
    John Watson and Others versus Ward Nicholas Boylston.
    A., who, as administrator of the estate of B., had recovered judgment against C., executor of the last will of D., covenants by indenture with C., that he will not sue, &c., E., F. and G., sureties of C. for his faithful administration, on account of such judgment, or of any demand against C., as executor of D., but that they shall be utterly free and clear from all suits, &c., by A., or any person claiming under B.
    Before the execution of the indenture by A., E., one of the sureties, and also C.’s agent to procure the indenture to be executed, requests A. to permit him to have drawn another writing, to contain the same covenant with that in the indenture, and that A. would execute such writing, so that the sureties might have the same in their hands to plead, if occasion should require; to which A. assents.
    E. procures to be drawn a writing, containing a covenant to indemnify the sureties against all suits that may be instituted by any persons whatever against the estate of D., whereby the sureties might be liable, and presenting it to A. as the writing he had consented to have drawn, it was by him executed on the same day with the indenture.
    The sureties, being afterwards sued, and judgment being recovered against them by another creditor of D.’s estate, bring their action against A. on the covenant of indemnity contained in the second deed, and A. was held liable.
    This was an action of covenant broken, brought upon a deed poll made by the defendant.
    *It appears from the pleadings, which are voluminous, [ *412 ] that the defendant, as administrator with the will annexed of Thomas Boylston, formerly of Boston, but late of London, in Great Britain, deceased, had recovered judgment for a large sum of money against the goods and estate of the late Lieutenant-Governor Gill, in the hands of Moses Gill, the executor of his last will and testament; and that the plaintiffs were sureties in the Probate Court for the said Moses, and bound for his faithful administration of the goods and estate of his testator, and might be liable to his creditors, if, through the unfaithful administration of the executor, their debts were not discharged ; and that the covenants contained in the deed declared on purported to give the plaintiffs an indemnity against this supposed liability.
    The plaintiffs in their declaration allege that, by the same deed, the defendant covenanted with them, that they should be indemnified and saved harmless against all actions, suits, and demands, which did then, or might afterwards exist against the estate of Lieutenant-Governor Gill, to which they might be liable, by reason of their being sureties for the faithful administration of his executor, and that from the claims or demands aforesaid, they should be exonerated and saved harmless. The plaintiffs assign the breach by averring that they have not been indemnified and saved harmless against a suit commenced against them, as sureties as aforesaid, by the commonwealth, for a debt due to it by Lieutenant-Governor Gill, which debt they, as sureties as aforesaid, are liable to pay; and of which the defendant has had notice, and been requested to indemnify them, which he has refused, and so has not kept his said covenant.
    To this declaration, the defendant has pleaded four several pleas. The first is non est factum generally. The second alleges that the deed declared on was obtained from the defendant by the fraud and imposition of Henry Prentiss, one of the plaintiffs, and [*413 ] therefore is * not his deed. On these two pleas, issues are joined to the country, and found for the plaintiffs.
    In the third plea, the defendant prays oyer of the deed declared on ; and upon the hearing, it appears to contain a recital of the recovery of the said judgment by the defendant, against the estate of Lieutenant-Governor Gill, in the hands of Moses Gill, his executor, and also the obligation by the plaintiffs as his sureties as aforesaid, by which they are supposed to be endangered by being liable to be called upon, holden and taken in satisfaction of the claims of the creditors to the said estate, which the plaintiffs are desirous of being indemnified against, and for which purpose certain indentures have been executed between the defendant and the said executor, dated the 18th of December, 1804. Then follows the covenant declared on, with certain provisoes not material in this case ; and this deed is dated the 31st of December, 1804.
    The defendant then alleges that he, and the said executor, by Henry Prentiss, his attorney, made an agreement by paroi, that for a valuable consideration, the defendant should save harmless the said executor and his said sureties from the above-mentioned judgment, and from all demands against Lieutenant-Governor Gill’s estate, on account of any debts due, or owing from the said estate, to the said Thomas Boylston, or to any person claiming from, by or under him; and that to carry into execution the said agreement, the indentures referred to in the said deed were executed. He then shows the tenor of the indentures, which are dated the 8th of December, 1804. By them the defendant covenants to indemnify the executor, and the plaintiffs, his sureties, against the demands only, which are mentioned in the paroi agreement.
    The defendant then further alleges that Prentiss, one of the plaintiffs, requested of the defendant to consent that he, [*414] Prentiss, might procure to be drawn by his own * counsel another writing, which should contain the same covenants respecting the sureties, as were contained in the said indentures, and that the defendant would execute it to the sureties, so that they might have it in their own hands to plead, if necessary; that on the defendant’s consenting, Prentiss promised to procure a drought of such writing, and of no other ; that afterwards, when the defendant and Prentiss met to execute the indentures, the latter produced the writing declared on, as the writing which he had promised to procure, and requested the defendant to execute it, which he did. The defendant then avers that no other actions, suits or demands were meant or intended by the parties to be indemnified against, by the deed declared on, than those which are mentioned in the indentures,
    
      To this plea the plaintiffs demur specially, and the defendant joins in demurrer.
    In the fourth plea pleaded by the defendant, the deed declared on is shown on oyer. The defendant then avers that the indentures therein referred to, and the said deed, were executed on the same day; and he then pleads the tenor of the indentures, one part of which he brings into Court. He then avers that the suit mentioned by the plaintiffs in the assignment of the breach was not prosecuted by, nor on behalf of the defendant, or by any other person claiming under the said Thomas Boylston.
    
