cases mentioned. In re Sausmerez, 1 Atk. 85, it was ruled an executor can sign the certificate, and in a case cited in Bacon's Abridgment, tit. "Bankrupt, K," (1st Ed.) and note (Ed. 1860) from Green. 260, where the debt proved devolved on the bankrupt himself, it was held he might consent to his own discharge as a creditor, "because otherwise he never could be released, as no one else is or could be qualified to sign the certificate for him." Hilliard, Banky. (2d Ed.) 316, note a.

In the case of Barrett, 2 N. B. R. 533, where it was ruled that one partner may execute a power of attorney to vote for an assignee, and bind his copartners, the exception in favor of such a power is supported as a necessity in bankruptcy cases, upon the authority of some of the English cases I have cited here. Our own bankrupt law, in the matter of the discharge and this assent of creditors, is modelled on the English statutes under which these decisions were made, and they are quite sufficient as authority. The learned counsel for creditors here insists that the administrator of the deceased partner can, no more than the surviving partner, assent to the discharge, and for the same reasons which he so ably presents. The result would be that the bankrupt cannot have any assent on this firm's debt, although it may be proved and counts against him; and we can imagine a case where, all or a large proportion of the creditors of the bankrupt being surviving partners, he could get no discharge at all. It cannot be that he would have to go to all the creditors of Guy McClellan & Co., and all the parties interested in. the deceased partner's estate as cestuis que trust, and procure their assent. Ex parte Dubois, 1 Cox, 310; Ex parte Rigby, 19 Ves. 463. These cases do not apply to executors or partners. This demonstrates the necessity of making this power reside in the surviving partner in bankruptcy cases, whatever his common-law powers may be to release a debt.

Moreover, I am of opinion that the power may be supported as a statutory power under the bankrupt act itself. It is true, this assent operates to extinguish the interest of the administrator of the deceased partner in this debt against the

bankrupt, but so it does to extinguish the debts of all the non-assenting creditors. These assenting creditors, when sufficient in number and amount, by their assent extirpate all the non-assenting debts. Where do they get the power to do this? Clearly, from the statute. The truth is, they are functionaries-quasi ministerial, quasi judicial, it may be— charged in part with the administration of the law, and, as such, the depositaries of certain powers, among which is that of determining when the bankrupt shall be discharged and when not. Hilliard on Bankruptcy, (2d Ed.) 239, 241. The law discharges the debts, the law performs the operation of releasing them, the creditors being merely donees of a power to determine the cases in which the law shall so operate. The legislature has left it to the discretion of the creditors whether they will or not assent to the discharge, and this discretion is absolute. Lord Eldon observes that the law has left the bankrupt entirely to the caprice of his creditors to sign the certificate or not, under a high moral obligation, perhaps, but no legal obligation to do it, however great his atonement. And he says "there can be no stronger proof of the good nature and humanity of the British character than the readiness with which creditors sign." Ex parte Joseph, 18 Ves. 340; Ex parte King, 11 Ves. 417; Ex parte Gardner, 1 Ves. & B. 45; Ex parte Cridland, 3 Ves. & B. 95, 103; Hilliard on Bankruptcy, (2d Ed.) 315, 316. The statute does not name a surviving partner as one of the donees of this power, but from necessity, and by all the analogies of the law, it is faily inferable that it was intended he should be the donee, rather than innumerable and remote beneficiaries of the quasi trust he executes. The release is not without consideration, for the bankrupt law enlarges the remedies of the creditors, and gives them inquisitorial and other powers they would not otherwise enjoy. It also gives ample protection against fraudulent bankruptcies by withholding a discharge in all cases of misconduct by those who ask its relief.

Let the bankrupt be discharged.

1. DISCHARGE-EFFECT OF PROVING A DEBT AFTER THE DAY TO SHOW

CAUSE.

A debt proved after the day appointed to show cause against a discharge will not be reckoned in determining whether the assets be equal to 30 per centum of the claims proved against the estate, nor whether the requisite assent, in number and value, of creditors has been obtained. A debt so proved cannot be allowed to influence the question of discharge in any way.

Cases cited: Re Borst, 11 N. B. R. 96; Re Derby, 12 N. B. R. 241; Re Antisdel, 18 N. B. R. 290, 298.

In Bankruptcy.

Wm. M. Randolph, for bankrupt.

Humes & Poston, contra.

