Brangon v. His Creditors

Myrick, J. We are of opinion that each creditor may file his opposition to the discharge of the debtor, and may control the same to the extent of withdrawing, whether other creditors consent thereto or not.

Judgment affirmed.

Morrison, C. J., Thobnton, J., and Shabpstein, J., concurred.

Ross, J., dissenting. This was a proceeding in insolvency under the Insolvent Act of 1852. Within statutory time, [395]under the provisions of section 20 of the act, Henry Cowell, a dissenting creditor of the insolvent, who had proved up his claim, filed a written opposition to the discharge of the insolvent, grounded on fraud. The accusation was answered by the insolvent, but before any trial was had of the issues raised by the answer, the attorneys for the insolvent and the opposing creditor stipulated to withdraw the opposition and answer, and to allow the proceedings in insolvency to go on, as if no opposition had been filed. To that, however, the appellant, who was also a schedule creditor of the insolvent, and had proved and filed his claim, objected, upon the ground, as stated in his affidavit, “that the stipulation was fraudulently, collusively, and corruptly entered into by and between said Cowell and said Brangon, whereby, in consideration of the sum of two thousand five hundred dollars, then paid or secured to be paid by said Brangon, and at the request of said Brangon, the said Cowell agreed and promised to withdraw and dismiss the said opposition theretofore filed by him in the matter above entitled.” Upon this affidavit the appellant asked leave to intervene and prosecute the opposition proceeding, offering, at the same time, to substantiate by proof the charges which he had made in the affidavit as to the collusion and fraud by which the stipulation had been made, and the offer was met by the insolvent’s attorney, who stated “his readiness to prove, by witnesses then present, that such charges of collusion and fraud on the part of Cowell and the insolvent were utterly false and untrue.” But the court refused to hear the affirmations and denials of fraud in procuring the stipulation, denied the application of the appellant to intervene, dismissed the opposition, and afterwards discharged the insolvent debtor from his debts and liabilities.