The Opinion of the Court was delivered by
Denning, J.Tiie record in this cause shows that Francis H. Edmonson, the plaintiff below, on the 17th day of March, 1842, sued out from the Sangamon Circuit Court,^a writ of attachment against Justus Vairin and James T. Kelley, defendants, who were partners, trading and doing business under the name, style and firm of Justus Vairin & Co., New Orleans, and procured a summons to be issued in the same cause against Opdycke, Tinsley & Co. as garnishees of the said Vairin & Co.; that at the July term of the said Circuit Court, 1842, judgment was rendered by default against the said Vairin & Co., and in favor of the said Francis H. Edmonson, for the sum of two thousand, seven hundred, and ninety nine dollars, and thirty one cents; that at the same term, Opdycke, Tinsley & Co., as such garnishees, filed their answer to the interrogatories propounded to them by the plaintiff, admitting their indebtedness to Vairin & Co. in the sum of one thousand, one hundred, and forty seven dollars, and seventy four cents, for which judgment was rendered in favor of the said plaintiff.
The defendants below,- on the 3d day of February, 1846, sued out from this Court a writ of error to remove the case to this Court for the purpose of correcting alleged error in the record. The plaintiff below interposes four pleas, intended as pleas in bar of the writ of error, to which pleas there was a general demurrer with the assignment of special causes. The second, third, and fourth pleas are substantially the same, and allege that Opdycke, Tinsley & Co. are the real persons who prosecute this writ of error, and that, by appearing in the Court below as garnishees, and acknowledging their indebtedness to Vairin & Co., have thereby released all errors in the proceedings of this cause. This position we think cannot be maintained. Their answer is not the result of their own voluntary act. They are required by the provisions of our statute to answer all such interrogatories as may be propounded to them by the plaintiff below touching their indebtedness to the defendants, or suffer judgment by default; and, in so answering, they waive nothing. But in another point of view it will be observed, from the assignment of errors herein, that they are not complaining of errors committed to their prejudice. It is Vairin & Co. who prosecute this writ of error, and who allege that errors have arisen in the proceedings and rendition of judgment against them, which they wish to revise and correct in this Court. We are, therefore, of opinion that the second, third, and fourth pleas are no bar to the writ of error.
The first plea, after giving the title of the case, is as follows, viz: “And said defendant in error comes and defends, &c,s and says, that said plaintiffs in error ought not to have or maintain their writ against him, because he says, that, at the time of brintrintr their writ of error, said Justus Vairin, and James T. Kelley, who compose said firm of Justus Vairin & Co., the plaintiffs in error were bankrupts, and previous to that time, to wit: February 3d, 1846, when writ of error was brought, had been declared bankrupts, under and by virtue of the law of Congress, approved August 19th, 1841, entitled "Jin. J2ct to establish a uniform system rf bankruptcy in the United Statesand that, at the said last mentioned date, all the property and rights of property, and pecuniary interests whatsoever, and causes of action of said plaintiffs in error, had become vested in the assignee of said bankrupt by operation of said law, and by virtue of the decree of the United States District Court in and for the State of Louisiana, whereby said plaintiffs in error were declared bankrupts, and said assignee was appointed. And this the said defendant in error is ready to verify: Wherefore he pra} s that said plaintiffs in error may be barred of their writ of error.”
We are of opinion, that this plea is a good plea in bar of the writ of error, if properly pleaded, though defective in form. It will be observed on an examination, that it no where states when the plaintiffs in error where declared bankrupts. The plea alleges that the writ of error was sued out from this Court on the 3d day of February, 1846, and that, previous to that time, the plaintiffs in error were declared bankrupts, but how long previous, we are left entirely ignorant. From any thing that appears in this plea, the cause of action upon which this writ of error is prosecuted, may have arisen subsequent to the time when the plaintiffs in error were declared bankrupts, and if so, they certainly would have the right to prosecute this writ of error; and hence it should be shown, that the debt Or cause of action herein subsisted at the time of the said plaintiffs’ bankruptcy, for then it would have passed to the assignee, and the plaintiffs in error would have had no further interest or control in the matter. Again, we think the averment in the plea, of the place when, and of the Court by whom the plaintiffs are alleged to have been declared bankrupts, are not sufficiently explicit. The plea should have been verified by the record, as the question which it attempts to raise must be determined alone by the record.
It is alleged as a ground of demurrer to this plea, that it does not set forth the name of the assignee of the plaintiffs in error. We do not think it necessary that it should. By a reference to the third section of the law of Congress in relation to bankruptcy, approved August 19th, 1841, it will be found, that whenever a person is declared a bankrupt within the law, all property, rights of property, &c., are divested from him by the mere operation of said law, without any other assignment or conveyance whatever; and when once so divested, we apprehend that the bankrupt can exercise no further control in the settlement or disposition of his estate in any manner whatever. The plea is bad, though the Court) on proper application, might grant leave to amend it. The demurrer is sustained to all the pleas.
Demurrer sustained.