It is immaterial, in this action, whether the identical bills or checks received in payment for the bonds sold were deposited with the defendants, or whether an equal sum of money, out of the funds of Yan Allen & Rice, was so deposited. In either case, a sum of money equal to the amount due the plaintiff was set apart for his use, and was so deposited with the defendants, and that fact was communicated to the plaintiff. It is not enough to make an equitable assignment of money on deposit that a check should be drawn therefor. In such a case there would be no privity between the bank and the holder of the check, and, until acceptance by the bank, the holder cannot recover. But when, in addition to the check, the fact appears that the money was deposited as the money of the holder of the cheek, and that fact is communicated to the bank before any other right has accrued to the fund, the same becomes, in equity, the property of the holder of the check, and he may recover it from the bank. The fact of indebtedness to the bank from the depositor, which has not matured, cannot affect the rights of *520the plaintiff. It would be no defence if Van Allen & Rice had brought the action at this time, because it was not at that time due, so that an action could be maintained upon it. The judgment should be affirmed.
Judgment affirmed.