an assignee for the benefit of creditors, pending an action in the nature of replevin, brought by him to recover damages from a sheriff for the tortious taking of assets, the proper parties to be substituted are the personal representatives of the deceased, since the action relates to personal property.350 3340. Set-off. In an action by the assignee of a claim, a demand existing prior to the assignment, in favor of defendants, and against the assignor, is unavailable as a counterclaim, and if so pleaded no reply is necessary.351 To render it available as an equitable defense, it must be pleaded as a defense.352 In an action brought by an assignee of a demand, an answer interposing as a set-off a claim subsisting in favor of the defendant against the assignor is not to be regarded as setting up a counterclaim; and the plaintiff need not put in a reply of the Statute of Limitations in order to avail himself of such statute against the claim, so set up.353 A demand against the plaintiff's assignor, who is not a party, is not generally available,354 But when a creditor having a debt due him by mortgage assigns the debt and mortgage, a judgment in favor of a third person against the creditor purchased by the debtor after the assignment, but before notice to him, constitute an offset pro tanto to the debt in an action upon it by the assignee.355 § 3341. Want of capacity - denial of plaintiff's corporation. Form No. 750. [TITLE.] The defendant answers to the complaint: I. That there was not at the commencement of this action, nor is there now, any such corporation as the Mining Company, named as plaintiff in this action. II. That the plaintiff was not a de facto corporation, nor did the persons claiming to compose the said alleged corporalor, 11 How. Pr. 380; Banks v. Maher, 2 Bosw. 690; Terry v. Roberts, 15 How. Pr. 65; but see Barribeau v. Brant, 17 How. (U. S.) 43. 350 Emerson v. Bleakley, 5 Abb. Pr. (N. S,) 350. 351 Dillayev. Niles, 4 Abb. Pr. 253; Ferreira v. Depew, id. 131. 352 Ferreira v. Depew, 4 Abb. Pr. 131; Wolfe v. H., 13 How. Pr. 84. 853 Thompson v. Sickles, 46 Barb. 49. 354 Cummings v. Morris, 25 N. Y. 625; Dillaye v. Niles, 4 Abb. Pr. 253; Ferreira v. Depew, id. 131; Spencer v. Babcock, 22 Barb. 326. 355 McCabe v. Grey, 20 Cal. 509. tion, at the commencement of this action, nor at any of the times mentioned in the complaint, claim in good faith to be a corporation. § 3342. Consolidated corporation. Where by state statute power is given to connecting railway corporations to merge and consolidate their stock, and such merger and consolidation has been judicially decided by the Supreme Court of the state to be a dissolution in law of the previous companies, and the creation of a new corporation with new liabilities; in such case, where the declaration avers that the defendant had agreed that stocks of one of the connecting railroads should be worth a certain price at a certain time and in a certain place, and the plea sets up that under the statute the stock of the railway named was merged and consolidated by the consent of the party suing, with a second railway named, so forming "one joint-stock company of the said two corporations," under a corporate name stated, such plea is good, though it do not aver that the consolidation was done without the consent of the defendants.356 Such a plea contains two points only which the plaintiff can traverse, the fact of consolidation, and the fact of consent; and these must be denied separately. If denied together, the replication is double and bad.357 § 3343. Denial of incorporation. The want of capacity to sue or be sued must be specially alleged.358 By pleading to the merits the objection is waived.359 While under the statutes of California360 the due incorporation of a corporation can not be inquired into collaterally, yet a private person is not thereby precluded from denying that it is a corporation de jure or de facto.3 361 356 Clearwater v. Meredith, 1 Wall. 25. 357 Id. 358 California Steam Nav. Co. v. Wright, 8 Cal. 585; White v. Moses, 11 id. 69; Society for Prop. of Gospel v. Town of Pawlet, 4 Pet. 480; Philadelphia R. R. Co. v. Quigley, 21 How. (U. S.) 202; Dillaye v. Parks, 31 Barb. 132. 359 Conrad v. Atlantic Ins. Co., 1 Pet. 386; Society for Prop. of Gospel v. Town of Pawlet, 4 id. 480; Yeaton v. Lynn, 5 id. 223. 360 1862, p. 110, Civil Code, § 358; see Martin v. Deetz, 102 Cal. 55; 41 Am. St. Rep. 151; People v. Montecito Water Co., 97 Cal. 276; 33 Am. St. Rep. 172. 361 Oroville & Virginia City R. R. Co. v. Plumas County, 37 Cal. 360; Dean v. Davis, 51 id. 407; Zion M. E. C. v. Hillery, id. 155; Where the defendants are sued by a corporate name, though the complaint does not allege that the defendants are incorporated, still plaintiff must prove the fact if denied, and a denial that defendants are a corporation is not new matter.362 Before the Revised Statutes of New York, the denial of incorporation amounted only to the general issue.363 And it was equally bad when applied to foreign corporations.364 But under the Revised Statutes, to require a domestic corporation plaintiff to prove its corporate organization, the defendant must specially plead the nonexistence of such corporation; and this plea was a good plea in bar.365 But such a denial can not be made on information and belief.366 To put the plaintiff to proof of his corporate capacity in this case, a general denial is not sufficient, but the answer must deny the existence of such a corporation.367 If evidence is required on that point, it must be because that is a point in issue; and it can not be in issue unless it is affirmed in the pleadings on one side and denied on the other.368 The rule which requires a defendant to answer positively as to the facts alleged in a Roman C. O. A. v. Abrams, 40 id. 456. An averment of the existance of a de facto corporation is as issuable as an averment of the existence of a corporation de jure. Martin v. Deetz, 102 Cal. 55; 41 Am. St. Rep. 151. 