
    
      Benj. F. Sims, Ex'or of Nathan Sims, vs. Milton Goudelock.
    
    Apromise by defendant to N. S. to pay the debt of N. S. to athird person, construed to he, in effect, a promise to indemnify N. S. against the debt: held, therefore, that until N. S., or his executor, paid the debt, ho had no right of action against the defendant.
    Before payment of the debt the executor of N. S. filed a bill in Equity to compel defendant to pay it, and failed: held, that the decree in Equity was no bar to the action at law of the executor brought after he had paid the debt.
    The statute of limitations did not commence to run in favor of defendant until the executor of N. S. had paid the debt.
    An admission of the undertaking and that he had not paid the debt, made by defendant in his answer to the bill in Equity, held, to be sufficient to take the case out of the statute of limitations.
    
      Before Wardlaw, J., at Union. Fall Term, 1852.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an action of assumpsit, brought to recover money which the plaintiff, as executor, has paid to James J. Caldwell, and which, he says, the defendant is bound to reimburse.
    
      “ The counts are, indeb. assumpsit for money paid, and special counts on promises to indemnify, to pay, &c. The pleas are, non assumpsit, the statute of limitations, and former adjudication of the matter in controversy.
    
      “ A general statement of the transactions out of which this case arises, may be found, along with much other matter, in the report of the case of Sims vs. Aughlery, 4 Strob. Eq. 103. The following summary may be sufficient for understanding the points now adjudged.
    
      “ Nathan Sims was the brother of Col. Reuben Sims. The children of Reuben Sims filed a bill in Equity, against one Gordon, administrator of Stevens, to establish their right to certain slaves. Nathan Sims, in June,' 1833, was appointed guardian ad litem of five of the children, then infants. A decree was made in that case, that the slaves should be delivered to the complainants, upon their paying to the defendant $1,800. N. Sims advanced money, took charge of the property of the children, gave his personal obligation for debts contracted in reference to that property, and otherwise assisted and befriended the children. In 1841, the slaves were delivered over by him, and were divided between the children. In October, 1842, the sons and sons-in-law of Reuben Sims, met Nathan Sims, for the purpose of making a settlement of accounts between them and him. John F. Sims and James N., Sims were sons, John P. Sartor, A. R. Aughtery, and Milton Goudelock, were sons-in-law, the last having married a daughter between the division of the slaves and the meeting for settlement. At this meeting, all the demands of Nathan Sims, and other charges against the property that had been divided, were set down by Nathan Sims — calculations were made — the applications which, according to arrangements between him and Reuben Sims, Nathan Sims had made to his demands of eleven slaves, was recognized, and the balance of what N. Sims had paid, and of what he was liable for, was divided between the sons and sons-in-law — to each one of them being assigned the payment of a certain portion of the debt to N. Sims, or of certain liabilities which he had incurred. The witness, John P. Sartor, who now speaks of this settlement, cannot remember what was assigned to M. Goudelock, nor can he say, positively, that a paper now shewn to him, and which he knows is in the hand-writing of Nathan Sims, is the paper which was made at that settlement; nor that the paper which was made, had names or initials of names set opposite to the several debts — but he knows that'this paper is, in general appearance, like the one then made, and that there was a division of debts made, according to which several payments were afterwards made. At the settlement, M. Goudelock complained of the unsoundness of a negro woman that had been assigned to his wife, and Nathan Sims took her back at the valuation that had been made of her — he also said something about a sheioing that should be made, but he and all others seemed finally to be satisfied with what was done.
    “Nathan Sims died in 1844. In 1847, Benjamin F. Sims, executor of Nathan, filed a bill in Equity, against Aughtery, Sartor, Goudelock, John F. Sims, and the other children of Reuben Sims. (See report, 4 Strob. Eq. 103.) The bill charged that Aughtery, as administrator of David H. Sims, had commenced actions of trover, and that John F. Sims had brought two actions of debt on obligations of Nathan Sims, and that all of those actions were unconscientious, and contrary to the settlement made in 1842; and against them injunctions were prayed. The bill further set forth the settlement of 1842, and charged that the particulars of it were contained in a paper which is in the hand-writing of Nathan Sims, and of which exhibit D is a copy, (which paper is the one shewn to the witness aforementioned, and contains a list of demands, notes," &c., with the initials of the name of some son or son-in-law set opposite to each — G. for Goudelock, being opposite to a note to James J. Caldwell, then amounting, principal and interest, to $415.) The bill further charged, that all the items contained in the list, had been paid by some of the defendants, according to exhibit D, except the note to J. J. Caldwell, which had not been paid by Goudelock, and a note to Thomson & Dawkins, which had not been paid by James N. Sims. And the bill, amongst other things, prayed that the settlement should be confirmed, and payment of the debts yet unpaid should be ordered according to it, or that, if it should be opened, all errors on either side should be corrected.
    “ The answer of the defendants, Milton Goudelock and others, amongst other things, admits that exhibit D is a copy of a paper that was made at their meeting with Nathan Sims, and that they “ did agree to pay according to exhibit D,” but do not hold themselves bound, require proof, and do not consider the settlement conclusive.
    “ The circuit decree in that case, which was confirmed in the Court of Appeals, orders that the actions commenced by Aughtery and John F. Sims he enjoined, proceeding upon the ground that the settlement of October, 1842, was final and conclusive. The opinion of the Court of Appeals, confirming the decree, seems to hold that the objection of multifariousness might, if it had been urged in proper time, have prevailed against the bilb which connects the separate and dissimilar cases of Aughtery and John F. Sims ; but neither the circuit decree nor the opinion of the Court of Appeals, says a word about the Caldwell note, or the other unpaid demand ; or indeed contains anything which seems to require that there should have been any defendants besides Aughtery and John F. Sims. The printed report of the case makes no mention of any appeal by the complainant — but a manuscript notice of appeal, adduced on this trial, shows that the complainant did give notice of appeal, on the ground that payment of the debts to Caldwell and to Thomson and Dawkins, should have been ordered. It is now admitted that the debt to Thomson & Dawkins was paid by James N. Sims, before hearing of the appeal — and the plaintiff now insists that it must be presumed that the complainant’s appeal was abandoned.
    “By evidence now offered, it appears that J. J. Caldwell was solicitor for the complainants in the Equity case of the children of Reuben Sims against Gordon, administrator; that a sealed note of Nathan Sims was made to J. J. Caldwell, for $347 25, dated January 6, 1840, and payable one day after date; that the amount of that, note in October, 1842, was $415, and that upon it a suit was commenced in September, 1848 — Caldwell vs. B. F. Sims, executor of Nathan Sims — -judgment recovered in April, 1849, and fi. fa. thereon satisfied by payments made by B. F. Sims, of which the amount of debt and interest was $584 25.
    “ After argument, I was of opinion that no promise to indem-' nify or reimburse had been shown — but that there had been shown a promise of the defendant to pay the amount of the Caldwell note; which was a promise, not to Caldwell, nor for his benefit, but to Nathan Sims, and which was absolute— equally obligatory, whether N. Sims had or had not paid to Caldwell — that against the promise shown, the statute of limitations began to run from the time of the promise, or from the expiration of a reasonable time thereafter — and that the matter now in controversy had been presented for adjudication to a Court of competent jurisdiction, was in issue .before it, and either had been decided, or might have been; so that further agitation of it is concluded, unless it may be by application to that Court for further order.
    
