—A demand in the case of a claim on an individual is
not necessary. The bringing a suit is a demand. But with regard to deposits in a bank the rule must be different. If a deposit be made to-day, a suit could not be immediately brought for it without demand. A demand being necessary, the proof of it constitutes a part of the plff’s. case, and must be made in the opening. Testimony rejected.
Mr. Bayard, to the jury on the facts.
He contended that the evidence was sufficient to establish the deposit of $600;—and he relied upon the entry made by the cashier at the time of the deposit in the dealers bank book. This was the dealer’s only evidence and the only security he had for the repayment of his money. He contended that on grounds of public policy and for the protection of individual rights, much exposed as they were to the power of these institutions, such an entry ought to be considered as conclusive upon the bank and not be enquired into or contradicted by the testimony of the bank’s officers, and he cited 4 Johnson’s Reports 377, where judge Spencer said, that particular errors in a balanced account may be enquired into, but he adds, in my mind there is this exception, if an entry is made in a customer’s bank book at the time of the deposit, the entry is conclusive. This distinction is a sound one and ought to be recognized.
Rogers for defts.
The question is not what the law ought to be but what the law is. The case in 4 Johnson does not decide the rule contended for. That was not the point in the cause: it was a mere obiter dictum or suggestion of the judge. The phrase is, “in my mind,” there is this distinction. In 19 Johns, it is settled that the entry in the dealer’s *120book is not conclusive as against him-. Why should it be conclusive against the bank? The general principle is well settled as between individuals that mistakes of this kind in the settlement of accounts may he corrected. Even if a receipt be given it is not conclusive. Further, a bond is open to inquiry on fraud or mistake; and a mistake in an award is inquirable into. A judgment on the award may • be opened under particular circumstances. The rule contended for would form an exception to all the cases. In 19 Com. L. R. it is decided that the entry on the bank books is not conclusive. 19 Johns. 115; 14 Com. L. R. 25; Jingel and Jimes on Corp. 133; 19 C. L. Rep .412.
J. Jl. Bayard, for plff. Rogers and Reed, Jr., for defts.As to the facts the jury cannot doubt that the deposit in this case was only @400.
Read,jr. On the same side.
Nothing has been advanced on the other side, but an extra-judicial opinion of judge Spencer which has been contradicted by an adjudged case in 19 Johnson’s Reports. The entry on the customer’s book, what is it? An acknowledgment or receipt that he is entitled to so much money from the bank. But a receipt is inquirable into and there is no reason for distinguishing this from other receipts.
Bayard, in reply.
This entry is an original entry and on principles of public policy ought to be conclusive. Spencer’s decision is not a mere dictum but an adjudged point. It was necessary to be announced in stating the law applicable to that case.
The court here suggested that this being a new question of great public importance it would be well to reserve it for the court in bank. The counsel acquiesced, but went on to the jury on the facts, and the plff. had a verdict.
Whereupon a motion was made for a new trial, on the ground that the verdict was against law and evidence.
The case was not brought up to the court in bank, nor was the motion for a new trial further prosecuted; the bank considering it impolitic in reference to their business generally to defend the claim further.