HAMMOND, D. J. The petition for discharge having been filed the fourth day of January, 1879, was assigned for the hearing before the register at Trenton, when and where all creditors were notified by publication, as required by law, to attend and show cause why the discharge should not be granted; the same time and place was appointed for the second and third meetings of creditors. No debts had at that time been proved, nor did any creditors appear at this meeting either to prove their debts or to oppose the discharge. But subsequently, on the ninth of January, 1879, M. L. Meacham & Co. proved their debt and filed it with the register on the twenty-second of January, 1879. The amount of their debt is $1,512.36, upon which the assignee paid all the money in his hands, being the sum of $95. No other creditors have proved their debts. This payment not amounting to 30 per centum of the debt proved, and there being no assent of creditors, the question is whether the bankrupt is entitled to his discharge. The register certifies the facts in his final report, and submits the question.

For the bankrupt it is insisted that the debt proved cannot be counted because the proof was made and filed after the day to show cause; that while it may be true that a creditor may prove at any time before final distribution for the purv.5,no.8-46

pose of receiving dividends, the question of the bankrupt's discharge is to be determined by the facts as they existed on the day to show cause; and that the right to a discharge having once attached is complete, and not to be defeated by subsequently filing proofs of debt.

I do not think that the accidental fact that the second and third meeting of creditors was held, under general order No. 25, on the same day appointed for the creditors to appear and show cause against the discharge, can influence the question submitted by the register. These meetings were held only for the purposes prescribed in sections 5092 and 5093 of the Revised Statutes, but for convenience were assigned for the same day as that appointed under section 5109 for the creditors to show cause against the discharge. Section 33 of the original act of 1867, (Rev. St. 5112,) as amended by the act of July 27, 1868, (15 Stat. 228,) required the assent of creditors to be filed in the case at or before the time of the hear ing of the application for discharge; and, as it required the assent only of the creditors "who shall have proved their claims," it is manifest that under that section no other creditors could be counted in determining whether the requisite assent had been given, except those who had at or before that time proved their claims. Re Borst, 11 N. B. R. 96. And although section 9 of the act of June 22, 1874, (18 Stat. 180,) does not prescribe the time within which the assent must be given with the same particularity, it has been ruled that there has been no change of the original act in that respect. Re Derby, 12 N. B. R. 241.

Again, by general order 24, a creditor opposing the discharge for cause under sections 5110 and 5111 must appear and enter his opposition on the day when the creditors are required to show cause. This day, then, seems to be the time. fixed for the termination of the right of the creditors to make whatever opposition they have to offer. The act can have no other meaning. It is for this purpose the creditors are notified, and it has been held, after careful consideration of the cases, that creditors who have been duly notified and made no opposition, are to be regarded as consenting to a discharge. Re Antisdel, 18 N. B. R. 290, 298.

I cannot see why the same principle does not apply here. Before this debt was proved, and at all times after the expiration of the day appointed for the creditors to show cause, until this proof of debt was filed the bankrupt was entitled on the record as it stood to his discharge, there being no debts proved, and no opposition made. If the case had been brought to the attention of the court within those dates he would have been discharged before this proof of debt was filed. He cannot be now defeated of his discharge by filing a claim too large to bring his case within the amount of assets required to entitle him to a discharge. A creditor, if he wishes to influence the question of the bankrupt's discharge, must prove his debt on or before the day appointed to show cause, so that it may be reckoned in determining whether the assets be equal to 30 per centum of the claims proved and counted against it, if he withholds his assent in writing; or else he must appear on that day and enter his opposition for cause, and file his specifications within the 10 days allowed for that purpose. Failing to take either of these steps, the weight of his claim is lost, and the right of opposition gone. He must, then, be regarded as consenting to a discharge, although he subsequently prove his debt and receive less than 30 per centum of his claim.

Let a discharge be granted.

In re VERNIA, Bankrupt.

(District Court, D. Kentucky.

1880.)

1. BANKRUPTCY-DISCHARGE-BOOKS OF ACCOUNT-CASE IN JUDGMENT. Although a merchant need not keep his books after the most approved methods to entitle him to a discharge as a bankrupt, he must have kept accounts and books so that a competent accountant may, from the books themselves, ascertain his true financial condition. Held, therefore, that where a bankrupt kept no books except a small pocket memorandum-book, in which he entered each day his cash received and cash paid out; a blotter, in which he entered his daily credit sales; and a book in which he kept accounts with those to