Turner v. Richmond & Danville Railroad

RodmaN, J.

It is unnecessary to consider all the several grounds of demurrer stated by the defendant, as if any one of them is good, it disposes of the action.

I take the fourth ground, to-wit; That the complaint does not allege any obligation on the part of the defendant, by contract, or otherwise, to carry the plaintiff over its road free. The existence of such an obligation is a necessary part of the plaintiff’s cause of action, and should have been distinctly alleged. No contract is alleged -with the defendant. It may be, that it was intended to -allege such an obligation, as arising out of the free pass for life, given by the stockholders of the N. C. Railroad Company, to the plaintiff. But it is not alleged thatx .the defendant company became bound by the -contracts of the North Carolina Company. If it was so bound, the free pass given by the North Carolina Company was only a license without any consideration in law, which that company could revoke at pleasure, and which it did revoke by leasing its j road to the defendant. It is immaterial for the present purpose, whether the .lease was a valid and lawful one or not. Eor even if it were not so, the defendant was actually in the .possession of the road .and franchises of the North Carolina •Company; and the legality of its possession cannot-be disputed . .collaterally, but only by a direct proceeding for that purpose.

There is no error. The ease may be remanded on motion of plaintiff, so that he may amend, otherwise the judgment ás affirmed.

Pbe CueiaM. Judgment affirmed.