The question presented in this case is whether the agreements made by the defendant with Wales, the landlord, and with certain other persons, who trusted him upon the faith of those agreements to pay them out of the amounts to be allowed for his claims against the county and towns, gave to such creditors an equitable lien or preferable claim upon the fund. Previous to the decision of the court for the correction of errors in the case of Hosack & Blunt v. Rogers, (18 Wend. Rep. 319,) I had supposed that an agreement, founded upon a good consideration, by which the owner of a fund promised to appropriate that fund to the payment or discharge of a particular debt, gave to the person with whom that agreement was made an equitable lien upon the fund. In that case, however, the court of dernier resort decided that the law was otherwise, and reversed the decision of this court on that ground; so far as I can understand the effect of that judgment. The authority of that decision was certainly very much shaken, by the opinions of the chief justice and other members of that court, when the same case again came before them upon appeal, in the year 1840. But as the decree of this court, founded upon that decision, was affirmed upon the ground that the former decision was conclusive upon the rights of the parties on that question,! might not consider myself authorized, while sitting in an inferior tribunal, to act in direct conflict with the decision as reported in 18th Wendell’s Reports. I consider the authority of that case so far impaired, however, that I do not feel bound to follow it beyond the express point decided, that *245a mere agreement, to pay out of a particular fund when recovered, does not give to the promissee an equitable lien upon the fund. And as the defendant in this case swears he 1 • _ sold the demands to the several persons, in favor of 'whom the orders were afterwards made, previous to the granting of this injunction, and not merely that he promised to pay them out of the fund when audited, I cannot say there was a breach of the injunction. The order appealed from must therefore be affirmed.
But as the appellant’s counsel was evidently misled by the general terms of this published decision of the court for the correction of errors, and not being aware of what had subsequently occurred in that court limiting at least the extent of that decision, I shall not charge his client with costs on the appeal; though, as a general rule, the respondent who succeeds upon an appeal is entitled to his costs.