Pierce v. Boston Five Cents Savings Bank

125 Mass. 593 | Mass. | 1878

Gray, C. J.

The right of action of a depositor against a savings bank is not negotiable at law, and an action against the bank to recover the amount of the deposit can only be brought in the name of the depositor, or, in case of his death, in the name of his administrator. Any one to whom the right has been transferred by a valid gift or assignment is entitled indeed to use the name of the depositor or of his administrator for the purpose of bringing an action against the bank. But the plaintiff and the only plaintiff of record is the person in whose name the action is and must be brought. Foss v. Lowell Savings Bank, 111 Mass. 285.

It is only “ any other party than the plaintiff in such action,” that the St. of 1876, c. 203, § 19, authorizes to be summoned in as a party defendant. It is inconsistent alike with the terms of this statute, and with the rules of the common law, to make the plaintiff himself a defendant also. Winthrop v. Minot, 9 Cush. 405. If the action had been actually brought by, as well as in the name of, the administrator, and Munroe, as a claimant of the fund, had been made a party defendant under the statute, this difficulty might have been avoided, and issue might have been joined and tried upon the question whether the title in the fund was in the administrator or in the claimant.

The proceedings contemplated by the St. of 1876 are analogous to those upon a trustee process, where a third person is admitted as a claimant, under an assignment or otherwise, of the fund in the hands of the supposed trustee, although the claimant’s interest is merely equitable and he could not have maintained an action at law in his own name against the trustee. Gen. Sts. c. 142, § 15. Dennis v. Twitchell, 10 Met. 180. Kingman v. Perkins, 105 Mass. 111. But it was never heard of that the plaintiff of record m a trustee process should be admitted as a claimant to defeat the right of recovery in an action brought in his own name.

In the present case, the proceedings were unauthorized by law, and were wholly irregular. The plaintiff of record was improperly made a defendant, and there has been a mistrial. The issue tried was not between the administrator, the only legal plaintiff of record, and the bank, the only legal defendant of record ; but between the plaintiff, as a defendant, and a third person, not a legal party to the record at all, as plaintiff.

Verdict set aside, and notice to the plaintiff as claimant quashed.