Lovett v. Cutler

The Court called upon Blake to prove the debt of the petitioning creditor. He contended that the statute of the United States has rendered this proof unnecessary where an assignee was prosecuting an action for the recovery of the bankrupt’s property ; for which he relied on the 52d sect, of the act; which he insisted extended to all demands for which the bankrupt himself might have brought an action. But the Court (Dana, C. J., Strong, Sedgwick, and Thacher, justices,) said that the section of the act referred to, by no means supported the position contended for by the counsel for the plaintiff. The words are “ that in all cases where the assignees shall prosecute any debtor of the bankrupt for any debt, duty, or demand, the commission, or a certified copy thereof, and the assignment of the commissioners of the bankrupt’s estate, shall be conclusive evidence 52 of the issuing the commission, and of the person named therein being a trader and bankrupt, at the time mentioned therein; ” which reaches only those cases where the assignee prosecutes the debtors of the bankrupt. In the case before the Court, the defendant is not prosecuted as the debtor of the bankrupt, and, therefore, the plaintiff must prove the debt of the petitioning creditor, in the same manner as if such creditor had brought his action against the bankrupt for recovering the demand. The plaintiff, not being prepared with such proof, consented to have a verdict against him.