but does not deny the facts constituting a ratification of his acts, the plaintiffs are entitled to judgment without proof of the president's original authority.448 § 553. Dissolution of corporation.-An action by a corporation is not abated by dissolution, but may be continued in the corporate name. Suits for or against a corporation abate upon its dissolution at common law.450 449 § 554. Corporations-Estoppel.-As a general rule, corporations have power to waive their rights, and are bound by estoppels in pais like natural persons. 451 When an association assumes a name and exercises the powers of a corporation it is estopped from denying its corporate liabilities.452 A corporation which has entered into contracts in its corporate capacity is estopped, when sued thereon, from denying its corporate existence. 453 Where defendant accepted the office of treasurer of an incorporation, and served for several years as such, he was estopped from denying its corporate existence.*5* One entering into a contract with a corporation is estopped from setting up in an action upon such contract that the corporation was not legally formed. 455 § 555. Estoppel-How pleaded. An estoppel in pais is new matter, and cannot be relied upon in evidence as a defense without being specially pleaded.58 448 Gribble v. Columbus Brewing Co., 100 Cal. 67, 34 Pac. 527. 449 New York Marbled Iron Works v. Smith, 4 Duer, 362; Talmage v. Pell, 9 Paige, 410. See Pendleton v. Russell, 144 U. S. 640, 36 L. Ed. 574, 12 Sup. Ct. 743. 450 Greenbrier Lumber Co. v. Ward, 30 W. Va. 43, 3 S. E. 227; and see Matter of Norwood, 32 Hun, 196. 451 Hale v. Union Ins. Co., 32 N. H. 295, 64 Am. Dec. 370. 452 United States Express Co. v. Bedbury, 34 Ill. 459. 453 Callender v. Painesville & Hudson River R. R. Co., 11 Ohio St. 516; Snider etc. Co. v. Troy, 91 Ala. 224, 24 Am. St. Rep. 887, 8 South. 658, 11 L. R. A. 515. 454 Parrott v. Byers, 40 Cal. 614; The party claiming an estoppel Dutchess Cotton Mfy. v. Davis, 14 455 Palmer v. Lawrence, 3 Sandf. 456 Prewitt v. Lambert, 19 Colo. 7, 34 Pac. 684; Gaynor v. Clements, 16 Colo. 209, 26 Pac. 324; De Votie v. McGerr, 15 Colo. 467, 22 Am. St. Rep. 426, 24 Pac. 923; Bruce V. Phoenix Ins. Co., 24 Or. 486, 34 Pac. 16. in pais, and relying upon it as a defense, should set out the matters constituting it in his answer. 457 Such is the rule generally in those states which have adopted the reformed procedure.458 So an estoppel by deed or record must be pleaded to be available either as a cause of action or as a defense. 459 But it is not true that in all cases to be available an estoppel must be strictly pleaded as such. If the facts constituting the estoppel are in any way sufficiently pleaded, the party is entitled to the benefit of the law arising therefrom. 460 And the sufficiency of the manner in which an estoppel is pleaded will not be reviewed on appeal, where the plea was treated at the trial as properly made and sufficient. 461 In replevin, evidence of matter in estoppel may be given and used as a defense under a general denial and without being pleaded specially.* 462 § 556. Corporations-Stockholder's answer. Stockholders of a corporation who have been allowed to put in answers in the name of the corporation cannot be regarded as answering for the corporation itself. In a special case, however, a stockholder may be allowed to become party defendant, for the purpose of protecting his own interests, and the interest of such stockholders as choose to join in with him in the defense.463 § 557. Nonjoinder of stockholders.-Stockholders of insolvent corporations in Pennsylvania, when sued by creditors, may, under the plea of payment with leave, take advantage of nonjoinder of proper parties, and need not plead specially in abatement.*6* 558. Failure of consideration-Essential and sufficient allegations. In pleading failure of consideration, an issue of law must 459 Bays v. Trulson, 25 Or. 109, 35 Pac. 26. 457 McKeen v. Naughton, 88 Cal. 462, 26 Pac. 354; Troyer v. Dyer, 102 Ind. 396, 1 N. E. 728. 458 See Walker v. Baxter, 6 Wash. St. 244, 33 Pac. 426; Knudsen v. Omanson, 10 Utah, 124, 37 Pac. 250; Tyler v. Hall, 106 Mo. 313, 27 Am. St. Rep, 327, 17 S. W. 319, and note; Central National Bank v. Doran, 109 Mo. 40, 18 S. W. 836; Churchill v. Baumann, 95 Cal. 541, 30 Pac. 770; Warder v. Baldwin, 51 Wis. 450, 8 N. W. 257; Independent Dist. Burlington v. Merchants' Bank, 68 Iowa, 343, 27 N. W. 255. 