Gettysburg National Bank v. Kuhns , 62 Pa. 88 ( 1869 )

The opinion of the court was delivered,

by Sharswood, J.

The 2d and 3d assignments of error having been withdrawn from our consideration by the counsel for the plaintiff in the argument at the bar, all the questions arising on this record are resolvable into one, namely, whether any evidence was given on the trial in the court below to charge the defendants, the Gettysburg National Bank, with the receipt of money for the use of the plaintiff, John Kuhns.

It was in proof that a check or draft was drawn by Colonel Lawler, as paymaster of the United States, in favor of the bank by the order of Kuhns and for his use. It was not, however, transmitted by Colonel Lawler to the bank for Kuhns, but to Captain Norris. Though Captain Norris was examined as a witness, there was no testimony by him, either denying the receipt or explaining what he had done with it, if he did receive it. It was insisted that the bank should be held liable merely on-the evidence that the cheek was drawn in favor of their cashier and the money received by him. So the learned judge below held, and instructed the jury accordingly in his answers to the several points presented by the plaintiff and the defendants. In this we think there was error.

It is well settled that a check of itself is not evidence of a debt, or loan of money. The presumption is that it was taken either in payment of a debt or that cash was given for it at the time it was received: Aubert v. Walsh, 4 Taunt. 293; Patton v. Ash, 7 S. & R. 125; Flemming’s Exrs. v. McClain, 1 Harris 177; Lancaster Bank v. Woodward, 6 Id. 357. Proof of the payment of a' check to the payee or holder, raises no presumption that the money so paid was an advance by the drawer or received to his use. In Geatorex’s Exrs. v. Gerrish, 4 Esp. 9, where a draft was given by a testator on his bankers payable to the defendant, and it was proved by the bankers that the money was paid to the defendant out of the money of the testator then in their hands,-it was ruled to be no evidence of a debt. This case is cited with approbation in Flemming v. McClain, 1 Harris 178, and it is in effect the same as that now before us. The money in the United States treasury at New York may be considered as the money of the plaintiff, John Kuhns, and the draft of Colonel Lawler, drawn by his (Kuhns’s) order, was, in effect, his draft. Had this been John Kuhns’s own check in favor of the Gettysburg National Bank, then this would have been the identical case decided by Lord Kenyon in 4 Esp. Rep. 9. It certainly can make no difference that it was a draft drawn by a third person by the order and for the money of the plaintiff. Drafts or checks held by banks, drawn in their own favor, are prima, facie presumed to have been received by them on deposit as cash from their customers, and not to have been deposited for collection merely, unless some evidence be adduced to show that fact. That a check was taken as cash, it may well be impossible for a bank, in the multiplicity of its transactions, to trace and prove. It would be credited in the depositor’s account simply as so much money, and no entry necessarily made in any other book to show from whom it was received. As it was drawn in favor of the cashier of the bank, the endorsement of the depositor would not be required. It is not a good argument, therefore, to say that if the bank gave value for this check, it was incumbent on them to prove it. The presumption resting on the usual course of transactions of this nature was in their favor, and stabit prcesumptio donee probetur in contrarium. It was incumbent on the plaintiff below — the onus was upon him — it was the exigency of the count for money had and received in his declaration — to show that the money was received by the bank to his use, and this he failed to do by merely proving the check or draft, and the receipt of the amount of it by the bank.

Judgment reversed, and venire facias de novo awarded.