Plath

This agreement is for an interest in land, and no interest in the contract could be passed except by an instrument in writing. The delivery of the contract itself would not suffice; but even that was not attempted. Nothing short of a written transfer would constitute a delivery of the plaintiff’s interest in this lot of land, so as to entitle plaintiff to bring assumpsit for the consideration. (Secs. 1741, 4624 Civil Code, as amended 1873-4 ; Brown’s Stat. Frauds, 3rd ed. sec. 229.)

James L. Crittenden, for'Respondent.

The Statute of Frauds must be pleaded by the defendant as a defense in his, answer, and if not pleaded specially, it is waived. (Code of Civil Procedure, sec. 437; Brown on Statute of Frauds, secs. 508, 519; Osborne v. Endicott, 6 Cal. 153 ; Burt v. Wilson, 28 Cal. 638 ; Skinne v. McDowell, 2 De Gex & S. p. 273 ; Vanpell v. Woodward, 2 Sand. Ch. 144 ; Small v. Owings, 1 Md. Ch. p. 366 ; Harrison v. Harrison, Ibid. 335;, Jones v. Slubey, 5 Har. & J. 383 ; Cozine v. Graham, 2 Paige, 181 ; Edelin v. Clarkson’s Executors, 3 B. Mon. 31 ; Lear v. Chonteau, 23 Ill. 40 -1; Burke v. Haley, 2 Gilm. 618 ; School Trustees v. Wright, 12 Ill. 441 ; Cooper’s Eq. Pl. p.…