v.

sale, the deputy acted as the agent for the creditors, and had WINDHAM, February, paid to the prior attaching creditors an amount equal to what 1843. he had received at private sale, and said he had sold, at Kimball & Co public auction, enough to satisfy the plaintiff in that case. If, however, the decision was directly on the point involved in the case before us, its authority could not be recognized, as we conceive it would controvert all the cases in New York, in this state, and in England, to which I have referred.

This view of the case answers all the exceptions. There was no offer to prove that the deputy had received any money, by the sales, under five dollars, unaccounted for; and his not returning the execution was consistent with the instructions he received. In short, it cannot be contended that he acted partly as deputy sheriff, and partly as agent for the creditors. As Russell, the deputy, did not proceed in the ordinary line of his duty, but deviated therefrom, and proceeded in a way not known to the law, by the direction of the plaintiffs' attorney, the defendant cannot be held accountable, unless he should be considered as unjustifiable, in consequence of his deputy's pursuing those instructions.

A question is, then, raised whether the attorney, Mr. Sheafe, was authorized to give those instructions. Of the authority of an attorney to give such instructions, at the time he gives to the sheriff executions, and the duty of the deputy to follow them, unless notified to the contrary by the creditors, we have no doubt. An attorney, employed to collect a demand when the creditor lives at a distance, and cannot be consulted, combines the character of agent and attorney. This was recognized in the case of Briggs v. Georgia, 10 Vt. R. 70. In the absence of his employer, he may pursue such a course as is apparently for the interest of his employer, and such as he would probably direct, if present. Crooker v. Hutchinson, 2 D. Chip. R. 117, and 1 Vt. R.73. The attorney may direct on what property an execution shall be levied - whether on land or personal property; and that he may give instructions in relation to the levy, sale, and service of the execution, appears from the cases of Gorham v. Gale, 7 Cowen, 739, before mentioned; Porter v. Viner, 1 Chitty, 613, and Strong v. Bradley. Indeed, some of these cases may be considered ad idem with the present. The interest of the plaintiffs was undoubtedly considered, as

Perry.

v.

Ingraham.

WINDHAM, there were several attachments prior to theirs, and the sales February, 1843. on credit afforded the fairest prospect of their realizing the Newell debt. It is not said, or pretended, that the attorney acted contrary to any direction, instruction, or wishes of the plaintiffs; but he acted in common with the other creditors. The execution was not discharged by giving those instructions; and the only effect was, that the plaintiff must resort to the deputy, and not to the sheriff, to recover whatever money, notes, or other securities, he may have received on those sales. Russell received the notes and securities as agent for the creditors, including the plaintiffs, and is entitled to a compensation for his services in his agency, to be adjusted in a suit between him and the creditors; but as he was directed to deviate from the course prescribed by statute, by the attorney having authority to give those directions, the defendant is not responsible.

The judgment of the county court is therefore affirmed.

OLIVER P. NEWELL V. EPHRAIM INGRAHAM, Jr.

L. having a contract for carrying the mail, and having contracted with N. to carry the same for a stipulated sum, transferred to I. the right to receive from the Post Office Department a part of the money to become due for the transportation, reserving to N. a certain portion thereof; whereupon I. requested N. to carry the mail for him, and promised to see him paid. The contract between L. and N. remained unrescinded and uncancelled. Held, that the promise of I. was within the statute of frauds.

THIS was an action of book account.

There was a judg

ment to account, and reference to an auditor. The auditor
reported that the plaintiff exhibited the following account.

Ephraim Ingraham, jr., To Oliver P. Newell,
January 1, to July 1, 1841.

To carrying the U. S. mail from Cambridge Port

Vt. to Londonderry, Vt.

Dr.

Cr. By cash,

Interest on balance,

$50

36

$14

1.05

$15.05

February,

1843.

Newell

D.

Ingraham.

The auditor found, and reported, That Simeon Leland WINDHAM, had a contract with the United States for carrying the mail on the above route, and that, on the 1st of July, 1840, he made a contract with the plaintiff to carry the mail on said route for one year from that date, for the sum of $100, to be paid in quarterly instalments; that, on the 13th of November, 1840, Leland, in consideration that the defendant had become surety for him, transferred to the defendant, by an instrument in writng, the right to receive from the post-office department the sum of $60, out of the money Leland was to receive for carrying the mail, the last two quarters of the year commencing July 1, 1840, reserving $50 to pay the plaintiff for the carrying of the same, said last two quarters; that, in the month of December, 1840, the defendant notified the plaintiff of said transfer, and requested him to carry said mail for him, on the same conditions on which he was to carry it for Leland, and promised to see him paid; that the plaintiff carried the mail to the end of said year, and had received but $36 therefor, which had been paid him by Leland, upon the application of the defendant; that no part of the said sum, assigned by Leland to defendant, ever came into the hands of the latter, but that the whole or nearly the whole amount for carrying said mail, had come into the hands of Leland, who retained it; and that the contract between Leland and the plaintiff was never cancelled, and no conversation was ever had between them about the discharge of either of the parties from their liability thereon, and that Leland relied upon said contract, as security for the carrying of said mail, by the plaintiff.

