James T. Archer, Assignee in Bankruptcy of William H. Francis, a Bankrupt, vs. Tho's Brown, William H. Brockenbrough, in right of his wife Ellen A. Brockenbrough, Administrators, &c. of Samuel H. Duval, Deceased, 1 Fla. 219

Bamczell, Justice: To an action instituted by the plaintiff as assignee of Francis, on a judgment recovered against defendants, suggesting a devastavit, they plead — 1st, That they were not indebted. — 2dly, No such record. — 3dly, Reciting the bankrupt law of the United States as to the time of maintaining suits, &c. that the suit was not brought within two years after the decree of bankruptcy, and more than two years after the cause of action accrued. — ‘4th, That the suit was not brought within two years after the decree of bankruptcy, nor within two years after the cause of action accrued. — -5th, That the declaration and decree of bankruptcy was not made, nor. did the cause of suit accrue to plaintiff at any time within two years before his suit was brought.

Plaintiff demurred to the 1st, 3d, 4th and 5th pleas, and took issue upon the second. The court below adjudged the 1st, 4th, and 5th pleas to be sufficient, and overruled the 3d plea, declaring it to be insufficient. The issue on nul tiel record was tried, and found for plaintiff; but the other issues being with the defendants, the Court gave judgment in their favor. Plaintiff has assigned for error, the overruling the demurrer to the first, fourth, and fifth pleas, and giving judgment for defendants. We are of opinion that the Court decided correctly as to the first plea.

Nil debet as well as not guilty may be pleaded to an action suggesting a devastavit against executors. Williams on Executors, 1225. Coppin vs. Carter, 1 T. R. 402. The sufficiency of the other pleas depends upon the proper construction of the 8th

section of the act to establish a uniform system of bankruptcy throughout the United States. This

section provides, “ that the Circuit court in and for the District where the decree of bankruptcy is prayed, shall have concurrent jurisdiction with the District Courts of all suits at law and equity, which may be brought by any assignee of the bankrupt, against any person or persons claiming an adverse interest, or by such person against such as-signee, touching any property or rights of property of said bankrupt, transferrable to, or vested in such assignee, and no suit at law or in equity shall in any case be maintainable by or against such assignee, or by or against any person claiming an adverse interest touching the property and rights of property aforesaid, in any court whatsoever, unless the same shall be brought within two years after the declaration and decree of bankruptcy, or after the cause of suit shall first have accrued.” It is contended by plaintiff that this cause does not apply to or embrace the case of defendants, because there is not in question an adverse interest touching any property or right of property of the bankrupt.

The act declares that “ no suit at law by such assignee shall in any case■ be maintainable in any court whatsoever, unless brought within two years.” If this be the correct reading of the text, the act is very explicit, and leaves no room for construction. It is true that the previous part of the

section had provided for a concurrent jurisdiction of the Circuit with the District court “in all suits at law and in equity which may be brought by any assignee of the bankrupt against any person claiming an adverse interest, or by such person against such assignee touching any property or rights of property of said bankrupt, transferrable to or vested in such as-signee.” Confining the jurisdiction to the cases thus designated, yet is this designation both of Courts and persons, not only not continued, but expressly excluded by the usé of the terms in the clause of limitation-, “ no suit in any cause in any court whatever.” So also, whilst the preceding part of the act specifies suits brought by an assignee against persons claiming an adverse interest, this latter uses the terms “by such assignees,” without any qualification.

We are the better satisfied with this* view of the subject in consideration of the very peculiar character of this law, the object of which was to secure a prompt and efficient administration and settlement of the estate of all bankrupts, within a limited period.

Thus by the 10th section, it is made the duty of the court “ to order and diréct a collection of the assets, and a reduction of the same to money, and a distribution thereof at as early periods as practicable,” — dividends are required to be made “ as often as once in six months from the time of the decree declaring bankruptcyand “ all the proceedings in bankruptcy in each case shall, if practicable, be ■finally adjusted, settled and brought to a close by the Court within two years after the decree declaring the bankruptcy.” If will cease to be regarded as singular that the law requires the assignee to commence suits within two years, when by the same law it is made his duty to adjust, settle, and finally bring to a close, all the proceedings in the case within the same period.

Concurring with the Court in overruling the demurrer to these pleas, it remains to enquire whether the court erred in giving judgment absolutely for defendants. By the Common Law, judgment followed the decision on a demurrer as matter of course, it being considered as a confession by matter of record of the facts pleaded. The law in force in this State, provides that “no demurrer shall be considered as an admission of the facts set forth in the pleadings demurred to, so as to bar the person demurring from any substantial claim or defence which he might have urged if said demurrer had not been filed.” Duval 95.

If application had been made to the court below to withdraw the demurrer, and for permission to reply to the pleas, we do not hesitate to say that the Court should have granted it; but this was not done ; on the contrary, plaintiff has abided by his demurrer, by taking his writ of error. How then can this Court decide that the party has been barred from a substantial claim or defence he might have urged ? How determine that there is a substantial claim or defence when none has been preferred ? It is at his option on overruling his demurrer, to withdraw it, or allow it to stand.

If he does not withdraw it, it concludes his case. He is here entitled to the decision of this Court- on the correctness of the judgment overruling his demurrer, and could also have claimed our decision on a like judgment in overruling his motion to be permitted to reply to the pleas after the decision on his demurrer. The jurisdiction of the Court is appellate merely, to re-examine and to rejudge — to correct erroneous decisions already made — it is not a jurisdiction to determine in the first instance cases or questions which have not been submitted to the decision of the Judge below.

Being of opinion that there is no error in the judgment of the Circuit Court, it is ordered that the same be affirmed.!