Brentnal v. Helms

One would suppose, that any doubt or difficulty which has [292] existed in resolving this question, would be obviated, by ascertaining with precision, the- facts in the cases which are as follow, viz. The plaintiff becomes bound with the defendants for théir debt,' and at their request; the defendants in consideration thereof, promise to indemnify and save him harmless, on account of his thus becoming bound. 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 [293] compensate him for the liability; if for the former he then will recover a sum of money from the principal, that he has never paid, and only, as the case may be, for the principal to recover it back again; for the creditor may never call upon the surety for it: If it be the latter, viz. for his liability only, and not for the debt, it will be difficult to' find a rule of damages: Besides, if an action is maintainable on this ground, the surety may repeat his actions for this, from day to day, so long as he continues liable, as in case of a nuisance; and even after the principal' has paid and discharged the debt, if the surety had at any time been liable, an action would be maintainable. The cases cited from the books respecting sheriffs, and respecting bankrupts, were they to be considered as authorities here, prove nothing for the plaintiff; for the escape of a prisoner in gaol on an execution, is a tort, committed upon the gaoler, and he thereby becomes debtor to the creditor; he may immediately pursue and retake the body, or have an action for the money. 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.