ent with the depositor.22 But where a bank receives a bond, and the entry thereof in the pass-book of the depositor states the fact, the bank cannot deny that it received the bond as the depositor's.23

$ 360. The contract of deposit. A savings bank does not pay money upon check, but upon production of the passbook accompanied by an order of the depositor. Such banks have generally a by-law to the effect that the deposit will be paid only upon production of the pass-book, and that the possession of the pass-book will be considered proof of ownership of the deposit. Depositors are generally required to sign an agreement to this effect, and the by-law or agreement is always printed in the depositor's book. This by-law is a part of the contract of deposit. The assent of the depositor to it may be express by signing a book kept for that purpose, or it may be inferred from the retention without objection of the pass-book containing the printed rules. This rule was held even as against a depositor who could neither read nor write. This contract is also binding upon the bank. It cannot change its by-laws without notice where the bylaws require notice, and any change does not affect a depos

22 Riley v. Albany Sav. Bank, 36 Hun, 513.

3 Last case cited. But where the by-law requires the book to be 23 Zeugner v. Best, 44 N. Y. Super. signed, the last case holds that the Ct. 393.

1 Heath v. Portsmouth Sav. Bank, 46 N. H. 78; Gifford v. Rutland Sav. Bank, 63 Vt. 108; Appleby v. Erie Co. Sav. Bank, 62 N. Y. 12; Levy v. Franklin Sav. Bank, 117 Mass. 448; Burrill v. Dollar Sav. Bank, 92 Pa. 134; Kummel v. Germania Sav. Bank, 127 N. Y. 488. Contra, Eaves v. Savings Bank, 27 Conn. 229. But under this last case, if the rule had been conspicuously posted up it seems that the ruling would have been different.

2 Gifford v. Rutland Sav. Bank, 63 Vt. 108.

assent may be expressed in some other way; but Kress v. East Side Bank, 21 N. Y. Supp. 652, holds that even a signature to the by-laws is not sufficient where the bank has not affirmatively complied with a statute requiring the by-law to be posted up.

4 Geitelsohn v. Citizens' Sav. Bank, 40 N. Y. Supp. 662; Warhus v. Bowery Sav. Bank, 5 Duer, 67; Burrill v. Dollar Sav. Bank, 92 Pa. 134. The statute seems to make the rules constructive notice.

5

itor until he is notified; and on principle, if the by-law is a part of the contract, it cannot change it at all as to a previous depositor without the assent of the depositor." If the by-law or rules require an order from the depositor, the bank is bound by the rule. If the by-law requires the order to be witnessed the rule is binding on the bank, and it is liable for money paid contrary thereto. But the by-law of the bank cannot discharge the bank from its own negligence. Whatever the by-law may be, though it says that all pay ments upon production of the book shall be valid, and though the depositor has assented thereto, nevertheless the bank must exercise reasonable care and caution in making the payment. This duty is fully discharged only by an active vigilance in the protection of the depositor's rights.10 This question of due care is for the jury to decide as a question of fact," except that one case held, erroneously, that where the question was upon due care of the bank, and the bank had before it the genuine signature of the depositor, which differed from the signature upon the order presented, it was not necessary to submit to the jury the question whether the latter ought to have noticed the difference.12 But the ruling is no longer authority, and is not given any credence in the lower courts of the same state."

5 Kimins v. Boston Sav. Bank, 141 Mass. 33. The same contract continues for succeeding deposits until notice is given. The same rule ap plies in favor of the corporation in its internal affairs. French v. O'Brien, 52 How. Pr. 394.

6 Kimins v. Boston Sav. Bank, 141 Mass. 33.

7Kummel v. Germania Sav. Bank, 127 N. Y. 488.

Another ruling in a Ver

ple's Sav. Bank, 110 Mich. 175; Allen v. Williamsburg Sav. Bank, 69 N. Y. 314; Goldrick v. Bristol Sav. Bank, 123 Mass. 320.

10 Allen v. Williamsburgh Sav. Bank, 69 N. Y. 314; Kummel v. Germania Sav. Bank, 127 N. Y. 488. 11 Smith v. Brooklyn Sav. Bank, 101 N. Y. 58.

12 Appleby v. Erie Co. Sav. Bank, 62 N. Y. 12. Two able judges dis

8 People's Sav. Bank v. Cupps, 91 sented. Pa. 315.

9 Kimball v. Norton, 59 N. H. 1; Kummel v. Germania Sav. Bank, 127 N. Y. 488; Aukenhausen v. Peo

13 Fricke v. German Sav. Bank, 4 N. Y. Supp. 627; Saling v. German Sav. Bank, 7 N. Y. Supp. 642.

mont case did not leave a question of fact to the jury where the circumstances were suspicious.14

§ 361. Ownership of the deposit.- Deposits in savings banks are peculiarly prolific in questions as to the real owner of the deposit. Husband and wife often make deposits in the bank in their joint names, and the rule as to ownership when one dies is difficult to find. One case held such a deposit meant that the deposit belonged to the survivor.1 But a deposit to the credit of "J., or wife B.," was held to prove simply that each should have power to draw the money.2 Another case says that such a deposit is payable to either or to the survivor, but not to the personal representative of one and the other equally. It is plain that the rule of survivorship ought to govern in such a case, and the deposit should belong to the administrator of the one last deceased. But where a deposit is in the joint names of two persons, not husband and wife, without any provision as to survivorship, no presumption as to survivorship ought to be indulged, and the case should be left to proof as to the respective portions of each depositor where one of them is deceased. In the absence of proof the deposit ought to be divided equally. Deposits are often made by one person in the name of another. In such a case evidence is always admissible to show the intention of the depositor in making the deposit.* Thus, where a father made a deposit in his daughter's name, evidence was admitted to show that he intended to make her trustee for him, because he already had in his own name as much money deposited as the law permitted. The question as

14 Gifford v. Rutland Sav. Inst., 63 Vt. 108. The man who drew the deposit could not sign his own name properly, yet the court says this was not a suspicious circumstance. It may not be so in Vermont, but it would probably be held to be elsewhere, even in Louisi

ana.

