a suit against the surety on the bond. In that case, however, the liability of the sureties on the bond was in no way enlarged or prolonged, nor was the situation of the sureties in any way changed, by the intervention of the replevin bail. Possibly, if it had been shown that the principal had property out of which the fine and costs could have been made in case execution had issued when the fines were assessed, and that he had since disposed of the property to the prejudice of the sureties on the bond, a different conclusion might have been reached. Where the first surety suffers loss, or where his liability is increased or prolonged so as to render him liable to suffer loss by the intervention of the second, the latter assumes all the risk arising from his voluntary interposition. In such a case there is no injustice in requiring the second surety to perform his undertaking according to its terms, since by his intervention he has been the means of involving the first surety in a liability which otherwise he might have escaped. The conclusion above is not in conflict with that reached in Holmes v. Day, 108 Mass. 563.

It is undoubtedly true, as the appellant contends, that a surety will not be subrogated to the equities or securities of the creditor until the claim of the latter for the payment of which he has taken security has been fully satisfied. Vert v. Voss, 74 Ind. 565; Sheld. Subr. §127. The reason is that the law will not permit the right of action to enforce the security to be divided between the creditor and the surety, nor allow the debtor to be subjected to the inconvenience of two actions instead of one. In the present case the creditors were made parties to the suit. They disclaimed any interest in the bond, except as to some costs, and the finding of the court fails to show that they are entitled to recover anything on the bond. All those who had any interest in the bond were before the court, and it was not so material whether they were plaintiffs or defendants, so that the judgment settled the rights of all the parties before the court. Morningstar v. Cunningham, 110 Ind. 328, 11 N. E. Rep. 593; Insurance Co. v. Gilman, 112 Ind. 7, 13 N. E. Rep. 118.

Upon the facts as found it appears, therefore, that the creditor's claim has been lawfully satisfied, and the surety cannot be again vexed by another suit on the appeal-bond. There was no necessity that a demand should have been made before instituting the suit. It does not appear that the amount of the

recovery was too large. There was no error. The judgment is affirmed, with costs.

CHAPTER X.

SUBROGATION AND CONTRIBUTION.

a. The surety who is compelled to pay the debt of the principal is by law ipso facto subrogated to the rights of the creditor and may sue the principal debtor.

BULLARD v. BROWN. 1902.

74 Vt. 120, 52 Atl. Rep. 422.

Appeal in chancery. Heard on master's report and orator's exceptions thereto, at the June Term, 1901, Tyler, Chancellor, presiding. Exceptions overruled and bill dismissed. The orator appealed.

STAFFORD, J. The defendant, Chester Brown, finding himself at the age of eighty-one years, alone in the world and in need of some one to keep his house and take care of him, told the defendant Betsey, a maiden lady of sixty-two years, that if she would be his wife he would give her everything he had, including his home place worth about $1,200; that there was a mortgage on it for $225, and that that was all he owed. All of which was strictly true, except that he owed the orator, a lawyer, for services in a chancery suit then on the docket, some $38, and that the orator was surety for costs in his behalf in the same case. So she took him at his word, and they were married. Some months later the orator sent him his bill; and in a few days Chester deeded the place to Betsey, and turned over to her every dollar of his personal property, just as he had promised. Then when the orator, meeting him, asked him for his pay, he told him he didn't know as he owed him anything; that he had got his property in such shape that nothing could be collected of him, and he shouldn't pay. So the orator sued him before a justice of the peace, demanding fifty dollars. When the suit was begun the case in chancery was still pending, but when the trial day came that case had been disposed of, and the orator had found himself liable to pay costs for his client of the amount of $20.20. Chester defaulted at the justice hearing, through

failing to find the right door in the hall-way, and the orator got leave to raise the ad damnum to $65, and then took judgment for his bill for services, with interest, and for the $20.20 which he was liable to pay as costs, but which he had not paid, and has not yet, although he has always stood ready to do so when required, making his judgment in all $60.01, besides costs. When he brought suit he had the place in question attached as Chester's property. He has now taken out execution and levied upon it, and brings this bill, under V. S. 1848, to have the conveyance to Betsey declared void and the property held to satisfy his claim, on the ground that that conveyance was in fraud of his rights.

