348 LINGAN v. HENDERSON.

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 provisions 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 sustains
his case by such proof; mere parol or verbal testimony, however
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.(b) 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,
without 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.(c) 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 cannot be con-
sidered as forming any part of those allegations upon which an
issue between these parties has been or might have been joined,
It is nothing more than a sort of exception to the testimony which
has been improperly foisted in with the return of the commission.

(b) Buxton v. Maiden, 1 T. R. 81.—(c) Cooth t». Jaeksoa, 6 Ves. 37; Rowe v.
Teed, 15 Ves. 375; Jones v. Slubey, 5 H. & J. 88S.