the persons of said defendants, for without such jurisdiction it can render no personal judgment against them.

The Code permits a defendant to demur on the ground that the court has no jurisdiction of his person when this fact appears upon the face of the complaint; and when it does not so appear, to take the objection by answer (Code, §§ 144-147). But such objection is not to be deemed waived, even if not taken by demurrer or answer (Code, § 148); much less is it to be deemed waived by an appearance for the sole purpose of raising it in the exact method provided by the Code. 4 Robt. 616.

This objection to the jurisdiction of the court does not mean that the suit has been irregularly commenced, but that the person named as defendant is not subject to the jurisdiction or order of the court. Nones v. Hope Ins. Co. Hence the inquiry is not as to the irregularity of the proceedings by which service of the summons has been made, but whether the defendant is such a person as can be subjected by process to the court's jurisdiction.

One over whose person the court has no jurisdiction is not bound to wait until final judgment and then seek relief by motion to set it aside. The Code gives him the right to present that contingency by pleading, and by appearing to exercise that right he does not waive it, nor in any way impair the force of the objection. To hold otherwise would make the means provided for presenting that issue destroy the issue itself. In my judgment the issue was properly taken by demurrer, and such demurrers present issues of law for the decisions of the court. Code, § 249; King v. Poole.*

An action against a foreign corporation is authorized by section 427 of the Code, but before the action can proceed or the court render judgment either in rem or in personam, it must have jurisdiction of the property or the person of the defendant.

This is not a proceeding in rem, but an action against the persons of the defendants.

As the complaint in this case shows the said defendants to be foreign corporations, and there not having been any voluntary general appearances therein, no jurisdiction of their persons has been obtained, and the demurrers of the said defendants are well taken."

15 How. Pr. 96.

2 36 Barb. 242, 247.

• Belden v. Wilkinson, 44 N. Y. Ap. Div. 420 (semble) Accord. — ED.

C. F. A. DAMBMAN v. H. SCHULTING.

SUPREME COURT, SPECIAL TERM, NEW YORK, FEBRUARY, 1874.

[51 Howard's Practice Reports, 337.]

THE Complaint in this action states that the plaintiff loaned to defendant $5000, which is unpaid. That the plaintiff, in June last, brought his action in this court, to recover the said $5000, and that the defendant, in his answer, set up a release under seal as a defence, and that this action is still pending.

The plaintiff further states that the said release was obtained from him by fraud, etc., and demands judgment that said release be delivered up and cancelled, and that the defendant be enjoined from setting the same up in above-mentioned action. The defendant demurs to this complaint, upon the ground that another action is pending between the same parties for the same cause.

Van Brunt, J. Since the adoption of the Code parties have had the right, in actions at law, to interpose any equitable defence they may have, and are not obliged to file a separate bill in the equity branch of the court, as they were obliged to do under the former practice. The object of this provision of the Code being to prevent multiplicity of actions, Dobson v. Pearce. The plaintiff seems to fear, in case he goes to trial in the first action, that he, not being permitted to reply to the answer setting up the release, will be prevented from showing the facts alleged in the complaint in this action, but I think that he is clearly in error. Up to the year 1853 the Code required a reply to all new matter constituting a defence or set-off set ap in the answer, and it was not until the amendment of that year that the necessity of a reply was limited to new matter constituting a counterclaim.

The result of this amendment was that the plaintiff, upon the trial without a reply, could prove any state of facts whatever which would, either in law or equity, show that the new matter set up in the answer of such new matter did not constitute a counterclaim, did not constitute a defence to the plaintiff's claim.

In 1860 the Code was amended by providing that the court could, in its discretion, upon the motion of the defendant, require a reply to any new matter constituting a defence by way of avoidance. This amendment was passed in the interest of the defendant, in order that he might be apprised of the grounds upon which the plaintiff proposed to meet his defence. The universal course of practice since the Code has been to compel the parties to litigate each and every question pertaining to the same subject-matter in one action.

The release set up in the defendant's answer can be attacked upon the trial of that cause for the fraud set up in the complaint in this

1 2 Kern. 165.

action, and it must be attacked there, that action being commenced first.

Demurrer sustained with costs.1

THE PHOENIX BANK OF NEW YORK v. E. J. DONNELL.

COURT OF APPEALS, NEW YORK, JUNE 12, 1869.

[40 New York Reports, 410.]

APPEAL from a judgment of the General Term of the Supreme Court in the first district affirming a judgment in favor of the plaintiff on demurrer to the complaint.

