From the very definition of a collateral promise, it follows that there must be some one who owes the debt directly. There must exist an original liability, as the foundation for the collateral liability. And one of these liabilities must be entirely distinct from the other. If therefore the creditor trusted to one of the parties more than to the other, but did in fact trust to one together with the other, it is not within the statute. And in ascertaining whether this original and distinct liability exists, and then a collateral one founded upon it, the court will look to the intentions of the parties, as they may be inferred from all the circumstances of the case and of the parties. (n)1 At the *same time, however, it must be remembered, that the expressions used by the parties are the first and the most direct evidence of their intention; and the proper effect and construction of the various expressions used in transactions of this kind are well illustrated by Lord Holt.(o)

(l) In the absence of evidence showing distinctly that a promise is collateral, it will be treated as an original promise. This point is well illustrated by the case of Beaman v. Russell, 20 Vt. 205. That was an action on a written instrument, signed by the defendant, whereby he agreed with the plaintiff to indemnify him for signing, together with three other persons, two promissory notes payable to the Bank of Rutland, It appeared that the notes in question were discounted by the Bank of Rutland; that they were not paid at maturity, and were afterwards paid by the plaintiff. It was objected by the defendant that the promise was within the statute of frauds as being a collateral promise, and was therefore not binding, because no consideration appeared on the face of the written instrument. But. the objection was not sustained. And Hall, J., said: "Although the decisions upon the clause of the statute relied upon by the defendant are not all reconcilable with each other, yet it seems agreed in all the cases, that if the promise is not collateral to the liability of some other person to the same party, it is not within the statute. Eastwood v. Kenyon, 11 A. & E. 438. In this case, unless there was some person liable to indemnify the plaintiff for signing the notes to the Bank of Rutland, other than the defendant, his undertaking was an original and not a collateral one. Does it appear from the writing offered in evidence, either in connection with the notes or without them, that any other person than the defendant was in any manner liable to the plaintiff? If the plaintiff had signed the notes with the other makers of them, as their surety and at their request, the law would have implied a promise from them, to indemnify him. But there is no evidence that he signed as surety. For aught that appears, the liability to the Bank of Rutland might have been incurred for the sole benefit of the defendant, and he might have agreed to indemnify the other signers in the same manner that he did the plaintiff. Besides, there is no proof that the plaintiff signed the note at the request of the other signers. The writing shows that he signed at the request of the defendant, and on his promise to indemnify him; and this fact would be calculated to rebut any presumption that he signed at the request of the others, even if his name had appeared on the notes as surety. In the absence of all evidence that there was a liability of any other person to the plaintiff, to which the defendant's promise could have been collateral, it must be treated as an original promise not within the statute." See Rees v. Holcomb, 31 Conn. 360

(m) Matson v. Wharam, 2 T. R. 80; Jones v. Cooper, Cowp. 227; Peckham v. Faria, 3 Doug. 13; Bronson v. Stroud 2 McMullan, 372.

1 An agreement that the buyer of certain shares of stock should within one year receive fifteen per cent. on his investment is not a contract to answer for the debt, default, or miscarriage of another. Moorehouse v. Crangle, 36 Ohio St. 130. See Green v Brookins, 23 Mich. 48. An agreement to execute a note as surety for another must be in writing. Dee v. Downs, 57 la. 589. -K.

(n) Keate p. Temple, 1 B. & P. 158. In this case the defendant, the first lieutenant of his Majesty's ship the Boyne, applied to the plaintiff, a slop-seller, to furnish the crew with new clothes, saying that he would see him paid at the pay table. The plaintiff having supplied the clothes, and the Boyne having been afterwards burnt and the crew dispersed, this action was brought against the defendant to recover the amount. The plaintiff having obtained a verdict for £576 7s. 8d., a new trial was ordered. And Eyre, C. J., upon the occasion of making the rule for a new trial absolute, placed much stress upon the fact that clothes to so large an amount were furnished, and also upon the peculiar relation in which the defendant stood to the crew. "There is one consideration," said he, "independent of everything else, which weighs so strongly with me, that I should wish this evidence to be once more submitted to the jury. The sum recovered is £576 7s. 8d. And this against a lieutenant in the navy; a sum so large that it goes a great way towards satisfying my mind that it never could have been in the contemplation of the defendant to make himself liable, or of the slop-seller to furnish the goods on his credit, to so large an amount. I can hardly think, that had the Boyne not been burnt, and the plaintiff been asked whether he would have the lieutenant or the crew for his paymaster, but that he would have given the preference to the latter. . . . From the nature of the case, it is apparent that the men were to pay in the first instance; the defendant's words were, 'I will see you paid at the pay table; are you satisfied ?' and the answer then was, 'Perfectly so.' The meaning of which was, that however unwilling the men might be to pay themselves, the officer would take care that they should pay. The question is, whether the slop-man did not in fact rely on the power of the officer over the fund out of which the men's wages were to be paid, and did not prefer giving credit to that fund rather than to the lieutenant, who, if we are to judge of him by others in the same situation, was not likely to be able to raise so large a sum." 80 in the case of Norris v. Spencer, 18 Me. 324, the court declare that whether the contract of one who engages to be responsible for another, is to be regarded as an original and joint, or as a collateral one, must depend upon the intention of the parties, to be ascertained from the nature of it, and the language used. And see Moses v. Norton, 36 Me. 113; Beebe v. Dudley, 6 Foster, 249; Bushee v. Allen, 31 Vt. 631; Boykin v. Dohlonde, 1 Ala. Sel. Cas. 502; Swift v. Pierce, 13 Allen, 136; Burr v. Wilcox, 13 Allen, 269.