Hersey v. Jones

128 Mass. 473, 1880 Mass. LEXIS 120

• Court: Massachusetts Supreme Judicial Court
• Decided: March 16, 1880
• Status: Published

Opinion

Gray, C. J.

The bankrupt act of the United States provides that, if no choice of assignee is made by the creditors at the first meeting, the judge, or, if there be no opposing interest, the register, shall appoint one or more assignees, and that “ all elections or appointments of assignees shall be subject to the approval of the judge; ” U. S. Rev. Sts. § 5034; that, as soon as an assignee is appointed and qualified, the judge, or, where there is no opposing interest, the register, shall make an assignment to him of the debtor’s property; § 5044; and that “a copy duly certified by the clerk of the court, under the seal thereof, of the assignment, shall be conclusive evidence of the title of the assignee to take, hold, sue for and recover the property of the bankrupt.” § 5049.

We have not considered whether the facts of this case show a want of such approval of the plaintiff’s election as assignee as the bankrupt act requires; because, if an assignment is proved to have been executed and delivered by the register to the assignee, it is conclusive evidence of his right to sue, and any defects or irregularities in the previous proceedings cannot be set up in defence of the action, but can only be availed of by application to the supervisory jurisdiction in equity of the Circuit Court of the United States. U. S. Rev. Sts. § 4986. Whee-lock v. Hastings, 4 Met. 504. And if the original assignment has not been recorded, and has been lost or destroyed, so that it is impossible to produce either the original or a certified copy thereof, secondary evidence of its contents is admissible. Brigham, v. Coburn, 10 Gray, 329. The evidence offered- of the execution, delivery and contents of the assignment was therefore wrongly excluded. New trial ordered.