damage necessarily sustained by the breach of his covenant, to-wit: the amount necessary to put the premises in the same state of repair in which he ought to have kept them. Penley &c. v. Watts &c. 7 M. & W. 609. This decision has been since followed in the court of exchequer; that court considering that the case of Neale v. Wyllie is not law; that it was decided on a mistaken principle; Lord Abinger said, he thought it was better that he should at once express this opinion than attempt to make a distinction between that case and the case before him. Walker v. Hatton, 10 M. & W. 259. For, he added, the "making distinctions which have no solid foundation, only tends to keep up litigation;" a maxim which has often been repeated, and which Pollock, C. B., thinks may well be held in remembrance by all judges. 6 W. H. & G. 737. The cases of Penley v. Watts and Walker v. Hatton, are considered by the common pleas to overrule Neale v. Wyllie ; and "with reason, because," says Coltman, J., "it was competent to the first lessee to stipulate for a right to enter, or to exact a covenant of indemnity." Logan v. Hall &c. 4 Man. Gr. & Scott 624; 56 Eng. Com. Law Rep. 624. He may take from his assignee a covenant to perform all the covenants in the lease which on the part of the lessee ought to be performed. On such a covenant it was considered, in New York, that the moment the day for the payment of rent to the lessor was past, and the rent was left unpaid, the covenant was broken, and an action for the breach of it was maintained against the covenantee by the covenantor. Without any averment that he had either voluntarily or compulsorily paid the rent, he recovered not nominal damages only, but the amount of the rent due. Port v. Jackson, 17 Johns. 245, 482. And if the assignee assign the premises, he may take from the second assignee a covenant to pay the rent and perform the covenants contained in the lease, and to save harmless and indemnify the first assignee against the same. In such case, if the covenants in the lease to pay the rent and keep the premises in repair be broken, and in respect to such breaches there be a recovery against the lessee for the rent and repairs with costs, and then for the amount of that recovery, a judgment against the first assignee, he, while still remaining liable therefor, may maintain an action on the covenant of the second assignee and recover from him the same amount. Smith v. Howell, 6 W. H. & G. 730. Although in this case the covenant of the second with the first assignee, purported to be for his indemnity against all costs, damages and expenses which might be incurred by reason of any delay, breach or default in payment or performance thereof, the verdict of the first against the second assignee included besides the rent and repairs, only the costs incurred in the action against the lessee. These costs were recovered against the second assignee as having been properly incurred to ascertain the amount of his liability. But the court was of opinion, that when that amount had once been ascertained, all the costs subsequently incurred were unnecessary and therefore could not be recovered. CHAPTER X.. OF THE ACTION ON A COVENANT OR OBLIGATION TO INDEMNIFY. 1. Where contract is to pay a certain sum of money or to do a particular act. What facts are sufficient to sustain an action on a covenant or obligation to indemnify must depend upon the true intent and meaning of the instrument. If by it the covenantor undertakes to pay a certain sum of money or to do a particular act, then, if there be a failure to make such payment or to do such act, an action lies therefor, and the plea of non damnificatus is no answer to such action. Holmes &c. v. Rhodes, 1 Bos. & Pul. 638; Wood v. Wade, 2 Starkie 167; 3 Eng. Com. Law Rep. 297; Negus's case, 7 Wend. 503; Mann v. Eckford's ex'ors, 15 Id. 514; Bauer &c. v. Roth &c. 4 Rawle 98; Archer v. Archer's adm'r, 8 Grat. 539. A man agreed to pay certain debts mentioned in a schedule; and he covenanted that he would "well and sufficiently save, protect, defend, keep harmless and indemnify the covenantee, his executors and administrators against the payment of the sums of money mentioned in the schedule, and all actions, suits, claims or demands on account of them." One of the debts which the covenantor thus agreed to take upon himself was for arrears of an annuity. In an action against the covenantee, judgment was given for these arrears; and then the covenantor not discharging the same, as it was his duty to do, action was brought against him by the administratrix of the covenantee, and judgment was given against the defendant. Littledale, J. said, the defendant "is bound to put her in a sit uation to pay that which, by his default, she has become liable to pay." "The defendant suffers no prejudice in being called upon to pay the whole amount; it is his duty to pay it; and it makes no difference as to that whether she applies it in discharge of the debt or not." Carr v. Roberts, 2 Nev. & Man. 42; 2 Barn. & Adol. 905; 5 Id. 78; 22 Eng. Com. Law Rep. 905; 27 Id. 41. Here it was clear there was a breach of one or the other of the covenants; and some of the judges inclined to the opinion there was a breach of both. In New York, the case of Holmes &c. v. Rhodes, 1 Bos. & Pul. 638, seems not to have been followed in Douglass v. Clark, 14 Johns. 177; the court which decided this case construing the bond sued on not as undertaking to pay off and discharge the bond recited in it, but merely as a bond of indemnity to save the plaintiff harmless from all damages by reason of the recited bond. The decision in Douglass v. Clark, has been since disapproved. It is regarded as in effect, though silently, overruled by the case of Port v. Jackson, 17 Johns. 