of his having executed a certain stipulation. The court held that the mere fact that the demand of F had changed its form, by having passed into judgment, was not enough; that before the plaintiff can recover he must shew that he has been damnified; and this was not shewn when he had paid nothing on the judgment. Aberdeen v. Blackmar, 6 Hill 324. Notwithstanding what is said in Chace v. Hinman, 8 Wend. 452, it has been since laid down that there is no distinction at common law between an indemnity against damage and one against liability which warrants a recovery on the latter on simply shewing the fact of liability. In both it is declared there must be evidence of actual damage by the payment of money or otherwise. Churchill v. Hunt, 3 Denio 326. In this case, the holders of the note having recovered judgment on it against the plaintiffs, they claimed also the costs recovered against them. But there being no express clause in the condition of the bond that the obligor should pay such costs, it was considered that they were recoverable only on that part of the condition of the bond which bound the obligors to indemnify the plaintiffs against their liability as makers of the note; and that this was but an ordinary covenant of indemnity, of which there was no breach as to the costs until it was shewn these costs had been paid.

5. Rule in England and Pennsylvania where the contract is to save harmless from a particular claim.

When the covenant is to save harmless from actions, suits, claims and demands of particular persons, the first thing to be done is to ascertain the intent and meaning of that covenant. Fowle v. Welsh, 1 Barn. & Cress. 29; 8 Eng. Com. Law Rep. 16.

In England, it was observed by Alderson, B. that to restore a party to his former state, after suffering him to receive harm, is not to save him harmless. 10 M. & W. 288. A trustee agreed to save harmless his co-trustee from any claim which might arise from the latter permitting the former to hold and use a legacy of £ 10,000, instead of investing it in a particular way, as they were directed to do by the will under which they became trustees. The cestuis que trust made such claim against the latter; and he was ordered, by a court of chancery, to invest £10,000, with interest, and was forced to incur costs. The court of exchequer considered that, to save him harmless from this claim, the covenantor ought to have invested £10,000; and that, not having done so, he ought to pay to the covenantee that sum, and also such interest and

costs as the latter was now obliged to pay. This was decided to be the proper amount of the damages to which the covenantor is liable under the bond; notwithstanding that no payment had been made out of his estate on account of the £ 10,000. Warwick v. Richardson, 10 M. & W. 284.

The right of action on the bond or covenant of indemnity is not prejudiced by the circumstance that the plaintiffs, for the purpose of saving expense, consented to a decision being made in an intermediate stage of the chancery cause instead of its being made at the hearing, when it does not appear that the decision was less binding on the plaintiffs or more prejudicial to the defendant than it would have been if it had been made at the hearing of the cause, according to the ordinary course of equity proceedings. Newborough v. Schrocder, 7 Man. Gr. & Scott 398; 62 Eng. Com. Law Rep. 398; Beard's ex'or v. Basye, 7 B. Monroe 150.

In Pennsylvania it has been decided, in an action on a bond given a vendee of land, conditioned to keep harmless and indemnify him from all claims of a certain person or any other in his right, that the condition is broken whenever such claim is brought forward and the obligee is threatened with a suit or sale of the land, and is under the necessity, in order to save himself, to come forward and pay it off. If such demand existed, was valid against the land and could be enforced by legal process, and a suit was threatened, to wait for an actual suit would, said the court, only lead to needless expense and delay. Leber v. Kauffelt, 5 W. & S. 440.

6. Rule in Kentucky when the contract is to indemnify against a debt or duty which may accrue in future. Result there more satisfactory than that arrived at in New York in actions on bonds of indemnity given to a sheriff by his deputy.

In Kentucky, though a covenant or condition to indemnify against a debt or duty already incurred is not broken without suit brought against the covenantee, yet when the covenant is to indemnify against a debt or duty which may accrue in future, a liability to suit is a breach. Lewis v. Crockett, 3 Bibb 197. And it is considered that, in such case, the jury may assess damages not merely nominal but equal to the amount which the debtor has failed to pay to the creditor. 3 B. Monroe 310.

When an action is brought on a bond of indemnity, given to a sheriff by his deputy, conditioned to perform all the duties of deputy and save the sheriff harmless, this condition is

broken by the deputy's failing to pay over to a creditor money collected upon execution, and for such breach the sheriff may forthwith maintain an action on the bond; and in such action he may recover damages not merely nominal but equal to the amount of the deputy's defalcation. And if the sheriff or his sureties shall be subjected to costs and damages by suit, the whole amount which he or they may be made to pay may be recovered by him from his deputy and his sureties as incidental to and produced by the default of the deputy, and that, too, whether the same is paid by the principal or his sureties. Robertson &c v. Morgan's adm'rs, 3 B. Monroe 307.

