cited below illustrate how the general law as to joining causes separately stating counts or causes 51 is applied. The form of an action under statute may tolerate a joinder which common-law forms would not.52

§ 3063. In equity practice. The equity practice is also general in these respects ard in the code states has passed entirely into code regulations.53 The question of multifariousness often arises in stock

holders' suits, receivership suits, and winding-up suits.54 There is no multifariousness by joining a badly pleaded with a well pleaded cause hence a bad prayer for relief against defendants joined only for discovery does not infect the bill.55

§ 3064. Prayer of bill or complaint. Under the chancery practice it was essential to pray for process, for without it the defendants would not be made parties.56 In the federal courts this has been dispensed with by rule except in certain cases.57 If the bill is for relief against some and discovery against others, for example where it is for relief against the corporation and discovery against the officers or agents, the prayer must not only be for discovery against the persons defendant but also for relief against the corporation. The principal thing must be asked to warrant having the incident,58 and if a case is not made for discovery as an incident there must be a prayer for relief against them to which the discovery would be an incident,59 and they should be prayed for separately.60 Unless an answer of defensive nature is invited from them the prayer as to those joined for purpose of discovery should be limited to that and should exclude relief.61 In actions at law or in equity or under the codes generally the ordinary rules seem to govern the prayer.

54 See chapters on Receivers; Forfeiture, Dissolution and Winding Up; Stock and Stockholders, infra.

A suit by a stockholder of which the main object was recovery for himself may properly join a cause against the corporation and its officers for mismanagement with one against a confederating co-defendant for converting all assets to the plaintiff's detriment. Oyster v. Iola Min. Co., 140 N. C. 135, 52 S. E. 198.

In a suit for the price of land and for incidental equitable relief against the promotors and the corporation, it was not a misjoinder to ask for adjudictation of a lien, the setting aside of deeds and the receivership and winding up of the corporation. Delgarno v. Middle West Portland Cement Co., 93 Kan. 654, 145 Pac. 823.

55 Many v. Beekman Iron Co., 9 Paige (N. Y.) 188.

56 McKim v. Odom, 3 Bland (Md.)

407; and see In re Binney, 2 Bland 99.

57 Under New Equity Rule 25 process need not be prayed for in the bill, or that defendant answer except as provided in Rule 40. The subpœna is provided for by Rule 12. Pittsburgh Water Heater Co. v. Beler Water Heater Co., 222 Fed. 950.

58 Many v. Beekman Iron Co., 9 Paige (N. Y.) 188.

59 They cannot be joined solely for purpose of discovery with no allegation of fraud, conspiracy or breach of trust and no prayer for relief against them. Norwood v. Memphis & C. R. Co., 72 Ala. 563.

60 To demand on a prayer against the corporation that they answer is bad. French v. First Nat. Bank, 7 Ben. 488, Fed. Cas. No. 5,099.

61 McIntyre V. Union College, 6 Paige (N. Y.) 239.

[§ 3065 § 3065. Defensive and dilatory pleadings-In general. The answer or other responsive pleading by a corporation should be made by its president or chief officer 62 incumbent of office at the time of pleading,63 on an appearance by the attorney, and with a signature, seal and verification by the proper person.65 It is of importance in corporation actions to have in mind the order and functions of the several. responsive pleadings which might be put in. Even under the codes the logical order of taking up and disposing of the dilatory matters before the merits is not lost sight of, and the New Equity Rules for federal courts provide for bringing them on for hearing before the main issues. The proper order of pleas at common law and in equity is somewhat simplified by modern changes 66 but as always a plea to the jurisdiction is waived by one to the merits or even by a dilatory plea of later order; and the frequency with which pleas to the jurisdiction and in abatement occur make it specially important to present them in right order.67 All dilatory pleas must be seasonably interposed according to the rules and codes of practice.68 Among these are, that summons, service or return is bad and no jurisdiction was had, or that the corporation is not subject to the jurisdiction invoked at all, or that it was misnamed, or no longer exists, or that no such

62 An answer to a bill should be made by the president or principal officer who should be able to admit or deny the facts or show a want of knowledge affording a reason for not so doing. An answer of the secretary equivocating the facts was held bad. Hale v. Continental Life Ins. Co., 16 Fed. 718.

63 The officers at the time of pleading are the ones to answer a bill where there have been changes in office. Mechanics' Nat. Bank v. H. C. Burnet Mfg. Co., 32 N. J. Eq. 236.

64 §§ 2933, 2934, supra.

"by its president and secretary comes," etc., is demurrable as it does not purport to appear by attorney. Nixon, Ellison & Co. v. Southwestern Ins. Co. of Cairo, Illinois, 47 Ill. 444. 65 § 3083, infra.

66 Order of pleas at law, see Stephen on Pleading (Tyler's Ed.), 373; 3 Bl. Comm. 301.

Order of chancery demurrers, pleas or answers, see Fletcher, Eq. Pl. & Pr.; Whitehouse, Equity Pl. & Pr.

67 See §§ 3066, 3068, 3069, 3073, infra.

68 A suggestion of dissolution after rule day of the term is too late, if the fact existed before. Whittington v. Farmers' Bank, 5 Harr. & J. (Md.) 489.

