If A promises to indemnify B against certain liabilities, the question of the application of this clause of the statute of frauds depends on A's previous relation to such liability. If the liability is A's primarily and A induces B to assume this liability to C by promising to indemnify B, A's promise is to pay his own debt, not that of another, and the contract is not within the statute.1 Thus if A induces B to become surety for him,2 or for himself and X,3 though the business is conducted in the name of X alone,4 or to accept a bill of exchange drawn on B by A5 under promise by A to indemnify B against loss by reason of such transaction, A's promise is not within the statute of frauds. So if A is already liable as surety for C, and he promises B to repay any money advanced by C to pay such debt, his promise is not within the statute.6

4 Warner v. Willoughby, 60 Conn. 468; 25 Am. St. Rep. 343; 22 Atl. 1014; Heggie v. Smith, 87 111. App. 141; Wookey v. Slemmons, 65 111. App. 553; Parker v. Dillingham, 129 Ind. 542; 29 X. E. 23; Gill v. Her-rick, 111 Mass. 501; Fuller, etc., Co. v. Houseman, 117 Mich. 553; 76 N. W. 77; Dupius v. Improvement Co.. 88 Mich. 103; 50 X. W. 103; Birchall v. Neaster, 36 O. S. 331; Lewis v. Mfg. Co., 156 Pa. St. 217; 27 Atl. 20; Loftus v. Ivy, 14 Tex. Civ. App. 701; 37 S. W. 766.

5 Wood v. R. R., 131 N. C. 48; 42 S. E. 462.

1Lerch v. Gallup, 67 Cal. 595; 8 Pac. 322; Smith v. Delaney, 64 Conn. 264; 42 Am. St. Rep. 181; 29

Atl. 496; Tighe v. Morrison, 116 X. Y. 263; 5 L. R. A. 617; 22 N. E. 164; Mays v. Joseph, 34 O. S. 22; Evans v. Mason, 1 Lea (Tenn.) 26; Farnum v. Chapman, 61 Vt. 395; 18 Atl. 152; Barth v. Graf, 101 Wis. 27; 76 N. W. 1100.

2 Barry v. Ransom, 12 X. Y. 462; Barth v. Graf, 101 Wis. 27; 76 X. W. 1100. See a similar principle in Sec. 621.

3 Tighe v. Morrison, 116 X. Y. 263; 5 L. R. A. 617; 22 X. E. 164 (A and X being administrators).

4 Smith v. Delaney, 64 Conn. 264; 42 Am. St. Rep. 181; 29 Atl. 496.

5 Guild v. Conrad (1894), 2 Q. B. 885.

If A, in order to induce B to become surety for C, promises to indemnify him against any loss arising out of such suretyship, the question of the application of the statute of frauds depends on the view of such transaction taken by the courts. A's promise may be regarded as a promise to B to pay B's debt to the obligee. If this view of the essential nature of the transaction is entertained, A's promise is not within the statute of frauds.7 Other authorities look on A's promise as a promise to pay C's debt to B if C does not, and hence within the statute.8 Thus a promise by a payee to save certain makers harmless is within the statute,9 and so is a contract between creditors who are working together to collect, their claims whereby they agree to pro rate any loss which either sustains in enforcing his claim.10 If A is surety for B and C, and to induce B to pay the entire debt A agrees to indemnify him for one-half the amount, A's promise is within the statute.11

6 Sweet v. Colleton, 96 Mich. 391; 55 N. W. 984.

7 Marcy v. Crawford, 16 Conn. 549; 41 Am. Dee. 158; Anderson v. Spence, 72 Ind. 315; 37 Am. Rep. 162; overruling, Brush v. Carpenter, 6 Ind. 78; Mills v. Brown. 11 la. 314; George v. Hoskins (Ky.), 30 S. W. 406; Jones v. Letcher, 13 B. Mon. 363; Aldrich v. Ames, 9 Gray (Mass.) 76; Boyer v. Soules, 105 Mich. 31; 62 N. W. 1000; Esch v. White. 76 Minn. 220; 78 N. W. 1114; Fidelity, etc., Co. v. Lawler, 64 Minn. 144; 66 N. W. 143; Minick v. Huff, 41 Neb. 516; 59 N. W. 795; Cortelyon v. Hoagland, 40 N. J. Eq. 1; Sanders v. Gillespie, 59 N. Y. 250; Harrison v. Sawtel, 10 Johns. (N. Y.) 242; 6 Am. Dec. 337; Bea-man v. Russell. 20 Vt. 205; 49 Am. Dec. 775; Faulkner v. Thomas, 48 W. Va. 148; 35 S. E. 915; Vogel v.

