
    Lawson F. Henderson et al. vs. The Mississippi Union Bank.
    If a plea of nul tiel corporation, under oath, be filed to a declaration by a bank on a note, and issue be joined thereon, and the bank introduce in evidence, a copy of the act of its incorporation, with proof of user under the charter, it is sufficient to entitle it to recover.
    Error, from the circuit court of Madison county ; Hon. John H. Rollins, judge.
    This was an action of assumpsit, brought by the Mississippi Union Bank, against Lawson F. Henderson et ah, to the November term, 1840, of the circuit court of Madison county. The declaration was founded on a- promissory note for five thousand dollars, and in the usual form. The defendants pleaded nul tiel corporation, which was sworn to, and non assumpsit. The latter was withdrawn, and issue taken on the former. On the trial, the plaintiff read to the jury the promissory note sued on, the act, and supplemental act of the legislature incorporating the bank; and proved a user under those acts of incorporation, and rested the case. The defendants demurred to the evidence; the court overruled the demurrer, and entered judgment in favor of the plaintiff; and the defendants have brought the case to this court by writ of error.
    
      J. L. Mitchell, for plaintiffs in error.
    As appears by the record, defendants below withdrew the plea of non assumpsit, and relied upon the plea of nul tiel corporation, on which issue was taken. To support their suit, plaintiffs below read the original act incorporating the bank, and also the supplemental act, and also proved that there was a pretended corporation in the city of Jackson, claiming to act as a corporation under said acts of the legislature of Mississippi, to which evidence there was a demurrer. Not wishing to enter into an argument on other points, which have been too much discussed already, I make this point to the court; that by the first article of the constitution of this state, “ no man, or set of men, are entitled to exclusive, separate, public emoluments, of privileges from the community, but in consideration of public services;” that by section 4th, of the original act of incorporation of said bank, “ the owners of real estate situated in the state of Mississippi, and who are citizens thereof, shall be the only persons entitled to subscribe ; ” that by the 18th section of the supplemental charter, the “ public services” to be rendered by said bank are taken away or waived; that the state, and of course every citizen thereof, whether an owner of real estate or not, is liable for the payment of the bonds issued by said state, for the benefit of said bank; that although in many states it has been decided that a bill of rights is merely a nursery song, yet in this state, in the case of Thompson v. The Grand Gidf Railroad and Banking Company, 3 How. R. 247, the chief justice of this court has decided, the court concurring, that every portion of the constitution is to be sustained, although the legislature, or even popular prejudice, may be against it ; that in the case of Smith’s administrator v. Smith, 1 How. R. 102, this court has decided that sureties are not entitled to privileges to which others are not. If then sureties are a “set of men,” (and we well know that every man can easily become a surety,) are not owners of real estate a “ set of men,” when we well know that every man, however willing, cannot become the owner of real estate? And the privilege of taking stock in this bank is confined to such. I therefore on this ground, ask the court for a reversal of the judgment below.
    
      Charles Scott, for defendant in error.
    1. The court below did not err in overruling the demurrer, and giving judgment.
    The act of incorporation, and acts of user under it, coupled with the fact of contracting with it, is sufficient evidence of the corporate existence of the bank. 3 Wend. 296; 1 lb. 555.
    2. The act of the legislature or charter declares the Mississippi Union Bank a corporation, which renders it unnecessary to prove even acts of user, &c.
   Mr. Justice Thacher

delivered the opinion of the court.

The bank instituted suit upon a promissory note, to which action the defendants below filed a plea of nul tiel corporation, with affidavit, upon which issue was made up. The bank introduced in evidence, a copy of its act of incorporation, together with proof of user under the charter. To this evidence a demurrer was filed by the defendants below, which was overruled by the court, and judgment given for the bank.

The demurrer was properly overruled, since the evidence was proper and sufficient in behalf of the bank under the state of pleadings. Ang. & Ames on Cor. 504, and authorities there cited. ,

Judgment affirmed.  