
    James M. Smith et al. vs. The Commercial Bank of Rodney.
    However defective a plea may be in form, if it be appropriate to the form of action, and go to the substance of it, it will be error to strike it out or reject it.
    Special pleas, which amount to the general issue, must be specially demurred to; they cannot be stricken out upon motion.
    To an action brought by a bank on a note payable to it by its corporate name, pleas denying the corporate existence of the bank at the time of the execution of the note, and setting up violations of its charter; and asserting a failure of the bank to comply with certain prerequisites to its corporate existence, however defective they may be in form, cannot be stricken out on motion, they must be reached by demurrer.
    In error from the Hinds circuit court; Hon. George Coalter, judge.
    The Commercial Bank of Rodney sued James M. Smith, James Payne, and Daniel Frisbe, in assumpsit, upon a note payable to the plaintiffs by their alleged corporate name. The defendants, Smith and Frisbe, at the return term, plead non assumpsit, under oath, and eight special pleas; all of which were sworn to be true in substance, and in fact. The first of which denied the corporate existence of the bank, and the other seven, in substance, did the same, averring the non performance of certain prerequisites to its corporate existence. As the validity of these pleas were not passed upon by the court, they are not further here noticed. At a subsequent term, on motion of the plaintiffs, these special pleas were stricken from the record. Afterwards, process having been served on Payne, he plead at the next succeeding term non assumpsit; when by consent of counsel it was agreed that the special pleas filed and stricken out for the other defendants, should be considered as filed also for Payne.
    At the June term, 1843, the case was tried, and a verdict rendered for the plaintiffs. A motion for a new trial was made and overruled, to which a bill of exceptions was taken; from which it appears that the new trial was moved for, because the court had rejected the defendant’s special pleas, and also, because at the trial the court had instructed the jury that the charter of the bank which was read to the jury was sufficient evidence that the plaintiffs were a corporation, under the general issue, the truth of which was verified by oath.
    The defendants below prosecute this writ of error.
    
      D. Mayes, for plaintiff in error.
    The judgment should be reversed, because,
    1st. The court erred in striking out the special pleas of Smith and Frisbe, on motion.
    
      2d. Because the special pleas were afterwards received, and filed, by consent, as pleas for Payne, and remain unanswered by demurrer or replication.
    3d. Because the court instructed the jury as to the weight of evidence.
    On the first point. When a plea is filed in'a cause there are but two modes of disposing of it known to the law. The one, by proceeding with the pleadings to issue, which may be an issue of law or fact. The other by signing judgment as for want of a plea. The first course was not pursued. If the pleas were such that, had the general issue been out, the plaintiff might have signed judgment as for want of a plea, I concede that the court might rightfully direct, that they be stricken from the record. If not such as to authorize the former, the court could not legitimately pursue the latter course.
    A practice has prevailed to a certain extent, in the circuit courts of this state, to move to strike pleas from the record, on the mere ground that they are not a bar to the action, if true. If this practice is correct, the office of a demurrer is at an end. It is time that the true line which separates the classes of pleadings which may be stricken out on motion, from those to which the party shall be held to demur, be drawn. By reference to Tidd’s Practice, 563, and the adjudged cases there referred to, it seems to me that an intelligible classification may be' framed, which will give something like system, and principle, to this now, at least to me, incomprehensible practice, as I have seen it in our inferior courts. I will make a hasty and imperfect essay, which the court, if they deem the subject worthy of the labor, will correct and improve. We ought to have some rule.
    The plaintiff may sign judgment as for want of a plea. 1st. Where the plea is not adapted to the nature of the action, as non est factum to an action of assault and battery, or covenants performed to an action of debt, as in 4 Howard, 142.
    2d. Where the pleadings, or proceedings, have reached a point at which pleas of the class filed are inadmissible, as. a plea to the jurisdiction, after a plea in bar.
    3d. Where there is a condition to be complied' with before the plea can be filed, and that condition has not been complied with. As a plea in abatement, filed without affidavit, or of tender, without bringing in the money.
    4th. Where the plea is upon the face of it absurd, as where the party pleads a former recovery, as having been had, upon a specific cause of action, before that cause of action accrued.
    5th. Where the plea is unintelligible.
    6th. Where the plea appears from the record to be false in point of fact.
    7th. Where the defendant has pleaded a subtle plea, in order to entrap the plaintiff, and refuses to amend.
    8th. Where sham pleas are pleaded, which require different modes of trial, as nul tiel record, which is to be tried by the court, and set-off, which is tried by a jury, the court may give leave to sign judgment as for want of a plea, if the defendant makes oath that the pleas are false.
    9th. Where there is some trick or fraud resorted to by the defendant,- in order to mislead the plaintiff.
    There are some cases in the books, not embraced by this classification, but they are inapplicable to our practice.
    Although I have examined, with no small degree of diligence, I have been able to find no case in which it is held that a plea may be treated as a nullity, merely because the facts alleged do not constitute a sufficient bar to the action, with one solitary exception, in which the doctrine has undergone no examination, by either court or counsel.
    Upon the second point, see Dickson v. Hoff’s Administrator, 3 How. 165 ; Irving v. Montgomery, Ibid. 191.
    As to the third point, had the court instructed the jury that the charter was evidence of incorporation, the instruction would possibly have been allowable. It would only have been a decision, that the evidence was of a quality to be weighed by the jury, but when the court say it is sufficient evidence, that is a decision upon its quantity or weight.
    I have said the instruction would possibly have been allowable, had it been that the charter was evidence that plaintiffs were a corporation, because it appears to me that a mere charter does not create a corporation, and, taken by itself, is not evidence of a corporation. It is necessary that the charter be accepted by corporators. This acceptance may be proved by circumstances. That the defendants executed the note, and the plaintiffs sued on it, may be evidence of acceptance of the charter. The charter, and these facts, taken in' connection, are evidence that plaintiffs were a corporation ; but neither, taken •aloue, is evidence of the fact. Each constitutes a link in the chain, but only a link. The effect of the instruction is, that 'one link in the chain of evidence is sufficient proof of the whole claim. The court exceeds its office, when it weighs and pronounces upon the sufficiency of evidence. Even though we may clearly be of opinion, that the evidence was sufficient, beyond all doubt, the line of partition which separates the province of the court from that of the jury, must be sacredly observed. If we may pass it in any case, however manifest it ■may be that the judge weighed the evidence correctly, the line of separation is virtually annihilated. It then becomes a rule, that the judge may instruct on the weight, in all but doubtful cases. And who is to decide which cases are doubtful? None but the court. Then to allow him to do so for the reason that the case is not doubtful, is to reason in a circle. He may weigh the evidence, because the case is, not doubtful. And the case is not doubtful because it so appears by the weight of the evidence.
    
