
    Bean v. Briggs & Felthouser.
    An instrument in the form following: “ Certificate. Illinois Phoenix Bank, Chicago, Sept. 22, 1854. Briggs & Felthouser have deposited in this bank $462.50 to the order of themselves, payable two,months afterdate, payable to their order, on return of this certificate, at interest at six per cent. $426.50. M. Roe & Co., Cashier,” is a negotiable instrument. And where the payees of such an instrument, transfer the same by blank indorsement, they are liable on the indorsement.
    A blank indorsement creates the same liability from the indorser to the in-dorsee, as if it was Ml, giving the holder full power to demand payment, or to make it payable IPkis pleasure, to himself) or to any other person, on his order.
    
      Appeal from the Dubuque District Court.
    
    This suit was brought on the following instrument:
    “ Certificate. Illinois Phoenix Panic.
    
    “ Chicago, Sept. 22,1854.
    “ Briggs and Felthouser have deposited in this bank four hundred and sixty-two 50-100 dollars, to the order of themselves, payable two months after date, payable to their order, on return of this certificate, at interest at six per cent. $462.50-100. M. Bob & Co., Cashier.”
    which was indorsed by the said Briggs & Felthouser in blank. The plaintiff in his petition, alleges the deposit and the receipt of the said certificate by the defendants, and that before it came due, it was, for value received, transferred and assigned to bim by said defendants, by a blank indorsement ; tbat at maturity, it was presented for payment at tbe said Phoenix Bank; tbat payment was refused, and tbe same was protested, of wbicb refusal and protest tbe defendants were duly notified; and tbat they bave refused and neglected to pay tbe same. To tbis petition, there was a demurrer, alleging tbe following causes: 1st. Tbat tbe instrument is not negotiable, and tbe defendants by indorsing tbe same, incurred no liability; 2d. Tbat tbe petition alleges a mere in-dorsement of tbe instrument in blank, but does not claim a guaranty by defendants; 3d. Tbat tbe instrument declared upon, does not establish a liability against defendants. Tbis demurrer was sustained, and tbe suit dismissed. From tbis judgment tbe plaintiff appeals. .
    
      Wiltse-S Blaichly, for tbe appellants.
    
      Ben. M. Samuels, for tbe appellee.
   Wright, C. J.

Two questions are presented for our consideration: First. Is tbis instrument negotiable? Second. Are defendants liable on their blank indorsement ? And both these questions must be answered in tbe affirmative.

We are aware tbat tbe authorities are conflicting as to tbe negotiable character of such instruments. In the case of Patterson v. Poindexter, 6 Watts & Sergeant, 227, it was decided tbat an instrument very similar in its phraseology to tbe one Under consideration, was not negotiable. In Kilgore v. Bulkley, 14 Conn. 363, tbe instrument declared upon, was in the following form:

“$10,608.75. Chelsea Bahk, July 6,1839.
“ I do hereby certify tbat David E. Wheeler, Robert S-Taylor, and Noah Bulkley, bave deposited in tbis bank, tbe sum of $10,608.75, payable on tbe first day of December next, to their order, and on tbe return of tbis certificate.
“ D. E. Wheelee, President^

And this was held to be a bill of exchange, imposing on the parties the ordinary liabilities attached to that kind of paper.

In Bank of Orleans v. Merrill, Priest & Co., 2 Hill, 295, a certificate of deposit made by an association, payable to the order of a particular person, at a specified time, with interest, was held to be, in effect, a negotiable promissory note. In determining between the conflicting authorities, in the language of the note in 1 Amér. Lead. .Cases, 314, the test perhaps consists in the inquiry, whether the transaction is a deposit, or an immediate debt, and engagement to pay. Applying this test, what is there in this instrument, to make it a mere deposit, in the nature of a bailment. We can see nothing. But, on the other hand, it has all the requisites of a negotiable promissory note. It is conceded to have words of negotiability, in being made payable “ to the order of themselves,” and “to their order.” Story onPr. Notes, § 3. Then, again, it is a written instrument, for the payment of a fixed amount in money absolutely, and subject to no contingency, at a certain time, and it is conclusively certain who is to pay and be paid. These requisites make a good promissory note, provided’5,there!'is also what amounts, in legal effect, to a promise to pay. Story on Pr. Notes, § 11, et seq. For this purpose, no particular form of words is necessary, nor need there be a promise in express language ; but it is sufficient, if an undertaking to pay is implied on the face of the note. 1 Amer. Lead. Cases, 312. And so, an order or promise to deliver a certain sum of money to A., or to be accountable or responsible to A. for a certain sum of money, or that A. shall receive it from the maker, is a good promissory note. Story on Pr. Notes, § 12.

The usual express words, “ I promise to pay,” &c., it is true, are not contained in this instrument, but an 'undertaking to pay, is clearly implied, as contradistinguished from a mere acknowledgment of a deposit, in the nature of a bailment. That the sum is stipulated to draw interest, almost necessarily excludes the conclusion, that it was a bailment or simple deposit. Then, as to the promise, aside from the whole tenor of the instrument, we have the word “ payable ” used in two connections, relating to tbe time of payment, as also to whose order tbe money was to be paid. It is not said tbat tbis money is returnable, wbicb might imply an acknowledgment of a deposit or indebtment'; but tbat a certain sum is payable. So, also, tbe use of tbe negotiable words “to their order,” or “ order,” may well have effect in determining tbe character of tbe undertaking or engagement, and assist us in concluding .that tbis was a promissory note in legal effect. And, again, compare tbis instrument with tbe following, wbicb'have been held to be promissory notes: “ Due K. & K. $825, payable on demand, October 20,1821.” 10 Wend. 674. “Due J. J. F. $200, borrowed, October 21, 1886.” 2 Humph. 148. “ Good to E. C. or order, for $80, borrowed money.” 6 New H. 364. And see Fleming v. Burge, 6 Ala. 373; Hanon v. Dryan, 6 Dana, 341.

We conclude, therefore, tbat tbe rule recognized in tbe case in 14 Conn. 363, and like authorities, is tbe safer and . better one; and tbat thererynder, defendants are liable on tbis instrument in tbis action; to say nothing of their liability as immediate indorsers, if it was not negotiable.

On tbe second point, in view of tbe above, we need hardly say, tbat tbe blank indorsement creates tbe same liability from tbe indorser to tbe indorsee, as if it was full; giving tbe bolder full power to demand payment, or to make it payable at bis pleasure, to himself or to. any other-person, on bis order. Tbis is well settled, upon principle and. authority. Story on Pr. Notes, § 138.

Judgment reversed»  