Although the promise to pay the debt of another be in writing,1 it is nevertheless of no force unless founded upon a consideration. (o)2 It is itself a distinct contract, and must rest * upon its own consideration; but this consideration may be the same with that on which the original debt is founded, for which the guarantor is liable. The rule of law is this: if the original debt or obligation is already incurred or undertaken previous to the collateral undertaking, then there must be a new and distinct consideration to sustain the guaranty. (p)l But if the original debt or obligation be founded upon a good consideration, and at the time when it is incurred or undertaken, or before that time, the guaranty is given and received, and enters into the inducement for giving credit or supplying goods, then the consideration for which the original debt is incurred, is regarded as a consideration also for the guaranty. (5) It is not necessary that any consideration pass directly from the party receiving the guaranty to the party giving it. If the party for whom the guaranty is given receive a benefit, or the party to whom it is given receive an injury, in consequence of the guaranty and as its inducement, this is a sufficient consideration. (r)

(n) Leeds v. Dunn, 10 N. T. (6 Seld.)

(o) Wain v. Warlters, 5 East, 10; Elliott v. Giese, 7 Hat. & J. 457; Leonard v. Vredenburgh, 8 Johns. 29; Bailey v. Freeman, 4 id. 880; Clark v. Small, 6 Yerg. 418; Aldridge v. Turner, 1 G. & J. 437; Neelson v. Sanborne, 2 N. H. 414; Tenny v. Prince, 4 Pick. 885; Cobb v. Page, 17 Penn. St. 489. For the law will not, as a general rule, imply a consideration from the fact that the agreement was in writing. Dodge v. Burdell, 18 Conn. 170; Cutler v. Everett, 88 Me. 201. Forbearance, howerer, is a good consideration for the guaranty. Sage v. Wilcox, 6 Conn. 81; Russell v.Babcock,14 Me. l38; Oldershaw v. King, 2 Hurl. & N. 517. And if the guaranty is given contemporaneously with the original debt, no other consideration is necessary. Bailey v. Freeman, 11 Johns. 221; Hunt v. Adams, 5 Mass. 358; Wheelwright v. Moore. 2 Hall, 143; Kaband v. De Wolf, 1 Paine, C. C. 580. So where the guaranty of a note is made at the same time with its transfer, the transfer is a sufficient consideration to support the guaranty. How v. Kemball, 2 McLean, 103; Gillighan v. Boardman, 29 Me. 79. See Brown v. Curtiss, 2 Comst. 225. But a guaranty of payment of a preexisting promissory note, where the only consideration is a past benefit or favor conferred, and without any design or expectation of remuneration, is without sufficient consideration and cannot be enforced. Ware v. Adams, 24 Me. 177.

1 An oral agreement of suretyship is void. Ingersoll v. Baker, 41 Mich. 48; Bonine p. Denniston, ib. 292.

2 To the point supra, that forbearance is a good consideration, see Hockenbury v. Myers, 5 Vroom, 346; Calkins v. Chandler, 86 Mich. 320. See also Briggs v. Downing, 48 la. 550. An agreement, which is carried out, to withdraw a suit against the maker of a note, is a sufficient consideration for a guaranty. Worcester Bank v. Hill, 113 Mass. 25. - To the point supra, that a contemporaneous guaranty, as of an award, executed at the same time with a submission, is on good consideration, see Wood v. Tunnicliff, 74 N. Y. 88. A guaranty, although without consideration, is not void as against an innocent holder without notice, Parkhurst v. Vail, 78 Ill. 343; Clopton v. Hall, 51 Miss. 482; as a transfer by a corporation of bonds guaranteed by it, though ultra vires and failing to express the true consideration, to a purchaser for value, Arnot v. Erie B. Co. 67 N. Y. 815.

Wherever any fraud exists in the consideration of the contract of guaranty, or in the circumstances which induced it, the contract is entirely null. As where a guaranty was given for the price of a large amount of iron, and it was proved that the buyer by arrangement with the seller paid something more than the fair price, which addition was to go towards the * payment of an old debt, the contract was not enforced as to so much of the price as would have been fair, but was set aside as altogether defeated by the fraud. (s)2

(p) Rabaud v. De Wolf, 1 Paine, C. C. 580; Pike v. Irwin, 1 Sandf. 14; Elder v. Warfield, 7 Har. & J. 391; Ware v. Adams, 24 Me. 177; Parker v. Barker, 2 Met. 423; Anderson v. Davis, 9 Vt. 136 ; Blake v. Parlin, 22 Me. 395; Bell v. Welch, 9 C. B. 154.

(q) Bainbridge v. Wade, 1 E. L. & E. 236; 8. c. 16 Q. B. 89; Campbell v. Knapp, 15 Penn. St. 27; Klein v. Currier, 14 Ill. 237; Bickford v. Gibbs, 8 Cash. 156; Leonard v. Vredenbnrgh, 8 Johns. 29; Graham v. O'Neil, 2 Hall, 474 ; Conkey v. Hopkins, 17 Johns. 113; Gardiner v. Hopkins, 5 Wend. 23; Rabaud v. De Wolf, 1 Paine, C. C. 580. See How v. Kemball, 2 McLean, 103; Kurtz v. Adams, 7 Eng. (Ark.) 174.

(r) Bickford v. Gibbs, 8 Cush. 156; Morly v. Boothby, 3 Bing. 113, Best, C.

J.; Leonard v. Vredenbnrgh, 8 Johns. 29. In this case, A applied to B for goods on credit, and B refused to let him have them without security, on which A drew a promissory note for the amount, under which C wrote: "I guarantee the above," and the goods were then delivered. Held, that this was a collateral undertaking of C; but that, as the transaction was one and entire, the consideration passing between A and B was sufficient to support as well the promise of C as that of A, and no distinct consideration passing between B and C was necessary.

(s) Jackson v. Duchaire, 3 T. R. 551; Pidcock v. Bishop, 3 B. & C. 605; s. c. 5 Dow. & R. 505. And Bayley, J., in that case thus laid down the law: "It is the duty of a party taking a guaranty to put the surety in possession of all the facts

1 Good v. Martin, 95 U. S. 90; McNaught v. McClaughry, 42 N. Y. 22; Parkhurst v. Vail, 73 Ill. 343. As signing a note as surety after the delivery of the note, Clopton v. Hall, 51 Miss. 482.

2 A surety who becomes such in consequence of fraudulent answers of the guarantee to his inquiries about the financial condition of the party guaranteed is not bound, Remington Sewing Machine Co. v. Kezertee, 49 Wis. 409; nor is one induced to sign a note as a surety in the belief that two former parties were principals, one of whom was in fact a surety, liable for contribution as a co-surety, when such former surety pays the note, Bobbitt v. Shryer, 70 Ind. 513. See Booth v. Storrs, 75 Ill. 438.