A promise to become surety for any amount of silver up to a stated amount which one might place in the hands of another for man ufacture is also held an original promise ; Marquand v. Hipper, 12 Wend. (N. Y.) 520; an agreement to repay expenses to be incur red in providing a funeral for the brother of the promisor ; McNamee v. McNamee, 9 N. Y. St. R. 720; an agreement by a solicitor to pay the amount required of his client as the condition of a continuance, where the terms were not accepted by his client ; Samp son v. Swift, 11 Vt. 315.
Where the surrounding circumstances show that it was the intent of the promisor, in us ing language of this character, to be bound primarily, he will be held as an original promisor; Davis v. Patrick, 141 U. S. 489, 12 Sup. Ct. 58, 35 L. Ed. 826; Meldrum v. Kene fick, 15 S. D. 370, 89 N. W. 863; Higgins v. Hallock, 60 Hun, 125, 14 N. Y. Supp. 550 affirmed, 138 N. Y. 606, 33 N. E. 1082.
An agreement by an employer of labor that he would see the board of his laborers paid has been held an original promise; Grant v. Wolf, 34 Minn. 32, 24 N. W. 289; Knig v. Lumber Co., 80 Minn. 274, 83 N. W. 170; Marr v. R. Co., 121 Ia. 117, 96 N. W. 716.
It is said that "a mere promise of indem nity which is not collateral to any liability on the part of another, either express or implied, is not within the statute, and such a case illustrates the rule that when there is no principal, the promise need not be in writing. On the other hand, when the prom ise to indemnify is in fact a promise to pay the debt of another, then clearly such prom ise is within the statute, and the fact that it is in form a promise to indemnify will make no difference." Brandt, Sur. & Guar. § 59. See 4 B. & S. 414.
When the principal obligation is void, voidable, not enforceable, or unascertained, the promise is original, there being in this case no principal obligation to sustain the promise as collateral; Browne, Stat. Fr. § 156. It may be questionable, however, whether the promise will in such case he original unless the promisor knows the prin cipal liability to be void or voidable; Burge, Surety 6; but this question may be settled by the principle that where credit is given to the principal, notwithstanding his obligation is void or voidable, the promise of the sure ty is collateral ; 4 Bingh. 470; Conn v. Co burn, 7 N. H. 368, 26 Am. Dec. 746; but if no such credit Is given or implied, the promise is collateral. See Erwin v. Downs, 15 N. Y. 576; Drake v. Flewellen, 33 Ala.
106; Veazie v. Willis, 6 Gray (Mass.) 90. Such would be the guaranty of an infant's promise; Conn v. Coburn, 7 N. H. 368, 26 Am. Dec. 746 ; and this is accordingly so held ; Chapin v. Lapham, 20 Pick. (Mass.) 467 (but see Dexter v. Blanchard, 11 Allen (Mass.) 365, contra, as to the promise of a father to pay the debt of a minor son); Nor ton v. Eastman, 4 Me. (Greenl.) 521; though a distinction has been made in the case of a married woman; 4 Bingh. 470; L'nangst v. Fitter, 84 Pa. 135; Davis v. Statts, 43 Ind. 103, 13 Am. Rep. 382; but the promise is collateral where the married woman has separate property which she can charge with the payment of her debts, and the credit is given exclusively to her; Connerat v. Gold smith, 6 Ga. 14.
Where the defendants were sureties on a note given by a minor, who dissaffirmed the contract upon attaining his majority, the defendants were not liable on the note; Keokuk County Bank v. Hall, 106 Ia. 540, 76 N. W. 832 ; but, in Gates v. Tebbetts, 83 Neb. 573, 119 N. W. 1120, 20 L. R. A. (N. S.) 1000, 17 Ann. Cas. 1183, it was held that the general rule is that one who becomes surety for a married woman, minor or other person, incapable of contracting, is not released by a discharge of the principal debtor.
Where the liability is unascertained at the time of the promise, the promise is origi nal ; as the liabilities must concur at the time of the undertaking to make a guaran ty; Browne, Stat. Fr. § 196; 1 Salk. 27; contra, Ambl. 330. Under this head would come a promise to pay damages for a tort, there being no principal liability until judg ment ; 1 Wils. 305; or where the liability rests upon a future award ; Jepherson v. Hunt, 2 Allen (Mass.) 417 ; and liability upon indefinite executory contracts in general. It is, however, said that the liability may be prospective at the time the promise is made. See Huffcut's Ans. Contr. 72.
The promise is clearly original where the promisor undertakes for his own debt. The rule is, unless the promisor himself 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 princi pal debtor to retain the principal debt, so that it may be attached by trustee or gar nishee process, is not a collateral promise ; Towne v. Grover, 9 Pick. (Mass.) 306; Ellen wood v. Fults, 63 Barb. (N. Y.) 321; Dee v. Downs, 50 Ia. 310.