with reference to providing an agent for the service of process, will not prevent the jurisdiction of the local courts from attaching if the company in fact do business and have an agent in charge of its affairs within the State. Service upon him will be

sufficient.'

§. 95. Same Pleading a Compliance with the Statute Proceedings in Equity.-The statutory condition of the company's authority to do business is ordinarily a condition precedent. Under the fundamental principle of equity pleading, that every fact essential to sustain the bill and to obtain the relief prayed for must be stated, it follows that a foreign corporation seeking to enforce, in a proceeding in equity, a contract made in the State, must allege a compliance with the statute. So held of a bill to have a loan secured by mortgage declared a lien on the land. But where the prohibition and penalty are directed against the agent personally, and not against the company, and do not prohibit the transaction of the business generally by the latter,' but only the business of insurance, a compliance with it is no longer a condition precedent to the company's power to make and enforce valid contracts within the State. It follows that in an action by such company seeking to foreclose a mortgage, it is not necessary to aver a compliance with the statutory provisions nor to negative the fact that the

1 Hagerman v. Empire Slate Co., 97 Pa. St. 534; Funk v. AngloAmerican Ins. Co., 27 Fed. Rep. 336.

2 Christian v. American F., L. & Mtge. Co., 89 Ala. 198, 7 South. Rep. 427. See also Ginn v. New England Mtge. Secy. Co., 92 Ala. 135, 8 South. Rep. 388; Nelms v. Edinburgh American L. Mtge. Co., 92 Ala. 157, 9 South. Rep. 141. Compare Young v. South Tredegar Iron Co., 85 Tenn. (1 Pickle), 190.

3 Rev. Code Ala. 1867, § 1180, Code 1886, § 1209.

note and mortgage were taken in the transaction of the business of insurance.'

§ 96.

Same-In Action at Law or Under the Code. On the other hand, in an action at law it was held that the maxim, omnia rite acta præsumuntur would apply, and that in the absence of evidence to the contrary, it would be assumed that the company had complied with the statute.' Its failure to do so is properly matter of defense and must be pleaded in bar.' The rule applies equally in those cases where the action is against the foreign company." The plaintiff need not allege a compliance with the statute.

97. Same-In Appellate Court.-The objection that the plaintiff, a foreign corporation, has not complied with the statute, to be considered by the appellate court, must be sufficiently pleaded in the answer. The allegation of mere legal conclusions, as that the plaintiff had not recorded a "duly authenticated copy" of the appointment or commission of any agent "duly authorized" to accept service of process, was held insufficient. In connection with the rule above quoted, that a complainant in equity must set out all the facts essential to his bill, it has been held that if he fails to make the requisite aver

1 Boulware v. Davis, 90 Ala. 207, 8 South. Rep. 84.

2 Williams v. Cheney, 3 Gray, 213; New York Life Ins. Co. v. Stone, 42 Mo. App. 383; American Ins. Co. v. Smith, 73 Mo. 368; Fitzsimmons v. Insurance Co., 18 Wis. 234; Sprague v. Cutler, etc. L. Co., 106 Ind. 242; Cassaday v. American Ins. Co., 72 Ind. 95. See also South Yuba Water Co. v. Rosa, 80 Cal. 33, 22 Pac. Rep. 222. Compare Dundee v. Mtge., etc. Co. v. Nixon, 10 South. Rep. 311; Peoria M. & F. Ins. Co. v. Walser, 22 Ind. 86.

3 Utley v. Mining Co., 4 Colo. 369; Tabor v. Goss & Phillips Mfg. Co., 11 Colo. 419, 18 Pac. Rep. 536.

New England F. & M. Ins. Co. v. Robinson, 25 Ind. 536.

5 Gull River L. Co. v. Keefe, 6 Dak. 160, 41 N. W. Rep. 743.

ments of a compliance with the statute, and the bill is not attacked upon this ground at the trial, the question cannot be raised on appeal.'

