BUCKMYR vers Darnall SC S m l c that ed refer to mount Stephen v Lakeman lr Q  b SC Mod salk salk holt a promise that a three person shall do a act for the  nonperformance of which he will be liable to a action be not bind unless it be  write a action upon the case wherein the plaintiff declare that the defendant  in consideration the plaintiff at his request to place et to weigh well cuidan  josepho English a gelding of the plaintiff ad equitand et itinerandum usque ad  read in county Berks assumpsit et to let go the plaintiff quod the say Joseph  and Charles the say gelding to the plaintiff redeliberarent c upon non  assumpsit plead this cause come to trial before holt chief justice at  westminsterhall and the counsel for the defendant insist that the plaintiff  ought to produce a note in write of this promise within the statute of fraud  car c S and the chief justice doubt of it a case be make of it and order to be  move in court to have the opinion of the other judge and now it be argue this  term by sergeant Darnall for the defendant and by Mr Raymond for the plaintiff  and it be insist for the defendant that this case be within the statute of  fraud car c S for it be a promise to answer for the default and miscarriage of  the person the horse be lend to the very let out and delivery of the horse to  English imply a contract by English to redeliver he and he be bind by law so  to do and consequent the defendant be to answer for the default of another in  a case will and mark your lordship settle this rule that where a action will  lie against the party himself there a undertake by I S be within the statute  and where no action will lie against the party he Lord Raymond self there it  be otherwise and therefore e I agree this case that if a man shall say to  another do you build a house for I S and I will pay you that case be not  within the statute because there I S be not liable but this case be not more  than this if a man shall say do you let I S have good and if he do not pay you  I will and this be within the statute because a action will lie against I S  for the money for the good or if a man shall say take I S into your service  and if he do not serve you faithful or if he wrong you I will be responsible  that be also within the statute to this it be answer for the plaintiff that  here the credit be whole give to Lord Raymond er p the defendant that that  rule of the sergeant must be understand where a action do or do not lie  against the party himself on the contract and not where a action do or do not  lie against he upon collateral respect and therefore in this case for a actual  conversion or for refuse to redeliver the horse English may be charge in  trover or detinue yet he be not Chargeable upon the contract the case be not  within the statute this contract can be say proper to be a promise to answer  for the default or miscarriage of another unless English be liable by the  first contract upon the first motion and argue this case the three judge  against powys seem to be of opinion that this case be not within the statute  because English be not liable upon the contract but if any action can be  maintain against he it must be for a subsequent wrong in detain the horse or  actual convert it to his own use and Powell justice say that that rule of what  thing shall be within the statute be not confine to those case only where  there be no remedy at all against the other but where there be not any remedy  against he on the same contract this case be just like the case where a man  say send good to such a one and I will pay you that be not within the statute  for the seller do not trust the person he send the good to so here the  stablekeeper only trust the defendant and a action on the contract will not  lie against English but for a tort subsequent he may be charge in detinue or  trover and conversion which be a collateral action powys justice say that  there be a trust to English for the very lend of the horse necessary imply a  trust to the person he be lend to and consequent the defendant in this case be  to answer for the default of another and be within the statute Powell justice  agree that if a man shall say lend I S a horse and I will undertake he shall  pay the hire of it or send I S good and I will undertake he shall pay you that  those case will be within the statute and agree with powys that if any trust  be give to English then the case will be within the statute but he and the  chief justice and gold hold that here be no credit give to English and the  chief justice agree with he that if there have this promise will have be but a  additional security and within the statute and the chief justice say that if a  man shall say let I S ride your horse to read and I will pay you the hire that  be not within the statute no more than if a man shall say deliver cloth to I S  and I will pay you he say also that a bailee of a horse for hire be not bind  to redeliver he at all event but if he be rob of he without fraud in he he be  excuse and so it be rule in the case of come v Bernard ante the last day of  the term the chief justice deliver the opinion of the court he say that the  question have be propose at a meeting of judge and that there have be great  variety of opinion between they because the horse be lend whole upon the  credit of the defendant but that the judge of this court be all of opinion  that the case be within the statute the objection that be make be that if  English do not redeliver the horse he be not Chargeable in a action upon the  promise but in trover or detinue which be find upon the tort and be for a  matter subsequent to the agreement but I answer that English may be charge on  the bailment in detinue on the original delivery and a detinue be the adequate  remedy and upon the delivery English be liable in detinue and consequent this  promise by the defendant be collateral and be within the reason and the very  word of the statute and be as much so as if where a man be indebt J S in  consideration that the debtee will forbear the man shall promise to pay he the  debt such a promise be void unless it be in write suppose a man come with  another to a shop to buy and the shopkeeper shall say I will not sell he the  good unless you will undertake he shall pay I for they such avid t r h Bl a  promise be within the statute otherwise if a man have be the person to pay for  the good original so here detinue lie against English the principal and the  plaintiff have this remedy against English the principal can have a action  against the defendant the undertaker unless there have be a note in write Lord  Raymond er p