The grounds of the demurrer were:

1. That it appears by the complaint that the plaintiff has not legal capacity to sue.

2. That it does not appear that the plaintiff is a corporation duly incorporated, and entitled to sue.

And for a further and separate ground of demurrer to said complaint, this defendant states:

That the complaint does not state facts sufficient to constitute a cause of action.2

GROVER, J. Section 114 of the Code provides that the defendant may demur to the complaint, when it shall appear upon the face thereof that there is one or more of six specified defects therein. It is settled that these are the only grounds upon which a demurrer to the complaint can be sustained. The counsel for the appellant relies in the present case upon the second and sixth, principally upon the second, for the reason that the complaint contains no allegation that the plaintiff is a corporation, insisting that unless it is such, it has no capacity to sue in that character. In this position the counsel is correct; but does the argument show that the demurrer is well taken? All that the argument proves, is that the complaint does not show upon its face, affirmatively, that the plaintiff has capacity to sue. But to sustain the demurrer, the Code requires that it should appear upon its face that it had not such capacity, which in no respect appears. For aught appearing upon the face of the complaint, the plaintiff may be a corporation entitled to sue as such. Section 147 provides, that when any of the matters enumerated in section 144 do not appear upon the face of the complaint, the objection may be taken by answer. This would seem to indicate the proper practice with sufficient clearness. If it appears upon the face of the complaint that a plaintiff suing as 1 Affirmed 4 Hun, 50. See, to the same effect, Geary v. Webster, 11 Hun, 430 (semble). If the pendency of another action appears upon the complaint, the objection can be taken only by a demurrer. Garvey v. N. Y. Co., 14 N. Y. Civ. Pro. 106, 14 N. Y. St. Rep. 909 8. C. - ED.

2 The statement is abridged.

a corporation is not such in fact, a demurrer is the proper remedy of the defendant under section 144. If the complaint does not show that the plaintiff is not a corporation on its face, the objection that it is not such must be taken by answer, under section 147. This would seem to render further discussion of the question unnecessary. Upon looking into the authorities, some conflict will be found. The counsel for the appellant cites a number of cases, holding that allegations showing that plaintiff is a corporation are necessary in the complaint. Most of these are cases arising under the system of pleadings in use prior to the enactment of the Code. Under that system, although cases may be found intimating a contrary doctrine, yet the decided weight of authority is that such averments were necessary, and that the want thereof could be taken advantage of by demurrer. But these authorities have no application to the question under the Code. There are a few cases in which similar opinions have been expressed since the Code. Stoddard v. The Onondaga Annual Conference,1 Elizabethport Manufacturing Company v. Campbell. In some cases the contrary has been held. Union Insurance Company v. Osgood, Kennedy v. Colton. In Bank of Havana v. Magee, DENIO, J., in giving the opinion of the court, speaking of a complaint precisely like that in the present case in this respect, says: "But there was not here any defect on the face of the complaint. For aught that appeared, the plaintiff was a corporate body. This indicates clearly the view of the learned judge upon the point under consideration, although it was not directly involved in that case. The weight of authority under the Code is against sustaining the demurrer upon this ground."

1 12 Barb. 573.

2 13 Abb. 86.

8 1 Duer, 107.

4 28 Barb. 59.

5 City Council v. Wright, 72 Ala. 411 (public law); Seymour v. Thomas Co., 81 Ala. 250 (default); Moore v. Martin, 124 Ala. 291 (semble); Miss. Co. v. Gaster, 20 Ark. 455; District No. 110 v. Feck, 60 Cal. 403; American Co. v. Moore, 2 Dak. 280 (foreign corporation); Wilson v. Sprague Co., 55 Ga. 672; St. Cecilia Co. v. Hardin, 78 Ga. 38; Mattox v. State, 115 Ga. 212, 219 (semble); O'Donald v. Evansville Co., 14 Ind. 259; Mackenzie v. Board, 72 Ind. 189; Sayers v. First Bank, 89 Ind. 230; Smythe v. Scott, 124 Ind. 183; Northrup v. Wills, 65 Kan. 769 (foreign corporation); Henderson Co. v. Leavell, 16 B. Mon. 358; State v. Torinus, 22 Minn. 272; Minneapolis v. Works, 24 Minn. 327; Howland v. Jewel, 55 Minn. 102, 104 (semble); Herbst Co. v. Hogan, 16 Mont. 384; Exchange Bank v. Copps, 32 Neb. 242; Trister v. Mo. Co., 33 Neb. 171, 184 (foreign corporation); Bennington Co. v. Rutherford, 18 N. J. 105; German Church r. Puechelstein, 27 N. J. Eq. 30; U. S. Bank v. Haskins, 1 Johns. Cas. 132 (foreign corporation - but see contra, Comm. Bank v. Smith, 9 Abb. Pr. 168, 17 How. Pr. 487 s. c. foreign corporation); Kennedy v. Cotton, 28 Barb. 59 (discrediting Johnson v. Kemp, 11 How. Pr. 186; Bank of Havana v. Wickham, 16 How. Pr. 97); La Fayette Co. v. Rogers, 30 Barb. 491; Holyoke Bank v. Haskins, 4 Sandf. 675 (foreign corporation); Union Co. v. Osgood, 1 Duer, 707; Waterville Bank v. Beltser, 13 How. Pr. 270; Elizabethport Co. v. Campbell, 13 Abb. Pr. 86; Smith t. Sewing Co., 26 Oh. St. 562 (foreign corporation); Cheraw Co. v. White, 14 S. Ca. 51; Cone v. Poole, 41 S. Ca. 70 (foreign corporation); Crane Co. v. Reed, 3 Utah, 506; Central Bank v. Knowlton, 12 Wis. 624; Chickering Lodge v. McDonald, 16 Wis. 112 Accord.

