§ 522. Husband and wife-Impotence.-Impotence does not render a marriage void, but only voidable, and the validity of a marriage cannot be impeached on that ground after the death of one of the parties. Therefore the right of a husband to administer his wife's estate cannot be disputed on the ground of the nullity of the marriage by reason of his impotence.228

§ 523. The same Promissory note.-An answer upon a promissory note that the maker is a married woman is sufficient as a confession and avoidance.2

229

§ 524. Misjoinder of parties.-Where a misjoinder of parties plaintiff does not appear upon the face of the complaint, and the objection is not taken by answer, it is deemed waived.230 Misjoinder of parties plaintiff, owing to matters which have occurred pending the action, must be taken by supplemental answer, or it is waived.2 231 Objection should be taken by demurrer or answer to the misjoinder of parties defendant. An answer will not be treated as a plea in abatement for a misjoinder of parties defendant, after the testimony has disclosed a proper cause of action against them.232 The objection that there is a misjoinder of defendants must be raised by demurrer or answer; and if not so raised, the plaintiff will be entitled to recovery against all the defendants.233

228 A. v. B., L. R., 1 Prob. & Div.

559.

229 Scudder v. Gori, 18 Abb. Pr. 223.

230 Hastings v. Stark, 36 Cal. 122; Trenor v. Central Pacific R. R. Co., 50 Cal. 223. See Minter v. Durham, 13 Or. 470, 11 Pac. 231; Smith v. Dorn, 96 Cal. 73, 30 Pac. 1024; Asevido v. Orr, 100 Cal. 293, 34 Pac. 777. As to nonjoinder of parties plaintiff in partition, see Sutter v. San FranCisco, 36 Cal. 112.

231 Calderwood v. Pyser, 31 Cal. 333; Barstow v. Newman, 34 Cal. 90. As to joinder of plaintiffs, see Cal. Code Civ. Proc., §§ 378-384; Frost v. Harford, 40 Cal. 165; Powell v. Powell, 48 Cal. 234; Andrews V. Pratt, 44 Cal. 319. As to nonjoinder, see McGilvery v. Morehead, 3 Cal.

271; Estell v. Chenery, 3 Cal. 467; Whitney v. Stark, & Cal. 516, 68 Am. Dec. 360; Conner v. Hutchinson, 12 Cal. 126; Barber v. Cazalis, 30 Cal. 96; Colman v. Clements, 23 Cal. 245; Jenkins v. Frink, 30 Cal. 586, 89 Am. Dec. 134; Smith v. Lawrence, 38 Cal. 24, 99 Am. Dec. 344; Moss v. Wilson, 40 Cal. 159; Gates v. Lane, 44 Cal. 396.

232 Warner v. Wilson, 4 Cal. 310; Dunn v. Tozer, 10 Cal. 170.

233 Story v. Livingston, 13 Pet. 359, 10 L. Ed. 200; Minor v. Mechanies' Bank, 1 Pet. 46, 7 L. Ed. 47; Gilman v. Rives, 10 Pet. 298, 9 L. Ed. 432; Chandler v. Byrd, Hempst. 222, Fed. Cas. No. 2591b; Fosgate v. Herkimer Manf. etc. Co., 12 N. Y. 580. Compare Bates v. Jaines, 3 Duer, 45.

§ 525. Misnomer must be pleaded.-Misnomer of plaintiff or defendant must be pleaded in abatement.234 234 And this is so even in case of a corporation.235 In suits or proceedings by or against any torporation, a mistake in the name is waived if not pleaded in abatement. Misnomer of the plaintiff cannot be taken advantage of on the trial or by plea in bar, but must be pleaded in abatement.236 Where two or more persons associated in any business transact such business under a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name. The judgment will bind the joint property of all the associates and the individual property of the party or parties served, in the same manner as if they had been named as defendants and sued upon their joint liability.237 And when the action is in the name of the individual partners. it binds only the interest of those made parties and served.238. It is a familiar rule that a person may be sued by a fictitious name, but a personal judgment against a fictitious person or against a person not the party to the suit would, of course, be worthless, assuming that such judgment could be obtained. This relates to defendant. A plaintiff ought to know his own name.

239

§ 526. Nonjoinder.-A failure to join may be pleaded in abatement. 240 An objection for a defect of parties-e. g. the nonjoinder of a copartner as plaintiff-which is not apparent upon the face of the complaint, must be taken by demurrer or answer.241 The failure to join a dormant partner as defendant in an action

234 Welsh v. Kirkpatrick, 30 Cal. 204, 89 Am. Dec. 85; King v. Randlett, 33 Cal. 321; Mann v. Carley, 4 Cow. 148; Collmann v. Collins, Hall, 569; Miller v. Stettiner, 7 Bosw. 692; Pennsylvania Co. v. Sloan, 125 Ill. 72, 8 Am. St. Rep. 337, 17 N. E.

37.

