The exception relied upon is, that it does not appear by the declaration, that the town of St. Albans has been damnified, has been put to any trouble or expense; but merely that the town, has on the non est return by the Sheriff, of the extent against the Collector, become liable to an extent for the sum in which the Collector has been delinquent. Authorities have been produced, from which it appears that there ate some ancient cases and dicta, which seem to support the opinion, that in this kind of action, it is sufficient that the person to be indemnified has become liable to suffer without having actually sustained any damage. But it is settled by modern authorities, that the person to be indemnified, to entitle him to maintain an action, must shew that he has sustained damages in the payment of the money, or in something to which the contract of indemnity extends. It is not indeed necessary, that he should wait to be sued before he pays the monejq *168against the payment of which he is to be indemnified. When the liability has attached he may in general pay, and maintain his action on the contract of indemnity. But merely to have become liaj,]e jg not sufficient; this appears to be the settled law, and is consistent with sound reason. There is, however, a clear distinction to be made, and which has not been attended to in all the cases, or perhaps in the abridgement of the cases. Where the condition is simply to save harmless from the payment of a debt, the condition is not broken until the obligee has been compelled to pay, or having become liable has actually paid or been put to expense. But if the condition be, that the obligor shall pay the debt when it shall become due, and discharge the obligee from the debt, and also save him harmless; in such case, if the obligor shall not pay the debt, or procure the obligee to be discharged therefrom, when it shall fall due, the obligation is forfeit; for it is sufficient if one condition be broken. The surety has a right; and it is often a matter of prudence to hastén a discharge of the debt, by such a special condition.

Broughton’s Case, 5 Coke, 24, which has been cited by the plaintiff’s council, was that of a surety, who, when the debt became due, paid it for the principal, without waiting for a suit against him. It was said, indeed,in that case that the plea non damnificatus, implied that the defendant had saved the plaintiff harmless, by a release, payment or otherwise. ( But this was a mere dictum, and quite out of the case, as the plaintiff had actually paid the debt.

In Freeman v. Sheen, Croke James, 340, Coke and all the court held, that where one is obliged to acquit another, it is not sufficient to save him harmless, but he ought to procure his actual discharge. This clearly admits the distinction. Barkely and Gibbs, v. Kempston, Croke, El. 123, was on a promise to keep a prisoner safely, and to save the plaintiff’s bailiffs, of Worcester, harmless of all escapes. The action was held to lie, for the breach in not keeping the prisoners safely, who had been suffered to escape, and that, although.the Bailiffs had not been sued. Here again the same distinction, although not noticed by the reporter. Griffith v. Harrison, 1 Salk. 196, was an action on a covenant, for quiet enjoyment, and that the plaintiff should be free and clear, and clearly discharged or saved harmless of all arrears of rents, &c. The court held the assignment of the breach bad, because the plain, tiff had not shewn a disturbance in the enjoyement; for that the *169rent being in arrear, was not a breach of the covenant.. In this ■case the same distinction is made.

Perhaps in the case before the Court, but on this the Court give no opinion, a sufficient breach might have been assigned on the condition that John Curtis 2d, should well and faithfully execute the office of Constable and Collector. But such breach is not assigned, unless it betaken by implication, which cannot be done. There must therefore be

Judgment for the defendants.