-

Central Co. v. Hartshorn, 3 Conn. 199; Winnipiseogee Co. v. Young, 40 N. H. 420; Bank v. Simonton, 2 Tex. 531 (foreign corporation); Holloway v. Memphis Co., 23 Tex. 465 Contra.

By statute in some jurisdictions an express averment that the plaintiff is a corporation is required. In a few jurisdictions the complaint must state also whether the corporation is domestic or foreign, and if foreign where its domicile is. There is much conflict of decision as to whether a failure to comply with these statutory requirements is a ground of demurrer

"The appellant's counsel insists that if the demurrer is not sustainable upon the second ground specified in section 144, it is upon the

A demurrer was sustained in the following cases: Sweet v. Irvin, 54 Iowa, 101; Colnan Co. v. Brown, 110 Iowa, 37 (semble); Aull Bank v. Lexington, 74 Mo. 104; Baker v. Star Co., 3 N. Y. M. L. Bull. 29; Gorton Co. v. Spofford, 5 N. Y. Civ. Proc. 116 (semble); Harvey v. Little Falls, 19 N. Y. W. Dig. 48 (semble); Clegg v. Cramer, 3 How. Pr. N. s. 128, 8 N. Y. Civ. Proc. 404 s. c. (defendant); First Bank v. Doying, 13 Daly, 509; Farmers Bank v. Rogers, 15 N. Y. Civ. Proc. 250, 1 N. Y. Sup. 757 s. c.; Nat. Soc'y v. Anderson, 2 N. Y. Sup. 49; Columbia Bank v. Jackson, 4 N. Y. Sup. 433 (semble); Amer. Soc'y v. Foote, 52 Hun, 307 (semble); Schillinger v. Arnott, 14 N. Y. Sup. 326.

But a demurrer was overruled in the following cases, the defect being assailable only by answer or by a motion. Irving Bank v. Corbett, 10 Abb. N. C. 85 (objection should be by answer); Haffner Co. v. Grumme, 10 N. Y. Civ. Proc. 176; Rothchild v. Grand Trunk Co., 30 N. Y. St. Rep. 642, 19 N. Y. Civ. Proc. 53 s. c.; Brady v. Nally, 8 N. Y. Misc. Rep. 9 (defendant); Ochs v. Frey, 47 N. Y. Ap. Div. 390.

