The opinion of the court was delivered by
Kennedy, .1.The plaintiff in error, who was also the plaintiff below, and the defendant had been the joint endorsers of an accommodation note in the Farmer’s Bank of Lancaster, for Nicholas Marks. This note was protested for non-payment, Nicholas Marks, as drawer, and the plaintiff and defendant as indorsers of the note, were all sued by the bank, and a judgment obtained against them for five hundred and eighty dollars, with interest thereon, from the 17th of October, 1820, beside the costs of suit, which was paid equally by the plaintiff and defendant; the drawer Nicholas Marks being insolvent, and unable to pay any part of it. The plaintiff however alleged, that the defendant had taken a judgment bond of indemnity from Nicholas Marks, for and on account of his having indorsed this note. That he had entered up judgment upon the bond, and had received monies from the estate of Marks, exceeding inamount the whole of the judgment obtained against them as the endorsers of Marks, and that the defendant was therefore bound to reimburse him.
This action was brought to compel the defendant to do so. In the declaration the plaintiff has given a particular statement of the transaction in the first count, to which he has added a count for money had and received and another for money paid, laid out and expended.
The plaintiff, on the trial of the cause, after having given in evidence the record of the judgment obtained by the bank against Marks, the defendant and himself, upon the note, as also the note itself, and ais.Ji.fa. having been issued upon that judgment against them, and of his having paid to the sheriff on that fi. fa. three hundred and thirty-six dollars and forty cents; then offered in evidence, “the bank statement,” by which it would have appeared that Nicholas Marks had a note discounted, indorsed by the defendant for six hundred dollars, on the 24th of March, 1812, and that it was continued by renewal from time to time with the name of the defendant as endorser thereon, until the first of April, 1817, *280when it was endorsed by the defendant and the plaintiff jointly, and renewed for nine hundred and fifty dollars, and continued by renewal from that time with their endorsements down to the 17th of October, 1820, when after having been reduced in the interim to $580 it was protested for non-payment. And in addition to this, he offered likewise in evidence, the record of a judgment entered upon a judgment bond in favor of the defendant against Nicholas Marks, the drawer of the note, to January term, 1816 for four thousand dollars, in connection with an instrument of writing, of the same date, with the judgment bond, signed by the defendant, declaring that the judgment bond was given to him by Nicholas Marks as an indemnity for his, the defendant’s, being the endorserof Marks in the Farmer’s Bank of Lancaster, and security for monies obtained of divers persons by the said Nicholas Marks, which was objected to by the defendant’s counsel, and the testimony overruled by the court; to which the plaintifi’s counsel excepted and this forms the first error assigned.
By what is called the “Bank statement”-must be understood a copy, or abstract from the bank books, or the bank books themselves, or whether the one or the other, I think neither were admissible as offered in evidence. In Philadelphia Bank v. Officer, 12 Serg. & Rawle, 49, it was decided by this court, that the entry in the books of an incorporated bank was not admissible as evidence to shew a deposite of money, in a suit to which the bank was not a party, unless it be first proved that the clerk who made the entry was dead, or beyond the reach of the process of the court, although it was admitted that the entry offered tobe read in evidence in that case, was in the hand-writing of James Marshall, who was also admitted to have been a clerk of the bank at the time of making it. I take it to be a general and established principle, that neither copies of the books of an incorpora ;ed bank, nor the books themselves, are admissible in evidence against any other than the bank, or without proof being first mrde, by whom the entries in the book were made: and that the proper witnesses to make such proof are the clerks by whom the entries were made, if to be found within the jurisdiction of the court, but if dead or out of the jurisdiction of the court, proof may be made of their hand-writing. To say that the books only when duly proved, and not copies of them, shall be admitted in evidence, might be to establish a rule that would be attended with great inconvenience; as for instance, when the bank is located at a great distance from the-place of trial, and the books in daily use and demand, for the ordinary transactions of the bank with the public, or where the production of them was required at different places at the same time. In these cases it appears to me that it would be almost if not alto*281'gether impracticable to comply with the rule, and therefore an examined copy with proof that the original entries were made by an officer of the bank, and this proved by the officer himself, if to be found, and if not, then upon proof of his hand-writing, might I think, be fairly admitted in evidence. Ridgeway v. the Farmer’s Bank, 12 Serg. & Rawle, 263. Bell et al. v. Keely, 2 Yeates, 255.
■ But the record of the judgment and the writing of the defendant explaining the purpose for which the judgment was given by Marks, ought to have been admitted in evidence; because they had obvious bearing upon the ground of the plaintiff’s claim: and it would have been for the jury to have decided after hearing the whole evidence, whether the judgment offered to be given in evidence, was taken by the defendant for the purpose of indemnifying him against the amount of the note endorsed by him and the plaintiff, had paid by them for Marks, and whether again the defendant had not received the whole amount of the note so endorsed and paid under the judgment. And if the jury had been satisfied that it was so, the plaintiff would have been entitled to their verdict. The record of this judgment, and the written declaration of the defendant, shewing the object of the judgment formed quite a prominent link in a chain of evidence to establish the plaintiff’s claim, and ought therfore to have been'admitted. There was error in rejecting it.
What I have already said in regard to the court below refusing to admit the bank statement in evidence, dispose of the second error assigned by the plaintiff, and shews that the court were ■ right in rejecting it again when offered the second time.
The third and last error arises out of a third bill of exception, The court over-ruled proof offered by the plaintiff, that the defendant had received three thousand dollars of the estate of Nicholas Marks, the drawer of the note, .
I can see no good reason for rejecting this proof. For it is a part of the three thousand dollars which the plaintiff offered" to prove had been received by the defendant, of the estate of Marks, were received by him for the purpose of paying the amount of the note endorsed by the plaintiff and defendant or to indemnify against or for having paid the same, it would have been money held in trust for the plaintiff, so far as he had contributed to the payment of the note, and he would have been entitled to recover it from the defendant under- the money counts in his declaration. To justify the jury jin finding that as much of the three thousand dollars as would have satisfied this note or the amount of money paid by the defendant and plaintiff in discharge of it, was received by the defendant for that purpose, it would have been sufficient for the plaintiff to have proved merely that the defendant received *282the money, out of the estate of Nicholas Marks, without proving-on what account he received it, or a different amount from that alleged by the plaintiff. This I think would have been fair, because if received on a different amount, the defendant must know although the plaintiff might not. At all events, the proof was proper testimony to have gone to the jury, and it would have remained with them to have decided as a matter of fact, for what purpose the defendant had received the money. I think there was error also in rejecting this proof offered by the plaintiff. The judgment of the district court is reversed and a venire de novo awarded.