A charge, "for that in consideration that the plaintiff would discharge one V. a third person, from a certain debt, the defendant promised to pay it;"

And "for that the said V. being so indebted to the plaintiff, in consideration that he would forbear to prosecute said V. the defendant promised to pay V's said debt;"

And "for that V. being indebted to the plaintiff for goods sold and delivered by the plaintiff to said V. the defendant in consideration thereof, promised to pay for them, &c." being all parol promises, are within the statute of frauds, and not actionable.

Saxton for plaintiff.

The opinion of the Court, was delivered by

HORNBLOWER, C. J. Landis, the plaintiff below, demanded

SAXTON V. LANDIS.

of Saxton, thirty dollars, First, for that one William Vandervere being indebted to the plaintiff in twenty five dollars, on a book account, the defendant in consideration thereof, and that the plaintiff would release and discharge the said Vandervere from the payment of the same, undertook and promised to pay the defendant (meaning no doubt the plaintiff) the said debt, and avers that he, the plaintiff, did discharge the said Vandervere from the payment thereof, &c. whereby, &c.

Secondly, For that the said Vandervere being so indebted to the plaintiff, the defendant in consideration that the plaintiff would forbear to prosecute the said Vandervere therefor, undertook and promised the plaintiff, to pay him the said debt; and avers that he did forbear, &c. whereby, &c.

Thirdly. For that the said Vandervere being indebted to the plaintiff as aforesaid, for goods, &c. sold and delivered by the plaintiff to the said Vandervere, the defendant in consideration thereof, and that the said goods &c. were delivered over to him "by the said Vandervere, or by the plaintiff, undertook and promised to pay the said debt; and the plaintiff avers that the said goods, &c." were delivered over to the defendant, whereby, &c. These promises are laid on the first of June, 1832.

And lastly, The plaintiff claims a small account of eightyseven and a half cents, which he has against the defendant.

On the trial before the Justice, the plaintiff below, instead of a book account against Vandervere, or a claim for goods sold and delivered to him, offered, and the Justice received in evidence, a judgment recovered by the plaintiff against Vandervere, by confession, the twenty-second of June 1832, before George Rea, a Justice of the Peace, for twenty-three dollars eighty-seven and a half cents with costs, and an execution which had been issued thereon to William Bradshaw, a constable, on the second of July, 1832.

It is hardly necessary to say that this judgment and execution did not support the plaintiff's allegations. If they are true, it was a book account, or an account for goods sold and delivered, which the defendant promised to pay for, and there is no allegation whatever that he promised to pay off a judgment and execution against Vandervere. But again, the first promise is laid in consideration that the plaintiff would release and discharge Van

SAXTON V. LANDIS.

dervere &c. and this promise is said to have been made on the first of June, 1832, and the plaintiff avers that he did on that day release him: and yet on this trial, he produces a judgment and execution in full force against Vandervere! Not only so, but the second promise, also laid on the first of June 1832, was made, the plaintiff says, in consideration that he would forbear to prosecute Vandervere, and yet by his own shewing, he soon afterwards, to wit on the twenty-second of June and second of July, 1832, did prosecute him to judgment and execution! As to the third promise in consideration that the goods were delivered to the defendant, by the plaintiff or Vandervere, there was no evidence given,so far as appears. William Bradshaw and some other witnesses were sworn and examined on the part of the plaintiff, and the jury rendered a verdict in his favour, for twenty-five dollars, for which, he recovered judgment with costs.

From this judgment, Saxton appealed, and the appeal came on to be heard upon a state of the case made by the parties, on the twenty-first of September 1835, when the Court of Common Pleas ordered "that the judgment below be affirmed with costs.

This being the form in which the judgment of the Common Pleas has been entered in this case, it must be reversed upon the authority of repeated decisions of this Court-Woodruff v. Badgely, 7. Halst. 367; Darnell v. Lee, Id. 368; Hann v. Gosling, 4 Halst. 248. In Hendricks v. Craig, 2 South. R. 567, the proper form of entry is given by the Court.

