
    Alexander Austin ads. J. W. Simpson and others, Commissioners of Roads.
    Bond, to “keep up and in good repair,” a certain bridge, for seven years, “and fully indemnify and save harmless,” the Commissioners for Roads for any injury, loss, &c., they might sustain by its deficiency. The obligor was liable for neglect to repair which occasioned expense after, although not during the term.
    Before Earle, J., at Laurens, Spring Term, 1840.
    And it seems he would have been liable for any expense incurred by the Commisioners in making, during the term, proper repairs which he had neglected.
    This was an action against Austin, as security of one Campbell, -upon a penal bond. This instrument, after the recital that Campbell had built a certain bridge over Little river, under a contract with the plaintiff, was conditioned, “ that if the aforesaid Campbell will well and truly keep up and in good repair the aforesaid bridge, for the aforesaid bounds, and fully indemnify and save harmless the aforesaid Commissioners, and their successors in office, against any and all injury, loss, damage, or liability which they may sustain on account of the said bridge, by washing away or [being] out of repair, or in any other manner deficient, for the term of seven years from the date, then the bond to be null and void.” Pleas — general performance and non damnificatus.
    
    It appeared that the bridge had been very much out of repair, and that the sleepers had twice broken through with loaded wagons. It had been occasionally, but very imperfectly repaired, and was not safe. Loaded wagons were, for a considerable time, compelled to cross by another bridge, five miles out of their way. There was no proof that the Commissioners had ever caused the bridge to be repaired at their expense, or at that of the district, or that actual damage had been sustained by any one: but, if the bridge had been kept in repair, according to the terms of the bond, a new one would not have been necessary for several years longer.
    The jury were instructed that they could not find damages against the defendant by way of punishment; that, if losses had been actually sustained, they must be reimbursed; and whatever actual damage had been suffered by the Commissioners, or the public, if they could ascertain it, they must find: — that the terms of the bond were unambiguous, and required the obligors to keep the bridge up and in good repair; and, if in consequence of its not being so kept up, a new bridge was rendered necessary several years earlier than it would otherwise have been, it was a damage for which the plaintiffs were entitled to recover.
    Verdict for the plaintiff, twenty-five dollars — the estimated value of such repairs as would have preserved the bridge, if timely made.
    The defendant appealed, by motion for a new trial, on the ground of error in the judge’s charge; the bond being in fact only a bond of indemnity for the term specified, and no injury whatever being proved to have accrued to the plaintiffs during that term.
   Curia, per Earle, J.

We are all of opinion that the instructions given to the jury were very proper, and, at least, that the defendant has no cause to find fault with them. The condition of the bond is, clearly, a covenant to keep in repair, as well as to indemnify and save harmless. If the commissioners, on the bridge falling out of repair, had, after notice to the defendant, caused it to be thoroughly repaired at their own charge, they could have recovered from the defendant the full amount laid out. I cannot understand how an obligation such as this can be construed to mean only a covenant that the bridge shall remain standing until the end of the specified term, although it may be impassable, and, if the forbearance of the community saves the commissioners from prosecution, that the covenant goes for nothing. We cannot so construe the condition of the bond, without repealing a material clause of the covenant, and the first that is set down, “ that if the aforesaid Campbell will well and truly keep up and in good repair the aforesaid bridge.” On the construction contendéd for, we must strike that out, or declare that it has no meaning.

There were no actual losses proved to have been sustained by individuals. Whether such a covenant would render the obligor liable to make good the damages sustained by private persons, in consequence of the bridge being out of repair, may deserve serious consideration. The question does not arise here, and need not be discussed. As none were proved, .and as the commissioners had not been indicted, there seems to have been no other just standard of damages than that which was adopted, unless the penalty were to be regarded as stipulated damages, which could hardly have been intended. If, in consequence of the bridge being permitted to fall into decay, without timely repairs, the Commissioners, acting for the public, were obliged to cause a new bridge to be built much earlier than would have been necessary if such repairs had been made, it would seem to be a damage naturally resulting from the defendant’s breach of his covenant, and would entitle the plaintiffs to recover the amount which such reasonable repairs would have cost; unless, indeed, it be held that the covenant and obligation were intended solely for the personal security and protection of the Commissioners, as individuals, which does not deserve consideration.

Irby, for the motion.

The motion for new trial is refused.

The whole Court concurred.  