Case No. 3,162.

COOK et al. v. LANSING.

[3 McLean, 571.]¹

Circuit Court, D. Illinois.

June Term, 1847.

ASSIGNEE IN BANKRUPTCY—SUIT BY BANKRUPT—PLEA IN ABATEMENT.

1. Under the bankrupt law [of 1841 (5 Stat. 443)], all the interests and effects of a bankrupt may pass to his assignee, and suits should be brought in his name, or for the benefit of the creditors whom he represents.

2. To a suit in the name of the bankrupt the defendant may plead the bankruptcy, and the appointment of an assignee, in abatement.

Mr. Baker, for plaintiffs.

Cole & Brown, for defendants.

OPINION OF THE COURT. This action is founded on a judgment obtained in the state of New York. The defendants pleaded that plaintiffs [Cook & Maxwell] filed their petition in bankruptcy, that an assignee was appointed, that the above judgment was placed on the schedule as assets, and that the right having passed out of the plaintiffs to the assignee, the suit should have been brought in his name. To this plea a demurrer was filed.

Under the bankrupt law, the entire property and interests of the bankrupt were vested in the assignee. Provision was made for the prosecution of suits then pending; but all suits commenced after the appointment of the assignee, should be brought in his name, or at least prosecuted for the benefit of the creditors, whom he represents. And as this suit has not been brought in either of these forms, but by the bankrupts, the demurrer to the plea is overruled.

¹ [Reported by Hon. John McLean, Circuit Justice.]

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