There are two rules of savings banks which have a bearing upon the question of payment. The first is that a payment upon the production of the bank-book shall be a good payment. This does not excuse the bank for paying negligently to one not entitled to payment.1 The book may be lost or stolen, and if the bank pays to the holder of the book and is guilty of no negligence in not discovering the fraud of the holder of the book, the bank is exonerated.2 The bank is not required to have the depositor identified,3 but if the circumstances are suspicious the bank ought to be required to cfo so. But if the law governing savings banks is not consistent with the by-law,4 or if the by-laws require an order from the depositor and the bank pays without an order,5 or pays upon an order not in the form required by the by-law,6 the payment is not good. If an order is presented which is forged, the bank officer must be vigilant in detecting the forgery;7 and generally it may be said that any circumstance which tends to show a want of that care and prudence which a banker under the circumstances ought to exercise will present a case for a jury to pass upon as a question of fact,8 whether the negligence be in not investigating the personality of the applicant for payment,9 or in not refusing to pay upon a suspicious signature.10 A valuable lesson was taught to bank officers by the holding that, where an alleged donee causa mortis sued the bank after it refused payment, and the proof showed that the donee's attorney had prepared the pleadings on both sides of the case and the referee's decision and paid all the costs, a case of prima facie negligence was presented.11 This species of complaisance is too common with bank officers. It has been said that the negligence of the bank will not make it liable, where the depositor was also guilty of negligence in not notifying the bank of his loss.12 One court recognizing the rule held that where the depositor was shot and grievously wounded by a robber who stole the pass-book, the depositor was not guilty of negligence, when he notified the bank the next day.13 The contention that he was negligent under the circumstances was worthy of the solemn advocacy of a chief of the French army at one of their court-martial travesties. But all these cases that hold the failure to notify contributory negligence, where the bank was negligent in paying, are judicial errors, for the simple reason that the negligence is not contributory. It is a settled rule of law that where a party has by negligence put himself in a position where he is injured by the negligence of another, his negligence is not contributory where the other party had the clear opportunity of avoiding committing the injury, but through negligence did not avoid the injury.14 Applying this rule to the case of the depositor, the bank had the chance of avoiding the payment had it exercised due care, and it is therefore liable.15 But if the real owner misleads the bank by his statements, he is estopped.16 If he is negligent in furnishing information to a person, who was thereby enabled to mislead the bank, his contributory negligence is then clearly a bar to his recovery, because it contributed to the injury and caused the bank's act.17 But it is more correct to call this a case of estoppel. The rule as to payment upon the production of the pass-book ceases on the death of the depositor.18 Either upon this ground or because the administration was void, a depositor may recover a deposit paid to his duly appointed, so far as tho record showed, personal representative.19 Under a statute a depositor may indicate in a book kept at the bank a person to whom his deposit is payable upon his death,20 and the appointee takes the fund.21 A rule of savings banks requires indemnity to be given by the depositor where the book cannot be produced. This rule is binding upon the depositor22 as well as his personal representative.23 But if the book is withheld by the depositor's family, the administrator may recover without giving indemnity;24 nor is the fact that indemnity is required by the rule, any reason for the depositor suing without such a tender not being permitted his action.25 So the real owner of the deposit made for him by another, who received the bank-book, may recover the deposit, although his signature is not with the bank, because the person making the deposit signed his name; he needs not give indemnity to the bank, though the bank's custom required a deposit for another to be so entered on the books. The demand was held good where it was accompanied by an affidavit as to the circumstances of the deposit.28 Under no circumstances is the bank permitted to retain the deposit because the book cannot be produced.27 Where a statute provided that a deposit to the credit of a minor may be paid to the person making the deposit, yet, where the father and the minor both made deposits in the name of the minor, the payments to the father were good only to the extent of his contribution to the deposit.28 Payment by the bank to the real owner, however made, pays the deposit.29 Where the bank paid part of a deposit upon a genuine order and part upon a forged order, and the depositor received a deposit to her credit from the forger to the amount of three-fourths of the genuine order to repay the loan made by the genuine order, the payment to credit was held to be upon the loan and not to reimburse the bank upon the forgery.30 Where notice is required for a payment of the deposit, the bank waives the notice where it refuses to pay because it has paid to another.31 But there is no presumption that notice is required -the fact must be proven.32 The real owner, who waives his claim to the deposit, cannot hold the bank.33

15 McCarthy v. Provident Inst., 159 Mass. 527.

1 See Sec. 360, ante, note 9, and Clark v. Saugerties Bank, 62 Hun, 346.

2 Sullivan v, Lewiston Sav. Inst., 56 Me. 507; Donlan v. Provident Inst, 127 Mass. 183.

3 Sullivan v. Lewiston Sav. Inst.. 56 Me. 507. And see also Gifford v. Rutland Sav. Bank, 63 Vt. 108, a case palpably wrong. The court says that a man who failed to sign his own name properly, although he was not shown to have been at all deficient in penmanship, was not an object of suspicion.