But it may prevent further litigation between the parties, to remark, that the promise, if any, made by the defendant, (except as to eighty-seven and a half cents) was to pay a debt due the plaintiff from another man; and yet the plaintiff fails to produce or shew that the defendant or any person by him authorized to do so, ever signed any memorandum or note in writing, of such promise, as is required by the statute of frauds and perjuries. (Rev. Laws, 152, Sect. 14.) And it may be added with great propriety, that none of the evidence in the state of the case, supported in any manner, the plaintiff's state of demand.

Upon every ground, therefore, the judgment must be reversed.

FORD, J. and RYERSON, J. concurred.

Judgment Reversed.

CRANE v. FREESE.

On Scire Facias against Garnishee in attachment.

Money, whether in specie or bank notes, (which are treated, civiliter, as money,) if in the defendant's possession, or capable of being identified as his property, may be taken in execution, or under an attachment. But money in a sheriff's hands, raised by him on execution, cannot be by him applied in payment of another execution in his hands against the person who is plaintiff in the first execution, and defendant in the second; for it is not his goods and chattels until paid over to him. Nor can such money in the sheriff's hands be seized as money under an attachment in his hands, for the same reason. But the attachment may be served thereupon as a right and credit of the defendant, in the sheriffs's hands. The sheriff should not deliver the money to the auditors, but bring it into Court, and inform the plaintiff or auditors in attachment, that he has done so.

This cause was submitted at November term 1837, on the following,

It is hereby agreed on behalf of the attorneys for the plaintiff and defendant in this cause, to submit to this Court, the following state of the case, for adjudication, upon which, this cause is to be decided, and judgment on the scire facias, is to be entered accordingly; viz:

A writ of attachment was issued out of this Court, of the term of May 1836, in favor of the above named Jacob Crane v. John W. Aymar and James D. Aymar, as non-resident debtors, directed to the sheriff of the county of Warren in this state, the above named Abraham Freese, for the sum of one thousand five hundred and eleven dollars and eighty-four cents, upon affidavit filed in the sum of seven hundred and fifty-five dollars and ninety-two cents.

The said sheriff returned said writ of attachment, as directed by the statute, with an inventory of certain monies and credits viz: that he had levied upon and attached the sum of three hundred and fifty dollars, in his hands, made by virtue of an execution also in his hands, in favor of the defendants, in the above stated writ of attachment, against one Henry D. Swayze, issued

CRANE V. FREESE.

out of the Inferior Court of Common Pleas of said county of Warren, on the twenty-fifth day of August 1835, for the sum of one thousand two hundred and twenty dollars and ninetyfour cents; and further returned the balance to be made by virtue of said execution, upon said writ of attachment, as credits levied upon and attached, belonging to the defendants Aymars, in the hands of said Swayze, as by copy of said return hereto annexed.

In the term of February 1837, of the Supreme Court, judgment upon said attachment was had; and in the following term of May, a writ of scire facias, was issued out of this Court, in favor of said Jacob Crane, the plaintiff in said attachment, against the said Freese the sheriff, commanding him to shew cause at the September term, why judgment against him should not be had, and execution thereon, for the monies so attached by him, and returned by him on said writ.

William C. Morris esq. entered an appearance during said term, for said Freese, and agreed to submit to this Court, this statement of facts for the adjudication of the Court.

"By virtue of the above stated writ, I have this tenth day of June 1836, attached in the presents, of Isaac Freese, a freeholder, all the goods and chattels, rights and credits, moneys and effects, lands and tenements of John W. Aymar and James D. Aymar, as follows:

In my hands, collected by me as sheriff of Warren county, on an execution in favor of John W. Aymar and James D. Aymar, v. Henry D. Swayze, about three hundred and fifty dollars,