
    John Clarke & another vs. Miles G. Moies.
    It is no defence to a suit on a bond to indemnify a defendant in another suit against costs, that the obligor informed the obligee before that suit was commenced, that his counsel advised him that such a suit could not be successfully resisted, and that he would pay the sum for which he was liable, although he did not think he was liable at all; if he made no tender to the obligee, and there is no evidence that the costs were not incurred in good faith.
    Action of contract on a joint and several bond to indemnify the plaintiffs “ from all loss, damage, liability or cost by reason of” their having become sureties on the official bond of Augustus Clarke, deputy postmaster at Northampton, to the United States.
    At the trial in the court of common pleas in Hampshire, before Briggs, J., the evidence showed that the United States had recovered judgment against the plaintiffs as sureties on Augustus Clarke’s bond for $2847.99, and costs of suit.
    The defendant testified that before the commencement of, that suit he told one of the plaintiffs that his counsel had advised him that it could not be successfully defended, and that he was satisfied that there was no valid defence to the claim of the United States; and requested the plaintiffs to make no defence to it, and told them he would not be responsible for any of the costs of that suit, but was willing to pay the plaintiffs without such suit his just proportion of the amount due them and all that he was liable for; but that he also said that he was not, in his opinion, liable to pay anything. And the defendant requested the court to instruct the jury that upon such facts he would not be liable for the costs of the suit brought by the United States against the plaintiffs. The plaintiffs offered evidence to show that they defended that suit in good faith.
    The judge refused to give the instructions requested by the defendant; the jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.
    
      S. T. Spaulding, for the defendant.
    
      W Allen, Jr., for the plaintiffs.
   By the Court.

The bond now sued on is in terms to indemnify the plaintiff against costs. There is nothing tending to show that the costs in this case were not incurred in perfect good faith. These plaintiffs were not bound to act on the opinion or advice which this defendant had taken ; and had a right to defend against the claim of the United States, if in so doing they acted fairly. The defendant’s statement that he would pay his share of the liability, not having been accompanied by an offer to pay any specific sum, but on the contrary coupled with a denial of any liability at all, has no tendency to show that the defence and suit on the bond were unnecessary or improper. Exceptions overruled.  