Page:Federal Reporter, 1st Series, Volume 5.djvu/312

 SOO EEDBEA.L EBEOWCBR. �T. M~ Wheeier, iut hv.nkn-ipi. . �C, W. Bangs, for opposing creditor. �Choatb, D. J. This is an application for the discharge of Georg« M. Wheeler, one of the bankrupts. Several specifi- cations have been, filed in opposition to the disoharge. A prelirahiary objection is taken that the petition for discharge was prematurely filed, and must be therefore dismissed. Wheeler was adjudicated a bankrupt on his own petition, August 14, 1877. The petition for his discharge was filed on the twentieth of December, 1877. Under this adjudica- tion a first meeting of creditors was oalled and held, but it did not resuit in the_ appointaient of ,an assignee, because, meanwhile, proceedings had been taken for including William Bailey Lang, who had been a copartner of Wheeler, in the adjudication; and, on the seventeenth of November, 1877, Lang and the firm of W. Bailey Lang & Co. were also adju- dicated, and. thereupon a warrant issued to çall a meeting of the creditors of both bankrupts,' which was held on the twentieth ci Deqember, 1877, at .which aç assignes was elsctad, who qualified and received an asssignment on the -t^eriiyisixth of ' Decernbôr, lS7f. There was, therefore, no ,|igsignee at the time the petition was filed. '. Pribr to the filing M the petition for discbarge debts had been proved against 4he bankrupt. The statute pi*ovides (Eev. St. 5108) that "at any iiiine af ter the expiration of six months from the adjudi- cation of bankruptcy, or if no debts have been proved against 4he bankrupt, or if no assets have come to the hands of the assignee at any time after 60 days, * * * the bankrupt may apply to the court for a discharge." I think it isclear that no application for a disoharge r an properly be made Tvithin six months after the adjudication, if debts have been proved, unleas there is an assignee duly qualified to act; be- cause, until there is an assignee, it cannot be ascertained that no assets have come to his hands within the meaning of i.he statute. The form of the petition prescribed by the supreme court, in case it is presented within less than six months, shows clearly that this was the view entertained by ����