2. Each judge of the supreme court who may be hereafter elected to office shall receive the sum of $500 per annum payable quarterly. Now if the statute is held void so far as it relates to the judges then in office, manifestly that is no reason for holding it void as to future judges. As to them it can never be claimed that the effect of the statute was to increase their salary or compensation during their term of office. That is self-evident.

It is claimed that the primary purpose of the act was to reimburse the judges for a part of their expenses, and to fix and limit the amount payable without any accounting or auditing, and that such an act is forbidden by the Constitution. It is true that such acts have been frequently passed and sustained. However, this case in no way relates to the right of judges who held office when the act was passed, and on that question it is needless for the court to express an opinion. As to the judges now in office, there is no ground for questioning the constitutional validity of the act.

This proceeding is not in the nature of an action against the state or the state auditor. It is an application by the state to determine the law for the state auditor, and to require him to perform a plain ministerial duty on which he has no discretion. It is a matter of public right and duty relating to the sovereignty of the state. The state auditor might put the state in a deplorable condition were it permissible for him to refuse a voucher to every state officer for his salary or allowance provided by law. No judge would care to hold office if he had to receive his monthly allowance at the end of a suit in the district court and an appeal to the supreme court, and then by a mandamus proceeding to compel payment.

In regard to the right of Justice Robinson to sit in the case, he holds it is a matter of manifest duty and necessity for one of the supreme court judges to sit in every case that comes before this court. Section 100 of the Constitution provides that in case a judge of the supreme court shall be in any way interested in a cause brought before said court, the remaining judges of said court shall call one of the district judges to sit with them on the trial of said cause. The Constitution does not authorize the supreme court judges to improvise a new supreme court composed entirely of district judges. At least one of the supreme court justices must sit in every case that comes before the

court. The case really presents no question of law. It is the plain ministerial duty of the state auditor to give each judge of the supreme court a voucher or warrant for his quarterly allowance accruing since January 1, 1917, as provided by chapter 82, Laws of 1907, and a peremptory mandamus be issued commanding him to give such voucher.

INTERNATIONAL HARVESTER COMPANY OF AMERICA, a Corporation, v. STATE BANK OF UPHAM, NORTH DAKOTA, a Corporation.

1. Unless its charter or the statute expressly permits it, a bank has not the power to become the obligator of another, except as it is necessary to dispose of its own paper and securities.

Bank - action against-defense - ultra vires-benefits received - proofburden of.

2. Even though a bank which asserts the defense of ultra vires has received benefits and the plaintiff may be allowed to recover the value thereof, the burden is on the plaintiff to plead and prove the fact.

Opinion filed January 29, 1918.

Action to recover upon the guaranty of a promissory note. Appeal from the District Court of McHenry County, Honorable A. G. Burr, Judge.

Judgment for defendant.

Plaintiff appeals.

Affirmed.

Greenleaf, Bradford, & Nash, for appellant.

"Prima facie acts and contracts of a corporation are valid, there being no presumption of excessive power attached to them, and parties seeking to avoid such acts or contracts because they are thought to be

beyond the scope of its powers must do so by an affirmative showing." The burden is upon the atacking party. 3 Enc. Ev. 632.

The contract of indorsement being in writing, consideration is presumed,-want of consideration is upon the party claiming it, to prove by a preponderance of the evidence. Comp. Laws 1913, § 5882.

The plea of ultra vires can never be set up where the party has received benefits under the contract. 2 Morse, Banks & Bkg. §§ 732, 741. "The burden of proof in any case is first to show that the act is ultra vires, and, if this is shown, the burden is on him who objects to the plea of ultra vires and wishes the court to hold that the contract is not void." 2 Morse, Banks & Bkg. § 741a.

D. J. O'Connell, for respondent.

The rule is generally accepted that a bank has not the power to become the guarantor of the obligations of another unless its charter or governing statute expressly permits it. Cottondale State Bank v. Oskamp Nolting Co. 64 Fla. 36, 59 So. 566, Ann. Cas. 1916D, 564; Seligman v. Charlottesville Nat. Bank, 3 Hughes, 647, Fed. Cas. No. 12,642; Thilmany v. Iowa Paper Bag Co. 108 Iowa, 333, 79 N. W. 68; Comp. Laws 1913, § 5150, subd. 8.

What is void ab initio cannot be made good by ratification or by any succession of renewals, and no performance on either side can give validity to an unlawful contract. 10 Cyc. 1146 F.

It is the obligation of everyone entering into contracts with a corporation to take notice of the legal limits of its powers. 10 Cyc. 1147.

