(o) Watkins v. Perkins, 1 Ld. Raym. 224. "If," said he, "A promise B, being a surgeon, that if B cure D of a wound, he will see him paid; this is only a promise to pay if D does not, and therefore it ought to be in writing by the statute of frauds. But if A promise in such case that he will be B's paymaster, whatever he shall deserve, it is immediately the debt of A, and he is liable without'writing." And in Norris v. Spencer, 18 Me.

1 Norris v. Graham, 33 Md. 56; Welch v. Marvin, 36 Mich. 59; Murphy v. Ren-kert, 12 Heisk. 397; Whitman v. Bryant, 49 Vt. 512. Thus, charging goods to the party to whom they are delivered shows, in the absence of other evidence, that the credit was given solely to him, and not to one who before the delivery orally promised to pay for them. Langdon v. Richardson, 58 la. 610. [But it is not necessarily con-elusive. Green v. Burton, 59 Vt. 423]. - K.

It is quite certain, as has been said, that the party for whom the promise has been made must be liable to the party to whom it is made; (p)1 and it is equally necessary that he continue * liable after the making of the promise. In other words, the promise of the party undertaking must not have the effect, * prior to its performance, of discharging the party originally liable. Thus, if goods have been furnished by B to C, and charged to the latter, and A now becomes responsible for them, and B thereupon discharges C, looking to A only, and

324, already cited, where a written contract was made in form between two, and signed by the parties named, and at the same time a third person added, "I agree to be security for the promisor in the above contract," with his signature, the latter was held as a joint promisor.

(p) See Manley v. Geagan, 105 Mass. 445; Langdon v. Hughes, 107 Mass. 272: Gallagher v. Nichols, 60 N. Y. 438; Hubon p. Park, 116 Mass. 541; Goetz v. Foos, 14 Minn. 265; Whitesell v. Heiney, 58 Ind. 108; Comstock v. Norton, 36 Mich. 277; Randall v. Kelsey, 46 Vt. 158; Pratt v. Bates, 40 Mich. 37. It is now well settled, that in order to bring a promise within this clause of the statute, it must be made to the party to whom the person undertaken for I* liable. "The statute," says Parke, B., in Hargreaves v. Parsons, 13 M. & W. 561, "applies only to promises made to the persons to whom another is already, or is to become, answerable. It must be a promise to be answerable for a debt of, or a default in some duty by, that other person towards the promisee." A promise, therefore, by A to B, to pay a debt due from B to C, is not within the statute. This last point was first presented for adjudication in Eastwood v. Kenyon, 11 A. & E. 438. The facts in that case were, that the plaintiff was liable to one Blackburn on a promissory note; and the defendant, for a consideration, promised the plaintiff to pay and discharge the note to Blackburn. And Lord Denman said: "If the. promise had been made to Blackburn, doubtless the statute would have applied; it would then have been strictly a promise to answer for the debt of another; and the argument on the part of the defendant is, that it is not the less the debt of another, because the promise is made to that other, namely, the debtor, and not to the creditor, the statute not having in terms stated to whom the promise, condoes this with the knowledge and consent of the parties, this promise of A is to be regarded as an original promise, by way of substitution for the promise of C, which it satisfies and discharges, and not as collateral to the promise of C (q) On the other hand, if the liability of the original party is to continue after the perform-ance of the promise, the promise is equally out of the statute. For that cannot properly be called a promise to answer for the debt, default, or miscarriage of another person, the performance of which leaves the liability of that other person the same as before, (r) template by it, is to be made. But, upon consideration, we are of opinion that the statute applies only to promises made to the person to whom another is answerable. We are not aware of any case in which the point has arisen, or in which any attempt has been made to put that construction upon the statute which is now sought to be established, and which we think not to be the true one." And see, to the same effect, Hargreaves v. Parsons, 13 M. & W. 561; Pearce v. Blagrave, C. B. 1855, 30 Eng. L. & Eq. 510; Pratt v. Humphrey, 22 Conn. 317; Barker v. Bucklin, 2 Denio, 45; Westfall v. Parsons, 16 Barb. 645; Preble v. Baldwin, 6 Cush. 549; Alger v. Scoville, 1 Gray, 391; Perkins v. Littlefleid, 5 Allen, 370. And in New York it has been held, that the creditor may sue on such a promise made to his debtor, on the ground that he is the person for whose benefit the contract is made. See Barker v. Bucklin, 2 Denio, 45. But see contra, Curtis v. Brown, 5 Cush. 488.

1 It has been questioned whether a promise to indemnify one for becoming surety for a third person is within the statute. In Thomas v. Cook, 8 B. & C. 728, it was held that it was not, Bayley, J., saying, "A promise to indemnify does not, as it appears to me, fall within either the words or the policy of the statute of frauds; " and Parke, J., " This was not a promise to answer for the debt, default or miscarriage of another person, but an original contract between these parties, that the plaintiff should be indemnified against the bond." In Green v. Cresswell, 10 A. & E. 453, a contrary decision was made, on the ground that when the plaintiff became surety an obligation arose on the part of the third person to save him harmless, and the defendant's promise was in effect to answer for any default in the performance of this obligation. Green v Cresswell has, however, been practically overruled in England, Cripp v. Hartnoll, 2 B. & S. 697, 4 B. & S. 414; Wildes v. Dudlow, L. R. 19 Eq. 198. See also Mount-Stephen v. Lakeman, L. R. 7 H. L. 17.

In this country it has been generally held, in accordance with Thomas v. Cook, and the later English cases, that such a promise to indemnify is not within the statute. Reed v.Holcomb, 31 Conn. 360; Jones v. Shorter, 1 Ga. 294; Mills v. Brown, 11 la. 314; Anderso v Spencer 72 Ind. 315; Hoggatt v. Thomas, 35 La. An. 298; Jones v. Letcher, 13 B Mon 363: Smith v. Sayward, 5 Me. 504; Aldrich v. Ames, 9 Gray, 76; (see also Stratton v. Hill, 134 Mass. 27;) Potter v. Brown, 35 Mich. 274, Goetz v. Foos, 14 Minn 265; Demeritt v. Bickford, 58 N. H. 523; Apgar v. Hiler, 24 N. J. L. 812; Sanders v. Gillespie, 59 N. Y. 250; Braman v. Russell, 20 Vt. 205; Vogel v. Melms, 31 Wis. 306.