
    John Everingham ads. John Langton.
    jyhere incompetent evidence has been admitted, the court will not pretend to judge how far it did or did not influence the jury, but will grant a new trial.
    In an action by a book-keeper of a bank, for money had and received, on accountof a “short charge” on a check (overcharged,) the book-keeper’s book kept by him, unaccompanied by his oath, (the check not being produced,) cannot be admitted in evidence upon proof of his hand-writing.
    MOTION for a new trial. — Tried before Mr. Justice Huger, May Term, 1822.
    This was an action for money had and received ; paid, laid out,'and expended, &c. The particular filed was for short charge on check of the defendant, at Planters & Me-. chanicsBank, $2000 on 5th October, 1815.
    The first witness produced was Mr. Prince, who testified that he had searched the bank, and could find no check of 1¿he description alleged. He stated on his cross examination, that he knew nothing of the check in question.
    Mr. Gibbs was then called, and by him the plaintiff attempted to prove an entry of the check in question, in the book kept by one Mr. Pritchard, and in his hand-writing, who was living and residing at Chcraw in this state. An objection was made as to the admissibility of such testimony, on the ground that Mr. Pritchard should have-' been examined.
    -The objection was sustained by the court, and the book was rejected.
    Mr. Gibbs then proved by the cash book kept by himself, as collection clerk, that on the said 5th October, 1815, he entered in said cash book a check of the defendant for $2269 92, payable to A. B. or bearer. He also proved that there were other checks of the defendant paid and entered in his book on that day.
    The plaintiff then introduced the book-keeper’s book of •the year 1815, kept by and in the hand-writing of the plaintiff, for the purpose of proving a short charge of said chock.
    The defendant objected to this, on the ground that the plaintiff could not deduce proof for himself from his own acts, that however it might be between the bank and the defendant, yet, as between the plaintiff and the defendant, the fact proposed was not susceptible of proof by a book - entry made by the plaintiff himself; and furthermore, that such entry could not be proved by secondary evidence, to-wit, proof of hand-writing, when better evidence was at hand, to-wit, the person making the entry ; that if such entry could be proved at all, it must be by Mr. Langton, the plaintiff present in court — that if Mr. 'Langton -himself could not prove the entry, a fortiori, it -could not be proved by secondary evidence, that is, by hand-writing.
    The presiding Judge, however, overruled the objection, and Mr. Gibbs was examined on said book. He stated that on the-said 5th of October, 1815,. there was no entry 
      in the book, of any check of the defendant, for $3269 92, but one for $269 92, besides three others of different amounts. It did not appear that said “short charge” was detected until the 6th April, 1819 : That for the year 1815, the defendant was a very large depositor in the bank : that on the 11th of October, six days after the alleged short charge, there was a balance in favour of the defendant of about $4000, and that during the quarter year comprehending the 5th October, the weekly balances were in favor of the defendant, except three weeks. This witness, together with Mr. Malcolm, an experienced bank officer, and Mr. Blackwood, president of the bank, stated .in substance, that, it was inexplicable bow an error of $ 2,000 in the book keepers books should have remained undiscovered beyond the quarter in which it was embraced. Indeed, if in copying from the check, an error had been made, inasmuch as the tellers book and the cash book were checks upon the book keepers book, the daily revisáis could hardly have failed to detect the error, and furthermore, that the error roust have been discovered in the quarterly balance sheet, because it would not have agreed with the cashiers account, which would have induced an enquiry and led to the detection of the error, if there had been any.
   Mr. Justice Colcock

delivered the opinion of the court:

As all the grounds taken in this case, except the first and last, were abandoned, it is unnecessary to advert to any others. The first is, that the presiding Judge erred in admitting the book-keeper’s book in evidence, on the proof of hand-writing and entry, and under the circumstances of the case. The last is, that the check, which would have been the highest evidence, and ought to have been in the possession of the bank or the defendant, (unless lost or mislaid, of which there was no proof,) was not produced, and no evidence of any notice to the defendant to produce it, if in his possession, nor even satisfactory evidence of its not beins: in the bank, was given.

As a general rule of evidence, neither the- act of a plant-tiff nor his books can be given in evidence in his favour.

There are exceptions to this general rule, but I think if clear that the case before us is not embraced in any of the exceptions. The books of a merchant are evidence to prove the- delivery of goods, so of a mechanic to prove the execution and delivery of the articles made ; but these are admitted from the necessity of the case ; because in the ordinary transactions of life, these deliveries take place most frequently in the presence of the parties alone. But the fact to be proved in this case, from its nature, is susceptible of abundant proof from other sources, and that too within the reach of the plaintiff. Corporation books are admitted, and manor books between members of the same corporation or manor ; but it is laid down expressly by Philips, (1 vol. p. 320,) that they are not evidence against a stranger for the corporation or manor, a fortiori,” not for one individual of a corporation against a stranger. But in pursuing the subject, books are only-evidence -when they are regularly kept (by the same authority) in any case. Here, the error which is calculated to destroy the effect of the evidence, is to be the very foundation of recovery.

But it is said a new trial ought not to be granted, even if the book was not legally introduced, because it could not have weighed any thing with the jury.

It is sufficient to remark, that this court has said, that they will never undertake to determine that point even where they have thought that the evidence could not have produced any effect. Yet, if illegal, they have granted a new trial, as in the case of Ring & Huntington, & Hunter & Lahief, decided during this term. But in my opinion, the book, and that alone, did shew a mistake on the trial.

On the second ground, I think it was indispensably necessary to have served the defendant with a notice to produce the check before any evidence of its contents could have been given. It appears from the testimony of Mr. Prince that checks were usually delivered up to the drawers every quarter settlement. It was then proving nothing which would account for the loss 'of it, to prove that it had been looked for in the book, (looked for where he could not expect to find it:) And this doctrine is too familiar to require a reference to authority for its support. The check was the highest evidence of the amount for which the defendant had drawn, and consequently the very substratum of the plaintiffs claim. There may have been a mistake, yet not the mistake complained of, that would alone appear by the check or evidence of its contents. I may add that this is a case which called for the most satisfactory evidence. In proportion as a fact to he proved is unusual and difficult of proof, so in proportion should the testimony be strengthened. Such an occurrence as that alleged to have happened in- this case is in opposition to that order, regularity or exactness, which it is believed, is observed iri banks, and which is certainly essential to their very existence.

Clarke, for the motion.

Grimke, contra.

The motion is granted.

Justices Gantt and Richardson, concurred.  