
    George W. Howe v. Hartness, Hill & Co. and others.
    A certificate of deposit issued by a banking company for $4,000 in currency, payable, in like funds, to the order thereon of the depositor, with interest, is a negotiable promissory note, although the term currency was regarded at the time and place of the transaction as including the bank bills of sundry specie paying banks outside of the State of Ohio, as well as those of the same character within the State.
    Where such certificate was negotiated, two days after its date, to a party receiving it in good faith, for a valuable consideration, it will not be regarded as overdue, at the time. A reasonable time must have elapsed for the purpose of negotiation, or presentment for payment, before it will be regarded as overdue.
    The assignee, in such case, can enforce payment of the note by the maker, and the latter is, therefore, not liable to an attaching creditor of the depositor under the 205th section of the code.
    Stone v. Elliott, ante 252, approved and followed.
    Error to the court of common pleas of Cuyahoga county. Reserved in the district court.
    On the 12th of May, 1856, suit was commenced by the plaintiff against E. C. Markham, in the court of common pleas of Cuyahoga county. Markham, the defendant, was a nonresident of the State, and, upon proper application, a writ of attachment issued at the commencement of the suit, and garnishee process was on the same day, May 12th, served on Hartness, Hill & Co.
    The suit of the plaintiff was prosecuted to final judgment against Markham.
    During the pendency of the suit, Hartness, Hill & Co. answered, setting up the following state of facts: That the business hours of their banking house are from 9 o’clock, A. M., till 3 o’clock, P. M.; that process and notice of the attachment was not served on either of the partners until after 6 o’clock in the evening of May 12, 1856, and was then served upon them at their dwelling houses. That during the forenoon of the same day the firm had collected for F. C. Markham $4,000, for which, by his request, they issued a certificate in the following terms:
    “ Hartness, Hill & Co., Bankers.
    “ $4,000. Cleveland, Ohio, May 12, 1856.
    F. O. Markham has deposited in this bank four thousand dollars in currency, payable in like funds, to the order hereon of himself, with ints.
    No. 1351. Hartness, Hill & Co.”
    That this certificate, at the request of said Markham, was duly mailed by the firm, at Cleveland, on the day of its date during business hours, in an envelop, directed to said Markham, at Detroit, in the State of Michigan, where he then resided, and so passed out of their control. That the Cleveland mail for Detroit, at that time, closed at 6 o’clock P. M., and that by the usual course of the mail, said certificate was received at Detroit on the morning of the 13th of May. That on the morning of the 15th of May 1856, they received said certificate from the Peninsular Bank, located at Detroit, for payment; and that, when so presented for payment, it had been, and was, properly indorsed to said bank, and, as they believe, in the usual course of business, in good faith, and for good consideration; and that said bank was, and is the absolute owner and holder of the same; and that the respondents are legally liable to pay the amount thereof to said bank, according to its tenor. They deny having in their possession, or within their control, any other moneys, choses in action, or property of the said Markham ; and submit that the plaintiff is not entitled to subject the amount, for which said certificate was issued, to process of attachment, etc.
    The plaintiff, regarding this answer as unsatisfactory, after proceeding to judgment against Markham commenced the original action in this case, against Hartness, Hill & Co., under section 218 of the Code, making the Peninsular Bank also a party defendant. The petition and answers present an issue of fact, as to the indebtedness of the defendants, Hartness, Hill & Co., to the said Markham, at the time of service of process upon them in the attachment suit. This issue was submitted to the court, the intervention of a jury being waived. There was a special finding of facts by the court, as follows:
    1. That the plaintiff commenced his action against Frank C. Markham, and obtained his judgment therein in the manner and for the amount stated in the petition.
    2. That in said action, the defendants, Hartness, Hill & Co., as garnishees, made the answer copied into the petition, and that the facts therein stated are true.
    3. That the money collected by Hartness, Hill & Co., May 12, 1856, and represented by the certificate annexéd to said answer was, at the time of the collection thereof, the property of F. C. Markham.
    4. That defendants, Hartness, Hill & Co., issued to said Markham, on said 12th May, 1856, their certificate of deposit, in the words and figures following, to-wit:
    “Hartness, Hill & Co., Bankers,
    “ $4,000. Cleveland, Ohio, May 12, 1856.
    “ F. C. Markham, has deposited in this bank, four thousand dollars, in currency, payable in like funds, to the order hereon of himself, with ints. Hartness, Hill & Co.”
    “No. 1351.”
    —Which represents part and parcel of the collection so made.
    5. That the said F. C. Markham negotiated and transferred said certificate at noon, on the fourteenth day of May, 1856, to the defendant, the Peninsular Bank, for a valuable consideration, in the regular course of business, without notice by «aid bank, of the plaintiff’s attachment. .
    6. That the attachment proceedings were commenced, and the service thereof on said Hartness, Hill & Co. made, as stated in the petition of plaintiff, and the answer of said garnishees, as set forth in said petition.
    
