
    Crawford and others, Executors of Crawford, against Morrell.
    A contract must be proved ns laid in the plaintiff^ declaration. Up cannot give in cxidence an entire aonivixet relating to two distinct subjects, when lie declares only as to one of them.
    Where the plaintiff declared on a contract by which the defeiidimt, agreed to pay him a certain sum, for ken for a certain ¿óntráct''proved thaulie‘defomicV’T tiic variance was heidiatai.
    if part of one entire contract be illegal and void, (lie whole is tom —
    piaintift°dcciaved t”ict topay him fo.r ceiyun land given tor a public highway; and the contract proved was# that the defendant was to pay the plaintiff, not only for the laud given for the highway, but aho íbr a distinct ami separate piece of huid; it was held that the latter part of the contract being void by the statute of frauds, the whole, being an entire co:iEvaot, was void. /
    IN error, from the court of common pleas of Orange county.
    The defendant in error, brought an action of assumpsit, against the plaintiffs in error, as executors of David Crawford, deceased, in the court below. The second count in the declaration was, as follows : “ And whereas also, afterwards, in the life-time of the said David, to wit, on the 9th of May, 1802, at W., &c. a certain discourse was had and moved between the said David Crawford and fohn Morrell, touching and concerning a certain J J . road, before that time laid out and regulated by the commissmners of highways of, isc. and a certain ferry, leading from the Goshen road, so called, through the land of the said John, in, &c, to the east bank of the Wallkill, near, &c. being two rods wide, which said road, before then, and after it was so laid out, by the said commis1 J sioners and jury, to wit, on the 19th of April, 1802, had ^ _ ■* _ been, in due form of law, altered, by three of the judges p , p - p , . - of the court of common pleas of the said county, on an appeal to them, made by the said John, from the decision of the said commissioners and jury, &c. and the said decisión, &e. was in due form of law reversed and annul- * led, &c. by reason whereof, the said David was deprived of the use and enjoyment of the said road, &c. and became desirous that the said John should, for the benefit and advantage of the said David,, permit the said road, so far as it extended through the lands of the said John, to continue and remain open, &c. And it was then, &c. at the special instance and request of the said David, agreed and promised, by and between the said David and John, that the said John should suffer and permit the said road to remain open, &c. for the benefit and convenience of the said David, &c.; and that the said commissioners might lay out the said road, over and through the lands of the said John, as aforesaid, and that the same might, in due form of law, be recorded as for a road, &c. And the said David, on his part, agreed to pay to the said John, at the rate of 18 dollars and 75 cents, for the one half of the land included in the said road, so far as the said road extended across the lands of the said John, so soon as the same should be again laid out by the said commissioners, &c. And the said John avers that the one half of the lands so included in the said road, extending across the lands of the said John, is one acre and a half, amounting to 28 dollars and 12 cents. And the said John further avers that he hath in all things well and truly kept, fulfilled and performed all things in the said agreement, on his part, &c.; and that afterwards, in the life-time of the said David, to wit, on the 9th May, in the year aforesaid, in pursuance of the said agreement, did permit and allow the said road to be, remain, and continue open, &c.; and that the said road, in the lifetime of the said David, was laid out anew, &c.; and was, in due' form of law recorded, &c. Nevertheless,” &c.
    The defendant pleaded, 1. Non assumpsit by the testator ; 2. Plene administravit, prceter 75 dollars; on which there was a judgment of assets quando acciderint. On the second plea a verdict was found for the plaintiff for 48 dollars and 11 cents, on which iudgment was ren- ’ J dered by the court.
    The defendants below tendered a bill of exceptions, which stated, that the plaintiff gave in evidence, that in the spring of 1802, the road mentioned in the second count of the declaration, was laid out by the commissioners and jury; and that their determination relative to the said road, on appeal to the judges of the court of common pleas, was reversed. And that, afterwards, the testator, in consideration that the said John would permit the road to be again laid out 6y the said commissioners, and suffer it to remain open for a road, undertook and promised to pay the said John, at the rate of 18 dollars and 75 cents per acre, for all the lands of the said John, included in the said road ; and that the lands included in the said road, were two acres and a half; and that the road was laid out, &c. That the witness, on being cross-examined, said, that the said David also agreed to pay to the said John, at the same rate, for certain lands in the possession of the said David, of which the said John claimed to be the owner, and which were separate from the farm of the said John, and that the whole was one entire agreement.
    The defendants offered to prove that the plaintiff had no title to the land; and that the road had been used as a public road for 20 years, before the 21st March, 1797, but this evidence was overruled by the court.
    The errors assigned were, 1. That the contract stated in the second count was illegal and void, for want of consideration; and against the policy of law, as unconscientious and founded in extortion.
    2. That the plaintiffs below were bound to produce the record of the determination of the commissioners, and 1 the record of the decision of the judges of the court of common pleas reversing the first determination -of the commissioners.
    3., That it appeared from the evidence, that the contract set forth in the second count, was part of an entire • . 1 agreement, set forth in the first count, and that part be}ng void by the statute of frauds, the whole was void.
    4. That there was a variance between the contract laid in the declaration, and the one proved at the trial.
    
      5. That the evidence offered by the defendant below, and rejected by the court, ought to have been received as an absolute bar to the action.
    6. That the verdict was erroneous; as the plaintiff avers that he was entitled to receive, by virtue of the contract, 28 dollars and 12 cents ; and the verdict was for 48 dollars and 42 cents.
    
      J. Duer, for the plaintiffs in error.
    
      Fisk, contra.
   Per Curiam-

The 3d and 4th objections taken to the? legality of the recovery below, are equally well founded. The contract proved, varied from the contract laid, inasmuch as the contract proved was, that the testator was to' pay for all the land included in the road, and the contract as laid was, that he was to pay for one half. This variance was material and fatal. A contract must be proved as laid, and the plaintiff cannot give in evidence an entire contract, relating to two subjects, when he declares for one. (1 Ld. Raym. 735. 1 Term Rep. 240. 1 East, 1. 1 Campb. N. P. 361.) The contract as proved was, that the testator was to pay, not only for the land included in the road, but for other lands in possession of the testator, and claimed by Morrell. This was1 part of the same contract, and this last part was void by the statute of frauds ; and if part of one entire contract be illegal and void, the whole is void. (Crater v. Beckett, Term Rep. 201.) The judgment below must be reversed.  