new creation. Coffey v. The National Bank of Missouri. See Grocers' National Bank v. Clark, 48 Barb. 26;* Thorp v. Wegefarth, 56 Penn. St. 82. 2. The court laid down a correct rule of damages. It is but plain justice that the plaintiff should have back his deposit in specie, or else its value in currency. The rule of damages in trover is the value of the converted property at the date of the conversion, with the interest thereon. The plaintiff was entitled to the marketable value of his coin at that time. This subject is discussed in The Bank of the State, etc., v. Burton, 27 Ind. 426. There the court say: "While we have two kinds of money, made by statute exact equivalents for the purposes of ordinary tender and payment, and yet of notoriously irregular values in commerce, results will now and then follow the application of the law which are not consonant with justice. Must it be so in this case? It has been often held, that, where the amount of debt has been ascertained, the courts cannot, in view of the act of Congress, recognize any difference between the gold dollar and the legal tender note of the denomination of one dollar as a means of tender or payment. But it does not follow that when the bailee of specific gold coin, to be redeliv ered in specie, sells the same for a premium, and fails to redeliver it on demand, he shall not answer in damages to the amount which he has realized by the conversion. That he should have the right to make a profit for himself by his own wrongful act is a proposition having no foundation in justice, and is not sanctioned by any principle of law." The case referred to was decided in accordance with the foregoing views, the court holding, that, when a bailee converted to his own use coin intrusted to his care, the recovery should be for the currency value of the coin. See also Frothingham v. Morse, 45 N. H. 545. In the case at bar the verdict of the jury established the fact that the plaintiff left with the defendant, or with the Bank * In this case it was held that a right of action against an officer of a State bank for fraudulent misapplication of the property of the bank was assignable and passed as assets from such State bank on its reorganization as a National bank by operation of Laws 1865, ch. 97, § 6, which provided that as soon as every State bank should receive the certificate of the Comptroller of the Currency authorizing it to commence the business of banking under the laws of the United States, all the assets, real and personal, of the said bank shall immediately, by act of law, and without any conveyance or transfer, be vested in nd become the property of the National Banking Association into which said bank shall have been converted." Matthews v. Skinker. of the State of Missouri - which, for the purposes of this suit, is the same thing. the amount of coin stated in his petition, as a special deposit, to be returned in specie on demand; that demand of it was duly made, and that the defendant neglected and refused to return the deposit upon such request. Such refusal was evidence of conversion, and, unexplained, was conclusive of the fact. There was no explanation, and the defendant is liable for the conversion, and, as already stated, the court gave the correct rule of damages applicable to the facts of the case. 3. The question as to the measure of diligence does not arise in the case. The bank does not put its defense upon the ground that the coin committed to its care was lost while in its custody, without fault or negligence on its part, or on the part of its officers. That is not its line of defense. It denies that it ever had possession of the coin, and insists that if it ever did have it the same was returned to the plaintiff. So the pleadings stand, and the case appears to have been tried upon that theory. The question, therefore, of diligence on the part of the bailee does not come up. It would seem somewhat absurd for a party to insist that he had kept with reasonable care, as a gratuitous bailee, and faithfully returned what never came to his possession. Some other objections of a technical character are made in the brief of the defendant's counsel, but it is not perceived that the court committed any error that would warrant a disturbance of the judgment. It will, therefore, be affirmed. The other judges concur. National bank MATTHEWS v. SKINKER. (62 Missouri, 329.) Taking security on real estate by, ultra vires. A National bank has no power to take a deed of trust or mortgage on real estate to secure a contemporaneous loan, and a sale under such deed or mortgage to satisfy the loan will be enjoined.* BILL ILL for an injunction to restrain the sale of real estate. opinion states the case. The * See Fowler v. Scully, post, and note. Matthews v. Skinker. Britton A. Hill, for plaintiffs in error. Noble & Orrick, for defendant in error. WAGNER, J. The error complained of in this case is the action of the court in rendering a perpetual injunction restraining the trustees from selling the plaintiff's property. From the record it appears that the plaintiff executed her note payable to Sterling Price & Co. for $15,000, due two years after date, and to secure payment of the note she made a deed of trust, bearing even date with the same, on certain real estate belonging to her. The note and deed of trust were delivered to Sterling Price & Co., who afterward transferred them to the Union National Bank of St. Louis, a banking institution organized under the act of Congress, to secure a loan for $15,000, advanced to Price & Co. by the bank. Price & Co. having failed to pay the money advanced on the note, and secured by the deed of trust, the trustee, at the request of the bank, advertised the property for sale, and the plaintiff filed her petition to enjoin the trustee and the bank from proceeding with the sale. Whether the deed of trust in the hands of the bank amounted to a valid security, which could be enforced in payment of the money advanced, depends upon the construction of the act of Congress providing for the formation of National Banking Associations. R. S. (U. S.), p. 998. By section 5136 of the Revised