FARMERS’ AND MECH’S’ BANK v. SELLERS et al.
September 21, 1839.
Rule to show cause why a judgment should not he set aside.
1. An accidental over-draft of a depositor on a bank, is not a “contract for the loan or advance of money,” under the fourteenth section of the act of 11th March, 1336, entitling the plaintiff to judgment for want of an affidavit of defence in this court.
2. The act of 11th March, 1836, means actual or express contracts for the loan or advance of money.
THIS was an action to June term, 1839. The plaintiffs filed an affidavit setting forth in substance, that the defendants kept an account in the bank as depositors, and that defendants had overdrawn it to the amount of $-, in which sum defendants were indebted, &c. No affidavit of defence having been filed on the regular motion day, the plaintiffs had judgment under the act of 28th March, 1835.
The defendants moved to set this judgment aside as irregular, and obtained this rule to show cause.
MarUand, for the rule.
F. W. Hubbell, contra.
Per Curiam.—
The act of 11th March, 1836, {Stroud’s Purd. tit. Courts,) applies to actual or express “ contracts for the loan *330or advance of money,” but not to cases where there is in fact no contract, although the circumstances are sufficient to support assumpsit. Where, by a previous agreement, the bank allows a depositor to overdraw, that might amount to a contract of loan or advance within the act, but an accidental overdraft negatives the idea of an express or actual contract, though the defendant on other grounds is bound to repay.
Rule absolute.