Page:Federal Reporter, 1st Series, Volume 5.djvu/727

 IN EB SATJLS. 715 ���; in re Sabls, Bankrupt, : ' : �(District Court,W. D. Tennessee, ^uly 21, 1880.) ■ �1. JiANKTiSPTot—DiScjiÀKGE— Absent ov Cejeditôbs— Non-Assenting �CuBDii'OHS May Objbct. �Non-assenting creditors, who liaveproved tliçir debts, may question the validity of'any asseht given in favor of the discharge, and object to granting a certifieate, by showing that the proper number and amount of creditors have net assented. �2. Samb Subjbct — Partnbbs|iip— SuEViviNG Paiitnek— Rblbabb dp �DEBT — CrBDITOKS as FuNCTIONAniES. �A surviving partner may assent to the banlirupt's discharge In the name of the flrm, and it is nof necëssary thiit the bankrupt should procure the assent of the administrator of the deceased partner or the creditors of the flrm. His power to do thia may be derived from gen- erai principles governing his relation to those interested in the debt proved by him, or the flrm, and abo as an implied grant of power ' from the bankruptcy statute itkelf, Creditors are, under the bankf- rupt law, in some senae, f unctio^ai'^es performing guosi-ministerial or 5Ma«i-judicial duties. �In Bankruptcy. �L. B. McFarland, for bankrupt. �Humes e Poston, for creditors. �Hammond, D. J. One of the creditors àssenting to the bankrupt's discharge is J. H. McClellan, as surviving partner of the finh ôf Guy McClellan & Co., the othôr partner being dead. If this debt be counted the bankrupt is'entitled to his discharge because of having secured the assent of a sufficient number and amount of hiô creditors who have proved their debts. But if this debt, which was aleo proved by the sur- viving partner, be rejeeted in the count, there is a deficiency of assehting creditors, and the discharge must be refused. The objection is made by a non-assenting crediter that a sur- viving partner cannot assent so as to bind either the admin- istrator of the deceased creditor or the creditors of the firm, for ■whom it is argued he is a trustee; and therefore the assent of these cestuisqm trust must likewise have been pro'cured to entitle the bankrupt to his certifieate. �The question has been argued on both sides with excep- tional thoroughness, ànd it is said by counsel that no case ����