Baltimore and Ohio Railroad Company v. Wilkens. Wingate, 3 Allen, 103, in the case of The Loon, 7 Blatchf. C. C. 244, in Fellows v. Steamer Powell and Owners, 16 La. Ann. 316, in Dean v. King, 22 Ohio St. 118, and in Louisiana National Bank of New Orleans v. Laveille, 52 Mo. 380. We have in fact been referred to no case either in this country or in England (nor have we found any) in which a contrary decision has been made where the question was necessarily and directly raised for adjudication. We take it, therefore, that this doctrine is too well grounded in the commercial jurisprudence of both countries, to be longer open to question or doubt. Nor have we any difficulty in applying that doctrine to the instruments before us in this case. A bill of lading is a very ancient but not exclusively a sea document. It has been long used in both countries by carrying companies in transportation on lakes and rivers by steamboats, as well as sailing vessels, and on canals, and in all such cases it has been denominated and treated as a commercial instrument. In later times similar documents have been commonly if not universally used by railway companies in land carriage. What good reason exists why this principle should not apply to them, as well as to bills of lading used in shipping? We see none. On the contrary, are there not much stronger reasons for its application to this class of documents? The master of a ship is necessarily clothed with a real as well as an apparent authority, much more extensive than belongs to the station agents of a railroad company. His control over the vessel, his power to make contracts respecting it, his discretion in the use and management of it for the benefit of his owners, on the high seas and in distant ports, reach far beyond those of the latter. A bill of lading signed by him and forwarded by mail oftentimes arrives at the port of destination months before the vessel and cargo, and the necessities as well as the convenience of commercial transactions, requiring its transfer, and advances on the faith of it, are much stronger than can possibly exist in dealing with similar instruments in railway transportation. In the latter but a few days usually intervene between the arrival of the bill of lading by mail, and the goods by the cars, and besides this, the telegraph is at hand affording to any one, asked to make advances on the faith of such documents, easy and speedy means of ascertaining whether the goods have been in fact laden in the cars or received at the depot of shipment or not. If, therefore, there be any good reason for exempting the owner of Baltimore and Ohio Railroad Company v. Wilkens. a vessel from responsibility for a bill of lading, false in this respect, signed by the master who is his agent, it must apply a fortiori to a railway company, with respect to similar acts of its station agents along its line of road. The rule has been applied to a receipt given by the agent of a wharfinger purporting to be for goods received at the wharf, when in fact they were not (Coleman v. Riches, 16 C. B. 104 [29 Eng. Law & Eq. 323]), and to receipts by a warehouseman for goods received at his warehouse. Second National Bank of Toledo v. Walbridge, 19 Ohio St. 419. The law in fact regards none of these instruments as negotiable, in the same sense in which a bill of exchange or a promissory note is so. They stand in the place of the goods they represent, and delivery or indorsement of them transfers the right of property in the goods, but not in the contract itself, so as to enable the indorsee to maintain at the common law an action on it in his own name. Thus in Thompson v. Dominy. 14 Mees. & Wels. 403, PARKE, B., said: "I have never heard it argued that a contract was transferable except by the law merchant, and there is nothing to show that a bill of lading is transferable under any custom of merchants;" and ALDERSON, B., added: "This is another instance of the confusion, as Lord ELLENBOROUGH in Waring v. Cox expresses it, which has arisen from similitudinous reasoning upon this subject.' Because in Lickbarrow v. Mason a bill of lading was held to be negotiable, it has been contended that that instrument possesses all the properties of a bill of exchange; but it would lead to absurdity to carry the doctrine to that length. The word 'negotiable' was not used in the sense in which it is used as applicable to a bill of exchange, but as passing the property in the goods only." Neither a railroad company nor a shipowner can be made liable in a case like this, upon any theory that these instruments are negotiable like bills of exchange. The liability in either case must depend on the question of the authority of the master or agent, to bind his principal by such acts. And as we have seen, it has been conclusively settled that no such authority exists, and that every one taking such instruments, or making advances on the faith of them, must be regarded as having notice of this want of authority, and acts at his own risk and on the responsibility of the master or agent alone for damages, as to the truthfulness of the statements appearing on the face of such documents, that the specified goods have been shipped or received at the depot for transportation. VOL. XXII. — 5 Baltimore and Ohio Railroad Company v. Wilkens. This well-settled principle we did not intend to disturb by our decision in the Parkersburg Stock Cases, 39 Md. 36; S. C., 17 Am. Rep. 540. These cases were carefully considered, and we there determined that the corporation was responsible for the acts of its treasurer and transfer agent, who surreptitiously and fraudulently issued, for his own benefit, false and forged certificates of stock of the company, and passed them off upon the commercial public who advanced money on pledges of them, and received, treated and acted upon them as genuine. This treasurer and transfer agent was made, by the company, the custodian of the ledger and other books relating exclusively to the ownership and transfer of its capital stock; he was authorized to prepare and countersign all certificates of stock to be issued, and to affix the company's seal (which was intrusted to his keeping and placed in his office) to all such certificates when signed by the president; he was, in fact, constituted the executive