
    Bernarda Rodríguez, Petitioner, v. District Court of San Juan, Respondent.
    No. 777.
    Argued July 6, 1931.
    Decided July 28, 1931.
    
      
      A. Marín Marién for petitioner.
    
      B. Muñoz Bamos for1 defendant in the main action.
   Mr. Justice Wolf

delivered the opinion of the Court.

Bernarda Rodríguez obtained a judgment sounding in damages against Constantino Fernández in the sum of $1,030 and costs. The petition in certiorari before ns recites that to secure the judgment the plaintiff attached the sum of $351.48 in the hands of the Banco Comercial de Puerto Rico. The defendant came into court and asked that upon the giving of a bond the money attached be deposited in his-bands. The court so ordered.

In Gandía v. District Court, 34 P.R.R. 265, ive held that while a bond might be given to return property to a defendant, the law did not authorize such a return when the property attached was found in the hands of a third person. The District Court held, and the respondent maintains, that money in bank is in the possession of the defendant, as the bank is the mere agent of the depositor. When a man deposits money in bank, while it is subject to his order, he ceases to have possession of it. The hank has the possession of it, generally mixed with other funds, not identifiable- as the money of the depositor. Indeed, it is well known that a bank makes loans on its deposits and could rarely meet its orders, if all the depositors attempted to withdraw their funds at once. The possession is that of the bailkj a third person, and the bank under the recited circumstances is a debtor rather than an agent. Engel v. O’Malley, 219 U.S. 128, 136; 7 C. J. 641.

This does not appear to be a ease where the attachment is suspended pending an appeal. On the contrary, it appears to be an unappealable judgment. Hence we see no reason for ,a bond, as the judgment is in process of execution.

The order against which this petition of certiorari is directed should be annulled and the bond canceled.

Mr. Justice Texidor concurs in the judgment.  