#### Lucas *vs*Chamberlain, &c.

Assumpsit.

67.

Appeal from the Russell Circuit.

*Assumpsit. Statute of Frauds. Principal and*surety,

Case stated.

A promise to A. to pay to B, who is absent, is in legal effecta promise to B. and may be so stated in pleadings; so of a promise to indemnify A. and B. (who is absent,) if they ■will do a certain act, is a promise to both A. and B.

*January*26.

Chief Justice Maeshaux

delivered the opinion *of*the Court.

Chamberlain and Lair brought this action of assumpsit against Lucas, upon an al'ledged .promise to indemnify them for becoming, at the request of Lucas, the sureties, with others, of J. & J. Stephens, in an injunction bond, to enjoin further proceedings on a judgment which had been replevied with the defendant, Lucas, as the only surety.

Upon the issue of *non-assumpsit,*the evidence conduced to prove that J. & J. Stephens, the original debtors, were insolvent, but that one of them had mortgaged some property to Lucas to indemnify him for becoming surety in the replevy bond on the judgment against them, that the execution on said bond had been levied on the property of Lucas, when it was stayed by the injunction in which the plaintiffs were sureties; that Lucas told Chamberlain .that if he and Lair would become sureties in the injunction bond, (whereby his property would be saved from sale,) he would indemnify them, and that they did become sureties. The injunction was afterwards dissolved and the hill dismissed with damages and costs. A judgment was obtained on the injunction bond. The execution thereon was levied, as may be inferred, on the property of the present plaintiffs, who, with sureties furnished by themselves, replevied the debt. In this state of the case the present action was brought. But it appeared upon the trial that *277an execution had issued on the last mentioned replevy bond, which was levied, as may be inferred, on property of the plaintiffs, which, according to the return, was not sold for want of bidders. The first count in the declaration setting out the case at large, states that the plaintiffs had been compelled to replevy the judgment on the injunction bond with their own sureties. The second count states that they had been compelled to pay it.

The incurring a responsibility at the request of another is itself a sufficient consideration to support a promise of indemnity. So is it if it be also a direct benefit to the promisor.

—The promise of indemnity to one if he will become the surety of a third person, is an original pro*278mise not within the statuto of frauds.

*277The Court instructed the jury that there must have been a joint request and promise to both of the plaintiffs to authorize a recovery, and refused to instruct that although there were such request and promise, they could only find nominal damages, unless the plaintiffs had actually paid the judgment on the injunction bond. And a verdict having been found for the plaintiffs for the whole amount of their liability and a new trial having been refused, the defendant prosecutes a writ of error for the reversal of the judgment’thereon.

We think there is no error in the record. Although there is no direct evidence of an immediate request and promise of indemnity to both of the plaintiffs in person, the evidence authorizes the inference of a joint request and promise, which is the more certain because Lair was not actually present when the promise was made to Chamberlain to indemnify both, .if they would become sureties. A parol promise to A. to pay to B. who is absent, is in legal effect a promise to B. and may be so stated in pleading. So a promise to A. to indemnify him and B. (who is absent,) if they will do a certain act, is in legal effect a promise to both. It is not necessary to recapitulate the circumstances which show that there was a sufficient consideration on the part of Lucas, besides the obligation incurred by the plaintiffs at his request and in consequence of his promise, the incurring of which is itself a sufficient consideration for the promise.

But the execution of the injunction bond was a direct benefit to Lucas, whose property was thereby to be relieved from the levy which had been made on it. And as between him and the plaintiffs the debt enjoined was *278his debt. His promise to indemnify the plaintiffs for entering into the injunction bond, is in no sense to be regarded as a promise to pay the debt of another, within the statute of frauds.' And even if he had been an entire stranger to the debt, his promise to indemnify the plaintiffs for becoming sureties to third persons, was an original promise not within the statute, and therefore, enforcible, though not evidenced by writing, as was expressly decided in the case of *Dunn*vs *West,*(5 *B. Monroe,*381.)

*Harlan Craddock*for appellant; *B, Sf A. Monroe and B. Y. Owsley*for appellee.

A surely who replevies the debt of his principal by a valid replevy bond thereby extinguishes the debt, and may proceed against nis principal and co-sureties; (3 *B. Monroe,*10,) So by passing a bill of exchange which has been negotiated.

The question made upon the refusal of the Court to give the instruction that nominal damages alone could be recovered unless the plaintiffs had actually paid, &c. and upon the objection that the damages were excessive, which was urged as a ground for a new trial, is in effect decided by the case of *Burns and McConnough*vs *Parish,*(3 *B. Monroe,*10.) It was decided in that case, that as a surety who replevies the debt by a valid replevy bond, thereby extinguishes the judgment, he may proceed against the principal or other sureties, as if he had made actual payment in money. The same principle has been recognized in other cases. The payment by passing a negotiable security, (as a bill of exchange,) which has been negotiated, has been held equivalent to payment in money, and sufficient to sustain the action for money paid and advanced. There can be no presumption that the replevy bond in this case cannot or will not be coerced unless voluntarily paid, and especially when a levy has been actually made. And as the debt for which the plaintiffs became bound at the request of the defendant and on his promise of indemnity, has in fact, tallen upon and been extinguished by them, we are clearly of opinion that the whole amount of their liability is the proper criterion of the damages sustained by the breach of the promise of indemnity. Nothing less will, in fact, indemnify them.

Wherefore, the judgment is affirmed.