Third National Bank of Baltimore v. Boyd.

officers to act for the bank in the transaction is not before us. 29 Md. 2, Rule 4.

With respect to the several prayers of the appellee which were granted by the Circuit Court, and referred to in the bill of exceptions, we do not understand that any objection is made to them by the appellant, so far as they instructed the jury upon the question of the degree of care which the appellant's officers were bound by law to exercise in the custody of the appellee's bonds. In this respect they do not differ from the prayers granted at the instance of the appellant.

By the appellee's first prayer, the jury were instructed that the defendant would be responsible if the jury found from the evidence that the bonds had been stolen, "in consequence of the failure on the part of the defendant to exercise such care and diligence in the custody or keeping of them as, at the time, banks of common prudence, in like situation and business, usually bestowed in the custody and keeping of similar property belonging to themselves; that the care and diligence ought to have been such as was properly adapted to the preservation and protection of said property, and to have been proportioned to the consequence likely to arise from any improvidence on the part of the defendant." No objection has been made, nor could any be justly urged against this proposition. The prayer further instructed the jury, that in determining whether or not such care and diligence were used, "the jury may take into consideration whether it was a proper precaution for the defendant to have had an inside watchman at night, and on Sundays, whether such watchman ought to have kept awake at night, and whether the bank ought ever to have been without an inside watchman at any part of the day on Sunday, and that they may take into consideration the nature and value of said bonds, their liability to loss, the temptation they offered to theft, the difficulty of recovering them if stolen, the situation of the building and vault, and the sufficiency of the safe in which the defendant kept them at the time they were stolen."

Exception has been taken to the last part of the prayer, because of the enumeration of certain questions, as proper to be considered by the jury, in determining whether such care and diligence had been used by the bank, as was defined in the prayer. But we find no error in this part of the instruction; the particular subjects of inquiry mentioned were proper for the consideration of the jury;

Third National Bank of Baltimore v. Boyd.

their province was not invaded, nor was there any thing to mislead them; they were not told that in any of the particulars mentioned, the evidence showed a want of due and ordinary care on the part of the bank; and by the appellee's seventh prayer they were instructed, "that it was a question to be determined by them from all the facts and circumstances in the case, whether there was or was not that degree of care and diligence used by the defendant, in the protection and preservation of the plaintiff's property, which is defined in the plaintiff's first prayer."

The degree of care and diligence required by the law was properly defined by the Circuit Court; the question, whether it had been exercised by the defendant, was fairly submitted to the jury upon all the facts and circumstances of the case. This was a question of fact, exclusively within the province of the jury to decide. We have no power to disturb their verdict, and we have refrained from stating the facts and circumstances showing the manner in which the most extraordinary and unforeseen robbery was committed upon the bank.

The only question left for us to consider is, as to the proper measure of damages. This was decided by the Circuit Court to be, "the value of the bonds at the time they were stolen." The appellant contends that this was error, and insists that the true measure is their value on the 9th day of September, 1872, when they were demanded by the appellee. It appears by the agreement of counsel that the bonds had slightly diminished in value between the time of the robbery and the time they were demanded. At the former date they were worth $25,911.25, and at the latter their value was $25,400.63.

In our opinion the rule laid down by the Circuit Court is correct. In a case of this kind the measure of damages is the value of the property lost; the only question is, at what time is this value to be computed? Its value not being fixed and permanent, but liable to fluctuate, the time fixed for ascertaining it may become of much importance, and has been the subject of considerable discussion in the courts, and the decisions are by no means uniform. In Maryland the measure of damages in trover is ordinarily the value of the property at the time of the conversion (Hepburn v. Sewell, 5 H. & J. 211; Stirling v. Garritee, 18 Md. 468) and we think the same. rule may, by analogy, be applied to the present case. Here the ground of the action is the alleged breach of the contract of bail

Third National Bank of Baltimore v. Boyd.

ment, by reason of the failure on the part of the bank to exercise due care in the custody of the bonds, whereby they were lost; the true measure of damages would seem to be their market value, computed at that time. This question arose in Maryland Marine Ins. Co. v. Dalrymple, 25 Md. 244. In that case there was a pledge or hypothecation of stock as collateral; the contract of bailment having been broken by the illegal sale of the stock by the bailee, the other party, being cognizant of the breach, waited for two years, and the stock having risen in the market, demanded the same, offering to redeem, and claimed that the value of the stock should be computed at the time of his demand. But it was held that the measure of damage was its value at the time of the breach.

Without repeating the reasons and authorities upon which that decision was placed, we refer to the opinion of the court at pages 305, 306, 307, 308.

