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§ 534. Ultra vires.-Ultra vires is a matter of defense, and the power of a corporation to make the contract need not be pleaded in the complaint.322 Assuming that the corporation under some circumstances was authorized to take and transfer real estate by deed, it rests with the defendant to show by allegation and proof that the plaintiff did not take or transfer the title to the premises in question for any purpose, and in the form authorized by law. 323 Under an answer of general denial only, the defense of ultra vires cannot be maintained, unless the incapacity appears from the pleadings.324 The term ultra vires, when used in reference to corporations, is employed in different senses. An act is said to be ultra vires when it is not in the power of the corporation to perform it under any circumstances; and an act is also said to be ultra vires, with reference to the rights of certain parties, when the corporation cannot perform it without their consent; and it may also be ultra vires, with reference to some specific purpose, when the corporation cannot perform it for that purpose.325 When the act is ultra vires in the sense first mentioned, it is void in toto, and the corporation may avail itself of the plea; but when it is ultra vires in the second and third senses, the right of the corporation to avail itself of the plea will depend on the circumstances of the case. It devolves upon the party contesting the validity of such act to overcome the presumption that it was regularly done, and for a rightful purpose.326 In an action against a corporation the plea of ultra vires is not to be entertained when its allowance will do great wrong to innocent third persons.3 And courts are inclined to treat the corporation as estopped from setting up such defense in all cases where it has received and retains the benefit of the transaction, and seeks by this plea to avoid its correlative obligation.328 Where a contract with a corporation is not only ultra vires, but also void as against public policy, the

Ford, 46 Cal. 7; Hoffman etc. v. Fett, 39 Cal. 109; Price v. Sturgess, 44 Cal. 591; Davis v. McFarlane, 37 Cal. 634, 99 Am. Dec. 340; McCarger v. Rood, 47 Cal. 138; Welch v. Kenney, 49 Cal. 49.

322 United States Mtge. Co. V. McClure, 42 Or. 190, 70 Pac. 543.

323 Farmers' Loan & Trust Co. v. Curtis, 7 N. Y. 466.

324 Royal Fraternal Union v. Crosier, 70 Kan. 85, 78 Pac. 162.

327

825 Miners' Ditch Co. v. Zellerbach, 37 Cal. 543, 99 Am. Dec. 300. 326 Id.

327 Denver Fire Ins. Co. v. McClelland, 9 Colo. 11, 59 Am. Rep. 134, 9 Pac. 771.

328 Kennedy v. California Savings Bank, 101 Cal. 495, 40 Am. St. Rep. 69, 35 Pac. 1039. And see Pauly v. Pauly, 107 Cal. 8, 48 Am. St. Rep. 98, 40 Pac. 29.

court will not give relief to either party, and the fact that the contract is performed on one part does not estop the other party to plead the invalidity of the contract.3 Corporations for the construction of turnpike roads can hold only such real estate as the purposes of the corporation may require.330

329

§ 535. Limitations of action. The term "action" as used in the California Code of Civil Procedure, in reference to the limitation of actions, includes a special proceeding of a civil nature,331 such as mandamus,832 and defendant need not set out the facts upon which he relies, to show that the cause of action arose in another state and by the law of that state it was barred; but it is sufficient if he states the cause is barred by the foregoing section 363. Actions for relief in respect to which no other limitation is provided must be brought within four years after the cause of action shall have accrued.333 To actions brought to recover money or other property deposited with any bank, banker, trust company, or savings and loan society, there is no limitation,334 but as to this liability extending to the stockholders it is undecided.335

§ 536. Statute of limitations.-In California, the statute of limitations applies equally to actions at law and to suits in equity. It is directed to the subject-matter, and not to the form of the action, nor to the forum in which the action is prosecuted. Nor is there any distinction in the limitation prescribed between simple. contracts in writing and specialties. 336 Distinct forms of civil actions have been abolished in Colorado, yet, in order to determine the application of the statute of limitations in a given case, the court will consider the nature of the cause of action, and, in some instances, its appropriate form under former practice. 337

329 Visalia etc. Light Co. v. Sims, 104 Cal. 326, 43 Am. St. Rep. 105, 37 Pac. 1042.

330 Coleman v. San Rafael T. R. Co., 49 Cal. 518. See, also, Vandall v. South San Francisco Dock Co., 40 Cal. 83.

331 Cal. Code Civ. Proc., § 363. For the limitations of actions for the recovery of real property, see Cal. Code Civ. Proc., §§ 315-328. For the limitation of actions other than for the recovery of real property, see Cal. Code Civ. Proc., §§ 335-363.

