Heath v. Portsmouth Savings Bank

Bartlett, J. Upon the case stated we must take the clause in the deposit book to have, made part of the contract between the plaintiff and defendant. White v. Bank, 22 Pick. 183; Eaves v. Bank, 27 Ct. 234; Wallace v. Bank, 7 Gray 137. Under that contract the bank would be as much entitled to the production and offer of the book upon a demand for the deposit, as the maker of a note, payable to bearer, to an offer of the note upon payment when payment is demanded, and therefore we think the case falls within the principles laid down in Stone v. Clough, 41 N. H. 296-7 ; and see Freeman v. Boynton, 7 Mass. 486. As no indemnity was offered the bank, it was in no default when this action was commenced; and the case therefore differs from that of the loss of the note declared on after the commencement of the suit, suggested in Hill v. Barney, 18 N. H. 610. The question raised here did not arise and was not decided in Warhus v. Bank, 27 N. Y. 543, (5 Duer 67.) Whether under the law of this State the plaintiff’s remedy, in case of the loss of such an instrument, should be sought or could more conveniently be had in equity is a question not now before us. See Hill v. Barney; Fales v. Russell, 16 Pick. 315; 1 Story Eq. sec. 85; Story on Notes, secs. 446, 450; Chit. on Con. 850; Chit. on Bills, 265 & n. There must be a nonsuit.