176 McKIM v. Thompson

they directed to Thompson; what the Bells should riot pay,
Thompson, out of the funds received from him, was to pa;f.

u What Thompson received under this contract from Heyland, was
8889 5s. 4d., and his engagement was to indemnify Heyland from
claims by the Bells, or the bill holders, " to an amount equal to
the sum which might be paid over to the said Thompson by virtue
of said arrangement." We therefore consider, that if it appears,
that the Bells paid on account of those acceptances, an amount
equal to the sum received by Thompson from Heyland; and if it
further appears, that Thompson is liable for, or lias paid, on account
of his engagements for the Bells, an amount equal to what he has
received from Heyland, he has complied with the contract.

"The first appears to be admitted. The sums paid to the bill
holders by the Bells, amount to a greater sum. Thompson's account
against the Bells shews an amount due to him greatly exceeding
the sum paid him by Heyland. The bills of the Whittles and Tucker,
(notarial copies of which are admitted,) amount, with damages and
costs, to about that sum. These-bills Thompson had endorsed and
taken up, and the Bells were liable to him on them, and it was for
them, it appears, he entered into the liability; to them he had a
right to look; and although there is an expression in one of his
letters, that he meant first to get the money from the Whittles, if
practicable, yet we do not think he was bound by that expression
to follow the Whittles with strict legal diligence. There is no
evidence to shew, that there has been any such engagement, or
such negligence in enforcing it against the Whittles as should
absolve the Bells. There are other items in Thompson's account,
which we did not understand were objected to.

"Upon the whole, we award and determine, that neither the
complainants, the original bill holders, nor the assignees of die
Bells, nor those of Marcus Heyland, have any claim upon the
funds received by Thompson from Heyland, And that a decree
shall therefore be made dismissing their bill; but without costs.
12th February, 1827."

A was passed accordingly on the 26th February, 1817.