
    West Feliciana Rail Road Company v. Johnson et al.
    
    The constitution does not restrain the legislature from prohibiting a director of a bank to appear as its attorney.
    Where an act of the legislature was silent as to the time it should take effect, (the constitution in such case requiring the lapse of sixty days,) but a supplementary act passed at the same session provided that the supplement should take effect from the time of its passage; held to relate back so as to embrace the time of the operation of the original act.
    If a plea of abatement to the disability of the plaintiff to sue, conclude with praying “judgment of the writ and declaration, and that the same may be quashed,” it will be had; it should conclude, “whether the defendant ought to be compelled to answer,” &c.
    ERROR from the Circuit Court of the county of Wilkinson.
    This was an action of assumpsit, upon a promissory note payable to the plaintiffs by defendants.
    The defendants pleaded in abatement, that, the attorney who brought the suit, was one of the directors of the bank at the time of the institution of the suit, and was therefore prohibited from acting as its attorney by the act of the legislature of 1840. The. plea concluded with praying “judgment of the writ and declaration, and that the same may be quashed.”
    The plaintiffs demurred to the plea, which the court overruled, and gave judgment for the defendants, which is the error assigned.
    Gordon, for plaintiffs in error.
    1. There was no law in force at the bringing of the suit, which prohibited the attorney in this case under any circumstances from appearing and signing the writ and declaration in the suit. Rev Con. Geni. Prov. sec. 6.
    The legislature can pass no law that debars any party litigant from appearing in any case for or against him, and prosecuting or defending the same, either by himself or counsel, or both. It is admitted in the plea that the attorney in this case is also one of the plaintiffs in the case. The legislature cannot debar the plaintiff from appearing and prosecuting his suit, &c. Rev. Con. Dec. of Rights, sec. 29.
    The charter of the West Feliciana Rail Road Company expressly authorizes and vests the right and full power in the directors of said Bank, (without the reservation of any restriction whatever,) for the time being and at all times in succession, to appoint all such officers, clerks and servants under them, as they may deem necessary in carrying into effect the powers and privileges conferred on them, and to fix by agreement a compensation for their services. See the charter in the acts of 1833, or amended charter, acts 1833, sec. 2.
    Now can the legislature in any manner take away or abridge this express chartered right and privilege conferred upon said Company without its consent. It is believed not. 5 Amer. Dig. p. 138, sec. 18. 1 Akins Vt. Rep. 364.
    Does not the act of the Legislature of the last session under -which the defendants rely to sustain their plea (if in force at the commencement of this suit) apply only to the ineligibility of a director to be appointed collecting attorney for the Bank to appointments or elections to be made after the passage of the law, and not as to appointments made before that time of a person who was at the time of such appointment, and before and at the time of the commencement of the suit, and passage of said act, a director? The words of the act are, « and hereafter no one who shall be a director of any bank within this state shall at the same time be eligible for or act as the collecting attorney of said bank, or any other bank.” Last clause of the 13th section of the act.
    Can the legislature, upon any principle known to our institutions, pass a law to operate so as to affect previously existing rights and obligations, which had been created and fixed in the person who may have been appointed attorney, with a compensation agreed upon as well as in the corporation, who, in virtue of such appointment and agreement, had obtained the right to his professional services, and whose right and privilege to make such appointment and agreement is expressly conferred on them by law, as specified in their charter ? It is believed not. Acts, 1833, § 3d.
    
      2. As to the plea used, whether the matter therein stated is properly matter in abatement.
    Have the defendants stated in their plea sufficient matter to make out their case, if true ?
    Is it not necessary that they should have alleged in the plea affirmatively that the election and appointment of the attorney took place since the act went into effect, and that he was not then eligible, being at the same time a director of said bank, or some other bank within this state? Croke’s James’ Rep. p. 82.
    In pleas in abatement, there must be certainty in every particular, and every thing must be stated, and nothing be supplied by intendment or construction. Gould’s Pleading, p. 86, § 59; p. 84 and 85, § 57 and 58.
    S. The conclusion of the plea is bad.
    A mistake in the form of beginning or concluding a plea in abatement, is fatal to the plea. Great accuracy is therefore required in those two particulars, as well as all others, as the character of the plea mainly depends upon its commencement and conclusion. Gould’s Pleading, p. 293, § 144 and 145.
    In.pleas in bar, the court will give the proper judgment, although. not expressly prayed for; but not so in pleas in abatement. Every plea in abatement must have its proper conclusion. See Shower’s Argument, and the Opinion of the Court, 5 Mad. Rep. 145; and Stephens on Pleading, as to pleas in abatement, 446; 3 Term. Rep. 185, 186.
    In pleas in abatement, the court will give no other judgment than prayed for. 1 B. & A. .172; 2 Saunders’ Rep. 209, g.
    
