29 Cal. 503 | Cal. | 1866
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»
In The Bank of Peru v. Farnsworth, 18 Ill. 563, and Laughlin v. Marshall, 19 Ill. 390, the Supreme Court of Illinois directly decided that the instruments under consideration were in fact and in law promissory notes for the payment of money.
To substantially the same effect are the following cases: Carey v. McDougald, 7 Ga. 84; Kilgore v. Bulkley, 14 Conn. 362; Bank of Orleans v. Merrill, 2 Hill, 295; Johnson v. Barney & Co., 1 Iowa, 531.
Citing some of the foregoing cases, Mr. Parsons, in his work on notes an'd bills (Vol. 1, p. 26), says: “ We think this instrument possesses all the requisites of a negotiable promissory note, and that seems to be the prevailing opinion.”
With the foregoing views we fully concur. The differences between a certificate of deposit and a promissory note are merely formal. In substance and legal effect the two instruments are the same;1 and the former, notwithstanding its name and the phraseology in which the consideration is expressed, must be regarded and treated as a promissory note payable on demand.
Such being the character of the instrument, the question as to when the Statute of Limitations begins to run is not debatable. It has been held invariably that the statute commences to run against a promissory note payable on demand from the date of the note, and that no special demand is necessary to put it
Judgment affirmed.