
    Field’s Executor v. Spotswood.
    October Term, 1794.
    Promise to indemnify — What a Sufficient Consideration to Support — Case at Bar. — Declaration, stating-that the plaintiff, as agent of tbe defendant’s father, made a lease of certain lands of -which the father was seised in tail, to D., who assigned to S., •and that the plaintiff and D. bound themselves in a bond to S. to obtain a confirmation of tbe lease from the defendant, the issue in tail, in possession, ■on the usual terms of his other leases. The defendant promised to make the lease, and for many years received rents from S. and then turned him out of possession. S. then sued D. upon his bond, and recovered damages; and on a suit by D. against tbe plaintiff, the same damages were recovered from the plaintiff; that pending the above suit, the defendant promised 1). to indemnify him and the plaintiff against the suit of S. The consideration stated in this declaration is sufficient to maintain the action against the defendant for breach of his promise to indemnify.
    •Same — Witnesses—Competency.—D. was a competent witness for the plaintiff in the above action, as he was indemnified by his recovery against the plaintiff; and the promise of the defendant to indemnify. though made to D„ was intended for the plaintiff, it being made in answer to a letter from the plaintiff on the subject of saving him harmless.
    This was an action on the case brought by the appellants against the appellee in "the County Court. The declaration contained two counts: the 1st, a special one, stating, that the plaintiff's testator was authorised by the defendant’s father to lease -out certain lands of which he was seized in tail. That he made a lease to one Dillon of a parcel of the said land for three lives; that Dillon assigned the same to Sisson, and that Field and Dillon gave their bonds to Sisson with condition to procure for him a lease from the defendant, (on whom the estate tail had by that time descended,) on the usual terms of his former leases, and that the defendant promised the said Sisson *to make him a lease. That the defendant for many years received rents from Sisson, and then turned him out of possession; that Sisson sued Dillon upon the bond and recovered damages, and that Dillon afterwards upon motion recovered over against Field: that whilst the suit was depending, the defendant in consideration of the premises promised Field to save the said Dillon and the said Field harmless on account of the said bond and suit aforesaid, and of their engagements to Sisson. The breach assigned is, that the defendant has failed to indemnify &c. The 2d count was for money laid out and advanced for the defendant’s use. Verdict for the plaintiff. An exception was taken to the evidence of Dillon, who proved, that he carried a letter from Field to the defendant upon the subject of his indemnifying the said Field, and that immediately after reading the letter, the defendant promised that Field should not suffer on account of his contract for the said lease &c. The judgment of the County Court was reversed in the District Court of Fredericksburg, from which this appeal was prayed.
    Williams for the appellant.
    It is unnecessary to enquire whether the 1st count be sustainable or not, although I have no doubt myself but it is. The 2d count is certainly a good one, upon which the plaintiff below might well recover. The only question then will be, whether the inferior court did right in admitting the evidence stated in the bill of exceptions? The witness was certainly disinterested, and his testimony was properly left to the jury, who were the only judges of the weight to be given to it. They were satisfied that it supported the claim of the plaintiff, and found for him.
    Washington for the appellee.
    The first count certainly cannot be sustained, because the consideration stated being altogether past, it was not sufficient to support a valid promise. The undertaking of Field, either as it respected the lease, or his bond to Sisson, was not induced by the request, knowledge, or permission of the defendant. Both had been given, before Spotswood was consulted upon the subject. The responsibility which Field drew upon himself, was the result of his own conduct; unauthorised by the defendant, and no new motive appearing to induce the undertaking of the defendant, it is clearly a nudum pactum. The acceptance of rent by the defendant might possibly have amounted to a confirmation of the lease, and might have subjected the defendant to the action of Sisson for ousting him from the possession. But the present, is a different action brought by a different person, and for a different cause of action — *If the first count be without consideration, the second cannot be supported, because the money paid by Field could not be for the defendant’s use, and the whole case appears in the record.
    As to the exception, my objection is, that the promise being made to Dillon and not to Field, the latter could not bring this suit and avail himself of that promise. 1 Esp. 105.
    
      
      See monographic note on “Consideration” appended to Jones v. Obenchain, 10 Gratt. 259.
    
   The PRESIDENT

delivered the opinion of the court.

The bill of exceptions furnishes no ground for reversing the judgment of the County Court. Dillon was a disinterested witness, he having been indemnified by his recovery against Field, and the promise, tho’ made to him, was intended for Field, it being given in answer to the letter of Field upon the subject of saving him harmless.

As to the want of consideration in the first count, which has been relied upon at the bar, the court is of opinion that there is nothing in the objection. A tenant in tail might at that time have made leases for three lives, under certain restrictions prescribed by the act of Assembly; but if he could not, yet surely he might promise to make a lease, and might be compelled to pay damages for breach of such a promise. In this case, it is evident that he did make such a promise, and received rent in consequence of it, which was a sufficient consideration to uphold the undertaking.

The judgment of the District Court must be reversed, and that of the County Court affirmed.  