¶1It is very properly conceded by the defendant’s counsel that if the auctioneer’s receipt for the ten per cent, deposit contains the whole of the contract which it is sought to have specifically performed, that then it is not a case within the statute of frauds and a plea of the statute cannot be supported.
¶2When a bill sets forth a contract in writing, alleged to be signed by the defendant or his authorized agent, a plea of the statute, averring that there is no writing subscribed by the party or his authorized agent is inadmissible, because it is merely denying what is alleged in the bill and brings forward no new fact in opposition—which is the proper office of a plea. If a denial merely be intended, it must be by way of answer.
¶3I am inclined to say that, for all the purposes of the statute, the auctioneers’ receipt, under present circumstances, may be deemed the whole contract. According to the bill, the sum of two thousand six hundred and sixty dollars was agreed to be paid for the privilege of becoming the purchaser, as a premium on being let in to take the place of the person to whom the property had been struck off at auction and to have the benefit of the contract of sale thus *516made. This contract was transferred to the complainant ; and he insists upon its being enforced. The two thousand six hundred and sixty dollars was the price 01 consideration for the transfer and substitution and, consequently, a new and distinct agreement and did not enter into the contract of sale itself—as is evidenced by the auctioneer’s receipt. It is true, the complainant must pay the two thousand six hundred and sixty dollars before he can have the full benefit of the purchase. Still, this may be considered no part of the price of the land as fixed and agreed upon, but an addition and in some measure distinct from it.
¶4If this be a correct view of the case, and it appears to me to be one which can be sustained, the plea should be overruled. Yet, in making the order for this purpose—it being a point of some nicety—I deem it proper to allow the defendants to set up and insist upon the statute in an answer.
¶5Let there be an order accordingly: overruling the plea, with costs.