Cadwallader F. Blanchard & another vs. George W. Young; Same vs. Timothy Frye and George W. Young, 11 Cush. 341

Thomas, J. The defendant Young, confessing the debt of the plaintiffs, says he has been released from its payment by a discharge in insolvency. And relying upon such discharge, it is very plain that he must show that it has been obtained by due course of legal proceedings. He who affirms, must prove. The certificate is primé facie evidence of the fact, but a primé facie case does not change the burden of proof The rule may be otherwise, if the plaintiffs, the discharge being regularly granted, seek to avoid it by allegations of fraud committed by the insolvent. Robinson v. Hitchcock, 8 Met. 64.

But on whichever side may be the burden of proof, the fact of the interest of the commissioner is clearly established. He was the assignee in insolvency of Frye. The ease finds that Young owed the estate of Frye a large sum of money.

This is only saying, in other words, that the commissioner was a creditor of Young to a large amount, and interested in every question arising in the settlement of his estate, in the proof of his own claim and that of every other creditor, on every question of dividend, and the marshalling of the assets therefor, and in the action of creditors and the court upon the discharge of the insolvent. His duties as assignee were plainly incompatible with his duties as commissioner. He was in fact party and judge. He had therefore no jurisdiction, and his proceedings were wholly void.

Cottle, Appellant, 5 Pick. 483 ; Sigourney v. Sibley, 21 Pick. 101. The examination of the debtor must be governed by the sound judicial discretion of the commissioner, and the refusal of the commissioner to allow a question to be put, or even to permit the creditor *-o examine the debtor, would not avoid the discharge. The remedy of the creditor, if he has one, is by application to this court under the provisions of the St. 1838, c. 163, § 18, to direct an examination to be made. The office copies of the deeds should have been admitted the originals not being presumed to be in the possession ol either party.

Exceptions sustained.