v. OGDEN.

In eases of this kind the defendant may be compelled to answer
felly to all the material allegations of the bill, whether he insists
upon the benefit of the statute of frauds or not. But, if the statute
is relied on, there can be no decree for the plaintiff, although
the parol agreement should be admitted by the answer; and, con-
sequently, to obtain relief, in such case, the plaintiff must either
prove an agreement completely in writing, or such a part perform-
ance of the parol agreement admitted by the answer, as will take
the case out of the statute. But if the defendant does not say any
thing about the statute, then he must be taken to have renounced
the benefit of it.(e)

The sole question is, then, whether the late Amos Ogden did sign
an agreement in writing in consideration of this marriage, binding
himself to give his niece Nancy, a marriage portion of twelve thou-
sand dollars as is alleged; or whether there has been such a part
performance as should induce the court to enforce a compliance
with any parol agreement to that effect.

Marriage alone is not considered as a part performance of a
contract of this nature;(f) yet if a person writes a letter promis-
ing to give a fortune with his daughter or niece to a man if he
should marry her; and, under the encouragement of the letter, the
man does marry her, he shall recover; the agreement having been
executed, as far as it could be, on his part.(g) And such a letter
addressed to the father, or a friend of the man, on his behalf, will
be as obligatory as if addressed to the man himself, (h) But here,
as no parol agreement has been admitted or proved, it will be
unnecessary to say what should be deemed a binding partial per-
formance of a contract in consideration of marriage.

The whole of this case rests upon the letter of the 22d of May,
1817. If that cannot be considered as an agreement within the
meaning of the statute of frauds, there is an end of the case.
The cases in which letters have been considered as constituting
such an agreement, have gone fully as far, perhaps farther, than a
just construction of that statute will warrant. They all, however,
go upon the principle, that the court must be satisfied by a fair
irterpretation of the letters, that they import a concluded agree-
ment; or afford sufficient materials for a more formal agreement.

(«) Whitchurch v. Bevis, 2 Bro. C. C. 567; Cooth v. Jackson, 6 Ves. 37; Blagden
». Bradbear, 12 Yes. 471; Riwe v. Teed, 15 Ves. 375.—(/) Taylor v. Beech, 1 Ves.
297.—(£) Seagood v. Meale, Free. Cha. 560.—(k) Moore v. Hart, 1 Vern. 201;
Welford v. Beezely, 1 Ves. 6; S .C. 8 Atk, 503 .