The agreement upon which the present action was brought was in effect a contract to indemnify the plaintiff, Smith, against the judgment of Palmer & another against him, upon condition that he should make payment of his said note within the time named. It was the personal contract of said Way, and was made upon good and sufficient consideration. The ruling of the presiding judge at the trial of this action was to that effect, and was therefore right. It appears that Smith did afterwards duly pay the said note, and Way did not discharge or cause to be discharged the said judgment; but that an execution was sued out thereon, and was subsequently served by the arrest of the defendant therein. There was, therefore, a breach of the contract and agreement on the part of Way, and he became liable to Smith for an amount sufficient fully to ■ indemnify him against said judgment and execution. Such indemnity is a sum equal to the amount of the judgment and execution; and the damage to which said Smith was subjected by the service thereof upon him was a sum equal to that amount, together with interest upon the money he was thereby compelled to pay. This is the whole of the natural and proximate consequences of the failure and omission of Way to fulfil his contract to discharge the judgment, and it is all that the plaintiff is entitled to recover in the present action. That will put him in the same position in which he would have stood if he had not been injured. 2 Parsons on Con. 432. 2 Greenl. Ev. § 256. The instructions asked for by the defendant upon the subject of damages ought therefore to have been given to the jury; and consequently the instruction that they were at liberty to return any amount as damages, from mere nominal damages to three hundred dollars, the ad damnum in the writ, was erroneous.
The exceptions to this latter instruction must therefore be sustained, and a new trial ordered. On a future trial, the plaintiff must be limited in the amount of damages to be recovered *215to the amount of the judgment of Palmer and others against nim, with an addition thereto of the costs to which he was subjected by the service of the execution and the interest on the money paid or to be paid in satisfaction of said execution, and to obtain his discharge therefrom.