Page:Federal Reporter, 1st Series, Volume 10.djvu/133

 ALLEN V. THOMPSON. 12J �to appcar by direct proceedings that there was a want of it. Id. § 124. It is not necessary to go into the technical complications of this sub- ject here, but only to advert to the distinction, that we may have it in raind in considering this case. There is another familiar principle, that no man shall be bound by a deeree injuriously affecting his interests without notice of the proceeding, either actual or construct- ive, to be given as prebcribed by law for the purpose of binding him. Now, it is one of the peouliarities of our late bankruptcy practice that, in a case of voluntary resort to the court, an adjudication, and necessarily an implied judgment that the court has jurisdiction, fol- lows upon the mere filing of the petition without notice to anybody. It is true, the register was required to examine the petition and sched- ules and certify to their formai compliance with the requirements of the law, and if he found them defective in jurisdictional aTennents there would be no adjudication ; but as such a defect would rarely appear, the form of the petition being preacribed by the raies, ordi- narily the objection to the jurisdiction would rest in facts contrary to the averments of the petition. It cannot be that creditors are pre- cluded by a judgment so made from taking objection to the jurisdic- tion; but I do not think it follows from this, as has been adjudged, that the objection oan be made at any time during the progress of the case, and in opposition to the discharge, or on petition to set the certificate aside. After the adjudication the very next step is to notify the creditors formally of the proceeding, and effectually to bind them to it. By this notice the creditors became parties to the pro- ceeding in the sense that they are permitted to come in and protect their interest, and are precluded if they do not. To my mind the proposition that they may come in, prove their debts, choose an assignee, distribute the estate, and take all the benefit of the proceed- ing they can have, and then when the debtor applies for a discharge object that the court has no jurisdiction to grant it, is intolerable. Why should they not, when notified of the proceeding, in analogy to other cases, make objection to the jurisdiction in the beginning? And why, if they prove their debts without taking this objection, should they not be considered to have waived it? If it be con- ceded that, in cases at law or equity, where the record shows a want of jurisdiction on its face the objection may be taken at any time; on the other hand, if it show jurisdiction on the face the showing is conclusive, unless there be an objection taken by plea in abatement or otherwise in limine. But I am unwilling, for my part, to extend any principle that would permit a proceeding to be vacated for want ��� �