Farmers & Mechanics' Bank v. Boraef

The opinion of the court was delivered by Tod, J. Boraef, the plaintiff below, sued the bank in assumpsit for money had and received, and on the trial produced his bank book, showing, a deposit of eight hundred dollars, made on the 7th of October, 1825. He also produced a witness, who swore that he, the witness, made that identical deposit for the plaintiff on that day. • The defence was, that the money deposited was' in fact eighty dollars, and that the figures “800” had been set down in Boraef’s book by mistake, instead of “ SO,” by Henry Meyers, a clerk- in the bank, who received the deposit. To support this defence, Meyers himself was offeréd as a witness. ■ A book-belonging to the bank was also offered, in which, as was said, -he, Meyers, had at the time of1 the deposit entered it as of eighty dollars, previous to his entry in.the book of the plaintiff. Boraef, the-plaintiff, did not object to Meyers as a witness; but he objected to the book showing-the entry of eighty dollars. The court rejected the book. Meyers, without it, could not undertake to swear at all. In deciding the question whether this rejection was error, the eases cited to.show how far the books of a corporation are evidence in disputes with their customers, appear to have no very strong application. If the book belonging to Boraef, the plaintiff, had been lost or withheld, no doubt-the bank entries might be prima facie sufficient.,- If the bank relied on its own book, not only as the original entry, but as superior and controlling and correcting the book of Boraef, it asked too much; for the main evidence of the contract was the document delivered to-Boraef. He could not oversee the bank books, nor had he any business to examine them. He never intended to rely upon their entries, but held in. his own hand his own voucher equal to a receipt. Therefore the book offered by the bank would have been a sort of evidence quite inconclusive, .as11 [155] take it, and worth very little, if unsupported-; yet it by no means follows, that it was not evidence at. all; A mistake was alleged, and it appears that a mistake, somewhere, existed. The bank' might have had other evidence. The book ought to have gone with the plaintiff’s book, and with Meyers’, testimony, to the jury, as containing one of the entries made by him at the time, with his explanations, if .he had any to offer. -The opinion of the court in Henderson v. Jones, 10 Serg. & Rawle, 333, cites many cases where the previous declarations of a witness have been held to be evidence to support' his .testimony. It is assumed that Meyers was able to swear, if permitted, that his entry in the bank book was true, to the best of .his knowledge and belief: otherwise, most clearly, the book is-not evidence for any purpose. Judgment reversed, and a venire facias de novo awarded.