21

defendant as originally alleged may be eliminated by an amendment under which incorporation is denied.20 Plaintiff cannot deny that defendant sued as such is a corporation. An admission of existence as pleaded also excludes evidence bearing on or tending to depart from the issue. Thus, if the special kind of corporation alleged is admitted, it cannot be shown that it was of a cognate kind.22 While the existence of the corporation may be refuted by the complaint itself, or by the judicial knowledge of the court, or may be proved by such knowledge, 23 unnecessary inferences as to unpleaded facts will not be indulged for this purpose.24 An action to forfeit the corporation sued by name necessarily admits its existence notwithstanding allegations of illegal organization.25 Going into the merits without a special plea admits it and excludes the issue,26 in like manner as a plea of set

20 An amendment of pleadings of plaintiff during trial so as to deny incorporation of one of defendants leaves no issue on that fact. Wall v. Mines, 130 Cal. 27, 62 Pac. 386.

21 Etowah Milling Co. v. Crenshaw, 116 Ga. 406, 42 S. E. 709.

22 Stork v. Supreme Lodge Knights of Pythias of World, 113 Iowa 724, 84 N. W. 721; Grand Rapids Furniture Co. v. Grand Hotel & Opera House Co., 11 Wyo. 128, 72 Pac. 687, 70 Pac. 838.

Admission of allegation that plaintiff was duly incorporated," a copy of the certificate being attached to the complaint, establishes legal incorporation. First Russian Nat. Organization of New England States v. Zuraw, 89 Conn. 616, 94 Atl. 976. 23 See § 3088, infra, and references there found as to judicial notice.

24 Reference to the act of incorporation in pleading corporate existence does not show nonexistence by reason of the fact judicially known that the act calls for steps in organization which are not alleged to have been made. It is not necessary to plead them. Cheraw & C. R. Co. v. Garland, 14 S. C. 63; Cheraw & C. R. Co. v. White, 14 S. C. 51.

25 People v. Ravenswood, H. C. &

W. Turnpike & Bridge Co., 20 Barb. (N. Y.) 518.

A defective corporation may be sued to restrain action threatened by it and the de jure existence of it denied in the complaint (dissenting opinion that suing it admits existence). Newton County Draining Co. v. Nofsinger, 43 Ind. 566. See also Knight v. Flatrock & W. Turnpike Co., 45 Ind. 134, dissenting opinion.

26 United States. Conard v. Atlantic Ins. Co., 1 Pet. 386, 7 L. Ed. 189; Goodyear v. Blake, Fed. Cas. No. 5,560.

District of Columbia. Tyler v. Mutual Dist. Messenger Co., 17 App. Cas. 85.

Louisiana. Boston Belting Co. v. Simonds, 22 La. Ann. 75.

[$ 3086 off; 27 in applying this rule a name importing incorporation or describing as "a corporation" is sufficient under the practice of most states in ordinary actions.28 It is also admitted by implication when some other fact is admitted which necessarily implies corporate existence.29 If there is no allegation of corporate existence that lack in the complaint must be challenged by some objection or demurrer, or it is waived.30 The plea or answer properly construed must therefore amount to a denial or traverse of the fact of corporate existence,31 and a general denial or the general issue ordinarily does not do this.32 Neither can it be raised by attack on the judgment in the lower courts or on appeal if not made below.33 The issue is presented by a plea of nonjoinder of the corporation to a bill alleging nonincorporation as a reason for not joining it.34 A technical conclusion to the country is not the proper mode of making the issue where common-law distinctions are observed and the fact lies in proof of a record binding on the court.35 Except under a practice where an affidavit is used to specialize a general plea or denial, and thus admit the issue under it,36

Benton & M. Railroad & Banking Co., 4 How. (Miss.) 257, distinguishing Carmichael v. School Lands, 3. How. (Miss.) 84, holding the contrary before the passage of the statute.

Whether plea to merits puts plaintiff's corporate existence in issue, questioned. Riverside Sand & Cement Mfg. Co. v. Hardwick, 16 N. M. 479, 120 Pac. 323. But see Butterfield's Overland Dispatch Co. v. Wedeles, 1 N. M. 528.

Admitted by corporation's answer alleging issuance of policy by it as a defense. Sengfelder v. Mut. Life Ins. Co., 5 Wash. 121, 31 Pac. 428.

