
    William A. Low vs. Boston Five Cents Savings Bank
    Suffolk.
    March 12.
    Sept. 4, 1875.
    Ames & Endioott, JJ., absent.
    In an action by an assignee in bankruptcy of the estate of W. against a savings bank to recover a deposit of the bankrupt, which was tried without a jury, the bill of exceptions stated that the plaintiff testified that the officers of the bank told him, after examining their books, that five days before the date of the bankruptcy proceedings a certain sum was due from the bank to W. who on that day assigned it to P. The bill of exceptions also stated that there was sufficient evidence that W was insolvent when he made the assignment, and that upon this evidence the judge ruled, as matter of law, that the plaintiff had not made out a case, and ordered judgment for the defendant. Held, that the judge should have found as a fact whether the assignment was valid or invalid, and that the exceptions must be sustained.
    Contract by the assignee in bankruptcy of the estate of Nahum S. Wyeth, to recover a certain sum alleged to be due the bankrupt at the commencement of the bankruptcy proceedings. Trial in the Superior Court, before Pitman, J., without a jury, who allowed a bill of exceptions in substance as follows:
    Wyeth commenced bankruptcy proceedings December 8, 1873, and the plaintiff was appointed assignee January 15,1874. There was sufficient evidence that Wyeth was insolvent on and prior to December 3, 1873. The plaintiff, who was the only witness in the case, testified that some time in March, 1874, he called at the banking rooms of the defendant corporation to ascertain whether Wyeth had any credit account with the bank, to which the plaintiff, as assignee, would be entitled ; that the officers of the bank, the president being present, examined their books, and in answer to his inquiry stated to the plaintiff that prior to December 3 1873, there was due to Wyeth from the bank the sum of $800 but that on that day Wyeth assigned or transferred his account to one Parker; that the plaintiff thereupon notified the officers that he claimed the amount of said credit account as assignee of the estate of Wyeth, and forbade their paying the same to any other person.
    Upon this evidence, the defendant offering none, the judge ruled, as matter of law, that the plaintiff had failed to make out a case that entitled him to recover, and ordered judgment for the defendant. The plaintiff alleged exceptions.
    
      Gr. H. Kingsbury, for the plaintiff.
    
      
      C. F. Kittredge, for the defendant.
   By the Court.

The judge below has not found as a fact whether Wyeth had or had not made a valid assignment or transfer for sufficient consideration to Parker, but only that the plaintiff testified to what the defendant’s president told him upon that point. The ruling, without settling that fact, that as matter of law the plaintiff had failed to make out a case that entitled him to recover, was erroneous. Exceptions sustained.  