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By the Court

Sherburne, J.

This action was brought by the Plaintiff to recover a sum of money which he alleged to be due to him for hauling a quantity of goods from’W’atab in this Territory to the city of St. Paul. The action was tried before a jury and verdict rendered for the Plaintiff. The verdict was *308set aside by tbe presiding judge and a new trial granted. The cause was again tried by the Court, by consent of parties, and. a verdict rendered for the Defendant. It now comes before this Court by appeal from the District Court.

Among a great number of causes stated by the Plaintiff’s counsel why the judgment below should be reversed, the first twelve go to alleged errors of the District Court in granting a new trial. This has always been held a matter of discretion, and the order of the Court below not subject to review. It has been so held by this Court in a case not now reported.

The remaining points from thirteen to nineteen inclusive, go to the finding of the District Court at the last trial. The first objection which it is necessary to notice is, that the Court erred in finding that the goods transported by the Plaintiff were of the property of the-United States, because that question was not put in issue by the pleadings. This cause was twice tried in the District Court, and in both instances the question of property in the goods was made and testimony introduced relating to it without objection. This appears presumptively from the record. The objection appears for the first time in this Court. The objection comes too late. See Northrup & Huntley vs. Jackson, 13 Wend. R. 175; Whiting vs. Cochran, 9 Mass. R., 532; Johnson vs. Shea, 21 Pick. R., 225. The testimony went to show a want of consideratiou for the promise, and it is unnecessary now to inquire whether it should have been excluded if objected to, or not, for, having been introduced by tacit consent of the Plaintiff, he has waived the error, if error it was.

The fact having been found that the goods transported by the Plaintiff belonged to the United States, a question can hardly arise as to whether the Plaintiff acquired a lien upon them to the amount of his services in transporting them. Individuals obtain no lien upon property of the government as security for their services. Such a power might often subject the operations of the government to the wishes and caprice of common carriers. The authorities cited do not support the position, and it requires no argument to prove’ that it cannot be supported.

The Plaintiff having no lien upon the property, then, there *309was no consideration for the promise, and it was therefore void. But a question arises as to whether the promise was not void, admitting that there was a good consideration. The Defendant had a legal claim for his services, either against Fuller or Fairbanks. The Defendant directed the Plaintiff verbally to deliver the goods to Fuller, and if he did not pay for the transportation, the Defendant would. The Plaintiff contends that this contract or promise does not, upon the facts stated, come within the Statute of Frauds; and whether it does or does not is the question to be considered. It was a promise to pay the debt of Fairbanks or Fuller, if Fuller did not pay it. The original debt was not discharged, and even now remains in force unless it has been paid. The promise was not absolute but conditional. It was not an original undertaking, but a collateral one. It was made to pay a subsisting debt due from a third party to the Plaintiff. Such a promise is void, unless in writing, stating both the promise and consideration. I have examined the cases cited by the counsel for the Plaintiff, but they fail to sustain his position.

It is difficult to reconcile all the decisions upon the question, and quite as much so to establish any uniform rule by which all cases may be governed hereafter; but no instance has been shown where a mere verbal, collateral promise to pay the debt of another was held binding, except where the original debt was discharged, or the amount was placed in the hands of the promisor by which it might be discharged. Such cases have been held to be original undertakings, upon a new consideration and therefore not within the Statute. See Farley vs. Cleaveland, 4 Cow. 432, and eases cited. But in the case before us it cannot be contended that the Defendant received any benefit from a discharge of the lien, if the Plaintiff had any to discharge. The most which can be said is that the Plaintiff parted with a right which was of some value to him, although the Defendant was not benefitted. Such a consideration may be good if expressed in writing but not otherwise.

The case of Nelson vs. Boynton, 3 Met. R. 396, is in point. The Plaintiff had secured a demand which he held against a third person, by an attachment of his property. The Defendant made an absolute promise to the Plaintiff to pay the debt *310in consideration that the Plaintiff would release the property from attachment. This was done, but the Court held in an action upon the promise, that it was within the Statute and void.

See also Jones vs. Cooper, 2 Cowp. 227; Jackson vs. Rayner, 12, John, 291; Simpson vs. Patten, 4 John, 222, for a very clear and elaborate view of the subject. See also Farley vs. Cleaveland before cited.

Judgment below affirmed.

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