The opinion of the court was delivered by

If there is any defence in this: case, it must proceed from the harsh and rigorous application of legal rules. • The suit is against the defendant, a savings: bank, by a depositor, for the money confided to it. The proofs • show that this, money is justly due ; that there is no dispute-whatever upon this subject, and that the defendant can make payment of this debt without any possible danger or embarrassment to itself. The apparent reason assigned for the defence interposed is, that it is important for the company to-have its rights and obligations, inherent in its contracts of deposit, judicially expounded—a motive for its opposition unexceptionable enough, except in view of the fact that the desired elucidation is to be obtained at the loss and expense of one of its depositors.

The inquiry is presented in this wise, as will fully appear in the statement prefacing this opinion:

The defendant, upon the plaintiff making a certain deposit, gave her a book in which such deposit was entered, and in which book were printed certain by-laws of the company,, among which were the following, viz.:

“Art. 9. All drafts must be made personally or by order ini writing of the depositor, if the institution have the signátureof the party in their signature-book, or by letters of attorney duly authenticated; but no person shall--have the right "to-' *236■demand any part of the principal or interest without producing the original deposit-book, that such payments may be ■entered therein.

“Art. 10. All deposits shall be entered in the books of the institution, and a duplicate or pass-book shall be given to each ■depositor, in which the deposit shall be entered, and which ■shall be the voucher for the depositor; and possession of such ■duplicate or pass-book may be treated by the institution as ■authority to pay the amount due thereby to the person producing the same, and all payments so made shall be deemed good and valid payments to tire depositors respectively.”

The contention of the defendant is, that the plaintiff contracted with it, in making her deposit, on the basis of these rules.

The plaintiff lost her deposit-book, and it is now insisted before this court that she has, by such accident, become dis-enabled from suing the company, in a court of law, for her moneys admittedly in its hands. This is the defendant’s construction of its agreement with its depositors, and such construction is sought to be justified by a reference to that clause of its tenth by-law, already cited, which declares that “ no person shall have the right to demand any part of the principal or interest without producing the original book, that such .payments may be entered therein.”

If I concurred in this interpretation, I should scruple much with regard to the legality of such stipulations. A bylaw, declaring that those depositors in one of these banks who, ■by inevitable accident, shall have lost their deposit-books, ■shall thereby forfeit to the company their respective claims, would seem to be so inconsistent with the general purpose for ■which these institutions have been called into existence, that it would be, to say the least in its disfavor, of exceedingly •doubtful validity. It is true thatjhese banks are private corporations, but, nevertheless, when we regard the nature of their business, they may be said to, be possessed of a certain public aspect. They are designed, mainly, for the benefit of <the thrifty poor, a numerous class composed of persons of *237moderate means. The claim of a right to forfeit, at the will of these bodies, the scanty saving of this obviously defenceless class, when visited by a particular misfortune, might be useful if such bodies were simply banks of accretion for the benefit, of their stockholders; but if they are to be considered, as they must be, custodians of the moneys confided to them by a large body of the people, such a claim seems strangely out of place, as, clearly, it is not necessary to the sáfe and proper conduct of their business; it is the assertion of a right in these companies, by virtue of the misfortunes of its depositors, to take to its own use moneys that do not honestly belong to it. Nor is the harshness and injustice of such an assertion in any degree mitigated by the suggestion contained in the brief of the counsel of the defendant, that the Court of Chancery is open to the despoiled stockholder, for, in view of the fact that such proceedings would be at the expense of the party seeking such relief, and, as in most cases, those costs would exceed the amount in dispute, the suggestion of that remedy for the wrong sounds little better that sheer irony. This intimation of such a remedial recourse appears to have its origin in the conviction that the act of the company in thus retaining the money is a palpable wrong, as the only ground on which a court of equity could interpose its assistance would manifestly be because the conduct of the company, in this particular, was unconscionable, and was not to be reconciled with fair dealing.

If the question, therefore, had been presented in this naked form, I should very much doubt, as has already been said, whether a by-law, having the force asserted, should be sustained. Nor would the contract of the depositor, stipulating to leave his money upon the terms resident in the by-laws of the company, necessarily subject his rights to the supposed clause of forfeiture, as it might well be held that his agreement was referable to such by-laws alone as the corporation had the legal right to enact. Nothing less than the clearest expression of intention would, in all probability, induce the court to the conclusion that it was the purpose of the contract*238ing parties that the creditor was, in a certain contingency, ■to be placed under the arbitrary power of the debtor.

But it is not necessary to decide this question in the present -case. These parties have not entered into such supposed ■engagement. The by-law referred to'has not the force ascribed to it. Even standing alone, and intrinsically interpreted, its •terms do not seem susceptible of being read in the sense ■asserted.' Its purpose is to regulate its dealing with its depositors when they are in possession of their books, requiring 111001 to be produced so that the “ payments may be entered therein.” The language appears to imply that the books are in the possession and under the control of the depositor; there is no intimation of a forfeiture in the clause unless they are forthcoming. It is a provision adjusting the ordinary routine; it seems to have no reference to extraordinary emergencies. I ■do not think that the clause imports that the intention was to inake provision in case of an accidental loss or destruction of the book of the depositor.

But whatever doubt might remain, looking at this by-law in a state of isolation, such doubt is dispelled by a reference 'to another of these by-laws, article XV., which is in these words, viz.: “ Should any depositor lose his book, he is required to give immediate notice thereof to the institution ; and ■in cases of doubt as to the identity of the depositors or claimants, the board may require such testimony and security as they may deem necessary.”

It seems manifest that this latter provision will not reasonably harmonize with the former provision, construing it according to the contention of the defence in this case. Why should the depositor give notice of the loss of his book when by such ■loss his claim upon the company has been extinguished? It •seems quite unreasonable to suppose that the company, by •these two several by-laws, has meant to say to its depositor, If you cannot produce your book, you cannot legally make ■demand on us for your money, but, nevertheless, you “ are required to give immediate notice” of the loss of the book “to .the institution.” It is very plain, as I think, that such was *239•not the intention, and, to produce coincidence between these •two by-laws, it is necessary to conclude that the former of them has no application to the state of -affairs arising from a loss of the deposit-book by accident. In such event, all that the depositor can be required to do is to give notice that his book has passed from his control by casualty, producing testimony and giving security if his identity be in doubt.

In the present case, notice of the loss of the deposit-book was properly given, and there was no doubt raised as to the identity of the depositor. She had, therefore, a right to her money on deposit, and is entitled to judgment.

On the foot of this exposition of these by-laws, it is deemed that no danger or embarrassment can beset this company in the prosecution of its business. When a deposit-book is alleged to have been lost by the depositor, the corporate officers can safely pay such depositor on that basis; and in case it afterwards appears that the claim of the depositor was fraudulent, and instead of having lost his book he had assigned it, still such payment will stand, in the absence of proof that notice prior to such payment had been given to the company by the assignee of his right to the money.’ This is the settled rule with respect to all non-negotiable chases in action which have been transferred to third parties, and there is nothing in these by-laws, or in the nature of these contracts growing out •of these deposits, that will modify or in anywise affect the principle.

It is proper to say, further, that there was no proof before the trial judge that the plaintiff agreed to be bound by these by-laws in question. It was not shown that she signed any •agreement to that effect, and the mere fact that a book was given to her containing these printed by-laws would not have the force arising from an assent to them on her part. Her •attention, as far as appears, was not called to this printed matter, and the defence was of a nature calling for strict proof in its support.

Let the Circuit Court be advised that the plaintiff should have judgment.