
    The Bank of Utica v. Joseph Card.
    A discharge under the New York insolvent laws must be made by an officer having the qualification of a counselor at law, or it is invalid. '
    Debt upon a judgment rendered in the State of New York, in 1826, reserved in Cuyahoga county.
    The original suit was founded on a note given by the defendant, then, and for some time after, a citizen of New York, within which the corporation plaintiff exists. The defendant’s plea in bar sets up a discharge under the insolvent law of New Yerk, reciting particularly the proceedings, from which it appears that; Card, then a citizen of Ohio, being in Buffalo on business, was arrested on civil process, and filed his petition for discharge under the insolvent law before Burnett, first judge of Erie county court, of the degree of counselor at law, who assigned a day for hearing, but being absent from the county *on that day, one of
    the judges of the county court appeared, heard the application, and granted the discharge, etc. The replication admits the proceedings and discharge, but allege they are coram, non judice and void, because the judge of the county court, who ordered the discharge, was not of the degree of counselor at law.
    To this replication there is a general demurrer and joinder. The only question raised is, whether the judge of the county court, not of the degree of counselor at law, had authority to hear the application and grant a discharge?
    Andrews and Foote, for the demurrant:
    Cited 2 Rev. St. N. Y. 34, which provides that application for discharge, etc., “may be made to circuit judges, supreme courts and commissioners, first judges of county courts, and any other judge of said court of the degree of counselor at law, in the supreme court, and also to any county judge in said article specified.” Also to the same law, articles 5 and 7, which provides that in case of the death, absence, etc., of any such officer, after proceedings have been commenced, the said proceedings may be continued by his successor in office, or by any other officer residing in the same county, who might have instituted such proceedings, in the same manner, and with the like effect, as if originally commenced before him. They insisted that these provisions, one expressly authorizing such proceedings as set forth in the plea, to be instituted belore a county judge, whether of the degree of counselor at law or not, and the other giving the same effect to proceedings continued by him, as would be given to those originally commenced before him, gave validity to the discharge pleaded.
    R. Hitchcock, for plaintiff:
    Contended that, by the whole act taken together, it will appear obvious that no power to discharge the petitioning debtor was intended to be conferred upon any single judge, unless of the degree of counselor at law; and that the act did not embrace the case of a citizen of any other state than New York.
   Lane, J.,

delivered the opinion of the court:

- The only point arising in this case, not before decided in 7 Ohio, *2 pt. 170, is, whether a discharge under the New York law is valid, if granted by a judge who is not a counselor at law? This question is readily decided by inspection of the statute. Article 7 provides, that applications for the discharge of an insolvent .debtor from his debts, under article 3, may be made to either of the following officers: Circuit judges, supreme court commissioners, first judges of county courts, or any other judge of said courts of the degree of counselor at law. Section 4 provides for the institution of these proceedings in another county, where there is no such officer in the county of the insolvent’s residence. Section 5 makes provision that in case of death, removal, or disability of the officer before whom proceedings were commenced they may be continued under any other officer who might have originally instituted the proceedings. 7 N. Y. Rev. Stat. 34. Noth, ing, then, can be more evident, than that no officer not possessing the qualification of the degree of counselor has any jurisdiction to act in these proceedings; so that a discharge, like the one-pleaded, granted by a judge not possessing this character, is void.

The demurrer to the replication is overruled. Judgment for plaintiff.  