
    BANK OF MONTGOMERY vs. PLANNETT’S ADM’R.
    [ACTION DOR. MONEY HAD AND RECEIVED.]
    1. Proof of account by enfries niad<B<by deceased cleric.^.Books of’ account, kept by a deceased clerk,’and all other entries or memoranda made in the course bf business or duty, by one who would be at the tiino a cofn-pótent'ivíttíess'to the fact which he registers',’"are hold competent evidence from tlie-presumed necessity of the case; hut the reason of the rule ceases, and the- rule itself consequently fails, when it appears that there is other and better evidence of the 'same facts'; as whereat is shown to oe tlíé’ custom of a hank to pay out mohey only on the cheeks of its depositors.
    2 .-Sicotaie of /non-claim. — Aclaim againsfrthe estate of a deceased person is barred, unless presented to the personal representative witliin eighteen months' Etffcoi' its accrual, of within eighteen months after the grant'óí' letters testamentary or of administration, (Code, § 1883,) notwithstanding the failure of the personal'ropresentative to give notice to creditors, as required by tlie Statute.
    3. Ayeneyvelnon, question of fact'; cha,rgeinvttdiñg'prcvlncc'bfjá¡‘y. — Where the fact of agency is controverted, andthere"is any evidence tending to establish it, the sufficiency of that evidence is a question for ^tí'ie jury, under appropriate instructions from tlio court; mid a charge, asserting- tliat the evidence is- not sufficient to prove the agency, is erroneous.
    ApBEal from the Circuit Court of Montgomery.
    'Tried before the Horn John Gill Shoetee.
    This action WSs brought by the administrator of Stephen íTinnett, deceased, to recover certain moneys alleged to 'fitve: been'deposited with the defendant by said Plannett in Sis liie-ti'mfe ;'”and' Was commenced on the 5th March, 1857. The complaitfheontained a count on an open account, and another on'a -stated account. The defendant pleaded, in shovffby -consent, the general issue, payment, and set-off; and-to the plea of set-off the plaintiff replied the statute of non-claim. “On the trial,” as the bill of exceptions states, “the plaintiff’s account against the defendant was established by entries in a deposit-book, (commonly called a ‘pass-book,’) to the credit of plaintiff’s intestate, and in his own name,-made by the defendant’s teller. To support the pleas of payment -and -atet-off, the defendant produced its book of original entries, oontainhig items of account, both debit and credit, between said inféstate and defendant; and, having proved the handwriting of the officer by whom said entries were made, and his death, and that he kept correct accounts, offered to read -said-'entries -to the jury; but, it having been proved to be the custom^ of the defendant to pay out moneys to depositors' on checks drawn by them, the court required the prodifotion-óf-the checks, and refused to allow said book-of- original entries to go before the jury, as sufficient evidence, without -the-checks; to«WMcb the defendant exeepted.”-
    “The -defendant introduced oral- evidence befóle the jury, tending to show that;-iri 1854 and 1&5'-5, plaintiff’s intestate was in*-*bad- health/ and so continued up to the time of his death iti'^June; 1855/-that said intestate, from the -1st- -f dne, to the 1st December, 1854-, was absent from 'this State; that before he left, during his absence, and after -his return, up to within a short period of his death, he was tbe proprietor of a billiard-room in the city of Montgomery, which he rented from one Washington Tilley; that during all this time, on account of his bad health, he was unable to give his personal attention to his business, but entrusted it to the management and control of one Y. D. Carnot, who exercised complete control over it, making contracts in reference thereto, and discharging liabilities. The defendant further proved the declarations of said intestate, after his return to Montgomery, that said Carnot was his agent; and these declarations were made whilst said Carnot was still attending to said billiard-room business, and in a conversation which had reference to said business. Some of the entiles on said ‘pass-book’ appeared to have been made during the time said intestate was absent from this State, and whilst said Carnot was attending to his billiard-room. The defendant read in evidence, after proving the signature thereto,'two motes signed by said intestate, for $150 each, dated the 1st 'October, 1852, and payable, respectively, on the 1st Aqgust, and the 1st November, 1854, to Washington Tilley nr order (each of which purported to -be given ‘Tor one quarter’s rent of billiard-room,” and was endorsed in blank by said Tilley ;) “and, in connection, therewith, two checks on said defendant, drawn by said Carnot, and signed, ‘Stephen Plannett, by V. D. Carnot,’ bearing date respectively on the days of the maturity of said .notes, and purporting omtheir face to be drawn for the .purpose of paying said notes. The defendant introduced in evidence, also, a number of other checks, drawn on said defendant, for various sums of money, bearing various dates between the 1st October, 185 l, and the 1st June, 1855, all signed like the two above mentioned. The handwriting of said Carnot to each of said checks was proved; but there was no proof that any of them were drawn on account of the billiard-room. No other evidence on the subject of said Carnot’s agency, or his authority to draw said checks, than as above recited, was offered by either party. There was no evidence to show that said intestate, after his return to Montgomery in December, 1854, had ever notified de*' fendant that said Carnot was not his agent; nor any evidence to show that he had any knowledge of checks drawn on Ms funds in bank by said Carnot. Letters of administration on said intestate’s estate were granted to plaintiff i*n duly, 3 S55t.; but there was no proof of any notice to creditors, by publication in any newspaper ; nor was there any proof that said-notes had been presented to said administrator within eighteen months after the grant of his letters; and as to these notes, pleaded as a set-off by the defendant, the plaintiff replied the statute of non-claim. The court charged the jury — 1st, that the evidence was not sufficient to show that said Carnot had authority to draw said checks, or any of them, in behalf of the plaintiff’s intestate ; and, 2d, that each of the notes offered in evidence under the plea of set-off was barred by the statute of non-claim,; to which charges the defendant excepted'.”
    The rulings of the court .on the evidence, and the charges to the jury, are now assigned as error.
    Watts, Judse & Jackson, -for appellant.
    1. The entries made by the deceased clerk were competent evidence to prove the account. — Siemens v. Patton, Donegan & Go., 9 Porter, 289 ; 1 Gfreenl. Ev. §§ 115-17, 120, 151; Patre v. Simpson, 4 Ala. 305; Everly v. Bradford, 4 Ala. 373.
    2. The first -charge invaded the province of the jury. Agency is a question of fact. — McUlung^s Executors v. Spotswood, 19 Ala. -.165; McDonnell v. Branch B&nJc at Montgomery, 20 Ala. 313.
    3. The filing of a plea of set-off, which is a cross action, is a sufficient presentation of the claim to prevent the bar of the statute of non-claim. Moreover, the administrator had not published notice to creditors, as required by the statute. — Code, §-1734.
    Martin, Baldwin & Sayre, contra.
    
