The opinion of the Court was read at the ensuing October term as drawn up by

On a former occasion, when this cause was before us on a motion to set aside a former verdict, we granted a new trial on the ground that parol evidence had been improperly admitted to the jury to shew that a larger sum than was due to the defendant was inserted in tlio confession or recognizance by mistake ; because it was not competent, for the plaintiff, for such a purpose, to contradict the express language and stipulations of the recognizance, under his own hand and seal. And as the jury had found their verdict merely on the above mentioned principle, it was set aside, and an intimation given to the counsel, that if the plaintiff could prove that the excess was inserted in the recognizance without bis consent or knowledge, and by the management and fraud of the defendant, parol evidence would be admissible in that manner to impeach the recognizance as well as any other deed. On the last trial such evidence was offered and ruled to be admissible; and upon the strength of it the jury returned their verdict for the plaintiff. But as the fraud complained of was committed more than six years before the commencement of the action, it was contended *12that it was barred by the statute of limitations. The parol evidence offered in answer to this objection was, though opposed, admitted, and decided by the presiding Judge to be sufficient, if believed, to take the case out of the -statute. So that the only question is whether his decision was correct.

It seems to be a well settled principle that when the original promise is proved by legal evidence, it may, after the expiration of six years, be revived or taken out of the statute by proof which would not have been sufficient to prove the original promise; for instance, no consideration need be proved. In the case of Gibbons & al. v. Mc Casland, 1 Barnw. & Ald. 690, it was decided that the defendant’s testator, having entered into a guaranty in writing, and become liable more than six years before the commencement of the action, the case was taken out of the statute of limitations by a verbal promise, made within the six years, “ that the matter should be arranged.” In the case before us the promise of the defendant was that “ if there was any mistake in the confession, he would rectify it, or it should be rectified.” It is true, such a promise could not have been legally proved to support the original action, as we have already decided, any more than parol evidence could have been legally admitted to prove the guaranty in the case of Gibbons al. v. McCasland; but the question is whether it may not be sufficient to relieve the case from the operation of the statute. The promise had reference to the subject matter of the dispute between the parties, namely, the excess in the confession j and though this, according to the finding of the jury, was a fraud in respect to the defendant, yet it was certainly nothing more than a mistake in respect to the plaintiff. Does not the language of the defendant amount to this ? If there is any excess in the confession “ arising from what Morton Calls a fraud, but I call a mistake, justice shall be done to him and I will account to him for the amount of it.” When the proof as to the new promise was offered, the question was before the jury whether there was an excess included in the recognizance by the management and fraud of the defendant. The character of the transaction was the essential point, before the jury, and not merely the transaction itself; not only the fact and amount of excess, *13but whether it was included in the recognizance by the defendant’s fraud. He promised, if there was any such excess, it should be accounted for; the jury have found that there was, and have also found it to have been the consequence of the fraudulent act of the defendant. His conditional promise has thus become absolute by the verdict of the jury. In accordance with the above principle is the case of Bristow & al. v. Eastman, Peake’s Ca. 223. It was an action for money had and received to recover a sum which the defendant had embezzled and fraudulently appropriated to his own use. The defence was infancy, the sufficiency of which, in a case of fraud was not admitted by Lord Kenyon, but the point was not decided by him; because the plaintiff not only proved the fraud by the confession of the defendant, but also a promise of payment, after he came of age; and so the plaintiff obtained a verdict. Fraud was the gist of that action as it is of the present one ; and for the same reason that a promise of payment destroyed the defence of infancy in that case, a new promise (which the jury have found) has taken this case out of the statute of limitations. In our opinion the ruling was correct in both instances ; and the question whether correct or not, is the only one reserved. We therefore have no occasion to answer the argument, that the plaintiff has lost his remedy, by neglecting to defend the real action on the ground of the fraudo

Judgment on the verdict.