Vicksburg Waterworks & Banking Co. v. Washington , 9 Miss. 536 ( 1844 )

Mr. Justice Clayton

delivered the opinion of the court.

This is a cause in which the merits are kept out of view, by the state of the pleadings. It is an action of assumpsit, brought upon a promissory note payable to the plaintiffs, for $14000; a number of pleas were filed, some of which were demurred to, and replications put in to others. It will not be necessary to notice these in detail, but only such of them as are material to the decision.

Amongst others, the defendants filed the plea of non-assumpsit, to which an affidavit in the due'form was annexed, denying that the plaintiff is a corporation having power to sue. To this plea there was a demurrer, which was overruled. After the opinion of the court below had been given upon the demurrer, but before judgment upon it had been entered, the plaintiff applied for leave to withdraw the demurrer, and file a replication to this plea. The court refused to grant the application, and gave a final judgment for the defendant, from which judgment the cause is brought by writ of error into this court.

Many of the pleas in the cause, are, no doubt, bad, but it is unnecessary to notice them, because if one of the pleas demur red to, be good, and be a bar to the whole declaration, that constitutes a sufficient defence, though there be many faulty ones. 1 Robin. Prac. 291. Harrison v. McIntosh, 1 Johns. Rep.

There is some conflict of authority on this point, whether the plea of nul tiel corporation be good or not. In this ¡State, previous to the act of 1836, it was holden to be bad, because it amounted to the general issue. Carmichael v. Trustees of School Lands, 3 How. 99. Under the general issue, by the common law, the corporation must give in evidence its charter, and acts of user under it, or it would fail in the action. 3 Wend. 296. 11 Vermont Rep. 302. 14 Johns. 416. But by our statute of 1836, (H. & H. 595, § 32) this proof is dispensed with, unless the character of the plaintiff, assumed in the declaration, is denied by plea verified by affidavit. That this act applies to suits brought by corporations has been already decided. 4 How. 262.

The object of the plea in this case was to call in question the corporate character of the plaintiff, and to require proof of such its character. The plea is in form the ordinary plea of non assumpsit ; the affidavit appended to it, sets forth, that the deponent “ verily believes the said plaintiff has not been, and is not now, a corporation, according to the law of the land, and has not a right to sue and maintain actions as such.” Now the statute directs that the plaintiff shall not be required to prove “ the description of character,” set forth in the declaration, unless it be denied by plea, and its truth attested by oath. The affidavit and plea meet all the substantial requisitions of the statute, and are entirely sufficient to secure the object—the forcing of the plaintiff to prove its right to the corporate character which it has assumed.

In argument, the plea in question has been treated as a plea of nul tiel corporation, but it is, in every particular, a perfect plea of non assumpsit. The form of the affidavit cannot change the character of the plea; no objection has been taken to that, and we believe that both plea and affidavit are good. The demurrer was, therefore, properly overruled.

The next inquiry is, whether it was error in the court to refuse the plaintiff leave to withdraw his demurrer and file a replication, when it was applied for? We have no doubt the leave to amend should have been granted. The application was made in time, even according to the English rules of practice. 1 Tidd, 709-10. Graham’s Prac. 761-2. Carrying out the liberal spirit of our statute, which desires to secure a trial in all cases upon the merits, we have gone farther than the English decisions. See Gwin et al. v. McCarroll, MS. supra, 351.

But it has been holden with scarcely a single exception, that applications for amendments are addressed to the discretion of the court, and however that discretion may be exercised, it cannot be controlled by a superior tribunal. See 5 How. 538. We regret, in this instance, that permission to amend was not granted ; but we cannot, without overturning former decisions on the subject, reverse the judgment because of the refusal.

The judgment will therefore be affirmed.