SMALL VS. OWINGS. 381

part of the answer in which the statute is interposed as a de-
fence, it would be more properly applied to the authority of the
atgent, than to the agreement, which it is said the agent made.
But, when it is recollected, that the authority of the agent need
not be in writing, and, that a plea of the statute, upon that
ground, would be ineffectual, it would seem to be consonant
with those principles which regulate pleadings in equity, to put
a different interpretation upon the sentence than would be re-
quired by grammatical rule. Birley vs. Staley, 5 G. & J.,
432.

This, then, being an agreement clearly within the statute of
frauds, it remains to be seen, whether the complainants have
succeeded in bringing their case within the exception of the
rule, that such agreements cannot be made out by parol proof,
by showing a part performance of the contract; for there can
be no doubt, that such part performance will take cases out of
the operation of the statute. Moale, et al, vs. JBuchanan, etal.,
11 0. & J., 314; Hall and wife vs. Hall et al., 1 Gill, 383.

It has been insisted by the counsel for the complainants,
that though the defendant has denied the agreement set up in
the bill, she has admitted an agreement to sell five acres of
land to the complainants; and that, to that extent at least they
are entitled to relief. And the case of Graham et ux., against
Fates and others, is referred to as an authority for the position.

In that case, however, it does not clearly appear, whether
the agreement was or was not in writing. The" statute of
frauds does not, from the report of the case appear to be relied
on, and the defendants in their answer express their willingness
to convey that part of the property, admitted to have been sold,
upon receiving the purchase money and interest.

The case, therefore, is not an authority for the position that
the complainants may, as a general rule, rely upon the admis-
sions of the answer, and obtain relief on those admissions,
unless they have set them forth in their bill. The contrary
doctrine was expressly decidad in Jackson vs. Askton, 11
Peters, SL C. Reports, 229, and I have seen no case maintain-
ing a different rule.