or the implication unavoidable. Therefore it was held that a statute providing that "any person or persons, or any agent, officer or member of any corporation, paying or receiving premiums, applications for insurance, or in any manner securing, helping or aiding in the placing of an insurance, or effecting any contract of insurance, directly or indirectly," with a foreign company, shall be liable to a specified penalty,' is not applicable to insurance by the owner himself of his property in such foreign company. And it has been held that to bring an agent within the inhibition of a statute which provides generally that no foreign corporation shall do business in the State except upon specified conditions, it must appear that the act in question was done within the State.3

§ 104. Same―Pleading. The provision of the Wisconsin statute, subjecting a foreign fire insurance company to a specified penalty for the failure to file an annual statement of its business in the office of the insurance commissioner,' has been held to apply to licensed companies only. Therefore, a complaint in an action to recover such a penalty, which in setting out the facts constituting the cause of action, omits to show that the defendant company was licensed to do business in the State was held insufficient."

1 Act Pa. April 4, 1873, P. L. 20, as amended by Act April 26, 1887, P. L. 61.

2 Commonwealth v. Biddle, 139 Pa. St. 609, 1 Atl. Rep. 134, 27 W. N. C. 287.

3 Collier v. Davis, 10 South. Rep. 86, distinguishing Dudley v. Collier, 87 Ala. 431, 6 South. Rep. 304. See also Pieree v. People, 106 Ill. 11, 3 Am. & Eng. Corp. Cases, 8. Compare List v. Commonwealth, 118 Pa. St. 322. Rev. St. Wis. § 1920.

'State v. United States Mut. Acc. Ass'n, 69 Wis. 76, 33 N. W. Rep. 90; State v. Citizens' Ins. Co., 71 Wis. 411, 37 N. W. Rep. 348.

§ 105.

Same Under the Missouri Statute Agents. The penal provisions of the Missouri statute' have been held to be exclusively directed against the agent and to have no application to the company itself."

I Wagn. Stat. pp. 749, 751, 753, §§ 30, 36, 41 and 52.

2 State v. Charter Oak Life Ins. Co., 9 Mo. App. 364; State v. New York Life Ins. Co., 81 Mo. 89.

ARTICLE IV.-STATUTES LIMITING THE POWERS OF FOREIGN COMPANIES.

SECTION.

110. Restraining Statutes Generally.

111. Prohibition of Unauthorized Banking.

112.

Same-Contracts in Violation of the Statute. 113. "One Class or Kind of Business"-Construction. 114. Forbidden Conditions in Insurance Policy.

§ 110. Restraining Statutes Generally.-A very obvious and effective method of regulating the transaction of business by foreign corporations within the jurisdiction, is by imposing such limitations upon their corporate capacity as the public policy of the State may suggest. This method of regulation has not been frequently resorted to, but examples of such legislation are found in the laws which prohibit banking except under special authority,' which confine foreign insurance companies to one class or kind of business, or forbid the insertion of specified conditions in insurance policies as being unfair or inequitable. Where such restraining statutes are. in terms applicable to corporations generally, there are sometimes enactments expressly extending such provisions to foreign companies, subjecting them to

2

1 Rev. St. Mo. 1885, p. 287, §§ 11, 12; Swan's St. Ohio, 1840, p. 136; 1 Rev. St. N. Y. 1836, p. 708, § 6.

2 Acts Mass. 1887, ch. 214, § 80. 3 Rev. St. Ind. 1881, § 3770.

all the liabilities, duties and restrictions that are imposed upon domestic corporations.' In the absence of such an enactment it must not be assumed that a statute specifying how the contract of a corporation shall be executed, which in its terms includes corporations generally, was intended to apply to foreign as well as domestic companies.'

§ 111. Prohibition of Unauthorized Banking.The statutes upon this subject are nearly all early laws which have ceased to have much practical application to the subject of banking since the establishment of the system of national banks under the Act of Congress. The cases are of interest, however, as illustrating this method of control by the local sovereign of the transactions of the foreign company. It is, of course, a matter of primary importance to determine what transactions are within the scope of these enactments. That must largely depend upon the language used. Where the cashier of a foreign banking corporation made a loan of money in the City of New York on the borrower's check, the transaction being an isolated one, and the corporation keeping no office for banking purposes within the State, it was held not to be a violation of the restraining act which prohibited' the "keeping of an office of discount and deposit for transaction of business."" An express company created under the law of Colorado, whereby it was authorized to engage in the express business,, and to

1 United States Mtge. Co. v. Gross, 93 Ill. 483, 492; Laws Ill. 1872, § 26. Compare New Hope, etc. B. Co. v. Poughkeepsie Silk Co., 25 Wend. 648.

2 Rumbough v. Southern Improvement Co., 109 N. C. 703, 11 S. E. Rep. 528.

3 Rev. St. N. Y. 712, § 6.

Suydam v. Morris Canal & B. Co., 6 Hill, 217.

draw drafts and bills of exchange, was held not to be a bank or corporation having banking powers or privileges within a Federal statute,' excluding such companies from doing business in Washington Territory.' § 112. -Upon principle there would seem to be no room to doubt that contracts, made by a foreign corporation in violation of such restraining statute, must be held to be void, at least when they are sought to be enforced at the suit of the company which has overstepped the prescribed limits of its power. But in most instances the restraining statutes have expressly declared the forbidden acts "null and void."" The Supreme Court of Missouri has held that a statute declaring void all bonds, bills or notes, or other instruments of writing securing the payment of money loaned by a foreign corporation in violation of its provisions, would extend to and invalidate a note given in renewal of such original note. Sometimes, though, a statutory provision invalidating certain transactions of corporations for want of power, has been held to extend only to the immediate contract of the parties, as for instance in the case of a loan, to the note or other security given for the money, while the loan itself has been held. valid and sufficient to support an action on the common counts. In New York, however, it was

Same-Contracts in Violation of the Statute.

1 U. S. Rev. St. § 1924, 1889.

2 Wells, Fargo & Co. v. Northern Pac. Ry. Co., 23 Fed. Rep. 469. 3 Swan's St. Ohio, 1840, p. 137, § 9; Myers v. Manhattan Bank, 20 Ohio, 283, 302; Rev. St. Mo. 1855, p. 285, § 14.

♦ Bank of Louisville v. Young, 37 Mo. 398.

* See Utica Ins. Co. v. Kip, 8 Cow. 20; Utica Ins. Co. v. Caldwell, 3 Wend. 296; Utica Ins. Co. v. Bloodgood, 4 Wend. 652, which were suits by a New York corporation to recover loans made in violation of the