But where there is some new and original consideration of benefit or harm moving between the new contracting parties, it is well settled that the case is not within the statute: Leonard v. Vredenburgh, supra; as where a promise to pay an existing debt is made in consideration of property placed by the defendant in the hands of the party thus promising: Hilton v. Dinsmore, 21 Me. 410; Todd v. Tobey, 29 lb. 219; Olmstead v. Greenly, 18 Johns. 12; Ell-wood v. Monk, 5 Wend. 235; Hindman v. Langford, 3 Strob. 207; Lee v. Fon-taine, 10 Ala. 755; Hall v. Rodgers, 7 Humph. 536; or where the party to whom the promise is made relinquishes a levy on the goods of the debtor: Williams v. Leper, 3 Burr. 1886; Castling v. Aubert, 2 East, 325; Mercein v. Andrus, 10 Wend. 461; Farley v. Cleveland, 4 Cow. 432; Tindall v. Touchberry, 3 Strob. 177; Dunlap v. Thorne, 1 Rich. 213; (though two late cases in New York and one in Massachusetts, Barker v. Bucklin, 3 Den. 45; Kingsley v. Balcome, 4 Barb. 131; and Nelson v. Boynton, 3 Metc. 396, seem to hold, in opposition to the prior authorities in the former State, that the consideration must always consist in an advantage to the debtor or the promisor, and that a detriment to the promisee will not take the case out of the statute.)
It has been held in England, and in several of our States, that a promise to indemnify the guarantor against any loss in consequence of his undertaking, is not within the statute, on the ground that the promise is not that another shall perform that which he has undertaken, but that the promisee shall not lose by the engagement into which he has entered: Thomas v. Cook, 8 B. & C. 728; Chapin v. Merrill, 4 Wend. 657; Chapin v. Lapham, 20 Pick. 467; Peck v. Thompson, 15 Vt. 637; Holmes v. Knights, 10 N. H. 175; Lucas v. Chamberlain, 8 B. Mon. 276; Doane v. Newman, 10 Mo. 69; Jones v. Shorter, 1 Ga. 294; but the more recent cases in England and in New York have not acknowledged this reasoning as satisfactory, "for every promise to become answerable for the debt or default of another may be shaped as an indemnity :"Green v. Cresswell, 10 A. & E. (37 E. C. L. E.) 453; Staats v. Howlett, an agent, in selling for a principal, should take unusual care in selecting the customers, and by assuming respon4 Den. 559; Kingsley v. Balcome, 4 Barb. 131; and the same view was taken in Dranghan v. Bunting, 9 Ired. 10.-R.
[In a careful opinion by Biddle, J., in the Common Pleas of Philadelphia, the authorities on this last point are considered. Quoting Brown on the Statute of Frauds, he says that the American decisions have resulted "in the rejection by the great preponderance of authority of the doctrine of Green v. Cresswell, and the adoption of Thomas v. Cook-a result reached after much vacillation on the part of Courts of the same State, and not, it must be confessed, by reference to any satisfactory ground of principle. Indeed, most of the decisions which reject the doctrine of Green v. Cresswell waive altogether the question of principle, and put it as a matter settled by authority that the promise to indemnify 'is not within the statute.' "However, relying upon the English authorities, the case of Macey v. Childress, 2 Tenn. Ch. 442, and the opinions of Mr. Brown and Mr. Reed in their works upon this statute, he decides that a promise to indemnify a guarantor is within the statute: Nugent v. Wolfe, 14 W. N. C. 290.]
The strong current of the authorities is that if the party to whom the consideration moves becomes personally liable for the payment of the debt, the engagement of any other person, though made at the same time and upon the same consideration, is a promise to pay the debt of another within the statute: 1 Smith's L. C. 527, American note; Hetfield v. Dow, 27 N. J. 440; Rogers v. Kneeland, 13 Wend. 114; Aldrich v. Jewell, 12 Vt. 125; Cropper v. Pittman, 13 Md. 190; Walker v. Richards, 39 N. H. 259; Carville v. Crane, 5 Hill, 483; Hall v. Farmer, 5 Den. 4S4; Reed v. Holcomb, 31 Conn. 360; Boykin v. Doh-londe, 1 Ala. Sel. Cas. 502. This rule is, in fact, that stated by Serj. Williams in his note to Forth v. Stanton, 1 Wms. Saund. 211 a, on the authority of Matson v. Wharam, 2 T. R. 80, where Buller, J., though he declared that if it were a new question, the leaning of his mind would be the other way, lays it down broadly "that if the person for whose use the goods are furnished be liable at all, any other promise by a third person to pay that debt must be in writing." " But it may be doubted," says Judge Hare (1 Smith's L. C. 527), " whether any decision has yet gone so far as to refuse to give effect to a direct contract for the purchase of goods merely because one of the purchasers is a surety." The provision of the Statute of Frauds was intended to apply only to contracts strictly of suretyship or guaranty; and where no credit is given to a third person, and the consideration does not move from him, and he is not to be benefited, the statute does not apply, although such third person is primarily liable: Reed v. Holcomb, 31 Conn. 360. The promise of one person, though in form to answer for the debt of another, if founded upon a new and sufficient consideration moving from the creditor and promisee to the promisor, and beneficial to the latter, is not within the statute: Dyer v. Gibson, 16 Wis. 557. The decisive question is to whom the credit was given : Boykin v. Dohlonde, 1 Ala. Sel. Cas. 502. A parol promise to accept an order from a debtor in favour of his creditor, between whom and the promisor there has been no privity, is a promise to pay the debt of another, within the statute: Plummer v. Lyman, 49 Me. 229; Richardson v. Williams. Ib. 558.-s. 122 sibility for their solvency should preclude all question of negligence on his part, as where an agent sells on a del credere commission, the undertaking so to do need not be in writing (r); for, although the transaction may terminate in a liability to answer for the debt of another, his paying that debt was not the immediate object of the contract made with him.