BROOKS VS. DENT. 531

Brooks, Stephens & Co. requesting them to let Mr. Stewart
have goods.

The witness then goes on to speak of another conversation
with Mr. Brawner, immediately preceding the August term of
the County Court in 1838, when he begged the witness not to
sue him, and to write to Chauncy Brooks that he would cer-
tainly make an early arrangement to pay the money—that the
witness did write accordingly, desiring him to indulge Mr. Braw-
ner, and that he would not sue him, as he considered Mr. Braw-
ner perfectly safe, and that Mr. Brooks left it to his discretion.
And upon cross-examination the witness isaid, that "the letter
stated that he, Henry Brawner, would be answerable for any
goods bought by Stewart from Brooks. It was dated, as
nearly as I [he] can recollect, in 1836, and before the date of
the account, which Mr. Brawner recognized to be correct, and
promised to pay."

If, therefore, Stewart is liable upon this contract, and the en-
gagement of Brawner is to be regarded as a collateral promise,
which, however, does not necessarily follow from the fact that
the account is made out against Stewart, still, the undertaking
being in writing, and the consideration being likewise in writ-
ing, *he case seems entirely free from difficulty, even if the
English construction of the statute of frauds, requiring both to
to be in writing, be adopted here.

I am, therefore, of opinion, that the statute of frauds is no
defence against this claim, and that it is sufficiently proved.

I do not understand it to be insisted that the personal estate
of the deceased is adequate to pay his debts, and, my opinion
is, that there is satisfactory evidence of the insufficiency to
authorize a decree for the sale of the realty.

The counsel for the complainants may, therefore, prepare a
decree foT that purpose, in which the question in reference to
the liability of the estate of the deceased, for the whole amount
of the note before mentioned, will be reserved, and with a fur-
ther reservation of the right of Mrs. Brawner, or her personal
representative, to establish her claim as a creditor, with respect