164 Mass. 124 | Mass. | 1895
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.
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
Judgment charging the trustee affirmed.