#### WASHINGTON HORSE EXCHANGE v. WILSON & McCOY.

(Filed 25 February, 1910.)

Evidence — Attachment—Examination of Books — Testimony as to Contents, When.

In proceedings in attachment levied on the proceeds of a draft with bill of lading attached, drawn on plaintiff by defendants in payment for a carload of goods, the draft made payable to a bank, an intervenor, it is competent for the cashier of the bank to testify that the bank books showed that the bank purchased the draft for value before sending it out for collection, and that, at the time the attachment was levied, it was the property of the bank; though he had no personal knowledge of the transaction and had based his testimony upon an examination of the books of the bank. This is of necessity so in a case when the books are without the State, and beyond the jurisdiction of the court, and could not well be introduced without stopping the business of the bank.

Appeal by plaintiff from Ward, JDecember Term, 1909, of Beaufort.

Tbe following issue was submitted to the jury: “Is the inter-pleader, First National Bank of Terre Haute, Indiana, the owner of the proceeds of the draft in question?” The jury answered the issue, “Yes.”

The facts are stated in the opinion of the Court.

Bragaw & Harding for plaintiff.

W. G. Rodman for the intervenor, the First National Bank of Terre Haute.

BrowN, J.

Plaintiff instituted suit in the court of a justice of the peace • against defendant, and .caused attachment to be issued, which was levied upon the proceeds of a draft drawn by defendant on plaintiff, for the purchase money of a carload of hay, shipped by defendant to plaintiff.. The plaintiff recovered judgment. The draft made by defendant on plaintiff was payable to the order of the First National Bank of Terre Haute, Indiana, with bill of lading attached. ■

First National Bank of Terre Haute intervened, alleging ownership of the proceeds of the draft. This was the only question involved in the trial in the Superior Court.

The intervenor offered the deposition of Bertis McCormick, cashier of the First National Bank of Terre Haute, Indiana, and the plaintiff in apt time objected to and moved to strike out the same, upon the ground that it was hearsay, and incompetent.

Plaintiff, at the close of the testimony of the intervenor, requested the court to charge the jury: “That upon all the evi-*22deuce in tbis case, tbe intervenor, First National Bank of Terre Haute, bas not proved title to tbe fund attached, and you will answer tbe issue No.’ ”

Tbis request was refused, and plaintiff excepted.

Tbe learned counsel for plaintiff bases tbis instruction upon tbe theory that tbe court erred in admitting tbe testimony of Bertis McCormick, tbe cashier of tbe intervenor, and contends that if that be excluded there is no evidence that tbe Terre Haute bank owned tbe proceeds of the draft at tbe time they were attached.

Tbe witness in chief testified that tbe draft was purchased for value by bis bank before it was sent out for collection, and that at tbe time tbe attachment was levied it was. the property of that bank. Upon cross-examination witness stated that be bad no personal knowledge of tbe transaction, as it was not done through him personally; that be bad charge of tbe books of tbe bank and bad examined them; that they showed that tbe Terre Haute bank discounted tbis draft on 8 August, 1907, and forwarded it for collection; that tbe proceeds were credited to drawers and tbe bank bad never been reimbursed.

It is contended that tbe cashier’s evidence was incompetent and that tbe books were the only competent evidence.

Tbe books of tbe intervenor were in Terre Haute, Indiana, beyond tbe jurisdiction of tbe court, and could -not well be introduced without stopping tbe business of tbe bank. The case cited by Major Rodman, tbe learned counsel for tbe intervenor, in bis well-considered brief, decides tbe very point against tbis plaintiff. In tbe opinion the Supreme Court of tbe United States says: “Tbe next assignment of error is tbe admission in evidence of such parts of the deposition of A. L. Turner and C. P. Steers as refer to what appeared or did not appear on tbe books of tbe Tioga County Bank.” The Court proceeds to say: “When it is necessary to prove tbe results of voluminous facts or of tbe examination of many books and papers, and the examination cannot be conveniently made in court, tbe results may be proved by tbe person who made tbe examination. Here tbe object was to prove, not that tbe books did, but that they did not show certain things. Tbe results sought to be established were not affirmative, but negative. If such testimony be competent as .to tbe former, a multo fortiori must it be so to prove tbe latter.”

We are also inclined to think that tbe testimony of Dumay was sufficient to take tbe case to tbe jury, but it is unnecessary to decide that point in view of our ruling upon tbe other. The judgment is

Affirmed.