    To' this fourth plea there is a general demurrer and joinder.
    Upon these pleadings, the action being continued nisi, an argument was had at Dedham, on this circuit, by Bidwell, Attorney-General, for the plaintiffs, and Dexter and Otis, for the defendant.
    In support of the demurrer to the defendant’s third plea, Bidwell opened and enforced the objections which he had assigned in the pleadings as causes of demurrer, and he stated sundry objections to the fourth plea. * These objections were [*415] answered by Otis, who was followed by Dexter, in a very able argument upon the construction of the deed declared on, as taken in connection with the indentures recited. The reporter the less regrets the omission, of this argument, since the leading points of it are stated in the opinion of the Court, as it was after-wards delivered at Cambridge, at the succeeding November term, by
   Parsons, C. J.

In the argument the defendant’s counsel have insisted that the indentures referred to in the deed are to be considered iii the construction of the deed; and if, on the consideration of the deed and indentures taken together, it should appear that the suit mentioned in the assignment of the breach was not indemnified against, then the fourth plea is good ; because it is manifest that the suit there mentioned is not included in the covenant of indemnity contained in the indentures.

This position of the defendant’s counsel we think is correct, and in forming our opinion on the’merits of the fourth plea, we have considered the deed and indentures together as relating to the same subject, although between different parties; inasmuch as one object of the indentures was to obtain indemnity to the sureties, one of whom was the attorney of the executor, and who obtained the execution of the indentures on the part of the defendant.

The defendant’s counsel have further argued, that if the fourth plea is bad, yet the third is good; because in that part of the deed relating to the actions, suits, and demands indemnified against, there is a latent ambiguity in the description of the actions, suits, and demands, when the deed is taken in connection with the indentures, which ambiguity is removed by the averment of the extraneous matter, that averment being confessed by the demurrer. [*416] * If, therefore, it appears to the Court, that the suit mentioned in the assignment of the breach is, upon the construction of the deed considered in connection with the indentures, clearly and without ambiguity, one of the actions indemnified against in the deed, then the plaintiffs must have judgment on the two last pleas. For as there will be no latent ambiguity in the deed, the averment of extraneous matter will tend, not to explain, but to xmtrol that instrument, which cannot be admitted.

Upon looking into the deed, we find that the defendant has covenanted to indemnify the plaintiffs against all actions, suits, and de'mands, which might afterwards be instituted against the estate of Lieutenant-Governor Gill, and whereby the plaintiffs might be liable for the payment, by reason of their being sureties for the executor. This covenant includes suits instituted by any party, whether it be the defendant, or one claiming under Thomas Boylston, or any other person whatever. The suit therefore mentioned in the breach is unquestionably included in the covenant of indemnity, considered without any reference to the indentures.

It is true that, in examining the indentures, this suit is not included in the covenant of indemnity contained therein. But the covenant there is not with the plaintiffs, but with the executor.

In the recital of the deed, it is stated that the plaintiffs may be liable to satisfy the claims of the creditors to the estate of Lieutenant-Governor Gill. Claims existing against the estate of any person deceased, are understood in our laws as including every personal demand, which might be recovered against the executor or adminis trator, and which the estate in their hands is bound to satisfy. These claims the plaintiffs are desirous of being indemnified against. They are, therefore, desirous of being indemnified against the claims of all the creditors, who have demands against ihe estate of [*417] Lieutenant-Governor * Gill. The recital proceeds, “ for which purpose” the indentures mentioned have been executed.

As the indentures do not contain a covenant of indemnity against the demands of the creditors generally, but only against certain specific demands, it has been argued by the defendant’s counsel, that the general words in the deed ought in construction to have the restriction expressed in the indentures.

But the natural construction is, that the indentures not affecting hose purposes, the deed was executed that the desire of the sureties for a general indemnity might be accomplished.

However ingenious and subtle are the observations made by the defendant’s counsel, from the change of the phraseology from “actions, suits, and demands,” to the words “ claims and demands,” or from the repetition of the word “ aforesaid,” as applied to the sureties, to the executor, or to the “ claims and demands,” those observations do not seem to have much weight, as the foundation of them may be imputed to the want of precision in the scrivener, or to a tautology too common in all instruments and legal proceedings.

We are therefore satisfied that the suit mentioned in the assignment of the breach is included in the covenant of indemnity contained in the deed, not only when the deed is considered without reference to the indentures, but also when it is considered in conjunction with them; and consequently the fourth plea must be adjudged bad.

We are also of opinion that the third plea is bad. For we do not discover in the deed, considered either with or without the indentures, any latent ambiguities, which will authorize the averment of matters extraneous to the deed. It is true that the indemnity contained in the indentures is limited, and would not avail the plaintiffs to save them harmless in the suit by the commonwealth ; and we are urged to decide that the defendant * could not therefore have intended in the deed an indemnity more [*418] general than that which he stipulated in the indentures.

But we can judge of his intent only from his language. The words of the deed are his own. And certainly there may be considerations, for which a party may be willing to indemnify sureties in cases in which he would not indemnify the principal.

The plaintiffs must have judgment; but as the defendant will review the action, to obtain another trial of the issues in fact, execution will stay, by the consent of the parties, on a bond of review being executed, in the same manner as if such bond had been executed at the last term in Worcester, of which term the judgment is of course to be entered.  