So in Thayer v. Rock, 13 Wend. 53, it was held, that a contract made as well for the sale of real as of personal property, which is entire, founded upon one and the same consideration, and is not reduced to writing, is void, as well in respect to the personal as the real property, the subject of the contract. See also, ante, vol. i p. *454. And see next note.

(h) Mavfield v. Wadsley, 3 B. & C. 357. In Wood v. Benson, 2 Cromp. & J. 94, an action was brought by the clerk of the Manchester Gas Works, on the following guaranty, signed by the defendant: "I, the undersigned, do hereby engage to pay the directors of the Manchester Gas Works, or their collector, for all the gas which may be consumed in the Minor Theatre, and by the lamps outside the theatre, during the time it is occupied by my brother-in-law, Mr. Neville; and I do also agree to pay for all arrears which may be now due." The declaration contained the common counts. It was objected by the defendant, 1st, that there was no consideration apparent on the face of the instrument for the promise to pay the arrears; and, 2nd, that the agreement, being therefore void as to part under the statute of frauds, was void as to the whole. And in support of the second objection, he cited Lea v. Barber, Lexington v. Clarke, Chater v. Beckett, and Thomas v. Williams. But the objection was not sustained. Bat/ley, B., said: "I take it to be perfectly clear that an agreement may be void as to one part, and not of necessity void as to the other. There are many cases in the books where a contract has been held good in part and bad in part. A bond may be good; though the condition is good in part and illegal in part. I am therefore of opinion that it by no means follows that, because you cannot sustain a contract in the whole, you cannot sustain it in part, provided your declaration be so framed as to meet the proof of that part of the contract which is good. In each of the cases referred to for the purpose of showing that the contract, if void in part, was void in toto, there was a failure of proof. The declaration in each of those cases stated the entire promise, as well that part which was the plaintiff sues on a written contract, and must show oral * alteration in order to maintain his action, this is no compliance with the statute, (i)

If the chattel is to be paid for by a credit for the price given by the buyer to the seller, and the chattel is not actually delivered, and the buyer gives no credit on his account-books, the statute is not satisfied, (ii)

Let us now look at the particular clauses of the fourth and seventeenth sections.

The first clause relates to the promise of an executor or administrator to answer damages out of his own estate. In regard to this it has been held, that where an executor gives a bond to the judge of probate to pay debts and legacies, this is an admission of assets, and estops him from denying them; and therefore a promise by him to pay a debt of the testator will be taken to pay it out of sufficient assets, and therefore not to be a promise "to answer damages out of his own estate," and consequently not within the statute; and it need not be in writing.(j) In those States in which the written agreement or memorandum should contain the consideration, some new consideration must be shown; but a very slight consideration suffices.

There is said to be this difference between an executor and an administrator. An executor derives his title from the will of his testator, and the office and interest are completely vested in him, by the testator's death, and his promise is within the statute, although made before probate of the will. But an administrator derives title from the probate; and if he make a promise in expectation of administration, but before the actual grant, this promise is not within the statute, although he subsequently becomes administrator. (k) void as that which was good. I think, therefore, that these cases are to be supported on the principle of the failure of proof of the contract stated in the declaration; but that they do not establish that, if you can separate the good part from the bad, you may not enforce such part of the contract as is good. I am therefore of opinion, that the verdict must stand for the amount of the gas subsequently supplied." To the same effect is Rand v. Mather, 11 Cush. 1. That was an action for work and labor on three houses belonging to the defendant. The plaintiff began his work under a contract with one Whiston, who was building the houses for the defendant. Whiston failed, and the plaintiff refused to go on with his work The defendant then told the plaintiff to proceed with his work, and he would pay him for what he had done, as well as for what he should do. The plaintiff then went forward and finished his work. The declaration contained the common counts. It was objected by the defendant, that, as a part of the contract was clearly within the statute of frauds, the whole must fail. But the objection was overruled, and the court held, in conformity with Wood v. Benson, that the plaintiff was entitled to recover for the work done subsequent to the defendant's promise.

(i) Dana v. Hancock, 30 Vt. 616.

(ii) Brabin v. Hyde, 32 N. Y. 519.

(j) Stebbins v Smith, 4 Pick. 97. But see Silsbee v. Ingalls, 10 id. 526.

(k) Tomlinson v. Gill, Ambl. 330.

The second clause relates to a promise "to answer for the debt, default, or miscarriage of another person." This clause covers all guaranties, and is of great importance in reference to them. Its general effect is, to make it necessary that all collateral prom-ises should be in writing. The distinction between those which are collateral and those which are original has already been considered; and it is sufficient to say, in this connection, that only when the promise is distinctly collateral, is it * within this clause of the statute. (l)1 Nor is it then material whether the promise is made before or after the delivery of the goods, (m)