McKIM v. THOMPSON.—1 BLAND. 143

oblige himself to indemnify the said Marcus Heyland from and
against all claims and demands, that may be rightfully made
against him for, or on account of the said acceptances, either by
the said William & John Bell & Co., or by the respective holders
of the said acceptances, to an amount equal to the sum which may
be paid over to the said Hugh Thompson in virtue of this arrange-
ment. In testimony whereof the said Marcus Heyland and Hugh
Thompson have hereunto subscribed their names and afiixed their
seals, on the eigth day of January, in the year of our Lord one
thousand eight hundred and eleven.''

It further appears, that, subsequent to these agreements, Hey-
land did, at various times, between the 5th of March and the 13th
of September, 1811, pay to Thompson, the sum of £8,889 5s. 4d.
sterling; that the bills, drawn by Heyland. had been protested for
non-payment, and then remained unpaid. And it further appears,
that, some short time before April, 1812, Heyland failed, and ob-
tained the benefit of the insolvent laws of this State; and that
John McKim, Jun'r, and Thomas L. Emory, Jun'r, were appointed
* trustees for the benefit of his creditors, to whom he con-
veyed all his property accordingly. 153

Upon these circumstances, the trustees, McKim and Emory, to-
gether with The British Copper Company, and others, holders of
the bills drawn by Heyland, on the 22d of September, 1812, insti-
tuted this suit against Hugh Thompson and John Bell, the surviv-
ing partner in this country of William & John Bell & Co. They
alleged, that the sums of money received by Thompson from Hey-
land, as shewn by their exhibit E, amounted to the sum of
£8,889 5s. 4d. sterling; and prayed, that Thompson might be de-
creed to pay over to the trustees, McKim and Emory, for the
benefit of the bill holders, and others, the creditors of Heyland,
the amount received by him: and for general relief, &c.

On the 27th February, 1813, the defendant, Hugh Thompson,
filed his answer, in which he admits, that the bills drawn by Hey-
land, were accepted as stated; that the agreement of the 20tb
November, 1810, and that of the 8th January, 1811, were made
and executed as stated. And he then answers in these words:—
"This defendant avers, that the said agreement, bearing date the
8th January, 1811, was executed at the instance of Heyland; but
this defendant denies that it was the intention of the said agree-
ment, or the understanding of the parties, or of the counsel em-
ployed by them to reduce it into form, that Heyland should be
entitled to indemnity, unless his payments to defendant should
exceed the debt which should be actually due from Heyland to the
house of Bell & Co. The true purpose of the agreement being,
that as Heyland did not exactly know the amount which Bell &
Co. had paid, or might pay for him, he should be secure of a
restoration from this defendant of the surplus of his payments, if