Hunt v. Richard L. Divine.

CourtSupreme Court of Illinois
Citation1865 WL 2796,37 Ill. 137
PartiesEDWIN T. HUNT and WILLIAM J. HUNT, impleaded with JAMES S. BEVERIDGE,v.RICHARD L. DIVINE.
Decision Date30 April 1865

OPINION TEXT STARTS HERE

APPEAL from County Court of DeKalb county; Hon. EDWARD L. MAYO, County Judge.

Assumpsit. 1st count declares upon a certificate of deposit of $280.50 as on a promissory note.

2d count alleges that in consideration that C. M. Chase would deposit, &c., defendants by name of E. T. Hunt & Co., undertook in and by such certificate to pay $280.50, to the order of C. M. Chase on return of said certificate, three months after the date thereof. Assignment to plaintiff. Common counts.

Verdict and judgment for plaintiff below.

CHARLES KELLUM and HURD, BOOTH & KREAMER, for appellants.

R. L. DIVINE pro se. Mr. JUSTICE BREESE delivered the opinion of the court:

This was an action of assumpsit in the DeKalb County Court, brought by the appellee against the appellant on the following instrument of writing: Banking house of E. T. Hunt & Co., Sycamore, Illinois, March 9th, 1861, C. M. Chase, Esq., has deposited in this bank, two hundred and eighty dollars and fifty cents in currency, subject to the order of himself, and payable in like funds on return of this certificate three months after date, E. T. Hunt & Co.; endorsed C. M. Chase.

The first count of the declaration is upon this instrument as a promissory note--the second count alleges that on the 9th of March, 1861, in consideration C. M. Chase, at the special instance and request of defendants, would deposit in the bank of defendants for three months from and after that date, two hundred and eighty dollars and fifty cents in currency, the defendants by the firm name of E. T. Hunt & Co., undertook and did promise Chase in and by a certain instrument in writing named and called a certificate of deposit of that date, to pay to the order of said Chase on the return of the certificate of deposit, three months after the date thereof the sum of two hundred and eighty dollars and fifty cents in currency--that Chase assigned the certificate to the plaintiff, etc.

The third count is the money counts, work and labor, goods sold and delivered, etc.

The plea was non-assumpsit, and a trial by the court, who found a verdict for the plaintiff, and assessed the damages at $332.85, on which a judgment was duly entered up. The case is brought here by appeal.

The first point made is, that no suit can be maintained on this instrument without a previous demand of payment and a return of the certificate; that such return is a condition precedent to any right to recover.

This further point is made by appellants, that the certificate is void under section twenty of the act of February 15th, 1851, known as the general banking law, and reference is made to the case of the Bank of Peru v. Farnsworth, 18 Ill., 565.

This point will be first considered, for if it is well taken, it will be unnecessary to consider the other.

Section twenty is as follows: No banking association or individual banker, shall issue or put in circulation any bills or notes of such association or banker, unless the same shall be made payable on demand. And every such association or banker shall always keep on hand a sufficient amount of specie to redeem all such bills or notes as may be presented at the place of payment. Scates' Comp., 115.

The object and purpose of this act are very apparent. They concern exclusively, incorporated bankers or associations, composed of one only or several persons with power to issue notes as a circulating medium, and not a single individual or firm not incorporated under this act; section six provides that any number of persons may associate to establish offices of discount, deposit and circulation, and become incorporated upon the terms and conditions, and subject to the liabilities prescribed in this act. By section seven, such persons are required, under their hands and seals, to make a certificate which shall specify,--1. The name assumed to distinguish such association, and to be used in its dealings. 2. The place where the business is to be carried on, designating the particular city, town or village. 3. The amount of capital stock, and the number of shares into which the same may be divided. 4. The names and residence of the stockholders, etc. 5. The period at which such association shall commence and terminate. This certificate is to be acknowledged and recorded in the office of the recorder of the proper county, and a copy filed in the office of the Secretary of State, on which being done, the corporation is created with the usual powers of banking corporations.

The term, therefore, “individual bankers,” as used in section twenty, must have reference to a banking concern composed of one individual only, and incorporated under the provisions of the act.

If these incorporated “individual bankers” or corporations, fail to redeem their circulation, their notes can be protested, and the auditor can proceed to put them in liquidation and wind up their affairs. A receiver is to be appointed to take charge of the assets of every “such banker or association,” and collect the debts due. By section twenty-seven, the assets of any such banker or association as shall come into the hands of the receiver, shall be applied in payment of the circulating notes. By section twenty-eight, the amount of stock held by any “individual banker,” or by any stockholder in such association, shall be held and controlled by the receiver for the payment of any note put into circulation.

Section thirty provides, that each and all the provisions of the act shall apply to, and control, in all respects, any banker who shall conduct business under the provisions of this law, whether the word banker is or is not used in any such provision. Ib., 117.

In the case cited, Bank of Peru v. Farnsworth, it was conceded that the bank was an association incorporated under the law of 1851, portions of which we have cited, hence, the propriety of the decision, the note being within the prohibition of section twenty of that act. The appellants here, are private bankers and not an institution having general banking powers issuing notes for circulation. This point not being tenable, the other question remains to be considered: Can a suit be maintained on this instrument without a previous demand of payment and a return of the certificate? Is such return a condition precedent to the right to recover?

It is contended by appellants, that a banker has a right to prescribe the terms on which he will receive money on deposit. and when they are reasonable, they must be enforced against the depositor, as part of the contract. That it cannot be said, that a condition, on the face of a certificate, whereby it is male payable on its being returned, is unreasonable, or that it imposes any hardship on the holder, or that it would be a hardship on the banker, if he was required, after having issued a negotiable instrument like this, to follow it into the hands of the holder, and take his funds to a distant place, in order to make payment.

To determine the question presented, it must be first ascertained what is the character of the instrument, and as to that, we have only to refer to the case of the Bank of Peru v. Farnsworth, already cited. The instrument counted on in that suit, was almost identical with the one before us. The court there say, in form, it is a certificate of deposit. But that is not all. It is also an express promise to pay the amount deposited four months from date. The certificate of deposit is merely a declaration of the consideration of the promise. The promise to pay is no more qualified or legalized by the certificate of deposit, than it would be by any...

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