Ainsworth

The facts are admitted and found to he as follows: September 37, 1895, George J. Ainsworth, plaintiff’s testator, executed his note to the Bank of California for $10,000, payable December 30, 1895. He was a customer of the bank, and at his death, October 30, 1895, had on deposit there to his •credit the sum of $5,974.35. On December 36, 1895, the day the note matured, the bank, without the consent of respondent, applied this sum on the note. On December 30, 1895, letters testamentary were issued to respondent by the superior court of Alameda county. February 17, 1896, respondent presented her check for said deposit to the bank and demanded payment, which was refused. February 31, 1896, the bank presented its claim on said note therein, crediting it with said sum of $5,974.53, which claim was rejected on March 3d. On March 9, 1896, plaintiff commenced her action to recover the sum so deposited. In its answer the bank set up its presented claim and claimed the right to use it as a counterclaim under sections 437 and 438 of the Code of Civil Procedure, and also the right to apply said •deposit on said note by virtue of its banker’s lien, and also that the two debts—the note and said…