Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1869-12-24

On motion of Mr.. Stephens the Senate
adjourned until Monday the 10th of Jan
uary, 1870.
HOUSE OF REPRESENTATIVES,.
MONDAY, Dec. 20, 1869.
Pursuant to adjournment the House was
called TO order at 5 O'Clock.
The Speaker announced that he would
have the Calendar properly arranged and
engrossed, as it contained many bills IL
legibly written with reports of commit
tees, &c.
At the reassembling he should ask of the
House such farther appointment as may be
necessary for the purpose Of maintaining
it, and the other affairs of the desk in the
best condition for correct and thorough leg
islation.
A message was received from the Senate
announcing that that body was ready to
execute the joint resolution taking recess
until the 10th of January, 1870.
On motion the proposition was concur
red in and the Speaker accordingly adj
journed the House to the time specified.
UNITED STATES CIRCUIT OoURT.-sATURDAY,
Dec. 18th, 1S69.-The Court met pursuant to ad-
journment.
The only new arrival to-day was that of ". W.
PEBBLES, Esq.
Mr.. Bailey, of counsel for various assgnees,
asked leave to amend his declarations, which
were drawn substantially 10 the same way as
those in Deweys
Leave was granted and the cases continued.
In the case of Chas- Dewey, Assign ee, vs.. Cobb,
Walker and Pemberton, the opinion in which was
delivered on yesterday, the pleadings were as fol-
lows:
Action debt: plea: general issue. Moore,
Phillips and Merrlmon for the plaintiff, tMr.
Moore only was in attendance > Fuller. Strange
ov11 MoK0 for tha1 ofo 1onfa
After the case for the plaintiff was closed the
counsel for the defendant raised the objection
that the allegations in the declaration were not
sufficient to give the Court jurisdiction, for that
there was no allegation of an assignment of the
estate and effects of the bankrupt to O. Dewey,
but that the title in the note upon which suit
brought, WAS alleged to vest in Dewey, by an en-
dorsement from one Huske.
His Honor's opinion was as follows: This de-
claration alleges,
First: That corporation was created by the
name of the Bank OF North Carolina, by act of AS
sembly, in 1859.
Second Chat in 1861 the defendants Cobb and
Walker made their promlssory notes, thereby
promising to pay to the defendant Leach, or his
order, $3.50. ninety days after date.
Third That afterward the said Leach endorsed
the said note to the defendant Huske. then act
ing cashier and agent OF this said Bank for the
use of the said Bank.
Fourth: That afterwards, to-wit, on the 31st
day of October, 1868, the Bank Of North Caroli-
ma became q bankrupt and the said last named
Court of the United States for the District of
North Carolina: Whereupon and before tie
bringing of this suit, the plaintiff Was d1iy ap-
pointed assignee OF all the estate and effects OF
said bankrupt.
The opinion of the Court is that it is not by
virtue Of the endorsement OF Huske that the
plaintiff can claim as assignee to be the owner of
the note sued on but it is by virtue Of the
siSnment provided by the Bankrupt act to be
made to the assignee by the Register or the Dis
trict Judge, that the assignee acquires his title
to the estate of the bankrupt and his right to col
lect or reduce into possession by suit in the Courts
of the United States The complete appointment
of the assignee does not vest him with the
right to sue for any part Of the estate of the
bankrupt in any court; for he may under
the act Of 1867 be completely appointed, that is
elected, as that act provides or in the event of
failure to elect, appointed by. the Register and
confirmed by the District Judge, aud still have
no title to any part Of the estate.
Now it will be seen that up to this point in the
plaintiff declaration there is no allegation that
by virtue of the proceedings rected the plain
tiff is entitled to sue and recover i'll this Court
against the defendant.
Fifth, That afterwards, to wit, in February,
1862 the said Huske endorsed the said note to
said plaintiff as assignee aforesaid, whereas the
said plaintiff became entitled to have and receive
the said sum OF money IN the said note specl-
fed.
The counsel of the plaintiff seemed to attach
but little importance to the suggestion of the
Court yesterday, that there was material diffe1-
ence between our bankruptcy act, now in force,
required no assignment or conveyance to be
made to the assignee but by it's provisions vested
the assignee with a title to the estate OF the
bankrupt by force of the adjudication and the
appointment of the assignee THAT in this respect
the act of 164l very similar, If not Identical
with the English act at that time in force, which
very fully accounts for the precedents IN Chltty
cited by the counsel, and which be thought this
court was not disposed to respect sufficiently. I
would not willingly have the profession to believe
that had not the most profound reg ard for the
opinions of that eminent author upon any ques-
ton OF pleading, or for his precedents. But MIR.
Chitty's work on pleadings. az we'll as his prece-
dents relates only to the state of laws In force
at and before the time he wrote, and not to new
laws or material changes subsequently maae.-
Hence the precedent relied upon was correct at
the time. ,
The Court is inclined to the opinion that AS
signees in bankruptcy are not Limited TO actlons
at law in courts of law las this Isl in their efforts
to reduce the estate OF the bankrupt to possession
or in the collection of chooses IN action; but that
they may pursue more summary course by
petition in the District Court, and in which pro-
ceeding if adopted, the greatest liberality is al
lowed in permitting amendments and other IN
dulgencies in the turth erance OF justice ana
speedy adjustment of the matter IN dispute
But the plaintiff has seen proper to brlng MS
action at law in this court, in which the forms
Of pleadiEgs and the rules are required to De ob-
served.
court of limited jurisdiction and not general, as
the Superior Courts of the State. MIR. Oonklng,
in his excellent treatise on the practice and ju'
risdiction of the Federal Courts, lays it down rs
The tistineuishinc feature in the pleading in the
Federal and the State Courts that in the former
it is necessary to allege in the declaration all
that it is necessary to prove upon the trial 10
sustain the action.
II ia clearly necessary to prove in this case
that the estate of the bankrupt was conveyed or
assigned to the plaintiff assignee, or this SUIT
cannot be sustained. and l hold that II 10 MOI
sufficiently alleged in the deelaratlon tnss SUI"
conyeysnce or assignment has been made.
By consent, juror was Withdrawn and the
csse continued The plaintiff moved to amend
bis declaration, which was allowed. ana s nnb
1ivan to Gle amended declaration until Msrcn
Ssst 1870 The defendants are allowed until May
ist' 1870 to amend their pleadings.
The entire morning was consumed ID aFga'