by John Marshall Harlan

“ Probably, according to a fair construction of the national bank act, the power is not expressly given to appellant to purchase and deal in bonds of the character in question; but neither is it expressly prohibited by the act to do so, and there is a proper and well-recognized difference between 'the case of an engagement made by a corporation to do an act expressly prohibited by its charter or some other law and a case where legislative power to do the act has not been granted.' See Hitchcock v. ”

“ Now, the contention of the bank if that the purchase of the bonds in question, at a named price, under an agreement to replace place them to the plaintiff at the same or a less price, upon the demand of the plaintiff, was not banking business in any proper or legitimate sense; certainly not of the kind it was authorized by the statute to conduct. ”

“ It is averred in the fifth paragraph of the answer that Barclay had no authority, right, or power to make, for or on account of defendant, the contract set out in the petition; that defendant had itself no right, power or authority to make it; and that it was a mere gambling transaction, a mere dealing in and betting upon the future value of the bonds, and unauthorized by the defendant's charter or by law. ”

“ The exemption or immunity thus specially set up in the court of original jurisdiction, and reasserted in the court of appeals of Kentucky, having been denied by the judgment, the authority of this court to re-examine that judgment, so far as it determines that no such exemption or immunity as that claimed by the bank, under the act of congress, exists, is entirely clear. ”

“ The result is, substantially, the same as if the plaintiff had tendered back the amount received from the bank and demanded a return of the bonds or their value; in which case it would have been liable for the value of the bonds, at least, at the time of the demand. It is unnecessary to discuss the conflicting decisions as to the general rule defining the proper measure of damages where personal property is wrongfully detained. ”