Co. v. Chicago, etc. Ry. Co., 163 U. S. 564,581, will need to be passed over. The distinction is not new. It is explained in Whitney Arms Co. v. Barlow, 63 N. Y. 62. It is noticed, without any apparent appreciation of its effect, in McCor-mick v. Market Nat. Bank, 165 U. S, at p. 553. Lord Selborne, in Attorney-General v. Railway Co., 5 A pp. Cas. 473, 478, almost enforces the distinction. Another judge practically recognizes it in Seeber v. Comm. Nat Bank, 77 Fed. R 957, but he does not make the distinction plain, if he had it in mind.

13 Compare the cases cited in the preceding and the next note.

14 Allen v. Freedmen's Bank, 14 Fla. 418; Western Bank v. Mills, 7 Cush. 539; Richmond Bank v. Robinson, 42 Me. 489; Johnson v. Charlottesville Nat Bank, 3 Hughes, 657; & a, Fed. Cas. No. 7425; Whetstone v. Bank of Montgomery, 9

Ala. 875; Fridley v. Bo wen, 87 I11 151 (wrong). It is held that no recovery can be had if the parties are in pari delicto. Bank v. Robinson, 24 Me. 274; Phila. Loan Co. v. Towner, 13 Conn. 249. See also Weber v. Spokane Nat. Bank, 64 Fed. R 208, 29 U. S. App. 97.

15 Bond v. Central Bank, 2 Kelly, 92; Richmond Bank v. Robinson, 42 Me. 489; Pratt v. Short, 79 N. Y. 437; Rome Savings Bank v. Kramer, 102 N. Y. 331; St. Jos. Ins. Co. v. Hauck, 71 Mo. 465; Smith v. First Nat Bank, 45 Neb. 444; Noble v. Cornell, 1 Hilt 98; Bank of Middle-bury v. Bingham, 33 Vt 621; Richards v. Kountze, 4 Neb. 200; Walden Nat. Bank v. Birch, 130 N. Y. 221; Nat Pemberton Bank v. Porter, 125 Mass. 333; Atlas Nat Bank v. Savery, 127 Mass. 75; Prescott Nat. Bank v. Butler, 157 Masa 548; Merchants' Nat Bank v. Hanson, 33 Minn. 40; First Nat Bank v. Gilout compensation. But under the decisions of the Supreme Court of the United States the principle so often laid down in decisions, that the objection of ultra vires can only be urged by the government, is not a safe rule to follow. Where it is sought to rescind an ultra vires contract, or an illegal contract, whose illegality depends on an express rule of law, if the contract has been fully executed on both sides, and the only ground for rescission is that the act was either contrary to law or ultra vires in the proper sense, the law leaves the party where it finds him and denies a recovery.17 If a party seeks for equitable relief against such a contract, the law compels him to do equity by paying back what he has obtained, before granting him any relief.18 The presump" tion in all cases is that the corporate acts are within the corporate powers.19

There is a number of other cases, which might at a first glance seem to be opposed to this distinction, yet, if they are carefully examined, it will be seen they are correctly decided, since each case can be treated as one on the loan and not on the contract.16 But as the law stands, the safest rule to follow, where the contract is likely to meet the objection of being beyond the corporate power, is to sue in quasi-con-tract on the common count joined with a count on the contract. If for any reason that course is not safe, the cause of action, if the act be merely beyond the corporate power and not otherwise illegal, as has been heretofore pointed out, by the great weight of authority, with the exception of a purchase of stock, will be upheld, if from holding otherwise an injustice would result by a party obtaining a benefit withlilan, 72 Mo. 77; First Nat. Bank v. Smith, 8 S. Dak. 7; Warner v. De Witt Co. Bank, 4 Brad. 305; First Nat. Bank v. Elmore, 52 Iowa, 541; State Nat. Bank v. Flathers, 45 La. Ann. 75; Thornton v. Ex. Nat Bank, 71 Mo. 221; Graham v. National Bank, 5 Stew. 804; Oldham v. First Nat. Bank, 85 N. C. 240; Elmer v. Bank, 12 Kan. 238; Am. Nat. Bank v. Nat. Wall Paper Co., 77 Fed. R 85; First Nat. Bank v. Elevator Co., 10 S. Dak. 167; Nielsville Bank v. Tuthill, 4 Dak. 295; St. Paul Trust Co. v. Jenks, 57 Minn. 248; Bates v. State, 2 Ala. 451. See Sec. Sec. 181, 191, 338, post.

16 Gold Min. Co. v. National Bank, 96 U. S. 640; Wyman v. Citizens' Bank, 29 Fed. R. 734; Corcoran v. Batchelder, 147 Mass. 541. Some of these cases were where an express prohibition had been violated. The recovery was on the loan. The case of Workingmen's Banking Co. v. Rautenberg, 103 I11 460, could have been treated as one on the loan. In other words, it can be said that the suit is really on the loan, and the written contract is simply treated as evidence of the receipt of the money. The parties were not in pari delicto because in many instances the corporation was the party for whose benefit the statute was passed, just as, on the contrary, the borrower under an usurious contract with the bank is considered the one for whose benefit the statute was passed. The corporation was certainly in a better position than a man who had united with its officers to do an act prejudicial to it. These cases illustrate the proposition. Shoemaker v. Nat. Mechanics' Bank, Fed. Cas. No. 12,801; Mills Co. Nat. Bank v. Perry, 72 Iowa, 15; Portland Nat. Bank v. Scott, 20 Oreg. 421; O'Hare v. Second Nat. Bank, 77 Pa. 96; Rich v. State Nat. Bank, 7 Neb. 201; Norton v. Derry Nat. Bank, 61 N. H. 249; Thompson v. St. Nicholas Nat. Bank, 113 N. Y. 325; Thompson v. St. Nicholas Nat. Bank, 146 U. S. 240; Williams v. Am. Nat. Bank, 85 Fed, R 376, 56 U. S. App. 316.