460 City Nat. Bank v. Thomas, 46 Neb. 861, 65 N. W. 895; and see Wachter v. Phoenix Assoc. Co., 132 Pa. St. 428, 19 Am. St. Rep. 600, 19 Atl. 289; Meiss v. Gill, 44 Ohio St. 253, 6 N. W. 656. 461 Hughes v. Wheeler, 76 Cal. 230, 18 Pac. 386. 462 Towne v. Sparks, 23 Neb. 142, 36 N. W. 375. 463 Bronson v. La Crosse R. R. Co., 2 Wall. 283, 17 L. Ed. 725. 464 Hoard v. Wilcox, 47 Pa. St. 51. not be tendered.465 An answer of an entire or partial failure of consideration which does not set out the facts showing the failure, or how much the whole consideration for the property was, and gives no data by which the court can determine what deduction, if any, should be made, is bad.466 As against a bona fide purchaser for value before maturity of negotiable paper, failure of consideration without notice constitutes no defense to the action.467 An answer setting up in defense a failure to perform an agreement to execute an indemnifying bond is bad. when it does not set forth an injury resulting from such failure. but shows that injury can never happen.468 All matters in confession and avoidance showing that the contract sued upon was void or voidable in point of law must be affirmatively pleaded.469 It seems that illegality in a contract sued on, though shown by the testimony, cannot avail the defendant, unless it is alleged in the pleadings; and that an allegation in the answer that the contract was illegal, coupled with an enumeration in the same paragraph of specific grounds of illegality, does not entitle the defendant to prove any grounds of illegality not so specified.* The facts showing illegality must be specially pleaded in the answer, if the complaint does not disclose the illegality." If it should appear from the testimony of plaintiff's witnesses that the contract in question is illegal or immoral, the court ought to dismiss the proceedings of its own motion on grounds of public policy, even though no such defense has been pleaded.472 A plea seeking to avoid the bond for being illegally taken should specially state all the facts which show that illegality.473 If any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire 465 Bennett v. Martin, 6 Mo. 460; and see Hammond v. Earle, 58 How. Pr. 426. 466 Billan v. Hecklebrath, 23 Ind. 71; Carmelich v. Mims, 88 Ala. 335, 6 South. 913; Nixon v. Beard, 111 Ind. 137, 12 N. E. 131. 487 Rand v. Pantagraph Co., 1 Colo. App. 270, 28 Pac. 661. 468 Billan v. Hecklebrath, 23 Ind. 71. 469 Finley v. Quirk, 9 Minn. 194, 86 Am. Dec. 93. 470 Gushee v. Leavitt, 5 Cal. 161, 63 Am. Dec. 116; Dingeldein v. Third Ave. R. R. Co., 9 Bosw. 79. 470 471 Buchtel v. Evans, 21 Or. 315, 28 Pac. 67; Jameson v. Coldwell, 23 Or. 144, 31 Pac. 279; Lyts v. Keevey, 5 Wash. 606, 32 Pac. 534; Sharon v. Sharon, 68 Cal. 29, 8 Pac. 614; Heffron v. Pollard, 73 Tex. 96, 15 Am. St. Rep. 764, 11 S. W. 165; see Morrill v. Nightingale, 93 Cal. 452, 27 Am. St. Rep. 207, 28 Pac. 1068. 472 Ah Doon v. Smith, 25 Or. 89, 34 Pac. 1093; Irving v. McWilliams, 1 N. B. Eq. 217. 473 United States v. Sawyer, 1 Gall. 86, Fed. Cas. No. 16227. 476 contract is void. 474 That is not lawful which is contrary to an express provision of law, or contrary to the policy of express law, though not expressly prohibited or otherwise contrary to good morals.475 An answer setting up for defense a failure of consideration must show whether it is a partial or total failure. A partial failure of consideration cannot be pleaded in bar of an action upon a note given for the purchase money of land.* 477 It is generally no defense to a promissory note.48 Partial failure of consideration could not be given in evidence, unless specially pleaded.479 Where the obligor of a single bill was sued by an assignee, and pleaded that the bill was given for the purchase of horses which were not as sound nor of as high a pedigree as had been represented by the seller, such a plea was admissible.480 § 559. Jurisdiction-Essential allegations.