The production of' the deposit book of the savings’ bank, in the usual form in which such deposits are entered in the books delivered to depositors, and in which the plaintiff is stated to be a depositor of the sums of $41.00 and $30.00, ac*137companied with proof to the jury that the plaintiff is the person described in the book, and that the money was hers and deposited solely on her account, would seem quite sufficient evidence to authorize a jury to find that the money was due to the plaintiff, and, if the defendants had refused to pay it to her on proper demand, would authorize a verdict against them so detaining the money. Such must be the case, unless there is something peculiar in the matter of deposits in savings’ banks generally, or this bank in particular, that will defeat the right of the plaintiff to maintain her action.
It is said, on the part of the defendants; that the contract made by them, as to this deposit, was exclusively with the individual personally paying the money. But we see no ground for that assumption. The contract is with the person named in the deposit book as the depositor, not with the servant or agent by whose hand the money is delivered, if the deposit be made through an agent.
Nor do we see how any evidence of a custom of the defendants to require depositors to sign their names upon making the first deposit, or that, when money is deposited by one person for the benefit of another, it must be so stated and entered on the books of the corporation, or they will not receive such deposit, can avail to sustain any right on the part of the defendants to retain to their own use any money of another that they have taken on deposit, and in whose favor they have issued the usual deposit entry. The practice thus offered to be shown is doubtless a very convenient and proper one; one which the defendants have a right to adopt, and to refuse taking any money on deposit unless such condition is complied with. But it cannot avail them, unless they insist upon such condition when the money is offered and accepted as a deposit. Having taken the money offered on deposit, and passed the same to the credit of the real owner on the deposit boob, they are bound to account with such person therefor, unless it can be made to appear that there is some palpable violation of the by-laws that would preclude a recovery of the same.
We do not understand that any by-laws of the institution, in *138terms, require any such acts as are attempted to be shown to have been usual, or by custom required in fact. The requirement in the by-laws, that the party depositing shall by his signature signify his assent to the regulations and by-laws, might be as fully complied with by a signature by an agent, or by another person writing the name of the depositor, at his request and in his presence, as by the depositor’s own signature. The question of identity as to the real person who makes the deposit, and who would be legally entitled to withdraw it, is doubtless an embarrassing one to the officers of savings’ banks. The possession of the bank book, containing the statement of the deposit, would ordinarily be satisfactory evidence on this point; but the possession of the book may have been obtained by theft or fraud, and therefore something further may be convenient and useful for the greater security of the bank, by way of establishing the fact of identity of a depositor.
It is urged upon us, that the defendants, in a case like the present, would pay at their peril, and that they ought not to be exposed to an action at law through the acts of the plaintiff’s agent, who by her conduct rendered it thus difficult for the officers of the bank to determine what person was entitled to this deposit. But it cannot be denied that the evidence offered on the trial relieved the case of all doubt as to who was the real owner of these funds, and for whom they were held on deposit. The evidence was full and decisive that it was the plaintiff’s money, and that she alone was entitled to it.
The only hardship in the case is, that the same amount of evidence was not exhibited to the defendants before the suit was instituted. But in addition to the possession of the deposit book, with an entry to the credit of the plaintiff, which would be strong presumptive evidence to establish the right of the plaintiff to the money, the plaintiff had furnished them with her affidavit, duly subscribed and sworn to, declaring the precise facts in relation to this deposit as they are now established by other evidence. It is true that this affidavit was not that legal evidence which would be required to prove ordinary facts in a *139court of justice; but it added certainly to the probabilities that the plaintiff was the real depositor. It is that species of evidence which is admissible to prove the loss of papers, and authorize the admission of secondary evidence.
The plaintiff, it is true, might have given the defendants a bond with sureties, to save them harmless upon payment of the deposit to her. But this, we think, was not absolutely required of 'her, when no other question arose but that of identity of the depositor. Such security by bond is required in cases where a savings’ bank is summoned as trustee of a depositor, and there is, in the opinion of the court, any doubt as to the identity of the principal defendant. St. 1850, c. 48. That case, however differs materially from the present in the necessity for such a provision ; and the bond is there only to be given when, in the opinion of the court, there is a doubt as to the identity of the depositor. That is also a statute provision. There was no statute requiring it here, and no by-law to that effect, and no case that the court can say made such bond a prerequisite to maintaining an action for the deposit. Exceptions overruled.