    1. The checks were higher and better evidence than the parol testimony •of the clerk, if living, would have-been-.; and consequently, were better evidence than the entries, which are only admissible, when the clerk, if living, would be competent to prove the facts. — JBatre v. Simpson, 4 Ala. 312.
    2. When the facts are ascertained, agency becomes a question of law. — Wood v. McCain, 7 Ala. 800; Dealing v. Lightfoot, 16 Ala. 28; Scarborough v. Reynolds, 12 Ala. 252; McKenzie v. Stevens, 19 Ala. 691; Story on Agency, § 87.
    3. The notes were barred by the statute of non-claim, which does not require the publication of notice to creditors before it begins to run. — Code, § 1883 ; McHenry v. Well’s Adm'r, 28 Ala. 451.
   STONE, J.

The'doctrine is settled in this State, “ that books of accounts, kept by a deceased clerk, and all other entries or memoranda made in the course of business or duty, by any one who would at the time have been a competent witness to the fact whieh he registers, are admissible evidence.” — Batre v. Simpson, 1 Ala. 305; Everly v. Bradford, ib. 371; Clemens v. Patton, Donegan & Co., 9 Por. 289. This evidence is received on what is considered the moral necessity of the case. — Phil. Ev. (Cow. & Hill's Notes, by Van Cott,) 1 pt. 305, et seq. ; 1 Greenl Ev. §§ 115, 120.

This doctrine resting on the presumed-necessity of the case, it follows that; when-<the reason ceases, tire rule also fails; cessante rations, cessat ipsa lex. — Cow. & H. Notes, 1st pt. 310.' Hence, .wliemgoods were delivered on written orders, it was ruled*by the supreme court'of Pennsylvania,. (Ch. J. Tilghmaniddlivering the opinion of the court,) that the books were not evidence. — Smith v. Lane, 12 S. & R. 80. To the same effect are the cases of Tenbroke v. Chapman, 1 Coxe, (N. J.) 288; Townley v. Wooley, ib. 377. See Cow. & H. Notes, 1 pt. 310.

