
    Kimball v. Cocheco Railroad Co.
    If a party give a bond to indemnify tbe obliges against a release of an unsatisfied debt, and the condition is broken, judgment will be rendered on the bond for the amount of the debt.
    Debt, upon a bond. Two counts were stated, tó wit t 1, in common form. 2. Also, for that the said defendants at, &c., on, &c'., by their other writing-obligatory, of that date, sealed with their seal, and here in court to be produced, acknowledged themselves to be held and firmly bound to the plaintiff in the further sum of one thousand dollars, to be paid to the plaintiff when the said defendants should be thereunto afterwards requested: which said writing obligatory was and is subject to a certain condition thereunder written, to the effect following, to wit: that if the said defendants should save harmless the said plaintiff for having on the day of the date of said writing obligatory signed a release and receipt for the payment of four hundred and fifty-five dollars and eighty-four cents, as damages awarded to the plaintiff by the railroad commissioners; and should agree to pay the award of the referees, there selected by the parties, for damages to the plaintiff’s land, then said obligation to be void, otherwise in full force; and the plaintiff avers, that the said defendants have not kept the said condition of said writing obligatory, but have broken the same, and have not saved the said plaintiff harmless for having signed said release and receipt, and have delayed and have kept the plaintiff out of the whole of said sum of four hundred and fifty-five dollars and eighty-four cents, and the use of the same, and though requested, refuse to pay the same.
    To each of these counts there was a plea of non est factum and a brief statement.
    To the first count, the brief statement set forth the condition of the bond as stated in the other count, and alleged, first, that they have performed all the matters and things required of them in the aforesaid condition; second, that the plaintiff has never been damnified, from any cause mentioned in said bond ; third, that the defendants did on the day of the date of the bond, at, &c., agree to pay the award of said referees, and have ever since been ready to pay the same, and before the commencement of the plaintiff’s suit they offered to pay him the same, but he refused to take the same.
    To the second count the specification sets forth, first, that the plaintiff has never been damnified, from any cause mentioned in the bond; second, that the defendants have fully performed the condition of said bond ; third, that there has been no' such breach of the condition as is alleged; fourth, that the referees elected? made an award and the defendants tendered to the plaintiff the sum awarded, but the plaintiff refused to receive it.
    Upon the trial it appeared that the railroad commissioners awarded to the plaintiff $455.84, as damages for a part of his land taken for the railroad. That the plaintiff was dissatisfied, and proposed to appeal, bnt it was finally agreed, that his claim for damages should be referred to three referees then agreed upon, that the plaintiff should execute a receipt and release to the company for the damages awarded by the railroad commissioners, so as to enable the company to proceed with their road; and the company executed to him the bond, on which the action is brought, distinctly set forth in the second count. The submission to the referees was by a rule returnable to the court of common pleas. The referees met and heard the parties and made an award ; but the award was set aside on the motion of the plaintiff, because one of the referees, before the hearing and without his knowledge, had become a stockholder in the railroad company. Before the action was brought the defendants offered to pay the plaintiff the amount of the award of the referees,, and interest.
    A verdict was taken by consent, for the plaintiff for the penalty of the bond. Judgment to be rendered on the verdict for such sum as the superior court should think the plaintiff entitled to, or the verdict to be set aside and judgment rendered for the defendant for costs.
    
      JR. Kimball and Soule, for the plaintiff.
    
      Woodman and Christie, for the defendants.
   Bell, J.

Judgment for the plaintiff.  