
    Timothy Osgood v. Jonathan S. Osgood.
    Im an action upon a promissory note, given by the principal to his surety to indemnify him for that liability, the measure of damages is the amount paid by the surety at any time before trial; and unless he has made such payment he can recover nominal damages alone.
    Assumpsit. The plaintiff sought, among other things, to recover the amount of two- promissory notes, one for $1000 and the other for $2000, dated October 81, 1857, signed by the defendant, and payable to the plaintiff, or order, on demand, with interest. These notes were given to the plaintiff in consideration of his having signed notes for and with the defendant, of equal amount, and as security to indemnify him for thus having signed for and with the defendant. It did not appear that, at the commencement of this action, the plaintiff had paid anything upon the notes he had signed with and for the defendant. Upon the writ in this suit the defendant’s property had been attached, and the same property had been subsequently attached at the suit of other creditors of the defendant, and those subsequent attaching creditors had been permitted to appear and defend.
    The plaintiff claimed that he was entitled to recover upon the notes in suit the full amount of all the notes he had signed with and for the defendant, which had not been paid by the defendant himself; or, if not, that he was entitled to recover upon those notes such sum as he should show he had paid, before the rendition of judgment, upon the notes he had signed with and for the defendant. From both these positions the subsequent attaching creditors dissented, and contended that, under the circumstances, the plaintiff could not recover anything upon the notes in suit, unless, before the commencement of his action, he had paid something upon the notes he had signed with and for the defendant.
    
      
      Mini if* Bryant, for the plaintiff,
    contended that tbe consideration for the note was good, and that tbe plaintiff' may recover all such sums as be bad paid, or assumed to pay, before tbe judgment; and they cited Story on Promissory Notes, sec. 186; Cushing v. Gore, 15 Mass. 69; Hazeltine v. Guild, 11 N. H. 390; Little v. Little, 18 Pick. 426.
    
      Morrison <f* Stanley, for tbe defendant.
   Bellows, J.

Tbis is a suit to recover tbe amount of two promissory notes, given by tbe defendant to tbe plaintiff’ to indemnify him for signing notes with tbe defendant as bis surety; and it appearing that at tbe time of tbe bringing of the suit tbe plaintiff bad paid nothing as such surety, tbe question is, can be recover anything, and if so, bow much ?

In Hazeltine v. Guild, 11 N. H. 390, tbe whole question is settled, and we see no reason to depart from the principles there established. By tbe doctrines of that case tbe plaintiff cannot recover anything beyond nominal damages, until be has paid part or all tbe debt for which be is surety. But it is not necessary that sucb payment be made before tbe suit is brought. It is enough that it be paid at any time before the trial. In accordance with tbe doctrines of Hazeltine v. Guild, are tbe cases of Swift v. Crocker, 21 Pick. 241; Cushing v. Gore, 15 Mass. 69; Little v. Little, 13 Pick. 426.

In principle, tbis case is like tbe case of covenant on a warranty against incumbrances, where nominal damages only can be recovered until payment, or the amount is otherwise fixed. Willson v. Willson, 35 N. H. 235; Brooks v. Moody, 20 Pick. 474. In this class of eases only tbe amount actually paid can be recovered, because tbe eove3iantee may never be disturbed, as tbe bolder of the mortgage, where that is tbe incumbrance, may obtain payment of tbe covenantor. A similar objection exists to the recovery by a surety before actual payment, without which the consideration may be regarded as having failed.

The opinion of the court, then, is that the measure of damages will be the amount paid by the plaintiff at any time before the trial; and that, if no such payment be shown, nominal damages can be recovered, and no more.

The decisions which establish the doctrine that the plaintiff may recover for any amount paid by the surety before trial, necessarily imply that in case of no such payment, nominal damages may be recovered. Otherwise no action could be maintained unless payment had been made befoi’e suit; inasmuch as there must have been cause of action at its commencement; and so the doctrine is assumed to be in the cases cited.

As there is no provision for judgment in this case, no further direction is necessary, but the cause must be retained for farther proceedings.  