
    James De Wolf Junior versus Abel Chapin.
    Where an assignment was made by a debtor» for the purpose of indemnifying the aa* signee against certain liabilities on behalf of such debtor» it was keld^ that the assignment created no interest in those creditors to whom the assignee was so liable, either directly» or as cestui que trusts»
    Assumpsit for money had and received. The action was commenced against the defendant and John Smith, but no service was made upon Smith. Upon the trial, which was upon the general issue, the plaintiff gave in evidence a deed poll, dated September 9th, 1822, by which Samuel Gray and Abel Chapin junior assigned to the defendant and Smith certain property therein described. In this deed, after enui merating certain debts due from the assignors, (including three promissory notes, produced at the trial, for 2473 dol lors 93 cents each, made by them to the plaintiff,) for most of which the defendant and Smith were responsible jointly, and certain other debts for which either the defendant or Smith was responsible, the assignors say, that they are holden to indemnify the defendant and Smith against any loss by reason of such debts, and in case they shall not save them harmless, they authorize them to dispose of the property, and to apply the proceeds to the payment of the debts of the first class fully and absolutely, and then to apply the residue, if any, of the proceeds to the payment of the debts of the second class, pari passu, and if there should be any surplus, the defendant and Smith are constituted trustees to apply the same in satisfaction of a note made by the assignors to George Smith. It appeared that the property assigned was insufficient to pay the debts of the first class, and that it was all applied to some of them in exclusion of the plaintiff’s demands. It further appeared, that the only liability of the defendant and Smith to the plaintiff, was upon a letter of credit or guaranty ; and that in a suit upon the guaranty, this Court decided that they were not holden for the notes in question. Morton J. directed a nonsuit, subject &c.
    
      Bliss and Morris, for the plaintiff.
    
      E. H. Mills and Bliss, junior, for the defendant
    
      
      Sept. 30th.
    
   Per Curiam.

This assignment contains nothing which cieates an interest in the creditors, either directly or as cestui que trusts. The object discernible in all parts of the inst.rnment is, to indemnify the defendants for their engagements on behalf of the assignors. There are no words of trust for the creditors, nor are they parties to the instrument.

We have no doubt, that if the ground taken by the plaintiff as to the construction of the contract were correct, the form of the action is right. Goodwin et al. v. Gilbert et al. 9 Mass. R. 510.

Nonsuit made absolute.  