The Rising Sun Insurance Co. v. Slaughter ct al.

companies, and was inoperative, under the Constitution, because the title of the act embraced domestic corporations alone. In one aspect it appears to have been similar to the former act, that we have been considering; that is, its purpose was to place conditions upon such foreign organizations in regard to their acts in this State. In some respects of the details of the two acts, they are not exactly identical. The one requires the commission and orders, &c., of the agent, to be filed in the clerk's office, the other in the recorder's office; the one gives a penalty by fine of not less than 50 dollars for its violation, the other declares an insurance procured by an agent who had failed to comply with its provisions, void; but has no other penalty attached.

Two questions appear to arise: First, Can we refer to any other act, in considering this general statute, where, upon the face thereof, no doubt would arise? Sedg. on Stat. and Const. Law, 247. Second, If we can, then can such reference be made to an invalid act? It has been held that reference may be had to an act upon the same subject matter, passed at a different time, or an expired act, or one that has been repealed, id. 250; but can an abortive attempt at legislation, because unconstitutional, be referred to? If it can, then are these statutes of such a character as to enable us to say that it was not the intention to include in that, which otherwise appears to be general, the subject matter of the attempted special legislation?

Upon these points we are of opinion that the general statute is so clear and unambiguous that an interpretation by reference to other statutes is not necessary; and that an attempt to show that the subject matter of legislation, evidently included in the terms thereof, had been the subject of other, but unconstitutional action, should not be permitted.

It is also urged that the reply is bad, even if the policy

The Rising Sun Insurance Co. v. Slaughter et al.

should be considered void, because it appears to be sufficient upon its face.

The purpose of the stipulation in the policy, requiring assent to a second insurance, appears to be to prevent a double insurance, and thereby avoid the increase of the risk which might arise from temptation to fraudulent acts. If the second insurance was totally invalid, or not made until after the loss, then, it appears to us, there was no subsequent insurance, within the meaning of the stipulation in the first policy. See 23 Pick. 418; 6 Cush. 342; 2 Watts & S. 14; 37 Maine 137; 35 N. H. 203; but, it may be, there are authorities to the effect that if the second insurance is such as might be avoided by the insurers for extraneous facts, then it should be considered as affecting the stipulation in the first policy. But see 16 Peters 495; Parsons' 2 Mar. L. 100; 2 Am. Lead. Ca. 555. But we place our decision in this case upon the want of power in the Quaker City Insurance Company to make the

contract.

That corporation had an existence only by virtue of the law creating it. That was a law foreign to this jurisdiction; the corporation could, therefore, have no existence here, except such as is recognized by inter-State comity. 2 Peters 586; id. 688; 12 id. 32; id. 657; 2 Wash. C. R. 283; 4 id. 86; 13 Mass. 1; 18 Peters 519; 6 Hill 527; 4 Scammon 461; 5 Sandf. 681; 18 Pick. 193.

Perhaps, in the absence of action by the State, the power to make a contract, otherwise valid, would be presumed. Story's Conf. of L. sec. 38; 13 Peters, supra; 2 Kent's Com. p. 39. But as this comity is presumed to rest upon the voluntary consent of one nation or State to the laws of another nation or State having force within its jurisdiction, such presumption can not be indulged against the expressed will of such State. Story's Conf., sec. 36; Vattel, 61, 62; 13 Mass. 4; Kent, supra.

The Rising Sun Insurance Co. v. Slaughter et al.

The question then recurs, has the State expressed, in a legitimate manner, its dissent to the operation of such laws within its jurisdiction? An answer to this inquiry is already anticipated, in our conclusion, in a former part of this opinion.

The next point is upon the refusal to grant a new trial.

The evidence is conflicting, and, to say the least of it, strongly tends to show that the second policy was taken out by Mr. Ferry, who was agent for both companies, without the knowledge or consent of the insured; that it did not come to their knowledge until after the loss; that it was assented to then under the supposition that it was for the benefit of the first insurers. We do not see but that, on all other points raised by said motion, the, case was fully for the plaintiffs. We can not, under our repeatedly expressed views, disturb the judgment, under these circumstances.

The last point made is, that the demurrer to the reply reaches back and fastens upon defects in the complaint, and that the complaint in this case is fatally defective in not showing that there was in the plaintiffs an insurable interest in the property. The allegation in the complaint is, that the defendants insured "the plaintiffs to the amount of 3,000 dollars on 10,000 bushels of oats," &c. Did this sufficiently show the interest of the plaintiffs? We are of opinion that it did. We are not able to perceive how the conclusion could be escaped that the language used pointed to the plaintiffs as the owners.

Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs.

