(dissenting). A new trial, upon this record, seems to me unnecessary and unwarranted. The reversal is based upon want of proof upon the subject of the payment by the bank of the money deposited with it to one of the depositors; it being said that, “from all that appears in this record, the money may have been in the bank *629at the time the attachment was issued in the Sloan action.” The answer however, averred payment by the bank, and this averment was not disputed upon the trial, which proceeded upon the theory that the money had been paid by the bank, but it was insisted that the same was paid out improperly. Thus, Mr. Rambaut, who, with Mr. Pelletier, deposited the money, testified that he saw the president at the time the sheriff was making the levy, and was told by him that it had all been paid out, and that he wrote to the bank a letter of remonstrance, in which he said he had learned that the bank claimed to have paid out the entire fund on March 2d, which payment was unwarranted. So, too, the assistant deputy sheriff testified that he was told, upon attempting to make the levy at the bank, that there was no money there, and was given a certificate saying, “This is to certify that the bank holds no money of the defendant in its possession.” And it appears that the deposit slip left with tbe¡ bank, which also was introduced in evidence, bears upon its face the signature of Mr. Pelletier, and is stamped “Paid.” Much of this testimony was hearsay, but it was received without objection, and, though slight, has some probative force, particularly as no counter testimony was offered to rebut it. This evidence, we think, supported the allegation of payment by the bank, in view of the fact there was no serious question made about the fact of payment; the contention of the plaintiff being, as said, that unwarranted payment was made.
I dissent, therefore, and think that the judgment should be affirmed.