
    Zechariah Fish versus Samuel Dana.
    A bond, conditioned that the obligor should, within such time as he might choose, discharge a certain mortgage, given by the obligee to secure the payment :f" certain promissory notes signed by him, and should cause the said notes to be paid, and should indemnify the obligee from all costs, damage, &c., was holden to be forfeited by the obligee’s being sued to final judgment on one of the said notes.
    Debt on bond for 3000 dollars, conditioned that whereas the plaintiff had that day sold and conveyed to the defendant a certain house and land in Boston, subject to a mortgage thereon to one W. P., and the defendant had agreed to satisfy and discharge the said mortgage, — if the said Dana or his assigns should discharge the said mortgage, and, within such time as he may choose, cause the deed to be discharged, and the notes therein described to be paid, satisfied, or cancelled, and should, moreover, indemnify the said Fish, his heirs, &c., against the said mortgage and notes, and from all costs, trouble, damage, or charge, to * which they [ * 47 J may ever be subject on account of said deed or notes, then the said obligation to be void; otherwise, &c.
    On oyer of the bond declared on, and of the condition, the defendant pleaded in bar, that he had well and truly observed, performed, and kept all and singular the agreements, covenants, and contracts, in the same condition mentioned, on his part to be kept and performed, according to the form, tenor, force, and effect, of the same condition.
    The plaintiff replied that the notes mentioned in the said condition being payable to the said W. P., he had sued the plaintiff upon one of them, and had recovered judgment in such suit against the plaintiff, of which the defendant had had notice; which judg ment was still in force against him, and unpaid by the said Dana.
    
    The defendant rejoined that the plaintiff never gave him notice of the suing said action, or of the prosecution thereof to final judgment, as the plaintiff had alleged, and tendered an issue to the country.
    To this rejoinder the defendant demurred generally, and the plaintiff joined in demurrer.
    
      Parsons for the plaintiff.
    
      Dana pro se.
    
   Curia.

The rejoinder is immaterial. The defendant was to take his own time to discharge the mortgage and pay the notes mentioned. But he was, in all events, to indemnify the plaintiff, lie has failed so to do; and the plaintiff is entitled to judgment.

ADDITIONAL NOTE.

[See, as to bonds of indemnity, Negrus, 7 Wend. 499. — Chace vs. Hinman, 8 Wend, 452. —F. H.]  