#### Adams *vs.*Orange County Bank.

A publication of *unclaimed deposits*remaining in a bank, made in pursuance of the statute, is an *acknowledgment of indebtedness*to the several persons named as depositors, from which a *new promise*will be implied in case the *statute of limitations*is interposed as a defence to an action for the recovery of a deposit.

*290If circumstances exist excusing the hank from the payment of a particular deposit, *it seems*they should be stated in the publication to prevent its operation as an unqualified admission of indebtedness, (a)

Previous to an action for the recovery of a deposit, a *demand*of payment must he made.

This was an action of *assumpsit,*tried at the Oneida circuit, in October, 1836, before the Hon. Hiram Denio, one of the circuit judges. The declarations contained the common money counts. The defendants pleaded the general issue, and the statute of limitations. On the 21st of September, 1827, *Hinman,*the plaintiff's agent, deposited $715 in the Orange County Bank to the credit of the plaintiff, took a certificate of deposit *from the*bank and forwarded it by mail to the plaintiff at Westmoreland, in the county of Oneida. The plaintiff, who was sworn to prove the loss, testified that the certificate was never received to his recollection. On the 1st September, 1835, the defendants, *in pursuance of the statute,*Laws of 1835, p. 302, made and published what purported to be “ a true and accurate statement of all the deposits made in the Bank of Orange County, and of all the dividends declared upon its stock, which have remained unclaimed for the two years next preceding the date hereof.” This statement was verified by the oath of the cashier, and contained, among others, the name of the plaintiff, the amount deposited to his credit, and the day the deposit was made. His residence was stated to be unknown. On seeing the statement in the state paper, the plaintiff went to the bank and made inquiries concerning the matter, and afterwards, on the 15th April, 1836, caused payment of the amount to be demanded, which was refused by the bank. The defendants attempted a defence on the merits, [515] but failed to establish it in the opinion of the judge, who expressed the opinion that the statute of limitations if ever available to the defendants, was answered by the statement and affidavit published in *the*state paper, which was an admission *of*the indebtedness, from which a promise to pay ought to be inferred. A question in relation to the sufficiency of the demand, about which there was conflicting testimony, was submitted to the jury, who found a verdict for the plaintiff for $731'78. The defendants move for a new trial.

*J. R. Van Duzer*& *A. Tabar*for the defendants.

*W. C. Noyes*& *J. A.*Spencer, for the plaintiff.

(a)

*’*Entries in the hooks of a hank, against its interest are not conclusive against it. Though B’s note is entered as paid, the bank may show the entry to he mistaken. Pratt *v.*Foot, 12 Barb 209

*By the Court,*

Bronson, J.

Whether there was a sufficient demand of the money deposited before suit brought was properly submitted to the jury, upon conflicting testimony, as a question of fact for their determination.

The defendants attempted to prove that the certificate of deposit had been negotiated by the plaintiff; that the money had in fact been paid by the bank, and that they had unfortunately lost the evidence of the payment. On a careful consideration of the evidence, I think they failed in making out a case for the jury, and that the circuit judge was right in withdrawing that question from their consideration. The defendants did not give the best evidence in their power concerning the contents of the packages which were stolen from the steamboat. The person who made up the packages in New York should have been called, or his absence accounted for. Until that was done, no sufficient ground was laid for a presumption that the certificate had been negotiated by the plaintiff and the money paid by the bank. If the question had been submitted to the jury, and they had upon *the*evidence presumed against the plaintiff, we should have been obliged to grant a new trial.

It is agreed by the counsel that no action could be maintained against the bank until after a demand of the money. A question has then been *291discussed as to the time when the statute of limitations commenced running *(Stafford*v. *Richardson,*15 *Wendell,*302). And see the cases collected in *Blanshard on Limitation,*101, 5; *Wilkinson on Limitation,*45, 6; *Lawes on Plead.*732, 4. But it is unnecessary *to*pass upon that question. If the statute commenced running when the money was deposited, there was sufficient evidence from which to infer a new promise. In 1835 th'e defendants made and published a statement, that this money was deposited in the bank in 1827, to the credit of the plaintiff, and that it *remained unclaimed.*This was an unequivocal admission of the original indebtedness, and that it still remained unpaid. It was not accompanied by any qualification or condition, or anything from which it could be inferred that the defendants were unwilling to pay the amount whenever it should be demanded. Such an acknowledgment lays a sufficient foundation for implying a new promise within all the cases.

It is said that the defendants should not be prejudiced by the admission, because they were required by the legislature to make it. The statute in question did not require such an admission as would deprive the defendants of any defence they might have under the statute of limitations. The statement published might have been accompanied by the declaration that the defendants believed the money had been paid, although the evidence of the payment had been lost; and then the publication would have furnished no evidence of a new promise. But the defendants have admitted an original and continued indebtedness, without any qualification whatever, either of their liability or willingness to pay. It is now. too late to insist on the statute of limitations.

New trial denied.