The greatest confusion exists in regard to the question whether promises to indemnify are within the statute. It has been pointed out59 that part of the confusion is due to an attempt to treat all promises of indemnity alike, an attempt which is indicated in speaking of promises to indemnify, by emphasizing the word "indemnify" without consideration of the contingency against which the promisor undertook to indemnify. A promise to Indemnify a creditor against loss if he sells goods to another,60 or advances money to him,61 is certainly a promise to answer for the debt or default of another, and of course within the statute; yet the use of the word indemnify in such a transaction is entirely proper.62 It is therefore a primary question whether the promisor agrees, not merely to indemnify, but to indemnify for the debt, default, or miscarriage of another. If not, there can be no question of the statute. The promise to indemnify against loss by fire has obviously nothing to do with guaranty.63 A promise to indemnify against loss from the act of a contractor, was held within the stat-ute. Cf. Kleinman v. Auerback, 82 N. Y. Misc. 436,143 N. Y. S. 1033, and Merriman v. McManus, 102 Pa. 102, where the general contractor had abandoned work before the promise whs made by the mortgagee to pay for the work; and Boeff v. Rosenthal, 37 N. Y. Misc. 852, 76 N. Y. 8. 988, where the mortgagee's promise was held to be taken in lieu of the contractor's liability, in all of which cases the new promise was lightly held not within the statute. See also Meraerau Co. v. Washburn, 6 N. Y. App. Div. 404, 39 N. Y. S. 664.

59 Brandt on Suretyship, Sec. 70.

60Green v. Menominee Tribe of Indians, 46 Ct. Cl. 68.

61 Bennighoff v. Bobbins, 54 Mont. 66, 166 Pac. 687.

62 In Stratton v. Hill, 134 Mass. 27, 30, Field, J., said: "It is sometimes said that a mere promise of indemnity is not within the statute. Aldrich v. Ames, 9 Gray, 76; Wildes v. Dudlow, L. R. 19 Eq. 198. But whatever the promise may be called, if it is 'a special promise to answer for the debt, default or misdoings of another,' and that is its principal object, it would seem that it is within the statute. Cripps d. Hartnoll, 4 B. & S. 414; Dows v. Swett, 120 Mass. 322." See also Cheesman v. Wiggins, 122 Ind. 352, 23 N. E. 94S.

63 An oral contract of insurance is valid. Relief F. Ins. Co. v. Shaw, 94 third person has equally little to do with guaranty if that third person was under no duty to the promisee to refrain from causing the loss or to make it good.64 But a contract to indemnify an employer against loss from the dishonesty of an employee - a contract of fidelity insurance - is a contract to answer for the default of the employee's duty to his employer, and is within the statute.65 On the other hand, no promise is within the statute by which the promisor agrees to assume the primary liability, not only as between himself and the promisee, but as between himself and any third persons.66 An oral promise, therefore, to one who signs negotiable paper for the accommodation of the promisor that the latter will indemnify him, or save him harmless, is valid; 67 as is any other promise to indemnify the promisee for becoming surety for the promisor. It is in regard to

U. S. 574, 24 L. Ed. 291; Insurance Co. of North America v. Bird, 176 111. 42, 51 N. E. 686; MoQuaid v. Etna Ins. Co., 226 Mass. 281, 115 N. E. 428; Quinn-SliepherdBon Co. v. United States Fidelity etc. Co. (Minn.), 172 N. W. 603; Hicks v. British American Assur. Co., 162 N. V. 284, 56 N. E. 743, 48 L. R A. 424; Hartford F. Ins. Co. v. Whitman, 75 Ohio St. 312, 79 N. E, 459, 9 Ann. Cas. 218.

64 As in Patrick v. Barber, 78 Neb. 823, 112 N. W. 358.

A contract by one insurance company to reinsure another is therefore not within the statute. Bartlett v. Fireman's Ins. Co., 77 Iowa, 155, 41 N. W. 601; Merchant v. O'Rourke, 111 Ia. 351, 82 N. W. 759. The opposing decision of Egan v. Fireman's Ins. Co., 27 Lb. Ann. 368, is indefensible.

