SHANNON, C. J.
It is to be observed that as against the two defendants, Snyder and Burdick, the action is solely upon their bond, and we cannot agree with their counsel that the complaint shows the bond was executed within the Territory. We cannot presume it was executed and delivered at Vermillion, for the instrument does not so state, nor does the complaint. Whether this is material or not,'it is best to be accurate. As to these defendants, the notes are referred to in the complaint, as showing a breach of the conditions of the bond, together with the measure of damages, or as admissions of just indebtedness of their principal, under the contract.
By their general demurrer they admit, at least, all such matters of fact as are sufficiently pleaded. Having had their option whether to answer or to demur, they are to be taken, in adopting the latter alternative, as admitting that they had no ground for denying or traversing the facts as alleged. They consequently confess that the facts alleged are true, and, therefore, the only question for the Court is, whether, assuming such facts to be true, they sustain the case of the party by whom they are alleged.
Thus, among other things, these defendants have admitted that the plaintiff is a company duly incorporated by the Legislature of Pennsylvania, and that it was doing business under its corporate name; that as such corporation, they voluntarily entered into the contract, or obligation, with it, upon the strength of which the plaintiff parted with its property; that it furnished the sewing machines to Moore under the contract and at the place designated; that his notes were not paid at maturity, and that he is justly indebted in the sum named. In fine, they admit their liability under the bond, provided the plaintiff can show a compliance with a certain Statute referred to in the argument. In other words, the whole pith and moment of the contention, are concentrated in the objection made by respondents’ counsel, in his brief, to-wit: “It [288]*288does not appear that this corporation has complied, or attempted to comply, with the provisions of paragraphs 567, 568 and 569 of the Civil Code of the Territory of Dakota, or that this corporation was created for religions or charitable purposes solely.”
Before the Code of Procedure, it was a principle that a demurrer is never founded on matter collateral to the pleading which it opposes, but arises on the face of the statement itself. Again it was a rule that it is not necessary to state matter which would come more properly from the other side, that it is not necessary to anticipate the answer of the adversary. It was sufficient that each pleading should, in itself, contain a good prima facie case, without reference to possible objections not yet urged. Thus in declaring upon a devise of land by force of an English Statute of wills, it was sufficient to allege that such a person was seized of the land in fee, and devised it by his last will, in writing, without alleging that such devisor was of full age. Por though the Statute provided that wills made by femes covert, or persons within age, shall not be taken to be effectual, yet if the devisor were within age, it was for the other party to show this in his answer, and it needed not to be denied by anticipation. This was on the principle that if the law raises an exception to the general right, the exception need not be stated in the pleading; and that illegality in a transaction is never presumed, but, on the contrary, everything is presumed to have been legally done till the contrary is asserted and proved. And it was clearly determined that in declaring upon a contract within the Statute against frauds, it need not be alleged that the contract was in writing. Generally, the old rule was stated to be, that wherever there is a circumstance, the omission of which is to defeat the plaintiff’s right of action, prima facie well founded, whether called by the name of a proviso or a condition subsequent, it must in its nature be a matter of defense, and ought to be shown, in pleading, by the opposite party. So, in pleading upon Statutes, if there be an exception in a subsequent clause or section, that is matter of defense, and the other party must show it to exempt himself from the penalty. (See the case of the Territory v. John Scott, decided at the May term, 1880, of this court.)
The Code of Civil Procedure abolished all the old forms of [289]*289pleading, and established new and simple ones, with general rules by which the efficiency of pleadings is to be determined. However, as the general plan is the same, we must still necessarily revert to the former sostem for our guidance in filling up the outlines. The complaint must contain a plain and concise statement of the facts constituting a cause of action. By it the plaintiff states his claim, or what he regards as his right to recover ; and as formerly so now, the statement is sufficient if it contain a prima fade case.
The only pleading allowed on the part of a defendant, is either a demurrer or an answer. Generally, the latter must contain denial, or a statement of any new matter constituting a defense or counter-claim. Thus, he may still confess all the allegations of the complaint, but, by setting out the new matter, he may, if it is sufficient, avoid the right to recover; for, in such way, the prima fade case of the plaintiff may be rebutted and destroyed. For example, although civil actions can only be commenced within the periods prescribed in the Code, after the cause of action shall have accrued, yet the objection that the action was not commenced within the time limited, can only be taken by answer.
As to demurrer, section 113 of the Code provides that the defendant may demur to the complaint when it shall appear upon the face thereof that there is one or more of six specified defects therein. The second is that the plaintiff has not legal capacity to sue; and the sixth is, that the complaint does not state facts sufficient to constitute a cause of action. And these are the two grounds upon which, in the present case, the defendants have chosen to place their demurrer. It is not sustainable, as we have seen, upon the latter ground, for that relates only to the statement of facts constituting the cause of action. The complaint does not fail to show a right of action, unless, indeed we are to presume some illegality in the transaction. As this is not apparent, the presumption is the other way, that everything has been legally done. There is nothing in the Code which requires the pleader to allege anything more than is necessary to constitute prima fade, a right of action, or a legal defense. Of the very essense of defense, is any new matter, by which is still meant [290]*290facts which go in avoidance of what has been before pleaded on the opposite side.
