234 LINGAN v. HENDERSON.—1 BLAND.

purchase money, it is therefore ordered that this case be and the
same is hereby referred to the auditor to make a statement of the
purchase money now due.

On the next day the auditor reported that he had found due
from the estate of John Henderson deceased, to the estate of
James M. Lingan deceased, the sum of $11,924.14, with interest
on $5,573.33, part thereof, from that time until paid.

BLAND, C., 8th May, 1827.—In whatever way this case may be
considered, it is necessary, in the outset, to dispose of *the
objections which the defendants have thought proper to
make, and have returned with the commission. It is objected,
that the parol proof is inadmissible; first, under the peculiar pro-
visions of the Statute of Frauds; and in the next place, on the
ground, that by the general rules of evidence it should be excluded.

The first of these objections is not made to the competency
of the witness, or to the regularity of the manner in which his
deposition has been taken, but to the grade of testimony by which
the plaintiffs have thus proposed to sustain their case. The statute
to which this objection refers, allows a party who may be charged
by a contract, like that upon which these plaintiffs rely, to shield
himself from imposition and fraud, by requiring of his opponent
some unerring written evidence of such contract. Consequently,
in all cases to which the Statute of Frauds extends, where the
defendant, in his pleadings, rests upon his right to have the con-
tract, by which he is so proposed to be charged, authenticated by
written evidence, the plaintiff cannot obtain relief, unless he sus-
tains his case by such proof; mere parol or verbal testimony, how-
ever strong, will not be sufficient. But the Statute of Frauds was
intended for the benefit and protection of a party against whom
a claim might be made. It does no more than extend to such a
person a privilege which he may altogether waive, and put his
defence upon the merits of the case, as they may be shown by
legal proof of any grade or description whatever. Buxton v.
Harden, 1 T. R. 81. And therefore it has been finally established,
that if a defendant makes default, or makes his defence without
expressly denying the whole contract, or in any other form, with-
out relying upon the Statute of Frauds, he thereby tacitly waives
its benefit, and cannot be permitted to take advantage of it after-
wards or at the final hearing; so that if the contract should be
sufficiently sustained by parol proof, the Court will grant relief,
although written evidence of no part of such contract may have
been produced. Cooth v. Jackson,6 Ves. 37; Rowe v. Teed,15 Ves.
375; Jones v. Slubey, 5 H. & J. 383. But these defendants have,
none of them, in any form of pleading expressly denied the whole
contract, and relied upon the Statute of Frauds. This objection