This was an action of debt, the relative situations of the parties being the same in the Court below as in this Court. The defendant filed a plea, in which she alleged, that before the co mm on cement of this suit the plaintiffs had forfeited their charter, and had ceased to exist as a body corporate, and were incapable of prosecuting' any suit in their corporate capacity. The plaintiffs replied, that, they wore authorised by law to sue for and maintain all necessary actions for the recovery of debts in their corporate capacity, according- to their charier. The defendant rejoined and took issue upon the plaintiffs replication. The cause upon the issue was submitted to a jury and a verdict rendered for the defendant. Pending the trial, a bill of- exceptions was taken, which discloses that the plaintiffs produced and read to the jury the note executed to them on the fifth.day of February, 1822, and upon which the, action was brought, and also read the act incorporating the said Bank On behalf of the defendant, was offered as evidence, a certified transcript of the records of the office of the Secretary of ‘ Fíate, signed by him with the seal of the State annexed, dated the/first day of February, IS2A, by. which it appears, that the stockholders of said Bank had assented to the provisions of an act passed by the Legislature, December the 31st, 1823, to amend the charier of said Bank, and transmitted au expose of the condition of said Bank, as required by said act, and the Governor's.proclamation declaring the charter of said Bank forfeited in consequence *314of a violation of said act, in not paying specie for a note issued by said Bank, which, was presented for payment on the 16th day of December, 1824, and regularly protested for non-payment. The plaintiffs objected to the testimony going to the jury, but were overruled by the Court: The defendant then read as evidence, the act of 1823 to amend the charter of said Bank. The plaintiffs then requested the Court to charge the jury, that the writing purporting to be the Governor’s proclamation, was not sufficient evidence, unless the same were proved to have been published, to authorise a verdict for defendant; which instruction was refused.. The plaintiffs now assign for error:
First — That the Court erred in not excluding the evidence, offered by the defendant, from the jury.
Secondly — In refusing the instruction asked for; and,
Thirdly — That the issue was immaterial.
The first and second assignments may well be considered together, as they involve the disability of the plaintiffs to sue, and there can be no doubt but the Court erred in refusing to give an opinion as to the law upon the facts, when it was requested to do so. Such a refusal leaves the law to be determined by the jury, or at least it is calculated to lead them into errorj by supposing that the law is on the other side. The Court then should have given the instruction asked for, and left the jury to decide upon the evidence. The refusal then, to give the charge asked for, being equivalent to an opinion that the la,w was with the defendant, I will proceed to shew that the plaintiffs were entitled to sue at the time this suit was commenced. The act of 1823, to amend *315the charter of said Bank, in the 2d section, enacts “that if at any time after the first day of - August next, it shall be ascertained, by note regularly protested for non-payment, that said Bank has refused to pay specie for any note it has issued or may issue, then, and in that event, the charter of 'said Bank shall be forfeited, and the Governor is required to issue his proclamation to declare it null and void.” The third section provides, that in the event of .a forfeiture of the charter of said Bank being incurred under the provisions of this act, the stockholders thereof shall still continue to enjoy all their cor-, porate powers unimpaired, for the term of three years from the date of the proclamation declaring said forfeiture. In the 10th section incorporating said Bank, Digest, page 39, it will be found that, notwithstanding the expiration of the term for which the said corporation was created, it should be lawful to use the corporate name, style and capacity, for the purpose of suits for the final liquidation and settlement of the affairs and accounts of the corporation, and. for the sale and disposition of their estate, real, personal, and mixed, for two years after the expira-, tion of the said term of incorporation. The act then of 1823, from the best construction I have been enabled to give it,-only shortened the period, upon certain contingencies, which the charter of the Bank should run; and from the act referred to, and the date of the Governor’s proclamation, it is evident that a forfeiture of the charter did not take place until the first day of February, 1825, and the act referred to, continued their corporate powers under certain restrictions for three years thereafter. The question then arises, at what time the corporation *316ceased to exist; -and I will liere admit that the question would be beyond, disputation, but' for that part of the act of 1823, which continues their corporate capacity- for three years after a forfeiture of the charter of said Bank, by which it is evident that the legislature intended the corporation to exist and continue the time designated, for all the purposes of banking, except discounts. So long then as the charter authorised the Bank to do banking business, it existed as a corporation, and at the expiration of the time limited, at which the corporation should cease to do banking business in its corporate capacity, then, the corporation ceased to exist, and it would have to resort to the 10th section referred to, in order to enforce the collection of its debts, which seems to have been unimpaired by the act of 1823, to amend the charter of said Bank. The act then of 1823, amending the charter of said Bank, and the 10th section of the original charter not being in conflict, they may well stand in pari materia, and be construed as such, which would give the Bank two years after the expiration of the three, from the date of the Governor’s proclamation, to commence suits, &c. The evidence was'therefore proper under the issue, and the refusal to give the charge asked for, error.
As to the third assignment, that the issue was immaterial, it is believed that that assignment 'is not well assigned. An issue to be immaterial must be such as.no judgment could be rendered upon it. ■ The plea then was a plea in abatement as to the capacity of the plaintiffs to sue: upon that fact being-found, the writ, would have been abated, or being fonnd for the plaintiffs, a respondeos ouster would have been awarded.
*317A majority of the Court aro therefore of opinion, that the judgment be reversed and cause remanded.
The other cases between the same parties are, to abide this decision.
Collier, J. dissented from the opinion delivered by a majority, remarking, that he expressed no opinion, upon the constitutionality of the act of 1823. Taylor, J. and White, J. not'sitting.