
    *WILSON v. J. AND S. H. GOODIN.
    Check book — bookacconnts—payment of abankcheck — possession—payment— evidence.
    A check book from which checks are cut out, and memorandums preserved cm the margin, is not a book account, within the law allowing a party to swear to his book accounts.
    The possession by the bank of a check drawn upon it is prima facie evidence that it has been paid.
    Payment may be given in evidence under non assumpsit.
    Assumpsit upon a note for $298.81, at three months. Plea, non assumpsit. The note was read in evidence, on which there was a credit endorsed of $40.
    The defendant, J. Goodin, was called up with a bank cheelc-boolc, from which checks, when filled, were cut out, leaving a memorandum on the margin, opposite to which each was cut out, of the name to whom it was given, the amount, date, &c. To this he offered to be sworn, as to a book account.
    
      Caswell, for the defendant,
    contended, 1st. That as there was no notice of an off-set, the defence was inadmissible under the issue; and 2d. That there was no evidence of any money having been paid upon the note. The check, a mere check, proved nothing without evidence that the money was paid upon it.
   WRIGHT, J.

That is no book account. It is a ehecJc-booh, a mere memorandum of a merchant, of the checks he draws on his banker. He cannot be sworn to such memorandum in his own case.

A witness was then introduced to prove that Goodin gave him a check on the bank, for $100, upon the 27th of July, to be endorsed on the note, when paid. The clerk of the bank then produced the check, which was read to the- jury.

Morris, contra.

WRIGHT, J. to the jury. The plaintiff is entitled to recover the amount of the note, with interest since it fell due, deducting therefrom whatever sums have been paid. A forty d ollar payment is endorsed on the note. As to that, you will have no difficulty. Payment may be given in evidence under the general issue. No notice is required. As to the hundred dollars, the defendant claims that he has proven the delivery of a check on the bank for one hundred dollars, as payment, and that the payment is to be inferred from the possession of the check, now being in the bank, on which it was drawn. If you are satisfied, by the evidence, that the check was taken by the plaintiff in payment, to be endorsed on the note if paid, it will be a very reasonable presumption to hold the check *paid, as it is found in the possession of the banker upon whom [220 it was drawn, and no complaint is made of its non-payment.

Yerdict for the plaintiff, deducting the hundred and forty dollars, and judgment accordingly.

[Marginal memoranda not a book account; Watts v. Shewell, 31 O. S. 331, 335.]  