Bank of Orleans v. Merrill — 2 Hill & Den. 295

Majority

p. 295

Bank of Orleans vs. Merrill, president of the Clinton Bank.

Headnote

A certificate of deposit made by an association formed under the general banking law, payable to the order of a particular person six months after date, with interest, is in effect a negotiable promissory note ; and having been issued without the sanction of the comptroller, cannot form the basis of a right of action.

On demurrer. The Clinton Bank, an association formed under the general banking law, issued a certificate of deposit, payable to the order of S. Benedict at six months, with interest, of which the plaintiff was endorsee. The question raised by the pleadings was, whether an action could be maintained against the bank on this instrument

N. Hill, jr. for the defendant.

C. M. Jenkins, for the plaintiff.

The instrument in question is in effect a negotiable promissory note.^[1] We cannot sanction it as the basis of a right of recovery, without disregarding the provisions of the statute against the issue of a spurious and illegal currency. The case is within the principle of Safford v. Wyckoff, ( 1 Hill, 11 ,) and Smith & Warren v. Strong, (ante, p. 241.) The defendant must have judgment.

Ordered accordingly.

(a) (a) In Ellis and wife v. Mason, (1 Eng. Jurist, 380, Am. ed. Halst. & Voorh.) an instrument in the following form was held to be a promissory note, and to require a stamp “ 14 Feby. 1836. John Mason—Borrowed of Mary Ann Mason, his. sister, the sum of fourteen pounds in cash, as per loan, in promise of payment of which I am truly thankful for, and shall never be forgotten by me. John Mason, your affectionate brother. £14.”