#### Frederick M. Thomas v. International Bank.

BanJes—Limitations.

Where a depositor gives a check on his bank and his account is thereby overdrawn, a promise to pay the bank if it honors the same, is to be implied.

[Opinion filed December 8, 1892.]

In error to the Circuit Coiirt of Cook County; the Hon. Richard W. Clifford, Judge, presiding.

Mr. William E. Mason, for plaintiff in error.

Messrs. Pence & Carpenter, for defendant in error.

Mr. Justice Gary.

The facts out of which this litigation springs are sufficiently stated in Richardson v. International Bank, 11 Ill. App. 582, International Bank v. Jones, 15 Ill. App. 594, and 119 Ill. 407.

The case was tried by the court without a jury, and the finding of the court settles the first question, which is one of fact, that is, did the bank release Thomas, when it continued to do business with Oalcford, under the same name as when Thomas was a member of the firm ?

The other question is of law: Are checks paid by a bank, without funds of the drawer in its possession tó meet them, “ written contracts ” under Sec. 16 of the Limitation Act, so that ten, and not five, years is a bar ? In principle there is no difference between this case and Hart v. Otis, 41 Ill. App. 431.

That a check on a bank, where the drawer keeps an account, implies a promise by the drawer to the bank to pay *462if the bank will honor it, and his account is thereby overdrawn, “ is too clear to require discussion.”

The finding and judgment for the bank on the checks which overdrew the account are right, and the judgment is affirmed.

Judgment affirmed.