407

interest should allege facts which would show as a matter of law that another person should have brought the suit." An answer should allege the facts, showing why the plaintiff is not a real party in interest. 408 But it is not necessarily frivolous if it does not.40 409 The answer is not frivolous for neglecting to name the assignee, or designating him as John Doe.410 If it appears by the pleadings that the assignment was in trust, it should be also alleged that the assignee accepted it."11 A plea entirely addressed to the right to recover of a third person for whose use the suit is brought is bad on demurrer.12 So on the ground that the title of the plaintiff is merely colorable.413 A plea to the jurisdiction on the ground that a demand has been colorably assigned, in order to evade a discharge under the insolvent law, is not to be treated as dilatory and captious.414 objection that the plaintiff is not the real party in interest must be set up in the answer, to enable defendant to rely upon it, or it will be unavailing on the trial, even if the fact should appear from the examination of witnesses.415 But if it appear from the face of the complaint that defendant is not the real or true party plaintiff, then the objection should be made by demurrer.

The

§ 548. Assignee-Substitution of. It is optional with the court, on death of plaintiff, in case of a transfer of his interest, to allow assignee of plaintiff's interest to be substituted, and the action to continue in his name.418 Upon the death of an assignee for the benefit of creditors, pending an action in the nature of replevin, brought by him to recover damages from a sheriff for the tortious taking of assets, the proper parties to be substituted are

407 Raymond v. Pritchard, 24 Ind. 318.

408 Russell v. Clapp, 7 Barb. 482; Fosdick v. Groff, 22 How. Pr. 158.

409 Tamisler v. Cassard, 17 Abb. Pr. 187.

410 Smith v. Mead, 14 Abb. Pr. 262; Metropolitan Bank v. Lord, 1 Abb. Pr. 185.

411 Whitlock v. Fiske, 3 Edw. 131. 412 Sydam v. Cannon, 1 Houst. 431. 413 Boyreau v. Campbell, 1 McAll. 119, Fed. Cas. No. 1760.

414 Wallace v. Clark, 3 Woodb. & M. 359, Fed. Cas. No. 17098.

416 Barstow v. Newman, 34 Cal. 90; Sheldon v. Havens, 7 How. Pr. 268; Harris v. Bennett, 1 Code Rep. (N. S.) 203, 6 How. Pr. 220; Murray v. General Mut. Ins. Co., 2 Duer, 607; Ford v. David, 1 Bosw. 571; Howard v. Taylor, 11 How. Pr. 380, 5 Duer, 604; Banks v. Maher, 2 Bosw. 690; Terry v. Roberts, 15 How. Pr. 65. But see Barribeau v. Brant, 17 How. 43, 15 L. Ed. 34.

the personal representatives of the deceased, since the action relates to personal property.17

§ 549. Set-off. In an action by the assignee of a claim, a demand existing prior to the assignment, in favor of defendants and against the assignor, is unavailable as a counterclaim, and if so pleaded no reply is necessary. 418 To render it available as an equitable defense, it must be pleaded as a defense.*19 In an action brought by an assignee of a demand, an answer interposing as a set-off a claim subsisting in favor of the defendant against the assignor is not to be regarded as setting up a counterclaim; and the plaintiff need not put in a reply of the statute of limitations in order to avail himself of such statute against the claim so set up. 120 A demand against the plaintiff's assignor, who is not a party, is not generally available.21 But when a creditor having a debt due him by mortgage assigns the debt and mortgage, a judgment in favor of a third person against the creditor purchased by the debtor after the assignment, but before notice to him, constitutes an offset pro tanto to the debt in an action upon it by the assignee.422

§ 550. Consolidated corporation. Where by state statute power is given to connecting railway corporations to merge and consolidate their stock, and such merger and consolidation has been judicially decided by the supreme court of the state to be a dissolution in law of the previous companies, and the creation of a new corporation with new liabilities; in such case, where the declaration avers that the defendant had agreed that stocks of one of the connecting railroads should be worth a certain price at a certain time and in a certain place, and the plea sets up that under the statute the stock of the railway named was merged and consolidated by the consent of the party suing, with a second. railway named, so forming "one joint-stock company of the said two corporations," under a corporate name stated, such plea is good, though it do not aver that the consolidation was done without the consent of the defendants. Such a plea contains two points only which the plaintiff can traverse, the fact of consoli

417 Emerson v. Bleakley, 5 Abb. Pr. (N. S.) 350.

418 Dillayev. Niles, 4 Abb. Pr. 253; Ferreira v. Depew, 4 Abb. Pr. 131.

419 Ferreira v. Depew, 4 Abb. Pr. 131; Wolfe v. H., 13 How. Pr. 84.

420 Thompson v. Sickles, 46 Barb. 49. 421 Cummings v. Morris, 25 N. Y. 625; Dillayev. Niles, 4 Abb. Pr. 253; Ferreira v. Depew, 4 Abb. Pr. 131; Spencer v. Babcock, 22 Barb. 326.

