258 HARVARD LAW REVIEW. court was of opinion that the contract was in excess of the defend- ant's corporate powers. But Mr. Justice Campbell is careful to observe that the court abstains from pronouncing any opinion upon the problem which would have arisen had the plaintiff been the vendor of the steamboat or an assignee of the vendor's in- terest. In other words, the liability of the defendant in a suit by the vendor in disaffirmance of the contract is not discussed. The case is not, therefore, an illustration of the "ancient doctrine." In the second of the two cases an insurance company, prohibited from discounting notes or engaging in the business of banking, never- theless lent money upon promissory note secured by a pledge of corporate stock as collateral. In an action brought by the corpo- ration as payee of the note, it was held that the action could not be maintained. There is here no decision to the effect that the plaintiff was without remedy. The right of recovery independently of contract is not negatived. Indeed, as is v.-ell known, another of these Utica Insurance Cases,^ reported in the same volume of Wendell, (and cited, by the way, by Judge Thompson,) contains the remark of Chief Justice Savage to the effect that, though a pro- hibited security taken by the corporation is void, the plaintiff may nevertheless recover on the count for money lent. The soundness of this distinction between the validity of the security and of the contract of loan may be open to question ;2 but, in any event, the cases are not authorities for the proposition in support of which they are cited. While these cases are the only ones stated at length in the text as illustrations of the ancient doctrine, several others which deserve attention are cited in the notes. The most important of these are the decisions of Mr. Justice Gray in the Supreme Court of Massachusetts, and subsequently in the Su- preme Court of the United States. These cases — Davis v. R. R. Co.^ and Central Transportation Co. v. Pullman's Palace Car Co.* — were both actions based on contracts which the court treated as unauthorized. They are not in any sense ancient cases, the former having been decided in 1881, and the later in 1890. In the earUer case nothing in money or property appeared to have passed from plaintiff to defendant, so that the right of recovery in disaffirmance ^ Utica Ins. Co. v, Cadwell^ 3 Wend. 296. 2 See remarks of Selden, J., in Tracy v. Talmage, 14 N. Y. 162; Keener on Quasi Contracts, p. 272. 8 Davis V. Old Colony R. R. Co., 131 Mass. 258.
- Central Transportation Co. v. Pullman's Palace Car Co., 139 U. S. 24.
