Dissenting opinion by
Chief Justice Paynter, in which [Judges Burnam and Hobson concur.In the disposition of this case the court should have followed the rule (and the deductions which necessarily followed it) enunciated in Lester & Co. v. Given, Jones & Co., 8 Bush, 357, and reaffirmed in Weinstock v. Bellwood, 12 Bush, 139. In these cases the court held that a check is an absolute appropriation of so much money in the hands of the banker to the holder, to remain there until called for, and can not after notice be withdrawn by the drawer. As between the drawer and the holder of the check the appropriation is absolute, but the lavr will not allow the bank to suffer, before notice, that the check has been withdrawn *330by the misconduct and wrong of the drawer in beating the holder of the check to the bank. .If there is an absolute appropriation of the money to the holder of the check, it logically follows that the drawer of it can not deprive the holder of his right to .the fund' by notifying the bank not to pay the check. Then the holder’s right to the fund has attached it, is only by his consent that the drawer can again be reinvested with any right to the fund. This being true, when the drawer dies, it being necessary to have the consent of the holder of the check to reinvest the drawer with an interest in the fund, the drawer’s death can not reinvest his estate with a right to the fund which in life he had voluntarily appropriated to another; The fact that there was not fund enough in the bank to' pay the entire amount of the check did not deprive the holder of the right to have paid to him the amount actually in bank.
This court has heretofore followed the doctrine of Daniels on Neg. Instruments, and I am of the opinion that it is the correct one.
Judges Hobson and Burnam concurring.