GARDINER, J., delivered the opinion of the court:

The decision of the judge at the circuit that the evidence was insufficient to maintain the action was correct.

The declaration was for money lent and money had and received.

The plaintiff produced a cash receipt book belonging to the Canal Bank, and proved two entries to the credit of the defendant, amounting to five hundred and forty-two dollars: then a check of the same date of the deposit made by the defendant, for six hundred and forty-two dollars, the execution of which was submitted: then a clerk of the receiver testified that a book produced was ledger G of the Canal Bank, containing the account of the defendant with the bank; that the balance against the defendant on this book was $100. The books of the bank from January, 1847, to the failure of the bank were then offered in evidence, from which $100 appeared due the plaintiff. This was all. There was no call upon the defendant for his bank book; nor was the original entries to the debit of the defendant proved by the clerks who made them, or to be in their hand writing; nor any attempt made to account for their absence. The books upon the mere proof by a stranger that they were the books of the Canal Bank, were relied upon as evidence that the account of the defendant was overdrawn.

The check of itself proved nothing against the party sought to be charged. The legal presumption would be that it was drawn upon funds of the defendant in the possession of the bank. In Bank of Monroe v. Calver, (2 Hill, 535,) it was held, that entries in the books of the bank were evidence after it had been proved by the clerk who made them, that it was his uniform custom to make them at the time of the transaction, and that he had no doubt that they were truly made in the particular instance. In Brewster v. Doane, ( id. 557,) it was decided that entries and memoranda made by third persons in the usual course of business, as notaries, clerks, c., could not be given in evidence on the ground that they were beyond the jurisdiction of the court, though otherwise when they were deceased. In Union Bank v. Knapp, (3 Pick. 97,) the books were authenticated by the officers of the institution, the course of business was established, and the cashier, paying teller, and the clerk who made the mistake which led to the action were subsequently sworn and examined. After this evidence, the handwriting of the clerk who made the original entries in the blotter was suffered to be proved, on the ground that he was at the time insane. The decision in that case was in favor of the defendant, upon other grounds; but the court, in the opinion delivered, ( p. 106,) recognize the general rule contained in the cases decided in this state.

I think the nonsuit right, and that the judgment of the supreme court should be affirmed.

Judgment affirmed.