THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Ohio.
On the 8th of February, 1840, the Mississippi Union Bank issued the following certificate:
MISSISSIPPI UNION BANK, }
Jackson, Miss. Feb. 8th, 1840. }
I hereby certify, that Hugh Short has deposited in this bank, payable 12 months from 1st May, 1839, with 5 per cent. interest till due, fifteen hundred dollars, for the use of Henry Miller, and payable only to his order, upon the return of this certificate.
$1500.
WM. P. GARYSON, Cashier.
Pay to George Lockwood or order.
HENRY MILLER,
Cincinnati, Ohio.
Pay Austen, Wilmerding & Co. or order, without recourse.
GEORGE LOCKWOOD.
On the 4th of May, 1840, L. V. Dixon, justice of the peace and ex offico notary-public, presented the paper declared on at the counter of the Mississippi Union Bank, at Jackson, and demanded of the teller payment in specie, or its equivalent, which that officer, after consultation with the other officers of the bank, refused; but offered to pay in the notes of the bank, which the notary would not accept. The defendant, Miller, was duly notified as indorser, by a written and printed notice, directed to him at Cincinnati, and deposited in the post-office in time for the first mail of the next day.
In July, 1847, Austen, Wilmerding & Co., brought an action against Miller in the Circuit Court of Ohio. The suit was brought against Miller as indorser, and the declaration contained three counts.
1st. Alleging it to be a promissory note of the Union Bank, payable to the order of Henry Miller, and by him indorsed to George Lockwood, who indorsed it to plaintiffs below.
2d. Alleging it to be a draft drawn by Henry Miller, on the Mississippi Union Bank, at Jackson, requesting the said bank to pay to George Lockwood, and by him indorsed to the plaintiffs below, and charging a due presentment for payment, and notice of non-payment.
3d. On a common count for money lent and advanced, paid, laid out, and expended, money had and received, and on an account stated.
The plea was non assumpsit.
In October, 1850, the cause came on for trial, when the jury found a verdict for the plaintiff for $2,468.86.
Upon the trial, the plaintiff offered the note in evidence, together with the protest, &c. Objection was taken, but the court overruled it and admitted the evidence. This was the subject of the first bill of exception.
The second exception was to the refusal of the court to grant certain prayers adked for by the defendant, of which it is only necessary to notice the following.
1st. That the paper offered in evidence is not negotiable instrument under the laws of Ohio, and cannot be sued on by the plaintiffs in the cause.
6th. That said paper offered in evidence is not a promissory note, nor is it a bill of exchange, but is a mere certificate, acknowledging the receipt and deposit of paper or obligations of some kind, which are payable twelve months after 1st May 1839, bearing interest at the rate of five per cent. till due.
Upon these exceptions the case came up to this court, and was argued by Mr. Fox, for the plaintiff in error, and by Mr. Chase and Mr. Rockwell, for the defendants in error.
Only those parts of the arguments will be noted, which bear upon the point decided by the court.
Mr. Fox. We maintain this is not a promissory note, as described in the declaration, so as to pass by indorsement, as a mercantile instrument. That it is not so considered in a mercantile sense, nor is it a promissory note under the statute of Ohio.
Under the statute of Ohio, (Swan's Stat. 587,) 'all bonds, promissory notes, bills of exchange, foreign and inland, drawn for any sum or sums of money certain, and made payable to any person or order, or to any person or bearer, or to any person or assigns, shall be negotiable by indorsement thereon; . . . but nothing in this section shall be construed to make negotiable any such bond, note, or bill of exchange, drawn to any person or persons alone, and not drawn payable to order, bearer, or assigns.' A check and certificate of deposit are not mentioned in this statute as being negotiable.
Under this statute, the Supreme Court of Ohio has decided that this identical paper is not a promissory note, negotiable under the laws of Ohio, as will be seen by reference to the Western Law Journal, vol. 4, p. 527.