4Ackenhausen v. People's Sav. Bank, 110 Mich. 175.

5Kummel v. Germania Sav. Bank, 127 N. Y. 488.

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

7Allen v. Williamsburgh Sav. Bank, 69 N. Y. 314, and case in note 5, supra.

8 Smith v. Brooklyn Sav. Bank, 101 N. Y. 58. See Appleby v. Erie Co. Sav. Bank, 62 N. Y. 12, which can no longer be considered an authority.

9 Fox v. Onondaga Sav. Bank, 7 N. Y. Supp. 17; Allen v. Williams-burgh Sav. Bank, 69 N. Y. 314 Compare Wall v. Emigrant Sav. Bank, 64 Hun, 249.

10 Fricke v. German Sav. Bank, 4 N. Y. Supp. 627; Saling v. German Sav. Bank, 7 N. Y. Supp. 642; Weg-ner v. Second Ward Sav. Bank, 76 Wis. 242; Hagar v. Buffalo Sav. Bank, 31 N. Y. Supp. 448; Tobin v. Manhattan Bank, 26 N. Y. Supp. 14. Compare Gifford v. Rutland Sav. Bank, 63 Vt 108, a wrong decision. See note 3, supra.

11 Farmer v. Manhattan Sav. Inst., 60 Hun, 462. The burden of proof to show negligence is said to be on the depositor. Israel v. Bowery Sav. Bank, 9 Daly, 507. Contra, Abra-mowitz v. Citizens' Sav. Bank, 40 N. Y. Supp. 385, is the better rule, for payment is an affirmative defense.

12 Kelly v. Emigrant Sav. Bank, 2 Daly, 227. This is a decision by the lamented Cardozo, who once filled so large a place in the public prints, but there are other reasons for considering the case erroneous. See notes 14 and 15. Goldneck v. Bristol Sav. Bank, 123 Mass. 320; Levy v. Franklin Sav. Bank, 117 Mass. 448.

13Wegner v. Second Ward Sav. Bank, 76 Wis. 242.

14 Da vies v. Mann, 10 M. & W. 545, was the original case; but the great case of Radley v. London Ry. Co., 1 App. Cas. 754, which passed on appeal through the Exchequer Chamber to the House of Lords, is the best illustration. The American cases may be found cited 2 Thomp. Neg. 1157, but the author's text shows that he does not understand the point.

15 The courts have failed to apply this principle, although it is hinted at in People's Sav. Bank v. Cupps, 91 Pa. 315; but in Bank v. Morgan, 117 U. S. 96, the court meant to state the principle, but instead said that the antecedent negligence of the bank would be a complete defense to the subsequent negligence of the depositor. But negligence to be contributory must concur with negligence of another. If what the court says is true, it is perfectly safe to negligently kill any one who has through negligence put himself in a dangerous position. The court did not mean to state the proposition which it did.

16 See Eagle Mfg. Co. v. Belcher, 89 Ga. 218.

17 Wall v. Emigrant Sav. Bank, 64 Hun, 249.

18 Farmer v. Manhattan Sav. Inst, 60 Hun, 462, semble.

19 Jochumsen v. Suffolk Sav. Bank, 85 Mass. 87. 20 Appeal of Knorr, 89 Pa. 93.

21 Fidelity Ins. Co. v. Wright, 16 Wkly. Notes Cas. 177.

22 Heath v. Portsmouth Sav. Bank, 46 N. H. 78. Even though the book be lost. Wall v. Provident Inst, 85 Mass. 96; Mitchell v. Home Sav. Bank, 38 Hun, 255.

23 Wall v. Provident Inst, 85 Mass. 96, 88 Mass. 320.

24 Palmer v. Providence Sav. Inst., 14 R. L 68. No claim was made by any third party to the deposit

25 Wagner v. Howard Sav. Inst, 52 N. J. Law, 225.

26 Wallace v. Lowell Inst, 7 Gray, 134 The Massachusetts cases are hard to reconcile, as to when the bank can insist upon indemnity and when not

27 Palmer v. Providence Inst, 14 RL6a

28 Dickinson v. Leominster Sav. Bank, 152 Mass. 49.

29Tay v. Concord Sav. Bank, 60 N. H 277.