Ex parte Calendar , 4 F. Cas. 1044 ( 1848 )

JUDSON, District Judge.

It will not do for one creditor, or one sot of creditors, to institute proceedings against a bankrupt, and before the day of trial comes on, undul-an order of notice from the covu-t, to receive payment of their own debt, in full or in part, and then, by withdrawing their petition, prevent the general creditors from proceeding with the case. All persons having an interest as creditors, are by law parties, and may come in and have an appearance ■entered, and being parties, they may proceed with the cause. The right here claimed, if allowed, would open the door for a fraudulent combination, which, in all these cases, might be practiced, to the great injury of the creditors. If, indeed, the bankrupt, having the possession of the property, between the filing of the petition and the day of hearing, can carve out sufficient to compromise with the petitioning creditors, and enter into an agreement for a withdrawal, he may as well can-y away the residue, or appropriate it to other purposes than an equal division of it among his creditors. This course of proceedings would invite fraud, instead of preventing it. A man in failing circumstances, procures his friend to petition against him, and while the same is pending in court, the general creditors are notified to appear on the day of hearing; they rest quiet under this proceeding, believing it to be in good faith, and when the day arrives, the property may be all paid over to this petitioning creditor, or a part of it, and the residue is taken out of the jurisdiction of the court. The petitioners, under the circumstances of this case, cannot be permitted to take the case out of court. They may, if they please, go out themselves, but they cannot take the case with them; when once begun, it is for the benefit of all, and all or any of the creditors may proceed w'ith the cause. The motion to withdraw is disallowed, and the motion of the other creditors to appear is allowed.