Minturn v. Fisher

Mr. Ch. J. Murray delivered the opinion of the Court. Mr. J. Heydeneeldt concurred. 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.” [37] The evidence shows that the instrument was presented for payment on the 15th of June, at the banking house of Messrs. Page, Bacon & Co.; that payment was refused, and that the same was protested, and notice of non-payment given to the drawer, and that suit was commenced upon it on the same day. The decision of this ease must turn upon the [37] character of the *instrument, whether it be considered as an ordinary check, payable on presentation, or an inland bill of exchange, and entitled to three days’ grace. There is little or no difference between checks, so called, and bills of exchange, except so far as that difference may arise from the custom of merchants, or the statute regulation of the particular jurisdiction in which they are used. They are similar in form, and the modern decisions of the Courts have placed them upon the same footing. (See Harker v. Anderson, 21 Wend. 372, and the cases there cited.) 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.