is referred to as an authority as to the admissibility of an attachment without proof of the preliminary proceedings, in an action of trespass against a constable for levying the same, in Parker v. Walrod, 13 Wend. 299. It is also cited in Earl v. Camp, 16 Wend. 562, as to the admissibility of an execution without proof of the judgment, and it is held that where a constable brings suit in trespass against a stranger for the benefit of the execution plaintiff for the property levied on, he must show a judgment.

OFFICER'S RETURN AS EVIDENCE.-See Diller v. Roberts, 15 Am. Dec. 578; Whitaker v. Sumner, 19 Id. 298; Palmer v. Clarke, 21 Id. 340. A constable's return is held, on the authority of Spoor v. Holland, to be prima facie evidence of the levy of an execution in an action by the constable against a stranger, in Earl v. Camp, 16 Wend. 562.

AMENDMENT OF OFFICER'S RETURN.-This subject is discussed at length in the note to Malone v. Samuel, 13 Am. Dec. 173; see, also, Freeman v. Paul, 14 Id. 237; Barnard v. Stevens, 16 Id. 733; Berry v. Griffith, 18 Id. 309.

PROPERTY TO MAINTAIN TROVER, WHAT SUFFICIENT.-For a full examination of this subject see the note to Hostler's Adm'r v. Skull, 1 Am. Dec. 585; see, also, Hudspeth v. Wilson, 21 Id. 344; and Vincent v. Cornell, 23 Id. 683, and the citations in the notes thereto.

MEASURE OF DAMAGES IN TROVER.-See the notes to Woolley v. Carter, 11 Am. Dec. 523; and Baker v. Wheeler, post; see, also, Buford v. Fannen, 1 Am. Dec. 615; Hepburn v. Sewell, 9 Id. 512; McDonald v. Murdock, Id. 684; Wright v. Spencer, 18 Id. 76; and Sanders v. Vance, Id. 167. It is held in Brownell v. Hawkins, 4 Barb. 494; Chadwick v. Lamb, 29 Id. 522; and Seaman v. Luce, 23 Id. 240, 255, on the authority of the principal case and others, that the owner of a special interest or property in a chattel can recover in trover only the value of that interest against the general owner. But where he sues a stranger he may recover the whole value, holding the balance, above the value of his special interest, for the general owner: Russell v. Butterfield, 21 Wend. 300.

CHACE, ADM'R OF STRANAHAN, v. Hinman.

[8 WENDELL, 452.]

TO RECOVER ON A MERE BOND OF INDEMNITY actual damage must be shown; if it be against the payment of money, actual payment, or its equivalent, must be proved, and a mere legal liability to pay is not sufficient. WHERE THE INDEMNITY IS AGAINST ANY LIABILITY for damages or expenses, as well as against actual damage, the obligee's right of action is complete when he becomes legally liable for such damages or expenses. BOND TO INDEMNIFY THE FIRST INDORSER of a note, his heirs, etc., against all damages, costs, charges, and expenses to which he or they may be subjected, or "become liable for" by reason of the reversal of a judgment recovered by a subsequent indorser of the note in an action against him by the holder, as well as against said note, or any judgment or proceeding to enforce the same against such first indorser, may be sued on by the administrator of the obligee, after a reversal of such judgment and payment of the note by the subsequent indorser, and a recovery of judg

ment by him against the administrator for assets quando acciderint, after a plea of plene administravit, taken as true; and he may recover the amount of such judgment without showing actual payment, or that assets have come or will probably come to his hands.

OBLIGOR CAN NOT SHOW THAT THERE WAS A GOOD DEFENSE, in such a case, to the action brought by the holder against the subsequent indorser, or to that brought against the administrator.

NOTICE TO THE OBLIGOR OF THE PENDENCY of the action against the administrator was unnecessary.

DEBT on a bond given by the defendant, Hinman, to the plaintiff's intestate, Stranahan, to indemnify him against the reversal by the court of errors of a judgment of the supreme court, in favor of one Scott, in an action brought against him by the Utica Insurance Company on a note made by one McNamee, upon which Stranahan was first indorser, and Scott second indorser. The condition of the bond is sufficiently stated in the opinion. On the trial at the circuit it appeared that the said judgment was reversed, by the court of errors, and a-judgment rendered in favor of the insurance company against Scott; that Scott afterwards paid the company in full the amount of their claim against him, as indorser of said note, and the costs of the two courts, and commenced an action against the present plaintiff as administrator of Stranahan, the first indorser, to recover the amount so paid; that the said administrator gave a cognovit for the amount, and pleaded plene administravit; that Scott admitted the plea as true and took judgment for assets quando acciderint for the amount confessed, and costs. On these facts the defendant, Hinman, moved for a nonsuit on the ground that, it appearing that the administrator had fully administered, and it not being shown that assets had since come or would probably come to his hands, neither the administrator nor his intestate had been damnified, which he insisted was a good defense under the plea of non damnificatus, pleaded by him in this action, and that at most the plaintiff could recover only nominal damages. Motion overruled. Some other evidence was introduced by the plaintiff and defendant respecting the origin of the debt of McNamee, and as to certain indemnity given by McNamee to Stranahan, as well as other matters, which it is unnecessary to state. It was admitted that this action was brought for Scott's benefit. Verdict for the plaintiff, subject to the opinion of the court as to his right to a recovery and the amount. Some other facts are stated in the opinion.

E. B. Morehouse and A. Van Vechten, for the plaintiff.

J. A. Spencer, for the defendant.

By Court, SUTHERLAND, J. It is contended by the defendant that this is a bond of indemnity merely, and that neither the plaintiff nor his intestate has been injured or damnified by the reversal of the judgment in the court of errors; or that the damage, if any, is merely nominal, as nothing has been paid or probably ever will be paid upon the judgment recovered against him by Scott.

