Mr. Justice Story said in a leading case:76b "Whether by the true intent of the statute, it was to extend to cases where the collateral promise (so-called) was a part of the original agreeshareholder of a bank to another that if the latter would sign an agreement to contribute to a reorganization fund and pay an assessment the former would make the necessary payments on his behalf, was within the statute because the promisor had no greater personal interest than other shareholders in the matter. No authorities were cited in support of the conclusion, and the decision must be regarded as wrong.

75 See supra, Sec. 393.

76 See infra, Sec. 478. This reasoning was followed, and such a promise to the debtor held not within the statute in Aldrich v. Carpenter, 160 Mass. 166, 170, 35 N. E. 456 (applying R. I. law); Lang v. Henry, 64 N. H. 57; Wood V. Moriarity, 15 R. I. 518, 9 Atl. 427, 16 E. I. 201, 14 Ad. 855.

76aSeewvra, Sec.478.

76b D' Wolf v. Rabaud, 1 Pet. 476,479, 7 L. Ed. 872.

Sec. 462. Different tests proposed to distinguish promises within the statute. Different tests have been suggested by the courts to determine when a promise is within the statute. The lack of one single universally recognized test is itself a clear indication of the unsatisfactory nature of most of those which have been proposed; and shows what is also true, that no test which can be proposed will harmonize all the decisions. The most commonly suggested tests are: -

77Bee Jones v. Cooper, Cowp. 227; Perky v. Spring, 12 Mass. 297, 299; Rogers v. Kneeland, 13 Wend. 114, 121; Matthews v. Milton, 4 Yerg. 576, 26 Am. Dec 247; Mead v. Watson, 67 Vt.426.

78Parsons v. Walter, 3 Doug. 14 n. (c); Peckham v. Faria, 3 Doug. 13; Matson v. Wharam, 2 T. R. 80; Anderson v. Hayman, 1 H. Bl. 120; Keate v. Temple, 1 Boa. ft P. 158; Webb v. Hawkins Co., 101 Ala. 630, 14 So. 407; Harris v. Frank, 81 Cal. 280, 22 Pac. 856; Southern Coal Co. v. Randall, 141 Ga. 48, 80 S. E. 285; Ruggles v. Gatton, 50 111. 412; Wills v. Ross, 77 Ind. 1; Langdon v. Richardson, 58 Ia. 610,12 N. W. 622; Blake v. Parlin, 22 Me. 305; Moaes v. Norton, 36 Me. 113, 58 Am. Dec. 738; Conolly v. Kettlewell, 1 Gill, 260; Noma v. Graham, 33 Md. 56; Cahill v. Bigelow, 18 Pick. 369; Bugbee v. Kendrioken, 130 Mass. 437; Welch v. Marvin, 36 Mich. 59; Hagadom v. Stronach Co., 81 Mich. 56, 45 N. W. 650; Cole v. Hutchinson, 34 Minn. 410, 26 N. W. 319; Maurin v. Fogelberg, 37 Minn. 23, 32 N. W. 858, 5 Am. St. Rep. 814; Gill v. Reed, 55 Mo. App. 246; Walker v. Richards, 39 N. H. 269; Cowdin v. Gottgetreu, 65 N. Y. 660; Whitehurst v. Pidgett, 157 N. C. 424, 73 S. E. 240; Leland v. Creyon, 1 MoC. 100, 10 Am. Dec. 654; Taylor v. Drake, 4 Strob. 431,63 Am. Dec. 630; Matthews p. Milton, 4 Yerg. 576, 26 Am. Dec. 247; Mead v. Watson, 57 Vt. 426; Cutler v. Hinton, 6 Rand. 609; Ware v. Stephenson, 10 Leigh, 155.

(1) A promise which is in form a guaranty performable only on default by a principal debtor is within the statute. A promise not in this form is not within the statute.

(2) A promise which is in terms to pay a debt of another for which that other continues liable, is within the statute; otherwise it is not.

(3) The governing distinction is the purpose of the promisor whether to gain an advantage for himself or to secure it for another.

(4) A promise which amounts in substance to a promise to pay the debtor's own debt is said to be within the statute; but otherwise if the promise is to pay the debt of another.

(5) Whether a new and beneficial consideration has been received by a new promisor is made vital.

(6) A test quoted in recent English cases with approval79 is laid down in a note to Williams' Saunders Reports,80 making the applicability of the statute depend "not on the consideration for the promise but on the fact of the original party remaining liable, coupled with the absence of any liability on the part of the defendant or his property, except such as arises from his express promise."

(7) The test which it is submitted is the accurate one, is whether a promisor is, to the actual or presumed knowledge of the creditor, a surety; if so, his promise is within the statute.

These tests obviously overlap one another, but they are not identical. Some of them are expressly confined to the situation which arises where the defendant's promise was made after a debt on the part of another had previously come into existence. It is only such cases which give rise to any considerable difficulty in determining whether on given facts the statute is applicable. It is desirable, therefore, before considering in detail the validity of the tests suggested, to consider the simpier situation where the promise in question was made as an offer prior to the creation of any debt. Also, the meaning of the words "original and collateral" which are constantly used in the discussion of the subject should be defined.

79 Green p. Creeswell, 10 A. & E. 463; Fitsgerald v. Dressler, 7 C. B. (N. S.) 374; Davys v. Buswell, [1913] 2 K. B. 47.

80 The passage is quoted from Vol. 1,

Williams' Notes to Saunders' Reports, p. 233, but the substance of it is contained in the earlier editions of Williams' notes to Forth v. Stanton, 1 Williams' Saunders, 210.