| S.D.N.Y. | Sep 13, 1867
The register does not state, as prescribed in rule 19 of this court, his opinion on the question raised as to the power of attorney to Loeffier, nor does it appear whether an assignee was elected at the meeting, and, if so, whether Mr. Seixas was permitted to vote on behalf of Gourd, Freres & Co., or whether the meeting was adjourned. But still 1 proceed to decide the question raised. I do not think that the mere fact that the power to Loeffier bears date before the passage of the bankruptcy act, is sufficient to show that such power cannot or does not confer authority on Loeffier to act for the firm, either personally, or by a substituted authority in proceedings under that act. The question whether the power lias that scope depends upon its language. Even though it was given before the act was passed, it may be broad enough, in its terms, to cover the right of representing the firm, as creditors, in proceedings under the act.
The power authorizes Loeffier to sign file-name of the firm to any paper writing proper or necessary for the purpose of collecting and receiving any debt due to the firm. The signing the name of the firm to a paper drawn according to form No. 15, choosing an as-signee of the estate of a debtor to the firm, who has gone into bankruptcy, is the signing of a paper writing which is proper for the purpose of collecting the debt due from such debtor to the firm. I am, therefore, of opinion, that the language of the power to Loeffier is sufficient to authorize him, or his duly appointed substitute, to act for the firm in the matter in question.
I am also of opinion, that, where a debt sought to bo proved is evidenced by a promissory note, the note must be produced and exhibited when required by the register, the assignee, or the bankrupt, on proper occasions. Thus, if a proof of debt is handed in to the register at the first meeting of creditors, and it appears that there is a note for the debt, it must be exhibited, if called for. So, also, after the proof of debt is, under section twenty-two, delivered or sent to the assignee, he can require a note, which exists for the debt, to be produced, before paying any dividend on it. Forms Nos. 31 and 33 distinctly show that a bill or note or other security held for a debt is to be exhibited at the time the proof of the debt is handed in, and forms Nos. 27 and 31 show that it is to be again exhibited before a dividend is paid on it. In the present case, therefore, the notes held by the creditors, if their claims rest on the notes, ought to have been produced, when called for by the bankrupt. If, however, the claim of Spies, Christ & Jay rests on a judgment on a note, and their proof of debt is founded on the judgment and not on the note, then it was not necessary to produce the note. The note was merged in the judgment, as a debt of a higher character.
A proof of debt is not open to objection because it appeal’s on its face that the statute of limitations, if set up, would be a good defence to the claim. The proof of claim need not anticipate the defence or give proof of facts to take the ease out of the statute. It is a universal rule, that a statute of limitations may be waived, and must, when relied on as a defence, be set up affirmatively by a debtor. In this case, therefore, the objection to the proof of debt made by Gourd, Freres & Co. is not tenable. The clerk will certify this decision to the register, Edgar Ketchum, Esq. The certificate of the register, although it is dated August 7th, 18G7, did not reach me until September 10th, 1807.