The opinion of the court was delivered, January 3d 1871, by
Williams, J.
— We are of the opinion that the facts found by *171the special verdict show an equitable appropriation of the balances of the deposit accounts in the bank, of which the defendant had the control, to the payment of the money for which his note was given. The contract was not a mere naked agreement that the funds should be applied to the payment of a debt previously contracted ; but it was a contract under which the bank advanced the money in consideration of the defendant’s agreement that the funds should be appropriated to its payment. There was therefore a good and sufficient consideration for the defendant’s agreement that the funds should be so appropriated. After the bank had advanced the money to pay the premium on h'is- life insurance policies, the defendant had no legal right to withdraw the funds, and the bank might have withheld them. Nor were they liable to be attached by his creditors as against the bank, for they were appropriated by the agreement of the parties to the payment of the money which the bank had advanced on the defendant’s account. If, therefore, the defendant could not have withdrawn the funds, and if they were not liable to an attachment at the suit of his creditors, neither the bank nor its creditors have any right to refuse to have them deducted from the amount of the note. The right to the deduction depends upon the agreement of the parties appropriating the funds, and not upon the giving of checks for the adjustment of the balances in pursuance of the agreement. If the defendant had refused to give checks for the balances, the bank would have had the right to treat them as actually appropriated to the payment of the note. The rights of the parties under the agreement must be mutual, and therefore the defendant is entitled to insist upon the appropriation as if it had been actually made on the books of the hank. The court therefore erred in entering judgment for the amount of the note with interest. The judgment should have been entered for the balance due thereon, after deducting' the deposits in the bank which had been appropriated, by the agreement of the parties, to its payment.
And now, January 3d 1871, it is ordered and decreed that the judgment entered on the special verdict in this case be and the same is hereby reversed: and it is now ordered that judgment be entered for the plaintiff on the special verdict for the sum of $273.54, with interest thereon from the 23d of March 1866, in accordance with the finding of the jury.