Page:Federal Reporter, 1st Series, Volume 4.djvu/531

 IN EE NEW BEUNSWICK CAEPET CO. 617 �V. Mannîng, 12 M. & W. 571; Lancaster Bankv. Woodward, 18 Pa. St. 361; Bunting v. Allen, 3 Ear. (N. J.),300. �The case of Fletcher v. Manning, supra, was a proceeding in bankruptcy, and is directly in point. In proof of the peti- tioning creditor's debt, checks were produced by the creditor, and a elerk was called who testified that when the checks were paid by the banker the bankrupt's account was largely overdrawn. But the court said the proof did not go far enough, and held that a check presented and paid was no evidence of money lent or advanced by the banker to the customer; that, on the contrary, it yi&& prima facie evidence of the repaypent, to the amount of the check, by the banker to the customer of money previously lodged by the customer in the banker's hands. �When it is claimed that a check has been paid without funds antecedently depbsited to meet it, the burden is upon the payee to show it, and no implied promise is raised to redeem the check until the fact is clearly proved. In the present case the claim of the bank is founded upon alleged overdrafts by the carpet company, and a large number of checks is brought forward by the bank to establish such alle- gations. The law casts upon the claimant the burden of showing it by satisfactory evidence. How is it attempted to be done? By the production of the checks, and by the ac- count of the bankrupts with the bank, as it appears upon the books of the respective parties. But in view of the pecu- liar relations which the cashier of the bank and the president of the carpet company sustained towards each other, and in view of the weight of the testimony that the books were sub- ject to their control and manipulation, and do not reveal the real transactions of the parties, I am unwilling to admit to proof any claim supported by any such evidence. I have great respect for the evident candor, honesty, and good inten- tions of the expert witness Burke, who has given so much labor to unravelling the tangled thread of the dealings of these men. He has probably done as weU as any one could do with the material he had to work with, but it is quite clear that the accounts on which he mainly relies for his conclu* ����