
    President, Directors and Company of the Bank of Auburn against Aikin and Weed.
    Where the-plaintiff adds the similiter to the defendant without Xtu-ouíthe^sími"? X’rreXbefn^ üXXXthat purpose.
    Nulhelcor-poration is a farfwiere the Filed bya pX and the “piX-spL^\¡how-¡n§' how jlle;sr 2“*n’act incorporating them, required certain things foretheycoufd poratíonF °or*
    THIS was an action of assumpsit on a promissory note. 1 r J The defendants pleaded two pleas, 1. JNon assumpsit; 2i That the plaintiffs are not a body politic and corporate, &c. On the 12th of June, 1819, there was a replication to the second plea, that the plaintiffs are a body politic and corporate, and have a right to sue, &c. and this the plaintiffs pray may be inquired of by the country, &c. to which was added a similiter ; and the said defendants do the like, &c. * . ? On the 26th of June, being the first day of the circuit, the defendants’ attorney delivered to the plaintiffs’ attorney, a demurrer to the replication ; but without having struck out the similiter, or giving notice of striking it out. On the 1st of July, being the last day of the circuit, the plaintiffs, who had noticed the cause for trial at the Circuit, on the issues so joined, took an inquest by default. It appeared, that the demurrer was filed in the clerk’s office on the 12th of July, &
    
    
      Oakley, (Attorney General,) for the defendants,
    now moved to set aside the inquest for irregularity. If the plaintiff has added the similiter to his replication, the defendant may strike it out and demur. {Tidd’s Pr. 678.) In Boardman v. Brunson, {Col. Cases, 46.) this Court said, that where the demurrer was filed within the twenty days, according to íhe 9th rule of April term, 1796, it was not necessary to strike out the similiter from the plaintiff’s replication.
    Mil tiel corporation is a good plea in bar; {Bro. Abr. tit. Corp. 44. tit. Misnomer, 73. 22 Edw. IV. 34. 1 Saund.. 340. b. Viner Abr. tit. Corp. p. 308. 316. 1 Kyd on Corp. 284.) and the plaintiffs must reply to such a plea, specially setting forth how they are a corporation. (1 Kyd on Corp. 284. Gilb. Cases, 253. Cambridge University v. Crofts, 44.Assize, 9. Bro. Abr. tit. Corp. 44.)
    
      
      Cady, contra.
    In Shultys v. Owens, (14 Johns, Rep. 345.) 0ourt; tjjat plaintiff was not bound to wait twenty days after the replication tenderingan issue, to which the s^m^ter was added, before noticing the cause for trial, to see if the defendant would demur or not; and that the practice of striking out the similiter and demurring, &c. was a fraud upon the rule of April term, 1796, which was intended merely to allow the party time to put in a demurrer bona fide. The demurrer in this case, was not filed until after the nisi prius record was made up and sealed»
   Per Curiam.

No doubt the plea was put in for delay $ but we cannot say that the defendant had no right to plead such a plea. But the replication was bad. The plaintiffs ought to have replied specially, and shown how they were a corporation; for the act by which they are incorporated, requires certain things to be done before they can be a corporation. It is not necessary, actually, to strike out the similiter; the demurrer is a sufficient notice for that purpose. (Col. Cases, 46.) The motion of the defendants must be granted, with costs, but the plaintiffs have leave to amend their replication.

Motion granted.  