Majority
p. 87The President, &c. of the Hartford Bank vs. Murrell.
Headnote
When a plea, adjudged bad on demurrer, is interposed, the plaintiff may demur specially, and notice the cause for argument, claiming priority, as in the ease of a frivolous demurrer or frivolous bill of exceptions.To a declaration by the plaintiffs, as the third indorsees of a promissory note against the defendant, as the first indorser, the defendant plead the general issue, and a special plea of ml tiel corporation; to which plea a special demurrer was interposed and the plaintiff, on a notice for that purpose, now claimed a priority, and moved for judgment as in case -of a frivolous demurrer or frivolous bill of exceptions.
J. Platt, for plaintiffs,
A. S'. Gear, for defendant.
By the Court,
The question presented is, whether the practice adopted by this court, as to frivolous demurrers and frivolous bills of exceptions, shall be extended to this case. No good reason is perceived why it should not. The plea of nv.l tiel corporation has been adjudged to be bad on demurrer, (19 Johns. R. 300,) inasmuch as the plaintiffs, on the general issue, are bound to prove the existence of the corporation, or be nonsuited.
Judgment for the plaintiffs.