BURKMIRE versus darnel mich Ann Mod c in case the plaintiff declare that in  consideration that at the request of the defendant he will let a certain  gelding of his out to hire to I S he the defendant holt KB er p do undertake  the say I S will redeliver he to the plaintiff that accord he do let he out  his gelding but that I S do never redeliver he at the trial it appear upon  evidence that the say I S come to the plaintiff to hire a horse from he who  mistrust be unwilling to let he have his horse whereupon the defendant holt KB  come and desire he to let he have it and that he will undertake J S will  redeliver he safe and holt c j doubt whether this promise be not void by the  statute of fraud 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 see the  argument of counsel in the book at large per holt c j and Powell I there be no  such thing as a contract or promise in law though there be such expression in  some book but at another day they declare that upon conference with the other  judge they have great debate and great variety of opinion in 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 and where  it have be object that if so be the party do not redeliver he the plaintiff  have no remedy against he upon the contract but only in trover and conversion  upon the subsequent tort in case of demand and refusal and therefore they do  not bring he within the meaning of the statute for 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 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 Act but  if the promise be will see you pay or I will be your paymaster it be otherwise  et per tot cur verdict set aside holt KB property