
    Aaron Hayden versus Frederick Cabot
    All the indemnity which a surety in a bond for the payment of money can claim from the principal, is the amount he has paid on account of the bond, with all such reasonable expenses as he may have been obliged to incur; not such extraordinary and remote expenses as might have been prevented by payment of the bond.
    Assumpsit upon a written promise of the following tenor:— “ Eastport, June 1, 1814. Whereas Aaron Hayden, Esq., has this day signed a duty bond, at the Passamaquoddy custom-house, for six thousand forty-one dollars, eighty-two cents, being the supposed amount of duties on one hundred packages of goods imported in the sloop Abro, shipped by Constantine Llufrio, and consigned to S. Bartlet; we jointly and severally promise to hold him harmless from any loss he may sustain by signing said bond.” Signed by the defendant and two others.
    The cause was tried upon the general issue, at sittings here before the chief justice, during the present term.
    It was in evidence for the plaintiff, that on the 11th of July, 1814, tne British forces captured Eastport, and kept possession of it with a military force ; that they got possession of the custom-house, and of the bond referred to in the above-written paper, among other documents and papers; that certified copies of the bonds in the custom-house were preserved by the collector; that after this a monition was posted up, directing the obligors in all the bonds to appear at Halifax, and show cause why they should not be held to pay the bonds to the captors ; that in March, 1815, a copias was issued against the obligors ; that the plaintiff, and all the other obligors, (except one who was arrested, and carried to Halifax, and there detained some time,) fled to avoid the process; that the plaintiff came to * Boston with his family, and [ * 170 J remained here until May, 1815, when he returned to the neighborhood of Eastport; that Eastport was restored to the United States in June, 1817 ; that the plaintiff was a merchant of respectable standing, and of large business; and that he had many debts due to him, which were probably lost by reason of his absence. The witness could not testify positively that the plaintiff was named in any copias which issued, but he believed that all the obligors were named, and he was certain that the plaintiff’s name was in the monition. It was not proved that any judgment had been rendered upon the bonds, which were afterwards paid to the United States, by the obligors or others interested; an act of congress having provided for their indemnity against the British claim.
    The chief justice, being of opinion that the plaintiff had not been damnified, within the meaning of the contract upon which the action was brought, ordered a nonsuit to be entered, giving liberty for the plaintiff to move the Court to set aside the nonsuit and grant a new trial, if the action could be maintained upon the facts proved,
    
      Hubbard, for the plaintiff,
    insisted that he had sustained damage, ¿he direct and immediate consequence of his becoming the defendant's surety, and which entitled him to an action. The indemnity promised was, that the plaintiff should sustain no loss on account of his exequting the bond. There can be no doubt that the promise was sufficient in law to support a suit, if damage be proved. The plaintiff left his home, removed his family to a distant place, was at much expense, and suffered greatly in his pecuniary affairs. In this he was actuated by a reasonable apprehension of other and greater mischief .
    Sureties should receive liberal justice. The contracts for their indemnity should be construed favorably. They should be compensated, not only for money actually paid on account of their principals, but for all consequential loss or damage, such as loss of time, anxiety of mind, injury to their business, &c. It [ * 171 ] must be acknowledged * that no case has been found in the books exactly parallel to that now before the Court; but a sufficient reason for this is, that cases of indemnity are always questions of fact, and to be settled by a jury.
    It is to be noted that the plaintiff in this case pursued the course most to the defendant’s interest. Had he remained under the power of the British, he must have paid the bond ; in which case, the defendant would have been clearly held to repay the money, and must also have paid it to the United States.
    
    
      Prescott and Gorham, for the defendant.
    The plaintiff shows no cause of action, unless the mere fact of signing a bond as surety gives one. The evidence shows only that he escaped from the payment of it. It was his duty to resist' the pretended claim of the British. If he had incurred expenses in doing so, the defendant might have been held to reimburse them. Suppose the capture out of the case, and that, to avoid payment of the bond to the United States, he had escaped into the British territory; his claim on the defendant for indemnity would have been quite as strong as it now is. But the promise of the defendant was never intended to meet a case of capture, and a loss by forfeiture or seizure .
    On the capture of Eastport, it became part of the British domin-. ;ons, and its inhabitants became British subjects, and entitled to the same legal rights in their courts as, before the capture, they had m the courts of the United States 
      . ' If the British claim was a legal one, the plaintiff should have discharged it; if illegal, he should have resisted it. But for more than a century past, choses in action have not been forfeited in cases of capture, so as to com pel payment by the obligors.
    But if such proceedings were had in this case as would have compelled the plaintiff to pay this bond, there is yet no legal evidence of those proceedings. They must have been mat- [ * 172 ] ter of record, and the record should have been * shown.
    The defendant’s promise was to indemnify only against legal and necessary damages and costs.
    
