third persons are treated as original evidence. Entries by third persons are divisible into two classes: 1. Those which are made in the discharge of official duty, and in the course of professional employment; and 2. Mere private entries. Of these latter we shall hereafter speak. In regard to the former class, the entry, to be admissible, must be one which it was the person's duty to make, or which belonged to the transaction as part thereof, or which was its usual and proper concomitant."

In 1 Wharton on Evidence, 3d ed., section 238, it is said: "An accountant or other business agent may be regarded as a member of a well-adjusted business machine; noting, in the proper time, and in the proper way, what it is his duty to note. If he has no personal motive to swerve him, the inference is, that what he does in this way he does accurately; and his evidence, if there be nothing to impeach it, rises in authority precisely to the extent to which he is to be regarded as a mechanical and self-forgetting register of the events which his accounts are offered to prove. Hence it is that the memoranda, or book-entries, of an officer, agent, or business man, when in the course of his duties, become evidence after his decease, or after he has passed out of the range of process, or become incompetent to testify of the truth of such entries; subject, however, to be excluded if it appear that in making the entries he was not registering but manufacturing current facts." The rule as stated by Greenleaf and Wharton is well supported by authorities: Sickles v. Mather, 20 Wend. 70; 32 Am. Dec. 521.

In the case of Faxon v. Hollis, 13 Mass. 427, the book of a blacksmith, kept in ledger form, the items being first noted down on a slate and then entered in the book, was held to be competent evidence: Reynolds v. Manning, Stimpson, & Co., 15 Md. 510; Kelsea v. Fletcher, 48 N. H. 282; Coolidge v. Brigham, 5 Met. 68; New Haven etc. Co. v. Goodwin, 42 Conn. 230. In Alter v. Berghaus, 8 Watts, 77, it is held that the absence of a witness from the state, so far as it affects the admissibility of secondary evidence, has the same effect as his death. This was in relation to the admission in evidence of original entries in books make by such absent person.

We think the evidence is clearly admissible; but we might add that as regards the books kept by book-keepers and officers of national banks, by section 5209 of the Revised Statutes of the United States, it is made a penal offense to make a

So that these entries were not

false entry in any such books. only made as original entries in due course of business, but the persons making them were liable to criminal prosecution, and upon conviction to suffer imprisonment if they made a false entry.

A book-keeper for the bank made out a statement of all the items of Culver's account appearing in the books of the bank, and appeared and was sworn as a witness, and stated that he had prepared such statement and had it with him, and, with the books before him, was interrogated as to what items appeared in the account. The court permitted such statement so made out and testified to by the witness in evidence, and allowed the same to be read to the jury over the objection and exceptions of the appellant, and this ruling of the court is complained of as error.

This was a long statement of account, and the witness who made out the statement was subject to cross-examination. The appellant had an opportunity to test its correctness and cross-examine the witness who made out the statement.

The appellant had as full and complete an opportunity to discover any error in the statement made by the witness as if he had appeared as a witness and testified from the books without making any written statement.

Where the entries in books are numerous and complicated, it is competent to permit an expert book-keeper who has examined the books to give a summary oral statement of their contents and computations made. See Elliott's Work of the Advocate, 217, and authorities there cited. See also Von Sachs v. Kretz, 72 N. Y. 548; McCormick v. Pennsylvania etc. R. R. Co., 49 N. Y. 315; Howard v. McDonough, 77 N. Y. 592. And we can see no reason why, when such expert witness, who has examined the books and made an abstract of them, testifies as a witness, and opportunity is given for cross-examination in regard to such statement, as in this case, the statement may not be admitted in evidence, and read to the jury. We think the abstract of the books was properly admitted. But the origi nal entries made in the books were also in evidence in this case, and no complaint is made that the statement did not correspond with the books. Whether properly admitted or not, no harm could have resulted to the appellant by reason of the admission of such statement, and therefore no reason exists for the reversal of the case: Citizens' State Bank v. Adams, 91 Ind. 280; Hays v. Morgan, 87 Ind. 231, 235, 236.

There is a further question as to the ruling of the court in refusing to allow the appellant to ask one Spencer a crossexamining question. We have considered this, and there was

no error.

There is no error in the record for which the judgment should be reversed.

Judgment affirmed, with costs.

PRESENTMENT OF A CHECK FOR Payment must be made, and made within a reasonable time, to hold the drawer liable thereupon: Parker v. Reddick, 65 Miss. 242; 7 Am. St. Rep. 647; Holmes v. Roe, 62 Mich. 199; 4 Am. St. Rep. 844; Bassenhorst v. Wilby, 45 Ohio St. 333. But there is no such necessity for demand of payment when the drawer has no funds in the bank upon which the check is drawn: Kinyon v. Stanton, 44 Wis. 479; 28 Am. Rep. 601, and note; Fletcher v. Pierson, 69 Ind. 281; 35 Am. Rep. 214; Brush v. Barrett, 82 N. Y. 400; 87 Am. Rep. 669.

