A rented a house of B, and he underlet to C, arid he left indebted to B, while B was also -indebted to A for the rent. B sued out an attachment against C, which was placed in the hands of D, a constable. The property attached was sold by order of a justice of the peace. Before the sale it was agreed between A, B & C, that C should pay to A his debt, and A discharged B of his liability. D sold the goods and received the. money and paid it to the justice o-f'the peace previous to the judgment rendered in favor of B. A demanded the money of D which he refused to pay over, the munev being in the. hands of the justice. An attachment was sued out from another justice of the peace, by other creditors ofB, and the first justice of the peace garnisheed, &c. A sued D the constable. Held that he could not recover and that the promise not being in writing was within the statute of frauds.