#### 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.)

*138*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.