362 Stoddard v. Onondaga Ann. Conf., 12 Barb. 573. Where a complaint against a corporation does not allege the corporate character of the defendant, objection thereto is waived by the defendant's plea of counterclaim as though it were in fact a corporation. Frost v. Ainslie Lumber Co., 3 Wash. St. 241. 363 Hartford Bank v. Murrell, 1 Wend. 87; Welland Canal Co. v. Hathaway, 8 id. 480; 24 Am. Dec. 51; Wood v. Jefferson County Bank, 9 Cow. 194. 364 Farmers & Mechanics' Bank v. Rayner, 2 Hall, 195. 365 Methodist Episcopal Church v. Tyron, 1 Den. 451; see, also, Bank of Genesee v. Patchin Bank, 13 N. Y. 309; Park Bank v. Tilton, 15 Abb. Pr. 384. Plea of the general issue at common law does not put in issue the averment of a declaration that the plaintiff is a corporation. Steamboat Co. v. Sewall, 78 Me. 167; Arnau v. First Nat. Bank, 36 Fla. 398; Savings Bank v. Ford, 27 Conn. 282; 71 Am. Dec. 66. 366 East River Bank v. Rogers, 7 Bosw. 493. 367 Park Bank v. Tilton, 15 Abb. Pr. 384; Bank of Havana v. Wickham, 7 id. 134. 368 See Ang. & Ames on Corp. 631, and cases cited; Oroville & Virginia City R. R. Co. v. Supervisors of Plumas County, 37 Cal. 370 verified complaint, which are presumptively within his own knowledge, applies to municipal corporations. The statute makes no distinction between the rules of pleading applicable to natural persons and those applicable to artificial persons.369 There may exist the best reasons for a different rule of pleading when a municipal corporation is a defendant; but this court can make no distinction, because the Code makes none. It is a matter for the legislature, and not for the court.3 Where the complaint averred a contract between plaintiff and the board of supervisors, on behalf of the county, and the answer admitted a contract between the plaintiff and another on the one side, and the county on the other, and averred that this was the only contract made by the county in relation to the matter, and denied that any other was made by the board of supervisors, it was held that this denial was sufficient to put the plaintiff on proof of the contract.371 In an action against a corporation to recover dividends which have accrued on its stock, if the plaintiff avers "that from a date named she was, has been, and still is the owner in her own right, and as her separate property, of the stock," the answer raises an issue, if it denies that at the date named "the plaintiff was, has since been, or still is the owner in her own right, and as her separate property," of the stock. The qualifications of the denial by the words "in her own right and as her separate property' are mere surplusage.372 Where the answer in a suit against a corporation, on its note, relies simply on the want of power of the corporation to issue notes, the defendant can not afterwards object that the plaintiff has not shown that the officers executing the note were empowered by the corporation to do so.373 Noncompliance with the statutory provision (Cal. Civ. Code, § 299), that unless a corporation files a copy of its articles in the county where the property is situated, it "shall not maintain or defend any action or proceeding in relation to such property," is a matter to be set up by the defendant in an action of ejectment brought by the corporation for the property. A denial of the existence of the corporation does not raise the question.874 Such failure 369 San Francisco Gas Co. v. The City. 9 Cal. 453; see § 376, ante. 372 Dow v. Gould & Curry Mining Co., 31 Cal. 630. on the part of the corporation can only be made available by specially pleading it in the answer as matter of abatement to the action. This provision of the statute applies only to domestic corporations.376 Where the defendant was sued as a corporation when it was in fact a limited copartnership, a denial that "defendant is or ever was a corporation, organized and existing under the laws of England," is pregnant with the admission that the defendant is a corporation, and raises no issue.377 Where an answer denies the authority of the president of a corporation to execute a certain mortgage, 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.378 § 3344. Dissolution. An action by a corporation is not abated by dissolution, but may be continued in the corporate name.379 § 3345. Estoppel. As a general rule, corporations have power to waive their rights, and are bound by estoppels in pais like natural persons.380 When an association assumes a name and exercises the powers of a corporation it is estopped from denying its corporate liabilities.381 A corporation which has entered into contracts in its corporate capacity is estopped, when sued thereon, from denying its corporate existence.382 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.383 One entering into a 375 South Yuba Water, etc., Co. v. Rosa, 80 Cal. 333. 376 Id. 377 Wright v. Fire Ins. Co., 12 Mont. 474. 378 Gribble v. Columbus Brewing Co., 100 Cal. 67. 379 New York Marbled Iron Works v. Smith, 4 Duer, 362; Talmage v. Pell, 9 Paige Ch. 410; see Pendleton v. Russell, 144 U. S. 640. Suits for or against a corporation abate upon its dissolution at common law. Lumber Co. v. Ward, 30 W. Va. 43; and see Matter of Norwood, 32 Hun, 196. 380 Hale v. Union Ins. Co., 32 N. H. 295; 64 Am. Dec. 370. 381 United States Express Co. v. Bedbury, 34 Ill. 459. 382 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. 383 Parrott v. Byers, 40 Cal. 614; Dutchess Cotton Mfy. v. Davis, 14 Johns. 238; 7 Am. Dec. 459; All Saints' Church v. Lovett, 1 Hall, |