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.1 The assent of the depositor to it may be express by signing a book kept for that purpose,2 or it may be inferred from the retention without objection of the pass-book containing the printed rules.3 This rule was held even as against a depositor who could neither read nor write.4 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 depositor until he is notified;5 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.6 If the by-law or rules require an order from the depositor, the bank is bound by the rule.7 If the by-law requires the order to be witnessed the rule is binding on the bank,8 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 payments 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.9 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,11 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.13 Another ruling in a Yermont case did not leave a question of fact to the jury where the circumstances were suspicious.14

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

23 Zeugner v. Best, 44 N. Y. Super. 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.

3 Last case cited. But where the by-law requires the book to be signed, the last case holds that the 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.

4Geitelsohnv. 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 Kimins v. Boston Sav. Bank, 141 Mass. 33. The same contract continues for succeeding deposits until notice is given. The same rule applies 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.

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

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

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