to be. 2. Was the money, deposited by plaintiff in defendant bank negligently paid out by defendant's teller? That I instruct you to answer 'No.' This is a formal matter to get this question and the answer on record, so that you will answer that as I have instructed you."

The jury rendered a verdict in favor of plaintiff for five hundred and thirty-five dollars, and answered special question 1 "No," and special question 2 "No," as instructed by the court. The court entered judgment for defendant non obstante veredicto, and the plaintiff appeals.

A good many assignments of error have been taken, but those necessary to be considered relate to the effect of the by-laws. upon the parties. It is claimed by the defendant that the deposit of the money, the issuing of the deposit-book with its copy of the by-laws, and its acceptance by the plaintiff, and his signature, were all parts of one transaction, which resulted in a contract by which the bank was relieved from any further liability under the circumstances of this case. The counsel for the bank call the attention of the court to the following sections of the statute: Section 26 of the banking law (Pub. Acts 1887, p. 233) provides that savings banks shall have power to receive deposits, and says: "All deposits in said banks shall be repaid to the depositors, or his or her lawful representatives, when required, at such time or times, and with such interest and under such regulations, as the board of directors of the bank from time to time prescribes, which regulations shall be printed, and conspicuously exposed in some place accessible and visible to all in the business office of said bank."

Section 28 provides: "A pass-book shall be issued to each depositor in the savings department, containing the rules and regulations 179 adopted by the board of directors governing such deposits, in which book shall be entered each deposit made by, and each payment made to, such depositor; and no payment or check against any such savings account shall be made unless accompanied by and entered in the pass-book issued therefor, except for good cause, and on assurances satisfactory to the officers of the bank."

It is insisted that the bank complied with these provisions of the statute, and that plaintiff, because of his contract with the bank, has no cause of action against it: Citing Schoenwald v. Metropolitan Sav. Bank, 57 N. Y. 418; Appleby v. Erie County Sav. Bank, 62 N. Y. 12; Sullivan v. Lewiston Inst., 56 Me. 507; 96 Am. Dec. 500; Goldrick v. Bristol Co. Sav. Bank, 123 Mass.

320. The cases just cited undoubtedly hold that under the laws of the states where the decisions were rendered, and the by-laws in force in those banks, there was no liability; and, if the savings banks which were parties to the litigation involved in those cases were created under like laws, and possessed with the same powers as savings banks possess in this state, the decisions would be conclusive. Until recently the primary idea of a saving bank has been that it is an institution in the hands of disinterested persons, the profits of which, after deducting the necessary expenses of conducting the business, inure wholly to the benefit of the depositors, in dividends, or in a reserved surplus for their greater security. They were without capital and managed by trustees. The banks themselves derived no benefit whatever from any deposits or the produce thereof: Huntington v. Savings Bank, 96 U. S. 395. An examination of the statutes of Maine, Massachusetts, and New York at the time the decisions cited by the counsel were rendered will disclose the fact that the savings banks mentioned therein were created and managed for the benefit of the depositors. They were managed by trustees, and, after deducting the expenses of the management of the business, the depositors were entitled to the profits; so that every depositor was directly interested in having the losses as small as possible. It will also appear that there 180 was no statute requiring the deposits, with interest, to be paid to the depositor or his legal representative. In this state, savings banks like the defendant bank are organized under the general banking law. They are required to have a capital stock and stockholders. The depositors have no share in the profits of the business beyond the interest paid on their deposits; the profits of the business all belong to the stockholders. The conditions surrounding the two systems of banking are so unlike that the decisions under one system are not likely to be controlling when litigation arises under the other system. It may well be argued that, if the depositors are to share in the profits of the business when it is profitable, they shall accept its losses without complaining, and not seek to hold the bank liable. On the other hand, if the bank is to take the profits of the business, where is the justice of asking the depositor to take the risks?

In 2 Morse on Banks and Banking, third edition, section 617, it is stated of a savings bank: "The depositors are the bank. The trustees and officers are their agents for receiving and loaning their money, and the profits belong to the depositors." In the following section it is stated: "Although a bank may be called

a savings bank, if it is really a stockholders' bank, where the capital is owned by the shareholders, the name will amount to nothing; and in such a bank a deposit creates the relation of debtor and creditor": Ward v. Johnson, 95 Ill. 241.

It would logically follow that if the depositors are the bank, and the trustees and officers are the agents of the depositors, any regulation or by-law adopted by the agent would bind the principal-that is, the depositors-and they would be bound by it. On the other hand, if the relation between the bank and the depositor is that of debtor and creditor, the general rule would apply that the by-laws of a corporation are binding upon none but its members and officers: Angell and Ames on Corporations, sec. 359.

181 In this state the officers of the bank are the agents of the bank, and not the agents of the depositors. A by-law passed by them is a by-law of the bank, and not of the depositor, and if the effect of it is to change the relation of the creditor to the debtor so as to relieve the obligation of the debtor to the creditor, must not the creditor have his attention called to the by-law in such a way that he shall understand its effect before he shall be bound by it? In Davis v. Lenawee Co. Sav. Bank, 53 Mich. 166, Justice Campbell said: "The contract of a depositor with his banker does not differ in any material way from any other contract whereby one person becomes bound to take charge of and repay another's funds. As between banker and depositor, there can be no doubt that the bank will be protected in paying out money in such way and on such terms as the depositor has authorized. And, on the other hand, . . . . the contracting party can lawfully control his own funds until he has disposed of them. . . . . The bank-book is no contract, and is only one of the means of indicating the state of the funds. . . . . The money belonging to one person cannot cease to belong to him until he does some act to dispose of it": See Burtnett v. First Nat. Bank, 38 Mich. 634.

