
    Jesse Keene v. Henry Mould.
    The bankrupt law of the United States is constitutional, and a plea of certificate of discharge, under that law, plead since the last continuance, is a bar to the further prosecution of the suit.
    It is not necessary to. state, in such plea, the time when the plea is filed. Such time appears sufficiently from the filing, and from the leave of the court to file it.
    This is an action of assumpsit, reserved in Muskingum county, and comes into the Supreme Court by appeal, from the court of common pleas.
    The action is assumpsit. The suit was commenced in the common pleas on December-8, 1841. The declaration was filed on April 25, 1842.
    The plaintiff counts against the defendant: Í. A®'maker of a due bill. 2. As indorser of a promissory note. 3. As guarantor of a promissory note. 4. For work and labor, goods sold and delivered, moneys lent and advanced, paid, laid out, and expended, had and received, and due upon account stated.
    The defendant filed his plea of non assumpsit on May 6, 1842.
    At the October term, 1843, of the Supreme Court,.leave was given to the defendant to plead his discharge, as a bankrupt, which had been obtained since the filing of his plea of non assumpsit; and, under such leave, the defendant accordingly filed his pica puis darrein continuance, setting forth that the plaintiff ought not further to have or maintain his aforesaid action thereof against him, because, he says, that, heretofore, to wit, on the 6th day of October, in theyear of our *Lord one thousand eight hundred and forty-two, at the district court of Ohio, to wit, at Zanesville, in Muskingum county aforesaid, the district court of the United States within and for the district of Ohio, in the exercise of its jurisdiction, in matters and proceedings in bankruptcy, did duly make and enter a certain decree upon the petition in that behalf before them, duly filed by the said defendant, in said district court; and in and by said decree, it was, by said court, by virtue of an act of the Congress of the United States, entitled “ an act to establish a uniform system of bankruptcy throughout the United States,” approved August 19, a. r>. 1841, ordered, decreed, and allowed, that the said defendant bo, and he accordingly was, by such decree, fully discharged of and from all his debts, owing by him. the said defendant, at the time of the presentation, in said district court, of his petition to be declared a bankrupt. And it was, thereupon, then and there, by the said district court, in the further exercise of its said jurisdiction, in matters and proceedings in bankruptcy, further ordered and decreed, that the clerk of said district court should duly certify such decree, under the seal of the said district court, and deliver the same to said defendant when demanded.
    And the said defendant further avers, that, afterward, to wit, on the 8th day of October, in the year of our Lord, one thousand eight hundred and forty-two, at the said district court of Ohio, to wit, at Zanesville aforesaid, in Muskingum county aforesaid, the said decree so certified as aforesaid, being then and there demanded of said clerk of said district court, by said defendant, was, by the said clerk, then and there duly delivered to said defendant, which said discharge and certificate the said defendant says were duly granted to him, by the said district court, in manner and form as aforesaid, and in conformity to all the requisites and provisions of the act entitled “ an act to establish a uniform system of bankruptcy throughout the United States,” as by the said certificate, so sealed as aforesaid, which said defendant now brings here into court, will more fully appear.
    *And the said defendant further avers, that all the said several supposed debts and contracts, in the said declaration mentioned, as the same are therein alleged to be due from the said defendant to the said plaintiff, were and are debts and contracts, owing and made by said defendant, before and at the time of such presentation, in said district court, of his said petition to be declared a bankrupt as aforesaid : and the same were all provable under the act of Congress aforesaid, to wit, at Zanesville aforesaid, in Muskingum county aforesaid. And this the said defendant is ready to verify; wherefore, he prays judgment if the said plaintiff ought further to maintain his aforesaid action thereof against him, etc.
    To this plea the plaintiff demurs, and' assigns, for causes of demurrer :
    1. That the plea ought to have been pleaded as a plea puis darrein continuance; whereas, it is pleaded merely to the “further maintenance” of the suit; and that the defendant has omitted to state, in the commencement or elsewhere, the time when he pleads the same.
    2. That the plea shows that the matter pleaded arose before the last continuance.
    3. That the defendant has not shown, by said plea, the various steps or proceedings by which he finally obtained his certificate.
    4. That the plea does not show but that the causes of action, set forth in the declaration, may have arisen prior to the pass&go of the bankrupt act. '
    
      5. That the bankrupt act is unconstitutional and void, so far as it authorizes the debtor’s discharge upon his own application.
    6. That, in so far as that act authorizes the discharge of the debtor from debts contracted before its passage, upon his own application, it is unconstitutional and void.
    7. That the plea is, in other respects, uncertain, etc.
    G-. N. Cuming, for plaintiff,presented the following authorities: *1 Chit. PI. 698, 699; 3 lb. 1243; 1 Bac. Ab. Bank. 552; Bankrupt Law, sec. 3.
    Charles C. Convers, for defendant, as to the form of the plea, submitted the following authorities:
    Kemp’s Lessee v. Kennedy, 5 Cranch, 185 ; 6 Ib. 267 ; McCormick v. Sullivant, 10 Wheat. 199; Leland v. Kingsbury, 24 Pick. 315; Mitchell v. Greoter, 2 Story, 648; Tower v. Cameron et al., 6 East, 413; Harris v. James, 9 East, 82; Stedman v. Martinant, 12 East, 664; 1 West. Law Jour. 396; Ludin v. McCrea, 1 Wend. 228 ; Morgan et al. v. Dyer, 10 Johns. 161, and 5 Law Rep. 259; and as to the substance of the plea, involving the constitutionality of the bankrupt law, 1 How. (U. S.) 277, and 2 lb. 202.
   Avert, J.

The plaintiff by this demurrer objects, first, to the form of the plea, but he strikes also at the foundation of the defense ; claims that the law on which it rests is void, and that the court shall so determine in his behalf.

If, in the progress of a cause, a question of constitutional law necessarily arises, bearing upon the rights of litigant parties, it will, of course, be met and determined. It is not, at this late day, a matter of debate whether the courts of this country are to decide upon the binding obligation of a law, and to refuse to give effect to its provisions, if opposed to the constitution under which it was enacted.

The plaintiff asserts that the' law reaea upon in this piba is not authorized by the constitution of the United States. Under that constitution it is declared that laws which shall be made in pursuance thereof shall be the supreme law of the land; that courts shall be established, and that their judicial power shall extend to all cases arising under the constitution and laws of the United States. The ultimate jurisdiction over the question involved in this case resides, then, in these courts of the United States. They have exercised the jurisdiction and decided upon all the questions raised here, and *have pronounced the bankrupt law to be constitutional. This law, therefore, if the defendant brings himself within its provisions, will furnish him a complete defense.

The next inquiry is, has he complied with the forms of law in presenting his defense?

It is said that he should have filed a plea puis darrein continuance. This he has done, employing the very words used in what are regarded as approved forms. Nor is it necessary, according to the same authority, to state the time when he pleads. Further, it is said that the matter of the plea arose before the last continuance. If a penalty so severe could ever bo inflicted for omitting to file such a plea in time, it would not be after the proper court had given leave to file it.

It is objected also that the various proceedings by which the bankrupt obtained his certificate are not set out in the plea. To this objection it is sufficient to reply that the act which gives the defense points out itself what shall constitute a plea in law, and the requirements of the act, in that particular, have been complied with in framing this plea.

The seventh and last cause of demurrer specified is the general one, that the plea is, in other respects, insufficient.

We have not discovered any of the defects complained of. On the contrary, we regard the plea as containing all the material and formal averments under the act, and that it is to be avoided, if at all, by facts set up in a replication.

Demurrer overruled.  