delivered the opinion of the Court. This case depends principally upon the true construction of the covenant declared on. We can see but one meaning to the words, without imputing a degree of artifice on the part of the defendant, which it is not probable he practised. Whatever he shall be legally compelled to pay, means whatever by legal process he shall be obliged to pay, without reference to tbe laws of any particular State. If, as is contended, the par*433ties meant that the defendant should repay, only in case by the principles of law in Massachusetts the sum was recoverable against Sprague, they chose very unsuitable words to express their intention. And, indeed, a bargain of that sort would have been too unequal to have been entered into by a man of any intelligence, when he was voluntarily parting with property, and had the power of making his own terms respecting it. In order to justify the construction suggested by the counsel for the defendant, we must suppose that Sprague and Thompson deliberately intended to defraud the heirs of Gibson, if by the technical rules of law they should be able so to do. And furthermore, if by chance the heirs should recover a judgment against Sprague, and he should be obliged to pay the money, that Thompson might defend against his covenant upon the same technical rules which in such a case would have failed to protect Sprague. So that in such case Sprague was to lose, and Thompson to gain, the amount of the sum at least equitably due to the heirs of Gibson. Honest and intelligent men. as these parties undoubtedly were, are not to be supposed to have made such a contract, unless the terms in which it is expressed force the mind to such a conclusion. But we think it very clear, that the words of the covenant do not admit of such a construction. It is a simple covenant of indemnity, expressed in apt words, and binds the defendant to repay whatever shall be recovered by legal process anywhere, to the extent to which he stipulated. It must be proved, however, that the money thus recovered against Sprague was on account of money he received on Swett’s bond.
And this is proved, if the evidence in the case were competent to prove this fact. The objection is, that parol evidence was admitted to prove it, that is, the same evidence on which the judgment was recovered in New Hampshire. The recovery there was probably on the count for money had and received, and it does not appear by the record, that that count was for money paid on the bond. How should this be proved, but by parol evidence ? The defendant in that suit could not have ob’iged the plaintiffs to set forth in the declaradon the particular subject of his suit, nor could he, in his plea, *434have made it more certain, for it would have been setting out h¡s defence in a manner, which, in such an action, would have amounted to the general issue. He has furnished, in this suit, the only evidence which could be produced of the grounds of the action; and, indeed, the very evidence on which the judgment was obtained. Every fact which exists on record must be proved by record ; but when the question is as to the real subject matter of a suit, in order to show a bar to another suit, or to lay the foundation of an action of indemnity, the identity of the cause of action may be averred, and may be proved by other than record evidence.1
The contract limits the indemnity to 1500 dollars, and judgment must be rendered for that sum, with interest from the time of a demand made subsequently to the recovery in New Hampshire, if any such demand was made before the commencement of this action, otherwise from the date of the writ.
See Standish v. Parker, 2 Pick. (2nd ed.) 22, notes; Wood v. Jackson, 8 Wendell, 44; Marten v. Thornton, 4 Esp. R. 180; 1 Stark. Evid. (5tn Amer ed.) 223.