Fisher

Plaintiff, as administrator, brought the action for the recovery of $5,170, claiming that it belongs to said estate, and that the defendant unlawfully collected and embezzled said amount after the death of said George Ludwig. The defense is that the money was given to defendant by the said George Ludwig sometime previous to his death. The issue is squarely presented by the pleadings, as follows: The complaint alleges:

Defendant denies this allegation and avers, “that said George Ludwig, on the 29th day of January, 1903, executed and delivered to Caroline Ludwig, this defendant, for good and valuable consideration, an order, assignment, and transfer to defendant, absolutely and without any reservation, all the sums of money coming to said George Ludwig from, or standing to his credit in said Sacramento Bank as a deposit in said bank in his name and as represented by pass-book No. 22,603, in words and figures as follows, to wit.” Then follows the order hereinbefore set out. It is also averred in the answer that “the control and possession of said pass-book No. 22,603 was also delivered to this defendant by said George Ludwig.”

A distinction of importance is recognized in some of…