Opinion of the Court-Stewart, C. J.

book of Smith by the cashier of the bank, and was credited to Smith on the books of the bank on his general checking account; that the deposit was made with V. W. Platt, the cashier; that Smith did not request or direct the bank or any officer thereof at the time of making the deposit to treat the same as a special deposit, and did not notify the bank or any officer thereof that he intended to make the deposit as a special deposit, or that the said check was deposited in the bank for any special purpose; that the amount of the deposit was mingled with the funds and assets of the bank.

The court finds that after Smith had deposited said check he returned to the bank and withdrew therefrom on his general checking account the sum of $763.36, and left a balance on deposit in his general checking account of $767.53.

The court finds that after Smith had withdrawn said sum from his account he went to William Dollar, the president of the bank, and exhibited to him a statement of checks which he had issued against the balance of his checking account, which statement included the check of intervenors, given in payment of said promissory notes, and told said Dollar that the checks mentioned in said statement had been drawn against his account.

The court finds that about 1 o'clock the writ of attachment issued in the case of Kaesemeyer v. Smith was levied upon the funds of Smith in said bank by service of notice of garnishment and attachment; that at the time of the levying of said writ of attachment the defendant Smith had on deposit with said bank the sum of $725.36.

The court finds that after the levying of the writ of attachment the check given by Smith to Carscallen Brothers was presented to said Exchange National Bank and payment refused on the ground that the deposit of Smith had been attached at the instance of the plaintiff.

The court finds that at the time of the levying of said writ of attachment the defendant Smith had on general deposit the sum of $725.36.

The court finds that the defendant Smith did not deposit with the bank the sum of $767.53 on the 1st day of February,

Opinion of the Court-Stewart, C. J.

1910, and did not notify the bank that said sum of money was deposited for the purpose of covering and paying the checks mentioned in exhibit "A" attached to the plaintiff's complaint, and the bank did not accept a deposit of said amount or any deposit as a special deposit, and Smith did not deposit said sum for the purpose of paying said checks and for no other purpose, and the said bank did not accept said deposit for the said purpose and for no other purpose, and the said W. P. Smith did not deposit, transfer or deliver said sum of money to said bank in trust for the use and benefit of the check-holders mentioned in exhibit "A."

The court finds that the sum of $562.56 was not assigned to the intervenors, Carscallen Brothers, prior to the levy of the writ of attachment, and said sum was not and did not become the property of the intervenors.

The court finds that subsequent to the filing of the complaint in this action and the service of the writ of attachment, and about 5 o'clock on the 1st day of February, 1910, the intervenors, Carscallen Brothers, filed their complaint in the district court against Smith to recover upon a check for $562.56.

The court finds that in the action of Carscallen Brothers against Smith the intervenors knew at the time of the filing of said suit and the issuing of the writ that the only funds in the hands of the garnishee defendant at the time was the money attached by the plaintiff. The findings thus made by the trial court support the conclusions of law and the judgment, and the question arises whether the evidence supports the findings.

E. J. Carscallen, one of the appellants, testifies that Smith came to his office on the 1st day of February, 1910, about 10 or 11 o'clock, and said he wanted to settle up, and that he gave a check for $562.56 to pay a note of $200 due Carscallen Brothers, and a note of $362.56 due A. F. Duplisea, and which had been left by him with Carscallen Brothers, and that Smith told Carscallen not to present the check until afternoon, and said: "I am making a deposit to cover this and several other checks"; that he drew a check from his pocket that he

Opinion of the Court-Stewart, C. J.

was going to deposit and showed the check. Carscallen says: "I gave the check to Miss Peterson, who went to dinner, and on her way back stopped at the bank and presented the check and it was not paid. I then took the check to the bank and presented it and it was refused, and the bank said that the account had been attached." On cross-examination, in answer to a question, the witness stated that when Smith delivered the check he said he did not have sufficient funds in the bank at that time to take it up, and that he was making a special deposit to cover this check and several others.

