Pennsylvania 47 have declined to incorporate this exception into their jurisprudence. In the Dana case 48 the examination was made by the depositor's agent and "his knowledge" was declared to be the plaintiff's knowledge and he was bound by it. Said the court: "If such examinations would have given [the plaintiff] notice if made by an honest agent, he cannot affect ignorance because they were made by a dishonest agent who had fraudulent knowledge of the fact." Likewise in the Allen case, one of the best adjudications on the subject, the Supreme Court of Alabama well said:49 "Certainly the bank should not suffer because of the fact that plaintiff's dishonest clerk prevented the plaintiff from doing his duty to the bank.” To this strong and persuasive reasoning is there not a better reason for not recognizing the exception, that some things a principal should do himself, and among these, the examination of the record of his transactions with his bank. The law adopts this rule in employing men; and, while admitting that a principal may act through an agent in employing them, still holds him responsible for their competency and other needful qualities as fully as if they were employed by the principal himself. By no law or contract can he impose this responsibility on the agent and escape himself. Ought not the duty of a depositor to examine his pass-book, or be responsible for all the consequences of its examination by another, be regarded as equally imperative? 14. Action to Recover Deposit. In an action to recover money deposited, but not received because of a mistake in settlement, the depositor is not required to tender a check for the amount as a condition precedent to his recovery.50 To interest also he is entitled on the amount 47 Myers v. Southwestern Nat. Bank, 193 Pa. 1. 48 132 Mass. 156. 49 100 Ala. 476, 484; Richmond Electric Co. v. First Nat. Bank, 56 S. E. (Va.) 152. 50 Cole v. Charles City Nat. Bank, 114 Iowa 632. wrongfully charged to his account from the time of making the demand,51 15. Entries as Evidence. In such an action the entries in pass-books made by the bank's officers in the regular course of business may be admitted in behalf of the adverse party.52 And if the books are offered in evidence by one party the other may avail himself of any part of the evidence therein, for example, the condition of a particular account.53 Again, a party who has introduced in evidence the books of a bank cannot impeach them entirely, but may show that particular items are wrong, and that by mistake or fraud they have been kept improperly.54 Other entries are made, especially those relating to renewal notes, that often possess importance. Not infrequently new notes are taken and not paid, and then the bank falls back on the sureties to the originals. They, in turn, claim immunity by the action of the bank in accepting new notes without their knowledge and consent. In these cases its books may be introduced against the institution to show that the entries made at the time of the maturity of the originals were of the kind ordinarily made to indicate payment.55 Nevertheless, the entries are not conclusive precluding explanation.56 51 Etting v. Commercial Bank, 7 Rob. (La.) 459. 52 Globe Sav. Bank v. National Bank, 64 Neb. 413; German Nat. Bank v. Leonard, 40 Neb. 676; Atlanta Trust & Bkg. Co. v. Close, 115 Ga. 939. A pass book in the cashier's handwriting is admissible in an action by the depositor's administrator against the bank to recover the deposit. Nicholson v. Randall Bkg. Co., 130 Cal. 533. An entry by an officer is presumed to have been made in an action by a depositor against a bank, but such a presumption does not exist in an action by the bank against the directors. Savings Bank v. Caperton, 87 Ky. 306. A synoptical exhibit of the contents of bank books is not the best evidence. The books must be produced, or satisfactory reason shown why they cannot be. Ritchie v. Kinney, 46 Mo. 298. 53 Blanchard v. Commercial Bank, 21 C. C. A. 319. 54 Merchants' Bank v. Rawls, 7 Ga. 191. 55 German Nat. Bank v. Leonard, 40 Neb. 676; Globe Sav. Bank v. National Bank, 64 Neb. 413; Citizens' Nat. Bank v. Wilson, 121 Iowa 156; Auburn City Nat. Bank v. Hunsiker, 72 N. Y. 252; German Sav. Bank v. The rule thus applied for the benefit of sureties possesses a far wider application. It may be thus stated: Book entries made by the proper officer in the regular course of his duties are admissible in behalf of the adverse party when they are of the nature of admissions.57 As the entry on the books of a bank may be used as proof of loan, so may an entry of its payment be admitted to show that it has been paid. Nevertheless, such an entry is open to explanation. Thus, if the entry of payment is made, a bank is not prevented from showing that its payment was conditional and not absolute. The effect of such evidence must be properly weighed and may not be sufficient to overturn the greater force that should be given to the entry itself.58 Again, after the death or insanity of the clerk who made the entries, his record book is admissible on proving his handwriting.59 Furthermore, "the books of a bank are open to depositors," and "the bank is bound to produce them on all proper occasions. The officers of the bank having charge of the books are to be so far considered as the agents for both parties."60 To these principles another may be added of growing importance. While the books of a bank are prima facie evidence that its officers possess the knowledge disclosed by them, this is not without a proper limitation. When the entries are made in such a way as to conceal their real character and to mislead an experienced banker, the law will not presume that the bank or the bank's officers do know or understand them.61 "Possession Bates Imp. Co., 11 Iowa 196; Oxford State Bank v. Holscher, 115 Iowa 196; Atlanta Trust & Bkg. Co. v. Close, 115 Ga. 939. The entry from a bank journal may be admitted as evidence to show the amount paid on a note payable at a bank. Roe v. Bank of Versailles, 167 Mo. 406. 56 Auburn City Nat. Bank v. Hunsiker, 72 N. Y. 252; Oxford State Bank v. Holscher, 115 Iowa 196; Citizens' Nat. Bank v. Wilson, 121 Iowa 156. 57 Cases in note 1. 58 Citizens' Nat. Bank v. Wilson, 121 Iowa 156. 59 Union Bank v. Knapp, 3 Pick. (Mass.) 96; Watson v. Pacific Bank, 8 Met. (Mass.) 217, 221. 60 Ibid. 61 Central Bank v. Thayer, 184 Mo. 61. of facts, in books purposely kept in a manner to conceal the truth, is not, in law or morals, knowledge of the facts." This was said concerning the president of a bank who alone had knowledge of the truth, and, though he was president, his knowledge of his own frauds, perpetrated for his individual purposes, was not attributable to the bank.62 16. Operation of Statute of Limitations. Again, in such cases as the cause of action does not accrue until the discovery of the mistake or fraud, provided the depositor has exercised due diligence in keeping his account, the statute of limitations does not begin to run against him until his discovery.63 62 Lamson v. Beard, 36 C. C. A. 56. 63 Cole v. Charles City Nat. Bank, 114 Iowa 632; Cook v. Chicago & R. I. Railway, 81 Iowa 551; Humphreys v. Mattoon, 43 Iowa 556. |