In re Hubbard

D. Massachusetts

In re Hubbard

12 F. Cas. 775, 1 Low. 190

CourtDistrict Court, D. Massachusetts

DecidedDecember 15, 1867

StatusPublished

Cited by6 cases

This text of 12 F. Cas. 775 (In re Hubbard) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Hubbard, 12 F. Cas. 775, 1 Low. 190 (D. Mass. 1867).

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Opinion

LOWELL, District Judge.

Where proof, has been made under a mistake of fact, or even of law, it may be corrected, almost as a matter of course, if neither the bankrupt nor other creditors who have proved will be injured. And even where the rights of others will be affected, if the only effect is to restore all parties to the position they were in before the debt was proved, it would be proper to allow the withdrawal if there had been a mistake, and no want of diligence. In the only case in which I have refused such a petition, the creditor, by proving his debt, had relieved an attachment by trustee process, and the garnishee had in good faith paid over the funds to the assignee. Although I did not believe that any court would hold the lien to be revived by the creditor’s withdrawing his proof, yet it was not right to permit such a question to be even mooted.

Under our practice an order of this kind may be passed by the register, if after due notice, no opposition is made; otherwise by the court. The decisions on the question are Morse v. Lowell, 7 Mete. [Mass.] 152: [776]*776Ex parte Harwood [Case No. 6,185]; Bemis v. Smith, 10 Metc. [Mass.] 194; Safford y. Slade, 11 Cush. 29; Beverly Bank v. Wilkinson, 2 Gray, 519. Leave to withdraw proof granted.

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LOWELL, District Judge.

Where proof, has been made under a mistake of fact, or even of law, it may be corrected, almost as a matter of course, if neither the bankrupt nor other creditors who have proved will be injured. And even where the rights of others will be affected, if the only effect is to restore all parties to the position they were in before the debt was proved, it would be proper to allow the withdrawal if there had been a mistake, and no want of diligence. In the only case in which I have refused such a petition, the creditor, by proving his debt, had relieved an attachment by trustee process, and the garnishee had in good faith paid over the funds to the assignee. Although I did not believe that any court would hold the lien to be revived by the creditor’s withdrawing his proof, yet it was not right to permit such a question to be even mooted.

Under our practice an order of this kind may be passed by the register, if after due notice, no opposition is made; otherwise by the court. The decisions on the question are Morse v. Lowell, 7 Mete. [Mass.] 152: [776]*776Ex parte Harwood [Case No. 6,185]; Bemis v. Smith, 10 Metc. [Mass.] 194; Safford y. Slade, 11 Cush. 29; Beverly Bank v. Wilkinson, 2 Gray, 519. Leave to withdraw proof granted.

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Bluebook (online)

12 F. Cas. 775, 1 Low. 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hubbard-mad-1867.

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