It was held in Smith v. Brooklyn Sav. Bank, 101 N. Y. 60, 54 Am. Rep. 653, where a savings bank sought to justify the payment by it of a depositor's money to a stranger upon the ground that such payments were made to a person having possession of the depositor's pass-book, that: "Such pass-book is not negotiable paper, and its possession constitutes in itself no evidence of a right to draw money thereon. It merely imports a liability of the bank to the depositor for the moneys deposited, and an agreement to repay them at such time and in such manner as he shall direct. This contract is implied from the nature and objects of the transaction occurring between the parties. The de

positor may, by special contract, authorize payments to be made in some other manner than by his directions; but, in order to make such payments a protection to the bank, it is necessary for it to show some 182 special agreement with the customer, authorizing such a mode of payment."

Then follows an interesting discussion of the effect of by-laws, which it is not necessary to repeat here, as we have indicated that the status of savings banks in the state of New York is quite different from the status of the savings banks of this state.

We think the requirement of the statute that the deposits shall be paid to the depositor or his legal representatives cannot be changed by a by-law, unless the attention of the depositor is called to the by-law, and he assents thereto, actually or impliedly. We think it was error in the learned trial judge to render a judgment for the defendant, and that he should have rendered a judgment in favor of the plaintiff upon the verdict of the jury, and for the amount thereof.

The judgment is reversed, and case remanded, with directions to enter judgment upon the verdict.

Grant, Montgomery, and Hooker, JJ., concurred.

Long, C. J., did not sit.

BANKS AND BANKING — SAVINGS BANKS-BY-LAWSPAYMENT OF DEPOSIT TO FORGER.-Mere presentation of a pass-book is not authority for the payment of money, in the absence of any agreement to that effect: Smith v. Brooklyn Sav. Bank, 101 N. Y. 58; 54 Am. Rep. 653; Eaves v. People's Sav. Bank, 27 Conn. 229; 71 Am. Dec. 59. But a bank by-law providing that the bank will not be liable for loss sustained when a depositor has not given notice that his deposit-book has been lost or stolen, and the deposit is paid in part or in full on presentation of such book, is a reasonable and proper regulation for the protection of the bank: Gifford v. Rutland Sav. Bank, 63 Vt. 108; 25 Am. St. Rep. 744, and note. A depositor must have knowledge of, and actually or impliedly assent to by-laws in order to be bound by them: Wells v. Black, 117 Cal. 157; 59 Am. St. Rep. 162, and note; and stipulations between a savings bank and depositor that a deposit may be paid to any one presenting his book does not excuse the bank from the exercise of reasonable care: Kimball v. Norton, 59 N. H. 1; 47 Am. Rep. 171, and extended note; Gifford v. Rutland Sav. Bank, 63 Vt. 108; 25 Am. St. Rep. 744. Payment to a person presenting a forged order and bank-book of a depositor is no defense to an action brought by a depositor to recover from the bank the amount so paid by it: Eaves v. People's Sav. Bank, 27 Conn. 229; 71 Am. Dec. 59, and note.

MEYERS V. HINDS.

[110 MICHIGAN, 300.]

BICYCLES-NEGLIGENCE OF RIDER.-A bicycle is a ve hicle, and if a bicyclist passes a pedestrian on the same road going in the same direction, the bicyclist is liable for damage resulting to the pedestrian from a collision between them, provided the pedestrian is without fault.

EVIDENCE.-WHAT WITNESSES THINK IS NOT CONCLUSIVE of the fact, unless no other reasonable basis than the one given exists for the existence of such thought or belief.

BICYCLIST - NEGLIGENCE OF. - One riding a bicycle down a narrow path at the rate of five or six miles an hour without giving warning of his approach when the path is occupied by many pedestrians going in the same direction, is guilty of negligence, and not relieved from liability for running into a pedestrian by the fact that the collision occurred from the bicyclist striking an obstacle, which it is not shown that he could not have avoided in the exercise of due and reasonable care.

BICYCLES-NEGLIGENCE-BURDEN OF PROOF.-If one riding upon a bicycle comes up behind another, who is walking where he has a right to walk, and is unconscious of the approach of the bicyclist, who, without giving any warping, strikes him with his vehicle, those facts, unexplained, tend to show negligence, and cast the burden of proof upon the bicyclist to show that he was in the exercise of due care.

Action to recover damages for injury sustained by a collision with a bicycle. Plaintiff, a girl fourteen years of age, was returning from a picnic in the country, at the time of the accident. She was walking down hill with a child in her arms in a path only wide enough for two persons to walk abreast. The defendant was riding a bicycle down the same hill in the same path, and, without giving any warning of his approach, came up behind the plaintiff, striking her, knocking her down, and inflicting a severe injury upon her. Judgment for the defendant, and plaintiff appealed.

A. A. Ellis, for the appellant.

McGarry & Nichols, for the appellee.

302 GRANT, J. We think the court was in error, and that the plaintiff's evidence entitled her to go to the jury. A bicycle is a vehicle. Counsel for the defendant concede this, and the authorities so hold: Holland v. Bartch, 120 Ind. 46; 16 Am. St. Rep. 307; Mercer v. Corbin, 117 Ind. 450; 10 Am. St. Rep. 76; Taylor v. Goodwin L. R., 4 Q. B. Div. 228. The question, therefore, is: What was the duty of the defendant, riding on a vehicle, in passing a pedestrian going in the same direction? His vehicle made no noise, and he gave no signal. Many others were walking