E, Esq., upon the same obligation, to have and recover the same against them; and the said D still refuseth to indemnify and save the plaintiffs harmless, according to his promise aforesaid, &c. J. SEWALL.

NOTE. See 3 Wil. 13, 262; 3 Bac. 707. Here the surety does not state that he paid, but only that he is liable to be sued. See also 2 Ins. Cl. 133; Cro. Eliz. 264, 369; 4 Ins. Cl. 454; 3 Wood's Con. 606; 1 Cro. 97, 156. (MSS.)

For not indemnifying surety in a joint note.

For that the said D, on &c., at &c., in consideration that the plaintiff had, at the special instance and request of the said D, and for the said D's proper debt, together with the said D, by their note in writing, under their hands of that date, then and there promised to pay one C -, in six months from the date of said note, with lawful interest until paid; he, the said D, then and there promised the plaintiff to pay the said C the sum of $-, in six months from the date of the said note, and thereby save the plaintiff harmless and indemnified, from the promissory note aforesaid. Now the plaintiff in fact says, that the said D, though the said six months are past, hath never paid the said C the said sum of $-, or any part thereof, or the interest thereof, or in any wise hitherto satisfied him therefor; and the said C, afterwards, to wit, at our C. C. P., held, &c., impleaded the plaintiff upon said promissory note, and the said plea prosecuted unto final judgment, and the said C thereupon, thereafterwards, on &c., sued out our writ of execution in the form of law prescribed, and then and there delivered the same to T S, one of our deputy sheriffs in and for our county of &c., by reason of all which the plaintiff hath been held and compelled not only to pay to the said T S the sum of $-, to save the plaintiff's body from being arrested by the said TS, by virtue of our said writ of execution, but also to expend and lay out divers other sums of money, in and about the defence of the said suit. And the plaintiff saith, that the said D, though often requested, hath not saved him harmless, and indemnified him from the promissory note aforesaid; but &c. F. DANA.

For not indemnifying surety in a joint note against the survivor of joint promisors.

For that whereas the plaintiff, at the special request of the said D and one B, who has since deceased, and for the

proper debt of the said D and B, on &c., at &c., by his note under his hand of that date, promised one C to pay him, on demand, the sum of $-, for value received, the said B and D, in consideration thereof, then and there promised the plaintiff to indemnify and save him harmless therefrom, and to pay to said C the said sum of $-, accordingly; yet the said B and D, or either of them, during the life of said B, never paid the said sum, nor indemnified and saved harmless the plaintiff from the note aforesaid, but at our S. J. C., held &c., suffered judgment to be recovered against the plaintiff for $, damages, in an action commenced against him by the said C, upon the note aforesaid, and $—, costs of court; and the said B hath since deceased, and thereupon an action hath accrued to the plaintiff against the said D for the damages he has suffered thereby; yet the said D since the decease of the said B, though often requested, hath never paid him for the same, but &c.

For not indemnifying a surety in a bond given for a sum of money, part of which was due from the plaintiff himself.

For, that whereas, on &c., at &c., the plaintiff, at the special request of the said N and E, became jointly and severally bound with the said N and E, unto one JS, by a bond of that date, in the penal sum of $1000, with condition to be void upon the payment of $500, with lawful interest therefor, by the- day of &c., next then ensuing, whereof $400 of the said $500 was the proper debt of the said N and E, and the remaining $100 thereof was the proper debt of the said plaintiff; the said N and E, in consideration thereof, and in consideration that the plaintiff then and there promised them, to indemnify them against the said J. S. concerning the said $100, then and there promised the plaintiff to indemnify him against the said JS concerning the said $400. Now the plaintiff in fact saith, that he hath paid the said J S the said $100, with the interest for it, and always indemnified the said N and E touching the same; yet the same N and E, not minding their promise aforesaid, never paid the said J S the said $400, or the interest for it, nor indemified the plaintiff touching the same; and because the same was not paid, the said J S impleaded the plaintiff, with the said N and E, upon the bond aforesaid, in our Court of [Common Pleas, held at &c., on &c., &c.] and recovered judgment in our said court thereupon, against the plaintiff and the said N and E, for $400, for debt, and $30

costs of suit, and hath since sued out three writs of execution thereon, against the plaintiff and the said D and E; whereupon the plaintiff hath been finally compelled to pay the sum of $-, and been put to great trouble in procuring the same. [See 2 Ins. Cler. 129, &c.] R. DANA.

By Administrator v. Executor, for not indemnifying plaintiff's intestate, nor plaintiff, in said capacity, from a bond, in which the intestate was surely for defendant's testator.

