On Motion for Rehearing.
Stayton, Associate Justice.—In the examination of this case, although not cited in the brief of counsel, the cases of The National Bank v. Boyd, 44 Md., 48, and The Merchants’ National Bank, etc., v. Hall, 18 Hun (Sup. Ct. N. Y.), 176, with many other cases, were carefully examined, and there is nothing in either of them in the slightest degree in conflict with the principles announced in this case.
The question involved in the first of these cases was as to the liability of the bank for the value of certain bonds deposited with it by Boyd, as collateral security for a current indebtedness, which was subsequently satisfied in full, after which, the bonds still remaining in the custody of the bank, they were stolen from the bank through its negligence.
It was held that the bank was responsible; that the bailment was not gratuitous. If, however, it had been wholly gratuitous, the same result would have followed, if it appeared that the bailee had not exercised such care as the law exacts of such bailees. The case involved no question similar to that involved in the present.
In the last case named, Mrs. Hall, who was the owner of the certificate of stock, pledged it to the bank as a collateral security; “ as security for the payment of any demands the Merchants’ National Bank may, from time to time, have or hold against Edwin W. Hall,” who was her husband.
The pledge was made by the owner, and its validity was in no way questioned; and the sole question in the case was as to whether the pledge would cover debts contracted with the bank by the husband prior to the pledge, as well as those contracted afterwards. The court held that it was a valid and subsisting security for both classes of debts, and no question arose similar to the one involved in this case.
In the case before us, no pledge valid, except by force of a rule applicable to negotiable paper alone, was ever made. It was in fraud of the right of the wife, who was the real owner, and it could only be protected when, under the rules of the law merchant, the *374appellant showed itself, as against the true owner, entitled to protection. It made no such case by pleading and proof, the bond being the separate property of Mrs. Turnley.
The rules laid down in the other cases cited in favor of the motion for rehearing are all cases in which collateral securities had been given by the owner of them, with view to a future course of credit based thereon, and in such cases it is held that so long as they remain in the hands of the pledgee, if, on the faith of them, advances are made, they will be bound, as will be their owner. The case of Atwood v. Crowdie, 1 Starkie, 484, goes to the point involved in this case, i. e., that the lien was divested when the pledgor owed no debt to the pledgee, and that upon the accruing of fresh indebtedness a lien on the paper deposited by the owner would revest in accordance with the agreement and understanding of the parties, even though such fresh indebtedness accrued after the maturity of the paper held as a collateral. But there is no question as to what would have been the right of a person situated as was Mrs. Turnley in the case.
We know of no case in which a judgment has been reversed and the cause remanded for the sole purpose of enabling the appellant to state and prove on another trial a case which had not been stated and proved on a former trial. This case comes up after a trial before a jury, the record containing a statement of the facts proved.
We cannot know upon what theory of the law applicable to the case the judge on the trial of the cause gave the charge complained of, nor is it necessary that we should know; it is enough that, on the pleadings and proof, no injury could have resulted to the appellant from the charge given.
The motion for rehearing is overruled.
Overruled.
[Opinion delivered March 25, 1884.]