ant, or else to show an estoppel which precludes a denial of the fact: 2 Morawetz on Corporations, 2 ed., secs. 770, 772, 774, 776; Lehman v. Warner, 61 Ala. 455. The act approved February 26, 1889 (Acts 1888–89, p. 57), provides that when a suit is brought by a corporation, the plaintiff must not be required to prove the existence of such corporation, unless the same is denied by sworn plea, filed within the time allowed for filing pleas in abatement. But that act was not in force when the present case was tried, and hence did not govern it.

A subscriber to stock may, like any other person, be estopped from disputing the de facto existence of a corporation, especially as against creditors, where he attends the meetings of stockholders, or otherwise participates in the business of the company, thereby inducing others to act upon the faith of his admissions to their prejudice, or for his benefit. "But to warrant holding a person estopped from disputing the existence of a corporation, on the ground that he has co-operated in its organization and action, the acts shown must be unmistakably corporate acts": 2 Herman on Estoppel, sec. 1247. If the act done or admission made is just as consistent with the existence of an unincorporated association as of one incorporated, its ambiguous character will be so equivocal as not to raise an estoppel: Fredenburg v. Lyon Lake M. E. Church, 37 Mich. 476.

Conceding that the mere description of the plaintiff in the title of the cause as "a corporation" is sufficient, without any positive averment in the complaint of its corporate character, or without alleging whether it is a foreign or domestic corporation, defendants, in their first and sixth pleas, deny that there was at the commencement of this suit any such corporation as the Montgomery Trade Company,-the name in which the suit is brought. This cast on the plaintiffs, under the principles above stated, the burden, either to prove their corporate existence de jure or de facto, by admission of the defendant, or by production of their charter, with some evidence of user or acceptance, or by other competent evidence, or else to show an estoppel which would operate to preclude the defendant from denying the plaintiff's corporate existence. The only fact relied on to raise such estoppel, suggested in the demurrer to these pleas, is the conduct of the defendants in having paid. all of their subscription for the fifteen shares of stock except the twenty per cent here sued for, which latter sum is alleged to have been "duly and regularly called in by the plaintiff,

and demand therefor made upon said defendants," which they refused to pay. We perceive no element of estoppel in this fact, standing alone. The circumstances under which this subscription was paid are nowhere stated. It does not appear that it was called for by assessments made even under color of corporate organization or capacity. The payment made does not imply a recognition of corporate existence, or of an unequivocal corporate act performed by the plaintiff, or any participation by the defendants in the corporate meetings or proceedings. There is nothing inconsistent between the facts alleged in the complaint, and the fact of defendants' payment of eighty per cent of their subscription preliminary to any corporate organization then contemplated, or in anticipation of such event: Somerset & K. R. R. Co. v. Cushing, 45 Me. 524; Cabot v. Chapin, 6 Cush. 51; Kansas City Hotel v. Harris, 51 Mo. 464; Knox v. Childersburg Land Co., 86 Ala. 180.

The fact that all the capital stock was not subscribed for might have been a good defense to this suit against the defendants, under the general rule of law, apart from the statute: Cook on Stock and Stockholders, sec. 176. But the statute has changed this rule, so as to authorize the organization of corporations of the class to which plaintiffs prima facie belong, upon the payment of fifty per cent of the proposed capital stock, which may have been subscribed: Code 1886, sec. 1663; Code 1876, sec. 1806; Acts 1882-83, p. 5.

The other contentions of appellant are without merit.

It follows from what we have said that the city court erred in sustaining the demurrer of the plaintiff to the first and sixth pleas of the appellants, but not in sustaining the demurrers to the other pleas.

Reversed and remanded.

CORPORATIONS-ACTIONS BY. A corporation suing must prove its incorporation under the general issue: Welland Canal Co. v. Hathaway, 8 Wend. 480; 24 Am. Dec. 51, and note 58; Selma etc. R. R. v. Tipton, 5 Ala. 787; 39 Am. Dec. 344; Harris v. Muskingum Mfg. Co., 4 Blackf. 267; 29 Am. Dec. 372, and note; Phenix Bank v. Curtis, 14 Conn. 437; 36 Am. Dec. 492, 499; but compare Inhabitants of Orono v. Wedgewood, 44 Me. 49; 69 Am. Dec. 81; West Winsted Ass'n v. Ford, 27 Conn. 282; 71 Am. Dec. 66; Harrison v. Martinsville etc. R. R. Co., 16 Ind. 505; 79 Am. Dec. 447; compare Commercial Bank v. Pfeiffer, 108 N. Y. 242. But see also Harrison v. Martinsville etc. R. R. Co., supra, where it is held that pleading the general issue admits corporate existence. The existence of a corporation is proved by a recital of a United States patent that plaintiff is "a corporation existing under the laws of the state": Southern P. R. R. Co. v. Purcell, 77 Cal. 69; compare Fresno Canal etc. Co. v. Warner, 72 Cal. 379.

CORPORATIONS.-Ordinarily, the validity of corporate existence cannot be collaterally assailed: Duggan v. Colorado etc. Co., 11 Col. 113; Southern P.. R. R. Co. v. Purcell, 77 Cal. 69; State v. Fuller, 96 Mo. 165; Haskell v. Worthington, 94 Id. 560.

CORPORATIONS-ACTIONS AGAINST. When a corporation is defendant, the statute does not require that its charter should be set out, or even that it should be alleged by what authority defendant was made a corporation: Houston Water Works v. Kennedy, 70 Tex. 233. No recovery can be had against one corporation for services rendered to another corporation on the ground that the two corporations are identical, there having been only a change in name, unless such fact is distinctly alleged and proved: McGregor v. Fuller Implement Co., 72 Iowa, 143.

