Bargebur v. Their Creditors , 2 Mart. (N.S.) 520 ( 1824 )

PORTER, J.

delivered the opinion of the court. In this case an application is made for a rehearing. The point on which the case was decided, appeared to us on the first consideration of it extremely clear ; it was simply this,that an order of the district court decreeing the syndic of an insolvent's estate, to produce his bank book for the inspection of a creditor, was not a "grievance irreparable," and that no appeal lay from such a decision to this tribunal. After attentively weighing the arguments by which this application has been supported, we still continue of opinion, that an order on a syndic to produce his bank book in court, does not, nor cannot in any hypothesis, work an irreparable injury :-indeed if the syndic be acting honestly, and wishes to continue in the same course, it requires some acuteness to conceive how such an order can work any injury whatever, still less an irreparable one.

The opinion, which we expressed, has been principally impugned on the ground, that as the court has decided in another case, the creditor might appeal on the refusal to grant such an order it must follow, the syndic enjoys the same right if it be accorded. And we have been told that "if justice be even handed, that which is meted to defendant, is meted to plaintiff." The remark is certainly true, if the parties stand in the same situation; but a little reflection is sufficient to shew that in this instance they do not; and as the effect of the decision was not the same on both, their rights cannot be similar.

This is manifest by a moment's consideration of the consequences of such an order; and first as to the creditor. If the application be rejected, there is an end put to all enquiry and investigation; the right is concluded, and should the syndic be wasting or misapplying the money intrusted to him, an irreparable injury may be done by denying the motion.

The granting it on the contrary, commences an enquiry into the conduct of the syndic; but decides nothing as to the correctness of it, and leaves him open to appeal from any order that may hereafter be rendered, which really affects bis interests.

Supposing the right of a creditor to have a Syndic, who was acting improperly removed, to be the same, as that of a syndic, who was faithfully discharging his duty not to be displaced, the decision which refuses a motion of this kind, is precisely alike in its effect, on the former, as an order of removal would be on the latter, so as to any other consequence that would follow the enquiry.

Therefore until some erroneous decision be made, after the investigation is gone into, on matters affecting the interest of the syndic, he cannot stand with the same rights as the creditor to whom all enquiry is denied. There is the same difference which exists between proceeding to try a cause, and non-suiting the plaintiff.

The counsel for the syndic has contended with a great deal of earnestness, that the decision, which compelled him to produce his book, was a grievance irreparable, because he might be called on every day and every hour to shew it,-that if A has this right, B. has, and so on through the alphabet. We suppose they have, and think it very proper they should; and if the appellant feels it a great and intolerable hardship, to be compelled to give this satisfaction, to any who claim an interest in enquiring into his conduct, he should resign; for his-complaint can find neither sympathy nor relief from this tribunal. And even if the order be made at the request of one not interested, still as we have already said, it works no irreparable injury.

Several cases heretofore decided in this court, shew that the denial of a right claimed, furnishes ground for an appeal, when the grant ting of it would not:-refusing a continuance or a new trial, have been held sufficient to enable the party to bring the cause up; according them has not. 4 Martin, 489, ibid.508, 11, 14, ibid. 266, 12, ibid. 488.