Melms, 31 Wis. 306; 11 Am. Rep. 608.

8 Spear v. Bank, 156 111. 555; 41 N. E. 164; affirming, 49 111. App. 509; May v. Williams, 61 Miss. 125; 48 Am. Rep. 80; Hurt v. Ford, 142 Mo. 283; 41 L. R. A. 823; 44 S. W. 228; Bissig v. Britton, 59 Mo. 204; 21 Am. Rep. 379; Hartley v. Sandford, 66 N. J. L. 627; 55 L. R. A. 206; 50 Atl. 454; reversing, 48 Atl. 1009; Kelsey v. Hibbs, 13 O. S. 340; Easter v. White, 12 O. S. 219; Nugent v. Wolfe, 111 Pa. St. 471; 56 Am. Rep. 291; 4 Atl. 15; Wolver-ton v. Davis, 85 Va. 64; 17 Am. St. Rep. 56; 6 S. E. 619.

9 Hurt v. Ford, 142 Mo. 283; 41 L. R. A. 823; 44 S. W. 228.

10 Spear v. Bank, 156 111. 555; 41 N. E. 164; affirming, 49 111. App. 509.

The confusion in the American authorities is due largely to their adherence to different inconsistent English authorities. The original English rule was that such a contract was not within the statute.12 This case was subsequently either distinguished or overruled,13 and finally Green v. Creswell was overruled14 and the original doctrine established. The vacillation in England has led, first, to the division in American cases already set forth; and, second, to an attempt on the part of some courts to distinguish the cases where A is also a surety with B from those where B becomes a surety and A does not.

If A is already liable as surety for C, and to induce B to sign as co-surety A promises to indemnify him against loss, some authorities hold that such promise is within the statute,15 others that it is not.16

Agreements between indorsers of the same instrument,17 or cosureties,18 fixing the amounts of their respective liabilities, are generally held not to be within the statute.

If there is no specific liability of C's against the effect of which A promises B indemnity, A's promise is not within the statute.19 Hence A's promise to save B harmless from liability on corporate stock,20 or a contract to insure,21 or re-insure,22 are none of them within the statute.

11 Cheesman v. Wiggins, 122 Ind. 352; 23 N. E. 945.

12 Thomas v. Cook, 8 Barn. & Cres. 728 (where A was a party to the instrument).

13 Green v. Creswell, 10 Ad. & El. 453 (A was not a party). The court said that the doctrine of Thomas v. Cook, supra, "taken in its full extent would repeal the statute."

14Wildes v. Dudlow, L. R. 19 Eq. 198.

15Wolverton v. Davis, 85 Va. 64; 17 Am. St. Rep. 56; 6 S. E. 619.

16 Horn v. Bray, 51 Ind. 555; 19 Am. Rep. 742; Ferrell v. Maxwell, 28 0. S. 383; 22 Am. Rep. 393.

17 Phillips v. Preston, 5 How. (U. S.) 278; Weeks v. Parsons, 176 Mass. 570; 58 N. E. 157; Faulkner v. Thomas, 48 W. Va. 148; 35 S. E. 915.

18 Rose V. Wollenberg, 31 Or. 269; 65 Am. St. Rep. 826; 39 L. R. A. 378; 44 Pac. 382.

19 See Sec. 617.

"If a promise of indemnity be not collateral to the liability of some other person to the same party to whom the promise is made it is not within the statute." Beaman v. Russell, 20 Vt. 205; in syllabus, quoted in Merchant v. O'Rourke, 111 la. 351, 355; 82 N. W. 759.