Witte v. Vincenot

By the Court,

Wallace, C. J.: In January, 1871, the plaintiff commenced an action of assumpsit against the defendant, and in the following July obtained judgment against him for some five hundred and fifty dollars, and costs of suit. Upon filing the complaint a writ of attachment was issued, under which writ the Sheriff duly attached all moneys of the defendant in the hands of an incorporated savings and loan society in San Francisco called “La Societe Francaise d’Epargnes et de Prevoyance Mutuelle,” in which bank the defendant was a depositor. Upon the service of the writ of attachment the bank gave answer as follows: “There are six hundred dollars standing to the credit of P. Vincenot on the books of the society, for which he holds a pass boob. I do not know if said pass book has been assigned or not. On the presentation of said pass book the amount will be paid to the holder theréof.”

Upon rendition of the judgment an execution was issued, and being levied upon the moneys in the hands of the bank, an order was subsequently obtained to examine its manager before the Court Commissioner touching the moneys of the defendant on hand. Upon this examination it was disclosed that by the books of the bank it appeared that some six hundred dollars and upwards remained on hand to the credit of the defendant. It further appeared that among the bylaws of the bank were the following:

“Art. 13. A pass book with a copy of these by-laws annexed is delivered to each depositor at the price of fifty cents, payable into the Sinking Fund. In this pass book is entered to the credit of the depositor all sums deposited by him, and to his debit all sums reimbursed to him. Pass books are transferable to order.”

[328]Art. 78. Every member must, by subscribing to the present by-laws, declare that he, without reserve, accepts the same in their entirety as the rule governing his rights and duties toward La Soeiete Francaise d’Épargnes et de Prevoyance Mutuelle.”

It was also stated by the manager upon his examination that he could not say whether or not the bank owed the defendant any money; that the defendant, as a depositor, held a pass book, transferable like a note drawn to order, and that it was not known whether or not the defendant had made a transfer of his pass book; that though the bank had not, in this instance, received any notice of the transfer, still, if such transfer should turn out to have been actually made, the bank would have to pay the bearer the amount shown upon the book; that there was no by-law or rule of the bank requiring notice to be given to it of the fact of transfer of a pass book. The pass book of the defendant is in the following form: