— As it is admitted by defendant that Ellen Mulcaliey and John O’Keefe were both present at the bank at the time of the deposit of the money which is the subject of this action, that fact, coupled with the opening of the account in the name of both in the manner hereinafter mentioned, is, in the absence of all proof to the contrary, sufficient evidence that the money was the joint property of the depositors, and that the deposit was a joint deposit.
During the life of both the moneys might have been paid to either as joint creditors of the bank. The recital in the pass-book, “ Dr. Emigrant Industrial Savings Bank, in account with, John O’Keefe or Ellen Mulcahey, Or.,” expressed no more than that the moneys might be paid to either, as in the case of all joint deposits. It did not create a several liability, but was merely declaratory of the obligation of the bank and the right of the depositors, as in all cases of joint deposits.
It did not take from this plaintiff, Ellen Muleahey, the survivor, the right to draw the whole sum, nor give to the personal representatives of John O’Keefe, deceased, the right to draw on presenting the book. The pass book cannot be considered as a written instrument, assignable by either payee, and passing to the representatives of the holder, as m the case of special contracts to pay (Record agt. Chisun, 25 Texas, 348, cited by appellant). The right of action is upon the deposit.
As to the objection that the plaintiff made no effectual demand on the bank, because she did not produce the pass book, it appears from the testimony of Hannah Lyons, that defendants had already paid over the fund to Mrs. O’Keefe when plaintiff demanded it, and it appears from defendant’s answer that it was so paid to Mrs. O’Keefe on production and transfer by her to the bank of the pass book. It was, therefore, impossible for plaintiff to comply with the by-laws and produce the book, as defendant then had it.
*466The exceptions should he overruled, and judgment for plaintiff entered upon the verdict with costs.
C. P. Daly, C. J., and Beach, J., concurred.