Demurrer in abatement for variance in name between the writ and the declaration must be made at the same time as a plea in abatement, and not afterwards. Pendleton v. Bank of Kentucky, 1 T. B. Mon. (Ky.) 171.

corporation exists or ever existed.69 Besides these are the motions and demurrers.70 In the federal equity courts demurrers and pleas have been abolished and all defenses are now made by answer, subject to a provision that dilatory matters may be set down for hearing before trial on motion."1 A corporation defendant need not either demur or answer if it has no interest, but in that event may disclaim and be dismissed in equity and under the codes recognizing such a practice.72

§ 3066. Proper method of objection or defense; by whom made. Besides the familiar rule that a demurrer reaches defects apparent on the face of the pleadings and answer or plea-those defects which lie in the facts there are numerous motions designed to raise particular objections.73 One objection to jurisdiction previously considered may be reached by motion in some states, in others only by plea, and in some by both methods according to whether the objection requires the pleading of new matter or is apparent on the record; and that is the objection to service.74 Another is the objection to venue and claim of privilege of change,75 but in so far as allegations of venue or jurisdiction are attacked the matter is further considered hereafter.76 Jurisdiction over the subject-matter of the suit, such as cannot be conferred by consent or waiver, may be challenged by motion at any time; and of this an instance is afforded in the federal courts,77 while in Georgia the venue being jurisdictional in the same sense may be challenged by motion during trial without a plea or on motion to vacate default.78 In a patent infringement case a motion at close

69 See §§ 3069-3075, infra. 70 §§ 3067, 3068, infra.

71 In federal equity practice "demurrers and pleas are abolished." All defenses formerly made by demurrer or plea are to be made by motion to dismiss or in the answer." New Equity Rule 29, full text of which see in 226 U. S. app'x.

The contents and form of the answer are regulated by New Equity Rule 30, which see 226 U. S. app'x, and also § 3071, infra.

72 Defendant in foreclosure suit may disclaim and be dismissed. Greenya v. Reliance Security Co., 161 Wis. 483, 154 N. W. 972.

73 As to ordinary motions, demur

rers and answers, see §§ 3067-3070, infra.

74 See § 3014, supra.

75 See §§ 2978, 2984, supra. 76 §§ 3068, 3069, 3075, infra. 77 See § 2965, supra, §§ 3069, 3075, infra.

78 In Georgia, where the jurisdiction of the subject-matter in the particular county must be pleaded and proved, objection may be taken by motion to dismiss when proof reveals a want of jurisdiction. A plea to the jurisdiction is required. Georgia Railroad & Banking Co. v. Seymour, 53 Ga. 499; White v. Atlanta, B. & A. R. Co., 5 Ga. App. 308, 63 S. E. 234. See also 3119, infra.

[§ 3066 of plaintiff's case and before putting in defendent's is a proper mode of raising the objection that no infringement has been proved within. the district to give jurisdiction.79 Motions directed to the resultant judgment will be treated of in another place.80

Generally any plea of fact assailing the corporate existence of the plaintiff corporation must be made in abatement as a plea of nul tiel corporation or of dissolution 81 but some authorities regard nul tiel as a plea in bar if it totally denies that there ever was such a corporation as plaintiff.82 Under some modern statutes of practice it is variously provided that a specification of defense, or an affidavit to the same effect, or a verification of the answer, shall be requisite to present any of the matters of special bar like nonexistence, and it must accompany the pleading to do so.83 The nonincorporation of plaintiff, who sues to use of another, may be made by way of a plea for want of parties,84 and so may the nonjoinder of the corporation when officers are sued for acts done in representation of it.85 A plea for nonjoinder or misjoinder rather than a demurrer is proper where a co-defendant not in court is not alleged to be a corporation.86 An estoppel or other disability to attack defendant's existence collaterally may be made by answer.87 Objections in the form of the allegations naming, describing or identifying the corporation should be by motion or demurrer, and will be waived if not so taken,88 while a plea of misnomer must be made in abatement, or as a matter of abatement, or else it will be waived,89 and any failure to allege incorporation in good form will be waived by answering 90 or counterclaiming or otherwise pleading so

79 Streat v. American Rubber Co., 115 Fed. 634.

80 §§ 3118, 3119, infra.

81 See §§ 3069, 3073, 3074, infra. 82 See § 3070, infra.

83 See §§ 3073, 3083 et seq., infra. 84 Where plaintiff's name used in suing imports corporation which is false in fact. Heaston v. Cincinnati & Ft. W. R. Co., 16 Ind. 275, 79 Am. Dec. 430.

85 If individuals are sued it is a good plea that they are corporate of ficers, acting as such in the matter, and that the corporation, a necessary party, is not joined as a defendant. Mayor, etc., of Wilmington v. Addicks, 7 Del. Ch. 56, 43 Atl. 297, 8 Del. Ch. 310, 43 Atl. 297, citing Mitford

Ch. Pl. & Pr. (6 Am. Ed.) 324.

86 One of several municipalities cannot demur that a co-defendant not in court has no corporate existence. The objection at most would be for misjoinder. White Oak v. Oskaloosa, 44 Iowa 512.

87 Tennessee Automatic Lighting Co. v. Massey (Tenn.), 56 S. W. 35.

88 If the complaint merely names defendant and does not allege that the contract sued on designates and describes defendant, objection that no allegation of incorporation appears must be taken by motion or demurrer. Wendall v. Osborne, 63 Iowa 99, 18 N. W. 709.

89 $$ 3069, 3072, infra.

90 Failure to plead corporate exist