235 Bank of Utica v. Smalley, 2 Cow. 770, 14 Am. Dec. 526; Methodist Episcopal Church v. Tryon, 1 Denio, 451; Alabama etc. R. R. Co. v. Bolding, 69 Miss. 255, 30 Am. St. Rep. 541, 13 South. 844.

236 Hanly v. Blanton, 1 Mo. 49; Boisse v. Langham, 1 Mo. 572; Thompson v. Elliott, 5 Mo. 118.

237 Cal. Code Civ. Proc., § 388, as

amended 1907. As to effect of judgment in such cases, see Id.; Mulliken v. Hull, 5 Cal. 246.

238 Feder v. Epstein, 69 Cal. 456, 10 Pac. 785; Davidson v. Knox, 67 Cal. 143, 7 Pac. 413.

239 See Cal. Code Civ. Proc., § 474. Plea in abatement on ground of misnomer. See Hess v. Lowrey, 122 Ind. 225, 17 Am. St. Rep. 355, 23 N. E. 156, 7 L. R. A. 90; Baker v. Bessey, 73 Me. 472, 40 Am. Rep. 377.

240 Whitney v. Stark, 8 Cal. 514, 68 Am. Dec. 360. See Newhall-House Stock Co. v. Railroad Co., 47 Wis. 516, 2 N. W. 1123.

241 Cal. Code Civ. Proc., §§ 430, 433; N. Y. Code Civ. Proc. 1877,

against the partnership cannot be pleaded in abatement.242 And if not thus interposed, the defendant must be held to have waived the objection.243 And an answer upon the merits waives all such

defects.244

§ 527. Tenants in common.-In California, all persons holding as tenants in common, joint tenants, or coparceners, or any number less than all, may jointly or severally commence or defend any civil action or proceeding for the enforcement or protection of the rights of such party.245 This rule extends to suit brought by an heir at law regarding subject-matter affecting the whole estate.240

§ 528. Jointly liable.-In an action on a joint contract, the omission to sue all the joint contractors may be specially pleaded.24 The same in an action against an attorney, one of a partnership composed of several attorneys.248 The plea must give the names truly, so that the plaintiff may proceed correctly the second time. If it appear on the trial that another not named by the plea was also a joint contractor, the proof fails.249 This rule is not changed by the code.250 The fact that other persons. jointly responsible, have not been made defendants, must be pleaded in abatement, or it cannot be taken advantage of on the trial. The rule applies to all joint contracts, as well as to those arising particularly from mercantile partnerships. 251 In a bill to set aside a conveyance, as made without consideration, and in fraud of creditors, the alleged fraudulent grantor is a necessary

§§ 488, 498; Gilman v. Cosgrove, 22 Cal. 356; Harrison v. McCormick, 69 Cal. 616, 11 Pac. 456.

242 Pinschower v. Hanks, 18 Nev. 99, 1 Pac. 454.

243 Cal. Code Civ. Proc., § 434; N. Y. Code, § 499; Trenor v. Central Pacific R. R. Co., 50 Cal. 223; Conklin v. Barton, 43 Barb. 435.

244 Gillam v. Sigman, 29 Cal. 637; Wendt v. Ross, 33 Cal. 650; Seranton v. Farmers etc. Bank, 33 Barb. 527; Merritt v. Walsh, 32 N. Y. 685. As to nonjoinder of parties plaintiff, see generally, McGilvery v. Moorhead, 3 Cal. 271; Mayo v. Stansbury, 3 Cal. 465; Connor v. Hutchinson, 12 Cal. 126; Barber v. Cazallis, 30 Cal. 96.

defendant in the bill.252 The answer should allege that they are still living, 25 or, if a corporation, that it is still in existence.254 But the omission to allege this is cured by proof on the trial that they were still living. Objection to such proof after it has been introduced should be disregarded, or the answer amended to conform to the proof.255 It sufficiently alleges that they are still living, if it alleges that they reside at a place named.256 After showing the facts which make it appear that other parties are necessary, and naming the parties, it is unnecessary to add a formal allegation that they are necessary parties.257

238

§ 529. Payment-How and when must be pleaded. In all of the states, except California, payment or part payment may be set up in the answer as new matter, and must be specially pleaded.259 In California, payment may be proved by the defendant under a general denial, upon the ground that such denial makes it incumbent on the plaintiff to prove a subsisting indebtedness from the defendant to the plaintiff to the time of the commencement of the suit.200 So, if a complaint contains an allegation of non-payment as a necessary and material fact to constitute the cause of action, proof of payment is admissible under a general denial in the answer.201

In Pennsylvania, payment with leave is a general issue plea, and with notice of special matter, admits anything which proves fraud, mistake, want, or failure of consideration, and shows that