§ 98. Same Pleading a Non-compliance-Certainty. The defendant, in pleading a failure to comply with the statute as a defense, must be governed by the usual rules as to certainty in bringing the plaintiff foreign company clearly within the terms of the act. An affidavit of defense which states that plaintiff failed to file with the Secretary of State a statement showing the location of its offices and the names of its agents within the commonwealth was held insufficient, because it failed to aver that plaintiff was doing business within the State. An answer under oath that "the plaintiff had not complied with the provisions of the act of the General Assembly" respecting foreign corporations, lacks the precision and certainty requisite for a plea in abatement and, stating not facts, but a conclusion only, is insufficient to bar the action."

2

§ 99.

Same-Burden of Proof-Evidence.-In an action by a foreign mutual insurance company to recover assessments on a note, if the answer denies that the company has complied with the statutory conditions before the execution of the policy, the burden is with the company and it is not sustained by the certificate of the proper State officer showing a compliance during the year in which the policy in question was dated, but which does not show

1 Ginn v. New England Mtge. Secy. Co., 92 Ala. 135, 8 South. Rep. 388.

2 Campbell P't'g., P. & Mfg. Co. v. Hering, 139 Pa. St. 473, 20 Atl. Rep. 1061. See also Ginn v. New England Mtge. & Secy. Co., 92 Ala. 135, 8 South. Rep. 388; Finch v. Travellers' Ins. Co., 87 Ind. 302. 3 Singer Mfg. Co. v. Effinger, 79 Ind. 264.

whether such compliance took place before the date of the policy.'

§ 100. Remedy for Failure to Comply-Quo Warranto.—If a foreign company assumes to do business within the State without qualifying itself by a compliance with the statutory conditions, the legal effect of its action is the usurpation of a franchise, and a writ of quo warranto is the appropriate method for determining its rights in the premises and of applying a remedy, although, of course, the courts of a State have no power to affect, by their judgments, the corporate existence of foreign corporations, since they can only be ousted of all their franchises in the respective States of their creation. But each sovereignty has power to determine what franchises shall be exercised within its limits."

§ 101. Same-Injunction.-The remedy by quo warranto is not the sole or exclusive remedy, but the peculiar circumstances of the case may indicate another as more appropriate. Thus, at the instance of a foreign insurance company, which had fully complied with all the statutory conditions to the right to do business in the State, the New York Supreme Court granted an injunction restraining another foreign company, of an almost exactly similar name, to which a license had been refused, by the insurance commissioner, on the ground that confusion was likely to arise, from attempting to do business in the State."

J Washington County Mut. Ins. Co. v. Chamberlain, 16 Gray, 165. See also Dundee Mtge., etc. Co. v. Nixon, 10 South. Rep. 311.

2 State v. Fidelity, etc. Ins. Co., 39 Minn. 538, 41 N. W. Rep. 108; State v. Western Union L. Ins. Co., 47 Ohio St. 167, 24 N. E. Rep. 392. 3 Employers' Liab. Assur. Corp. v. Employers' Liab. Ins. Co., 16 N. Y. Supp. 397.

§ 102. Same-Indictment of Agent.-An indictment of the agent of a foreign company for violation of Code Va. ch. 38, § 25, p. 210, averred that he was keeping an office and transacting business as agent of the Protection Insurance Company of Hartford, incorporated and authorized by the State of Connecticut, without having a license therefor against the act, etc., but failed to state that such foreign company is an insurance company. The court held that this error was cured by a verdict.' § 103. Penalties Legislative Power-Extraterritorial Acts. Nearly all of the statutes prescribing conditions upon which foreign companies shall be allowed to do business within the State, seek to enforce such provisions by enacting penalties for their violation. The power of the State to pass such laws results from its power to exclude such foreign companies as it sees fit from its jurisdiction.* While, of course, an act which should attempt to prevent a non-resident owner of property in the State, or a resident owner not at the time within its territory, from insuring his property in any manner lawful in the place of contract, would be void as extraterritorial, yet the legislature has power within constitutional limitations to declare acts done within the State unlawful or criminal. Without doubt, therefore, the legislature may make the insurance of his property in an unauthorized foreign company by an owner criminal, if done within the State. But such a statute would be such a harsh.and extreme interference with the general right of a citizen to manage his own affairs in his own way that such an intent is not to be attributed to it unless the terms be plain 1 Slaughter v. Commonwealth, 13 Gratt. 767.

2 Moses v. State, 65 Miss. 60, 3 South. Rep. 140.