omission, whereof a public record affords certain knowledge.51 When the dissolution or other matter of abatement occurs pendente lite, it should be pleaded or suggested supplementally.52

§3075. Pleading want of jurisdiction-In general. A technical distinction exists between a plea in abatement to test whether jurisdiction has been obtained and a plea to the jurisdiction proper. which is a total bar to the hearing by the court.53 Demurrer to the jurisdiction 54 and objection by motion to the service have been discussed in earlier sections.55 The plea should be certain to every intent, not argumentative, and should be direct, positive, accurate and precise.56 If it equivocates between two grounds it is bad for duplicity.57

51 A denial of corporate existence on information and belief cannot be predicated on a forfeiture for nonpayment of license tax, since that must pass into a public record before corporate existence ceases. Neither can it be based on a surmise that it may not have been paid, official action being necessary to a forfeiture. William Wilson Co. v. Trainor, 27 Cal. App. 43, 148 Pac. 954.

52 § 3080, infra.

53 A plea to the jurisdiction in the nature of a plea in abatement, merely to test whether jurisdiction has been obtained, does not need to show a complete bar forever to such jurisdiction or give a better writ, though it commences and concludes like a plea to the jurisdiction. And it need not be verified. American Spirits Mfg. Co. v. Peoria Belt Ry. Co., 154 Ill. App. 330; Beck & Pauli Lithographing Co. v. Monarch Brewing Co., 131 Ill. App. 645.

The return of service may be traversed by a plea in abatement for not serving the president. Chicago Sectional Elec. Underground Co. v. Congdon Brake Shoe Mfg. Co., 111 Ill. 309.

54 § 3068, supra.

55 § 3014, supra.

56 A plea in abatement that the president was not served should aver that the sheriff was able to find him,

IV Priv. Corp.-80

or it will be stricken as immaterial. Chicago Sectional Elec. Underground Co. v. Congdon Brake Shoe Mfg. Co., 111 Ill. 309.

A plea in abatement for service on an incompetent person should allege that he was so when service was made. Ohio Oil Co. v. Griest, 30 Ind. App. 84, 65 N. E. 534.

It must be alleged what the service Iwas which is attacked and aver that there was no other service. Averment that it appears" that the only service was, etc., is bad. Perry v. New Brunswick Ry. Co., 71 Me. 359.

A plea to the service returned as made on an agent should traverse the fact of agency and not merely plead the place of the principal office, where service might have been made on an agent elsewhere than at such office. Galveston, H. & S. A. R. Co. v. Gage, 63 Tex. 568.

General denial does not suffice. National Life Ins. Co. v. Robinson, 8 Neb. 452, 1 N. W. 124.

Must be positive and certain. Quarrier v. Peabody Ins. Co., 10 W. Va. 507, 27 Am. Rep. 582.

57 A plea to the writ is bad for duplicity if it presents equally well the invalidity of the process by reason of nonaccrual of the cause within the jurisdiction, or by reason of want of residence of a co-defendant there,

When the plea is to the venue, every inference must be excluded that the one chosen might be allowable,58 the facts being specially pleaded and a demurrer not being efficient to question the facts as alleged.59 Matters of record such as the designation of an agent for service cannot be pleaded on information and belief.60 The plea must show what was the proper jurisdiction.61 Judgment must be prayed with a conclusion whether the court will take cognizance of the action.62

§3076. In federal courts. Little besides the allegation of citizenship as an element in federal jurisdiction has any peculiar application to corporations; and as the jurisdictional facts must be alleged,63 the allegation of the want of such jurisdiction will necessarily either by demurrer or answer traversing such allegations according to the practice in the district court following that of the state on the law side, and according to the rules of equity on that side. Ever since Louisville, C. & C. R. Co. v. Letson was decided it has been necessary to traverse the corporation's alleged place of incorporation and location rather than that of its members.64 In a patent infringement case

either being one of the essential grounds for suit against the pleader, a foreign corporation. Guarantee Co. of North America v. First Nat. Bank, 95 Va. 480, 28 S. E. 909.

58 Southern R. Co. v. Harrington, 166 Ala. 630, 139 Am. St. Rep. 59, 52 So. 57; Alabama Western R. Co. v. Wilson, 1 Ala. App. 306, 55 So. 932.

A plea of privilege of venue should, in addition to setting out defendant's domicile, allege that it had no agent in the county where sued. Gulf, C. & S. F. Ry. Co. v. Pickens (Tex. Civ. App.), 58 S. W. 156.

59 An allegation laying the accrual of the cause of action and the making of the contracts sued on in the county where action is brought gives the court jurisdiction, and if untrue it must be traversed by affirmative pleading and not by demurrer. Glendale Lumber Co. v. Beekman Lumber Co., 152 Mo. App. 386, 133 S. W. 384.

60 Denial on information and belief that an agent had been designated for service and statutory conditions com

plied with is bad, where all such facts were ascertainable of record. Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Idaho 5, 93 Pac. 789.

61 Guarantee Co. of North America v. First Nat. Bank, 95 Va. 480, 28 S. E. 909.

62 A plea to the jurisdiction is strictly regarded. Guarantee Co. of North America v. First Nat. Bank, 95 Va. 480, 28 S. E. 909.

It should conclude, "whether the court can or will take further cognizance of the action," not "that the suit abate and be dismissed." Quarrier v. Peabody Ins. Co., 10 W. Va. 507, 27 Am. Rep. 582.

63 § 3050, supra.

