The plaintiff was nonsuited in the court below, in an action for money had and received.

The proof consisted of books proved to be the books of the bank, in which it appeared that an account with defendant was kept. The books showed two entries to the credit of the defendant, amounting to $542. A check, signed by defendant for $642 was produced, bearing the same date as the two items of credit, and the account showed a balance against the defendant of $100. The books were objected to, and no proof was offered of the correctness of any entries therein, except as to the two items of credit, which were proved to be correct by the clerk who made them.

Held, that the legal presumption arising from the production of the chéck was, that it was paid out of funds belonging to the drawer: and that there was nothing in the case to rebut that presumption.

*85That the books, without proof either from the clerk who made the debit entries, or otherwise, of the correctness of those entries, furnished no evidence against the defendant.

The judgment was affirmed.

(S. C., 8 N. Y. 170.)