The cases may naturally be divided into those where the promise of guarantee was concurrent with the principal contract, and those where it was subsequent to its creation.
1. Under the first of these classes, the common law is satisfied wherever the promise is made at the same time as the principal contract, and is an essential inducement to it. No other consideration is necessary than that moving between the creditor and the original debtor: Kirkby v. Coles, Cro. Eliz 137; and it matters not whether the promise be absolute or conditional and dependent upon default of the other: Leonard v. Vredenburg, 8 Johns. 29; Snevily v. Johnston, 1 W. & S. 307.
The fourth section of the Statute of Frauds, however, altered the common law to this extent,- where the promise is conditional and dependent upon the default of the other, it must be in writing; where, however, it is not thus conditional and dependent, but is direct and absolute, the case rests as at common law, and the statute does not apply. But there is a class of cases which, proceeding upon the suggestion of Mr. Serj. Williams, supra, seems to determine that however direct and absolute the contract of the defendant may be, it shall not be deemed to be a direct undertaking, so as to take the case out of the statute, unless all liability is withdrawn from the other party, and thrown entirely upon the shoulders of the defendant; in other words, although there may be a joint contract. yet if the consideration move only to one, unless all the credit is given to the other, the engagement of that other is collateral and not direct; it is, therefore, within the statute, and he is not liable unless his promise and its consideration appear in writing : Rogers v. Kneeland, 13 Wend. 114; Brady v. Sackrider, 1 Sand. 515; Cahill v. Bigelow, 18 Pick. 369; Elder v. Warfield, 7 Harr. & J. 397; Blake v. Parlin, 22 Me. 395; Aldrich v. Jewell, 12 Vt. 126; Smith v. Hyde, 19 lb. 56; Taylor v. Drake, 4 Strob. 437; Ware also been considered, that, in order to make the statute applicable, the immediate *object for requiring the defendant's liability must be, that he shall v. Stephenson, 10 Leigh, 167; Rhodes v. Leeds, 3 Stew. & P. 212; Faires v. Lodanc, 10 Ala. 50; Holmes v. Knights, 10 N. H. 177; Proprietors v. Abbott, 14 lb. 159.
It has been said, that it may admit of question whether the application of this principle has not been carried too far in some cases, and whether what was in truth, as between the parties, the collateral liability, has not by means of it been transformed into a principal liability, and the real principal debtor thereby discharged through the operation of the statute: Holmes v. Knights, 10 N. H. 178; and practically it may often happen that a tradesman, thinking to increase his security by charging the goods to both parties, by that very means, under the application of the rule sanctioned by the weight of authority, loses his remedy against one of them.
It has, moreover, been suggested, upon great apparent soundness of principle (in Mr. Hare's note to Birkmyr v. Darnell, 1 Smith L. C. 518, 8th Am. ed.), that the question of the defendant's liability being direct and collateral, is not necessarily wholly dependent upon the withdrawal of all credit from, and the consequent non-liability of, the party who receives the consideration; in other words, that there may be a direct liability, even where the other party is also liable. Thus, where two jointly purchase goods, the liability of one is in no degree lightened by the fact of the other being also liable, nor, where the liability is thus co-extensive, is it changed in any way by the goods being intended for one rather than for the other,-each being still directly liable, the contract cannot be said to be " to answer for the default of another," and the case would seem to be unaffected by the statute.
Thus, in Wainwright v. Straw, 15 Vt. 215, it was held that where a stove was sold to two for the use of one, each was liable, and no writing was necessary. And where the promises are several instead of joint, yet, if each has bound himself directly and absolutely, the mere fact that the consideration moves to one only, ought not, it would seem, to turn into a mere collateral that which was in fact an original contract. " It would scarcely seem," as was said by Story, J., in D'Wolf v. Rabaud, 1 Pet. 500, "a case of a mere collateral undertaking, but rather, if one might use the phrase, a trilateral contract. Each is a direct, original prdmise, founded upon the same consideration:" Townsley v. Sumrall, 2 lb. 182; Proprietors v. Abbott, 14 N. H. l57. Such a view is not, however, recognized by the class of cases first referred to, and in Taylor v. Drake, 4 Strob. 437, it was said that to make the delivery of goods to the one also serve as a consideration for the promise of the other, would be to strike down the statutory shield at a blow.
2. Where the promise is given subsequently to the creation of the debt, it is evident that the mere existence of that debt cannot, even at common law, be a sufficient consideration for the promise. (See infra, notes to page *194.) Another consideration must exist to support the promise, and this may be one of two kin Is,-it may either grow out of the debt itself, being connected therewith, such as the forbearance to sue the original debtor, or it may be a new and inpay the debt of another if that other does not; and that, consequently, where the immediate object is that dependent consideration. In the first case, although the promise could be supported at common law, it is within the statute, and a writing is necessary; in the second, the statute does not apply: Leonard v. Vredenburgh, 8 Johns. 29.
Thus, it is well settled that a forbearance to sue the original debtor, or the discontinuance of a suit already brought, being considerations connected with, and growing out of, the original contract, are, though entirely sufficient at common law, nevertheless within the Statute of Frauds: Fish v. Hutchinson, 2 Wils. 94; Bennett v. Pratt, 4 Den. 275; Durham v. Arledge, 1 Strob. 5; Nelson v. Boynton, 3 Metc. 396; Stone v. Symmes, 18 Pick. 467. So, when the consideration consists in the performance of the preceding contract, as where a plaintiff having been employed by a contractor to build certain walls for the defendant, refused to go on unless the defendant would promise to pay him, which he did, it was. held that the contract was within the statute, for the consideration related merely to the performance of the antecedent contract: Puckett v Bates, 4 Ala. 390.