By the Court,
The covenant is not simply to indemnify and save harmless against the bond, but it is to indemnify and save harmless the plaintiff from his liability on the bond. The breach assigned not only shows that the plaintiff became liable on the bond, but that being liable, he has been called upon, and forced and obliged to pay, and has actually paid the sum, which he seeks to recover. There can be no doubt that the breach is sufficient. The plaintiff was not bound to wait until he was sued on the bond; he had the right to pay the money, and then resort to the covenant for his indemnity. Indeed, according to the case of Chase v. Hinman, 8 Wend. 452, and the opinion of Jones, chancellor, in Rockfeller v. Donnelly, 8 Cowen, 639, it was enough to allege that the plaintiff had become liable to pay, and then he might recover damages to the extent of his liability, although he had not paid the money. The demurrer is not well taken.
Judgment for plaintiff.