McCormick v. . Pickering , 4 N.Y. 276 ( 1850 )

The question whether the voluntary branch of the late bankrupt law is constitutional, (see Sackett v. Andross, 5 Hill, 327,) belongs ultimately to the supreme court of the United States; and although that court has not yet decided the question, it is understood that a majority of the judges have in their circuits, or elsewhere, expressed opinions in favor of the validity of the law. On that ground, and without saying what our opinions would be if the question could be regarded as an open one, we are all agreed in overruling the objection that the law is unconstitutional.

But the plea is bad for not confessing the action which it attempts to avoid. The words are, "that the said supposed bond or writing obligatory, if any such were made," was made before presenting the petition in bankruptcy. The plea should have confessed the making of the bond, and then set up the discharge by way of avoidance. The demurrer is special; and it is well settled, both here and in England, that the objection to the plea is fatal. It will be enough to refer to two recent cases, one in each country, and both directly in point. (Conger v.Johnston, 2 Denio, 96; Margetts v. Bays, 4 Ad. Ellis, 489.) Following the law as I find it, and leaving amendments to the legislature, I think the judgment should be reversed.

JEWETT, J. concurred in that opinion.

Judgment affirmed.