
    S. C. Muldrow, and John B. Bruce, Trustees, v. Isaiah DuBose, and Others.
    A bill by trustees to marshal assets and calling in creditors, after decree made, directing money to be paid in and creditor’s claims established, will not be dismissed at the instance of one of the plaintiffs, his co-plaintiff and the creditors objecting. [*377]
    Plaintiffs accepted a trust from B. K. Benton, as follows, viz: that they would hold and manage certain property conveyed to them by Benton, for the benefit of Benton’s creditors, his wife and children. The creditors pressing on them for payment, some of them having judgments, Muldrow & Bruce, (the former being the principal manager and actor in the matters,) filed this bill, calling upon the creditors to come in, establish their demands, and receive their portions, and praying an injunction against the creditors, as- to other proceedings. The injunction was granted, and other creditors came in. At February Term, 1834, an order was made by consent against Muldrow and Isaiah DuBose, (who it appeared had all the funds then remaining — the property conveyed, having been sold under the deed,) that they should pay six hundred dollars each to the Commissioner, by the first of October, then next, to be applied to the claims of the creditors. In the Spring of 1834, Muldrow gave to a creditor in Court, his notes for one thousand dollars, which were received by said creditor as so much towards the payment of his claim'already established before the Commissioner to a greater amount; some smaller amount paid by *Muldrow, to one or two of the other creditors, amounted to as much as he admitted to be due by Mm to the trust fund. A further amount of from nine hundred to one thousand dollars was claimed, after giving the notes above alluded to, and before the 1st October, 1834, Muldrow removed from this State, to the West, and wrote word to have his bill dismissed. The creditor to whom the notes were given was the largest but not the only creditor, and the amount due by Muldrow, was not the only available fund. (DuBose owed considerably.) It is not known that anything was said by Muldrow and the creditor, as to the application and receipt of the notes being instead of the six hundred dollars ordered to be paid to the Commissioner, though doubtless, they at 'the time supposed that such would be the effect; yet this supposition, on the part of the creditor at least, was coupled with the understanding that the ease would go on to a close, and the matters be finally decided by it. A dismission of the bill by Muldrow, after he had left the State, was never thought of by the creditor, nor intimated by Muldrow to him.
    In this stage of the proceedings, a motion was made by Muldrow, at February, 1835, to dismiss the bill; and resisted by Bruce and the creditors, on the ground that it would operate a fraud upon them — especially upon the creditors, whose claims would be delayed, and possibly barred, before they could again establish them.
    The Chancellor refused the motion, and this is an appeal from his decision.
    
      Ervin, for the motion.
    
      Wilhins, contra.
   O’Neall, J.

In a ease situated like the present, I think the bill cannot be dismissed by the plaintiff. It is true, this Court went very far, in Bossard v. Lester, 2 M’C. Ch. Rep. 419, in holding in a case in which the defendant had filed a cross bill, and there had been an order referring the accounts, that the plaintiff might dismiss his bill. The fact, in that case, that the defendant had asked and obtained leave to withdraw his’ cross bill, constituted a strong reason why a similar indulgence, that of dismissing his bill, should be allowed to the plaintiff. The Court in that case, however, very distinctly recognize the doctrine, that after the decree settling the rights of the parties, the plaintiff cannot dismiss the bill.

hailUO LU VV il-LljU UiCUlUUlO COJL guilLUl^U, CUlllt uu uuvu UU W1W. in and prove their demands; and praying for an injunction to restrain them from proceeding at law. The injunction was obtained ; and subsequently a decree for the payment into Court, of a sum admitted to be in their hands: this sum it seems has been paid to one or more of the creditors — a further sum is claimed from one or both of the trustees. Muldrow alone moves to dismiss the bill: this is resisted by Bruce, the other trustee, and the creditors who have come in and proved their demands.

In Lashley v. Hogg, 11 Ves. 602, there was a decree for an account with the usual direction for an advertisement for creditors: a petition was presented under an arrangement, with the consent of all parties and, all the creditors who had come in, the time having expired for dismissing the bill and disposing of the fund in Court. The Lord Chancellor said he could not dismiss the bill after a decree, except upon a re-hearing or appeal. But the object as to the disposition of the funds might be obtained by consent upon further directions, though the time had elapsed; yet the Court will let in creditors at any time, while the funds is in Court.

That case was a much stronger one for the dismission than this; there, all parties consented to the dismission : but as there had been a decree for an account, the Chancellor refused to dismiss the bill. In this case, a part of the fund had been decreed to be paid, and other creditors had come in and proved their demands. It cannot therefore be, that this plaintiff, Muldrow, against the wish of his co-plaintiff, Bruce, and all the creditors, should be allowed now to dismiss his bill. The Chancellor was right in- overruling his motion : — his decision is affirmed.

Johnson, J., and Harper, J., concurred  