332 Barnes v. Glide, 117 Cal. 1, 48 Pac. 804.

333 Cal. Code Civ. Proc., § 343. 834 Cal. Code Civ. Proc., § 348. 335 Mitchell v. Beckman, 64 Cal. 117, 28 Pac. 110.

336 Lord v. Morris, 18 Cal. 482; Boyd v. Blankman, 29 Cal. 20, 87 Am. Dec. 146; Castro v. Geil, 110 Cal. 292, 52 Am. St. Rep. 84, 42 Pac. 804; Hancock v. Plummer, 66 Cal. 337, 5 Pac. 514.

337 Toothaker v. City of Boulder, 13 Colo. 219, 22 Pac. 468.

§ 537. Limitations-Construction of answer.-An answer stating that the cause of action has not accrued within five years is sufficient for five years, and for any period of limitation named in the statute less than five years.338 The words "preceding the commencement of this action," in such answer, are equivalent to the words "preceding the filing of this complaint." 339 The defense must point to the time of filing the original complaint, and not an amended one.340

341

§ 538. Statute of limitations-Construed.-Statutes of limitations do not act retrospectively; they do not begin to run until they are passed, and consequently cannot be pleaded until the period fixed by them has fully run since their passage. The statute runs not from the time of the promise, but from the time of the breach.342 The mere statement in the complaint that the claim was due at a certain time does not conclude the plaintiff under the statute of limitations, if it appears from the facts stated that the right of action did not accrue till a later date.343 It is not necessary that the defense of the statute of limitations should be accompanied by a denial of the allegations of the complaint intended to avoid or head off the defense, to prevent the court taking them as true.344 The statute of limitations does not have the effect to extinguish a debt, nor raise a presumption of its payment; it only bars the remedy and thus becomes a statute of repose.345 The defendant is not bound to negative the exceptions from the general rule that the statute establishes. It lies upon the plaintiff to aver and prove the facts that create the exception; and if so averred, a pure plea of the statute is no bar, unless accompanied with an answer destroying the force of those circumstances by issuable averments.3 347 Where a defendant pleads the statute of limitations, matters upon which

346

338 Boyd v. Blankman, 29 Cal. 20, 87 Am. Dec. 146.

339 Adams v. Patterson, 35 Cal. 122. 340 Lorenzana V. Camarillo, 45 Cal. 128.

341 Nelson v. Nelson, 6 Cal. 430.

342 Stilwell v. Hasbrouck, 1 Hill, 561; United States v. White, 2 Hill, 59; Tracy v. Rathbun, 3 Barb. 543.

843 Walden v. Crafts, 2 Abb. Pr. 301.

344 Sands v. St. John, 36 Barb. 628. 345 McCormick v. Brown, 36 Cal.

180, 95 Am. Dec. 170; Cooper v. Cooper, 61 Miss. 676. The rule held in this case, as to what constitutes a sufficient acknowledgment of a debt to take it out of the statute, affirmed in Farrell v. Palmer, 30 Cal. 187.

346 Ford v. Babcock, 2 Sandf. 518; Huntington v. Brinckhoff, 10 Wend.

278.

347 Beames' Pl. 169; Kane V. Bloodgood, 7 Johns. Ch. 90; Goodrich v. Pendleton, 3 Johns. 384; Story's Eq. Pl. 672, § 754.

the plaintiff relies to relieve him from the bar of the statute are deemed to have been pleaded in reply to the answer. 348 But it has been held also that such allegations are immaterial, and need not be answered.34 349

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§ 539. Limitations Essential allegations. The statute of limitations must be specially pleaded.350 If the demand be in truth barred, but the fact does not appear on the face of the complaint, the defense must be made in the answer.351 In New York, it seems it can only be taken by answer, and not by demurrer, ,352 and is not favored unless in aid of justice.353 A defendant who claims the benefit of an act for the limitation of actions which applies only to a particular class of cases must plead it specially.354 Pleading the statute of limitations is a personal privilege which the defendant may assert or waive at his option, but must be set up in some form, either by demurrer or answer, and if not so set up is deemed waived. 355 The statute of limitations may be allowed to be pleaded at any time when in furtherance of justice.356 So in case of the allowance of a several plea after a joint plea is filed.357 Or the court may refuse permission

348 Fox v. Tay, 89 Cal. 339, 23 Am. St. Rep. 474, 24 Pac. 855, 26 Pac. 897. See Giles v. Rosenheimer, 64 Tex. 243.

349 Sands v. St. John, 36 Barb. 628, 23 How. Pr. 140. But see Cal. Code Civ. Proc., § 458.

350 Steamer Senorita v. Simonds, 1 Or. 274; Lyon v. Bertram, 20 How. 149, 15 L. Ed. 847; Bihin v. Bihin, 17 Abb. Pr. 19; Fogal v. Pirro, 10 Bosw. 100, 17 Abb. Pr. 113; Sands v. St. John, 36 Barb. 628. Otherwise it will be deemed waived. Curtiss v. Etna Life Ins. Co., 90 Cal. 245, 25 Am. St. Rep. 114, 27 Pac. 211; Jennings v. Rickard, 10 Colo. 395, 15 Pac. 677; Atchison etc. R. R. Co. v. Tanner, 19 Colo. 559, 36 Pac. 541; Osment v. McElrath, 68 Cal. 466, 58 Am. Rep. 17, 9 Pac. 731; Smith v. Hutchinson, 78 Va. 683.

