Darden v. Banks ( 1857 )

By the Court.

Benning, J.

delivering the opinion.

Were the certificates of deposit within the second section of the Act of 1837, to make penal the issuing &c. of bank bills &c., payable at more than three days after date, or payable in any other manner, or with any other thing than gold or silver coin? if they were, there can be little doubt that the demurrer was properly sustained. Cobb Dig., 102.

The second section of the act is as follows: the parts that, in the opinion of this Court., are to be implied, being put in brackets.

“From and after the passage of this act, it shall not be lawful for any bank or other corporation in this State,, or any President, Cashier, Teller, Clerk or any other officer or agent of any bank or other corporation in this State or elsewhere, or for any person or persons acting as an officer or officers, agent or agents, of any bank or other corporation in this State or elsewhere, to pay away or tender in payment, emit, issue, pass or circulate any bank bill, note, ticket, check, draft, receipt, instrument under seal, or chose in action, intended, fitted, or designed for circulation, instead or in character of either.” [That is, or chose in action, intended, fitted, or designed for circulation instead or in character of a bank-bill, note, ticket, check, draft, receipt, or instrument under seal,] “or” .[to pay away &c.,] “any promise, to pay or to do anything whatever, in writing, to be used, or intended to be used, as paper money, which [bank bill, note, ticket, check, draft, receipt, instrument under seal, or chose in action, or promises to pay or to do anything whatever, in writing,] “may be payable or redeemable in any other manner, or in any other thing than with gold and silver coin, at the standard value thereof, according to the laws of the land, under the penalty of one thousand dollars for each and every violation of any of the provisions or true intent and meaning of this act.”

Any chose in action that is intended, fitted, or designed, for circulation, instead, or in character, of a “bank bill, note, ticket, check, draft, receipt, or instrument under seal,” which chose in action, may be payable “in any other manner, or in any other thing than with gold and silver coin,” is therefore within this section.

A chose in action made by a bank, that is negotiable, is fitted, if not intended and designed for circulation, and for circulation in the stead of, or in the character of, a bank bill, note, draft, &c., made by the bank. Especially is this so, if the chose in action be, in every essential particular, nothing but a “note” of the bank.

And such a chose in action, if payable in “current notes,” is'payable in “another manner,” and in “another thing than with gold and silver coin.”

Therefore such a chose in action is within the section.

But the certificates were such choses in action; they were negotiable, being made payable to the order of D. McDougald. They were, in every essential particular, but the promissory notes of the bank; they contained a consideration and a promise; they were payable in “current notes.”

We think, therefore, that they were within the section, and consequently, that the judgment of the Court below, sustaining the demurrer, was right.

Judgment affirmed.