ESTOPPEL TO DENY CORPORATE EXISTENCE by contracting with the corporation: See Snyder v. Studebaker, 19 Ind. 462; 81 Am. Dec. 415, and note 419; Welland Canal Co. v. Hathaway, 8 Wend. 480; 24 Am. Dec. 51, 59, 60. One who has contracted with an apparent corporation as such is estopped in an action upon such contract to deny the existence of the corporation: Fresno Canal etc. Co. v. Warner, 72 Cal. 379.

DUDLEY V. COLLIER.

187 ALABAMA, 431.]

CORPORATIONS RESTRICTIONS BY STATE ON RIGHT OF FOREIGN CORPORATIONS TO TRANSACT BUSINESS WITHIN SUCH STATE. - Under Alabama constitution of 1875, article 14, section 4, no foreign corporation has authority to transact business in that state without having at least one known place of business, and an authorized agent or agents therein. And a subsequent statute declares that "it shall not be lawful" for any person to act as agent, or transact any business for or on behalf of any such corporation, until such constitutional requirement is complied with: Sess. Acts 1886-87, pp. 102-104. Without compliance with the conditions thus imposed, a foreign corporation engaged in the business of loaning money on mortgages, and it was held that an agent of the corporation could not maintain an action to recover compensation agreed to be paid him for procuring a loan from the corporation.

Watts and Son, and Williamson and Williams, for the appellant.

Roquemore, White and Long, and W. R. Houghton, contra.

SOMERVILLE, J. The suit is brought by the appellees for a stipulated compensation agreed to be paid them by the appellant, Dudley, for services rendered in procuring a loan of money for his use.

The court sustained a demurrer to the sixth, seventh, and ninth pleas jointly, and this ruling is assigned as error. If either of these pleas constituted a good defense, the ruling is

erroneous.

The sixth plea avers that "the loan and contract of borrowing were to be made with a foreign corporation, company, or association having no authority to do any business within the state of Alabama, and that an agreement to pay the borrowed money and interest thereon, and to make a mortgage upon lands in this [Lowndes] county [Alabama], was to be made with a foreign corporation, located in Great Britain, known as the of London, England; and the said corporation had no known place of business nor authorized agent within the state of Alabama, and had never been authorized, under the laws of Alabama, to do business within the state of Alabama, and that the plaintiffs were in fact the agents of such corporation."

It is declared in article 14, section 4, of our present constitution, that "no foreign corporation shall do any business in this state without having at least one known place of business and an authorized agent or agents therein ": Const. 1875, art. 14, sec. 4. We have construed this to be a police regulation; "just as much," we said, "a police regulation for the protection of the property interests of the citizens of the state as a law forbidding vagrancy among its inhabitants": American Union Tel. Co. v. Western Union Tel. Co., 67 Ala. 26; 42 Am. Rep. 90. The general assembly passed an act approved February 28, 1887, to give force and effect to this section of the constitution, in which it required that every foreign corporation or company, before engaging in business in this state, shall file in the office of the secretary of state an instrument in writing, under seal of such company, and signed officially by the president and secretary, "designating at least one known place of business in the state, and an authorized agent or agents residing thereat." It is declared that "it shall not be lawful" for any person to act as agent, or transact any business, directly or indirectly, for or on behalf of any such company or corporation, until this requirement is complied with. Any one who shall act as such agent, or transact any business for such foreign company, without having first complied with such requirement, is subjected to a penalty of five hundred dollars, payable to the state. The company itself that transacts or engages in any business in this state, before filing such instrument, is liable to a penalty of one thousand dollars: Acts 1886-87, pp. 102-104.

The contract for services here sued on bears date March 8, 1887, and is therefore subsequent to the foregoing prohibitory enactment. The case, then, is reduced simply to this, assum

ing the facts stated in the plea to be true, as admitted by the demurrer: The plaintiffs are the agents of a foreign corporation which has failed to comply with the requiremente of this statute. Neither the corporation nor the agents, therefore, are authorized to transact any business in Alabama. A loan or borrowing of money by or from such company, in this state, is an unlawful act, subjecting both the agents and the company to a heavy penalty. The services here sued for are for the doing of this prohibited act. The consideration of the defendant's promise is an act in express violation of the constitution and laws of Alabama. The contract to pay for such illegal services is itself necessarily illegal, as a promise made in consideration of an act forbidden by law; and being executory, the courts will not lend their aid to its enforcement.

It is an established rule of law, supported by uniform authority, that when a statute goes no further even than to impose a penalty for the doing of an act, a contract founded on such act as a consideration is void, although the statute does not pronounce it void, nor expressly prohibit it: Woods v. Armstrong, 54 Ala. 150; 25 Am. Rep. 671, and note 675-678. In the present case, there is both a penalty and an express prohibition.

In Woods v. Armstrong, supra, it was accordingly held, where a statute of this state imposed a penalty for selling any fertilizer which had not been inspected, analyzed, and stamped in the mode prescribed by law, a note given for the purchasemoney of such fertilizer sold in violation of this requirement was void. This ruling has been followed by us in many other

eases.

In Milton v. Haden, 32 Ala. 30, 70 Am. Dec. 523, a note given for the lease of a ferry was held void, on the ground that the lessor had no license, and the running of an unlicensed ferry was prohibited under penalty.

In Harrison v. Jones, 80 Ala. 412, we held that no recovery could be had for medical services rendered by an unlicensed physician, the practice of medicine in this state without such license being impliedly prohibited by a penalty. This ruling rests upon the general principle that when a statute forbids under a penalty, or otherwise, the carrying on of any particular business without a license, a contract made for services rendered, or goods sold, in violation of the requirements of such statute, is void; especially if it appears that the object of the legislature was for police purposes, and not solely for