The plaintiff having been surety on a bond given upon an arrest of one Walker, to Davis Hatch, according to the R. S. chap. 148, sect. 20, was afterwards sued upon said bond with the principal and co-surety; and the defence set up, that the principal had disclosed and been admitted to his oath before a breach, failed, for the want of authority in the person who was selected by Walker as a Justice of the peace and quorum, to act in the character which he assumed. A judgment was obtained in the suit upon the bond, and upon the execution taken out upon that judgment, the plaintiff paid the amount, and also paid to them sums of money in defence of the suit on the bond. This action is brought against the defendant for damages alleged to have been sustained by the plaintiff, for acting in the capacity for which he was not commissioned and qualified, though he was not at the time aware of the want of authority. Upon a report of these facts certain questions are submited to this court for discussion, and one is, “ can the plaintiff recover for money paid by him on Hatch’s execution ?”

The answer to this question must be in the negative. The damage alleged and sought to be obtained, is too remote and indirect. The ground of action is, that the defendant failed to do effectually, what he undertook to perform for the principal, and not for the plaintiff. In becoming a surety on the *105bond, the principal contracted to indemnify the plaintiff from any loss which should arise to him in consequence of that undertaking. The surety had no power to compel the performance by the principal of any one of the conditions in the bond, and it does not appear that he took any measures to have them performed by the principal himself, or that he relied upon their performance for his indemnity. There was no privity between him and the defendant in any service, which the latter undertook. He held only the relation of surety to the principal on the bond, till after its breach.

If the principal had designed to fulfil the condition of the bond by payment of what might be due thereon, and had entrusted the money to a person who had engaged to carry and pay it to the creditor, and instead of doing it, he had negligently lost, or have embezzled it, or if the principal had employed one to carry him to the prison, that he might surrender himself to the keeper thereof, and prevent a breach of the bond, and he had unnecessarily failed to arrive in season, in neither case, could the surety avail himself of such delinquency, by payment of the debt, and a resort in his own name to a suit to obtain a reimbursement. The counsel for the plaintiff has presented no analagous case, where a claim of the kind has been sustained. There have been numerous instances, where a surety may have relied upon property in the hands of his principal for his indemnity, and that property has failed through the carelessness or fraud of persons to whom it was entrusted, but we know of no instance where those who have wasted it have been held accountable to the surety of the owner, merely by reason of the relation. And when the principal has failed to relieve the liability of his surety, by an act which he had contracted with others to perform, and which has failed of a valid performance, the principle will equally apply. Lamb v. Stone, 11 Pick. 527.

Plaintiff nonsuit.

Judgment for defendant.