
    Mays v. Joseph.
    A verbal promise, by a judgment creditor, to indemnify an officer, boldingan execution, against loss or damage from the seizure and sale of property claimed by the debtor to be exempt from execution, is not void as being against public policy; nor is such promise within the statute of frauds.
    Motion for leave to file petition in error to the District. Court of Lawrence county.
    The plaintiff in error, having recovered a judgment before a justice of the peace, against one Corns, caused an execution to be issued thereon and delivered to the defendant in error, as constable for service. There was found, in-the possession of the judgment debtor, a yoke of oxen, which he claimed was exempt from levy and sale. Whereupon, the defendant in error refused to seize the oxen, under the writ of execution, unless the plaintiff in error would indemnify him from loss and damage in so doing.
    Thereupon, the plaintiff in error requested and directed the defendant to levy upon and sell the oxen, and promised to save him and his sureties harmless fn the premises. The defendant in error, relying upon this promise of indemnity, seized and sold the oxen, and applied the proceeds to the satisfaction of the judgment.
    Afterward, the execution debtor recovered a judgment against the defendant in error, for the wrongful seizure and sale of the oxen under said writ.
    The original action was brought by Joseph, the constable, against Mays, the plaintiff in execution, on said verbal promise of indemnity, and judgment was recovered thereon in the court of common pleas. This judgment was affirmed by the district court.
    By this proceeding, it is sought to reverse these judgments, upon the following grounds:
    1. That the promise of indemnity was illegal upon grounds of public policy.
    2. That it is void under the statute of frauds and perjuries, as a promise to answer for the debt, default, or miscarriage of another person.
    
      W. II. Enochs, for the motion:
    1. The promise was a verbal one to answer for the defaults and miscarriages of another, and is within the statute of frauds and void. S. & C. 659 ; Wickworth v. Mills, 2 Esp. 483; Brown on the Statute of Frauds, 145, 148, secs. 155, 159 (3d ed.) ; Easter v. White, 12 Ohio St. 209, 227; Kelsey v. Hibbs, 13 Ohio St. 340.
    2. The contract is not binding, as it is a promise to indemnify the party for doing an unlawful act, as well as an act contrary to the public policy. Bloom v. Richards, 2 Ohio St. 387, 395; Rossman v. McFarland, 9 Ohio St. 369, 379 ; 6 Ohio, 442; 10 Ohio, 51, 54.
    
      0. F. Moore, contra :
    1. The promise was not within the statute of frauds, because :
    1. The promise was an original undertaking on the part of the plaintiff in error; there was nothing collateral about it.
    2. There was no third person concerned. The agreement concerned no one but the parties to it. There was no default or miscarriage of any one contemplated or femhraced by the agreement.
    3. When the promise is made by one for whose benefit the act is to be done, it is not a promise to answer for the ■debt, default, or miscarriage of another, within the meaning of the statute. Blake v. Cole, 22 Pick. 97 ; Thomas v. Cooke, 15 Eng. C. L. 333; Chapin v. Merrill, 4 Wend. 657; Chapin v. Lapham, 20 Pick. 467; Ferrell v. Maxwell, 28 Ohio St. 387.
    II. The act done by the constable was not an illegal act, or one against public policy. Miller v. Rhoades, 20 Ohio St. 496.
   By the Court.

That the promise of indemnity sued on was not invalid as being against public policy, was settled in Miller v. Rhoades, 20 Ohio St. 494, and cases therein cited.

2. The promise was an original and not a collateral engagement. There was no element of debt, default, or miscarriage of any third person in the agreement. The act against which the indemnity was promised was for the benefit of the promisor, and involved a liability to loss on the promisee, and was not within the statute of frauds. Green v. Cresswell, 10 Adolphus and Ellis, 453; Weld v. Nichols, 17 Pick. 538; Adams v. Dansey, 6 Bing. 506; Goodspeed v. Fuller, 46 Maine, 141; Marcy v. Crawford, 16 Conn. 549; Allaine v. Ouland, 2 John. Cases, 52; Browne on Statute of Frauds, chap. 10, p. 144 et seq.

Motion overruled.  