Geo. V. Howk, Robert M. Weir, Thomas A. Hendricks and Oscar B. Hord, for the appellant.'

Randall Crawford and Henry Crawford, for the appellees.* (1) The counsel for the appellant urge:

The conditions of policies against other insurance without consent

The Rising Sun Insurance Co. v. Slaughter et al.

are rigidly enforced. 20 Barb. 635; S. C. 22 N. Y. 402; 11 Iowa 21; 33 Penn. S. 397; 5 Duer 101; S. C. 17 N. Y. 607, 8 Gray 33; 6 id. 169; 33 N. H. 9; id. 203; 4 Kernan 79; 21 Mo. 97; 4 Gray 337; 2 id. 397; 4 Zabriskie 447; 11 Upper Canada, Q. B., 506; 11 Cush. (Mass.) 265; 18 Mo. 229; 12 Cush. (Mass.) 144; id. 469; 9 id. 470; 7 id. 175; 19 Ohio 149; 7 Rob. La. 351; 3 id. 384; 5 Ohio 467; 2

Watts & Serg. 506; 16 Pet. U. 8. 496.

The act relating to foreign insurance companies is unconstitutional and void, and the failure to comply with its requirements, on the part of the Quaker City Insurance Company, does not avoid the policy issued by that company. Igoe v. The State, 14 Ind. 239.

It was not void for want of compliance with the act relating to foreign corporations, because that has no application to foreign insurance companies. The acts concerning foreign insurance companies and foreign corporations generally were both approved on the same day, and are both parts of the revised code-one entire system of lawand they should be so construed. 1 Chipman R. 348; 1 Kent's Com. 464; 5 Ind. 57; id. 413; 6 id. 354; Blackwell on Tax Titles, 716.

In analogous cases under the statute of frauds, it has been held that contracts not complying with its terms are not void. 7 Ind. 394; 16 id. 341; 17 id. 124.

Relief in the Courts of this State is denied, to foreign corporations not complying with our laws, but the Courts of other jurisdictions may be resorted to, no principle of public policy forbidding an insurance company incorporated in one State to make contracts in another. 6 Gray (Mass.) 204; Angel and Ames on Corporations, sec. 273, (6 ed.)

But, if the Quaker City policy is void, the fact is not apparent on its face, and, therefore, under the weight of authority, it still operates to avoid the former policy. 16 Pet. U. S. 495; 22 N. Y. 402; David v. Hartford Fire Insurance Co., Supreme Court Iowa, Spring Term, 1862, (not yet reported); 11 Upper Canada, Q. B., 516; 19 id. 520; id. 257.

It is a rule of pleading, that a demurrer searches the record and fixes itself upon the first error. 1 Blackf. 415; id. 77; 13 Ind. 348;

Bradley et al. v. The Bank of the State of Indiana, &c.

11 id. 105; 15 id. 203; id. 169; 16 id. 307; 7 id. 321; Perk. Prac. 236.

(2) The counsel for the appellees urge:

Each State may prescribe conditions upon which foreign corporations may transact business; 13 Pet. U. S. 519; and when the policy of a State is made manifest by its legislation, all Courts would be bound to notice it, as a part of its code of laws, and to declare all contracts in the State, repugnant to it, to be illegal and void. Ibid.

Every contract made for or about any matter or thing which is prohibited and made unlawful by statute, is a void contract, though the statute does not mention that it shall be so, but only inflicts a penalty on the offender, because a penalty implies a prohibition, though there are no prohibitory words in the statute. Per Holt, C. J., in Bartlett v. Viner, Carth. 251.

An insurance is void, if the interest is illegal, or if a material and inseparable part of the contract or transaction be illegal, or if the insurance itself be expressly prohibited. 7 Man. & G. 457; 7 John. 434; 15 Mass. 35; 1 Story 109, 122; 10 Bing. 107; 1 Pars. on Cont. 482; 5 Ind. 353; 3 Gray 215; 8 Gray 206.

Where there is a condition in a policy against other insurance without consent of the first insurer, and other insurance is effected without such consent, then if such other insurance is valid, the liability of the first insurer ceases, but if it was, for any reason, invalid, so that it was not a binding contract on the company by which it was issued, then there was no subsequent insurance upon the property. 25 Pick. 418; 6 Cush. 342; 2 Watts and S. 514; 37 Maine 137; 35 N. H. 203; 4 Zabriskie 447; 2 Pars. Mar. Law, 100; 2 Am. Lead. Cas. (4 ed.) 555.

20 528 130 553

BRADLEY et al. v. THE BANK OF THE STATE OF INDIANA, &c. ATTACHMENT-PLEADING AND PRACTICE IN.-Action upon notes, and attachment obtained at the institution of the suit, based upon