concurred.
.Randolph, J. The only point in this cause necessary to be decided is whether the plaintiffs can maintain their action on the defendant’s covenant to them to “ indemnify and save them harmless from all damages, costs and charges which they the said W. H. J. and J. H. may or shall be put to, or any wise called upon to pay for or on account of being security ” for one Henry H. El well as Post Master, &c. On the trial the plaintiffs prov*76ed a judgment obtained against them in the United States District Court on the Post Master’s bond, and what would be reasonable retaining and trial fees for counsel in the District Court. And the judge who tried the cause charged the jury “ that in order to recover on this covenant of indemnity, they must show that they have been compelled to pay the debt against which the covenant was intended to indemnify.” There can be no doubt but the charge was correct — the surety must pay the debt before he can recover against the principal, 1 Wash. C. C. 278 ; 10 Pick 34; 8 East. 242; 6 Greenlf. 79; 7 John. R. 358; 4 Mass. 627; 14 John. R. 177. The same doctrine is recognized in Chace v. Hinman, 8 Wend. 452, cited for the plaintiff, Aberdeen v. Blackwell, 6 Hill, 324, not only questions the case of Rockefeller v. Donnelly, 8 Cowen, 623, relied on for plaintiff ; but expressly decides the very point in controversy in this case. That was an action on an indemnity, and the plaintiff showed that judgment thereon had been recovered against him, but did not show that he had paid any part of it, or been subject to loss or expense — and it was held that plaintiff could not recover.
In the present case the jury rendered a verdict for the defendant, and I think correctly.. There was no proof of payment, or of actual damage. The covenant is not to pay money at a certain time, 2 T. R. 100; 8 Bar. & Cress. 11; but is to indemnify and save harmless from paying. So that a mere liability, or even a judgment for debt and costs will not be sufficient to maintain an action for breach of covenant. The plaintiff was bound to prove an actual payment before he would be entitled to recover, and then only for the amount of payment or actual damage, 2 Wend. 481. In Bullock v. Lloyd, 2 Car. & Payne 119, the suit was brought at defendant’s request on a promise to pay the costs. This case would not have supported the verdict, had it been for the plaintiffs in the cause to the amount of the costs and interest. The rule for a new trial must therefore be discharged.
The Chief Justice who had been concerned as counsel, and Carpenter, J. who did not hear the argument, expressed no opinion.
Rule discharged.