      “ I ordered a non-suit, with leave for the plaintiff to move to set it aside.”
    The plaintiff appealed and now moved this Court to set aside the non-suit on the grounds:
    1. Because the plea of res judicata, or that the matter had previously been adjudged and determined in the Court of Equity, in the case of Benjamin F. Sims, ex’or, et al., vs. A. R. Aughtery et al., should have been overruled.
    2. Because- the case was not barred by the statute of limitations, as the statute did not commence to run until the 8th of October, 1849, the time when the plaintiff paid off the note Nathan Sims, his testator, had given to the Hon. James J. Caldwell, as agent or next friend of the defendant’s wife, and for her benefit, which defendant had expressly promised to pay.
    3. Because all the pleas in bar should have been overruled, as the law and justice of the case, as plaintiff supposes, was with him.
    Thomson, for the motion.
    
      Herndon, contra.
   The opinion of the Court was delivered by

O’Neall, J.

1st. The plea of res judicata, ought not to avail the defendant. For notwithstanding the matter is set out, in the bill, and the Court is asked to compel the defendants to pay all the notes and obligations of Nathan Sims which they had undertaken to pay, yet the Court did not at all notice that part of the prayer. This was no doubt done advisedly. For the complainant had no right to assume, that this defendant and his co-defendants would not pay, as they had undertaken lo do, except where his testator, or he after his death, had been compelled to pay, or placed in some danger thereby. Until the debt to Chancellor Caldwell was paid by him, he had no right of action against the defendant. This was done subsequent to the decree in Chancery, and cannot be concluded by it.

2d. Nor can the statute of limitations avail the defendant. In the settlement of the 28th October, 1842, the defendant undertook to pay the debt to Chancellor Caldwell, and thus to release Nathan Sims. Until default was made, in this promise, the statute could not run. For until then, Sims had no action. It is in this respect, like a contract of indemnity express or implied ; in such a case until the damage is incurred, the party to be indemnified cannot sue. Peters vs. Barnhill, 1 Hill, 234; Legare & O'Hear vs. Fraser, 3 Strob. 377.

But on turning to the defendant’s answer, filed 7th June, 1848, an express admission of his undertaking is found, and that he had not then paid the 'debt to Chancellor Caldwell. This, under the rule of Young vs. Monpoey, 2 Bail. 278, would prevent the bar of the statute, inasmuch as the action was brought 20th February, 1851, less than four years after the admission. The motion for a new trial is granted.

Fbost, Withers and WhitNer, JJ., concurred.

Wardlaw, J.

I concur — agreeing now that the promise made hy defendant to pay the Caldwell bond, may be fairly construed to be a promise to relieve the obligor from the obligation — in effect to indemnify him against it: — and therefore that the statute of limitations did not begin to run until the payment by the obligor: — But I do not agree that the answer, which, whilst it admits the making of the promise denies its validity and shows the defendant’s refusal to perform it, would have interrupted the statute, if it had previously began to run.

Under the view now taken of the promise, there was propriety in the Court of Equity refusing’ to decree against this defendant before payment to Caldwell: so the objection of res judicata does not apply.

Motion granted.  