65Wainwright Trust Co. v. United States Fidelity etc. Co. (Ind. App.), 114 N. E. 470; Commonwealth v. Hin-son, 143 Ky. 428, 136 8. W. 912, L. R. A. 1917 B. 139, Ann. Cas. 1912 D. 291. In Quinn-Shephordaon Co. v. United States Fidelity Ac Co. (Minn.), 172 N. W. 693, the court while admitting the logical force of the preceding cases refused to follow them.

66A promise by a tobacco seller to reimburse one with whom the promisors dealt for any loss suffered from guaranteeing their tobacco on reselling it, is not within the statute. Robertson v. Willhoite, 157 Ky. 58, 162 S. W. 563.

So where a promise was made to a landlord, in order to induce him to cancel a lease, that the promisors would save him harmless from any loss of rent he might suffer. Smith v. Schneider, 84 N. Y. S. 238. See also Bullock v. Lloyd, 2 C. & P. 119; Adams v. Dansey, 6 Bing. 506; Marcy v. Crawford, 16 Conn. 549, 41 Am. Dec. 158; Green v. Brookins, 23 Mich. 48, 9 Am. Rep. 74; Hull v. Brown, 35 Wis. 652.

67Howes v. Martin, 1 Esp. 162; Adams v. Dansey, 6 Bing. 506; Lerch v. Gallup, 67 Cal. 595, 8 Pac. 322; Marcy v. Crawford, 16 Conn. 549, 41 Am. Deo. 158; Goodspeed v. Fuller, 46 Me. 141, 71 Am. Deo. 572; Weld v. Nichols, 17 Pick. 538; Green v. Brook-ins, 23 Mich. 48,9 Am. Rep. 74; Allaire v. Ouland, 2 Johns. Cas. 52; Evans v. Mason, 1 Lea, 26; Dorwin v. Smith, 35 Vt. 69; Hull v. Brown, 35 Wis. 652.

promisee to indemnify those who become sureties for the debts of third persons, given as an inducement to the sureties for entering into the obligation that the question has given rise to the greatest difficulty. In the first place it must be asked - Was the principal debtor also bound to indemnify the surety? If so, even though that promise is an implied one, the new promisor is entering into an identical obligation which should be subject to the same rule which governs all promises to satisfy the obligations of another. If that rule is that a new promise is within the Statute of Frauds, unless the original indebtedness is discharged or the new promisor receives such new and beneficial consideration as to make the obligation on his part primary, the inquiry must be made in each case - What consideration has the new promisor received for his promise to indemnify the surety? Was that consideration such as to make the duty of indemnity primarily his? In the cases which have arisen this will not generally be true, though under the broad rule sanctioned by the Supreme Court of the United States68 some business advantage frequently accrues to the new promisor. On the other hand, if the test to be applied is whether the new promisor undertakes unconditionally to pay the debt of another, or merely agrees to pay if the principal debtor makes default in his duty to indemnify, the promise to indemnify the surety is not within the statute, since the promisor agrees to give such indemnity absolutely as soon as the surety suffers loss and not conditionally on the principal debtor making default in his duty to indemnify.69 In this class of cases the English decisions clearly adopt the latter test.70 How unsatisfactory this would become surety on a bail bond in a civil case; Lord Denman, C. J., saying: "that the arrested debtor, who obtains his freedom by being bailed, undertakes to his bail to keep them harmless, by paying the debt, or surroundings," In Cripps p. Hart-noll, 4 B. ft S. 414, the court said: "But there is a great distinction between that case {Green p. Cresswell), and the present. Here the bail was given in a criminal proceeding; and, where bail is given in such a proceeding, there is no contract on the part of the person bailed to indemnify the person who became bail for him. There is no debt, and with respect to the person who bails, there is hardly a duty; and it may very well be that the promise to indemnify the bail in a criminal matter should be considered purely as an indemnity, which it has been decided to be." But in later English cases, Green p. Cresswell seems overruled. Batson v. King, 4 H. & N. 739; Wildes v. Dudlow, L, R, 19 Eq. 198; In re Bolton, 8 Times L. R. 668; s. c. 36 Sol. J. 608; Hoyte p. Hoyle, [1893]1 Ch. 84; Guild p. Conrad, [1894] 2 Q. B. 885. In the case last cited, the court rested its decision firmly on the distinction between promises to pay at all events, and promises to pay conditionally on default.