In re Moore , 5 Biss. 79 ( 1869 )

DRUMMOND, District Judge.

I think it would be proper for the petition to state that an application has been made to the other co-partner to join in the petition, and if this were done, then the consequence might follow which is implied by rule 18. But there is nothing, as I see, in the bankrupt law, to prevent one partner from making his application for a discharge under the law from his individual debts, and from his debts as a co-partner of the firm. It seems to be desirable that the non-joining partner should know that the application is made, leaving it optional with him to come in if he pleases, or take any action he may choose. This petition does not state any thing about a refusal.

It seems to me that all has been done that the law requires when you have given notiee to the other partner, and now it is optional with her whether she will come in or not If she does not choose to come in, the court will go on and make its decree, and discharge these men both as members of the firm and individually. Of course the result would be that the firm would have to be declared bankrupt. The law does not require, nor does the rule — and in fact, the law seems to be otherwise — that before a member of a firm can be discharged under the bankrupt law, he must request the other members of the firm also to apply. The rule seems to give the option to that member of the firm who does not apply, to join in the application, and declares what the consequences shall be of a non-joinder.

I think you have brought yourself within this rule. It seems to me the only thing is that' the other co-partner ought to be brought in as I stated. I think she ought to be notified in order that she may take such steps as she may be advised. That can be done certainly as well by a supplemental or subsequent act, as in the original petition. In stating that these are members of a firm of which she as a partner is one, it seems to me the petition does all that is required to be done. I think the proper course would be for an entry to be made of the fact that she has been notified of the pendency of the proceeding. Of course the petition must We amended and ask that the firm be declared bankrupt.

NOTE. Notiee of the filing of the petition must be given to the non-joining partners before adjudication of bankruptcy can be made. In re Lewis [Case No. 8,311]; In re Prankard [Id. 11,366]. Where one partner has asked for the benefit of the bankrupt act, the firm must, of necessity, be declared bankrupt. In re Grady [Id. 5,654]: In re Greenfield [Id. 5,772]. Unless the firm is declared bankrupt no member can be discharged from his firm debts. In re Little [Id. 8,390]: In re Bidwell [Id. 1,392]: In re Grady [Id. 5,654]. But if there are no firm assets the rule is otherwise. In re Winkens [Id. 17,875]; In re Abbe [Id. 4].