BANKS AND BANKING.—The practice of paying overdrafts, even to persons of good standing with the bank, has no authority in sound usage or in law: Lancaster Bank v. Woodward, 18 Pa. St. 357; 57 Am. Dec. 618.

Books OF ACCOUNT AS EVIDENCE: See extended note to Union Bank v. Knapp, 15 Am. Deo. 191-198; Miller v. Shay, 145 Masa. 162; 1 Am. St. Rep. 449, and note; Raynolds v. Sumner, 196 Ill. 58; 9 Am. St. Rep. 592.

CASES

IN THE

SUPREME COURT

OF

LOUISIANA.

CONOLLY v. CRESCENT CITY RAILROAD COMPANY.

[41 LOUISIANA ANNUAL, 57.J

COMMON CARRIERS—RIGHT TO EXCLUDE SICK PASSENGER. A common carrier by street-railway owes obligations to and is bound to protect both its sick and its well passengers, and when the condition of a sick pas senger is such that his continued carriage is inconsistent with the safety, or even the reasonable comfort, of his fellow-passengers, regard for the rights of the latter will authorize the carrier to exclude him from the conveyance. This right of exclusion cannot be exercised arbitrarily or inhumanely, or without due care and provision for the safety and wellbeing of the ejected passenger, and for any abuse of this right, or oppres sion in its exercise, the carrier is responsible in damages. COMMON CARRIER — STREET-RAILWAYS — DUTY TO SICK PASSENGER. Where a passenger on a street-car, who has been conveyed a considerable distance without voluntary misconduct on his part, is suddenly stricken with apolexy, and thus rendered helpless and speechless, and subject to severe fits of vomiting, his removal from the car, by the driver, into the roadway of the street, and leaving him there, on an inclement day, without the slightest attempt at that time or afterward to have him taken care of, is a gross violation of duty, for which the carrier is liable in damages, nor will the mistaken supposition of the driver, that he was drunk at the time of his exclusion, excuse the carrier's liability. COMMON CARRIER-DUTY TO SICK PASSENGER - PRESUMPTION.

An expressed desire by a passenger by street-railway, after being stricken with apolexy, to leave the car while he thought he was able to do so and to take care of himself, will not raise the presumption that he desired to be removed into the street, and there left without care and attention after he had fallen down in an utterly helpless condition.

ACTION for damages for personal injuries. Judgment for plaintiff. Defendant appeals.

John M. Bonner, for the appellant.

James Wilkinson, and Zacharie and Armstrong, for the appellee.

FENNER, J. On a Sunday in December, at about two o'clock of the afternoon, Patrick Conolly, a sober, respectable citizen of fifty-five years, entered a car of the defendant's street-railway, and paid his fare as a passenger. Nothing in the evidence indicates that he exhibited any sign of intoxication or was guilty of the slightest impropriety of behavior on entering the car, or until he had ridden a considerable number of squares (from Terpsichore to Third Street), and the testimony is conclusive that in point of fact he was perfectly sober. After passing Third Street, he was suddenly stricken with apolexy, accompanied, as the medical experts prove to be common, with severe vomiting. The car had numerous passengers, to whom this vomiting undoubtedly occasioned serious discomfort and inconvenience. Some of them left the car on account of it, while others of those remaining suggested that he should leave the car, and took steps to call the attention of the driver to the necessity of removing him. The sick man had sufficient consciousness and sense of propriety left to observe this, and he said: "I will get out myself"; but on rising to do so, he fell prone upon the floor, where he lay absolutely helpless. As far as appears, he never spoke again, and was incapable of taking any care of himself. The driver then came back, and, with the assistance of a passenger, bodily lifted him, carried him out of the car, and laid him down in the street, between the car-track and the gutter, between two and three feet from the former. The evidence is conclusive that, almost immediately afterward, and while the car was moving off, he shifted his position by some convulsive movement, so that his legs were across the rail of the track. This is proven by passengers who saw him in this position as the car moved away, and by others who came to him immediately afterwards. The driver, however, after thus summarily disposing of his stricken passenger, paid no further attention whatever to the matter. He took no steps to secure for him any relief or assistance. It is doubtful if he made any report of the incident to his employers, and if he did, it was not acted upon. He simply went his way in a serene confidence that, as he expresses it, he had "done his duty," and although he passed the point several times while his ejected passenger was still lying help