Jambs J. Cone, Assignee, etc., Respondent, v. Edward C. Purcell, Appellant

Jambs J. Cone, Assignee, etc., Respondent, v. Edward C. Purcell, Appellant. (Argued April 1, 1874; decided April 14, 1874.) Under the provisions of section 14 of the bankrupt act, declaring that, by virtue of the adjudication of bankruptcy and the appointment of an assignee, the property of the bankrupt shall at once vest in the assignee, and that a certified copy of the assignment “ shall be conclusive evidence of his title,” in an action by the assignee as such, it is not necessary for him to establish the jurisdiction of the court in the bankruptcy proceedings. It is sufficient for him to show the adjudication in bankruptcy, his appointment as assignee, and the assignment, without proving the petition upon which the proceedings were based. This action was brought by plaintiff, as assignee in bankruptcy of John D. Kerr, to recover money alleged to be due upon a lease of certain premises by the bankrupt to the defendant. Upon the trial, plaintiff offered in evidence a certified copy of the adjudication in bankruptcy, his appointment as assignee, and the assignment by the register to him. These were objected to upon the ground that jurisdiction in the District Court of the United States of the proceedings, and of the person of the bankrupt, was not shown. Objection overruled. Held, no error, for the reasons above stated. Plaintiff’s complaint alleged occupation by defendant of. certain demised premises, under an agreement reserving an annual rent, and alleged that there was due, under the agreement, a certain sum for which judgment was demanded. The answer did not deny the agreement or the occupation, but it averred that the occupation was under a written lease containing a covenant to repair, which had been broken, and the damages sustained in consequence were set up as a counterclaim. Upon the trial plaintiff, after proving his authority to sue as above, rested. Defendant offered in evidence a written' lease, to which there was a subscribing witness; plaintiff’s counsel objected that the subscribing witness should be called to prove it or his absence accounted for. Defendant’s counsel insisted that it was unnecessary, for the reason that plaintiff had relied upon the admission in the answer to make out his cause of action, and, as the admission was connected with an averment that the occupation was under a written lease, the whole admission must he taken together; and proof having been given that the lease offered was the only one executed, plaintiff could not deny its execution. The objection was sustained, and the lease excluded, to which defendant’s counsel excepted. Held; no error, that plaintiff was not required to make proof of his cause of. action, as it was not denied, nor was he required to disclose whether the agreement was written or oral, nor was he obliged to rely upon or use the affirmativé admissions in' the answer. That defendant’s counter-claim being based'on an allegation of a written lease, he was bound to prove it in the ordinary way, and that the objection was well taken. Defendant thereafter, as a witness, was asked if there was any agreement between him and Kerr for repairs. This was objected to, on the ground that the writing was the best evidence of the agreement; the objection was sustained. Held, no error, as it evidently referred to the written agreement contained in the lease offered. J. C. Cochrane for the appellant. J. B. Adams for the respondent. [MAJORITY — Andrews, J.,] Andrews, J., reads for affirmance. All concur, except Church, Ch. J., not voting. Judgment affirmed.