#### Adam W. Snyder, Appellant, v. The President and Directors of the State Bank of Illinois, Appellees.

APPEAL FROM ST. CLAIR.

The debtors to the state bank can not raise the objection that the bank is unconstitutional. (2)

An averment in the scire facias issued to foreclose a mortgage given to the state bank, that “ S.” made his note to plaintiff for $760, is sufficient to show that he borrowed and received that amount.

Judgment will be rendered against him who commits the first error in pleading. (3)

(2)

This is overruled by the case of Linn v. State Bank, 1 Scam., 87, which see and notes.

(3)

Phœbe v. Jay, post. Davis v. Wiley, 3 Scam., 236. McDonald v. Wilkie, 13 Ill., 22. The People v. M. & A. R. R. Co., 13 Ill., 66. P. & O. R. R. Co. v. Neill, 16 Ill., 269.

*162But the rale that a demurrer must he carried back and sustained to the first defective pleading, does not apply to a plea in abatement. If a plea in abatement is bad, although the declaration may also be defective, the demurrer will be sustained to the plea, and the defendant ruled to answer over. Ryan v. May, 14 Ill., 49.

A demurrer to a special plea can not be carried back to the declaration, after a direct demurrer to it has been overruled, and the general issue pleaded. Brawner v. Lomax, 23 Ill., 496.

Opinion of the Court by

Justice Lockwood.

The plaintiffs below brought a scire facias in the St. Clair circuit court, on a mortgage, executed to them under the act incorporating *162the state bank. The defendant below pleaded that the consideration of the mortgage was the paper of the state bank, and that the incorporation of said bank was in violation of the constitution of the United States, and that therefore he is not bound to pay said mortgage. To this plea, the plaintiffs below demurred. The circuit court sustained the demurrer, and rendered judgment for the amount due on the mortgage. From which judgment the defendant below has appealed to this court.

Reynolds, for appellant.

Cowles, circuit attorney for appellees.

The errors assigned are, 1. That the incorporation of the bank, and issuing the paper, are contrary to the constitution of the United States: 2. That there is no averment of money received by Snyder : 3. That there is no breach set out in the scire facias. As to the first point, the court are of opinion that the debtors of the bank can not raise the objection that the charter of the bank is a violation of the constitution. After having borrowed the paper of the institution, both public policy and common honesty require that the borrowers should repay it. It is, therefore, unnecessary to decide whether the incorporation of the bank was a violation of the constitution or not. As to the second assignment of error, the court are of opinion that the averment that Snyder made his note to plaintiffs for $760, is sufficient to show that he borrowed and received that amount.

The court, however, are of opinion that no breach has been assigned, and that the plaintiffs below by demurring to defendant’s plea, have opened the pleadings, so as to authorize the court to decide who committed the first error. For want then of a sufficient assignment of a breach of the note or mortgage, the judgment must be reversed with costs, and the cause remanded, with directions to permit an amendment of the scire facias, Sfc. (a) Judgment reversed.

(a)

Vide Craig v. The State of Missouri, where the constitutionality of the loan office of Missouri is discussed. 4 Peter’s Rep.

Borrowers of loan office certificates are liable to pay the sum contracted for, and it is no defense to say that they are bills of credit. Missouri Rep., 452. Mansker et al. v. The State of Missouri.