The only question is, whether, upon the evidence, it was legally competent for the jury to find for the plaintiff:’; and we think that the jury might have found that the defendant promised to pay the costs in consideration of the settlement; or in other words, the execution of the releases. It is true that it would not be competent to show, by parol evidence, against the plaintiffs’ deed, that the existing claim was excepted; and in that respect it differs from a mere receipt not under seal.
But this contract had no existence until the contract of settlement was executed by the delivery of the releases, which formed the consideration of it. It is true that an action of trespass was pending before, in which the plaintiff might have prevailed, and might have recovered these costs as an incident; but nothing then existed in the shape of an obligation to pay, for the plaintiff might not have recovered in his action. At all events, this contract had no existence until the settlement which constituted the consideration, was perfected; and then it stood as if the defendant had promised for that consideration to pay a sum certain; in which case the release would not affect it because not then existing. The giving a promissory note at the completion of a settlement and execution of releases or receipts, is a familiar illustration. In that case the release, though general in its terms, would not affect the note, not because it was in writing, but because it was not then an existing claim. So we think it is in this case, and there must be
Judgment on the ver diet.