Conner v. Southern Express Co.

42 Ga. 37 | Ga. | 1871

McCay, J.

This is an anomalous case. Pending the proceedings in bankruptcy, and until the assignee was discharged, we are not clear that, under the Bankrupt law of the United States the bankrupt could proceed in his own name: United States Bankrupt Law, sections 18, 43, 16. Though it would seem that, by the English practice, where the rules of pleading too are very precise, the suit may proceed in the name of the bankrupt: 2 Wilson, 372; 3 T. R., 437; 7 East, 64; 1 T. R., 463; 1 B. and Adol., 459; 2 Daniel and L., 49; 3 Taunt, 59, and Peck vs. Jenniss, et al., 7 Howard, 612.

But it appears that the proceedings in bankruptcy have been concluded, the whole matter settled and the assignee discharged. We must conclude that, for some proper reason, the title to this claim has reverted to the bankrupt. Prima facie, that is true, because the assignee has not undertaken to control it. It may have been left to the bankrupt after paying all his debts. It may have been allowed him as his poor debtors’ exemption under the Bankrupt law. It may have been allowed to him on a composition with his creditors, as provided by the Act, even after the fiat of Bankruptcy, We do not assert as true, any of these things. The presumption is, that the judgment of the Bankrupt Court, dicharging the bankrupt and the assignee, closes up the business. If there was fraud, the fraud was in obtaining the discharge of the assignee, which will not be presumed, and cannot be set up by this defendant here. Prima facie, at least, this claim belongs to the plaintiff. The fact that there has been an assignee, and that he has been discharged, does not affect the question; since, as we have said, the presumption is that the assignee, as the agent of the Bankrupt Court, would not have been discharged, leaving this claim undisposed of, had there not been some proper reason for leaving it in the control of the plaintiff.

Surely, the debt of the defendant was not discharged. There is no other person authorized to sue it, and it is but fair to presume that the plaintiff is now pressing it for purposes consistent with honesty, and for the use of whoever is entitled to the proceeds.

We think, therefore, the Court erred in holding that the suit abated until it is made to appear that the plaintiff is not the true owner, or is not asserting this right fairly; we think he had a perfect right to proceed, and it is not for the defendant to object.

Judgment reversed.