Watson v. President of the Phœnix Bank

Hubbard, J. The plaintiff, in support of his claim, produced the ledger of the defendants, and offered the president of the bank as a witness to prove the entry to his credit in the book. The defendants objected to the introduction of this testimony, on the ground that it was not the best evidence which the nature of the case admitted, and because the entries therein were not proved by the clerk by whom they were made; but the. objection was overruled. 1. It was argued by the counsel for the defendants, that the bank book of the plaintiff, in which the deposit was entered, was better evidence of the amount due than the books of the bank, and ought to have been produced. The bank book, so called, is a small book in which the entries of deposits made by the depositor are entered by a clerk of the bank, and correspond with the entries in the bank books ; and they are made for the convenience of the depositor, who keeps the book to regulate his checks upon the bank, that he may not overdraw his account. But the book does not prove itself, and the entries it contains furnish no better evidence of the plaintiff’s claim than the entries in the books of the bank; [221] when admitted, they are of equal weight. The question then arises, whether the president of the bank, who did not make the entries, was a competent witness to prove the charge. If the book had been offered by the defendants, to sustain their defence to the suit, the entries must have been proved by the clerk who made them, or evidence offered of his hand writing, in case of his death or absence from the country. But, in the case at bar, the book is produced by the president of the bank, at the request of the plaintiff, and it is admitted to be the ledger of the bank. Now this court have held, that the books of a bank are open to depositors, and that the bank is bound to produce them on all proper occasions. The officers of the bank having the charge of the books are to be so far considered as agents for both parties. Union Bank v. Knapp, 3 Pick. 108. Whether the book thus produced, and proved by the president to be the book of the bank, is prima facie evidence of the credits therein contained, to sustain the plaintiff’s claim, we do not feel called upon to decide; because the other evidence which has been offered of the allowance of this claim against the bank by the receivers, and which was introduced by the defendants for another purpose, furnishes satisfactory proof of the plaintiff’s demand, without a resort to the books of the bank; and the evidence, therefore, derived from that source becomes immaterial. 2. It is contended, that the plaintiff was bound to prove a demand before the commencement of the suit. The declaration consists of the common money counts, and the specification of the plaintiff’s demand shows that it is for money deposited with the defendants. When money is deposited in a bank, to be drawn at the pleasure of the depositor, the bank is not liable tc an action without a previous demand. The request is parcel of the contract, and. must be proved. The bank agrees to pay to the order of the depositor; but if it were liable to a suit without previous demand, it would be under the necessity of refusing all deposits, or of making special contracts in every case. The duties of the parties are reciprocal; the one to pay on demand, the other to make such demand before a right of [222] action accrues. But where the bank has suspended payment, and closed its doors, and refuses to admit its creditors, there a demand would be unavailing, and the bank, by its acts, has waived the necessity of a demand. Cooper v. Mowry, 16 Mass. 7. . It appears also that the plaintiff went to the defendants’ banking house, for the purpose of obtaining the money deposited by him ; but that he was purposely excluded by the person appointed by the president of the bank to prevent persons from entering the bank, in consequence of its suspension of payments. And this act we deem equivalent to a demand on the part of the plaintiff. 3. But it is further contended, by the defendants, that the plaintiff, having proved his demand before the receivers of the^ bank, cannot now maintain the present suit; and he likens it to the case of a creditor’s bill, where injunctions are granted to restrain creditors from proceeding at law, when the suit is brought in behalf of all the creditors; and also to the case of a party who is pursuing his remedy in two courts at the same time, and is enjoined in equity from prosecuting his claim in more than one court. Jackson v. Leaf, 1 Jac. & Walk. 229, and 1 Story on Eq. § 549. And we are of opinion, that, where a party like the present plaintiff has a suit at law, in which he has made an attachment which is not dissolved by the subsequent proceedings of the bank commissioners, he is bound to make his election, and is not entitled to the benefit of both funds, to the exclusion of other creditors. But we are likewise of opinion, that he is not concluded as to this election by the mere proof of his debt before the receivers, they not having required of him to give up to them the evidence of his demand, nor agreed to pay him a dividend. The case of Morse v. City of Lowell, 7 Met. 152, presented a question somewhat analogous. There, the defendants, being judgment creditors of the plaintiff, proved their demand under the commission of bankruptcy, for the purpose of contesting his discharge ; they being fiduciary creditors. But the court deciding that he was entitled to his certificate, they filed a petition for leave to withdraw their [223] claim, which was granted. The defendants then caused the plaintiff to be committed on execution ; upon which he brought his action against them, for trespass and false imprisonment. But the court held, that having elected to withdraw their claim upon the estate of the plaintiff, in the hands of his assignee, and leave being granted them to do it, they had still the right to pursue their remedy at law. And so in the present case, we think the plaintiff had not proceeded so far as to prevent his making his election. He had not filed his evidence of debt; he had received no dividend; and the receivers had entered a caution not to pay him a dividend. There was then left to him the locus penitentice, and having now decided to pursue his remedy at law,* he has a right to do it, notwithstanding his proceedings before the receivers. 4. We are also of opinion, that the plaintiff is entitled to interest on the balance due to him, from the commencement of his action. Exceptions overruled Footnotes [*] It was understood that the plaintiff had secured his demand by an attachment, which was held, in Hubbard, v. Hamilton Bank, 7 Met. 340, not to be dia solved by the subsequent proceedings a ainst the bank.