*402Opinion by
Beatty, C. J., Lewis, J.,concurring.
The complaint in this case alleges that the plaintiff is a corporation duly incorporated under the general incorporation laws of the State.
That Alfred Helm, in the month of December, A.D., 1862, obtained a legislative grant to himself and assignees of a certain toll-road franchise. In the spring of 1863 he assigned four-fifths of this franchise to certain associates, and they and he conveyed the whole to three certain trustees to be held in trust for the Lake Bigler Road Company.
Subsequent to this conveyance to the trustees, Rice and Helm (each of whom were grantors in this trust deed) mortgaged two-fifths of the franchise to Theodore Winters, to secure a debt due by themseves and others to him. This mortgage was foreclosed, the two-fifths sold, and by several mesne conveyances came into the hands of Martha A. Bedford, wife of Thomas J. Bedford. The complaint then goes on to recite the facts and circumstance of the order made on the defendants in the case of Theodore Winters v. Alfred Helm, and others, to deliver the possession of the toll-road to Bedford, or show cause why it was not done, and the proceedings which took place under that order, the steps taken by the plaintiff to be restored, etc., all of which will more fully appear in the statement of the case just preceding this. It alleges that no title passed by the pretended sale in the foreclosure suit of Winter v. Helm, and others; that the Bedfords had appealed from the order restoring the Lake Bigler Road Company to the possession of the road; that they were collecting the tolls, letting the road go to waste for the want of repairs, etc.
The complaint first prays for a judgment to quiet title; second, for judgment for possession; and third, for the appointment of a receiver.
The defendants first filed an answer admitting some of the allegations of the complaint and denying others, and then without interposing a demurrer, moved the Court for judgment for the defendants on the pleadings.
In the written notice or statement which is filed, the ground *403taken is substantially that the complaint does not show that the plaintiff is a corporation capable of holding a road franchise.
This motion was sustained by the Court below and the plaintiff appeals.
This was an irregular practice, and if we sustain the judgment in this case it is only because it is clear that the complaint fails to state facts sufficient to constitute a present cause of action.
If a complaint is defective the proper practice is to demur to it, and if the demurrer is sustained, then either one of two things takes place: the plaintiff amends, if it be amendable; if not, judgment goes against the plaintiff as a matter of course, and this either ends the case or brings it up fairly to this Court on the legal issue. But if an answer is put in and the Court gives judgment upon the pleadings, it either does or does not allow the answer to have some weight in deciding that question. If it does give any weight to the answer it is certainly wrong ; for the answer, so far as it denies matters stated in the complaint, puts these matters in issue. So far as new matter is stated, that also is put in issue by operation of law, and the Court has no right to suppose before trial that any of those issues will be found against the plaintiff. If on the other hand the Court acts solely on the allegations of the complaint, that should be done on demurrer, leaving the plaintiff the opportunity to amend if it be only defective in a matter that is amendable. When a judgment is given against a plaintiff in this irregular way, if the complaint is clearly defective in not stating facts sufficient to constitute a cause of action, we will as a matter of necessity be compelled to sustain said judgment. But if there be any doubt as to whether it does fail to state facts sufficient to constitute a cause of action, or only fails to state them with sufficient precision, we will be much inclined to resolve those doubts in favor of plaintiff, and to send the case back, with leave to amend the complaint without costs.
In this case, however, we see no chance for the appellant to. amend. As a bill to quiet title it was filed prematurely before plaintiff was restored to possession. As a suit to recover possession it was unnecessary, as by their own showing they must be restored to possession under the order of Court in the case of Winters v. Helm, and others. For the appointment of a Receiver it *404was not necessary. During the pendency of the appeal from the. order restoring the possession to the Lake Bigler Road Company, the Court could have appointed a Receiver to preserve the property without the bringing of this suit. (See Section 148 of our Practice Act.)
As the question is not properly before us, we express no opinion about the power of this corporation to take or hold a toll-road franchise.
Judgment of the Court below affirmed.
Having an interest in some of the matters at issue, Johnson, J., does not participate in the decision.