McKIM v. THOMPSON.—1 BLAND. 155

hands by Heyland, against all demands that might be rightfully
made against him on account of those acceptances, either by the
Bells, or by the holders of them.

By this deed Heyland does, most clearly and distinctly, give us
to understand, that it was his intention to pay all those of his
creditors in whose favor he had drawn bills on the Bells. For,
with what other possible view could he have stipulated to account
with Thompson for the whole amount of the bills as if they had
been actually paid by the Bells ? And with what other understand-
ing' was the covenant entered into for an indemnity against all
those creditors ? It is most manifest, therefore, that Heyland
placed this fund in the hands of Thompson for the use of that class,
of his, Hevland's creditors, the bill holders, whoever they might
be.

But, it is alleged that Thompson has a title to at least a share
of this fund as the assignee of the Bells; and this, it is said, is
proved by the recital in this deed, in which it is acknowledged,
that the Bells " had transferred and made over all the amount due
by the said Heyland for goods which the said house of William &
John Bell & Co. accepted to pay on his account to Hugh Thomp-
son;" and also by the express stipulation, by which Heyland bound
himself to Thompson for such balance as might be found due from
him, Heyland, to the Bells, on account of those transactions, or
otherwise, to the time of executing that deed.

This position may, perhaps, be more clearly and strongly pre-
sented in another form, thus: Heyland stands indebted to sundry
persons in the sum, suppose for example, of f 16,000, for the pay-
ment of which the Bells are his sureties; and, as such, they have
paid for him $4,000, and consequently stand in the place of his
creditors to that amount. But this claim of the Bells, having
been assigned by them to Thompson, he has, thus circuitously,
become a creditor of Heyland to the amount of that 84,000, part
of the original debt of £16,000. Now. says the defendant's counsel,
Thompson must be allowed to retain at least one-fourth ol the fund
which has been placed in his hands for the payment of the whole
816,000, since he, in fact, stands in the place of the original credi-
tors to one-fourth of that whole amount.

* There is an imposing aspect of equity in this position;
and, if the Court felt itself at liberty to make free with the
positive covenants of the parties, there might be no difficulty in
applying its equalizing principles to this case; but the Court is not
at liberty to reject or impair the covenant of indemnity in this deed
of the 8th of January. By that covenant, Thompson is bound to
save Heyland harmless, not merely against the Bells, but against
all the holders of the acceptances, whoever they may be, to the
amount of the funds in his hands. In other words, he is thus con-
stituted a trustee for the bill holders of the funds in his hands, to