
    KNIGHT vs. CALLENDER & DEBLOIS.
    Western Dist.
    
      September, 1836.
    APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    The plea to the jurisdiction is waived by pleading any other subsequent plea.
    An insolvent debtor, after cessio bonorum, is incapable of standing in judgment, even in the Supreme Court, as appellant in a suit in which he is made defendant.
    Where one partner makes a cessio bonorum, for himself individually, and for the firm, the other partner retaining his private capacity, may be sued in attachment for a debt of the firm, on his leaving the state.
    Judgment against a garnishee cannot be reviewed in the Supreme Court, when he is not made a party to the appeal.
    
      This action commenced by attachment. The plaintiff claims eight hundred and twenty-two dollars and seventy-eight cents from the defendants, who resided in New-Orleans, and attached a sum about equal to his demand, in the hands of one Walter B. Wilcoxon, in the parish of St. Mary, as a debt due and owing to the commercial firm of the defendants.
    The defendants excepted to the action; 1st., that they are residents of New-Orleans and should have been sued there. 2nd. They have made a cessio bonorum, which has been accepted, and the plaintiff’s claim put on their bilan.
    The district judge overruled these exceptions; sustained the attachment, as to Callender; and as regards Deblois, the cause was sent to the concurso.
    
    = The defendants further pleaded the general issue, and that a syndic had been appointed to take charge of their property and effects, who bad possession of their books and accounts, which would show payments. They pleaded payment of one thousand dollars.
    The garnishee admitted there was a balance of four hundred and odd dollars in his hands, belonging to the defendants’ firm. The plaintiff’s claim was admitted; as also the absence of Callender from the state, at the time of suing out the attachment. The insolvent proceedings were offered in evidence, in which it was shown that Deblois for himself, individually, and for the commercial firm of Cal-lender & Deblois, bad made a surrender, which was accepted, and the claim of the plaintiff placed on the bilan as a debt of the firm.
    
    The district judge rendered judgment in favor of the plaintiff, against Callender, for the amount of the debt claimed, and against the garnishee for the sum admitted to be in his hands; belonging to the firm. The defendants both appealed.
    Splane, for the plaintiff, exparte.
    
    1. The exceptions were properly overruled, both as to the domicil and surrender. It is shown that one of the defendants is absent from the state, and the surrender was made ]3y the other one, alone.
    , The plea to the jurisdiction is 'waived by pleading any ,other subsequent
    An insolvent ■debtor, afterces-¡sio bonorum, is incapable _ of menq^e'veiwn the Supreme Court as appellant, in.a suit in defendantmde Where one jiiobotmnlp/foi-lumseif «dm-dually, and for ¡the firm, ,tbe other partner re-capadty, ^uachmenfiorli debu>f the firm, the state.
    
      2. One partner of a commercial firm cannot make a surrender for the firm; nor is the other partner, who is bound jn in S0iid0} discharged from his liability in consequence of-such surrender. 8 Martin, N. S., 676-9.
   Martin, J.,

delivered the opinion of the court.

The plaintiff instituted suit against the defendants as partners in trade, for a debt of the partnership, and attached some funds and property in the hands of one Walter B. Wil-coxon, one of their debtors, who was made a garnishee.

The defendants pleaded to the jurisdiction of the court on the score of commorancy, they being residents of a different parish than that in which the suit is brought; and after-wards, on a suggestion that they had made a cessio bonorum, which had been accepted, and the claim of the plaintiff placed on the bilan; they prayed for a dismissal of the suit.

The exceptions were overruled, and the attachment against Callender sustained; and, as respects Deblois, the case was ordered to be sent to the concurso.

The defendants next pleaded the general issue and compensation ; and that . Deblois for himself and the firm, had r , made a surrender, which had been accepted, and a syndic __• , •» &PP0ÍHt6cL

The District Court rendered judgment against Callender ^01’ the whole amount of the sum demanded, and against the garnishee for the balance admitted by him to be due to the ° J , defendants’ firm, to be applied to the payment of the judgment against Callender. The defendants appealed.

The statement of facts show that the plaintiff’s claim was 1 admitted, and that the cessio bonorum was made by Deblois, for himself and for the firm, Callender and Deblois. It was shown, that the defendants were commercial partners in New-Oileans at the time of the surrender of Deblois, anq t]iat Callender had left the state at the time of issuing ° the attachment.

Judgment against a garnishee cannot be reviewed iri the Supreme Court, the appeal.

The plea to the jurisdiction, was, in our opinion, waived by the subsequent one. Deblois, having made a cession for himself and the firm, had no capacity to stand in judgment in this court as appellant from a judgment, which, if erroneous, must be reversed on the application of the syndic, The appeal, as to him, must therefore be dismissed.

Callender retaining his private property, the plaintiff was entitled to a judgment against him personally, notwithstanding the cessio bonorum of the firm.

The judgment against the garnishee cannot be reviewed . J ° ° # ° m this court, because he is not before us.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.  