27 McKnight v. Mineral Point, 1 Pinney (Wis.) 99 (municipal corporation).

28 United Brotherhood of Carpenters & Joiners of America v. Dinkle, 32 Ind. App. 273, 69 N. E. 707. See also 3043, supra.

29 § 3084, supra.

30 §§ 3066, 3068, supra.

31 Denial that persons named are "The Trustees of [name of plaintiff]" tenders no issue as to corporate

existence. Wiles v. Philippi Church, 63 Ind. 206.

Pleadings held to have made no denial of corporate existence but only of name or place. G. F. Swift & Co. v. Crawford, 34 Neb. 450, 51 N. W. 1034.

Nul tiel based on a change of identity as well as name raises the issue (municipal corporation). Sunapee v. Eastman, 32 N. H. 470.

32 This section, infra.

33 See §§ 3119, 3124, 3125, infra; and Reilly v. Union Protestant Infirmary, 87 Md. 664, 40 Atl. 894.

34 On a plea in abatement for failure to join the corporation as a necessary defendant, the bill alleging that there was no corporation and the plea that there was, an issue of de jure existence is presented. Mayor, etc., of Wilmington v. Addicks, 8 Del. Ch. 310, 43 Atl. 297, 7 Del. Ch. 56, 43 Atl. 297.

35 Bennington Iron Co. v. Rutherford, 18 N. J. L. 105, 35 Am. Dec. 528.

36 This section, infra.

it cannot be made by affidavit when not made by the pleadings.87 The pleas relate to the time of the action, or at latest to the time of making, and hence if dissolution occurs after general issue pleaded, a special plea supplementally or puis darrein continuance is required to make the issue,38 but it has been held that under a plea covering time since the commencement of action proof may be made.39

The general issue goes only to the substance of the action and not to the parties or to matters of form, and accordingly it has been repeatedly held that it does not join issue on the corporate existence of the plaintiff or the defendant.40 The admission made by the general issue

37 Where the pleadings themselves raise no issue, but an affidavit was made to show that plaintiff was a partnership, no issue was made thereby; and evidence on it was properly excluded. Iroquois Mfg. Co. v. AnnanBurg Milling Co., 179 Mo. App. 87, 161 S. W. 320.

38 Agnew v. Bank of Gettysburg, 2 Harr. & G. (Md.) 478. See also § 3080, supra.

39 Under plea and reply both directed to existence before, at and since commencement of action, its existence since may be shown. Belvidere Water Co. v. Town of Belvidere, 82 N. J. L. 601, 83 Atl. 241.

40 United States. Pullman v. Upton, 96 U. S. 328, 24 L. Ed. 818 (plaintiff's assignee); Society for Propagation of Gospel v. Pawlet, 4 Pet. 480, 7 L. Ed. 927 (plaintiff); Conard v. Atlantic Ins. Co., 1 Pet. 386, 450, 7 L. Ed. 189; Union Cement Co. v. Noble, 15 Fed. 502 (plaintiff); Kenton Furnace R. & Mfg. Co. v. McAlpin, 5 Fed. 737 (plaintiff); Dental Vulcanite Co. v. Wetherbee, 2 Cliff. 555, 3 Fish. Pat. Cas. 87, Fed. Cas. No. 3,810.

And see

Garton v. Union City Nat. Bank, 34 Mich. 279. Answer in chancery amounting to general denial does not raise the issue. Emerson Co. of West Virginia v. Nimocks, 88 Fed. 280.

Alabama. Southern Ry. Co. v. Hundley, 151 Ala. 378, 44 So. 195; Prince v. Commercial Bank of Columbus, 1

Ala. 241, 34 Am. Dec. 773 (plaintiff).

Arkansas. Mississippi, O. & R. R. R. Co. v. Cross, 20 Ark. 443; Alderman v. Finley, 10 Ark. 423, 52 Am. Dec. 244, where the corporation was municipal.

Florida. Arnau v. First Nat. Bank, 36 Fla. 398, 18 So. 786.

Kentucky. Taylor v. Bank of Illinois, 23 Ky. 576, 584 (plaintiff).

Maine. Rockland, Mt. D. & S. Steamboat Co. v. Sewall, 78 Me. 167, 3 Atl. 181; Ticonic Nat. Bank v. Bagley, 68 Me. 249 (plaintiff); Orono v. Wedgewood, 44 Me. 49, 69 Am. Dec. 81 (municipal corporation plaintiff); Putnam Free School v. Fisher, 30 Me. 523 (plaintiff); Savage Mfg. Co. v. Armstrong, 17 Me. 34, 35 Am. Dec.

