delivered the opinion of this court.
The appellee brought this action to recover the amount of a certificate of deposit, issued by the appellant to George F. Allen, alleging, in his declaration, appellant’s indebtedness to appellee’s intestate.
T9 .the two counts in plaintiff’s declaration, one for ippney had and received, the other, for money lent by plaintiff’s intestate, the defendant pleaded three pleas: 1st, that it was never indebted as alleged; 2nd, the statute of limitations; 3rd, a special plea; to which the plaintiff demurred, The court passed no judgment on the demurrer.
By an agreement, filed in the cause, the question is submitted to this court, whether the appellee, as administrator, is entitled to recpver the amount deposited in the hands of the appellant, without the actual production of the certifica.te at the trial, all mere formal defects in pleading and evidence being waived.
The exceptions to the evidence offered by the appellee being waived by the agreement mentioned, we proceed to consider the ruling of the court in rejecting the four prayers of the appellant, and the instruction given by it to .the jury, which constitute the third exception.
The first prayer was, in our opinion, properly rejected. Though on a bill or promissory note, payable on demand, the statute of limitations runs from the date of the instrument, and not from the time of demand, (see Byles on Bills, 273, and the authorities there cited, also 7 H. & J., 14,) this rule does not apply to the case before us. Here the certificate of deposit has attached to it a condition, that the amount deposited is payable on the return of the certificate: and the appellant is, in fact, resisting the recovery of the claim upon the ground, that this condition is not complied with.
' The inducement for this deposit was, for the accumulation of interest, and the obligation of the appellant, stated on the face of the certificate, is to pay the principal when demanded, with interest:—upon such a contract the statute cannot be held to run, until the demand h,as been actually made.
*327The second and third prayers embrace, substantially, the same proposition, and controlled by the agreement above mentioned,- will be considered together.
The certificate of deposit, in question, was so drawn, that the amount mentioned therein was payable to George F. Allen, or order, on demand. Such an obligation has been held negotiable. See 14 Conn., 363; 2 Hill, 295; and 13 How., 218. This last case was upon a certificate of deposit, similar, in its import, to the one in question. The Supreme Court say: “the established doctrine is, that a promise to deliver, or to bb“ accountable for, so' much money, is a good bill or note. Here the sum is certain and the promise direct. Every reason exists why the endorser of this paper should be held responsible to his endorsee, that can prevail in cases where the paper is in the ordinary form of a promissory note; and, as such note, the State courts generally have treated certificates of deposit payable to order.” Viewing, therefore, this certificate as having the attributes of a negotiable promissory note, the appellant would have a right, upon demand of payment, to insist that the certificate should be produced, and delivered up, as its voucher of payment, and as its security against any future claim.
By the recent English authorities it seems to be settled, that where one is called on to pay a lost negotiable bill or note, the loss, and consequent non-production, constitute a good defence at law. See Smiths Mercantile Law, 356, and note. And the American authorities there cited, generally support the doctrine, that when an instrument is lost, upon which, either from its original character, or want of negotiabilty at the time of the loss, the debtor could set up any equitable defence against a subsequent bona fide holder, claiming title through the finder, the jurisdiction may be properly exercised at law, but in all other cases, the only remedy is in chancery. See, also, 3 Cowen, 303; Story on Prom. Notes, sec. 546.
The certificate of deposit involved in this suit, being shown by the evidence to be in the possession of a third party, that *328party olay, in the absence of proof, tó show that it was not endorsed by Alien in his lifetime, have a legal right to demand the payment of it. The appellant is; therefore, entitled to be protected against the danger of being compelled to make more than- one payment of the same debt, by requiring the appellee to pfodude the certificate.
(Decided June 4th, 1862.)For tbese reasons we think that the second and third prayers of the- appellant should have been granted. The appellant’s fourth prayer was properly rejected,- as it is too general in its terms since the Act of 1825, ch. 117; see 5 G. & J., 519. The instruction, given by the court, is not only objectionable, because it assumes that th'e fund was deposited there, by taking from the jury the finding of that fact, but it also puts to the jury to determine the character of the letters of administration, a question of law to be decided by the court. The instruction is also, defective in not declaring the law in terms explicit and intelligible to the jury upon the points’raised by the counsel. See 6 G. & J., 404. 2 Md. Rep., 74.
Judgment reversed, with leave to appellee to take out procedendo.