For that whereas the said A, at &c., on &c., being then in full life, in consideration that the said S [plaintiff's intestate] then living, at the request of the said A, would become bound with him and one J C to J D, late of &c., by a bond, in the penal sum of $-, conditioned for the payment of $- to the said J D, his executors, &c., on or before &c., promised the said S, then living, that he would pay the aforesaid sum and the interest thereof, according to the condition of said bond, and that he would save him, his executors, &c., harmless from all damages, suits, and troubles that might or should happen to him or them, by reason of his being so bound as aforesaid. And the said plaintiff avers, that the said S, in his lifetime, giving credit to the said A's promises as aforesaid, did then and there at the request of the said A, become bound with him and the said J Ĉ to the said J D, in such bond as aforesaid, conditioned as aforesaid, being for the proper debt of him, the said A; yet he, the said A, not regarding his promise aforesaid, never paid the said $- and the interest thereof, by said - day of &c., nor at any time since, nor saved said S, in his lifetime, nor the said plaintiff, his administrator, since the said S's decease, harmless concerning the premises; nor hath the said D, executor as aforesaid, done the same, since the decease of said A; but the said plaintiff, as administrator &c., as aforesaid, afterwards, and after the decease of the said S, to wit, on &c., at &c., to prevent the goods and estate in the said plaintiff's hands, and under his administration, to be taken in execution, to satisfy and pay the said sum of $-, and $-interest, making in the whole $-, and his being put to further and great costs and charges, in his said capacity, has been compelled to pay the aforesaid sum to J D of &c., executor &c. of the first named J D, who is now and was then deceased; and has, in his said capacity, sustained and been put to other great damages

and charges, by means of the premises; all which is to the damage, &c. WM. PRESCOTT.

For not paying half of a joint and several note, given by plaintiff and defendant's intestate, for a debt jointly due by them and paid wholly by plaintiff.

For that the said plaintiff and said I, [intestate] at &c., on &c., being jointly indebted to one C in the sum of $to secure the payment of said sum, gave a promissory note to said C, of that date; by which they promised, jointly and severally, to pay said C that sum in -months from that date, with interest therefor, until paid. And afterwards, on &c., at &c., the said note being due and unpaid, the plaintiff was requested by the said C to pay her the whole of the said sum, and the interest until that time, which the said plaintiff then and there did, the interest and principal amounting to $-, of which said I thereafterwards, on the same day, had notice, and thereby became liable to, and in consideration of the premises, then and there promised the plaintiff to pay him, one half of the principal and interest, to wit, the sum of $- on demand; yet the said I, though often requested, to wit, on &c., at &c., never paid the same in his lifetime, nor hath the said E paid the same though alike requested, since his death, &c. T. PARSONS.

For not indemnifying plaintiff who was defendant's bail.

For that the said E,,on &c., at &c., being attached by our writ, at the suit of one F, the plaintiffs, at the request of the said E, became bound unto T S, sheriff of our said county of &c., in the sum of $-, conditioned for the said E's appearance, &c., to answer to said suit; in consideration whereof the said E, did then and there promise to give the plaintiff sufficient security, to save harmless, and indemnify the plaintiff from all trouble and damages he might thereby be liable to; yet the said E, not regarding his promise, but designing to expose the plaintiff to the event of said suit, hath not given him such security to indemnify him, though often requested, but neglects it. READ.

For not indemnifying plaintiff who was defendant's bail; stating defendant's appeal on the former suit; the return of non est inventus, on execution; and the recovery on scire facias against plaintiff.

For that whereas I F of &c., did, on &c., sue out of the clerk's office of our C. C. P. in and for our said county of &c., our writ of attachment, in due form of law, against the

said E, directed to the sheriff of our county of &c. or his deputy, returnable into our said court, to be held at &c., on &c.; and the said I F thereon &c. delivered our writ of attachment to one S T, then and ever since being a deputy sheriff, in and for our said county of &c., to be by him duly served; and thereupon, by force thereof, the said S T did thereafterwards, on the same day, for want of goods or estate of the said E take and arrest the body of the said E, and him kept and held imprisoned, as he lawfully might do; and the said E, being so held and imprisoned, the plaintiff, then and there, at the special instance and request of the said E, for his delivery from the arrest, custody and imprisonment aforesaid, and that he might go at large, became bail upon our said original writ, not only for the said E's appearance at our said court, into which the same writ was returnable as aforesaid, but for his abiding the final judgment, which should be given thereon, and not avoiding the same; and the said E thereafterwards, on the same day, in consideration thereof, promised the plaintiff to appear and answer the said I F, according to the tenor of our said writ, and abide the final judgment thereon, and not avoid the same, and thereby save and keep the plaintiff harmless and indemnified from all costs, charges, or damage, by reason of his having become bail for the said E, as abovementioned; yet the said E, not regarding his promise aforesaid, but contriving and fraudulently intending to defraud, deceive, and injure the plaintiff in that behalf, did not appear in our said court, in which our said writ was returnable as aforesaid, to answer to the said I F according to the tenor thereof, but made default; whereupon the said I F, by the consideration of our justices of our said court, held at &c. aforesaid, and within and for our said county of &c., on &c., recovered judgment against E for the sum of $-damages, and $-costs of the same suit, as by the record thereof in our said court remaining, more fully appears; from which judgment the said E appealed unto our S. J. C. held at &c., on &c., and entered into cognizance with sureties, as the law directs, to prosecute his said appeal to effect, but failed so to do; whereupon the said I F duly entered and filed his complaint in our said court, praying affirmation of our said judgment, with additional damages and costs, and thereupon by the consideration of our said justices of our said S. J. C. recovered judgment against the said E, for the sum of $-, damages, and $-, costs of the