    It is a settled rule of law in relation to pleas in abatement, that where the matter of abatement is to the disability of the party plaintiff, and not on account of any imperfection in the writ or declaration, or, in other words, where the defendant cannot give a better writ by his plea, the plea must not conclude with a prayer, that the writ and declaration may be quashed; but with a prayer, “ whether the defendant ought to be compelled to answer,” &c. 1 Chitty’s Pleading, 495; 1 Dunlap’s Practice, 441; 1 Lilley’s Entries, 1, as to form of a plea of alienage; 2 Saund. Rep. 9, n. 10; 2 Salk. Rep. 601; 3 Leven’s Reports, 208; 2 Lord Raymond’s Rep. 1056 ; 2 Henning & Munford, 213,214.
    Winchester, on the same side.
   Mr. Justice TROtteh

delivered the opinion of the court:

This was an action of assumpsit in the usual form, upon a promissory note, payable to the plaintiffs. The suit was brought by an attorney of the bank, and the defendants pleaded in abatement that the attorney was one of the directors of the bank at the time of instituting the suit, and was therefore prohibited from acting as its attorney, by a statute of this state, enacted in 1840. The plaintiffs demurred to the plea, but the court overruled the demurrer, and gave judgment for the defendants. And the cause is brought to this court by appeal.

In support of the demurrer, it is insisted that the act of 1840, did not embrace the present case, because it did not take effect until after the day of the commencement of the suit. And that it is unconstitutional. And also that the plea is bad in point of form. It is true that the act which is relied on in the plea made no provision as to the time when it should take effect, and would therefore under the constitution of the state have no operation until the expiration of sixty days from its passage. But the supplemental act of the same session, provides that the same shall take effect immediately. And although the terms of the provision are confined to the amendment or supplemental law, it must extend back and embrace the original act, or the strange anomaly would exist of an amendment made to a law at the same session going into operation before the law to which it refers, and with which it is connected. It stands as I conceive on the same ground in this respect as if the supplemental law, had been incorporated with the original law, during its passage, by the ordinary mode of amendment. We are hence of opinion, that this law was in force at the time of the institution of the suit.

Is the provision of the act which prohibits directors of a banking corporation from acting as attorneys of the Bank, unconstitutional? In its terms it certainly is not. What motives of policy may have influenced the legislature, in imposing this restraint we do not know, nor is it important that we should be informed, since we must regard the provisions of the act itself, in comparison with the provisions of the constitution, in order to pronounce upon their inconsistency. The constitution, in securing to all persons, the right to be heard in court, by themselves or counsel, surely did not mean that no limitations could be imposed by law, upon the admissibility of attorneys. If so, none of the various regulations adopted from time to time, as to the mode of admitting attorneys to the bar, and their expulsion for improper or criminal behavior, can be sustained. As officers of the courts in which they practice, they are subject to be silenced, and totally disqualified from appearing as attorneys, for improper conduct. Was it the design of the bill of rights to force the attorney in such cases, back upon the courts, whenever the partialities of a suitor might select him? The suitor has an undoubted right to be heard by his counsel, whenever he presents such as are not legally disqualified. This right of the suitor then is not at all inconsistent with the right of the legislature to say who may be attorneys, and in what cases. The law has said, a justice of the peace shall not appear as attorney for any person in the county for which he may be appointed. That no clerk of any court of record shall act as attorney, in the court of which he is clerk, and the same prohibition is extended to other officers. And yet these regulations have never been deemed to be infringements of the right of a suitor to appear by counsel, or of the constitutional rights of the several persons who are placed under its operation. May not the legislature then, say that no person holding the office of a bank director shall appear as attorney for the Bank? We think they may unquestionably. If it should so happen that a director was also a stockholder of the Bank, he might, unquestionably appear and prosecute or defend suits in which the Bank was interested. He might exercise that right, not as an attorney, but as a party, and the act could not embrace him.

We will next notice the objection to the plea. The courts have never been disposed to favor mere dilatory pleas, and have therefore required the utmost accuracy in framing them. They must be certain to every intent, and must have a proper commencement and conclusion. And the slightest deviation either in the commencement or conclusion from the settled forms, will be fatal. Therefore if the plea conclude by praying “judgment of the writ and declaration,” in a case when it should conclude with a prayer that “ the suit may remain without day,” &e. or if the court will further proceed,” &c. or if the plaintiff ought to be answered,” &c. it will be bad. 1 Chitty Plead. 495. The plea in this case is clearly to the disability of the plaintiffs to sue by the particular attorney on record, as much so as one who seeks to abate a suit by an infant who has declared by attorney. And it is a fettled rule that if a plea is to the ability of the plaintiff to sue, the plea should conclude with a prayer "if the plaintiff ought to be answered/’ or whether the defendant ought to be compelled to answer,” &c. ■ And a plea of this kind concluding merely to the writ would be bad. 1 Chitty, 495; and the authorities referred to. In the present case the plea concludes with praying "judg-* ment of the writ and declaration, and that the same may be quashed.” It is therefore clearly defective, and for this reason, the judgment must be reversed, and the cause remanded for further proceedings. And that the defendant answer over, to the merits.  