W. P. Smith testifies by deposition and in answer to the question, "What, if anything, was said or done by you at that time" (the time he called at Carscallen's office), replies as follows: "I gave Carscallen a check for $562.56 on the Exchange National Bank of Coeur d'Alene, Idaho, and took up note of Carscallen Bros. and A. F. Duplisea, and at the same time I told him that I would make a deposit in the Exchange Nat'l. Bank to pay the check, and that I would notify the bank, that I had issued the check on account." The witness also testifies that at the time he had a checking account with the bank, and that he had at that time on deposit $29.98, and on February 1st he made a deposit of $1,500 at 11:15 A. M.; that this deposit was made with William Dollar; that he drew out after the deposit $762.45, and with reference to the balance on deposit he testifies: "I left with the Exchange National Bank a list of checks which I had drawn against the balance of the money in the bank, and also gave them the number of each check, the amount and name, to whom drawn, and at the same time told Mr. Dollar that the money was left with him to pay those particular checks; the following is a list of those checks as I gave them to Mr. Dollar." Then follows a description of the checks the same as those set forth in finding 9 of the court and contained in the answer of the bank to the interrogatories attached to the service of the garnishment. The witness Smith then testified in answer to the question, "Did the bank accept the money and agree to pay out as directed?" "Yes." He also stated that Dollar told him that he would pay the checks as they were presented, and

Opinion of the Court-Stewart, C. J.

that he did not attempt after that time to draw out any portion of the balance on deposit. He also testified that the deposit made by him on February 1, 1910, was entered on his pass-book the same as all previous deposits made by him at said bank.

William Dollar testified that W. P. Smith had an account with the bank up to the 1st day of February, 1910, an open checking account; that he made a deposit on the first day of February with the cashier, Mr. Platt, and was given a deposit slip receipt for $1,500; the deposit slip was entered at the time of the deposit. When the deposit was received by the bank from Smith it was placed to Smith's credit, and the deposit slip represents the usual method of handling deposits. After this deposit was made and later in the day Smith came back to the bank and had a list of figures with him aggregating some $700, and he footed them up and he said to him he had cheeks outstanding for that amount, and he drew a check for the balance of his account and wanted to leave enough money to cover them, drawing a check for the balance, and went out. He was then asked these questions: "Did he at that time, or any time, ask you to make a special deposit of the balance left in the bank?" A. "No, sir." Q. "Was a special deposit made of it?" A. "No, sir." Q. "I will ask you this question: whether or not anything was said by Smith to you at that time, or any time, asking you to treat or make a special deposit of the balance left with you in the bank?" A. "No, sir." He was then asked whether this deposit was treated in any manner other than that of a general deposit or different from ordinary general deposits, and he answered: "We treated it in the same manner as we treated general deposits until it was attached and then we removed it to a temporary deposit to protect. . . . the attachment." The witness was then asked: "What is the fact as to whether or not the depositor, Mr. Smith, at any time prior to the attachment, lost control over that fund in your hands?" A. "We would have paid any check of Mr. Smith properly signed up to the time it was attached. We had no instructions to do otherwise, although he exhibited a list that he had of

Opinion of the Court-Stewart, C. J.

checks outstanding, but he did not say, 'Protect these checks in preference to any other checks.

This is substantially the entire testimony given at the trial bearing upon the character of the deposit made by Smith in the Exchange National Bank, and what was said at the time the deposit was made and thereafter.

Under the evidence we are satisfied that the findings of the trial court are supported by the evidence.

The court finds, and we think the evidence supports the finding, that after the $700 had been withdrawn from the bank by Smith, Smith did not notify the bank that the remainder of the sum on deposit was there for the sole and only purpose of paying the checks mentioned in the statement furnished, and that the bank did not accept such deposit for that specific purpose, and that said sum was not transferred from a general to a special deposit for the use and benefit of the check-holders mentioned in the statement.

The check given to Carscallen was a mere direction to the bank to pay a certain sum of money to the person named therein. By the giving of such check the amount of the same did not become the property of the payee of the check nor place such fund beyond the control of Smith. Until the check was presented to the bank, Smith could have countermanded its payment and could have given different directions for the disposition of the money remaining in the bank to his credit, and could even have personally demanded payment, and the bank could have been required to pay the same, and by so doing its indebtedness to Smith would have been discharged. (Carr v. National Security Bank, 107 Mass. 45, 9 Am. Rep. 6; Heath v. New Bedford Safe Deposit Co., 184 Mass. 481, 69 N. E. 215; Pullen v. Placer County Bank, 138 Cal. 169, 94 Am. St. 58, 71 Pac. 83.)

The bank had no authority to issue a check in Smith's name for said sum, and it had no claim against Smith which could. have been charged against said amount, and had no right to alter the character of the relation between Smith and the bank. The debt of the bank to Smith as a depositor still existed and continued to exist, and the bank's liability could