The orator objected to all parol testimony tending to show an ante-nuptial agreement as ruled out by the statute of frauds, and the facts were found solely upon such oral testimony. His position here is that, the promise Chester made to Betsey before marriage being one that she could not have enforced by reason of the statute, his conveyance to her after marriage, made in pursuance of that promise, was a purely voluntary conveyance (Lloyd v. Fulton, 1 Otto 479, 23 L. Ed. 363; Chancellor Kent's opinion in Reade v. Livingston, 3 Johns. Ch. 481, 8 Am. Dec. 520; Carter v. Smith, 82 Ala. 334, 60 Am. R. 738, 740; Deihon v. Wood, 148 Mass. 132, 1 L. R. A. 158, and note; and numerous cases stated in Am. Digest, Century Ed. Vol. 23, columns 18391845), and being a voluntary conveyance, was not good as against the orator, no property being left and no provision made. to pay him (Corey v. Morrill, 71 Vt. 51, 42 Atl. 976), although if the conveyance had been made to her before marriage it might have stood, inasmuch as she acted in good faith. Pierce v. Harrington, 58 Vt. 649, 7 Atl. 462. But we will not decide this point, for if we should go with the orator as far as he asks upon that line, we should not be at the end of the case. We must still meet the question, whether the orator is entitled to enforce his judgment as it is made up.

He objected to all evidence tending to impeach his judgment, and filed exceptions to the report on the ground of such admission; but in this court he has made no objection of that sort, and we treat the case, as he has in his brief, upon the facts found by the master. It comes to this: that, even if he had a right to raise his ad damnum in the circumstances, he had no right to take judgment for the costs in the chancery suit, which he

had never paid; and a court of equity will not aid him in enforcing such a judgment.

Neither can this court correct that judgment at his request in this proceeding. If that could be done at all, this bill is not brought for such a purpose, but to perfect a lien under the existing judgment, and it is too late for him thus to retrace his steps.

Decree affirmed and cause remanded.

1 Root (Conn.) 291; 1 Am. Dec. 44.

Action on the case, declaring: That the plaintiff, at the special instance and request of the defendants, and for their proper debt and duty, on the fifteenth of April, 17-, became bound with them to the treasurer of the state in the present sum of one hundred and one pounds, five shillings, conditioned to pay fifty pounds, ten shillings and six pence, by-day of—, being the duties of forty-five hogsheads of rum; that the defendants, in consideration thereof, assumed and promised to indemnify and save harmless the plaintiff from all damages and cost he should suffer and pay on that account; that the plaintiff has been compelled to pay said debt, and been put to much cost, to his damage of eighty pounds.

Plea in bar: That the plaintiff hath never paid one farthing of said debt, nor been put to any cost on that account; nor hath he been sued until the day of the date of the plaintiff's writ, when a summons was served upon him. The plaintiff demurred to the defendant's plea.

The question was: Whether the plaintiff, being liable to be sued, and to be compelled to pay the debt, is a good cause of action upon this promise of indemnity; by the plaintiff it was contended that it was. By the defendant it was contended that neither a liability to be sued, nor being actually sued, is a good cause of action, upon a promise generally to save harmless and indemnify.

By COURT. That the defendant's plea is sufficient. Where a man is bound for the debt of another, at his special instance and

request, the law implies an obligation or promise to indemnify him. 3 Wilson 262. But is it to indemnify him against a mere liability to suffer damage, or to indemnify him against the damage which he shall actually suffer? It is undoubtedly the latter. One would suppose that any doubt or difficulty which has existed in resolving this question would be obviated by ascertaining, with precision, the facts in the cases, which are as follows, viz. The plaintiff becomes bound with the defendants for their 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 done either by paying the debt, and thereby discharging the surety, or in case 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 defendant's 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 demands 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 shall make it good to him-that is, will pay him all his just damages and costs.

If an action will lie in favor of a surety against his principal