
    Isaac Parker, Administrator &c. of Edward Sprague, versus Thomas Thompson.
    When the question is of 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.
    By a contract made in this State, A engaged 11 to repay to B, of New Hampshire, any moneys, not exceeding 1500 dollars, which B should legally be compelled to pay to C on account of money received of C on account of, and in part pay for money due on D’s bond to B.” C recovered of B, in an action brought in New Hampshire, a larger sum than 1500 dollars. Held, that the words legally compelled meant compulsion by legal process, without reference to the laws of any particular State; that as the particular ground of the recovery in C's action did not, and was not required to appear by the record of the judgment, it might be shown by parol evidence} and that the measure of damages in an action on A’s contract should be the 1500 dollars, with interest from the time of a demand made subsequently to the recovery against B.
    Covenant. In 1800 Samuel Swett gave a bond and mortgage of certain real estate to the Rev. Edward Sprague, the plaintiff’s testator ; he made a second mortgage of the same estate to the defendant in 1812 ; and a third to Abraham Gibson in 1814, to whom in 1816 he conveyed his right of redemption. Sprague afterwards assigned his bond and mortgage to the defendant, who executed a contract under seal, dated at Boston the 24th of January 1817, in which he engages “to refund or repay to the Rev. Edward Sprague, of Dublin in New Hampshire, any moneys, not ex ceeding 1500 dollars, which he the said Sprague shall legally oe compelled to pay to the heirs of the late Abraham Gibson deceased, on account of money which he the said Sprague shall actually have received of and receipted for to said A. Gibson on account of and in part pay for money due on S. Swell’s bond to him the said E. Sprague, dated,” &c. An action was afterwards brought in the State of New Hampshire, by the representatives of Gibson against the representative of Sprague, the declaration in which contained two common money counts, and a special count alleging that 1500 dollars had been paid, but not indorsed, upon the bond, according to Sprague’s agreement ; and upon a trial judgment was recovered, and an execution was issued for the sum of 2091 dollars 50 cents, which was paid out of Sprague’s estate. Whereupon the present suit was commenced against the defendant, upor. ^is covenant above recited. The defendant pleaded, secondly, that Sprague’s estate had not been compelled to pay any money to Gibson’s heirs, which had been before paid by Gibson to Sprague on the bond and mortgage ; and, thirdly, that the money recovered had been before paid by Gibson to Sprague for the purpose of purchasing the bond and mortgage, and in part payment of the purchase, and not in part payment of the bond and mortgage. Issue was joined on these pleas.
    The plaintiff, to prove these issues, introduced a copy of the judgment recovered in New Hampshire, and of the execution, and proved by a witness, that the amount of the execution was paid out of Sprague’s estate. Other evidence, consisting chiefly of depositions and letters, was then offered by the plaintiff, to prove that the judgment was recovered on account of money paid by Gibson to Sprague on the bond and mortgage ; to which evidence the defendant objected, but the objection was overruled. It was proved, that the defendant was notified of the action in New Hampshire, and informed that he might conduct the defence if he saw fit. That action was tried several times, and a witness, who was present at the trials, testified that all the material evidence touching the payment of the money by Gibson, and the purpose for which it was paid, was from the testimony of one Pulsifer, whose deposition was in the present case, and from the deposition of one Ingersoll, a copy of which was also in this case and was read to the jury at the trial.
    
      Wilde J. instructed the jury, on the whole evidence, that if they should be satisfied that the money was paid by Gibson on the bond and mortgage, and was received in part payment of the same, and not for the purpose of procuring an assignment to him of the bond and mortgage, they should find all the issues for the plaintiff. And further, that if they found for the plaintiff, they should assess the damages in the sum of 2091 dollars 50 cents, the amount of the execution against Sprague’s estate, with interest from the time of payment of that execution.
    A verdict was found for the plaintiff; but if the parol evidence ought not to have been admitted, or if the instructions to the jury were ncorrect, a new trial was to be granted ; or if the Court should think the plaintiff entitled to recover, but that the damages were too large, the verdict was to be altered so as to conform with the opinion of the Court.
    
      Prescott and W. Sullivan, for the defendant.
    The plaintiff ought to have produced a record of a recovery against Sprague for the precise cause of action alluded to in the contract, showing that the contingency, which was to render the defendant liable, had happened ; and parol evidence was not admissible to prove, that in the action in New Hampshire, any matter was in issue, which did not appear on the face of the record. Sintzenick v. Lucas, 1 Esp. R. 43; Manny v. Harris, 2 Johns. R. 24. The Court must know all the evidence used at the trial, the arguments of the counsel, and the instructions of the judge, in order to get at the grounds of the decision in New Hampshire. This is not a formal objection, for the defendant there might have filed a special plea, which would have shown on what point the action turned. But if all the evidence used in that case is admissible here, then the question is, whether this Court would give the same construction to this contract. We apprehend they would not, and that it must be construed according to our laws, being made here and without reference to the laws of any other State. If the money was not paid on the bond, the defendant is not liable on his contract ; if it was so paid, then by our laws it could not be recovered back : and if it had been shown, as it ought to have been, in the action m New Hampshire, that it was paid in discharge of a debt, the representatives of Gibson would not have prevailed. Supposing however that the plaintiff is entitled to recover, the damages should not exceed 1500 dollars, with interest from the date of the writ. Dennis v. Cummins, 3 Johns. Cas. 298; Lowe v. Peers, 4 Burr. 2228.
    Fletcher, for the plaintiff.
    The point in issue was, whether Sprague’s representatives had been compelled to repay money paid by Gibson on account of Swell’s bond. We produced the record of the case in New Hampshire, but that did not show the fact ; nor was it necessary that it should, for the plaintiff there was not obliged to declare specially ; and if the defendant in that action had put in a special plea, it would have amounted to the general issue and been bad on demurrer. It was necessary then to prove the fact by other evidence ; and it is clear, that where a fact proper to be proved, need not and does not appear by the record, other evidence is admissible ; only such evidence must not contradict the record. Parks v. Hall, 2 Pick. 206; Wilson v. Hart, 7 Taunt. 304; Martin v. Thornton, 4 Esp. R. 180; Ravee v. Farmer, 4 T. R. 146; Seddon v. Tutop, 6 T. R. 607; Webster v. Lee, 5 Mass. R. 334; Phillips v. Berick, 16 Johns. R. 136; Stevens v. Payne, 2 Root, 83. The jury in the first action having found a verdict on the evidence now produced, they must have found that the money was paid on account of the bond ; for there was no evidence of any contract for an assignment to Gibson. It is objected, that Sprague’s repre sentative was not legally compelled to repay the money. Certainly the forms of law were pursued, and it is manifest from the contract itself, that the parties must have understood that any suit against Sprague would be brought in New Hampshire, where he lived. But if the action had been brought here, we have reason to think the result would have been the same, since the bond was assigned to the defendant without any indorsement of the payment in question. Rowe v. Smith, 16 Mass. R. 306. On the subject of damages, our view is, that 1500 dollars was mentioned only as the principal sum, being the sum paid by Gibson to Sprague, and that the plaintiff is entitled to interest as incident. Harris v. Clap, 1 Mass. R. 308; Pitts v. Tilden, 2 Mass. R. 118; Clark v. Barlow, 4 Johns. R. 183; Liotard v. Graves, 3 Caines’s R. 234; Pease v. Barber, ibid. 266; Smedes v. Hooghtaling, ibid. 48; Gibbs v. Bryant, 1 Pick. 118; Wood v. Robbins, 11 Mass. R. 504.
   Parker C. J.

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 ties 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, have 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.

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.
     