This case stands thus: The note sued on is admitted by the defendants. The deposit of the proceeds in plaintiff bank is admitted, which is the counterclaim. The burden is therefore upon the bank to relieve itself of liability for said deposit by proof of payment. This the bank should be able to do by production of the checks, or otherwise, if checks had been lost. The defendant, of course, could not produce the check which he claims was not given by himself oí by his authority. Payment of the deposit being pleaded by plaintiff, the burden is on him who asserts it. Zachary v. Phillips, 101 N. C., 571; McBrayer v. Haynes, 132 N. C., 610; Guano Co. v. Marks, 135 N. C., 59.
When one has a deposit in bank, it is held subject to his order, and the bank assumes the responsibility for the erroneous payment of any check not drawn nor authorized by the depositor, and the burden of proof is upon the bank. This is elementary law.
The plaintiff relies upon McQueen v. Bank, 111 N. C., 509, in which the bank admitted that the plaintiff had deposited with it a sum of money, but pleaded in its answer that the balance not drawn out had been assigned to it. It failed to offer any evidence in support of such .allegation, and it was held that the plaintiff was entitled to recover the full amount of the deposit, upon the pleadings. That case is in point for the defendant, for here the counterclaim by the defendant is for the .amount of such deposit, and the burden is upon the plaintiff to account for the same.