In this case, it is shown that the custom of the bank was, to pay out moneys on the checks of its depositors, and*' not otherwise. This removes the necessity under which the books would be evidence, and, of course, 'renders the rule inapplicable. The circuit court did not err in excluding the books from the jury.

Tlie record shows that the notes of Mr. Plannett 'were not presented to the administrator within eighteen months after they' accrued, nor within eighteen months after the grant of letters of administration.- — Code, § 18S3. It? is not essential to the operation of the bar, that the administrator should have given notice under the statute, (Code, $1734,) although his failure to do so is obviously a breach of duty on his part. — See Cawthorn v. Weisinger, 6 Ala. 714; McHenry v. Wells, 28 Ala. 451. The court did not err, in charging the jury that the notes of Mr. Plan-nett; offered in defense, were- barred-as a- set-off by non-claim.

In charging .“ that the-evidenee wás nofrsuffieient to-show that Carnot had authority to draw said checks, or any of them, in behalf of the plaintiff’s intestate,'” the circuit court erred. In the case of McClung v. Spotswood, (19 Ala. 165,) this court, Ch. J. Dargan delivering the-opinion, said : “ But in most cases, if not in all, the ques--tion of agency is -a matter of fact, which it is the province - of the jury to determine upon, under the instructions of -, the court; and if the testimony tends to prove, that* the - person acting as agent had authority from his principal to * do the act, then it is manifest-that the court cannot-exelude from the jury the act itself, -without over-stepping:the law of its duty, and assuming to determine a matter which belongs to the jury, to-wit, the authority of the agent to do the act.” In the case from which we have quoted, the fact of agency was left by the testimony in extreme doubt; yet this court ruled, that the circuit court erred in excluding the evidence from the jury. In the case of McDonnell v. Br. Bank at Montgomery, (20 Ala. 313,) a similar decision -.was pronounced on 'testimony.'of agency which was inconclusive.— Roland v. Logan, 18 Ala. 307; Krebs v. O’Grady, 23 Ala. 726; King v. Pope, 28 Ala. 601; Fisher v. Campbell, 9 Por. 210 ; Strawbridge v. Spann, 8 Ala. 821; Barry v. Foyles, 1 Pet. S. C. 311.

In the case of Irwin v. Buckaloe, (12 Serg. & R. 35,) the question was, whether one Moore was the agent of the defendant. The only evidence of agcuqy was that of one witness, who testified, that “ he :had done business with Moore, as the agent of defendant, one or two years after the date of the receipt; and that the defendant, about the same time, had told him that Moore was his agent, and did business for him".” Gibson, J„ in delivering the opinion of the court, said, “ The admission was a circumstance to be left to the jury, with a direction to regard the receipt as competent evidence or dtherwise, as they should be satisfied, or not, of the existence of the agency when the receipt was signed.”

These authorities are full to the point, that the evidence in this case ought to have gone to the jury, under an appropriate charge, for that body to have passed on the question Of Carnot’s agency. As to the two checks drawn for the payment of the two notes of Mr. Plannett, and which, as the record'informs us, “purported on iheir face, to be drawn for the payment of said notes f we do not perceive on what principle they were excluded from the jury. These notes were given for the rent of the billiard-tables, and Mr. Plan-nett was absent from the State when they matured. The proof is quite full, that Mr. Carnot was the agent of Mr. Plannett in the control of the billiard-room. These were facts clearly for the consideration of the jury, on the question of payment of the notes by those two checks. "So, forming our opinion on the evidence recited in the record, we think the whole of the checks and orders should ..have been left'before the jury, in connection with the other evidence oirthe question of agency, for decision by thatlfedy. If, under proper instructions, they .found -that .'Mr. Carnot was the agent of Mr. Plannett t0<6Qntrol'.his.iunds in bank, and that on’his checks, as such ageútpth'e deposit had ¿been drawn from the bank, this would amount’to a good defense to this action'under the plea óf payment. We need scarcely add, that the doctrine;of mon-claim liras no application to payments.

Eeversed andiremanded.  