Two questions are raised in the present case.
1st. Whether it is competent for the plaintiff, notwithstanding the discharge of the defendant by a certificate in bankruptcy, to proceed in the cause against the assignee, and take a judgment for the amount of his demand, after summoning the assignee to appear in the action and take upon himself the defence thereof. It is not contended by the plaintiff, that he can proceed to take judgment against his debtor, Brickett, with the ordinary right to take out execution and levy it upon his prop erty or body. The view taken by the plaintiff is, that although *563the judgment debtor is discharged, and the suit thereby ended, as respects him, yet he may proceed in the manner in which suits are prosecuted against administrators and executors sum moned into court upon the decease of the defendant whose estate they represent, and that the effect of a judgment will be, to fix the amount of the plaintiff’s demand against the bank rupt, which he may be entitled to file with the assignee, as the basis of his claim for a dividend. It is true, in cases of an estate of an insolvent debtor who dies pending an action, that further proceedings may be had in the case, with a view of ascertaining the amount of the deceased’s debt. But all the effect which is given to such further proceedings, and such judgment, is derived wholly from statute provisions. There is no corresponding provision in the bankrupt act, and no such mode provided for settling any controversy that may arise as to the validity of any claim that may be in litigation at the time when the proceedings in bankruptcy may be instituted. The bankrupt act does provide that an assignee may come in and defend a suit pending against the bankrupt. This provision may be adopted, if the assignee finds it for the interest of the creditors; as it might be, if cases were pending in which the debtor was a party, involving questions as to his rights of prop erty, as suits in replevin, &c.
2d. The plaintiff further insists that, however the question we have beén considering may be decided, he is entitled to a judgment, and that the defendant, in the present instance, cannot avail himself of his discharge under the bankrupt law, by reason of the peculiar state of this case, arising from the prior proceedings in the action. These facts are, that, the plaintifl had obtained a verdict in the court of common pleas, at March term 1841. This court subsequently set aside that verdict and gave the defendant leave to plead the nonjoinder of William Pecker in abatement. Such plea in abatement was filed, and the plaintiff demurred to it. Subsequently, this plea, on motion of the defendant, was withdrawn, and the general issue was pleaded, and the discharge in bankruptcy relied upon in a specification of defence. Now, it is contended by the plaintiff, that it was not competent for the court of common pleas to a. *564low this change in the pleadings, and thereby open this defence of the discharge; because the case was removed to that court for a special purpose, and the defendant had declined availing , himself of the special privilege, granted by order of this court, to file a plea in abatement, but had voluntarily waived the same; and therefore the plaintiff ought now to have judgment on his verdict rendered at March term 1841. It seems to the court, however, that this view of the case cannot be sustained, inasmuch as the verdict, upon which the plaintiff proposes to take his judgment, was set aside by this court in November 1841. It has no longer any efficacy, and cannot now be relied on as the foundation of a judgment in favor of the plaintiff.