Statutes, authority is given to the banking associations "to exercise by its board of directors, or duly authorized officers or agents, subject to law, all such incidental powers as shall be necessary to carry on the business of banking, by discounting and negotiating promissory notes, drafts, bills of exchange and other evidences of debt; by receiving deposits; by buying and selling exchange, coin and bullion, by loaning money on personal security," etc. By section 5137 it is provided that: "A National Banking Association may purchase, hold and convey real estate for the following purposes, and for no other: First, such as shall be necessary for its immediate accommodation in the transaction of its business. Second, such as shall be mortgaged to it in good faith by way of security for debts previously contracted. Third, such as shall be conveyed to it in satisfaction of debts previously contracted in the course of its dealings. Fourth, such as it shall purchase at sales under judgments, decrees or mortgages held by the association, or shall purchase to secure debts due to it." Matthews v. Skinker. The act, as will be thus seen, gives the association power to loan money on personal security, and to purchase, hold and convey real estate in certain specified cases. The general principles defining the extent and mode of exercise of corporate powers are well settled and have often been passed upon by this court. Corporations have only such powers as are specially given by their charters, or are necessary to carry into effect some specified power. St. Louis v. Russell, 9 Mo. 507; Blair v. Perpetual Ins. Co., 10 id. 559; Ruggles v. Collier, 43 id. 353. They must act strictly within the scope of the powers conferred on them by the act calling them into being; and where a grant of power from the Legislature is relied on, the mode prescribed in that grant for doing any particular thing must be pursued according to the law creating them. Han. & St. Joe R. R. Co. v. Marion Co., 36 Mo. 294. The distinction between natural persons and corporations is, that while the former may make any contract not prohibited by law or against public policy, the latter can exercise no powers not expressly conferred on them by their charters. Bank of Louisville v. Young, 37 id. 398. In Great Eastern Railway v. Turner, L. R., 8 Ch. App. 152, Lord Chancellor SELBORNE gave a brief and comprehensive statement of the law applicable to questions of corporate powers. He said: "The company is a mere abstraction of law. All that it does, all that the law imputes to it as its act, must be that which can be legally done within the powers vested in it by law. Consequently an act, which is ultra vires, and unauthorized, is not an act of the company, in such a sense, as that the consent of the company to that act can be pleaded." As this case depends upon the interpretation of a National statute we may refer to some of the cases in the United States Supreme Court to see what view that tribunal has taken of the law construing the powers of corporations. In The Bank of the U. S. v. Dandridge, 12 Wheat. 64, the rule is stated to be that "whatever may be the implied powers of aggregate corporations by the common law, and the modes by which these powers are to be carried into operation, corporations created by statute must depend, both for their powers and the mode of exercising them, upon the construction of the statute itself." In Head v. Providence Ins. Co., 2 Cranch, 127, Chief Justice MARSHALL defines the powers and limitations of statutory corporations with great clearness as follows: "Without ascribing to this Matthews v. Skinker. body, which in its corporate capacity is the mere creature of the act to which it owes its existence, all the qualities and disabilities annexed by the common law to ancient institutions of this sort, it may be correctly said to be precisely what the incorporating act has made it; to derive all its powers from that act and to be capable of exerting its faculties only in the manner the act authorizes." Judge STRONG, now of the Supreme Court of the United States, in delivering the opinion of the Pennsylvania court, in a case where the National Banking Law was directly brought in question, said: "The bank is a creature of the act, dependent on it for all its powers, and controlled by all the restrictions which the act imposes." Venango Nat. Bank v. Taylor, 56 Penn. St. 15 (post). In all the cases where questions have been raised respecting the powers and liabilities of National banks, it has been invariably held that the banks have only the powers conferred upon them in the act providing for their formation. That from that act they derive their sole authority, and that they must be strictly governed by it and kept within the line of its limitations. In Wiley v• The First Nat. Bank of Brattleboro, 47 Vt. 546; S. C., 19 Am. Rep. 122 (post), it was decided, that the taking of special deposits, to keep merely for the accommodation of the depositor, was not within the authorized business of the banks organized under the act of Congress, and that the cashiers of such banks had no power to bind them on any express contract accompanying, or on any implied contract arising out of such taking. So, in a recent case in Maryland (Weckler v. The First Nat. Bank of Hagerstown, 42 Md. 581 [ante, p. 533]), it was held that in the act authorizing the incorporation of National banking associations, the kind of banking was limited and defined, and as the act contained no grant of power to engage in bond-brokerage, it was, therefore, prohibited to the banks, and that it was not necessary to the purpose of their existence, or in any sense incidental to the business of banking. It was, accordingly, decided in an action of deceit against a National bank, seeking to recover damages for the alleged fraudulent representations of its tellers made in the sale to the plaintiff of certain railroad bonds, that the business of selling bonds on commission was not within the scope of the powers of National banking associations, and that the bank could not, under any circumstances, carry it on, and being thus beyond its corporate |