dissenting. Upon the best examination which I have been able to give this case, I have not been enabled to bring my mind to the same conclusion as my brethren. Though, for the purposes of the present argument, we may admit the ground assumed by the court, that A. S. Baxter was guilty of bad faith in his representations to the orators in regard to his ability to pay the accommodation checks, which the bank certified to be good; and that the bank, as between themselves and A. S. Baxter, had the right to repudiate the transaction on the ground of fraud, and recall these moneys from A. S. Baxter or from the Metropolitan Bank, so long as they were the moneys of A. S. Baxter and subject to his control, yet I think an absolute appropriation had been made of the money to the use of H. H. Baxter, by his previous direction, who was a bona fide creditor, and that it at once became irrevocable and absolute, without any further action, and that this is not a case where the trust, assumed by the Metropolitan Bank to pay the money to the Bank of Rut-land for the use of H. H. Baxter, remained countermandable until H. H. Baxter had received actual notice of the deposit, and that this is not a .case requiring notice. In short, I hold it to have been an executed transaction, and that upon the deposit of the money in the Metropolitan Bank, A. S. Baxter ceased to have control over it, and that it having gone beyond the control of A. S. Baxter, it was equally beyond the control of the Bank of the Republic. There is no evidence to connect H. H. Baxter with any bad faith or false representations of A. S. Baxter, and indeed I do not understand that the case is put on any such ground. H. H. Baxter was an honest bona fide creditor of A. S. Baxter, and he writes to him at New York to deposit the amount due him, “ m banlc,” to the credit of the Bank of Rutland, for his use. A. S. Baxter thinks the direction was to deposit the amount in. the Metropolitan Bank to the credit of the Rutland Bank. It is no doubt immaterial which of them is correct in this particular. The legal effect, I apprehend, would be the same in either event. A. S. Baxter deposits in the Metropolitan Bank his certified check upon the Bank of the Republic, which the Metropolitan Bank accept as so much cash; and by the direction of A. S. Baxter, they pass it to the credit of the Bank of Rutland, to the use of *117H. H. Baxter, and the check is at once paid by the Bank of the Republic to the Metropolitan Bank. When A. S. Baxter deposited this money in the Metropolitan Bank, for a specific purpose, the acceptance of the money by the bank for that purpose, (and this is abundantly established by their passing it to the credit of the Rutland Bank for the use of H. H. Baxter), amounted to a direct undertaking on their part with A. S. Baxter, that they would perform the trust and pay over the money according to the terms of the deposit. See 2 Story’s Equity J. P. sec. 1041, and the authorities there cited.
In such a case it has been frequently held, that the person for whose use the money has been paid, may maintain an action at law for the same, against the bailee, without any further act or assent by the bailee, and this upon the ground that a privity is created between them, even at law, by means of the original undertaking, and to this effect is the case of Treall v. Douglass et al., 1 Henry Black. 239, and Farmer v. Russell, 1 Bos. & Pul. 295; Nelson v. Blight, 1 Johns. Cases 205; Weston v. Barber, 12 Johns. 276, and many others. No doubt ever existed that a remedy could be had in equity, under such circumstances, it being a matter of trust. Chancery would compel a performance of the trust. But still the question returns, was the trust countermandable until H. H. Baxter had assented to the trust upon his receiving subsequent notice of the deposit, and this is the turning point in the case. Inasmuch as the deposit was not made by A. S. Baxter upon his own mere motion, but was made at the instigation of H. H. Baxter, and under his direction, I think, all the assent to the appropriation of the funds, on the part of H. H. Baxter, which can be necessary to render it irrevocable, is implied out of the original direction of H. H. Baxter, and if no further assent was necessary to make the appropriation absolute, then notice was of no importance. Notice would only be necessary for the purpose of showing an assent.
If a case arises, where the evidence or the circumstances of the case repel the presumption that the depositary or bailee agreed to receive, and did receive the money for the use of the person, for whom it was designed, quite a different rule obtains. Until there has been the assent of the depositary or bailee, expressed or *118implied, there would seem to be no legal privity at law or in chancery between Mm and the person claiming the deposit. But that is not this case. The assent of the depositary is expressly inferred from the reception of the money, and the passing it to the credit of the Bank of Rutland for H. H. Baxter’s use. There is not a fact in the case tending to repel this presumption.
