account rendered to him by one with whom he has financial dealings. An entry in a bank-book was as follows: "1861, Dec. 30th, cash (coin) $3000." The bank had at the time ceased to pay in specie, and when the depositor subsequently drew checks for this amount, payable in gold coin, the bank refused to pay in coin and offered the "legal tender notes" of the United States government. The court held that this single entry was competent evidence for the plaintiff (in a suit to recover the gold coin or its equivalent in "legal tender notes ") for the purpose of verifying the testimony of a witness concerning the circumstances of the deposit, and of showing the nature of the particular entry made by the bank-officer at the time as indicative of the character of the deposit in question; also that plaintiffs were not bound to put in evidence all the other entries in the book, but that it was sufficient if the book was placed in the power of the defendant to be used as evidence for any legitimate purpose'; also that plaintiff might explain any ambiguity in the entry itself by evidence that, by general and well-known usage of the banks of that city, an entry of this kind imported an agreement to return the deposit in kind, but that such usage could not be proved by showing a few particular instances.1 Parol evidence is admissible to explain an abbreviated or short entry in a bank-book, as being in the nature of a cipher or technical term.2 Checks as Evidence of Debt and Payment. A check which has been in circulation, or which has been paid and cancelled by the bank on which it is drawn, may become very valuable as evidence of the fact of payment of the debt of the drawer to the payee. It is not, of course, proof positive of this fact, and as preliminary to its introduction a debt owing from the drawer to the payee at or before the date of the check must be shown. But this basis having 1 Chesapeake Bank v. Swain, 29 Md. 483. 2 Wingate v. Mechanics' Bank, 10 Barr, 104. been established, the production of the circulated or paid and cancelled check is prima facie evidence of payment.1 But this evidence is open to rebuttal, by proof of circumstances going to show that the intention of the parties at the time of the passing of the check was not to pay and cancel the indebtedness between them, but to make an independent transaction in the way of a loan. A. may be indebted to B., and yet it may be arranged and understood between them that the transfer of money on any particular occasion from A. to B. shall not operate as a payment and discharge of the debt, either in whole or in part, but shall constitute a distinct and separate dealing in the shape of a loan from A. to B. In such case, the evidence of the check may be overruled by the explanatory evidence showing the real character of the transaction.2 If a check be made payable to A. or bearer, it is not evidence of payment of the drawer's debt to A., unless there is also evidence that the amount has been actually paid to A. A.'s name indorsed upon the back of the check will be sufficient evidence that he has received the money upon it.3 A check may be competent, among other evidence, to show the existence of a debt owing at the time of its date from the drawer to the payee. But it is perfectly obvious that it is very far from being, by itself, proof of any such fact.* Where a banking firm is in the habit of furnishing its customers with blank drafts upon it, whereon of course the name and style of the firm appear, it has been held that the customer will be held to have notice of a change in the composition and membership of the firm, if the blanks furnished to and used by him at any time show such alteration in the firm name and style.5 [In this connection see also the chapter on "Customers and Depositors."] 1 Thompson v. Pitman, 1 F. & F. 339. 2 Boswell v. Smith, 6 Car. & P. 60. Egg v. Barnett, 3 Esp. 196. 4 Aubert v. Walsh, 4 Taunt. 293; Lloyd v. Sandilands, Gow, 15, corrected by Baron Alderson in 16 Mee. & W. 827. Barfoot v. Goodall, 3 Camp. 147. Practice. Where to suit by a corporation the general issue is pleaded, the corporation must prove its legal existence. In New York it was held that even the Bank of the United States was not entitled to be excepted from this rule.1 Where a suit to recover upon worthless bills, which have been issued by a banking corporation, is brought against those who are alleged to have been the officers and directors of the corporation, the charter must be proved, if its existence is necessary to make the bank a corporate body.2 Parol and Record Evidence. That a matter is of such a nature that it ought to appear, or might naturally be expected to appear, upon the records or the books of the bank, is