the right to make them separately is lost because they might also be made under the general denials, according to code practice.42

After a plea in abatement is made, it may be waived by stipulation, for example, to allow filing pendente lite of articles to the want of which the plea is made.43 Merely taking continuances pending the plea does not do so.44

§3070. Answers to the merits and pleas in bar. Because of the requirements of orderly and sequential pleading 45 it is important to know what pleas or issues are in bar and what are in abatement or dilatory.46 The sufficiency of the denials or defenses and their effect as pleadings are treated in the sections following.47

A plea to the jurisdiction of the cause may be either in abatement or in bar. 48

A plea of nul tiel corporation totally denying that there is or ever was such a corporation is generally considered to be in bar,49 while if

[§ 3070 existence only at the time is denied,50 or if it is in effect one for misnomer it is a plea in abatement 51 but it may be so pleaded, according to good opinion, that it may be one or the other.52 A plea to the corporate existence will be considered as in bar, which it may be, and not in abatement unless specially pleaded as such.58 In Illinois the rule takes the form of a rule that if it is denied that plaintiff is a corporation, the plea is in bar, but if it be denied that there is such a corpora

tion as defendant, it is abatement.54 Whether allegations or denials amount to a plea of no corporation or something else may depend on the proper construction of the issues so joined.55 Thus a denial that a contract was valid, based on denials of corporate existence, was held to be an issue of nul tiel and not one of ultra vires.56 The plea or issue of nul tiel corporation is a special bar and not a general issue.57 It is said that it is immaterial under the codes, where all defenses are made in one answer, whether nul tiel is in abatement or in bar,5 though this probably means only that for certain purposes of pleading it is immaterial, since by going to the merits without seasonably and properly tendering the issue it is waived.59

58

Pleas to the competency to sue 60 and pleas of dissolution before suit 61 are not in bar but in abatement.

§ 3071. Mode and sufficiency of answers, denials and pleas-In general. Again the predicate that the law of pleading is general must be laid for all that is said in this and the subsections which follow it. Except as the matters and methods hereinafter mentioned qualify or specialize them, the general rules for pleading or answering to the complaint or bill apply as with natural persons as parties, and it is always assumed that the reader will consult them and be guided by them as well as by the precedents herein collected. A corporation may make its denials on information and belief, or may disavow information and belief as to the facts alleged in the complaint the same as a natural person might do.62 But as it knows what its officers know and what its records show, it cannot deny information and belief as to

54 A plea denying that plaintiff is a corporation is in bar, but one denying that there is such a corporation as defendant is in abatement. Gilmer Creamery Ass'n v. Quentin, 142 Ill. App. 448; Keokuk & H. Bridge Co. v. Wetzel, 130 Ill. App. 81, aff'd 228 Ill. 253, 81 N. E. 864.

55 See generally §§ 3084-3086, infra. 56 Rialto Co. v. Miner, 183 Mo. App. 119, 166 S. W. 629.

57 Guaga Iron Co. v. Dawson, 4 Blackf. (Ind.) 202.

58 Davis v. Nebraska Nat. Bank, 51 Neb. 401, 70 N. W. 963.

59 See §§ 3065, 3068, 3069, supra. 60 Plea to the competency to sue is in abatement. Oregonian Ry. Co., Ltd. v. Oregon Ry. & Nav. Co., 23

Fed. 232; Jones v. Cincinnati Type
Foundry Co., 14 Ind. 89.

An answer in form of abatement pleading that defendant is a foreign corporation which has not come within the jurisdiction and has not been served therein on any qualified person, is in abatement and not in bar. Young v. Providence & S. S. S. Co., 150 Mass. 550, 23 N. E. 579.

61 Hartsville University v. Hamil. ton, 34 Ind. 506; Jones v. Bank of Tennessee, 8 B. Mon. (Ky.) 122, 46 Am. Dec. 540.

62 McAuley v. Bromell & Barkley Printing Co., 5 N. Y. Civ. Proc. 431, 14 Abb. N. Cas. 316, distinguishing Shearman v. New York Cent. Mills, 1 Abb. Pr. (N. Y.) 187; Thorn & May

them; and such a denial will be regarded as evasive, presenting no issue,63 or frivolous.64

In chancery courts, including the federal equity courts, an express denial or an admission is requisite, or else a proper averment of a lack of information and belief as to the matters alleged.65 Even where oath is waived it should not plead mere ignorance contrary to the rule of chancery, though ignorance or knowledge as a fact may be stated.66 Its answer should comprehensively state its knowledge and belief and their sources by alleging the facts "to be made according to the knowledge and information and belief of its officers ascertained from all proper sources of information." 67 In this connection the simplification of federal equity practice under the New Equity Rules must be noted. Thereby the substance of the foregoing rules appears not to have been substantially changed.68 If discovery against officers is prayed the corporation answers in the usual way, leaving each to make his separate answer so that its admissions, offers and concessions shall not be ascribed to him.69

nard v. New York Cent. Mills, 10 How. Pr. 19, aff'd sub nom. Shearman v. New York Cent. Mills, 1 Abb. Pr. (N. Y.) 187.

