The opinion
Clare, C. J.,
concurring: The plaintiff, who is the widow and ad-ministratrix, alleges in her complaint that her husband deposited $2,000' in the defendant bank, for which she brings this action to recover from the defendant bank, and makes the administratrix of her late husband’s mother a codefendant. Both defendants answer and admit the deposit,, but aver that.during the lifetime of the plaintiff’s intestate he transferred the deposit to his mother by giving her his pass-book, which she carried to the hank, and on its presentation to the hank the deposit was transferred to her during his* life, in accordance with the printed regulations, in the pass-book; and further, that when he made the deposit he stated to the bank that it.was to go to his mother.
The plaintiff put on no evidence, and the court properly refused her motion for judgment upon the pleadings.
It was error, however, to direct a nonsuit for the answer, not setting up a counterclaim, was not to be taken as true because no denial was. filed in reply. C. S., 543. It was therefore incumbent upon the defendant to put in proof before the jury of the matters set. up in defense as. to the validity of the assignment. The answer admitted that the deposit was made in the name of the plaintiff’s intestate, hut the allegation of' the assignment was matter in defense, and was therefore to be proven,, though the plaintiff did not file a denial.-
The plaintiff was properly taxed with costs of the motion, and at the discretion of this Court the'costs of appeal were equally divided. C. S.? 1256.