Page:Federal Reporter, 1st Series, Volume 1.djvu/576

 568 PEDEEAL REPORTER. �is abundantly established by many respectable courts, and he concludes it is a plea in bar and may be joined with the general issue; but the majority of the court held it could be pleaded by the corporation neither in abatement nor bar ; that sucb a plea was felo de se. See, also, Gulf R. Co. v. Shir- ley, 20 Kas. 660. Notwithstanding this, it will be found that the plea bas been made by the alleged corporation itself in many cases. Poster v. Wldte Cloud, 32 Mo. 505 ; Hobich v. Folger, 20 Wall. 1; Boijce v. M. E. Church, 46 Md. 359; Greemvood v. B. Co. 10 Gray, 373 ; Dooley v. Glosa Co. 15 Gray, e94; Thornton v. Railway, 123 Mass. 32; Gott v. Adams Ex. Co. 100 Mass. 320 ; Inman v. Allport, 65 111. 5iO;PUbron V. R. Co. 5 M. G. & S. (57 E. C. L.) 440. �In Massachusetts it is held that the plea must be by the coi'poration, and that an officer or stockholder cannot make defence. Townsend v. Freewill Baptist, 6 Cush. 281; Byers \. Franklin Co. 14 Allen, 470; Robbins v. Justices, 12 Gray, 225. Yet in Buch v. Ashuelot Co. 4 Allen, 357, and Foster V. Essex Bank, 16 Mass. 245, the fact of non-existence was otherwise made to appear in the one case by one having no right to plead, and in the other by suggestion of counsel. �In Callender v. Painesville Co. 11 Ohio St. 516, the question ■was directly adjudicated. An officer, not even served .with process, was allowed to file his affidavit and move to dismiss the suit, because the defendant had no corporate existence, the court holding that he was not an intruder; that a judg- ment against the company would be against ail the members collectively, including him as an individual; and that any member, under the circumstances, might make the motion to dismiss, and be heard upon it. And in Pllbrow v. Railway Co. 54 B. C. L. 730, the right of the person served to make the defence was upheld. See, also, Stevenson v. Thorn, 13 M. & W. 149; Stewart v. Dimn, 12 M. & W. 655. �The defence was made by the persons served with process, pleading in abatement, in Rand v. Proprietors, 3 Day, 441 ; Evarts v. Killingworth Co. 20 Conn. 447; and Express Co. v. Haggard, 37 111. 465. And in Elliott v. Holmes, 1 McLean, 466, it was held that a person served with process against another ��� �