422 McCabe v. Grey, 20 Cal. 509.

dation, and the fact of consent; and these must be denied separately. If denied together, the replication is double and bad.423

425

§ 551. Incorporation, denial of. The want of capacity to sue or be sued must be specially alleged. The words, "a corporation" appearing in the title of a case after the name of the plaintiff are descriptive of the plaintiff, and cannot be construed to be an allegation of incorporation." By pleading to the merits the objection is waived.420 While under the statutes of California 27 the due incorporation of a corporation cannot be inquired into collaterally, yet a private person is not thereby precluded from denying that it is a corporation de jure or de facto.428 An answer denying any incorporation of plaintiff in California admits the allegation of incorporation in the state of New Jersey.429 An averment of the existence of a de facto corporation is as issuable as an averment of the existence of a corporation de jure.*

430

Where the defendants are sued by a corporate name, though. the complaint does not allege that the defendants are incorporated, still plaintiff must prove the fact if denied, and a denial that defendants are a corporation is not new matter.431 M. being made defendant in an action to quiet title, and appearing under that name by attorney, the complaint is good, and the proceedings valid as to M., whether the name be that of a corporation or a person, and though the complaint says nothing as to this." Where a complaint against a corporation does not allege the corporate character of the defendant, objection thereto is waived. by the defendant's plea of counterclaim as though it were in fact.

423 Clearwater v. Meredith, 1 Wall. 25, 17 L. Ed. 604.

424 California Steam Nav. Co. v. Wright, 8 Cal. 585; White v. Moses, 11 Cal. 69; Society for Prop. of Gospel v. Town of Pawlet, 4 Pet. 480, 7 L. Ed. 927; Philadelphia R. R. Co. v. Quigley, 21 How. 202, 16 L. Ed. 72; Dillaye v. Parks, 31 Barb. 132.

425 Boyce v. Augusta Camp, M. W. A., 14 Okla. 642, 78 Pac. 322.

426 Conard v. Atlantic Ins. Co., 1 Pet. 386, 7 L. Ed. 189; Society for Prop. of Gospel v. Town of Pawlet, 4 Pet. 480, 7 L. Ed. 927; Yeaton v. Lynn, 5 Pet. 224, 8 L. Ed. 105.

427 1862, p. 110, Cal. Civil Code,

432

§ 358; see Martin v. Deetz, 102 Cal. 55, 41 Am. St. Rep. 151, 36 Pac. 368; People v. Montecito Water Co., 97 Cal. 276, 33 Am. St. Rep. 172, 32 Pac. 236.

428 Oroville & Virginia City R. R. Co. v. Plumas County, 37 Cal. 360; Dean v. Davis, 51 Cal. 407; Zion M. E. C. v. Hillery, 51 Cal. 155; Roman C. O. A. v. Abrams, 49 Cal. 456.

429 Herrin-Hall-Marvin Co. v. Smith, 43 Or. 315, 72 Pac. 704, 73 Pac. 340. 430 Martin v. Deetz, 102 Cal. 55, 41 Am. St. Rep. 151, 36 Pac. 368. 431 Stoddard V. Onondaga Ann. Conf., 12 Barb. 573.

432 Butterfield v. Graves, 138 Cal. 155, 71 Pac. 510.

a corporation.433 The want of allegation of the incorporation
of defendant cannot be raised by demurrer.433a Before the re-
vised statutes of New York, the denial of incorporation
amounted only to the general issue.434 And it was equally bad
when applied to foreign corporations. 435 But under the revised
statutes, to require a domestic corporation plaintiff to prove its
corporate organization, the defendant must specially plead the
non-existence of such corporation; and this plea was a good plea
in bar. 436
Plea of the general issue at common law does not put
in issue the averment of a declaration that the plaintiff is a cor-
poration.437 To put the plaintiff to proof of his corporate capacity
in this case, a general denial is not sufficient, but the answer must
deny the existence of such a corporation.38 If evidence is required
on that point, it must be because that is a point in issue; and it
cannot be in issue unless it is affirmed in the pleadings on one side
and denied on the other.*
439

