*272The opinion of the ‘ourt was delivered, October 9th 1871, by
Williams, J.We nave examined with great care the whole of the voluminous record in this case, and are of the opinion that the evidence fully sustains the finding of the auditor, and that he has drawn the proper legal conclusions from the facts as found. If Heckert, knowing that Lane as his assignee had deposited in the bank a sum equal to the whole trust funds remaining in his hands, and which he had offered and was ready to transfer, agreed with the bank that he would not demand the money of the assignee but that it might remain in the bank for its use on the payment of interest thereon to him, it is clear that whether he made the arrangement known to the assignee ‘ or not’ he assumed such dominion and control over the fund, as in equity would discharge the assignee from all responsibility for the loss arising from the failure of the bank. He could not by a secret contract agree that the bank should retain and use the deposit on paying him interest thereon, and yet hold the assignee responsible for the solvency of the bank and its safe keeping of the fund. The auditor found in substance that Heckert did make such an arrangement with the bank after the assignee had offered to transfer to him the money, and that he received the fruits of it down to the time of its failure; and he rightly held that he was chargeable with the loss. The appeal must therefore be dismissed and the decree of the court below affirmed.
And now, October 1871, This cause came on to be heard at the last May Term of this court held at Harrisburg, and was argued by counsel, and, upon consideration thereof, it is now ordered, adjudged and decreed that the appeal be dismissed and the decree of the court below affirmed at the costs of the appellant.