We next come to consider the other alleged ground of demurrer, to-wit: “That plaintiff has not legal capacity to sue, as appears upon the face of said complaint.” The corporation plaintiff, although foreign to us, is yet, in a certain sense, a citizen of the State of Pennsylvania; and by the general comity which obtains through the States and Territories of the United States, corporations created in one State or Territory are permitted to sue in another State and Territory. But apart from any doctrine of mere comity, we have express legislation on the subject, by which foreign corporations, like all non-residents, are allowed to sue upon furnishing sufficient surety for costs.
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SHANNON, C. J.
It is to be observed that as against the two defendants, Snyder and Burdick, the action is solely upon their bond, and we cannot agree with their counsel that the complaint shows the bond was executed within the Territory. We cannot presume it was executed and delivered at Vermillion, for the instrument does not so state, nor does the complaint. Whether this is material or not,'it is best to be accurate. As to these defendants, the notes are referred to in the complaint, as showing a breach of the conditions of the bond, together with the measure of damages, or as admissions of just indebtedness of their principal, under the contract.
By their general demurrer they admit, at least, all such matters of fact as are sufficiently pleaded. Having had their option whether to answer or to demur, they are to be taken, in adopting the latter alternative, as admitting that they had no ground for denying or traversing the facts as alleged. They consequently confess that the facts alleged are true, and, therefore, the only question for the Court is, whether, assuming such facts to be true, they sustain the case of the party by whom they are alleged.
Thus, among other things, these defendants have admitted that the plaintiff is a company duly incorporated by the Legislature of Pennsylvania, and that it was doing business under its corporate name; that as such corporation, they voluntarily entered into the contract, or obligation, with it, upon the strength of which the plaintiff parted with its property; that it furnished the sewing machines to Moore under the contract and at the place designated; that his notes were not paid at maturity, and that he is justly indebted in the sum named. In fine, they admit their liability under the bond, provided the plaintiff can show a compliance with a certain Statute referred to in the argument. In other words, the whole pith and moment of the contention, are concentrated in the objection made by respondents’ counsel, in his brief, to-wit: “It [288]*288does not appear that this corporation has complied, or attempted to comply, with the provisions of paragraphs 567, 568 and 569 of the Civil Code of the Territory of Dakota, or that this corporation was created for religions or charitable purposes solely.”
Before the Code of Procedure, it was a principle that a demurrer is never founded on matter collateral to the pleading which it opposes, but arises on the face of the statement itself. Again it was a rule that it is not necessary to state matter which would come more properly from the other side, that it is not necessary to anticipate the answer of the adversary. It was sufficient that each pleading should, in itself, contain a good prima facie case, without reference to possible objections not yet urged. Thus in declaring upon a devise of land by force of an English Statute of wills, it was sufficient to allege that such a person was seized of the land in fee, and devised it by his last will, in writing, without alleging that such devisor was of full age. Por though the Statute provided that wills made by femes covert, or persons within age, shall not be taken to be effectual, yet if the devisor were within age, it was for the other party to show this in his answer, and it needed not to be denied by anticipation. This was on the principle that if the law raises an exception to the general right, the exception need not be stated in the pleading; and that illegality in a transaction is never presumed, but, on the contrary, everything is presumed to have been legally done till the contrary is asserted and proved. And it was clearly determined that in declaring upon a contract within the Statute against frauds, it need not be alleged that the contract was in writing. Generally, the old rule was stated to be, that wherever there is a circumstance, the omission of which is to defeat the plaintiff’s right of action, prima facie well founded, whether called by the name of a proviso or a condition subsequent, it must in its nature be a matter of defense, and ought to be shown, in pleading, by the opposite party. So, in pleading upon Statutes, if there be an exception in a subsequent clause or section, that is matter of defense, and the other party must show it to exempt himself from the penalty. (See the case of the Territory v. John Scott, decided at the May term, 1880, of this court.)
The Code of Civil Procedure abolished all the old forms of [289]*289pleading, and established new and simple ones, with general rules by which the efficiency of pleadings is to be determined. However, as the general plan is the same, we must still necessarily revert to the former sostem for our guidance in filling up the outlines. The complaint must contain a plain and concise statement of the facts constituting a cause of action. By it the plaintiff states his claim, or what he regards as his right to recover ; and as formerly so now, the statement is sufficient if it contain a prima fade case.
The only pleading allowed on the part of a defendant, is either a demurrer or an answer. Generally, the latter must contain denial, or a statement of any new matter constituting a defense or counter-claim. Thus, he may still confess all the allegations of the complaint, but, by setting out the new matter, he may, if it is sufficient, avoid the right to recover; for, in such way, the prima fade case of the plaintiff may be rebutted and destroyed. For example, although civil actions can only be commenced within the periods prescribed in the Code, after the cause of action shall have accrued, yet the objection that the action was not commenced within the time limited, can only be taken by answer.