officer of the corporation with large discretionary powers, and was held out by the company to the public as the proper party from whom information as to the ownership of its stock was to be ascertained, and, in fact, as the source of information on that subject. In this way the public were, by the acts of the corporation, "exposed to the risks of fraudulent devices most dangerous because most difficult to detect." The authority of such an officer, both real and apparent, differs widely in its extent and scope from that of a mere station agent. The instruments issued in those cases are also of an entirely different character from those issued in this case. The distinction between them has been well stated in the brief of the appellant's counsel. Stock in corporations is intangible property. Stock certificates are not promises to do any thing with particular articles of property, but simply statements of ownership of shares or interests in property. It is the peculiar province of the treasurer and transfer agent, whom the company authorizes to give and make such statements, to make known to the commercial public dealing with the stock, the facts of such ownership and to whom the shares belong. But a bill of lading performs a very different function. It evidences and is a contract for the transportation of goods, and not an instrument intended to give information as to the ownership of intangible property. The agent who signs it is not held out to the public as authorized to make statements like those in a certificate of stock, but only to make contracts to carry visible and tangible property. The property which is thus stipulated to be carried being visible and Third National Bank of Baltimore v. Boyd. tangible, the fact whether it has been shipped or received at the depot for shipment or not can be determined and easily determined in a multitude of ways without applying to the agent. To the general doctrines on which our decision in these stock cases was based, there is and must be the exception of the recognized and well-settled principle of commercial law in reference to bills of lading which we have stated and which governs the present case. But even under the doctrine upon which the appellee's counsel rely that "if one of two innocent persons must suffer by a deceit, it is more consonant to reason that he who puts confidence in the deceiver should be the loser rather than a stranger," we do not clearly see how the appellees are strangers to this transaction, or how it can be said the company, more than they, put confidence in the deceiver, for whilst the deceiver was the company's agent, he was also their consignor with whom they had been doing business. If as agent he deceived the company, as their consignor with whom they were dealing, he equally deceived the appellees, and if they relied on him as an honest and trustworthy consignor and business correspondent and dealer, and were deceived, as they undoubtedly were by him, how can it be consonant with reason and justice for them to shift their loss arising from such confidence and trust upon those who were equally deceived by the same party? But, however this may be, we rest our decision upon the principle of commercial law as fully set forth in this opinion. Being satisfied the appellees are not entitled to recover upon the facts stated in the agreement upon which the case was submitted to the Superior Court, we shall reverse the judgment appealed from and give judgment for the appellant. Judgment reversed, and judgment for the appellant. THIRD NATIONAL Bank of BALTIMORE, appellant, v. BOYD. (44 Md. 47. National bank—power of, to take collateral security — deposits for safekeep. ing — measure of damages on loss of bonds. A national bank received from a customer bonds as collateral security for a debt then existing, and for future obligations. Afterward, and after the customer had paid his indebtedness, the bonds were stolen from the bank Third National Bank of Baltimore v. Boyd. Held, (1) that the bank was not a gratuitous bailee of such bonds; (2) that it had power to take the bonds as security for existing or future loans ; (8) that it was liable if it failed to exercise ordinary care and diligence in keeping the bonds; and (4) that the measure of damage was the value of the bonds when stolen and not when demand of them was made. A stocks and The verdict CTION by Boyd to recover the value of certain bonds. The opinion sufficiently states the case. and judgment were for the plaintiff, and the defendant appealed. Henry Stockbridge & Thomas Donaldson, for appellant. BARTOL, C. J. This suit was brought by the appellee, to recover the value of certain coupon bonds and stocks, that passed like bank notes, by delivery, which had been deposited by the plaintiff with the defendant, and which had been stolen from the defendant, in consequence of its alleged failure to exercise ordinary care in the custody of them. The case is one that, from its nature, depended at the trial below mainly on the questions of fact arising upon the evidence, with regard to the manner in which the bonds were lost, and the vigilance and care exercised by the bank in their custody. These were questions exclusively for the jury, whose province it was to decide whether there was any want or omission of ordinary care and diligence on the part of the bank, from which the loss of the plaintiff's property resulted. These questions were submitted to the jury by the Circuit Court, were decided by them against the bank, and we have no authority or power to review their verdict. All the prayers asked by the defendant, being either conceded by the plaintiff's counsel or granted by the Circuit Court except the tenth, the only matters presented for our consideration on this appeal arise upon the defendant's tenth prayer, which was refused; and the first, fourth, fifth, sixth and seventh prayers of the plaintiff, which were granted. It appears by the evidence that the appellant was a bank organized under "the National Currency Act of 1864." The firm of William A. Boyd & Co., of which the appellee was senior member. was a large customer of the bank, through which all the banking business of the firm was transacted, and from which it received accommodations as needed. On the 5th day of February, 1866, the |