On Motion for Rehearing.
The following provisions of our Negotiable Instruments Law, enacted in 1919 (Vernon’s Ann. Civ. St. Supp. 1922, arts. 0001 — 1 to ©001 — 197), should be considered in determining the rights of the appellee in this controversy :
“Sec. 185. A check is a bill of exchange drawn on a bank, payable on demand. Except as herein otherwise provided, the provisions of this act applicable to a bill of exchange payable on demand apply to a check.”
“Sec. 188. Where the holder of a check procures it to be accepted or certified the drawer and all indorsers are discharged from liability thereon.
“Sec. 189. A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the cheek.”
Vernon’s Ann. Civ. St. Supp. 1922, arts. 6001 — 185, 6001 — 188, 6001 — 189.
Section 132 (article ©001 — 132) relating to bills of exchange, contains this provision:
“The acceptance must be in writing and signed by the drawee.”
A depositor who is protected by the state’s • guaranty fund is one who puts money, or its equivalent in a bank and leaves it there for safe-keeping. The state guarantees that the bank will repay that sum upon demand. The bank is expected to use the money so deposited in its business, but it must be at all times prepared to make the repayment when demanded. The compensation of the depositor is furnished in the security, or safe-keeping, of his funds, which the bank supplies in becoming a depository. While depositing money for safe-keeping creates the relation of debtor and creditor between the dépositee and the depositor, it is not an ordinary loan to which the law attaches an implied promise to pay interest.
In the elaborate argument presented in the motion for rehearing filed by counsel for the appellee much emphasis is placed upon the legal right of a depositor to assign his deposit without losing the protection of the state’s guaranty. It is insisted that the holding in this ease is tantamount to a denial of that right. No such ruling is intended; for unquestionably a deposit creates an obligation which may be assigned, and when assigned carries with it all the security attending the original deposit. But the drawing of a check by a depositor is not an assignment of the deposit, or any part of it. If the check when presented is not paid, but only accepted, or certified, the holder might then occupy the attitude of an assignee of the deposit, or so much of it as is embraced in the check. Until the check’ is paid, or in some manner satisfied, the deposit remains intact. Simply marking a check “good,” or writing on it “accepted,” does not satisfy the check, or extinguish the deposit against which the check is drawn. Girard Bank v. Bank of Penn Township, 39 Pa. 92, 80 Am. Dec. 507.
It is contended that the clearing house transaction heretofore referred to was in legal effect an acceptance, or certification, by the Farmers’ Guaranty State Bank of the checks held against it by the appellee. But the facts do not justify that conclusion. The appellee did not present those cheeks for acceptance, or certification, but for payment. They were surrendered, canceled, and returned to the drawers. That transaction extinguished the original deposits and released the accompanying claim against the state’s guaranty fund as security for their payment. We then come to this question: Did the appellee then become a depositor? The evidence of the attitude assumed by the appellee, after the clearings were made is furnished by the clearing house certificate, which appears in full in the original opinion. That instrument is essentially different from an ordinary certificate of deposit. When a bank receives money for deposit, it merely certifies that a stated sum has been deposited, and that kind of certificate carries the implica*835tion that the money is held for safe-keeping, and that no interest will accrue because of the use made of it by the bank. The clearing house certificate issued in this instance is in the form of an interest-bearing obligation — a duebill, a legal equivalent of a promissory note. Hopson v. Brunwankel, 24 Tex. 607, 76 Am. Dec. 124; Barnard v. Moseley, 28 Tex. 543; 1 Daniel on Negotiable Instruments (5th Ed.) §§ 39,40; Kimball v. Huntington, 10 Wend. (N. Y.) 675, 25 Am. Dec. 590; Marrigan v. Page, 4 Humph. (Tenn.) 247; Jacquin v. Warren, 40 Ill. 459. See, also, cases cited in 7 Am. Dig. (Cent. Ed.) col. 92, § 61. Being payable on demand, the obligation was due at once, and bore the legal rate of interest from its date. Henry v. Roe, 83 Tex. 446, 18 S. W. 806; O’Neal v. Magner, 81 Cal. 631, 22 Pac. 876, 15 Am. St. Rep. 88.
However, the form of the instrument might be ignored if the transaction out of which it grew indicated a different intent; but such is not the case. The clearing house proceedings were for the purpose of ascertaining and paying balances, not to make and. carry deposits. If.the parties had gone no further than to issue this duebill, or certificate, the appellee could not claim the attitude of a depositor, for the reason that it had left nothing in the Farmers’ Guaranty State Bank for safe-keeping. It held no account against which it might draw a check. True, the appellee was a creditor, but not a depositing creditor.
But even if the appellee had at any time occupied the attitude of a depositor, it could, if it saw fit, abandon that attitude and assume the character of a different kind of creditor. If a depositor voluntarily converts a deposit into an interest-bearing obligation, he loses the security furnished by the state guaranty fund, and having once lost that security in that manner he cannot recall it because of default in the payment of the new obligation. That proposition is sustained by the opinion of the present Chief Justice rendered while Attorney General. See Report of Opinions of Attorney General, 1914r-1916. It is also in harmony with the holding of the Supreme Court of Pennsylvania in the eases previously cited in the original opinion.
The motion for rehearing is overruled.