Special plea of nul tiel corporation. — In most jurisdictions, in which the corporate capacity of the plaintiff cannot be questioned by a demurrer, this objection cannot be taken by plea of the general issue, or by a general denial. special plea denying the incorporation is essential. Mayor v. Stafford, 1 B. & P. 40 (but see Norris v. Staps, Hob. 210, b; Henriques v. Dutch Co., 1 Stra. 612, 2 Ld. Ray. 1535; Nat. Bank v. De Bernales, 1 C. & P. 569); Conard v. Atlantic Co., 1 Pet. 386; Society v. Pawlet, 4 Pet. 480; U. S. v. Ins. Co., 22 Wall. 99; Pullman v. Upton, 96 U. S. 328; Union Co. v. Noble, 15 Fed. 502; Imperial Co. v. Wyman, 38 Fed. 574 (general denial); Prince v. Comm. Co., 1 Ala. 241; Phenix Bank v. Curtis, 14 Conn. 437; West Bank v. Ford, 27 Conn. 288; Litchfield Bank r. Church, 29 Conn. 137; McIntyre v. Preston, 10 Ill. 48; Bailey v. Valley Bank, 127 Ill. 332; Gage v. Consumers Co., 194 Ill. 30; Harris v. Muskinghum Co., 4 Blackf. 267; Guaga v. Dawson, 4 Black f. 202; Richardson v. St. Joseph Co., 5 Black f. 146; Dunning v. New Albany Co., 2 Ind. 437; Jones v. Cincinnati Co., 14 Ind. 89; Haaston v. Cincinnati Co., 16 Ind. 275, 278; Cicero Co. v. Craighead, 28 Ind. 274; Wiles v. Trustees, 63 Ind. 206 (general denial. But see Chance v. Indianapolis Co., 32 Ind. 472); Ryan v. Farmers Bank, 5 Kan. 658; Taylor v. Bank, 7 Mon. 576, 584; Woods v. Bank, 4 B. Mon. 203; Jones v. Bank, 8 B. Mon. 122, 123; Penobscot Corp. v. Lamson, 16 Me. 224; Roxbury v. Huston, 37 Me. 42; Oldtown Co. v. Veazie, 39 Me. 571; Orono v. Wedgewood, 44 Me. 49, Whittington v. Farmers Bank, 5 Har. & J. 489 (but see Agnew v. Bank, 2 Har. & G. 478); Monomoy Beach v. Rogers, 1 Mass. 159; Kennebec Purchase v. Call, 1 Mass. 483, 485; Sutton v. Cole, 3 Pick. 232, 245; Christian Soc'y v. Macomber, 3 Met. 235; Williams v. Cheney, 3 All. 215; Garton v. Union Bank, 34 Mich. 279; Canal Co. v. Paas, 95 Mich. 372; Ludington Co. v. Ludington, 119 Mich. 480 (but see Cahill v. Kalamazoo Co., 2 Doug. 134); Farmers Bank v. Williamson, 61 Mo. 259; Nat. Co. v. Robinson, 8 Neb. 452; Dietrichs v. Lincoln Co., 13 Neb. 43; Herron v. Cole, 28 Neb. 692 (foreign corporation); Kelly v. Neb. Co., 52 Neb. 355; Fletcher v. Coop. Co., 58 Neb. 511; School Dist. v. Blaisdell, 6 N. H. 197 (but see Society v. Young, 2 N. H. 310); Concord v. McIntire, 6 N. H. 527; Star Co. v. Ridsdale, 36 N. J. 229; Genesee Bank v. Patchin Bank, 13 N. Y. 309; Concordia Assn. v. Read, 93 N. Y. 474; Union Co. v. Osgood, 1 Duer, 707, 708; Waterville Bank v. Beltser, 13 How. Pr. 270; Canandaigua Acad. v. McKechnie, 19 Hun, 62, 90 N. Y. 618, 630 (Jackson v. Plumb, 8 Johns. 378; Dutchess Co. v. Davis, 14 Johns. 238, 245; Auburn Bank v. Weed, 19 Johns. 300; Williams v. Bank, 7 Wend. 539; U. S. Bank v. Stearns, 15 Wend. 314; Utica Bank v. Smalley, 2 Cow. 770; Trustees v. Hills, 6 Cow. 23, 25; Wood v. Jefferson Bank, 9 Cow. 194; Trustees v. Tryon, 1 Den. 451; Waterville Co. v. Bryan, 14 Barb. 182 contra are no longer law); M. E. Church v. Wood, 5 Oh. 283; Elkhorn Co. v. Jones Co., 8 Oh. C. C. 311 (but see Lewig v. Ky. Bank, 12 Oh. 132); Rheem v. Naugatuck Co., 33 Pa. 358 (but see Wolf v. Goddard, 9 Watts, 544); Comm. Co. v. Turner, 8 S. Ca. 107; Steamship Co. v. Rodgers, 21 S. Ca. 27; Palmetto Co. v. Risley, 25 S. Ca. 309; American Co. v. Hill, 27 S. Ca. 164; Boston Foundry v. Spooner, 5 Vt. 93; Manchester Bank v. Allen, 11 Vt. 302; Ætna Co. v. Wires, 28 Vt. 93; Gillett v. American Co., 29 Grat. 565 (but see Reed v. Conococheague Bank, 5 Rand. 326; Taylor v. Bank, 5 Leigh, 471; Jackson v. Marietta Bank, 9 Leigh, 240); Central Bank v. Knowlton, 12 Wis. 624, 625; Mower Co. v. Smith, 33 Wis. 580.

In some jurisdictions, however, the general issue puts the plaintiff to the proof of corporate capacity. Odd Fellows v. Hogan, 28 Ark. 261 (semble).

In other jurisdictions a general denial challenges the corporate capacity of the plaintiff. Hummel v. First Bank, 2 Colo. Ap. 571 (semble); Hungerford Bank v. Van Nostrand, 106 Mass. 559; Bateman v. Potter, 121 Mass. 89; Girls' Home v. Fritchey, 19 Mo. Ap. 344; Denver v. Spokane Falls, 7 Wash. 226. - ED.