The case of Williams v. Everett et al., 14 East 532, which seems to be relied upon to sustain the decision now made, is clearly good law, but I apprehend it is as far from the case now before us, as light is from darkness. In that case the defendants had refused expressly to act under their letter of instructions. Lord Ellenborough, Ch. J. observes in his opinion, “ that there was no assent on the part of the defendants to hold the money for the purposes mentioned in the letter, but on the contrary an express refused to the creditor so to do. It was quite clear that in that case there could be no implied assent, so as to create a privity between the parties in the suit against the express dissent of the defendants, who were sought to be charged. In that case it might well be held, as it was, that the defendants, by the reception of the bill, agreed to hold it till paid, and when paid, to hold its contents for the use of the remitter, and subject to his entire control, until by some engagement entered into by themselves, the defendants had appropriated the remittance to the use of the person for whom it was designed, and then, it was well said, they would be bound to hold it for the use of the appointee, and could not retract the consentfthey may have once given. That case turns altogether upon the express refusal of the defendants to undertake the performance of any trust in behalf of the person for whom the remittance was designed. So in the case of Yates v. Bell, 3 B. & A. 643, and in Grant v. Austin, 3 Price 53, and Tierman v. Jackson, 5 Peters 597; there were circumstances in each case which repelled all presumption that the bailees had agreed to receive, or did receive the money for the use of the creditors, or at least, that no such assent was shown under the circumstances, and this should of course appear affirmatively. The case of Brind v. Hampshire, 1 M. & W. 365, was an action of trover for a bill of exchange. The bill was specially indorsed to the plaintiff to pay the plaintiff’s account for the education of the remitter’s children, *119and was sent to the defendant, the agent of the remitter, who procured an acceptance of the biil by the drawees, and he then sent a letter to the plaintiff stating that he had received a commission from the remitter to pay her some money on account of his children, and desired to know when and how it should be sent her. In this situation the remitter directed the agent to keep the bill and its proceeds in his hands until a settlement of the plaintiff’s account, and then pay her what was her due. No settlement took place and the defendant detained the bill. It was well said in that case, that trover would not lie for the bill. There was no binding contract between the agent and the remit-tee, to deliver her the bill, and Baron Parke says : “ that even supposing the defendant held the bill itself for the use of the plaintiff; that would not have the effect to transfer the property in the bill to her, and of course trover could not have been maintained, if there had been no countermand.” That case has very-little analogy to the one at bar, and can not, I think, be relied upon as an authority for the decision now made. The case of Wedlake v. Henley et al., 1 Crompton & Jervis 83, is decided upon the ground that though there was no express repudiation of the trust, yet the case did not by implication show an assent on the part of the defendant to hold the money in trust for the plaintiff, which was essential to create a privity, and such assent should affirmatively appear before the privity can be created. This ease differs from the case in 14 East only in this, that there the dissent affirmatively appeared. The principle is the same in both cases.
In Story’s Equity Jurisprud. sec. 1045, it is well said, “that courts of equity like courts of law will not deem the appropriation to creditors absolute until the creditors have notice thereof, and have assented thereto, and that until that time the mandate or direction may be withdrawn, and any other appropriation made by the consignor or remitter.” This is true, no doubt, but the principle applies only to that class of cases where the appropriation on the part of the debtor is voluntary on his part, and made of his own mere motion, without any previous direction from the person in whose behalf the appropriation is made, as the cases will abundantly show. To apply it to the case now before the court .is, I think, a flagrant misapplication of a well settled principle. *120Justice Story, in sec. 1196, speaking of implied trusts, says the most simple form is, that of money or other property delivered by one person to another, to be delivered over by such latter person to a third person for his benefit. This he well treats as creating an implied trust, and this he says is not absolute under all circumstances, and then proceeds to say: “ for if the trust is purely voluntary, and without any consideration, and the benificiary has not become a party to it by his express assent after notice, it is revocable, and when revoked the trust is gone, and an implied trust results in favor of the party who originally created it.” This limitation of revocable trusts is well marked by the authorities.
In the case at bar, the precedent indebtedness of A. S. Baxter was a sufficient consideration for the appropriation, and it having been made by the direction of H. H. Baxter, A. S. Baxter is not to be regarded as a volunteer in making it. It is well said in the cases in 14 East and 5 Peters, that the true test, whether an absolute appropriation is made out or not, depends upon the point at whose risk the property is. In the case of voluntary appropriations, the depositary is the sole agent and trustee of the depositor until the depositee has notice and assents to the transaction. But in this case II. II. Baxter directs the deposit to be made “ in bank,” to the credit of the Bank of Rutland, or as A. S. Baxter says, in the Metropolitan Bank. If the direction was general, to deposit the money m bank, I apprehend all that could have been required of A. S. Baxter would have been the selection of some bank in the city, of good credit, and that bank, when selected and the deposit made according to direction, would become the agent and trustee of II. II. Baxter, as much so as if the direction had been made to deposit in some specified bank, which had been done accordingly. From the time this money was deposited in the Metropolitan Bank, it was, I think, at the risk of H. II. Baxter, and not at the risk of the depositor, if the direction was specific to deposit in this bank, or if it was general as to the bank, and the depositor used the requisite care in the selection of a bank. This test then, as I think, most clearly indicates, as applied to the facts of this case, that the appropriation was absolute, and not countermandable.
It is true, as is said by Judge Story in section 1046, if a *121remittance is made, with orders to pay over the proceeds to a third person, the appropriation is not absolute, and the reason is, because it is simply a mandate from the depositor, as a principal, to the depositary as his own agent, and can give no interest in the subject matter of the deposit to a third person, who stands as an entire stranger to the mandate. In such a case it may well be conceded that the deposit may be revoked at any time before the depositary has become liable to the person, for whose benefit the deposit was made, to execute the trust, but that we apprehend is not this case. The depositary, having been selected by H. H. Baxter, or by his directions, to hold the funds, and having, by giving the Bank of Rutland credit for these funds, as the trustee of H. H. Baxter, consented to the performance of their duty on their part, to me it is clear that the depositary held the funds from the time of their reception, as the agent and trustee of the person to whom they were to be remitted, and were at his risk. Both the equitable and legal interest in this money at the time of the attempted countermand, was, I think, in H. H. Baxter, or rather the legal interest was in the Bank of Rutland, as his trustee, and I think the Bank of Rutland could have well maintained an. action at law against the Metropolitan Bank for its recovery, and that H. H. Baxter could well have enforced his equitable rights in a court of equity. If A. S. Baxter could not countermand the deposit, and it became absolute against him, the Bank of the Republic can not do it, as it is not claimed from the testimony that H. H. Baxter was in any way privy to the bad faith of A. S. Baxter, and he holds for a valuable consideration, and without even a pretence of notice of misconduct in A. S. Baxter, until after he had acquired for his own use and for a valuable consideration, the legal and equitable interest in the funds. I should affirm the decree of the chancellor in all things with costs.