Page:Federal Reporter, 1st Series, Volume 7.djvu/159

 OBANGB NAT. BANK V. TBAVEK. 14? �First National: Bank, Portland, — one in 18 months and the �other 24 montl^s after date, Each of the notes contained the �following stipulation : �"This obligation is given for the beneflt of George W. Traver and Emma 8. Traver, and taken on the credit of the separate estate of Emma S. Traver and the propertj' of George W. Traver." �Before maturity the notes passed by indorsement into the hands of the plaintiff, who brought this suit in the state cir- cuit court against the husband and wife to subject certain real property, situated in this city and county, and now, and at the date of said notes, belonging to the latter "as her own statutory separate property," to the payment of the amount due thereon, alleging the insolvency of the husband. The defendants appeared and answered separately, and then eaused the suit to be removed to this court. The answer ut the wife, among other things, contains the following defence : �That the defendant, at the date of Baid notes, was the wife of her co* defendant, George W. Traver, and signed them " as aurety for husband only;" that no part of the consideration thereof was paid to her, or enured to her benefit, or that of her estate ; that said notes were given for a pre-exiBting indebtednesg incurred, " in part at least,'' prior to her mar> riage with said Traver. �To this defence the plaintiff demnrs for insufficiency. IJpon �the argument of this demiirrer, the question was also made �and submitted by counsel : �Can the plaintiff maintain this suit without having flrst complied with sections 8 and 9 of the act of October 24, 1864, (Or. Laws, 617,) concerning foreign corporations "transacting business in this statei" �Upon the argument of a demurrer, the court will, notwith- ing the insufficiency of the pleading demurred to, give judg- ment against the party whose pleading is flrst detective in substance, (1 Chit. Plead. 707;) and as it does not appear from the bill that the plaintiff has complied with such act, the point may be considered and decided upon this demurrer to the defeadant's plea. In support of the negative of this question counsel cite In rc Comstock, 3 Sawy. 218, and Sem- ple V. Bank of Bi,C. 5 Sawy. 88, in which this court held that a. foreign corporation is not authorized to transact business in this state without first appointing a resident agent, upon ��� �