#### Van Valkenburgh and another, *Assignees of*Magee, *against Elmendorf,*Gent. *one, &c.*

Where three assignees % have been appointed under the insolvent act of the 3d April, 1811, (since repealed) one of! whom refuses to act, and *no*other is appointed in his stead, .the two who enter upon, the execution of' the . trust may maintain actions for debts, due to the insolvent in their o*n names, without joining the third.

THIS was a motion, to set aside the report of referees appointed by a rulé of,court, in an action of assumpsit brought by the plaintiffs,-as assignees, und'el- the insolvent act of April,: 1811, *of Magee,*anpnsol.ven't debtor. At the hearing, *at'CaQki}l,*in the county of *G.reeney,*the plaintiffs gave'in evidence the proceedings .relating ',to the discharge, of *.Magee,*By. which , it appeared, that *J, 'Pinckney,*the commissioner under' that act, fpi- the countyof *Qreene,*-had ordered an assignment of the insolvent’s estate to the plaintiffs, in 'conjunction witb One *<JienryM',Iiinstry;*that an assignment was made to the' three, but that the plaintiffs'only had acted, *M’Kinstry*having refused to act. ' The defendant objected to die plaintiffs’ claim, on the ground that, as’ the assignment.was made to *WKinstry,*toge.-. ther with the plaintiffs, .they could not maintain, the suit' in their own names alone. The objection, however, was overruled, and the referees reported in favour' of the plaintiffs*

*pan Pcchten,.for*the defendant.

*(Jantine,*contra.

*.Per -Curiam..*

By the first section of the act ♦» for the benefit pf insolvent debtors and. théir creditors,^' passed 3d April,. 1811, the commissioner is directed to order an assignment, of the debtofVest¿te.;eí;<!o *three discreet, and sufficient persons,V*naming, ihem- By .the 4th section of that act, ft is directed) tliat upon producing a certificate under .the, hands and seals of the assignees.) or any two of .them;” /that the debtor1 has executed an assignment of. all; his. estate, ,&c. then the commissioner ■ shall discharge, the, debtor.: and,' by the 17th section-of the-sanie act, it is provided, “ that a maj.Qtity of the. assignees-in--any. case to be' appointed, as in and by this act is directed, shall have, power and authority,to do'all acts andperfotm'all duties réquired of such.,ássigneé§.” . : ; ■

We incline to the opinion, that a trae construction of that act is, that the commissioner shall appoint *three*persons as as*315signees ;■ but that *any two*of them, by executing.the certificate, and accepting the trust, are competent to perform all the duties, The law does not seem to require, that there shall be three acting trustees. It is. .made thé duty of the commissioner to make a néw appointment' as often as a vacancy Occurs among the assignees; but in this case the vacancy occasioned by the refusal of *J\VKins try*was not .supplied by a new appointment, and the.office of commissioner was abolished before this suit was instituted.. So that if the *two assigne.es*cannot act, the trust must' remain unexecuted. It accords with thé *letter,*and, we think, .with the *spirit,*of the statute, to uphold the acts of *two*of the assignees, where a third has been regularly appointed, and refuses to act.

The motion to set aside the report must be denied.

Motion denied.