As to demurrer, section 113 of the Code provides that the defendant may demur to the complaint when it shall appear upon the face thereof that there is one or more of six specified defects therein. The second is that the plaintiff has not legal capacity to sue; and the sixth is, that the complaint does not state facts sufficient to constitute a cause of action. And these are the two grounds upon which, in the present case, the defendants have chosen to place their demurrer. It is not sustainable, as we have seen, upon the latter ground, for that relates only to the statement of facts constituting the cause of action. The complaint does not fail to show a right of action, unless, indeed we are to presume some illegality in the transaction. As this is not apparent, the presumption is the other way, that everything has been legally done. There is nothing in the Code which requires the pleader to allege anything more than is necessary to constitute prima fade, a right of action, or a legal defense. Of the very essense of defense, is any new matter, by which is still meant [290]*290facts which go in avoidance of what has been before pleaded on the opposite side.
We next come to consider the other alleged ground of demurrer, to-wit: “That plaintiff has not legal capacity to sue, as appears upon the face of said complaint.” The corporation plaintiff, although foreign to us, is yet, in a certain sense, a citizen of the State of Pennsylvania; and by the general comity which obtains through the States and Territories of the United States, corporations created in one State or Territory are permitted to sue in another State and Territory. But apart from any doctrine of mere comity, we have express legislation on the subject, by which foreign corporations, like all non-residents, are allowed to sue upon furnishing sufficient surety for costs. A general right to sue is thus clearly given to such a corporation; and in any case unless the complaint itself discloses facts to the contrary, the right, on demurrer, is presumed to exist, until the contrary is shown.
Ground of demurrer for want of capacity to sue, must appear from the allegations as made in the complaint, and not from want of allegations. The respondents rely on the latter ground. They insist that the complaint is defective for want of an allegation showing a compliance with the provisions of the sections named; and that unless the corporation has so complied, it lias no capacity to sue. If this proposition were to be granted, what then? To sustain the demurrer, the Code requires that it should appear upon the face of the complaint, that there is no such capacity, a thing which in no respect appears. For aught appearing upon the face of the complaint, the plaintiff may, in point of fact, have complied with the alleged conditions. Section 116 provides that when any of the matters enumerated in section 113 do not appear upon the face of the complaint, the objection may be, taken by answer, thereby pointing out the correct praetice, with sufficient clearness.
There is not in this case any defect appearing on the face of the complaint, even by assuming the position taken to be true. For aught that appears, the plaintiff is not only qualified to sue, but also to transact any business and to enforce its contracts.
But it must be admitted that the plaintiff has the legal capacity [291]*291to sue, if that right is not taken away by section 567. Is it thereby taken away ? It is not so expressed in the section, nor is it necessarily implied. When it is declared by section 567 of the Civil Code, substantially, that no foreign corporation shall “ transact any business ” within this territory, until it shall have filed a copy of its charter, and appointed a resident agent, is a foreign corporation thereby deprived of its right to have the validity of its contracts inquired into and determined by our courts ? The right to sue and to be heard is one thing; but the right to have contracts enforced upon trial, is another and a quite distinct matter.
, In this further view, we are, consequently, confronted with the direct query, to-wit: By inhibiting the transaction of business, did the Legislature mean to deprive these corporations of the capacity to sue ? By the exercise of this power, the plaintiff does not seek to transact business, as these words are generally understood,' but to enforce alleged rights springing from past business transactions. Therefore, by no fair or proper implication is such corporation thereby deprived of its right to sue. The inhibition, at most, extends only to the ordinary transaction of business; and it cannot be construed, by any enlarging process, to embrace and prohibit the exercise of another independent power existing by general comity, as well as by express legislation.
The conclusion is, that the legal capacity of the plaintiff to sue is not at all affected by section 567, no matter how non-compliance therewith, (if hereafter shown,) may affect its contracts, a point which we are not now called on to decide.
This branch of the demurrer, like the other, avails nothing; and to bring up the question attempted to be raised by the defendants, an answer is required.
Before determining so grave a question, we must not only have a proper case, but great care must be taken to examine that class of authorities which assert the doctrine, that when a Statute prohibits an act, or annexes a penalty for its commission, it does not always follow that the unlawlulness of the act was meant by the law makers to avoid a contract made in contravention of it. (Harris v. Runnels, 12 How., 79; Gold Mining Co. v. National Bank, 6 [292]*292Otto, 640; National Bank v. Mathews, 8 Otto, 624; Commissioners, etc., v. Bolles, 4 Otto, 104; Whitney v. Wyman, a very recent case, in S. C. of U. S., not yet regularly reported; Pangborn v. Westlake, 36 Iowa, 546; Mutual Life Ins. Co. Wilcox, in Albany Law Journal, Vol. 17, p. 426; Smith v. Sheeley, 12 Wall., 361; Newburgh Petroleum Co. v. Weare, 27 Ohio St., 343.)
The judgment is reversed and the cause remanded to the court below, with directions to overrule the demurrer and to give the defendants thirty days within which to serve an answer, and to proceed thereon according to law.