      
      Hubbard, in reply. If the evidence is not sufficient to prove the proceedings in the British courts, a new trial should be had, that the plaintiff may have opportunity to show them by other evidence. The question in the case is, whether the facts, if legally proved, show a good cause of action.
    The damage complained of was wholly a direct consequence of the plaintiff’s signing the bond. If this is denied, the jury should settle the question ; and the plaintiff has a right to a trial at that forum .
    
      
      
        Doug. 645.
    
    
      
      
        Marshall on Ins. 717.
    
    
      
      
        Dodson’s Mm. Rep 451)
    
    
      
       10 Johns. 242.
    
   Parker, C. J.,

delivered the opinion of the Court

This case must be considered an experiment to ascertain whether, under such a state of facts, an action can be maintained, No authority m favor of it has been found by the plaintiff’s counsel, and this is of itself pretty decisive against the action. The promise of the defendant is, to save the plaintiff harmless from any loss he might sustain in consequence of signing a custom-house bond for duties on goods imported by the defendant.

The common construction of such a contract is, that if the surety is obliged to pay the bond, by suit or otherwise, the principal shall repay him the sum he has been obliged to advance, together with all such reasonable expenses as he may have been obliged to incur, and which may be considered as the necessary consequence of the neglect of the principal to discharge his own debt.

But extraordinary expenses, which might have been avoided by payment of the money, or remote and unexpected consequences, are never considered as coming within the contract. Tims if a surety, by reason of being obliged to pay money for his principal, becomes embarrassed in his business, and is finally obliged to abandon *it, it is not expected that [ * 173 ] the principal will be held to indemnify him for this consequential misfortune. It is not the natural and necessary effect of his becoming surety, but is occasioned by his undertaking to do what he was not in a condition to perform.

So any loss or expense, occasioned by an attempt to avoid payment of an obligation, cannot have been contemplated by the parties as a subject of indemnity, the true meaning of the contract being, that if the surety pays voluntarily, he shall be reimbursed ; •if he is compelled by suit to pay, he shall also be indemnified for his costs and expenses. Flight, to avoid payment of the debt, is an accident wholly unforeseen, and its consequences cannot be considered as provided for. The principal had a right to calculate upon his surety’s ability to pay, and did not stipulate to save him harmless from any thing but the payment of money. If the surety were put in prison, or if his goods were sold at a sacrifice, these would not be legal grounds of suit for indemnity, because they might be avoided by payment, which he must be considered as stipulating he was able to make.

The indefinite nature and extent of such damages as are claimed in the present action, is also a sufficient objection to the character of the action itself. If a surety, who flies to avoid payment, can recover an indemnity for all the consequences of his flight, such as his loss of business, loss of debts, expenses of removing and supporting his family, the principal would have no means of protecting himself against extravagant claims; so that the danger would rather lie in having a surety, than in becoming one, which has heretofore been thought to be attended with the most hazard. And such are the losses which the present action is brought to repair.

If the principle on which the action is founded is correct, there would be no measure between the original debt and the subsequent liability of the debtor. His surety for a hundred [ * 174 ] dollars, flying to avoid payment of that * sum, might incur expenses to the amount of a thousand, all of which he would have as good a right to claim as any part of it. If the natural limit of such a contract, which is indemnity for the debt and the necessary expenses of obtaining payment, are passed, there seems to be no assignable bounds to the consequences of such a contract.

In the case before us, therefore, if the facts had all been proved by legal evidence, we think they would show no damages for which the plaintiff is entitled to recover. It certainly may be doubted whether the British acquired any property which could have been enforced in any of their own courts of law, in the bonds which were taken possession of when they captured Eastport; and it is not easy to see what process would have been resorted to, to enforce payment. They could not be viewed as assignees; and if they proceeded in rem in their admiralty courts, that would not have produced the money. It does not appear that the right was ever insisted on; and the bonds have been paid to the United States by the principals.

Had the plaintiff been arrested on any suit, and, to liberate himself, paid the money, or had he defended against the suit at his own expense, his claim would stand on more plausible grounds. At present, it rests only on his having fled to avoid a suit, problematical at least in its issue. He has never paid any money on account of the bond which he signed, or as the necessary consequence of his signing it. The nonsuit must stand.

Costs for the defendant. 
      
       The justices, Jackson and Putnam, did not sit in the hearing of this cause o$ account of their affinity to the defendant
     