-Defenses in abatement of the suit, or going to the jurisdiction, being preliminary in their nature, must be taken advantage of by plea, and cannot. be taken advantage of in a general answer, which necessarily admits the right and capacity of the party to sue.481 The fact that a corporation aggregate appears and pleads by attorney to the jurisdiction is not a waiver of the objection.482 The question of jurisdiction arising in a case where a mortgagor and mortgagee were citizens of the same state, and the mortgagee had assigned the mortgage to a citizen of another state, should have been raised by a plea in abatement. Upon a trial of the merits it is too late.483 A plea to the jurisdiction in equity is like a plea in abatement at law, which cannot be put in after a general imparlance, or be received when it does not give the plaintiff a better writ.484 The objection that a court of equity has not jurisdiction of the suit, because complainant has an the general issue, and is a good defense pro tanto. Staab v. Ortiz, 3 N. Mex. 53, 1 Pac. 857. 474 Cal. Civ. Code, § 1608. 475 Cal. Civ. Code, § 1667. For certain contracts declared to be unlawful and void, see Cal. Civ. Code, §§ 16681676. 476 Clough v. Murray, 19 Abb. Pr. 97 477 Reese v. Gordon, 19 Cal. 147. 478 Varnum v. Mauro, 2 Cranch C. C. 425, Fed. Cas. No. 16889. 479 Wallace v. Boston, 10 Mo. 660. Under New Mexico practice, in a suit on a promissory note, a partial failure of consideration may be proved under 480 Withers v. Greene, 9 How. 213, 13 L. Ed. 109. 481 Livingston v. Story, 11 Pet. 351, 9 L. Ed. 746. 482 Commercial etc. Bank v. Slocomb, 14 Pet. 60, 10 L. Ed. 354. 483 Smith v. Kernochen, 7 How. 198, 12 L. Ed. 666. 484 Baker v. Biddle, Baldw. 394, Fed. Cas. No. 764. It adequate remedy at law, should be taken by plea or answer. is too late to raise it for the first time upon appeal, unless the want of jurisdiction is apparent on the face of the bill.485 But section 434 of the California Code of Civil Procedure provides that objection to the jurisdiction of the court, or that the complaint does not state facts sufficient to constitute a cause of action, may be made at any time. All merely technical objections to the complaint are waived by failure to interpose demurrer.486 A defendant who is sued out of his district may plead his personal privilege.487 The exemption of a foreign consul from any action against him in a state court is not a personal privilege, but a matter of jurisdiction, and is not waived by the failure of the defendant to plead it.488 answer. 490 A plea in abatement, denying the truth of the averments as to residence, etc., in the present tense instead of in the past tense, so as to make issue with reference to the time of the commencement of the suit, is not so clearly frivolous as to require the court to set it aside or disregard it.489 Where the jurisdiction of the circuit court of the United States appears by proper averments upon the record, the defendant can only impugn it on a special plea; the objection cannot be taken by This defense is sustainable only where the person is not subject to the jurisdiction of the court, and not where the objection is merely that original process has not been duly served. If a plea to the jurisdiction and a plea non assumpsit be put in, and the issue be made upon the latter plea only, no notice being taken of the former, and upon this state of the pleadings the cause goes on trial, the plea to the jurisdiction is considered as waived.492 A party waives all objections to the jurisdiction of the court by reason of the manner in which the cause was brought before it, by entering upon the trial and contesting the cause upon its merits.493 491 485 Wylie v. Coxe, 15 How. 415, 14 L. Ed. 753. 486 Dennison v. Chapman, 105 Cal. 447, 39 Pac. 61. 487 Teese v. Phelps, 1 McAll. 17, Fed. Cas. No. 13818. 488 Miller v. van Loben Sels, 66 Cal. 341, 5 Pac. 512. 489 Horner v. Keppel, 10 Ad. & El. 17; Eberly v. Moore, 24 How. 147, 16 L. Ed. 612. 490 Rule 29 in Equity; Wickliffe v. Owings, 17 How. 47, 15 L. Ed. 44. 491 Nones v. Hope Mutual Life Ins. Co., 5 How. Pr. 96; Bridge v. Payson, 1 Duer, 612. 492 Bailey v. Dozier, 6 How. 23, 12 L. Ed. 328. But see Cal. Code Civ. Proc., 434. 493 Colorado Cent. R. R. Co. v. Caldwell, 11 Colo. 545, 19 Pac. 542; Schoolfield v. Brunton, 20 Colo. 139, |