Poor v. European & North American Railway Co.

Walton, J. This case is before the court on demurrer. The plaintiff says the defendants’ plea is insufficient, and the defendant replies by saying that the plaintiff’s declaration is bad. We are inclined to think both are right. But as judgment must be given against the party who committed the first error, and as we are satisfied judgment must be against the plaintiff, upon this ground, we have not found it necessary to scrutinize the defendants’ plea very closely. That the plaintiff’s declaration is bad we cannot doubt. We are unable to discover in its recitals any cause of action, ex contractu. It contains in general terms an allegation of bad faith and an intent to violate a trust which the plaintiff says the defendant company entered into respecting his shares; but it fails to disclose any contract, or trust, the breach of which would give the plaintiff a right of action. Nor can we discover in the recitals any recognized cause of action, ex delicto. The act complained of is the issuing of certificates of stock without the consent of these contractors. But it is not averred that the plaintiff was one of those contractors. How his interests were thereby injuriously affected, how he was thereby defrauded, the declaration fails to disclose. In fact, we are at a loss to determine whether the pleader intended to set out a cause of action, ex contractu, or a cause of action, ex delicto. A declaration so vague and uncertain is clearly bad. Exceptions sustained. Plaintiff's declaration adjudged defective. AppletoN, C. J.; Cutting, KeNT, Baekows, and DaNfokth, JJ., concurred.