64 A plea that defendant "is not a corporation whose members are citizens of a state is insufficient to overcome diversity alleged in the complaint or declaration. Louisville, C. & C. R. Co. v. Letson, 2 How. (U. S.) 497. 11 L. Ed. 353, a leading case on citizenship of corporations."

[§ 3077 jurisdiction founded on the incorporation and doing of business where the infringement occurred, must be denied and thus put in issue.65

§ 3077. Pleading want of authority to represent or appear for corporation. There appears to be no way of questioning the authority of the attorney to appear for the corporation different from that applying to natural persons. Reference should therefore be had to treatises on attorneys and clients and to the local statutes. The authority of the agent and even the fact that an agent acted, not being a necessary fact to be pleaded in the complaint against a corporation, it follows that a défense of want of authority, as in the case of a natural principal, must be specially pleaded,67 unless by alleging such facts the defense is opened to a denial.68 The facts making an election illegal must be pleaded in the answer, 69 and a denial of authority must not admit inferentially that there was a ratification.70 A plea of non est factum to the instrument is not sufficient if other allegations invite the inference that there was authority," or if on the apparent facts the want of authority was extrinsic to the factum of the instrument.72

65 Fox v. Knickerbocker Engraving Co., 140 Fed. 714.

66 §§ 3055, 3057, supra.

67 Simon v. Calfee, 80 Ark. 65, 95 S. W. 1011; Malone v. Crescent City Mill & Transportation Co., 77 Cal. 38, 18 Pac. 858. Answer held sufficient in City Elec. St. Ry. Co. v. First Nat. Bank, 62 Ark. 33, 31 L. R. A. 535, 34 Am. St. Rep. 282, 34 S. W. 89, cited in Western Development & Investment Co. v. Caplinger, 86 Ark. 287, 110 S. W. 1039, to point that such defense must be pleaded.

Want of authority to make contract sued on must be affirmatively alleged when averred in the complaint. Wilcox v. Durham & C. R. Co., 152 N. C. 316, 67 S. E. 758.

68 Question, whether the agent's want of authority to execute note sued on must be specially denied. Dewey v. Toledo, A. A. & N. M. Ry. Co., 91 Mich. 351, 51 N. W. 1063.

69 An answer pleading defensively

that the board was not legally elected and did not legally elect defendant's successor, held insufficient in facts to show illegality. Jones V. Hilldale Cemetery Society, 23 Ky. L. Rep. 1486, 65 S. W. 838.

70 Denial of authority held pregnant with admission of ratification by use of fruits of contract. Agle v. Standard Drug Co., 29 Mont. 111, 74 Pac. 135.

71 A plea of non est factum to a note based on want of authority in the signing officer, is bad where it is also averred in substance that the note was given by the president's authority pursuant to a contract. J. L. Phillips & Co. v. Hudson, 9 Ga. App. 779, 72 S. E. 178.

72 Authority to execute and deliver authorized bonds cannot be raised by a sworn plea of non est factum. MeCormick v. Unity Co., 239 Ill. 306, 87 N. E. 924, aff'd judgment 142 Ill. App.

159.

§ 3078. Pleading particular defenses of substance. The word "defenses" is often used loosely and imprecisely in the law of pleading and procedure. In actions where a corporation is a party "defenses" are of great variety, while the questions of pleading are nearly all reducible to well-known general rules of pleading. Far the most frequent of the defenses urged in actions by or against a corporation, which are distinctively of pertinency to corporations and corporation law, is that of ultra vires or want of corporate power. Next to that and akin to it is that of illegality because of some law denying corporate power. Another frequent defense is that of want of authority of the agent or officer to bind the corporation. There are others of a savor peculiar to corporations, among which, as an example, may be mentioned the defense in an action on a subscription for stock that the precedent conditions of complete or legal organization have not been performed.

This enumeration is made as a premise for the statement, which the cases will bear out, that these and other defenses are all pleadable according to the general law of pleading. The defenses like the causes of action consist of the substantive law relating to the facts pleaded, and belong to other chapters of this work, as a rule, even where they are peculiar to corporations. Thus, returning to ultra vires, the question whether the lack of power or the illegality is a defense belongs to the chapters treating thereof, and the cognate question whether a given contract is within the powers belongs in other chapters.73 The pleading therefore takes on only the general question in actions ex contractu of how the defenses of invalidity or illegality, incapacity of the party, or non est factum (no such contract) shall be pleaded, or of how any of the other ordinary defenses such as performance, release or discharge shall be pleaded. Even ultra vires, though not generally pleadable by a stranger, may be urged in many actions outside of the scope of this chapter, and by the common forms of pleading. All that can properly be done here in view of the foregoing is to collect enough illustrative cases to afford a guide to the pleading of defenses, leaving the reader with the admonition to found all that is said on the general law of pleading as an assumed predicate.

The rule is general and settled that the defense of ultra vires is an affirmative one and must be specially pleaded as such, either by or against the corporation.75 This is said to be especially necessary if the

73 See Chaps. 21-38 inclusive, supra, and especially Chaps. 37 and 38 on Ultra Vires and Illegal Contracts.

74 See §§ 1523-1529, supra.

75 United States. Breakwater Co. v. Donovan, 218 Fed. 340.

corporation is foreign.76 Pleading in general terms that the power was lacking may suffice as a special allegation, if not challenged for uncertainty and want of particulars." A plea to the whole of a bill which alleged a contract out of the "usual and necessary" course of business is therefore bad.78 If the charter is by private act it must be