The auditor thereupon reported, that the said promise of the defendant to the plaintiff, came within the statute of frauds, and that the defendant recover his costs; but he further reported that if the court should be of opinion that the promise did not come within said statute, then he found for the plaintiff, the sum of $15.05, to balance, &c.

Upon the coming in of this report, the county court adjudged the said promise to be within the statute of frauds, and that the defendant recover his costs, - to which the

It is to be observed that, in the case of Barber v. Fox, 1

Newell

v.

Ingraham.

as

WINDHAM, Stark. 270, (2 E. C. L. R. 386,) which has been heretofore February, 1843. relied on, the very bill of services for which the action was brought, was made out against the original promissor, appears by the statement of Ld. Ellenborough, in giving his opinion; and in Sinclair v. Richardson, 12 Vt. R. 33, the promise was, to pay for past as well as future labor, materials, &c.; so that, in both cases, it was an undertaking for the debt of another. In this last case, the English criterion was adopted, viz., whether the credit was given to the first or last promissor; and this was declared to be a question of fact proper for the jury. Id. 38; 1 H. Bl. 120. But this matter of fact is not found by the auditor; but only that the promise was within the statute of frauds, which is a conclusion of law merely..

If the plaintiff had paid the defendant a certain consideration for making his promise, there can be no doubt it would have been good; so, too, if he had forborne or given up any advantage, whereby he suffered a loss. Castles v. Aubert, 2 East. 332; 3 Esp. R. 87; 4 Taunt. 117; Selw. N. P. 831. But the statute of frauds is not to be construed to create, protect and assist fraud; and if it appeared that the defendant had taken an assignment of part ($60) of the fund out of which the plaintiff was to receive his quarterly payments, and notified the plaintiff thereof, and that he must look to him, the defendant, for payment, as it appears by the demand, the plaintiff did, he is not at liberty to avail himself of the statute, and, by this kind of collusion, cheat the plaintiff out of his debt.

-, argued for defendant.

The opinion of the court was delivered by

BENNETT, J.-The case does not find that the contract of the plaintiff with Leland, by which the former had undertaken to carry the mail from Cambridgeport to Londonderry, had been rescinded, or, in any way abandoned by Newell; but the contrary appears. It was still out-standing, and in full force. Upon the non-performance, by Newell, it gave a remedy to Leland for damages. When performed by Newell, it, at all times, furnished him the means of a remedy against Leland for his pay.

February,
1843.

State

v.

Chandler &

Keyes.

The undertaking, then, of the defendant, to see the plain- WINDHAM, tiff paid, though not in its terms, yet in fact, was collateral and ancilliary to the undertaking on the part of Leland; and there was no new and independent consideration, moving between the parties to this suit. The rule is well settled, that when the promise is ancilliary to, and in aid of, the promise of another, it is within the statute of frauds, This will always be the case, where there is no new and independent consideration, and there exists another, and a previous liability. This is the doctrine of Sinclair v. Richardson, 12 Vt. R. 33; and indeed runs through all the

cases.

Judgment of the county court is affirmed.

STATE V. PEYTON R. CHANDLER, and ROLLIN G. KEYES,

The penalty for "dealing in the selling of foreign or domestic distilled spirituous liquors" may be incurred by a single act of selling with out license.

The fact that the liquor is bought for medicine, does not exempt from the penalty.

The keeping and selling, by a retailer, of some of the articles used by apothecaries, does not constitute him an apothecary, but there must be combined therewith, skill in the preparation of medicines.

The supreme court can take no notice of a variance between the proof and en indictment, unless exceptions were taken, on trial, for that cause.

INDICTMENT for selling liquor without license. The indictment charged, that the respondents, on the 12th day of September, 1841, not having a license, &c., "did deal in the 'selling of domestic distilled spirituous liquors, in a less ' quantity, at one time, than twenty gallons, and did, then and there, sell, to one John Gray, one pint of alcohol, being domestic distilled spirituous liquor," &c.

Plea, not guilty.

On trial, the testimony for the state tended to prove, that the respondents were co-partners in trade, as merchants and apothecaries, and that John Gray, having a sick horse, and wishing to administer to him nitre and alcohol, called on the respondents, and so informed them, and purchased of them a quantity of nitre and a pint of alcohol, which were put into VOL. XV. S. R. VOL. I.

54

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