case BURKMIRE against darnel easter term whether roll if a be about to hire a  horse from b and c in order to encourage b to lend the horse say to he let a  have the horse and I undertake that he shall redeliver it to you safe this be  a collateral promise within car c and void it not be in write S C salk SC salk  SC holt a action on the case the declaration state that in consideration that  the plaintiff at the request of the defendant will let a certain gelding of  his out to hire to I S the defendant undertake that the say I S will redeliver  it to the plaintiff that be accord do let he out his gelding but that I S  never redeliver he at the trial it appear upon evidence that I S come to the  plaintiff to hire a horse from he that the plaintiff mistrust be unwilling to  let he have his horse and that thereupon the defendant come and desire he to  let he have it and say that he will undertake that I S shall redeliver he safe  the chief justice doubt whether this promise be not void by the statute of  fraud car c a and perjury it be not reduce into write direct a verdict for the  plaintiff but save they the matter to be take advantage of above darnel  sergeant now argue that it be void by the statute car c if the word have be  let he have the horse and if he do not redeliver he I will that have be plain  within the statute for it be answer against the default of another and the  undertake here be the same in substance for it be that he shall do that which  by law he be bind to do and that be answer for the default of another indeed  if the whole credit and reliance have be upon the defendant account so as the  plaintiff can have no remedy against I S for the nondelivery it have be  otherwise and modern be quote a case in the second year of the late king and  queen where it be resolve upon this difference that where the plaintiff modern  er p have a action against the party for who the undertake be no action will  lie against the undertaker without the promise be in write but not where no  action lie against the party for then the whole credit be entire upon account  of the undertaker and the other be look upon as his servant and the sale and  contract in judgement of law be to the undertaker though the delivery be to  the other party as his servant as if a come to b and tell he hire your horse  to I S and I will see you pay the hire there the hire be to a and not I S who  be consider as a servant to a Raymond contra I agree the difference take by Mr  sergeant but will make a quite contrary inference from it so the point between  we must depend upon the fact of the agreement and yet I will distinguish upon  the say diversity it be say that where a action lie against the party it will  not lie upon a parole promise against the undertaker and that be true where a  action lie against he upon the original contract or agreement but where a  action lie against he upon a matter collateral to the contract I deny the rule  the word of the statute show that the undertake make void be a undertake for  the party perform the original contract and here upon the original contract no  action will lie against I S for not deliver back the horse though indeed if he  refuse to do it upon request detinue or trover will lie against he not upon  the contract but upon the subsequent tort of keep that from we which of right  we ought to have and which belong to we curian clear the word default of  another in the statute car c be the default of another in perform his contract  and if the whole credit be not entire give to the undertaker so as no remedy  lie against the party upon the contract but that the undertaker come in aid of  the credit give by the contract to the party the undertake will be within the  statute the court also agree the case put by darnel sergeant and further say  that if two person go to a draper and one of they say let this person have so  much cloth and I will see you pay there the sale be to the undertaker only  though the delivery be to another by his appointment but if the contract be  make with a and the vendor scruple to let the good go without money and b come  to he and desire he to let a have the good and undertake that a shall pay he  that will be a promise within the statute so the whole question will be  whether the plaintiff have any remedy upon the contract against I S and darnel  sergeant insist on it that there be a remedy upon the bailment against I S by  contract in law modern but by holt chief justice and Powell justice there be  no such thing as a contract or promise in law though there be such expression  in some book at another day they declare that upon a conference with the other  judge they have bad great debate and variety of opinion on this case and that  many think it out of the statute for this reason that the horse be let out  whole upon the credit of the defendant that it shall be redeliver but we say  he of this court be unanimous agree that it be within the statute for it be a  undertake for the act and to make good the default of another it have be  object that if the party do not redeliver he the plaintiff have no remedy  against he upon the contract except only in trover and conversion upon the  subsequent tort in case of demand and refusal and that therefore they do not  think he within the meaning of the statute because it be a remedy accrueing  from a wrong after the contract but there be a way to charge he upon the  original delivery or bailment for the bailment be such as in its nature  require a redelivery and if the bailee will not redeliver the thing bail the  proper and only adequate remedy be a action of detinue against the bailee  therefore this promise of the defendant that I S shall redeliver the horse  bail for which there lie a remedy against the say I S upon the bailment be a  collateral promise and therefore a promise to answer for the act and default  of another and by consequence within the statute so if two come to a shop and  one of they contract for good and the seller do not care for trust he  whereupon the other say let he have they and I will undertake he shall pay you  that be a undertake for the act and default of another and within the statute  but if the promise be I will see you pay or I will be your paymaster it be  otherwise and by the whole court the verdict be set aside see Jones v Cooper  where a parole promise make before delivery of the good a modern er p