MOUSLEY VS. WILSON. 339

granted. The defendant denied the making of the agreement
charged in the bill; but admitted the assignment of the single
bill, and the release of the sums which he owed to Simpers.
He denied, however, that the assignment and release were
for the purpose alleged in the bill. Leave was afterwards ob-
tained by the complainants to take testimony, which having
been filed, the case was argued before the Chancellor, on the
motion to dissolve the injunction, who delivered his opinion at
this term.

As to the effect of the testimony, the Chancellor said :]

THE CHANCELLOR :

It is very clear, I think, from the evidence in this case, taken
in conformity with the act of assembly, that at the time stated
in the bill, an agreement was made between the late Richard
L. Simpers and the defendant, Wilson, for the sale by the lat-
ter to the former, of fifty acres of land; that a part of the money
was paid by Simpers in his lifetime, and, that he was in pos-
session of the land, as purchaser, to the period of his death, in
the year 1846. Whether the contract was in writing, as the
bill alleges, the complainants were informed, is not quite clear ;

but, as part performance is alleged and proved, it may not be
very material; as part performance would take the case out of
the statute of frauds. Moale et al. vs. Buchanan et al., Gill &
Johns., 314.

It is said, however, that as the bill in this case alleges that
the contract was in writing, it is not competent for the com-
plainants to prove a parol agreement, and ask for its specific
execution on the ground of part performance. The allegation,
however, is very far from being explicit and positive. It is,
that "the agreement was in writing as the complainants have
been informed." But this, it is thought, is not the stage at
which it would be proper to decide on the admissibility of the
proof, upon the ground that the allegations of the bill are not so
framed as to let it in; and the court would certainly not be dis-
posed to adopt a very strict rule in a case like the present,

33*