26o' HARVARD LAW REVTEVA because it had been made with an artificial person having no power to make it." He then finds the first signs of the revolt of con- science in the " timid " suggestions from the bench that a recovery could be had by the aggrieved party, — not on the unauthorized contract, but in an action for money had and received. As an instance of the beginning of the reform he cites (among other cases) Pittsburgh, etc. R. R. Co. v Keokuk Bridge Co.,^ decided as late at 1888, and involving on this head only such principles as the court had recognized long before. " Gradually," proceeds Judge Thompson, *' the doctrine took a less technical and more intelligible form." He cites the case above referred to as one illustration of this advanced development, although he had already quoted it as an example of the beginning of reform. He then makes the following observation : " It cannot escape attention that the doctrine stated in this section was a great advance-over the original conception that, as in the case of any other illegal or im- moral contract, the law would not aid either party to an ultra vires contract, but would leave them in the condition where they had placed themselves, under the operation of the maxim in pari delicto potior est conditio defendentis. It was certainly a great stride to lay hold of the doctrine formulated by that great and just-minded judge. Lord Mansfield, that the party who had parted with his money under such a contract has a right of action on the principle of recovering money paid by mistake, or upon a consideration which has failed." This observation, with its closing reference to Moses v. Macfer- lan,2 at once brings into strong relief the assertion hazarded above, that the so called "modern doctrine" is in fact the doctrine to which the Supreme Court of the United States and certain other tribunals have adhered from the beginning. This was the third point proposed for examination. The assertion is really a corollary to the proposition that the "ancient doctrine " was never seriously put forth by any court. An examination of the opinions of Mr. Justice Gray in Davis v. Old Colony R. R. Co.,^ and in Central Transportation Co. v. Pullman's Palace Car Co.,^will,it is submitted, make it clear that the position of these courts to-day is not incon- sistent with that of Mr. Justice Campbell some forty years ago.* It is of course true that in modern times there has been a steady ^ 131 U. S. 371. ^2 Burr. 1005. ^ Supra,
- Pearce v. R.R. G, 21 How. 441.
