83 Ala. 425 | Ala. | 1887
The action is brought by appellee, on a certificate of deposit in the following form:
“Certificate of deposit. Benero Bros., Bankers,
Opelika, Ala., August 6th, 1884.
“ T. E. Bagland has deposited in this bank one hundred dollars, payable to the order of self, on return of this certificate properly indorsed;” which was signed, “Benero Bros.”
The court charged the jury, that the paper sued on is negotiable, and governed by the law-merchant, and was neither subject to set-off by the makers, nor liable to garnishment at the instance of a creditor of the depositor, in the hands of the transferree for value before maturity, and without notice.
Though the bill of exception does not disclose any part of the evidence, the charge, having been actually given in reference to the particular paper, and excepted to as mistaking the law, is properly presented for revision. — Tharp v. State, 15 Ala. 749.
Though there are respectable authorities holding otherwise, it may be regarded as supported by the great weight of authority, that a certificate of deposit, possessing the essential elements — an acknowledgment of a present debt, and a promise to pay — is, in legal effect and operation, a promissory note. — Miller v. Austen, 13 How. 218; Hunt v. Divine, 37 Ill. 137; Drake v. Markle, 21 Ind. 433. A certificate of deposit may, or may not, be negotiable. Whether or not governed by the commercial law, depends upon the possession of the characteristics requisite to the negotiability of a promissory note, though these may be statutory. Under a statute of Indiana, which provided that “all promissory notes signed by any person who promises to pay money, or who acknowledges money to be due, shall be negotiable by indorsement thereon,” it was held that a certificate of deposit was within the statute, and was negotiable.' — Drake v. Markle, supra.
Section 2094 of the Code of 1876 provides: “Bills of exchange, and promissory notes payable in money, at a bank, or private banking-house, or at a certain place of payment therein designated, are governed by the commercial law.” Therefore, whether the certificate of deposit is governed by1 the commercial law, depends on the question, whether it is
The certificate of deposit, not being payable at a bank, or private banking-house, or certain place of payment therein designated, in the meaning of the statute, is subject to the operation of section 2100 of the Code, which provides: “All contracts and writings, except bills of exchange, and promissory notes payable in money at a bank Or private banking-house, and paper issued to circulate as money, are subject to all payments, sets — off, and discounts, had or possessed
Beversed and remanded.