McKIM v. THOMPSON. 167

There is an imposing aspect of equity in this position; and, if
the court felt itself at liberty to make free with the positive cove-
nants 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 constituted a trustee
for the bill holders of the funds in his hands, to the amount of
the balance remaining due and unpaid on those acceptances:
otherwise Heyland would not be indemnified against all demands
by the bill holders, according to the express terms of this contract.
The expressions in this deed, "on account of the transactions
before alluded to, or otherwise, to the time of executing these
presents," were intended merely to refer to the means of ascer-
taining the extent of Heyland's liability to the bill holders, and the
amount of the funds which it was necessary should be placed in
Thompson's hands, to meet that liability. The great leading
object of Heyland was to provide for the payment of his own
debts due to those bill holders. He had nothing to do with the
transactions between Thompson and the Bells, or with the debts
due from the one to the other of them. The obvious inducement
of Heyland in making this provision in favour of his bill holders
was, some apprehended inability of those who had thus become
his sureties to them. Hence, whatever might have been the nature
or design of the assignment of the claim on Heyland from the Bells
to Thompson, or of any contract between those parties, that transfer,
or contract, cannot be permitted to control or contradict the positive
and clear stipulations contained in this deed of the 8th of January,
between Heyland and Thompson.

In short, the clear and unequivocal objects of this deed, were to
place funds in Thompson's hands to meet the claims of those of
Heyland's creditors who should present themselves as the holders
of his bills, as therein described; and to obtain an indemnity and
discharge for Heyland from every part of those claims, so far as
those funds would go. But Thompson does not pretend that he
stands here as a creditor of Heyland, in the special character of
a holder of all, or any one of the specified acceptances; he is not,
by any thing that is alleged or appears, a holder of any one of the
designated bills drawn by Heyland. It might be, that Heyland