Curia, per
Woodworth, J.(after stating the ’pleadings.) The pleas of the statute of limitation are no bar. As to the plea of non accrevit, it appears from the evidence, that the gravamen, upon which the plaintiif relies to recover, is within six years. The plea of non assump-sit infra sex annos, does not apply to the case. The promise was made more than six years before suit brought; but it was a promise to indemnify against liabilities on the bond executed by the sureties of Bealls. The statute did not begin to run from the time of making the promise ; but from the time damages were sustained. The plea, there - fore, was bad in substance, and is not cured by the replication. The issue was immaterial, and interposes no obstacle in the plaintiff’s way. If the issue had been found for the defendant, the result would have been the same. In that case, the plaintiff would be entitled to judgment, notwithstanding the verdict.
The issue joined on the fourth plea is informal; but is amendable after verdict. The question is, which party held the affirmative ? It was undoubtedly the plaintiff. He alleges, that he brought the action for the nonperformance of other, and different undertakings, on which the defendant takes issue. The recovery of the judgment set out in the plea, seems to be admitted. In the case of *231Phillips v. Berick, (16 John. Rep. 136,) this question was considered. It was there held that the record of a former recovery, apparently for the same cause of action as that which is the foundation of the subsequent suit, is prima facie evidence only ; and the plaintiff may repel it by showing that it was for a distinct demand. Spencer, J. observes, that “ if the defendant had pleaded specially, he must have stated a former recovery for damages, by means of not performing the same identical promises. The replication would be, that the promises in that action were not the same identical promises. This would have formed an issue to the country ; and the inquiry in pais would be, whether the former recovery included the demand then in contest; and the burthen of the proof would be thrown on the plaintiff.”
According to this rule, the defendant was entitled to a verdict on the issue upon the replication, as the plaintiff offered no evidence in support of it. It is more than probable, that this arose from misapprehension, as to the point whether he held the affirmative. Had it been deemed necessary, it may be presumed he would have attempted to support the issue. If the former recovery was not for this specific demand, it was easily susceptible of proof. Surprise, or inadvertance, may have been the cause that the plaintiff directed his attention exclusively to establish a good cause of action, without adverting to the effect of the defendant’s plea. As the case, therefore, stands, the defendant will be entitled to judgment, although the plaintiff, in every other respect, may have shown a right to recover, unless the court award a new trial to enable him to supply the omission. As this seems to have been a fact really in controversy, the justice of the case requires, that after a trial on the merits, the plaintiff should be relieved, if, in other respects, his action is sustained. ,
I will, therefore, proceed to examine the only remaining question, which is, did the evidence support the declaration ?
*232Keyes, a witness for the plaintiff, testified, that the defendant admitted to him that he had agreed to indemnify the plaintiff, in consideration of his becoming bail for him ^eriff of Jefferson county.
Wardwell, another witness for the plaintiff, testified, that the defendant said, in consideration that Hale had become bail for him as sheriff, he had agreed to indemnify him on the bond he had given as bail for Bealls.
It will be observed, that the consideration stated in the declaration is executory, to wit, if the plaintiff would become bail for the defendant. Proof of a past consideration will not support the averment. The variance would be fatal. In the first, the performance of the consideration on the part of the plaintiff, constitutes a condition precedent. But a past consideration may be traversed ; and cannot be enforced unless laid to have been done upon request; or, at least, it must appear that the party promising was under a moral obligation to do the act. (7 John. 87. 18 John. 455. 1 Chit. 297.) It is very clear, the defendant has a right to insist on the variance, if it exists ; for the distinction between the two cases is well settled, and is material.
The only evidence of the agreement, is derived from the admissions to the two witnesses, Keyes and Ward-well, at different times. Whether the contract to indemnify was before or after the plaintiff became bail for the defendant, does not distinctly appear. The expressions, as stated by Wardwell, seem to imply that the bond had been given before the promise was made ; and yet, as the defendant was not speaking with an eye to what form of words might render him liable, it may have been intended to state merely, that the consideration to become bail, was the promise to indemnify. It is more probable, that the promise was the inducement to become security, than that subsequently, as a distinct transaction, the defendant should gratuitously make a promise to indemnify. The one is a very natural proceeding ; the other, out of the ordinary course. If, then, from the evidence, we are to draw an inference as to the time this contract was made, I in*233cline to think the conclusion warranted, that the contract was executory.
But admitting WardwelVs testimony varies from the declaration; the only effect is, that the plaintiff must resort to other proof, or fail. Although it does not support the declaration as framed, it cannot be used as evidence that the contract was different. The defendant cannot avail himself of his own admissions.
The evidence of Keyes places this fact beyond reasonable doubt. If his testimony, singly, makes out the plaintiff’s case, it cannot be impaired by a different confession of the defendant, to another witness, and at another time. When the defendant says, that he had agreed to indemnify in consideration of the plaintiff’s becoming bail, I understand him as saying, that he was to indemnify, if the plaintiff became his surety. He does not speak in the past tense. It evidently implies that one was the consideration of the other. In my opinion, this witness substantially supports the consideration as laid in the declaration.
The damages found are $150,87. There can be no good objection to the claim of one third of the execution levied on the plaintiff’s property ; nor for one third of the costs for which the plaintiff gave a note to his attorney. If the plaintiff had not defended the suits commenced by Barney against the defendant, for the default of Bealls, the defendant might have defended, and claimed his costs on the bond. As the plaintiff would have been ultimately liable, and as the defence by the bail was with the knowledge of the defendant, under the circumstances, his assent may be presumed. These two items amount to the verdict.
The result of my opinion is, that a new trial be granted, with costs to abide the event, unless the defendant, within 20 days, shall deliver to the plaintiff’s attorney, a waiver in writing, of the benefit of his fourth plea; and if such waiver shall be delivered, then, that judgment be entered for the plaintiff.
Rule accordingly,