The opinion of the court was delivered by
Rjsdfield, J.Only two questions properly arise, in the present case, upon the bill of exceptions.
1. Was the record of the judgment, in the suit in favor of the plaintiff against Wilson, properly admitted in this action. The question is not, what shall be the effect of this record ? — is it conclusive of the question of title of the horse 1 — but, is it admissible for any purpose? We think it is. The defendant’s undertaking with the plaintiff was not, that, if it should appear that Wilson owned the horse, he would make good the plaintiff’s loss; — but, if the plaintiff would bring the suit, and should fail to recover against Wilson in such action, he would “ make the plaintiff good for his damage, loss and cost.” This promise was made upon the consideration, that the plaintiff would give up to the defendant the horse he bought of Wilson, and bring a suit against Wilson for fraudulently selling property not his own. If the plaintiff would make out his action, he must show that he brought the suit, and that be failed in it. This is all that he stipulated to do on his part. It is all that the defendant required him to do, in order to give him g, claim for indemnity. To say that the plaintiff was bound to give! the' defendant notice of the time of trial is going aside and beyond the contract. It is, doubtless, implied, in the terms of the contract, that tjie suit shall be brought in a reasonable time, and prosecuted with cofnmon diligence, and that it shall fail without the fault of the plaintiff. But it no where appears that any expectation existed, on the part of the defendant, that he should have notice of the time and place of trial. *469If he knew of any testimony, it was his business to inform the plaintiff of it, and if he could render any other important aid, to offer it.
And even without this, it is by no means certain that the defená-ant is barred by the judgment, in regard to the title of the horse. But the contract is not made to hinge upon that, but upon the success, or failure, of the suit. The title of the horse is no otherwise important, except as it affected the event of the suit against Wilson, or as it affects the damages in this case. The suit against Wilson might fail, notwithstanding he was in fact liable; but if it failed, the defendant promised to make good “ all damage, loss and expense.” The damage, loss and expense would all be incurred, except the loss of the horse, the same, whether Wilson had good right to sell it, or not; and, by the express terms of the contract, no suit could be maintained, until the suit was brought against Wilson and had failed. The record was, then, the best, and, of course, the only evidence of the “bringing” and the “failure” of the suit. No question seems to have been made, in the court below, whether the record was proof of title of the horse in Wilson. I should, myself, think, that, as it was merely inter alios, except so far as the con. tract made it important to this ease, it could not conclude the question of title.
But, upon the question of title, the prima facie proof was clearly with the plaintiff, aside from the record. The possession of the horse was quietly in the plaintiff, and that was good against all the world, who could not show a better title. This possession the plaintiff surrendered to the defendant for the contract, and there was no proof offered that the title was in any one else. Of course, then, the plaintiff lost his horse, and the expenses of the suit which he was, by the terms of the contract, entitled to recover against the defendant.
2. The only remaining question is as to the sufficiency of the consideration alleged in the declaration. Upon this there would seem to be no doubt. It was clearly both a loss to the plaintiff, and a benefit to the defendant, to .give up to the defendant the horse, and himself incur the expense and perplexity of a lawsuit.
The question attempted to be made, as to the sufficiency of the allegation in the declaration, “that the plaintiff did afterwards sue out a writ against said Wilson,” &c., that it is too general, is clear*470ly with the plaintiff. This question is first made by motion in arrest of judgment. Every reasonable presumption should be made in favor of the sufficiency of the pleadings, after verdict. We are not to presume that this “ writ ” was in covenant, or trespass, or that it was defective, but rather that it was formal, and founded upon the alleged fraud in Wilson, as before described in the declaration. The most that can be said, in regard to the declaration, is, that the “ title is defectively stated,” which is cured by verdict. If it had been said that the plaintiff brought an action of slander against Wilson, then the declaration would have been incurably defective, as counting upon a “defective title.”
Judgment affirmed.