Broderick v. Waltham Savings Bank , 109 Mass. 149 ( 1872 )

Chapman, C. J.

No exceptions were taken by the plaintiff, and therefore there is no question before us, as to the propriety of deducting from the plaintiff’s claim the amount paid out by the defendants on the trustee process.

A a to the balance claimed by the plaintiff, the jury have found, under the instructions of the court, that the money deposited by the plaintiff in the bank was his own money, and that he did not deposit it for Ellen Whalen or as her trustee, or intending it as a gift for her. It appeared further at the trial, that she disclaimed any interest in it, and that she refused to transfer the bank book because she knew nothing of the deposit and had no interest in the money. Though the plaintiff deposited it in the name oí another, yet there was no transfer or intention to transfer it, and it remained his own. Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228. If we assume that the plaintiff’s fraudulent purpose to avoid an attachment would have been a bar to an action by the plaintiff to recover it back, if he had transferred it to Ellen Whalen, and she had accepted the transfer ; yet the intent without any transfer would not work a forfeiture of it to the bank. He has a right to it as against them ; he presented to them the bank book; and there is not, and has never been, any adverse claimant. The rulings excepted to are correct.

Fxceptions overruled.