[1] No receiver or trustee had been appointed, but only a custodian whose sole duty was to preserve the assets and await the appointment of a trustee. The order for examination was obtained by the petitioning creditors and it was conducted *64by their counsel. The application to punish for contempt was made by an outside creditor, without previous application to the court for leave to intervene. We agree with the District Judge that orderly procedure requires a preliminary application to the court for leave to move, before an individual creditor undertakes to substitute himself for receiver, trustee, or petitioning creditors in a proceeding to enforce process or orders which they have obtained.
[2] Passing-this point, however, the record shows that Cantor was examined before the special commissioner as to the keeping of such a book and its whereabouts. He testified that he last saw the book in the office of the firm shortly before the appointment of the custodian, did not take it himself, but left it where he saw it. The testimony of the witness as it reads is, no doubt, rather unsatisfactory; but we did not have the advantage of hearing it as he gave' it and of observing his demeanor on the stand. There is no certificate of the special commissioner, who did hear him, indicating that in his opinion the witness testified falsely, or held back information which he might have given. The District Judge held that, in the absence of such a certificate, he was not persuaded to the conclusion that the witness’ statements were false or that he was concealing the book. Still less can we, who never saw or heard him decide on mere suspicion that his testimony was perjured, and, unless his statements are false, there is no evidence which will support the conclusion that he has the book or knows where it is.