§ 552. Municipal corporations.-The rule which requires a defendant to answer positively as to the facts alleged in a verified complaint which are presumptively within his own knowledge applies to municipal corporations. The statute makes no distinction between the rules of pleading applicable to natural persons and those applicable to artificial persons.440 There may

exist the best reasons for a different rule of pleading when a municipal corporation is a defendant; but this court can make. no distinction, because the code makes none. It is a matter for the legislature, and not for the court.441 Where the complaint averred a contract between plaintiff and the board of super

433 Frost v. Ainslie Lumber Co., 3 Wash. St. 241, 28 Pac. 354, 915. 433a Sly v. Palo Alto Gold Min. Co., 28 Wash. 485, 68 Pac. 871.

434 Hartford Bank v. Murrell, 1 Wend. 87; Welland Canal Co. v. Hathaway, 8 Wend. 480, 24 Am. Dec. 51; Wood v. Jefferson County Bank, 9 "ow. 194.

435 Farmers etc. Bank v. Rayner, 2 Hall, 195.

436 Methodist Episcopal Church v. Tyron, 1 Denio 451. See, also, Bank of Genesee v. Patchin Bank, 13 N. Y. 309; Park Bank v. Tilton, 15 Abb. Pr. 384.

437 Steamboat Co. v. Sewall, 78 Me. 167, 3 Atl. 181; Arnau v. First Nat. Bank, 36 Fla. 398, 18 South. 786. West Winsted Sav. Bank v. Ford, 27 Conn. 282, 71 Am. Dec. 66.

438 Park Bank v. Tilton, 15 Abb. Pr. 384; Bank of Havana v. Wickham, 7 Abb. Pr. 134.

439 See Ang. & Ames on Corp. 631, and cases cited; Oroville etc. R. R. Co. v. Supervisors of Plumas County, 37 Cal. 362.

440 San Francisco Gas Co. v. City of San Francisco, 9 Cal. 453.

441 San Francisco Gas Co. v. City of San Francisco, 9 Cal. 458.

!

visors, on behalf of the county, and the answer admitted a contract between the plaintiff and another on the one side, and the county on the other, and averred that this was the only contract made by the county in relation to the matter, and denied that any other was made by the board of supervisors, it was held that this denial was sufficient to put the plaintiff on proof of the contract.*+2 In an action against a corporation to recover dividends which have accrued on its stock, if the plaintiff avers "that from a date named she was, has been, and still is the owner in her own right, and as her separate property, of the stock," the answer raises an issue, if it denies that at the date named "the plaintiff was, has since been, or still is the owner in her own right, and as her separate property," of the stock. The qualifications of the denial by the words "in her own right and as her separate property" are mere surplusage. 443 Where the answer in a suit against a corporation, on its note, relies simply on the want of power of the corporation to issue notes, the defendant cannot afterwards object that the plaintiff has not shown that the officers executing the note were empowered by the corporation to do so.444 Non-compliance with the statutory provision (Cal. Civ. Code, § 299), that unless a corporation files a copy of its articles in the county where the property is situated, it "cannot maintain or defend any action or proceeding in relation to such property," is a matter to be set up by the defendant in an action of ejectment brought by the corporation for the property. A denial of the existence of the corporation does not raise the question. 445 Such failure on the part of the corporation can only be made available by specially pleading it in the answer as matter of abatement to the action. This provision of the statute applies only to domestic corporations.446 Where the defendant was sued as a corporation when it was in fact a limited copartnership, a denial that "defendant is or ever was a corporation, organized and existing under the laws of England," is pregnant with the admission that the defendant is a corporation, and raises no issue.447 Where an answer denies the authority of the president of a corporation to execute a certain mortgage, 442 Murphy v. Napa Co., 20 Cal.

497.

443 Dow v. Gould & Curry Mining Co., 31 Cal. 630.

444 Smith v. Eureka Flour Mills Co., 6 Cal. 1.

445 Southern Pacific R. R. Co. v. Purcell, 77 Cal. 69, 18 Pac. 886. 446 South Yuba Water etc. Co. v. Rosa, 80 Cal. 333, 22 Pac. 222.

447 Wright v. Fire Ins. Co., 12 Mont. 474, 31 Pac. 87, 19 L. R. A. 211.