Nye v. Burlington & Lamoille R. R.

The opinion of the court was delivered by

Conceding, without deciding, that the objection is available on motion, instead of plea, we do not think it is well taken. The defendant, as alleged in the writ, is the “Burlington and Lamoille Railroad Company, a company organized under the laws of this State.” The name of the defendant, “ Burlington and Lamoille Railroad Company,” as *587well as the qualifying clause, “a company organized under the laws of this State,” is consistent with the defendant being a corporation upon which service of process can be legally completed only by delivering a copy to its clerk. Pleas in abatement are not favored, and no presumptions are made to uphold them. We have, and for several years have had, a general law under which railroad corporations could be legally organized. It is to be presumed, if any presumption is to prevail, that the defendant is a corporation organized under this law. It is alleged to be a railroad company. The duties of such a company are more or less of a public nature, and of such a character'that it is difficult to conceive of their exercise by a copartnership. Nor have we any statute authorizing the organizing copartnerships for the exercise of the functions required for the full construction, operation and transaction of the business of a railroad company. This company is alleged to have been organized under the laws of this State, clearly referring to the general law enacted for the organization of railroad companies as corporations. The rule, applicable alike to motions and pleas in abatement, is, that they must give the plaintiff a better writ, in that they not only point out the error, but also the method of correcting it. 1 Chit. Pl. 446. The motion is faulty in both of these requisites. It neither alleges nor denies the corporate existence of the defendant, nor in what respect the supposed service of the writ upon it is defective, nor in what manner it can be corrected.

The pro forma judgment of the County Court is affirmed, and cause remanded to be further proceeded with.