Cruikshank v. Comyns , 24 Ill. 602 ( 1860 )

Breese, J.

The record in this case shows a suit brought, and a recovery had, on the following paper :

$53.75.

Banking Office of Alexander Cruikshank, } Peru, 111., September 5th, 1859. )

Jas. Cummins, Esq., has deposited in this office the sum of fifty-three 75-100 dollars, currency, to the credit of himself, and subject to his order on return of this certificate, payable in like funds, with interest, at six per cent, per annum, if ten days’ notice is given.

E. GUNTHER, Teller.

The suit is in the name of James Comyns, and no proof that he is the person to whom and for whom the certificate was issued. The words are not idem sonrns, and therefore proof should have been made that they are one and the same person. It may be that the jury could infer that Comyns is the same name as Cummins, from the pronunciation.

There was no proof that a prior demand of the money, and an offer to surrender the certificate, had been made ten days before suit was brought, or that ten days’ notice was given that the money would be demanded.

It is the contract of the parties that this notice should be given, and no right to sue arose until such notice was given.

As to the objection that the certificate, signed by Gunther, teller, is not evidence against Cruikshank, we have to say, that it should have been proved that Gunther was teller of the bank, and Ms authority to issue such certificate would then be presumed.

The amount of the recovery is greater than the plaintiff would be entitled to, calculating interest upon the deposit for the whole time, up to the time of rendering the judgment. Six per cent, interest only could be claimed, but to recover that, ten days’ notice should have been given. The judgment is reversed, and the cause remanded.

Judgment reversed.