Maloney v. Casey

Field, C. J. We deem it unnecessary to determine whether it was within the power of the Superior Court in this case to order the plaintiff to give a bond of indemnity to the trustee before entering judgment charging the trustee. In ordinary actions at law, although there is no statutory authority, it has been deemed within the power of a court of common law to order such a bond to be given by the plaintiff to the defendant in certain cases where, on equitable considerations, a bond seems to be necessary or desirable to indemnify the defendant against the claims of other persons than the plaintiff on account of the same cause of action. This practice was adopted from the practice in suits in equity. Potter v. Cain, 117 Mass. 238. Schmidt v. People’s National Bank, 153 Mass. 550. [126] The Pub. Sts. c. 183, § 33, are as follows: “ When a savings bank or an institution for savings is charged as trustee, and in the opinion of the court there arises upon the answer a doubt as to the identity of the defendant, the court may in its discretion require the plaintiff to give bond, with surety or sureties to be approved by the court, and conditioned to save such bank or institution harmless from any loss or damage arising out of a payment by it pursuant to the order of the court.” This is the only statutory provision on the subject in trustee process, and the finding of the court in the present case that the principal defendant is the person who made the deposit makes this section inapplicable. The trustee in this case is protected by the judgment of the court against assignments of which it had not received notice at the time it was charged. It is only when a trustee, having notice of an assignment, neglects to bring it to the notice of the court, or neglects to notify the assignee of the pendency of the suit, that the judgment charging the trustee is no bar to an action for the benefit of an assignee. Wardle v. Briggs, 131 Mass. 518. If we assume that the Superior Court had the power to order a bond in the present case, it was largely within its discretion whether it would exercise the power, and the facts found by that court show that there was no error in law in refusing to order a bond if under the circumstances the exercise of such a discretion is subject to revision by this court. The last contention is, that by the rules of the savings bank it was provided that “ no payment will be made without the presentation of the deposit-book,” etc., and that, as it has been found that the deposit-book in this case had been lost, and could not be presented, the bank is not liable to be charged in trustee process. Whether a depositor under such a rule can maintain an action against the bank without having presented or caused to be presented to the bank the deposit-book when the demand for payment is made, or whether the rule would be held not to apply to, or would not be enforced in, cases where the bankbook has been lost or destroyed, need not be considered. The statutes on trustee process plainly intend that credits in savings banks shall be subject to attachments by that process. These statutes have made no provision for compelling the principal defendant to surrender his deposit-book, and without such [127] compulsion the plaintiff usually could not obtain the book. The credits are attached and applied to the payment of the defendant’s debt to the plaintiff, against the will of the defendant, and it has not been made a condition of the attachment that the plaintiff shall conform, in bringing his action, to all the rules which the defendant is required to observe before he can bring an action against the bank. The plaintiff in trustee process, where the depositor is the principal defendant, is not required to give the notice which the depositor is often required to give before he can demand payment of the bank. It is for the Legislature to say on what terms trustee process shall be maintained to reach the credits of the principal defendant, and the rules of the bank are not regarded as essential conditions, on a compliance with which the indebtedness of the bank to the depositor necessarily depends. We are of opinion that the statutes do not make the liability of the bank to be charged as trustee depend upon the plaintiff’s complying with the rules of the bank, which were intended to regulate the conduct of a depositor in his relations with the bank. Judgment charging the trustee affirmed.