
    David Ramsay ads. John L. Gervais.
    Charleston District,
    1798
    Upon a t)oiul Of llldClTjijhy., the oblige h net obliged to writ till ho is compelled t*> pay the money for de* fendant; he may bring hi.3 suit the moment the first breach happens* in not performing the condition-of the bond
    DEBT on bond of indemnity. Judgment by default.
    Motion to set aside this judgment, in order to let the into a defence, that he was not liable on this bond till the plaintiff had actually paid the money.
    The facts in this case were these : The plaintiff, Mr. Gervais, at the request of D. Ramsay, had indorsed a note for him in the national bank, for two thousand dollars ; and at the time of indorsement, took a bond of indemnity from Mm, to save himself harmless from and against all the consequences and damages, &c. which might arise from this in-dorsement. The note was discounted in the bank, and when the time of payment came round, it was protested for non-payment, and separate actions were brought for recovery of the amount, one against the drawer, and the other 'against the indorser. As soo'n as the plaintiff was sued on his indorsement, he commenced his action on the bond of indemnity against the defendant, and obtained judgment by default upon it.
    The present was a motion to set aside this judgment, on the ground that the action was prematurely brought, in support of the motion, it was said, that the plaintiff could not be said to be damnified, till he had been compelled to pay the money ; it was then, and not till then, that the actual damages accrued. That the defendant was still ready and willing to save him and his property, from any actual arrest or seizure, and would be prepared to pay off the debt, interest, and all costs, before any execution should be taken out against him.
   But the .court held, that the action will lay the moment the note was protested ; for from that moment, the plaintiff became liable to pay the debt; the suit against him was one of the consequences of the protest; and that was one of the consequences against which the bond was meant to protec'- and defend him, in consequence of his indorsement-

The plaintiff was not bound to wait till the ufficwc. of the banlc had levied on his property, and then to go through the slow process of the law, to recover the money from the defendant, who in the mean time might become insolvent. He was highly justifiable in endeavouring to raise the money from defendant, by all lawful ways and means in his power ; and if practicable, to be beforehand with the officers of the bank, by levying on defendant’s property, before they could levy on his effects, for the purpose of raising tni’ money. ■

Motion dismissed.

Present, Burke, Waties and Bay.  