4 Cal. 35 | Cal. | 1854
delivered the opinion of the Court.
The plaintiff commenced his suit in the Court below upon the following instrument, which he declared on as a check:
“ San Francisco, June 9th, 1853.
“Messrs. Page, Bacon & Co., Bankers—
“Pay to Charles Minturn, on the fifteenth (15th) inst., or order, thirty-eight hundred and ninety 18-100 dollars.
$3,890 18-100. (Signed) L, W. Fisher.”
The decision of this ease must turn upon the
The instrument in question has all the attributes of a bill of exchange, and differs from an ordinary check, which is generally drawn payable at sight, and raises the supposition that the drawer has the. amount of money in the hands of the drawee, which becomes at once appropriated for its payment. Checks of this kind are sight bills, within the meaning of the authorities cited (in Harker v. Anderson), and, under our statute, are not entitled to grace; but the instrument declared upon in this case, being an order to pay at a future day, is an inland bill of exchange. (See Brown v. Lusk, 4 Yerg. 210) and the drawer entitled to three days’ grace and notice of non-payment. From this it follows, that the presentation, and, consequently, the commencement of the action, were premature.
Judgment affirmed.