Where one owes a debt to another, and promises to pay his debt to a creditor of such other party, the promise is not within the statute; Dearboru v. Parks, 5 Greenl. (Me.) 81, 17 Am. Dec. 206 ; 3 B.. & C. 842.
Second, if the new promise is for a lia bility then first incurred, it is original, if exclusive credit is given to the promisor; Chambers v. Robbins, 28 Conn. 544 ; Browne, Stat. Fr. § 195. Whether exclusive credit is so given is a question of fact for the jury ; Brooke v. Waring, 7 Gill (Md.) 7. Merely Charging the debtor on a book-account is not conclusive.
Whether promises merely to indemnify come within the statute is not wholly set tled ; Browne, Stat. Fr. § 158; Brandt, Sur. & Guar. §§ 59, 61. In many cases they are held to be original promises, and not within the statute; Chapin v. Merrill, 4 Wend. (N. Y.) 657. But few of the cases, however, have been decided solely on this ground, most of them falling within the classes of original promises before specified. On principle, such contracts seem within the statute If there is a liability on the part of any third person to the promisee. If not, these promises would be original under class seven, above. Where the indemnity is against the prom isor's own default, he is already liable with out his promise to indemnify; and to make the promise collateral would make the stat ute a covert fraud ; 10 Ad. & E. 453; Alger v. Scoville, 1 Gray (Mass.) 391; Harrison v. Sawtel, 10 Johns. (N. Y.) 242, 6 Am. Dec. 337 ; Jones v. Shorter, 1 Ga. 294, 44 Am. Dec. 649; Dunn v. West, 5 B. Monr. (Ky.) 382; Beaman's Adm'r v. Russell, 20 Vt. 205, 49 Am. Dec. 775 ; Holmes v. Knights, 10 N. H. 175; Stocking v.. Sage, 1 Conn. 519 ; Linscott v. Fernald, 5 Me. 504. The weight of American authority is said to be in favor of applying the statute to cases of indemnity ; Brandt, Sur. & Guar. § 59, n. When the promise to indemnify is in fact a promise to pay the debt of another it is within the statute. See Mallory v. Gillett, 21 N. Y. 412. A promise to indemnify another against loss in becom ing surety on a replevin bond is within the statute ; Easter v. White, 12 Ohio St. 219. So on a bond for stay of execution; v. Wolfe, 111 Pa. 471, 4 Atl. 15, 56 Am. 291. But a promise to indemnify one if he will become bail in a criminal case has been held not within the statute ; 4 B. & S. 414.
A verbal promise to save certain parties harmless from all loss by promisees as sure ties on account of a bond signed at prom isor's request is valid ; Hawes v. Murphy; 191 Mass. 469, 78 N. E. 109; and so where a mortgagee agreed verbally to indemnify a purchaser of part of the mortgaged property against judgment liens; Peterson v. Cres son, 47 Or. 69, 81 Pac. 574; a verbal promise by an attorney to sureties on an appellee's bond to protect them ; Esch v. White, 76 Minn. 220, 78 N. W. 1114 ; but an oral prom ise to reimburse plaintiff as surety on the bond of another for any loss resulting there from, was held to be within the statute ; Craft v. Lott, 87 Miss. 590, 40 South. 462, 6 Ann. Cas. 670. An oral promise to indemni fy another for becoming surety on the bond of a third, is not within the statute; Hartley v. Sandford, 66 N. J. L. 40, 48 Atl. 1009. A parol promise by a surety on a sheriff's boud to indemnify a co-surety against any loss, is within the statute; Wolverton v. Davis, 85 Va. 64, 6 S. E. 619, 17 Am. St. Rep. 56 ; but a verbal agreement by the principal that he would save harmless the sureties from lia bility on his bond, is valid as an original un dertaking ; Barth v. Graf, 101 Wis. 27, 76 N. W. 1100.
A contract of insurance is not within the statute; Mattingly v. Ins. Co., 120 Ky. 768, 83 S. W. 577.
Third, guaranties may • be given for lia bilities thereafter to be incurred, and will attach when the liability actually accrues. In this class the promise will be original, and not within the statute, if credit is given to the promisor exclusively ; 2 Term SO.. See Pomeroy v. Patterson, 40 Ill. App. 275. But where the future obligation is contingent merely, the new promise is held not within the statute, on the ground that there is no principal liability when the collateral one is incurred; Browne, Stat. Fr. § 196. But this doctrine is questionable if the agreement dis tinctly contemplates the contingency ; Car ville v. Crane, 5 Hill (N. Y.) 483, 40 Am. Dec. 364. An offer to guarantee must be ac cepted within a reasonable time; but no no tice of acceptance is required if property has been delivered under the guaranty ; Paige v. Parker, 8 Gray (Mass.) 211; Farmers' & Mechanics' Bank v. Kercheval, 2 Mich. 511; Doud v. Bank, 54 Fed. 846, 4 C. C. A. 607 ; Davis v. Wells, 104 U. S. 159, 26.L. Ed. 686.