      7. That on May 12, 1856, and during the month of May in that year, currency consisted of all such bank bills as were received and paid out by the banks in Cleveland. The paper issued by the State Bank of Indiana, by the banks of Kentucky and Virginia, by banks in Detroit, Michigan, in Canada, and in the State of New York, and in the Eastern States generally, was received and paid out, at that time, by the banks in Cleveland, and, with the paper of the Ohio banks, constituted what was then denominated currency.
    
    8. That none of this paper was received or regarded as currency, unless the banks issuing the same were, at the time, understood by the banks in Cleveland to be redeeming their circulation in coin.
    9. That, at the date of the certificate, 12th May, 1856, and during the month of May, the difference between currency and coin was from one half to one per cent., currency being worth that much less than coin.
    
    10. That drafts and inland bills, directed to and on banks, drawn by banks and bankers, were at that time usually made payable in currency, as was the certificate of deposit in this case, unless drawn upon a place like New York, where all money was reduced to a specie basis; or like Pittsburgh, where a separate currency and specie basis was recognized, in which case, they were drawn payable in currency, if such were the contract, otherwise, for so many dollars, without any other description.
    11. That the certificates of deposit and drafts were so drawn or made to preclude the holder from demanding coin in payment of the same.
    12. That certificates of the form used in this case are not, and were not, by the usage and practice of banks in Ohio, entitled to grace.
    On the facts so found, the court, as and for its conclusions of law, determined as follows:
    1. That if the process was served while the certificate was the property of the debtor, and he afterward negotiated it to a bona fide holder, it could not be held under the 205th section of the Code.
    
      2. That a deposit of the certificate in the postoffice at Cleveland, was a delivery to Markham, so as to make it his absolute property.
    3. That it was not due at delivery, or when negotiated to the Peninsular Bank, so as to enable any defense which the makers might have, to be set up against the holder. That a reasonable time must have elapsed for the negotiation and return of the certificate, before it could be regarded as overdue.
    4. That the certificate was negotiable, and not the subject of attachment, and that the defendants were entitled to judgment.
    To these conclusions of law the plaintiff excepted, and now presents his petition in error, to reverse the judgment rendered in accordance therewith.
    
      S. J. Andrews and Mason Estep, for plaintiff.
    
      Willey & Carey, for the Peninsular Bank.
    
      H. Griswold, for Hartness, Hill & Co.
   Scott, C.J.

The certificate of deposit issued by the defendants, Hartness, Hill & Co., to the plaintiff’s debtor, contains an unconditional promise to pay to the order of E. C. Markham, four thousand dollars, in currency, with interest, upon presentation of the certificate, either by himself or his assignee. Such is clearly the legal import of its terms; and there can be no doubt that it possesses all the characteristics of a negotiable promissory note, unless the fact that it is payable in currency affects its negotiablity. The question, then, is, Whether a note drawn for a specified sum, payable in currency, is a note drawn for a sum of money, within the meaning of the statute.

In Dugan v. Campbell, 1 Ohio Rep. 115, it was said by the court, that the term “ currency ” means current money, where this interpretation is not controlled by the positive terms of the contract.

