#### Frank Sparks, Appellee, v. Robert G. Rayburn et al., trading as the Home Bank, Appellants.

(Not to be reported in full.)

Appeal from the Circuit Court of Champaign county; the Hon. William G. Cochean, Judge, presiding. Heard in this court at the October term, 1913.

Affirmed on remittitur; otherwise reversed and remanded.

Opinion filed October 16, 1914.

Rehearing denied December 2, 1914.

Certiorari denied by Supreme Court (making opinion final).

Statement of the Case.

Action of assumpsit by Frank Sparks against Robert Gr. Rayburn, W. O. Dale, J. N. Black and F. B. Vennum, partners as the Home Bank, to recover a balance of deposits made by plaintiff in a bank operated by defendants.

The bank never furnished plaintiff a pass book.

Defendants contended that no formal demand was made, while testimony for plaintiff tended to show demand had been made and refused. The testimony also tended to show that defendants had denied that any balance was due plaintiff.

The errors assigned were the refusal to admit in evidence the ledger of the bank and in giving certain instructions requested by plaintiff.

The jury found the issues in favor of plaintiff and returned a verdict in his favor in the sum of thirteen hundred and fifty dollars, which figure was reached either by a mistake in adding items or by allowing interest which had not been claimed.

To reverse the judgment entered on the verdict, defendants appeal.

Dobbins & Dobbins, Asa S. Chapman and C. R. Iungerich, for appellants.

*439Abstract of the Decision.

1. Action, § 15 * —when demand not prerequisite. In an action to recover a balance of a bank deposit alleged to be due, where the evidence tends to show that defendants refused plaintiff’s request for a pass book, statement of his account or return of his checks and that they denied that any balance .was due him, proof of a formal demand for the deposits is not necessary.

2. Evidence, § 259*—when books not of original entry inadmissible. A ledger of a bank which is not a book of original entry, but is made up in part of entries from books of original entry, is inadmissible in evidence.

3. Evidence, § 259*—when book containing summary from book of original entry inadmissible. In an action by a bank depositor to recover the balance of his deposit, certificates of deposit issued by the bank are prima facie evidence of deposits, and a ledger which does not contain the original entries but is made up of entries from other books, and the entries in which show, in many instances, not the true amounts of the transactions but their net results, is inadmissible.

4. Damages, § 246*—when remittitur proper. Where the verdict of the jury shows that either they made a mistake in the addition of the items claimed or included interest which was not claimed, a remittitur will be entered for the excess.

5. Appeal and ebbob, § 1523*—when error in giving instruction harmless where objection applies to those for both sides. Where the instructions given on behalf of defendant are open to the same objection as those given on behalf of plaintiff, defendant cannot be heard to complain thereof.

Green & Palmer, for appellee; Oris Barth, of counsel.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Eldredge

delivered the opinion of the court.