In Maury and Osburn v. Coyle, 34 Md. 235, cited by the appellant, it was ruled that the plaintiff was entitled to recover the value of the bonds deposited, ascertained at the date they were demanded. But that case is not applicable here; there was no evidence of the time when they had been lost, or that they had changed in value; and the contract there sued on was not the same as this. In that case, by the contract of bailment, the bailee had the option to return the securities deposited, or their value in money on demand. In this case, the legal obligation of the bailee was to keep the bonds of the appellee safely, and to return them to him when the contract ended. Strictly, this obligation could not be discharged by the payment to the appellee of their value in money; after the bonds had been lost, and it had become impossible to return them, there was no necessity for a demand, and when made, it could have no significance or effect in determining the rights of the parties, these had become fixed when the breach occurred, by the loss of the bonds, and in our judgment, the proper measures of damages is their value computed at that time. Finding no error in the rulings of the Circuit Court, the judgment must be affirmed.

Judgment affirmed.

Magruder v. Colston.

MAGRUDER V. COLSTON.

(44 Maryland, 349.)

National bank — Liability of pledgee of stock.

Stock in a National bank was pledged to secure a debt, with power to the pledgee to sell it on default of payment. Held, that a sale by him pursuant to the power was not voidable as a fraud on creditors of the bank, though he sold because he believed the bank insolvent, and in order to escape personal liability as a stockholder.

Persons who hold stock of a National bank in pledge, the certificates of which stand on the books of the bank in the name of the pledgee, are, in contem. plation of the National Banking Act, stockholders, and so long as they thus hold the stock in pledge are responsible to the creditors of the bank in proportion to the amount so held.*

A

CTION by Magruder, as receiver of the Merchants' National

Bank, of Washington, against Colston and others, to recover, from the defendants, as stockholders of the said bank, the par value of stock in said bank. The opinion states the case.

The jury rendered a verdict for the defendants, and from the judgment entered thereon plaintiff appealed.

William M. Merrick, for appellant. The holder of stock, knowing a bank to be insolvent, for the purpose of escaping his responsibility to the creditors of the bank, cannot lawfully transfer his stock for nominal consideration to a man of straw, and thereby rid himself effectually of his obligation to contribute an amount equal to the value of his stock to satisfy the debts of the bank under the 12th section of the Banking Law.

Fraud vitiates every thing, as well an assignment of stock as any other act intended to prejudice the rights of innocent parties. Marcy v. Clark, 17 Mass. 334; Holyoke Bank v. Burnham et al., 11 Cush. 183 to 186; Roman v. Fry, 5 J. J. Marsh. 634; Moss v. Oakley, 2 Hill, 270; Adderly v. Storm, 6 id. 624 to 628; Hale v. Walker, 31 Iowa, 344, 354; Matter of the Empire City Bank, 18 N. Y. 223; Rosevelt v. Brown, 1 Kern. 148; Onslow v. Corrie, 2 Madd. 340; Ex parte De Pass, 5 Jurist (N. S.), 1193, 1194; Angell & Ames on Corporations, § 623; Crease et al. v. Babcock et al., 10 Metc. 547.

*See Wheelock v. Kost, ante, p. 406; Hale v. Walker, ante, p. 471.

Magruder v. Colston.

Charles Marshall, for appellees.

GRASON, J. The question presented by some of the prayers, as to the organization of the Mechanics' National Bank of Washington, having been abandoned by the counsel of the appellant, the questions before the court upon this appeal arise upon his third and fourth prayers, which were rejected by the court below, and the appellees' second prayer, which was granted. The record shows that, some time before the failure of the bank, the appellees, who were bankers and brokers in Baltimore city, lent to Bayne & Company eight thousand dollars, payable on call, and took from them as collateral security for repayment of the loan, one hundred shares of the stock of the Merchants' National Bank of Washington, fifty shares of which were in a certificate standing in the name of Oscar A. King, and indorsed in blank by him, and the remaining fifty shares in a certificate standing in the name of Bayne & Company, and indorsed in blank by them. The appellees held these two certificates until the 26th day of April, 1866, when having previously called upon Bayne & Co. for repayment of the loan, and they having made default and instructed the appellees to sell, the latter requested the bank to transfer the stock to them and to issue certificates to them in their own name for it. The bank transferred the fifty shares standing in King's name and issued the certificates therefor to the appellees, but refused to transfer the fifty shares standing in the name of Bayne & Company, because Bayne & Company were indebted to the bank. The appellees sold the whole of the stock to Colston on the 2d day of May, 1866, for one dollar, and delivered to him the certificate for the fifty shares originally standing in the name of King, as well as the certificate standing in the name of Bayne & Co., and the bank thereupon issued a new certificate to Colston in his own name for the fifty shares originally standing in King's name, and delivered it to him on the 2d day of May, the day before the bank failed, and while it was still open and doing business. The appellees proved that at the time of the sale they did not consider the stock worth any thing, and that they intended, when they made the sale to Colston, to avoid complication and difficulties, fearing that the bank, which they had heard was in difficulties, might prove insolvent. They further proved that Colston was not pecuniarily responsible for the amount of the par value of the stock so sold and transferred to