Page:North Dakota Reports (vol. 3).pdf/179

Defendant's answer is. insufficient to raise the question of noncompliance with the statute. It pleads legal conclusions. Gudl River Lumber Co. v. Keefe, 41 N. W. Rep. 743, 6 Dak. 160. The defense that a foreign corporation has not complied with the statute, by filing its articles of incorporation and appointing a resident agent must be specially pleaded. American Buttonhole Co. v. Moore, 2 Dak. 280, 8 N. W. Rep. 131. The consideration for contracts is presumed to have been lawful. Illegality is never presumed, it must be alleged and proved. St. Louis etc. Ry. Co. v. Fire Association, 18 S. W. Rep. 43; Dahl v. Montana Copper Co., 10 S.C. Rep. 97; White River Lumber Co. v. Southwestern Imp. Ass'n, 18 S. W. Rep. 1055. The fact of violation of law in one transaction, will not inure toa stranger as a defense to an action on a contract not in violation of law. Northwestern Mutual Ins. Co. v. Brown, 36 Minn. 108, 18 S. W. Rep. 43, and 1055, supra. Penal statutes are strictly construed and a forfeiture will not be enforced unless such appears to have becn the unmistakable intention of the legislature. Toledo etc. Co. v Thomas, 11 S. E. Rep. 37; United States v. Athens Armory, 31 Ga. 344. There is aclear distinction between an intent to prohibit a transaction until a certain thing is done (when the primary object is actual prohibition) and an intent to compel the performance of an act collateral to the transaction. Larned y. Andrews, 106, Mass. 435, Aiken v. Blaisdell 41, Vt. 655; DeMers v. Daniels, 39 Minn. 158; Pangborn v. Westlake, 36 la. 546; Strong v. Darling, 9 Ohio, 201. The restriction imposed by statute is a simple inhibition—no one but the state can object. The con- tract is valid as to the defendant and he has no right to raise the question of its invalidity. Whitney v. Wyman, 101 U.S. 392, Nat'l Bank of Genessce v. Whitney, 103 U.S. 101; Fortier v. New Orleans Bank, 112 U.S. 439, § S.C. Rep. 234; Reynolds v. Crawfordsville Bank, 112 U.S. 405, 5 S.C. Rep. 213; Frills v. Palmer, 132 U.S. 293, 10 S.C. Rep. 93. A person who has had the benefit of an agreement cannot be permitted in an action founded upon it to question its validity. Union Nat'l Bank of St. Louis v. Matthews, 98 U. S. 621; Wright v. Lee, 51 N. W. Rep. 706.