Lewis v. Higgins

Alvey, J., delivered the opinion of the Court. This was an attachment under the Act of 1864, ch. 306. The defendant appeared to the short note case, and ⁶¹⁶ pleaded in abatement, that at tbe time of the institution of this action “there was on file on the Docket of the District Court of the United States of the District of Maryland, pending for trial, proceedings instituted by the plaintiffs against the defendant, upon the same debt as set forth in this case, for the purpose of having him adjudged a bankrupt.” The defendant pleaded a similar plea, making the same averments, to the writ of attachment ; and to both of which pleas the plaintiffs demurred, and the Court below sustained the demurrers. Upon trial of other issues made by the pleadings, judgment was rendered against the defendant in the short note case, and judgment of condemnation was rendered against the garnishees in the attachment case; and from both of which judgments the defendant has appealed.

These appeals, however, are only intended to present to this Court the questions arising under the demurrers to the pleas in abatement. As to the plea in abatement in the short note case, that is defective in several respects. In the first place, it does not aver that the proceedings in bankruptcy were pending at the time of the plea pleaded, which is an essential fact to the sufficiency of the plea. Those proceedings, though they may have been pending at the time of the institution of tbe present action, may have been withdrawn or dismissed before this plea was filed by the defendant.

But, besides this fatal omission in the averments, the plea is otherwise defective. This is an action in personam, and the simple pendency of the proceedings in bankruptcy constituted no cause of abatement of the action. It is not alleged or pretended that the cause of action here sued on has been proved as a claim in the bankruptcy proceedings, and thus made subject to the provision of sec. 5105 of the Revised Statutes of the United States j and though the debt be provable in bankruptcy, the most that could be insisted on, under sec. 5106, of the Revised ⁶¹⁷ Statutes, would be that, upon the application of the bankrupt, the action should he stayed to await the determination of the Court in bankruptcy on the question of his discharge. If, for any cause, the proceedings in bankruptcy should terminate or he closed without a discharge, the plaintiffs would he entitled to a judgment in personam against the defendant, and the latter would he liable whether he he adjudged a bankrupt or not, to pay that judgment out of any property that he might thereafter acquire.

Norton vs. Switzer, 93 U. S., 355, 360 ; The Brandon Manf. Co. vs. Frazer, 47 Vt., 88 ; Ray vs. Wight, 119 Mass., 426 . But the plea to the attachment depends upon somewhat different principles. The attachment is a proceeding in rem, by which the plaintiffs sought to seize the property of the defendant and apply it exclusively to the discharge of their claims.