no objection to a substantiation of it by parol testimony. This rule is not affected by the fact that the bank offers its books and records, in which no such matter appears. For there is no necessary legal obligation upon a bank, unless by virtue of express imperative legislation, to keep any record, or a thorough record, even of the formal votes of the board of directors. And though express legislation should in any case require such a record to be kept, yet the requisition would probably be only directory in its nature, and if neglected the vote would still remain equally valid, though unrecorded. So also authority, sanction, and ratification, though properly the subject of recorded corporate action, may all be based upon conclusive presumptions of law growing out of acts and dealings and other matters wholly independent of any proceedings appearing of record or capable of so appearing. If the party to the suit seeks to show facts and circumstances which either prove a vote or other corporate action to have been had, or which by legal implication raise in his favor a presumption of 1 United States Bank v. Stearns, 15 Wend. 314. since been dispensed with in New York by special Bank of Genesee v. Patchin Bank, 3 Kern. 309. 2 Gardner v. Post, 43 Penn. St. 19. But this requirement has statute (2 R. S. 458, § 3). such vote or action, the effect of which presumption the law will not allow the corporation to evade by showing that no such vote or action was taken, he may do so by any means in his power. He cannot be shut off from his rights because the means of proving them are not furnished, as they ought to be, by the corporate records. Hence it is a sound rule that the absence from corporate records of notice of a fact, which if it existed ought to be stated there, is not conclusive of the nonexistence of that fact and does not preclude positive parol testimony offered to establish it.1 Isolated Cases. In a suit by a bank upon a note the defendant set up in defence that a former cashier of the bank had failed to credit him with some of his deposits, amounting in all to a considerable sum. But the court held that this showed no defence. The matter was too remote to give rise to a legitimate inference in favor of the defendant.2 The allegation against a bank of negligence in not maintaining a proper supervision for the purpose of detecting frauds or defaults of officers or agents is sufficiently met by the allegation and proof that the bank has taken the customary and uniform method, adopted presumably by other banks generally, with the object of discovering such matters.3 In a suit upon a check payable to bearer, or to " A. or bearer,” evidence to show the holder to be the legal owner or legally entitled to hold and sue upon the same is needless. Such paper passes by delivery, and the mere fact of possession, without more, is prima facie evidence of rightful ownership.* 1 Concord v. Concord Bank, 16 N. H. 26; Edgerley v. Emerson, 3 Fost. 555. 2 Lime Rock Bank v. Hewett, 52 Me. 531. 3 Manhattan Co. v. Lydig, 4 Johns. 377. 4 Cruger v. Armstrong, 3 Johns. Cas. 5. CHAPTER XII. NATIONAL BANKS. [The decisions which have been rendered in construing the provisions of the national banking acts are naturally disconnected in character, and are constantly at variance with each other. It has therefore been deemed best to give them in the shape rather of a digest, or series of brief statements of points and cases, than to undertake the impossible task of writing a logically connected chapter upon the subject.] National Banks are Instruments of the National Government. IT has been said generally, concerning the national banking associations, organized under the acts of congress of 1863 and 1864, that these banks "are instruments designed to be used to aid the government in the administration of an important branch of the public service. They are means appropriate to that end. Of the degree of the necessity which existed for creating them Congress is the sole judge. Being such means, brought into existence for this purpose, and intended to be so employed, the States can exercise no control over them nor in any wise affect their operation, except in so far as Congress may see proper to permit." Any thing beyond this is "an abuse, because it is the usurpation of power which a single State cannot give." Against the national will "the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operation of the constitutional laws enacted by Congress to carry into execution the powers invested in the general government." 1 Where by State statute the establishment of banking com 1 Farmers' & Mechanics' National Bank v. Dearing, 91 U. S. (1 Otto) 29; and see Veazie Bank v. Fenno, 8 Wall. 533. |