The inquiry naturally suggests itself, what was the motive of the defendant Hinman in entering into this arrangement with Stranahau? We find the answer in the testimony of Henry Green. He states that he was, at the time of the giving of the bond in question, secretary of the Utica Insurance Company; that he drew the bond and witnessed its execution; and that the defendant Hinman was at that time one of the directors of the company, and a stockholder to a considerable amount. He also appears to have taken an active part in the prosecution of the writ of error. There can be little question that he was the managing agent of the company in all these transactions, and that although he signed the bond individually, he was understood by Stranahan, and was, in fact, acting on behalf of the company, and with their approbation, though probably without any legal authority to bind them. It is obvious from all the facts in the case, that Stranahan had no objection to the judgment being reversed; that only a formal resistance was to be made to it, for the purpose of saving appearances. The letter of Hinman to Stranahan of the twenty-second of December, 1825, shows that Hinman was to pay all the expenses of defending the writ of error. The truth undoubtedly is, that it was perfectly understood between Hinman and Stranahan, that neither Stanahan nor Scott was to be affected by the reversal of the judgment; and I think such is the conclusion to be drawn from the face of the bond itself without any extraneous evidence. Stranahan was the first indorser, and was liable over to Scott upon the note, in the event of his being compelled to pay it. The indemnification of Stranahan, as indorser upon the note, manifests therefore, by the strongest implication, the understanding of the parties that if the judgment was reversed, the note was not to be collected from Scott, the subsequent indorser, who would in that event have a right immediately to collect it from Stranahan, and produce the very state of things against which it was the object of the bond to indemnify him. This view of the case is intended to show that there is no injustice

in giving to Scott (for whose benefit this suit appears to be prosecuted) the indemnity provided by this bond, if it can be done consistently with the rules of law.

There is no doubt as to the general proposition, that in order to recover upon a mere bond of indemnity, actual damage must be shown. If the indemnity be against the payment of money, the plaintiff must in general prove actual payment, or that which the law considers equivalent to actual payment. A mere legal liability to pay is not, in such case, sufficient; but if the indemnity be not only against actual damage or expense, but also against any liability for damages or expenses, then the party need not wait until he has actually paid such damages, but his right of action is complete when he becomes legally liable for them. Chancellor Jones, in the case of Rockfeller v. Donnelly, 8 Cow. 639, lays it down as a general proposition, that even when the obligation is simply to indemnify against damage or expense, and the obligee has become absolutely bound and liable to pay the expense or damage, and the amount is liquidated so that his demand against his obligor upon the bond of indemnity, by reason of the charge against himself, is reduced to a certainty, he may enforce his demand against his obligor in the first instance before he satisfies the charge against himself; and he observes that it is an operation which avoids circuity, and essentially subserves the purposes of justice and equity, by enabling him who is entitled to the indemnity to obtain the means to satisfy the charge he has incurred from the party who ought to bear it, and thereby save himself the necessity of an advance and payment out of his own funds and estate, which might be inconvenient, and perhaps involve him in serious embarrassment. I must confess that this general proposition of the learned chancellor seems to me to carry the doctrine farther than I had supposed warranted by the authorities: 7 Johns. 358; 4 Mass. 627; 14 Johns. 177; but it is unquestionably sound where the indemnity is not only against actual damages and expenses, but also against the liability for them; and such, I apprehend, will be found to be the fact in this case upon a critical examination of the defendant's bond. The condition is: 1. That the defendant shall save harmless and indemnify Stranahan against all damages, costs, and charges to which he may in any way be subjected or become liable for by reason of the reversal of said judgment; 2. Against all charges and expenses which he may incur or become liable for in defending said writ of error; and 3. Against said note, or any judgment or proceed

ing which may be had against him as indorser thereon. A distinction is here obviously taken between damages actually sustained or incurred and a fixed legal liability for such damages, and the indemnity is against both.

In the case of Rockfeller v. Donnelly, already referred to, 8 Cow. C28, the condition of the bond was to save, defend, and keep harmless the overseers of the poor, etc., from and against all charges, damages, and expenses, taxes, rates, and assessments, etc., for or by reason of the birth, etc., of a bastard child, etc. Chancellor Jones remarks upon the subject, that the indemnity consists in securing the town against charges and expenses, taxes, rates, etc.; and that this could only be effectually done by keeping the infant when born from becoming chargeable, or by providing the means to defray the charges in which its birth and maintenance should involve the town. If the child, upon its birth, is permitted by the father to become a charge to the town, expenses inevitably follow, for which the overseers are answerable. Mr. Senator Spencer, p. 653, says the defendants are to indemnify against all charges, expenses, etc, by reason of the birth or maintenance of the child. Technically, this condition was broken the moment the child was born; for then it became a charge on the town, and that was the thing against which the defendants covenanted; and the birth being admitted by the pleadings, it is a legal consequence that the child became a charge to the town, and thus the breach is admitted. The chancellor and Mr. Spencer both treat it as a common bond of indemnity between individuals, and in the observations which I have quoted, are settling its construction without any reference to the circumstance that the bond was given to public officers. If, then, a bond of indemnity against charges, damages, expenses, taxes, etc., is broken by the happening of an event which must inevitably lead to charges, expenses, or taxes, much more must it be so when the indemnity is in terms against a liability for damages and expenses.

That the judgment recovered by Scott against Stranahan's administrator, which fixed his liability for damages, and ascertained the amount, was a consequence of, or happened, in the language of the bond, by reason of the reversal in the court of errors of the judgment of Scott v. The Ulica Insurance Company, there can be no doubt; and a breach assigned upon that part of the bond would be supported by this evidence. I make this observation because the pleadings are not attached