252 Gaylords v. Kelshaw, 1 Wall. 81, 17 L. Ed. 612.

253 Burgess v. Abbott, 6 Hill, 135; affirming 1 Hill, 476.

254 State of Indiana v. Woram, 6 Hill, 33; 40 Am. Dec. 378.

255 Wooster V. Chamberlain, 28 Barb. 602.

256 Taylor v. Richards, 9 Bosw. 679. 257 Cook v. Mancius, 3 Johns. Ch. 427.

258 McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696; Solary v. Stultz, 22 Fla. 263.

259 Fort v. Gooding, 9 Barh. 371; Texier v. Gouin, 5 Duer, 389; Morrell v. Irving Fire Ins. Co., 33 N. Y. 429, 88 Am. Dec. 396; Field v. Mayor of New York, 6 N. Y. 179, 57 Am. Dec. 435; Henderson V. Henderson, 3 Denio, 314; Fellers v. Lee, 2 Barb.

489;

Morey v. Farmers' Loan & Trust Co., 18 Barb. 406; Pattison v. Taylor, 1 Code Rep. (N. S.) 174; Martin v. Gage, 9 N. Y. 398; New York Life Ins. & Trust Co. v. Covert, 29 Barb. 436; St. Louis etc. R. R. Co. v. Grove, 39 Kan. 731, 18 Pac. 958; Lent v. New York etc. Ry. Co., 130 N. Y. 504, 29 N. E. 988; Hyde v. Hazel, 43 Mo. App. 668.

260 Wetmore v. San Francisco, 44 Cal. 300, and cases there cited. Payment can be shown under plea of the general issue in Illinois. Teuber v. Schumacher, 44 Ill. App. 577.

261 Knapp v. Roche, 94 N. Y. 329; Hun v. Van Dyck, 26 Hun, 567, 92 N. Y. 660. And see Brown v. Forbes, 6 Dak. 273, 43 N. W. 93. But compare Ebensen v. Hover, 3 Colo. App. 467, 33 Pac. 1008.

265

ex aquo et bono a part or whole of the amount claimed should not be recovered.202 A plea of payment admits all the allegations in the complaint essential to support the action,263 and throws the affirmative of the issue on the defendant.264 A plea of payment is new matter, which, not being denied by the reply, stands admitted. 20 A plea of payment being an affirmative defense, must be supported by a preponderance of the evidence in order to be effective in favor of the party pleading it.266 In assumpsit payment may be proved under an answer denying that the defendant has not paid the plaintiff in full, or that there is now due from the defendant to the plaintiff any sum whatever, although the payment is not affirmatively averred.287 In pleading payment, it is not necessary that the answer should describe the particulars of the transaction relied on as constituting payment. Under the averment that the demand has been paid, it is competent to prove how it has been paid, whether in cash or otherwise. 268 But where payment made to wife of plaintiff was pleaded, without alleging her authority to receive it, it was held bad on demurrer.269

So where payment was made by check,270 or by negotiable note,271 it must be averred that such note was taken in payment.272 So, also, a surety for rent may set up payment made by tenant for repairs, agreed to be done by the landlord, by way of reduction for the claim of rent.273 And under the plea of payment, a surety may show that the plaintiff has taken a draft of the principal debtor, payable at a future day, in payment of the debt.274 It would be bad pleading to allege evidence of the payment instead of averring the fact itself.275 Payment of a debt by a stranger can

282 Uhler v. Sanderson, 38 Pa. St. 128.

263 Archer v. Morehouse, Hempst. 184, Fed. Cas. No. 18225.

264 Gebhart v. Francis, 32 Pa. St. 78; North Penn. R. R. Co. v. Adams, 54 Pa. St. 94, 93 Am. Dec. 677.

265 Benicia Agricultural Works v. Creighton, 21 Or. 495, 28 Pac. 775, 30 Pac. 676; Clark v. Wick, 25 Or. 446, 36 Pac. 165; Adams v. Tuley, 1 Ind. App. 490, 27 N. E. 991.

266 Perot v. Cooper, 17 Colo. 80, 31 Am. St. Rep. 258, 28 Pac. 391.

267 Mickle v. Heinlen, 92 Cal. 596, 28 Pac. 784.

268 Farmers etc. Bank v. Sherman,

33 N. Y. 69; Boyd v. Weeks, 2 Denio, 322; McLaughlin v. Webster, 141 N. Y. 76, 35 N. E. 1081.

269 Offley v. Clay, 2 Man. & G. 172; 2 Scott N. R. 372.

270 See Strong v. Stevens, 4 Duer, 668; Bradford v. Fox, 16 Abb. Pr. 51.

271 Hoogland v. Wight, 7 Bosw. 394; Geller v. Seixas, 4 Abb. Pr. 103.

272 See, also, Homas v. McConnell, 3 McLean, 381, Fed. Cas. No. 6656. 273 Rosenbaum v. Gunter, 3 E. D. Smith, 203.

274 Albany etc. Ins. Co. v. Devendorf, 43 Barb. 444.

275 Farmers etc. man, 33 N. Y. 69.

Bank V. Sher