239, 439; and the cases of Holmes v. Rhodes and Hodgson &c. v. Bell, 7 T. R. 93, are now fully approved in New York, and the principle which they assert is sanctioned by the highest authority in the state. It is now considered that an undertaking to pay, when it becomes due, a sum of money for which the plaintiff is bound to a third person, and to save the plaintiff harmless, &c., is more than a bond of indemnity. Thomas v. Allen, 1 Hill 145; Tyler v. Ives, cited in 1 Comstock 554. These cases are regarded as settling that, upon such an obligation, the right of action becomes complete on the defendant's failure to do the particular thing he engaged to perform; that where the covenant is to pay a specified debt, it is enough to shew that it was not paid at the stipulated time; that the plaintiff need not go farther and shew that he had himself paid the demand or been otherwise damnified by the defendant's neglect to perform his engagement. Churchill v. Hunt, 3 Denio 324. Although, in Thomas v. Allen, the debt to be paid had not become due when the bond sued on was made, and in Churchill v. Hunt, the note to be paid had been for some time due when the defendant's bond was executed, the court considered this difference immaterial: it was of opinion that no certain time of payment being specified in the condition, the law required payment to be made immediately, that is on the day when the bond was given; and as the note had not been paid when suit was commenced against the defendant, the condition of his bond was broken and a good right of action shewn to recover the amount of the note and interest thereon, although nothing had been paid on the note by the plaintiffs. S. C. 2. When contract is to indemnify a person against his making a payment. A bond conditioned to indemnify a person against his making a payment, is not broken till the payment is made: the amount recoverable on such bond depends upon and is measured by the amount of such payment alone. 10 M. & W. 296; Collinge v. Haywood, 9 Adol. & El. 633; 36 Eng. Com. Law Rep. 223; 1 Rob. Pract. 497. 3. When contract is to save harmless from damages; distinctions arising from the terms of the undertaking. With respect to an ordinary bond or covenant of indemnity to save harmless from damages, by reason of a bond or note, there is no doubt that a breach thereof is only shewn by the plaintiff's shewing that he has sustained damages. Douglass v. Clark, 14 Johns. 177; 5 W. & S. 443. Still the question is, whether the obligee may not sustain damages without having actually paid off the bond or note. In South Carolina, an endorser who took a bond of indemnity to save himself harmless from and against all the consequences and damages, &c. which might arise from his endorsement of a note, was held to have a right of action on the bond when the note was protested and suit brought against him as endorser. Ramsay ads. Gervais, 2 Bay 145. If the bond be to indemnify and save harmless bail against all money, costs and expenses, &c. which they shall pay and incur by reason of becoming bail, the bond will not be forfeited merely by an action being brought against them; but if the bail gave notice to the obligor of such action, and he does not immediately take upon him the defence thereof and bear the expense as it accrues, but leaves them to pay that expense, he does not suffer them to be damnified; and such damnification is a forfeiture of the bond sufficient to maintain an action on it; for in such case the bail are entitled not merely to be indemnified from expense actually incurred, but to be saved harmless from incurring any by reason of their engagement; they are not, by the obligor's refusal to bear the expense as it accrues, to be made to pay the difference between the actual and the taxed costs. Sparkes &c. v. Martindale, 8 East 593. The condition of the bond in this case resembles that in Hoy, adm'r v. Hansborough &c. 1 Freeman's (Miss.) Ch. Rep. 540; but does not appear to have been adverted to in the latter case. In Virginia, when a bond was given conditioned to indemnify the obligee against all damages which might be awarded in consequence of the obligor's delivering to him a negro slave, a judgment obtained by a third person against the obligor was held sufficient to sustain an action on the bond without proof of satisfaction of the judgment. Murrell v. Johnson's adm'r, 1 H. & M. 450. In Pennsylvania, when a principal has let judgment be entered against him in favour of a surety, to secure the payment of money for which the surety was bound, and to indemnify him against its payment, execution, on it before actual payment by the surety, is neither irregular nor fraudulent. Miller v. Howry &c. 3 Penrose & Watts 374. If the surety assign the judgment to the creditor as a collateral security, neither the surety nor his assignee is bound to defer proceeding on the judgment till actual payment. Bank v. Douglass, 4 Watts 95. The principle of these decisions has been applied to a case in which there was a request to defend a suit, and the action was on a promise to indemnify the plaintiff from all costs, and liabilities, and damages, and injuries of every kind, and pay all which the plaintiff might incur. The plaintiff having defended the suit, and there being judgment against him therein, an action was brought on the promise, and he recovered the amount of the judgment though he had not paid it: the promise was considered to be broken by the recovery of the judgment. Stroh v. Kimmel, 8 Watts 157. 4. Decisions in New York when the contract is to indemnify against liability, or to save harmless from a claim or demand. In a case in New York, where the indemnity was not only against actual damage or expense, but also against any liabil ity for damages or expenses, it was considered the party need not wait until he has actually paid such damages, but has a right of action when he becomes legally liable for them. Chace v. Hinman, 8 Wend. 456. The court in this case was somewhat influenced by the decision in Rockfeller v. Donnelly, 8 Cow. 623; which it has been since observed is, "to say the least of it, a very questionable case." 6 Hill 326. It was so said in an action of covenant upon an agreement to indemnify and save harmless the plaintiff from any claim or demand that one F might have against the plaintiff by reason |