4 Union Trust Co. v. Illinois Midland Co., 117 U. S. 434; Bank v. Matthews, 98 U. a 621; Volz v. National Bank, 158 III 532; Anderson v. First Nat Bank. 67 N. W. R,

821; First Nat. Bank v. Smith, 65 N. W. R 437; Ayres Co. v. Dorsey Co., 70 N. W. R. 1ll; Town Council v. Union Nat. Bank, 22 S. R 291; Cameron v. First Nat. Bank, 34 S. W. R 178; Utica Ins. Co. v. Scott, 19 Johns. 1; Barrow v. Bank of La., 2 La. Ann. 453; Mt. Vernon Bank v. Porter, 52 Mo. App. 244; Sioux Falls Bank v. First Nat. Bank, 6 Dak. 113; Northern Bank v. Zipp, 28 111. 180; Foster v. Essex Bank, 17 Mass. 479; Safford v. Wyckoff, 4 Hill, 472; Tootle v. First Nat. Bank. 6 Wash. 181; Smith v. Philadelphia Bank, 34 Leg. Int. 86; Williams v. American Nat. Bank, 85 Fed. R 376. 5 Pittsburgh Ry. Co. v. Keokuk

Bridge, 131 U. S. 371, 389; Whitney Arms Co. v. Barlow, 63 N. Y. 62; Pratt v. Short, 79 N. Y. 437; Ward v. Johnson, 95 111. 215; Memphis Ry. Co. v. Dow, 22 Blatch. 48; Holt v. Winfield Bank, 25 Fed. R 812; Grant v. Coal Co., 80 Pa. 208; First Nat. Bank v. Stewart, 107 U. S. 678; Sieber v. Com. Nat. Bank, 77 Fed. R 957.

6 Compare Sec. 25, ante, and Louisiana v. Wood, 102 U. S. 294.

7 Ridgway Co. v. McCarthay, 96 U. S. 258, 267; San Antonio v. Me-haffy, 96 U. S. 312, 315; Whitney Arms Co. v. Barlow, 63 N. Y. 62. This last case contains the best statement of the principle in any of the decisions.

A very able court of appeal held that a bank by an ultra vires transaction having acquired stock in another national bank could be held for the statutory liability upon the stock.10 The decision was perfectly sound, because, the ultra vires transaction having been consummated, it was closed; neither party could obtain relief, and the bank, being able to hold the stock, could be held as a stockholder, because the statute makes no exceptions, and the statute imposing the stock liability creates a quasi-contract, to which the defense of ultra vires is wholly immaterial. But in California Bank v. Kennedy, 167 U. S. 362, the court, reversing 101 Cal. 495, where there is an able opinion, held that there was no liability upon the stock.11 This decision can only be justified on the erroneous theory that no title in the stock passed, and the transferror could be held, and the bank had obtained nothing. But the court had held over and over again that such a transaction could be ratified. It surely would not undertake to hold the ridiculous doctrine that the bank could not confer title by a sale. The bank was claiming the stock, but was denying its liability as a stockholder. The court also overlooked the fact that the ultra vires transaction having been consummated, neither party was entitled to relief, and the further fact that the statutory liability was not imposed by contract, but by statute, and was a quasi-contract. In this opinion the court quotes, with a seeming lack of comprehension, the language of Selwyn, L. J., in Royal Bank's Case, L. R. 4 Ch. 252, 261: "If it could have been shown that it was an act absolutely prohibited, ... a different question would have arisen." The distinction was brought to the court's attention, but in both the two cases stated from our highest court the judges seem not to have understood the two meanings of the phrase ultra vires, nor to have comprehended the essential and fundamental difference between a contract and a quasi-contract.12 If the distinction here made is applied, it will explain a greater part of the decisions of courts as to ultra vires banking transactions;,3 but as many of the cases stand, recognizing all acts, whether ultra vires in the proper sense, or forbidden by other rules of law, as on the same level, the dicta of the decisions are hopelessly irreconcilable, and the confusion is rapidly growing worse. The actual decisions are not in conflict, except the decisions pointed out in this section upon ultra vires purchases of stock. There is a large number of cases in addition to those cited in the preceding notes, where, the act being forbidden by a statute or an express rule of law of general application, the contract sought to be created has been held wholly void, and the party seeking recovery, if he is entitled to recover, has been relegated to quasi-contract for relief.14 There are numerous other cases where the contract was merely in excess of the corporate powers, though otherwise innocent, where the contract has been enforced.15

8 See note 18 to this section.

9 Logan Co. Nat Bank v. Town-send, 139 U. S 67. See First Nat. Bank v. Anderson, 172 U. S. 573.

10 First Nat Bank v. Hawkins, 79 Fed. R. 61, reversed in the Supreme Court of the United States in First

Nat Bank v. Hawkins, 174 U. S. 364. But see McDonald v. Williams, 174 U. S. 397, where the court seems to recognize the distinction of the text See also Goodland v. Bank of Darlington, 74 Mo. App. 365.

111 It should be noted that Judge Harlan dissented. It is unfortunate that he wrote no opinion. If a lawyer will compare the first case in note 10, supra, with this California Bank case, he will notice the difference between a judge who is an accurate and scientific lawyer, and another judge, whose life having been passed in other distracting pursuits, does not bring to the service of the law that undivided attention which this most difficult of all human sciences demands. No man can be a lawyer in the intervals of being something else. It was said of Lord Brougham that "he knew a little of everything, even of law."

12 The language of the decisions of the United States Supreme Court upon this question is a hopeless muddle. Since that court rarely expressly overrules itself, the practitioner is left struggling through a perfect " Serbonian bog." But it is confidently believed that if the distinction suggested in the text be applied, almost all the cases can be reconciled. General expressions in the form of those easy and fluent dicta, which give the profession so much trouble, will need to be disregarded, and the case decided confined strictly to the facts as they appear in the case Such general and sweeping declarations as are found in Union Pacifio Ry..