedings in any bankruptcy in which there was a necessity for the interference of the court more imperious than in this; for whether Carroll can or cannot prove the rest of his debt (and it would be improper in me to express an opinion on that part of the subject, even if I had formed an opinion upon the merits of it), yet I cannot read the proceedings without observing, that the case calls for much adverse examination. I take into consideration all the other circumstances that have occurred, and, without saying whether, if / were bound to decide this question merely upon the interposition of the bankrupt, I could get satisfactorily to the conclusion what were the motives which induced the nomination of these parties, after a laborious research into the evidence, I have no difficulty in stating, that, taking the case altogether, if the nomination had been carried into execution by assignment, I should have been of opinion that Carroll stands under circumstances in which he should not be assignee." So if the assignee buy in the estate of the bankrupt, or a portion of it, the general rule is to remove him. Ex parte Alexander, 2 Mont. & A. 492. So the court will remove an assignee who converts to his own use the property of the bankrupt. Ex parte Townshend, 15 Ves. 470. The case was a petition to remove assignees under a commission of bankruptcy, and to charge interest for money, part of the bankrupt's estate, received by one of the assignees, paid in at his banker's, to his own account, and used as his own property. The Lord Chancellor said: "Under these circumstances, therefore, the former assignees having been actually discharged for this very reason, using money, part of the bankrupt's estate, as their own, and new assignees chosen in execution of the principle respecting such use of the property, no substantial reason appearing for not having made this money the subject of dividend, being taken by this person, one of the new assignees, placed by him at his banker's, used as his own money, his clerk furnished with authority to draw it out as he pleased, and actually doing so, 1 must, by enforcing this rule, if possible, convince persons standing in the situation of trustees, as assignees in bankruptcy, that they are not to make use of the bankrupt's estate for their own private purposes. For that reason alone, I shall direct a meeting to be called for the purpose of choosing an assignee, instead of that one who has made this use of the property." And in an early case Ex-parte Halliday, 7 Vin. Abr. 77, where the commissioners of the bankrupt's estate had charged more than 20s. apiece at each meeting, and likewise ordered great sums to be charged for their eating and drinking, the Lord Chancellor declared them incapable of longer holding their office. Ex parte Reynolds, 5 Ves. 707. So if the assignees remove from the State in which the decree issued, or beyond the jurisdiction of the court by which the decree was issued. In Ex parte Grey, 18 Ves. 274, the Lord Chancellor said: "I am clearly of opinion that the assignee ought to be removed. He is trustee for the bankrupt and the creditors. Yet, whilst he is resident in Scotland, I have no hold over him, and can reach him with no process." And see Ex parte Leman, 13 Ves. 271. The cases are numerous in England, where the right of removal has been considered. In America, it seems to have been little discussed. We cite some of the leading and most instructive cases on this subject: Ex parte Rapp, 1 Deacon & Ch. 461; Ex parte Thorley, Buck, 231; Ex parte Copeland, 1 Mont. & A. 306; Ex parte Rolls, 3 id. 702; Ex parte Mills, 3 Ves. & B. 139; Ex parte De Tasted, 1 Rose, 324, 1 Ves. & B. 280; Ex parte Morse, 1 De Gex, 478; Ex parte Nash, 1 Deacon & Ch. 445; Ex parte Bar-nett, 2 Mont. D. & De G. 692; Ex parte Shaw, 1 Glyn & J. 127, above cited; Ex parte Molineux, 3 Mont. & A. 703; Ex parte Candy, 1 Mont. & McA. 198; Ex arisen in which * questions relating to these rights and duties have been determined. Thus, the assignee has nothing to do with property held by a creditor in pledge, and not worth the sum for which it is security. (su) As he represents the whole body of the creditors, he may and should contest the validity of any instrument by which one of them obtains a preference over others, (sv)1 He takes all property subject to existing and valid liens, (sw)2 And should surrender to the proper owners, property found by him in the possession of the bankrupt, but not belonging to him. (sx) He may recover by summary proceedings in the district court, property of the bankrupt fraudulently disposed of by him. (sy) And, under authority from the court, may finish chattels, which are unsalable from incompleteness, at the cost of the estate, (sz)