366 HIGH COURT OF CHANCERY.

frauds, because, in her answer, in which reliance is placed
upon the statute, it is levelled, not at the agreement which the
bill seeks to enforce, but at the authority of the agent, Turn-
bull, to make that agreement; and as the cases show that the
authority of the agent need not be in writing, the statute has
no application to the case.

It is not, however, I think, altogether clear, that in a case
like the present, the defendant was bound to insist upon the
statute of frauds at all. The answer certainly denies the
authority of Turnbull, to make any agreement for the defend-
ant, and, therefore, denies that any agreement binding upon
her was made; and under such circumstances, it is by no
means certain, that she is not entitled to the benefit of the
statute of frauds, without pleading it. In the case of the
Ontario Bank vs. .Root, 3 Paige, 478, it was decided, that
where the complainant sets up an agreement in his bill, which
would be invalid by the statute of frauds, unless in writing,
and the defendant by his answer denies the agreement, it is not
necessary for him to insist upon the statute as a bar, but the
complainant at the hearing must establish the agreement by
written evidence.

If, however, the defendant in his answer admits the parol
agreement, without insisting on the statute, the court will de-
cree a specific performance, upon the ground, that the defend-
ant has thereby renounced the benefit of the statute. Story^s
Equity PI., sec. 763; Blayden vs. Bradbear, 12 Ves., 471 ;

Cosine vs. Graham,, 2 Paige, 177; Jones vs. Sluby, 5 H. &
J., 372.

In this case the defendant certainly has not admitted the
agreement set up in the bill; and, as that agreement, being by
parol, and affecting lands, is invalid by the statute of frauds, it
is not so clear, that the defendant may not claim the benefit of
the statute at the hearing, even though she has not insisted
upon it as a bar.

But I am inclined to think, that the statute is relied upon in
the answer in this case.

Perhaps; giving a strictly grammatical construction to that