351 Smith v. Richmond, 19 Cal. 476; Scott v. Christenson, 46 Or. 417, 80 Pac. 731.

352 N. Y. Code, ed. 1877, § 413; Lefferts v. Hollister, 10 How. Pr. 383. And see Butler v. Mason, 5 Abb. Pr.

40; Sands v. St. John, 36 Barb. 628; Budd v. Walker, 29 Hun, 344; Irvin v. Smith, 60 Wis. 175, 18 N. W. 724; Grogan v. Valley Trading Co., 30 Mont. 229, 76 Pac. 211.

353 Cooke v. Spears, 2 Cal. 409, 56 Am. Dec. 348.

354 Howell v. Rogers, 47 Cal. 293. See as to absolute right to interpose this defense, where existent, Sheldon v. Adams, 41 Barb. 54, 27 How. Pr. 179, 18 Abb. Pr. 405; Harriott v. Wells, 9 Bosw. 631.

355 Bay View Brewing Co. v. Grubb, 31 Wash. 34, 71 Pac. 553; Grattan v. Wiggins, 23 Cal. 16; Kelley v. Kriess, 68 Cal. 210, 9 Pac. 129; Reagan v. Justice's Court, 75 Cal. 253, 17 Pac. 195; Wise v. Williams, 72 Cal. 544, 14 Pac. 204; Cameron v. San Francisco, 68 Cal. 390, 9 Pac. 430; Kramer v. Halsey, 82 Cal. 209, 22 Pac. 1137; Cross v. Moffatt, 11 volo. 210, 17 Pac. 771; Davis v. Davis, 20 Or. 78, 25 Pac. 140.

356 Cooke v. Spears, 2 Cal. 409, 56 Am. Dec. 348.

357 Kobinson v. Smith, 14 Cal. 254.

If the

to set up the statute after pleading to the merits.358 statute of limitations is pleaded, and the plea is overruled, it cannot be put in again by the same parties or their privies.359 A defendant relying on the statute of limitations should not allege matter of law, but the facts which bring him within the statute.360 But the California code has provided that "in pleading the statute of limitations it is not necessary to state the facts showing the defense, but it may be stated generally, that the cause of action is barred by the provisions of the section... (giving the number of the section and the subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegations be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred.''861

363

To rely upon the presumption of payment from lapse of time, the defendant should plead, not the statute, but payment, and if he cannot swear to this, his affidavit may state the facts which raise the presumption of payment.362 The statute should not be pleaded as a bar to the whole demand, if it is a good defense to a part only.30 An allegation of lapse of time was held not to amount to a plea of the statute of limitations in a case where leave to plead the statute had been refused.364 A general allegation in an answer that the action is barred by the statute prescribing two or any other number of years as the limitation for bringing the action is not the correct method of pleading the statute of limitations.365 The defense of limitations must be specially

358 Stuart v. Landers, 16 Cal. 372, 76 Am. Dec. 538.

359 Fisher v. Rutherford, Baldw. 138, Fed. Cas. No. 4823. How pleaded, see Bank of Columbia V. Ott, 2 Cranch C. C. 575, Fed. Cas. No. 879; Union Bank of Georgetown v. Eliason, 2 Cranch C. C. 667, Fed. Cas. No. 14355. For form of answer, see Angell on Limitations, §§ 287, 309, and case there cited. See, also, Soulden V. Van Rensselaer, 3 Wend. 472; Fisher v. Pond, 2 Hill, 338; Bell v. Yates, 33 Barb. 627.

360 Boyd v. Blankman, 29 Cal. 20, 87 Am. Dec. 146.

361 Cal. Code Civ. Proc., § 458; Packard v. Johnson, 57 Cal. 180; Packard v. Moss, 68 Cal. 123, 8 Pac.

818; Manning v. Dallas, 73 Cal. 420, 15 Pac. 34. Reference to explanatory sections is unnecessary. Webber v. Clarke, 74 Cal. 11, 15 Pac. 431; Bank v. Wickersham, 99 Cal. 655, 34 Pac. 444.

362 Giles v. Baremore, 5 Johns. Ch. 545.

363 Wood v. Riker's Exrs., 1 Paige, 616.

364 People v. Rensselaer Ins. Co., 38 Barb. 323.

365 Schroeder v. Jahns, 27 Cal. 273. See, also, McKay v. Petaluma Lodge, Cal. Sup. Ct., April Term, 1866. Such allegation is an insufficient plea and raises no issues under the statute requiring the section of the code relied upon to be stated. Cochrane V.

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