
    Lindsey S. Wells, use of Joseph Marlow, Jr., vs. James Brander et al.
    An attachment was sued out at law against non-residents, and a garnishee summoned to answer, on the 15th of March, 1842. He answered, that he was the administrator of an insolvent estate that would owe something to the defendants in the attachment, but that they(had filed their petition in bankruptcy under the act of congress, on the 10th day of March, 1842, and had been declared bankrupts on the 6th day of April of that year; on this answer the court below discharged the garnishee. Held, that it was erroneously done; that the lien attached in favor of the attaching creditor, from the time of the service of the process of garnishment, and could not be defeated by the declaration of bankruptcy made afterwards.
    The mere declaration of bankruptcy is but an incipient step in the proceeding for a final decree, and is not evidence of the transfer of all the applicant’s effects under the act of congress.
    On appeal from the circuit court of Holmes county; Hon. Robert 0. Perry, judge.
    Joseph Marlow, Jr., on the 14th day of April, 1842, made oath before a magistrate of Holmes county, that James Brander and others, partners, under the style of Brander, McKenna & Wright, were in debt to him in the sum of $400, and were nonresidents ; bond was given, and a writ of attachment issued, on which the sheriff returned, “executed the 15th March, 1842, by summoning Hugh H. Fultz as a garnishee.”
    At the April term, 1842, of the circuit court, Lindsey S. Wells, for the use of Joseph Marlow, Jr., filed his declaration on this attachment.
    Proof of publication, as against Brander, McKenna & Wright, was made, and at the April term, 1843, a verdict for $404.24, was rendered against them. A judgment nisi was entered against Fultz, and a scire facias issued. It was afterwards set aside, and,' on the 28th of April, 1845, Fultz answered that he was administrator de bonis non of T. M. Scurlock, deceased, that Brander, McKenna & Wright, had laid before the commissioners of insolvency of that estate, a claim for $2868.75; and the estate would probably pay six cents, in the dollar, that the defendants were bankrupts, but whether before or after he was summoned as garnishee, he did not know.
    On the 10th of June, 1846, he filed an amended answer, stating that the defendants filed their petition for the benefit of the bankrupt law in the district court of the United States for the Eastern District of Louisiana, on the 10th day of March, 1842, and he accompanied his answer with a certified transcript from that court.
    This transcript, after its caption of names, parties, court, &c., proceeded thus, “ petition filed on the 10th day of March, 1842; order of the court issued same day for publication, in the New Orleans Bee and the Morning Advertiser, directing all persons interested to appear and show cause on the 6th of April next, why the prayer of the petitioners should not be granted, and on the 6th of April they were accordingly decreed bankrupts, and assignee appointed.
    “I, N. R. Jennings, clerk of the district court of the United States for the district of Louisiana, do hereby certify the above to be a true copy from the bankrupt proceedings of Brander, McKenna & Wright, and numbered one hundred on the docket of this court. In testimony,” &c.
    On the 10th of June, 1846, the circuit court, on motion upon this answer, discharged the garnishee, and the plaintiff below appealed.
    
      H. W. Brown, for appellant,
    contended,
    I. That the lien was fixed by the attaching process, before the declaration of bankruptcy, and that the act of congress could have no relation back to divest their lien.
    2. That the act of congress expressly preserved and retained all liens previously fixed.
    3. That the certificate was of the mere declaration of bankruptcy, and for aught that appeared, they might never obtain their final discharge.
    
      W. R. Miles, on the same side,
    argued, in addition to the other points taken for appellants, that, even if the defendants were certificated bankrupts, the garnishee could only be relieved against the plaintiff's demand, by the interposition of their assignee, or their own plea of bankruptcy.
    Brooke, for appellee.
   Mr. Justice Thacker

delivered the opinion of the court.

Hugh H. Fultz was summoned as a garnishee in an attachment, at the suit of Joseph Marlow, Jr., against Brander, McKenna & Wright. The writ of garnishment was executed on the 15th day of March, 1842. On the 28th day of April, 1845, Fultz answered, that the defendants in attachment had a claim allowed them by the commissioners of insolvency of the estate of Scurlock, deceased, of which estate he was administrator, and that said claim amounted to the sum of $2,868.57, upon which he estimated there would be a dividend of six cents on the dollar, and that the defendants were bankrupts, but the time when they became so, he was unable to state. On the 10th day of June, 1846, Fultz filed an amended answer, in which he stated, that the defendants in attachment filed their petition in bankruptcy, under the law of the United States, on the 10th day of March, 1842. To this answer was added, as an exhibit, a copy of -a certificate, which certifies, that the defendants were declared bankrupts on the 6th day of April, 1842.

In the first place, a lien having attached in favor of the attaching creditor from the time of the service of the process of garnishment, it could not be defeated by the declaration of bankruptcy made on the 6th day of April, 1842. The third proviso of the second section of the act of congress, to establish a uniform system of bankruptcy throughout the United States, approved August the 19th, 1841, protects all liens, mortgages, or other securities on property, real or personal, which may be valid by the laws of the states respectively.

In the next place, the mere declaration of bankruptcy is but an incipient step in the proceeding for a final decree, and the answer is incomplete in that particular. Atkinson v. Fortinberry, 7 S. & M. 302.

The decree of the circuit court discharged the garnishee upon his answer. This was erroneous, but the answer is not so definite as to enable a judgment to be rendered in this court. The cause must, therefore, be remanded.

Judgment reversed and cause remanded.  