People ex rel. Coon v. Plymouth Plank Road Co.

31 Mich. 178 | Mich. | 1875

Graves, Ch. J.

The information filed in this cause charged the defendants in general terms with exercising certain specified franchises without authority, and called upon defendants to show by wbat warrant they assumed to exercise these powers. The defendants set up by plea tbeir authority and right as resting upon an act of incorporation granted by the- legislature. To this the relators replied certain acts relied upon as a ground of forfeiture; and to sucb of tbe matters in tbis replication as tbe relators continued to insist upon tbe defendants demurred specially, and the general question is whether tbe replication can be supported as a showing of sufficient ground to require judgment of ouster, and we think it can.

The demurrer complains of the form of the replication rather than the substance, and it may be admitted that the pleader ivas not as careful as he might and perhaps should have been. ' Still we are not inclined to favor the extreme notions formerly so common in the criticisms passed on pleadings, and which served frequently to defeat justice by the very instruments introduced to insure it.

It is true that several distinct facts are set out in the replication, but they are all aimed to make out the one ultimate fact, namely: a violation of corporate duty in respect to the continued bad condition of the road. This affords no ground for charging the replication with duplicity.

The objection to the alternative statement that the company “ did willfully or negligently so manage their affairs that,” etc., is without influence. The statement itself is not material. The facts which immediately follow are sufficient of themselves without aid from any allegation in terms that the corporation acted, willfully or negligently.

The further objection that the replication is argumentative and uncertain, we are not inclined to sanction.' The facts relied upon as cause of forfeiture seem to be averred directly and positively, and we see no satisfactory reason why issue in fact might not have been taken upon the averments.

The circumstance that the repliants, after averring that the company did not keep the road in lawful repair, went further and also averred that the directors did not, is of no, legal consequence, unless it was in such a way the duty of the directors that the company upon information would bo responsible for their failure, and if that was the case, then the averment was proper.

On the whole, we think the demurrer cannot be supported. The judgment to be entered will be determined hereafter.

Campbell and Cooley, JJ., concurred. Christiancy, J., did not sit in this case.