1 Root 291 | Conn. | 1791
One would suppose, that any doubt or difficulty which has
Now what is meant by indemnifying and saving harmless? The. terms are synonymous, and mean the same thing; they certainly mean, that the defendants will indemnify and save the plaintiff from any and every loss and damage he may eventually suffer, by reason of his becoming bound for them. This is doné, either by paying the debt, and thereby discharging the surety; or in ease that is omitted, and the surety is obliged to pay the debt, by refunding to him the money and interest, and the expense and just damages for his risk and trouble; in either of these ways the surety is indemnified, and the defendants’ promise performed.
Two things are necessary to be united, in order to furnish a good-cause of action'in any case, viz. A violation of a right, which, in law language is an injury; and a damage. Injury without damage, and damage without injury, are neither of them alone a ground of action; and it very often happens in society, that men are exposed to suffer loss and damage, -yet no action can be maintained until a damage is actually sustained. A" man sells a piece of land and covenants to warrant and defend it, against all claims and démands whatever; suits may be brought against'his grantee, for the land; yet the warrantor is not liable on his covenant unless his grantee is evicted; and .in that case the' covenant extends -only, to defend the title against an eviction, or to render damages to his grantee, for ■the loss of the land,' his expense and trouble in defending it. The latter is equally a performing of his covenant as the former: for the covenant is, that the grantee shall hold the land; but if he cannot, that the grantor will make it good to him, that is, will pay him all his just damages and cost.
If an action will lie in favor of a surety against his principal, because he is exposed to pay the debt of his principal, it must be, either to recover the sum he is liable for, or to
In the case of bankruptcy, if a surety might have an action on the ground of his being liable only, it would be for damages merely, which is not provable under the commission; but Lord Mansfield in the cáse of Taylor v. Mills and Mag-nall, Cowper, 525, where the plaintiff had become liable before the bankruptcy, lays it down as a settled principle that the plaintiff, till damnified (which he could not be until he had been called upon and had paid,) could not bring an action; he did not pay the debt till after the commission issued, consequently his whole damage and cause of action, arose after the bankruptcy. Where the engagement to indemnify is special, to pay the debt when it becomes due and to indemnify, etc. the case would be otherwise.