63 Mills v. Jefferson, 20 Wis. 50.

The corporation cannot deny on information and belief what some one of its officers must know, even though the one verifying may be ignorant of such facts. Sloane v. Southern California Ry. Co., 111 Cal. 668, 32 L. R. A. 193, 44 Pac. 320.

It cannot deny on information and belief where its railroad line is situated. Such a denial makes no issue, and the objection is not waived by going to trial without objection to form of denial. Chicago, R. I. & E. P. R. Co. v. Wertheim, 15 N. M. 505, 30 L. R. A. (N. S.) 771, Ann. Cas. 1912 C 148, 110 Pac. 573.

64 A denial on information and belief that defendant corporation made the alleged contract is frivolous. Thorn & Maynard v. New York Cent. Mills, 10 How. Pr. (N. Y.) 19, aff'd sub. nom. Shearman v. New York Cent. Mills, 1 Abb. Pr. (N. Y.) 187. 65 The state practice in this regard

is not followed on the equity side. Commonwealth Title Insurance & Trust Co. v. Cummings, 83 Fed. 767.

66 Anything material to its defense may be put in, hence ignorance of a fact essential to want of notice may be put in. Balcom v. New York Life Insurance & Trust Co., 11 Paige (N. Y.) 454.

67 So held of a corporate answer under seal. French v. First Nat. Bank, 7 Ben. 488, Fed. Cas. No. 5,099. 68 In federal equity practice "the defendant in his answer shall in short and simple terms set out his defense to each claim asserted by the bill, omitting any mere statement of evidence and avoiding any general denial of the averments of the bill, but specifically admitting or denying or explaining the facts upon which plaintiff relies, unless the defendant is without knowledge, in which case he shall so state, such statement operating as a denial." New Equity Rule 30. See the full text of the remainder of this rule, 226 U. S. app'x.

§ 3072. Pleading misnomer. The necessity of pleading misnomer specially in abatement and the general rules respecting materiality of misnomer have been hitherto stated.70 The proper method of plead ing misnomer is to negative the name alleged or the fact that the corporation was called by it or known by it, and the true name should be pleaded,71 and where there has been a new corporation formed, leaving the old one in existence, their identity should be denied or negatived.72 The motion papers, where motion to correct misnomer by amendment is allowed, should also show the true name.73 A plea of misnomer for trivial variance is frivolous.74

§3073. Pleading nonexistence or nul tiel corporation. Although there may be a technical or etymological distinction between a plea of nul tiel corporation and one that the party is not a corporation, it is not observed in the cases and is not herein observed. The terms are used interchangeably and if the distinction is made in particular cases the results of the distinction will appear. Akin to the plea that no such corporation exists is the plea that it has been dissolved or succeeded by some other; and pleas nul tiel in name which are really pleas of dissolution have been regarded as such.75 For reasons already stated the plea must either be made as one in abatement, or if' in bar, as a special one accompanying the answer or general plea, or by demurrer (if that is allowable by the practice and under the state of

70 § 3069, supra.

71 Misnomer of plaintiff is not well pleaded by answer alleging that plaintiff is not a corporation and that plaintiff's correct name is as stated in a certain deed. Associate Presbyterian Congregation. of Hebron V. Hanna, 113 N. Y. App. Div. 12, 98 N. Y. Supp. 1082.

Plea held sufficient but overruling it on demurrer held harmless because complaint was amended to state name correctly. Savannah, A. & M. Ry, v. Buford, 106 Ala. 303, 17 So. 395.

It should deny that it has been known or was doing business under the name alleged. Wilhite v. Convent of Good Shepherd, 117 Ky. 251, 25 Ky. L. Rep. 1375, 78 S. W. 138.

72 If there has been a change of name, and the former name is sued

on, the answer must negative identity of the new and old corporations. Wilhite v. Convent of Good Shepherd, 117 Ky. 251, 25 Ky. L. Rep. 1375, 78 S. W. 138.

73 Under the statute misnomer is challenged by motion of either party for an amendment correcting the name on the showing of the right one by affidavit. First Nat. Bank of Ceredo v. Huntington Distilling Co., 41 W. Va. 530, 56 Am. St. Rep. 878, 23 S. E. 792.

74 A plea of misnomer consisting only in use or omission of "the" before an otherwise correct name is frivolous and technical. Southern Ry. Co. v. Hayes, 183 Ala. 465, 62 So. 874.

75 See § 3074, infra.