¶1By the Court,
¶2The only question to determine is, whether the replication to the defendant’s plea of the bankruptcy of plaintiff pending the suit is sufficient. This point was expressly decided at the last term of this court in Hynson vs. Burton, and the replication held to be good. The demurrer to the replication, however, relates back to the plea, and raises the question as to its vajidity. According to the case just cited, the plea was no defence to the action. Such actions do not abate by the bankruptcy of the plaintiff during the pending of the suit, “but may be prosecuted and defended by such assignee to its final conclusion.” As between the bankrupt and his assignee, the decree in bankruptcy passes all his property and rights of property. The defendant, however, is not interested in this matter, and whether the assignee prosecutes the suit in his own name after the bankruptcy, or uses the name of the bankrupt, the defendant cannot be heard to complain.
¶3The judgment of the circuit court must be reversed, the cause re. manded with instructions to the said court to overrule said demurrer to plaintiff’s replication for insufficiency of the plea of defendant,, and proceed, &c.