Harrison against Sawtel.
NEW YORK,
May, 1813.
WhereA.beindemnify B° suit ^inCwhieh id 'requited c.’to become B^and“promised to in-it was held to undertaking3’ Ck waT'entitied to recovet* against him the ex-heeneSputhto ¡ngeto obtai”1» surrender of
IN ERROR, on certiorari, from a justice’s court. Sawtet sued Harris on before the justice; and declared that at the spe and request of H. he, S., had become special bail ™ * °f E- P. for one Foot, in a suit brought against him by one Hallenback; by reason whereof he had laid out and expended a large sum of money, and performed labour* &c. in the-pursuit of the said Foot, in order to surrender him in that suit, &c. Defendant pleaded the general issue. It appeared that Sawtel was bail to the sheriff, in the suit in the C. P. and that at request of Harrison, (who held himself bound to indemnify Foot in that action,) Sawtel became special bail, &c. and the de fendant H. promised to indemnify him. It was also proved that the plaintiff had sustained damages in seeking Foot to surrender ^^ ^bat the defendant offered'to pay the plaintiff in goods, . and had paid him a small part of his demand. It was objected by the defendant’s counsel that the undertaking of the defendant to indemnify the plaintiff, not being in writing, was void by the statute of frauds; but the justice decided that it was an original undertaking, and overruled the objection, and gave judgment for the plaintiff.
P. Van Vechten, for the plaintiff in error.
Sedgwick, contra.
Per Curiam.
This was not a promise to pay the debt, or answer for the default, of another person. It was an original promise between the parties to it, that one of them would indemnify *245the other, if he would become special bail for a third person whom the defendant was bound to protect and save harmless in the suit. It was done at the request, and for the benefit, of the defendant, an it saved him from becoming ball himself, or procuring some other person to become bail. The case had nothing to do with the statute of frauds, and there was a consideration for the promise,, the advantage resulting to the defendant from the plaintiff’s becoming bail. The defendant being answerable for the party sued, the becoming bail for the party, at the request of the defendant, was as beneficial as if the plaintiff had become bail for the defendant himself The damages were proved by the expenses the plaintiff had been put to, in endeavouring to surrender Foot, and the defendant had acknowledged the plaintiff’s demand, and paid a part of it The recovery, therefore, was just, and the judgment must be affirmed.
Judgment affirmed.