Brummagim v. Tallant

By the Court, Sanderson, J. The only question which we deem it necessary to notice in this case relates to the time when the Statute of Limitations begins to run against an instrument in use among bankers, called a certificate of deposit. On the part of appellant it is claimed that a demand and refusal to pay is necessary in order to put the statute in motion, for the reason, as alleged, that until there has been a demand and refusal, there is no breach of the contract on the part of the banker, and consequently, until then, no right of action has accrued to the depositor.

It was held substantially in Welton v. Adams & Company, 4 Cal. 37, that a banker’s certificate contained all the essential and distinctive elements of a promissory note. Mr. Justice Heydenfeldt, delivering the opinion of the Court, said: “ The common use of this kind of security is of recent origin, and they have, therefore, not been made the subject of judicial decision, as far as I can discover. An examination into their specific character shows that, although differing in form from a promissory note, yet they have all its important incidents. Each contains a promise by one person to pay another person absolutely and unconditionally a certain sum of money, at a time specified therein. The rules of law, in reference to.all securities, ought to be applied according to the nature of the security, and not to be influenced by the name by which the-paper is commonly known. I have, therefore, no longer any doubt that these certificates of deposit must be, so far as negotiability is concerned, placed upon the same footing as promissory notes.”

Miller v. Austin et al., 13 How. U. S. 218, was an actiom by an indorsee against an indorser of a banker’s certificate off deposit, after demand and protest, as in case of a promissory-note. The action was brought in Ohio, where, as in this: State, it is provided by statute that all promissory notes draw» [506]for a sum certain, payable to any person or order, or to any person or his assigns, shall be negotiable by indorsement. Mr. Justice Catron, delivering the opinion of the Court, said : “ The established doctrine is, that a promise to deliver, or to be accountable for, so much money, is a good bill or note. Here the sum is certain and the promise direct. Every reason exists why the indorser of this paper should be held responsible for his indorsee, that can prevail in cases where the paper indorsed is in the ordinary form of a promissory note; and as such note, the State Courts generally have treated certificates of deposit payable to order; and the principles adopted by the State Courts in coming to this conclusion are fully sustained by the writers of treatises on bills and notes.”