7. Where the guaranty relates to a con temporaneous or future obligation, the pro mise is original, and not suretyship, (4) if credit is given exclusively to the promisor, (b) if the promise is merely to' indemnify.
S. In the first of these cases the question to whom credit was given must be ultimately for the jury in each case. If there is any primary liability, and the creditor resorts to the principal debtor first, the promise is colla teral. Thus, if the promisor says, " Deliver goods to A, and I will pay you, there is no primary obligation on the part of A, and the promise is original. 3 Mete. Mass. 396. But if he says, "I will see you paid," or, "I pro mise you that he will pay," or, "If he do not pay, I will,".the promise would be collateral.
2 Term, 80; 1 H. Blackst. 120; 8 All. Mass. 540; 5 id. 370; 13 Gray, Mass. 613; Brottne, Stat. Fr. 195.
9. A promise merely to indemnify against contingent loss from anothdr1 default is ori ginal. 15 Johns. N. Y. 425; 4 Wend. N. Y. 657. A doubt is expressed by Mr. Browne, Stat. of Frauds, 158, whether the fact that - — mere indemnity is intended makes' thr pro. mise original, because in many cases--those where the indemnity is against the fault of a tbird person—there is an implied liabil ity of that person, end the proniise is col;&teral thereto. Now, tbere are three classes of zases. First, it is clear that where the indemnity is against the promisor's default of debt he is already liable without his premise; and to use this as a defence and make tbe promise collo, teral thereto would be using the law as a cover to a fraud. 1 Conn. 519; 16 id. 549; 46 Me. 41; 6 Bingh. 506; 10 Johns. N. Y. 42; 17 id. 113 ; 2 Jahns. Cas. N. Y. 52; 17 Pick. Mass. 538. Second, so where the only debt against which indemnity is promised is the promisee's, this, being not the deht of another, but of the promisee, is clearly not within the statute, but the promise is original. And even if the execution of siich a promise would discharge incidentally some other liability, this fact does not make the promise collateral. 11 Ad. & E. 446 ; 13 Mees. & W. Exch. 561 ; 17 Mass. 229 ; 17 Pick. Mass. 538 ; 1 Gray, Mass. 391 ; 9 id. 76 ; 25 Wend. N. Y. 243 ; 2 Den. N. Y. 45 ; 10 Gill & J. Md. 404 ; 22 Conn. 317 ; 23 Miss. 430 ; 34 N. H. 414 ; 31 Vt 142. Third, but where there is a liability implied in 'another person, and the promise refers to his liability or default, and if executed will discharge such liability or default, the promise would seem on reason to be collateral and binding like a suretyship for future ad vances,—that is, Vrh en accepted. 9 Ired. No. C. 10 ; 1 Speers, So. C. 4 ; 1 Ala. 1 ; 1 Gill &J. Md. 424 ; 6 Md. 78 ; 10 Ad. & E. 453 ; 6 La. N. s. 605; 4 Barb. N. Y. 131 ; 5 Hill, N. Y. 483. But in many cases the rule is broadly stated that a promise to indemnify merely is original, 8 Berne*. & C.728 [overruled, 10 Ad.
& E. 453]; 1 Gray, Mass. 391; 10 Johns. N. Y. 242 ; 4 Wend. N. Y. 657 [oVerruled, 4 Barb. N. Y. 131]; 1 Ga. 294 ; 5 B. Monr. Ky. 382 ; 20 Vt. 205 ; 10 N. H. 175 ; 1 Conn. 519 ; 5 Me. 504. In other cases the distinction is made to rest on the fact that the engagement is made to the debtor, 9 Gray, Mass. 76 ; 11 Ad. & E. 438 ; and in other oases, on the futurity of the risk or liability. 12 NUBS. 297.
The last ground is untenable ; future guar ranties binding when accepted or acted upon, and those against torts, are expressly to the contrary. The first ground is too broad, as shown above; and the second seems to ignore the clear primary liability of the principal debtor.
1.0. When the principal obligation is void, voidable, not enforceable, or un ascertained, the promise is original, there being in this case no principal obligation to sustain the promise as collateral. Brotand, Stat. Fr. I 156. It may be questionable, hoWever, whether the promise will in such cases be original Unless the promisor knows the principal liability to •be void or voidable, Burge, Surety. 6-10; but this 'queetion may be settled by the principle that where credit is given to the principal, notwithstanding his obligation is void or void able, the promise of the burety is collateral: 4 Bingh. 470 ; 7 N. H. 368; but if no ,such credit is siven or implied, the promise is lateral,. bee 34 Barb. N. Y. 208 ; 1 N. Y. 113; id. 576 ; 33 Ala. N. s, 106 ; 6 Gray, Mass. 90. Such would be the guaranty of an in fant's promise, 7 N. H. 368 ; and this is ac cordingly so held, 20 Pick. Mass. 467; 4 Me. 521 ; though a distinction has been made in the ease of a married woman, 4 Bingb. 470 ; but the promise is collateral where the mar ried woman has separate property which she ean charge with the payment of her debts, a,nd the credit is given exclusively to her. 6 Ga. 14.
So where the liability is unascertained at the dine of the promise, the promise is origi nal; as the liabilities must concur at the time of the undertaking to make a guaranty. Browne, Stat. Fr. 196 ; 1 Salk. 27 : contra, Atnbl. 330. Under this head would come a promise to pay a liability for tort, there being no principal liability until judgment, 1 Wils. 305; or where the liability rests upon a future award, 2 All. Mass. 417; and liability upon indefinite executory contracts in general.
The promise is clearly original where the promisor undertakes for his own debt. The Rule is, unless the promisor hiinself or his property is ultimately to be made liable in de fault of the principal debtor, the statute does not apply. Browne, Stat: Fr. 177. Thus, an engagement by one who owes the principal debtor to retain the principal debt, so that it may be attached by trustee or garnishee pro ass, is not a collateral promise. 9 Pick. Mass. 306 ; 20 Conn. 486 ; 1 Bingh. N. R. 103.