Page:Federal Reporter, 1st Series, Volume 5.djvu/728

 716 FEDERAL REPORTER. �ruling the point has been found. The bankrupt's counsel Bubmits that the non-assenting crediter cannot question the action of the surviving partner, who is responsible alone to the administrator of the copartner, or to the firm's creditors, if he violates his trust. But I am of opinion that non-assent- ing creditors have a clear right to insist that the certificate of discharge shall not be signed, unless it is shown by the record that the bankrupt is entitled to it. They may object to in- valid or insufficient assents, for the reason that their own debts are affected and may be discharged if they be pernaitted to operate contrary to law. �The learned counsel for the objectors insists that by the death of a partner the scope of the partnership is restricted to winding up the concern, and the powers of the survivor are correspondingly so restricted that he can appropriate notbing to himself, nor do anything which will operate to the in jury either of the creditors of the firm or the administrator of the deceased partner's estate ; that he cannot, without con- gideration, release a debt due the firm, or give away any por- tion of the partnership effects, and that his duties are con- fined to realizing ail that is possible out of the assets for the payment of the creditors of the firm and distribution to the deceased partner's representatives. �The application of this argument to the case in hand is that it is the survivor's duty to keep the debt against this bank- rupt alive to be coUected out of future acq[uisitions, and that, by assenting to his discharge, he thereby extinguishep the debt in violation of this duty, and entails a loss upon those interested, which he has no power to do without their con- sent. No case is oited which discusses the power of a sur- viving partner in this matter of consenting to a bankrupt's ■discharge, and the argument is deduced from principles applied in common-law or equity cases in restraint of a surviving partner's power over the partnership property and in aid of those interested in its most beneficiai appropriation to the pur- poses for which he holds it. Daniel.y. Daniel, 9 B. Mon. 195 ; Bookout V. Anderson, 2 La. An. 2e6; Rogers v. Batchelor, 12 Pet. 221; Vance v. Campbell, SHumph. 524; Martin v. Kirk, ����