This authority might, perhaps, have justified the court below in excluding evidence explanatory of the term currency, in this case. But the plaintiff was permitted to show that the term currency at the time and place of the contract was understood to mean bank bills of sundry specie paying banks which were then received and paid out by the banks in Cleve land; and he claims that bank bills are not money. The question then is, Can bank bills, of specie paying banks, which circulate through community as and for money, and perform all its offices, be considered by courts as money, Avithin the meaning of the statute?- Unquestionably, they are, strictly speaking, but promises to pay money. They are not a legal tender. No one can be compelled to receive them as money. But we can not shut our eyes to the fact that, in the commercial and business transactions of everyday life, they circulate as money throughout the community, and are, by general consent and usage, so treated and received. In the language of Lord Mansfield, in Miller v. Reid, 1 Burr. 457, “ they are not like bills of exchange, mere securities, or documents for debts, nor are so esteemed; but are treated as money, in the ordinary course and transaction of business, by the general consent of mankind; and on payment of them, Avhen a receipt is required, the receipts are always given as for money, not as for securities or notes.” In New York it has been held that a note payable in York State bills Avas the same as being made payable in money. Keith v. Jones, 9 Johns. R. 120. And in Judah v. Karris, 19 Johns. R. 144, it was held that a note payable in bank notes current in the city of New York, was a negotiable note. Upon this question, it is true, conflicting decisions are to be found. But in Ohio, it has been quite uniformly held that promissory notes may be negotiable though payable in current bank bills, and that such bills are money, within the meaning of the statute. In Morris v. Edwards, 1 Ohio Rep. 189, it Avas held that a contract to pay tAvo thousand dollars in current bank notes of the city of Cincinnati, is a contract to pay money; and, in that case, it Avas said by Judge Hitchcock that “ a note drawn for a sum certain, payable in bank paper, is negotiable.” The question was pretty fully considered in that case,, which may be regarded as a leading one, on the subject, in this State. The same principle was followed, and controlled the decisions in the subsequent cases of Swetland v. Creigh, 15 Ohio Rep. 118, and White v. Richmond, 16 Ohio Rep. 5; in the former of which.it was held that a note payable in current Ohio bank notes is a note payable in money; and in the latter that a note payable in current funds of the State of Ohio, is a note for á sum certain, within the meaning of the statute, and negotiable. And the reasoning of the court, in all these cases, makes the rule applicable, not merely to Ohio bank bills, but to all such bank notes as, by general usage and consent, are regarded by community as money. In the case last cited, it was said by Judge Birchard, delivering the opinion of the court, “ the supreme court of this State have, on the circuit, repeatedly held that a note payable in current bank notes, was payable in money, and negotiable; and the authority of our own court, for many years, should not be departed from, when no evil is seen to grow out of its adjudications on this subject.”

On a question affecting the character of commercial paper, we do. not feel at liberty to overrule these repeated adjudications, and ignore the general understanding of the business community. And so long as the general consent of mankind, in all business transactions, gives to current bank bills, the character of money, we see no good reason why courts, when the question is presented in a commercial point of view, should regard them otherwise.

But it is claimed that the certificate, if negotiable, was overdue when negotiated to the Peninsular Bank. This position we think can not be maintained. In England, a promissory note, payable on demand, with interest, does not become overdue by mere lapse of time. Baiough v. White, 4 B. & C. 325 (10 E. C. L. R. 345). But in this country, a note payable on demand, unless indorsed within a reasonable time, is considered as overdue and dishonored. What shall be regarded as reasonable time, must depend to a great extent on circumstances. In Ranger v. Cary and others, 1 Metc. 369, it was held that one month would not be unreasonable time. In the present case, the certificate was drawn bearing interest, showing that immediate presentation for payment was not contemplated by the parties. It was drawn and dated at Cleveland, and negotiated by the payee to the Peninsular Bank, at Detroit, where the payee resided, on the second day after its date. It could not have been offered for negotiation at Detroit, earlier than the preceding day. There was clearly no such lapse of time, as should have put the Peninsular Bank upon inquiry, or would justify a court in regarding the paper as overdue when negotiated.

The facts stated in the answer of the garnishees in the attachment suit, and which the court below has found to be true, clearly show that at the time of service of process upon them under the attachment proceedings, the certificate had passed completely beyond their control. It had been deposited in the postoffice, in an envelop, directed to Markham, the payee, in pursuance of his orders. This was, in law, a delivery to him, and the certificate thereby became his absolute property. It is true, that Hartness, Hill & Co., the garnishees, were, at the time, indebted to Markham; but their indebtedness was evidenced by a negotiable promissory note, then in his possession, and which, within a reasonable time, he might transfer so that his assignee would have the right to demand and enforce its payment by the makers. It was so negotiated by the payee, within two days after its date, and received by the Peninsular Bank, in the regular course of business, in good faith, and for a valuable consideration. As such assignee, the Peninsular Bank was not chargeable with constructive notice of the proceedings in attachment then pending. In the case of Stone v. Elliott, decided at the present term, we have held that the doctrine of lis pendens does not apply to negotiable paper before due. And the garnishees being, therefore, liable to the assignee, the court below properly held that they could not be made liable to account for the same debt to the attaching creditor, under the 206th section of the code.

Judgment of the court below affirmed.

Sutliff, Peck, Gholson, and Brinkerhoff, JJ., concurred.  