In this case the sheriff had not only been made liable to suit by the default of his deputy but had been sued, and the whole amount of his defalcation coerced from his sureties; and because they paid it, and he could not, being unable to do so, it was objected he could not recover more than nominal damages; but this objection was overruled: the sheriff, said the court, "is rendered liable to his sureties for the amount they have paid for him, and that liability has been produced by the deputy's direct violation of his covenant, and as the means to indemnify them, the principal or his administrator has a right to recover the whole amount from the deputy." 3 B. Monroe 310.

This result is more satisfactory than that lately arrived at in New York. There bond had been given to a sheriff by his deputy, with condition to be void if the deputy should so demean himself, in all matters touching his duty as deputy, that the sheriff should not sustain any damage or molestation whatsoever by reason of any act done or any liability incurred by and through the deputy; the deputy neglected to return executions placed in his hands for collection, and on account of such neglect the execution creditors recovered judgments against the sheriff; in one case on account of the deputy's neglect the sheriff was attached as for a contempt of court, at the instance of the execution creditors, and held in custody until he gave bail, and failing to appear the bail bond was forfeited and there was judgment on it against the sheriff and his sureties. The circuit judge decided that, without proof of the payment of the judgments, the sheriff could recover on the deputy's bond only nominal damages; and the court of appeals denied a new trial, saying, "the plaintiff having failed to establish a breach of the condition of the bond, was not in strictness entitled to nominal damage." Gilbert v. Wiman &c. 1 Comstock 550. This case, it may be supposed, will scarcely be regarded as authority beyond the limits of New York.

CHAPTER XI.

OF THE ACTION ON A JUDGMENT OR DECREE.

1. Action lies on a judgment.

Where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained. It is in this way that, in England, the judgments of foreign and colonial courts are supported and enforced; and the same rule applies to inferior courts in that country, and applies equally whether they be courts of record or not. Williams v. Jones, 13 M. & W. 633. If a different principle has been applied to the judgment of a county court, constituted under the stat. 9 & 10 Vict. c. 95, it is because of the intention of the legislature to confine the remedies on such judgment to what the statute specifically provides. Berkeley v. Elderkin, 1 El. & Black. 805; 72 Eng. Com. Law Rep. 805; 18 Eng. Law & Eq. 377. In the United States, an action of debt has been sustained on the judgment of a justice of the peace. Todd v. Williamson &c. 1 McCord 148; 1 Bailey 450. Such action has been sustained in one state on a judgment rendered by a justice in another. Cole v. Dreshell, 1 Blackford 16. See ante, 1 Rob. Pract. 218, 19.

In Virginia, debt was maintained on a judgment obtained in a court, the office of which had been consumed by fire, and the record of this judgment, among other papers, wholly destroyed. The action was maintained, though an appeal had been taken from the judgment and an appeal bond executed; the appeal not having been prosecuted because of the fire, which occurred soon afterwards. Newcomb v. Drummond, 4 Leigh 57.

2. Whether action lies on a judgment within a year after its date.

Mr. Selwyn states that "debt lies upon a judgment within or after the year after the recovery." Selw. N. P. 601. The same doctrine is found in Com. Dig. (A 2).

The authority referred to in Selwyn and Comyn is the original case in the year book, 43 Edw. 3, 26, which is also referred

to in 2 D'Anv. Abr. 500, Debt (O), and 7 Vin. Abr. 352, Debt (0). Colcock, J. regards it as determining only that the action may be brought after the year and the day. Lee v. Giles, 1 Bailey 451. In this case, an action brought within the year was held to be improper; and the plaintiff was nonsuited. But the case is different when the object of the action is to make another party liable; as where the defendant dies, although it be within the year, action may be brought against. his personal representative. Parnell v. James, 6 Richardson 372; or where, on a judgment against such representative, there being a return of nulla bona, action is brought alleging a devastavit and claiming to charge him personally. S. C.

3. Action lies on a decree.

In an action upon a decree of a court of equity, for the payment of money, it was formerly regarded as an objection. that the decree is a declaration, not that the plaintiff has any legal right to the money but only that upon certain views peculiar to that court the payment ought to be made. This objection was strongly felt by some of England's most experienced lawyers; they thought, also, that no promise to pay could be implied from a decree in invitum. Carpenter v. Thornton, 2 Barn. & Ald. 52; 5 Eng. Com. Law Rep. 225.

Such an objection is felt no longer. It is now established, that where a chancery suit terminates in the simple result of ascertaining a clear balance and an unconditional decree that an individual must pay it, an action will lie on such decree. See ante, 1 Rob. Pract. 204. This is well established in England, Henderson v. Henderson, 6 Adol. & El. N. S. 288 ; 51 Eng. Com. Law Rep. 288; and the United States, Pennington v. Gibson, 16 How. 76, 7.