It is wholly immaterial whether or not defendant benefited by the contract. First Nat. Bank v. Monroe, 135 Ga. 614, 32 L.R.A. (N.S.) 550, 69 S. E. 1123; Houghton v. First Nat. Bank, 26 Wis. 663, 7 Am. Rep. 107; Citizens Cent. Nat. Bank v. Appleton, 216 U. S. 196, 54 L. ed. 443, 30 Sup. Ct. Rep. 364.

The general rule that a written instrument imports a consideration is not applicable to the case at bar. The right of plaintiff to recover back such consideration would depend not on the contract of guaranty, but on the implied contract to recover only to the extent of the consideration received, and that must be pleaded and proved by the plaintiff. Appleton v. Citizens Cent. Nat. Bank, 190 N. Y. 417, 32 L.R.A. (N.S.) 543, 83 N. E. 470.

Defendant is not estopped to assert the defense of ultra vires. Plain

tiff has neither pleaded nor even attempted to prove an estoppel.

In any event such doctrine is not applicable to the case here. Sly v. Hunt, 159 Mass. 151, 21 L.R.A. 680, 38 Am. St. Rep. 403, 34 N. E. 187.

BRUCE, Ch. J. This is an action on a promissory note and is brought against the Upham State Bank as an indorsee.

The defense is contained in the paragraph of the answer which alleges that it, the State Bank of Upham, "shows to the court that the defendant corporation was not authorized by the law to guarantee the payment of any note except such notes as were the property of said defendant corporation, or such notes as were legally executed by said defendant corporation, and that if the said corporation defendant did perform or attempt to perform the acts alleged in paragraph 3 of said complaint, then in that case the said act or acts were and are ultra vires and void; that there was no legal consideration for said guaranty or attempt at guaranty, and the defendant corporation received no consideration or benefits therefrom; that said defendant corporation is prohibited by the laws of the state of North Dakota from performing the acts referred to in paragraph 3, and the performance of the same was and is void as against public policy."

This defense the trial court held to be conclusive and to have been proved, and, being of this opinion, rendered judgment for the defendant. From this judgment the plaintiff appeals.

The question is, Has a bank power to indorse and guarantee the payment of a note which it does not own? The plaintiff contends that a bank has the power to make contracts, and has such incidental power as shall be necessary to carry on its business and to protect its assets. Defendant maintains that a bank has the power to borrow money, and for that purpose to transfer its assets in shape of negotiable papers, and not otherwise.

We are of the opinion that the trial court was correct in its ruling, and that, unless its charter or the statute expressly permits it, a bank has not the power to become the obligator of another, except as it is necessary to dispose of its own paper and securities. See Cottondale State. Bank v. Oskamp Nolting Co. 64 Fla. 36, 59 So. 566, Ann. Cas. 1916D, 564; Seligman v. Charlottesville Nat. Bank, 3 Hughes, 647, Fed. Cas. No. 12,642; Thilmany v. Iowa Paper Bag Co. 108 Iowa, 333, 79 N.

W. 68; Norton v. Derry Nat. Bank, 61 N. H. 589, 60 Am. Rep. 334; 7 C. J. 595; 3 R. C. L. 425.

The reason for this rule is that a bank is authorized to lend its money, and not its credit, and, "if a bank could lend its credit as well as its money, it might, if it received compensation and was careful to put its name only to solid paper, make a great deal more than any lawful interest on its money would amount to. If not careful, the power would be the mother of panics, and if no compensation was received, there is the additional reason, if any is needed, that such a power is in derogation of the rights and interests of stockholders, and at all events could only be exercised with the consent of all. Indeed, lending credit is the exact opposite of lending money, which is the real business of a bank; for while the latter creates a liability in favor of the bank, the former gives rise to a liability of the bank to another." See 1 Morse, Banks & Bkg. 152; Cottondale State Bank v. Oskamp Nolting Co.

supra.

In North Dakota we find no such authority conferred either by statute or by the charter. On the other hand, subdivision 8 of § 5150 of the Compiled Laws of 1913, although it relates merely to loans dependent upon real estate security, seems to evidence a different public policy in its provision that, "in selling or disposing of such loans so made, no such association shall have power to guarantee the payment or collection thereof."

This leads us to the second point, and that is, that the contract of indorsement and guaranty involved is not void upon its face, and that the defense of ultra vires must not only be pleaded, but proved.

There appears to be no merit to this contention. In the first place the defendant did plead the ultra vires nature of the contract, even if such a plea were necessary, and on this we express no opinion. The plaintiff pleaded the execution of the note by one Furgeson, and the guaranty or attempted guaranty of the payment by the defendant through its cashier and the defendant pleaded that the act of the cashier did not bind it, for the reason that such act was ultra vires and prohibited by law, and that no benefit accrued therefrom to the defendant. The plaintiff made no reply to this defense, and the only evidence ffered by it was the note and the fact that it had not been paid. A guaranty such as that disclosed by the pleadings was certainly pre