1 In re Brooks, 5 Dem. Sur. 326.

2 Burke v. Slattery, 31 N. Y. Supp. 825.

3 Mulcahey v. Emigrant Sav. Bank, 62 How. Pr. 463. Compare In re Smith, 17 Abb. N. C. 78.

4 Northrup v. Hale, 72 Me. 275; Gerrish v. New Bedford Inst., 128 Mass. 159.

5 Brabrook v. Five Cent Sav. Bank, 104 Mass. 228. The case

to the ownership is complicated by the rule that the delivery of the bank-book is necessary in order to draw the deposit. So it is held that a deposit to the credit of one person as trustee for another, where the deposit is made by the first person, and the other was not cognizant of the deposit and did not receive the pass-book during the life-time of the depositor, was not a deposit owned by the beneficiary under this rule, although there was evidence to show that the depositor intended to create a trust. But these cases are wrong, because the by-law or rule is not intended to regulate deposits in trust, and at any rate the book is only necessary to the conveyance of the legal title. The cases holding the other rule are much to be preferred. But where a

deposit is made payable to either of two or the survivor and no delivery of the book is made, the deposit is the property of the depositor. In these cases also the book ought to have been held merely evidence of the legal title, and the provision of survivorship ought to have created a trust unless there was parol evidence to rebut it. The court makes the mistake of considering the case one of gift. It ought to have been considered as a declaration of trust, just as if it were to the use of both during the life of both, then to

holds that the illegality in the contract could not be set up by the daughter, a stranger to it, nor was it an estoppel in her favor. In another case a deposit was made in an assumed name. Davenport v. Savings Bank, 36 Hun, 303. The refusal of the bank to pay the owner of the deposit was held to be unjustifiable, where he proved his ownership of the deposit by an affidavit and tendered the passbook. But even if the bank had paid under such circumstances it is difficult to see how it would have been protected against the real

owner of the deposit, had the affidavit proven untrue.

6 Clark v. Clark, 108 Mass. 522; Bartlett v. Remington, 59 N. H. 364. Compare Pope v. Burlington Sav. Bank, 56 Vt. 284.

7 Blasdell v. Locke, 52 N. H. 238; Boone v. Citizens' Sav. Bank, 84 N. Y. 83; Weaver v. Emigrant Sav. Bank, 17 Abb. N. C. 82.

8 Gorman v. Gorman, 39 Atl. R. 1038 (Md.). The language of this opinion goes far beyond anything necessary to be decided. The parol evidence rebutted the trust and that ended the case. Flanagan v. Nash, 185 Pa. 41.

the use of the survivor. The trust is not executory, it is executed, and there remains nothing to be done in order to complete the declaration of trust. Surely the depositor need not say to himself, I deliver this book from myself to myself as trustee. Another case holds, however, that a deposit by a husband in his wife's name is not a deposit in trust for her; 10 and in yet another case the same ruling was very properly made where the deposit was so made that either the husband or wife could draw it."

§ 362. Transfer of deposit.— As we have seen, the courts consider the matter of transferring the pass-book as controlling, where the pass-book is required to be produced for payment. But the pass-book is not a document that is negotiable, nor would a title pass with the possession, as in the case of an instrument which is negotiable upon delivery, although the rule of the bank declares that a payment upon the book produced shall be a valid payment.2 Singularly enough the courts give effect to part of the rule by holding the transfer of the book necessary to convey title, yet deny to the rule efficacy to make the pass-book negotiable. the same courts which require a transfer upon the bank's books to convey the full legal title deny that such a transfer is necessary to convey the legal title in the case of certificates of stock made transferable only on the books. But it might be said that a pass-book obtained by fraud, when transferred to a bona fide purchaser, conveys a good

9 Boone v. Citizens' Sav. Bank, 21 Hun, 235; Fowler v. Bowery Sav. Bank, 47 Hun, 399.

10 Fairfield Sav. Bank v. Small, 90 Me. 546. Since there was evidence to create a trust, the form of the deposit being such evidence, this case is wrong in its language, although the decision is correct, since the trust was rebutted. But see Kennebec Sav. Bank v. Fogg, 83 Me. 374; In re Smith, 17 Abb. N. C.

Yet

11 Brown v. Brown, 23 Barb. 565. Compare Gerrish v. New Bedford Inst., 128 Mass. 159.

1 See cases cited in note 6 to last section, which ought not to have been considered as cases of transfer.

2 McCaskill v. Conn. Sav. Bank, 60 Conn. 300; Smith v. Brooklyn Sav. Bank, 101 N. Y. 58. A by-law can not make the book negotiable. Witte v. Vincent, 43 Cal. 325.