¶1*314The appellant moved for a rehearing. The motion was denied, and the following opinion filed, at the June term, 1872
¶2Notwithstanding the able argument made in support of the motion for a rehearing, we still think the jury were properly directed as to the law which controlled the case. It is said that the third special instruction asked on the part of the defendant embodies the law as this court has laid it down in the opinion already filed. This is a misapprehension. We thought the charge of the court was substantially correct, and embraced the rule sustained by the weight of authority. The third instruction, which, it is insisted, should have been given, was to the effect that if the jury found from the evidence that William Melms, the maker of the note, requested the plaintiff to indorse it, and promised to pay it, then airy promise of the defendant in respect to indemnity was collateral to the promise of William Melms, and was within the statute. Now the difference between this instruction and the law as given is material.
¶3The court held that if the defendant promised to indemnify the plaintiff and save him harmless from the indorsement of the note, and William Melms also made the same promise, still, if the whole credit was in. fact given to the defendant’s promise, and the plaintiff relied upon that alone when he endorsed the note, then he could recover.
¶4This of course makes the case turn upon the question, upon whose credit and promise 'the plaintiff assumed the liability. If he assumed it wholly upon the promise of the defendant, without any reference whatever to the promise of William, and not relying upon the promise of the latter at all, then the undertaking of the defendant was not collateral to that of William. Suppose the plaintiff knew William to be utterly ' irresponsible and did not and would not act upon his promise, but did endorse the note solely relying upon the promise of the defendant to indemnify him: would then the fact that William also requested him so to endorse the note and promised to pay it, *315render tbe engagement of tbe defendant a collateral undertaking and bring it within tbe statute ? It seems to us not. Eor tbe whole credit would have been given to tbe defendant, and upon bis promise alone would tbe plaintiff assume tbe liability. And this, we think, is tbe error in tbe third instruction : that though tbe plaintiff did not and would .not indorse tbe note at William’s request, yet if that request was made when be acted upon tbe request of tbe defendant, relying upon tbe latter’s promise alone to indemnify, then the defendant’s promise in respect to indemnity was collateral to the promise of William. This precise question is so clearly and ably discussed by Chief Justice Parker, in Holmes v. Knights, 10 N. H., 175, that we cannot do better than refer to that case as a correct exposition of the rule of law which we adopt and which we think is sustained by tbe weight of authority.
¶5Tbe counsel criticises tbe remark in tbe opinion that “ there was nothing in tbe case from which a promise on the part of William Melms to indemnify the plaintiff can be inferred.” The meaning that was intended to be conveyed was, that there was no evidence of any actual promise made by William Melms upon which tbe plaintiff relied when be endorsed tbe note, and that tbe jury must have so found under the charge of tbe court. They must have found that the plaintiff did not assume the liability upon any request or promise made by William, but wholly upon the request of the defendant and upon his promise to indemnify and save him harmless from the consequences of the endorsement.
¶6This is all we deem it necessary to say upon the motion for a rehearing.
¶7By the Gourt. — The motion is denied.