Page:Federal Reporter, 1st Series, Volume 3.djvu/868

 IN EE, WlIipEE. 861 �dorser paîd the balance of the note to the bank, and took it np, is in writing, and makes a part of the case. He paid the bank $4,500, and the bank assigned and made over.to him ail moneys due from the estate of the bankrupt to them on account of the cote, and contracted that they, the bank, would not take or reçoive any of said moneys from said estate without his consent in writing. Nothing can be more certain than that the indorser from that moment became the holder of the note, and that as such he was entitled to what- ever should be realized by the bank for the note, as the cred- itor of the bankrupt. None of these faets are disputed, and the question is whether the last holder of the note can prove the same against the estate of the bankrupt. Nothing of the kind can be inferred from any promise expressed in the agreement from the indorser to the maker. Instead of that the indorser agreed, in the fullest manner, by an instrument under seal, that he would hold the maker harmless against any and ail claims which the bank had against him on account of the note, from which it follows that the assignees of the bankrupt, answering to any such demand, may well reply, you' have discharged the maker of the note by your agreement with him, and in giving that discharge you have released the estate of the bankrupt from ail liability. Should it be suggested that the agreement to discharge is merely ex- ecutory, the answer to the suggestion is, that to avoid cir- cuity of action, the court will allow the indorser the benefit of the agreement. Were the rule otherwise, the effect would be that the indorser would bave to pay the amount to the maker, and then recover it back from him, when the maker would be compelled to seek indemnity under his contraot, exe- outed by the accommodation indorser. Beyond ail doubt, the obligation given by the accommodation indorser, before any dividend had been paid, is an absolute indemnity to the maker of the note against the entire amount which the maker prom- ised to pay to the holder. Language more explicit could not be employed, as the party agrees to hold the maker harmless against any and ail claims which the bank bas against him on account of the note, which certainly applies to the whole ����