The judgment of the Supreme Court was entered,
— No question was raised in the court below upon the sufficiency of the evidence to establish the promise relied on to pay the plaintiff out of the funds lodged by his debtor in the hands of the defendant. The jury having found the promise or undertaking of Mr. Justice to Philip Wilson to pay E. Gr. Stones & Co. their debt out of the funds then placed by Wilson in the hands of Justice, the case falls within the class known as the exceptions to the Statute of Frauds, and the promise is not simply to pay the debt of another, hut to hand over funds appropriated by the debtor himself to the creditor for whose use he deposits them. In such case the creditor, though not present, is the party to be benefited, and becomes the owner of the fund thus impressed with a trust for him and can sue for it: Townsend v. Long, 27 P. F. Smith 143.
Judgment affirmed.