      
      J, F. Foute, for defendants in error,
    stated that this cause was submitted to the court by the plaintiffs in error, and its further prosecution urged by them, that on the part of the bank, and as its representative, he neither assented nor objected. Rumor had informed him that information, in the nature of a qiio warranto' had been filed against the bank, and that it was then under injunction ; and he did not wish, nor intend, in any manner, or to any degree, to violate that injunction, or be in contempt. That his attitude was purely defensive. He contended, 1. That the authority of the court to strike out, on motion, frivolous pleas, had become so universally prevalent, in this state, so well settled, and so useful and proper, that he deemed it unnecessary to trouble the court with references to authorities or precedents, on that subject.
    2. That every matter of defence, presented by the pleas stricken out, was clearly admissible under the general issue, as pleaded.
    3. That the bill of exceptions did not contain, or profess to contain, all the evidence; that the note sued on was on its face payable, to the corporation, by its corporate name, and the defendants were estopped thereby from denying its corporate character; so that even if the instruction had been erroneous as to the effect of the charter, it could not affect the verdict; that the court would presume the other evidence not set out in the record would uphold the verdict.
   Per Curiam.

After verdict in the court below, the plaintiffs in error moved to set it aside, because the special pleas of the defendants were ruled out, or rejected, and also because the court charged on the weight of evidence in instructing the jury that the production of the charter was sufficient evidence of the existence of the corporation.

The pleas may have been defective, and it is believed most, or perhaps all of them, were so. But it is not every defective plea that may be treated as a nullity. When the defendant’s plea is not adapted to the nature of the action, it may be treated as a nullity. But if it be appropriate to the form of the action, as a general rule, it must be demurred to. Be it ever so defective, the plaintiff cannot, on that account, sign judgment, if it goes to the substance of the action. 1 Sellon’s Practice, 310; 1 Tidd’s Practice, 504. This rule is applicable, even in cases where the defendant is under a judge’s order to plead, which is usually strict in requiring the defendant to plead issuably, &c. Thellerson v. Smyth, 5 D. & E. 152.

But it is said these pleas amounted to the general issue. If that be true, a special demurrer would have been the appropriate method of disposing of them. These pleas may be defective, that is not now the question. They go to the substance of the action. In the case of Thellerson v. Smyth, the judgment was set aside, because the plea was improperly treated as a nullity; and so the verdict in this case must be set aside, and a new trial awarded.  