227.

Maryland. Whittington v. Farmers' Bank, 5 Harr. J. 489. The contrary was held in Agnew v. Bank of Gettysburg, 2 Harr. & G. 478, where the corporation was foreign and the distinction was made that in the earlier case the court took judicial notice of the charter of Farmers' Bank as a public act. See also McKim v. Odom, 3 Bland 407. Expiration of charter after issue joined cannot be proved. Agnew v. Bank of Gettysburg, 2 Harr. & G. 478.

Massachusetts. Cessation of meetings for nine years cannot be shown under the general issue to a writ of right by the corporation. Sutton First

[§ 3086 is limited to the corporate existence and capacity and does not exclude evidence of the time thereof or other facts inhering in the substance of the cause of action pleaded.41 An exception to this statement lies in those causes of action where the formation and existence of the corporation is a condition precedent to liability, or in some other equally essential way must be proved in order to make out plaintiff's case.42 Action on a subscription for stock is the commonest illustration of this exception, but even in such an action there is a division of opinion, some authorities regarding incomplete organization or formation of the corporation as defensive matter to be affirmatively pleaded.43 Early New York and a few other early decisions dissented from the main rule and held that the fact of incorporation was essential in any contract action, but these decisions have long been obsolete by reason of statutes, or later decisions.44

Parish v. Cole, 20 Mass. 232 (plaintiff). It is now made by giving notice of it as a special defense. This section, infra.

Michigan. Imperial Curtain Co. v. Jacob, 163 Mich. 72, 127 N. W. 772; 17 Det. L. N. 751; Ludington WaterSupply Co. v. Ludington, 119 Mich. 480, 78 N. W. 558, 5 Det. L. N. 891; Garton v. Union City Nat. Bank, 34 Mich. 279 (plaintiff); Grand Rapids & I. R. Co. v. Southwick, 30 Mich. 444 (defendant); Smith v. Village of Adrian, 1 Mich. 495 (municipal corporation plaintiff). In action by a corporation on a note or bill indorsed or payable to it, plaintiff must prove incorporation under the general issue. Owen v. Farmers' Bank, 2 Dougl. 133, margin; Farmers' & Mechanics' Bank v. Troy City Bank, 1 Dougl. 457.

New Hampshire. School Dist. No. 1 v. Bragdon, 23 N. H. 507 (school district); Concord v. McIntire, 6 N. H. 527; School Dist. No. 1 v. Blaisdell, 6 N. H. 197 (school district). Contra, Society for Propagating the Gospel v. Young, 2 N. H. 310 (plaintiff).

New Jersey. Bennett v. Millville Improvement Co., 67 N. J. L. 320, 51 Atl. 706 (defendant).

New Mexico. Butterfield's Overland Dispatch Co. v. Wedeles, 1 N. M.

528 (plaintiff). But see the later case of Riverside Sand & Cement Mfg. Co. v. Hardwick, 16 N. M. 479, 120 Pac. 323.

Ohio. Methodist Episcopal Church v. Wood, 5 Ohio 283, Wright 12 (plaintiff).

Pennsylvania, Rheem v. Nauga. tuck Wheel Co., 33 Pa. St. 358. Vermont. Aetna Ins. Co. v. Wires, 28 Vt. 93.

41 Ruxbury v. Huston, 37 Me. 42.

Admits incorporation of plaintiff but denies substantive facts of cause pleaded. Swift River & B. B. Improvement Co. v. Brown, 77 Me. 40.

42 In these actions the corporate existence and character must be pleaded as a part of the cause of action, and accordingly must be proved or presumable to make a case. See § 3043, supra, as to necessity of allegations.

43 § 659, p. 1483, supra. As to the rule under general denial see also this section, infra.

On a statutory proceeding by motion to collect calls on shares, the general issue raises the question. Grays v. Lynchburg & S. Turnpike Co., 4 Rand. (Va.) 578.

44 The general issue puts corporate existence in issue. Wood v. Jefferson County Bank, 9 Cow. (N. Y.) 194; 4665

The general denial, while more extensive in scope than the general issue, is not more efficient to make this issue, as a rule; because unless the complaint materially alleges incorporation the denial does not reach the fact, since it no more inheres in the cause of action than it did at common law; 45 and mere denials in general terms are no