
    Conant versus Little.
    An assignment of dower need not be by deed or instrument in writing, and therefore need not be pleaded to be so made.
    Writ of dower. The tenant pleads actio non, as to part of the land described in the declaration, because he says he assigned to the demandant certain parcels of the land for her dower. As to another part, he pleads a release of dower by the demandant, and as to the remainder, non-tenure. The demandant replies, as to the first part, precludi non, because she says that the tenant did not by any deed or instrument in writing assign to her, &c., and as to the remainder she enters a nolle prosequi. The tenant demurs, and for cause of demurrer alleges that the replication is a negative pregnant, inasmuch as it admits by implication that there was an assignment of dower by paroi, or otherwise than by deed or instrument in writing. The demandant joins in demurrer.
    
      
      Hoar, for the demandant,
    admitted that the replication was bad, and contended that the plea was likewise. Since the statute of frauds, an assignment of dower should be made deed, or instrument in writing. The same reasons exist here, as in other cases,.for the application of the statute. It is proper to have some writing to refer to, in order to remove any uncertainty as to the boundaries of the land set off for dower. The assignment of dower, being ex institutione legis, ought to be set forth to be by deed or instrument in writing, when pleaded as a bar, and perhaps a profert should be made. Bellamy's case, 6 Co. 38; Salk. 519, pl. 17; Villers v. Handley, 2 Wils. 49; Case v. Barber, T. Raym. 450, cited in Bull. N. P. 279.
    
      J. Prescott and Peabody, for the tenant.
    The plea is in the form in use both before and since the statute of frauds. (See a plea of assignment in Rast. Ent. 229; Story’s Pl. 350; of being ready to assign, 1 Lil. Ent. 189; 3 Chit. Pl. 598.) And it is founded in reason ; for when an assignment of dower is pleaded, by intendment of law a legal assignment is to be understood. The statute of frauds has made a change as to evidence, but it has not altered the form of pleading. Gilb. Ev. 87; Read v. Brookman, 3 D. & E. 156; 1 Saund. 9 a, note 1; 2 Chit. Pl. 214, 216, 217 and notes o, s. At common law, a feoffment might be made by livery of seisin ’ without a charter. It was easy to see that a fraudulent livery of seisin might be made before one or two witnesses, and it was to prevent this effect that the statute of frauds provides, that an estate created by livery of seisin without writing shall be only a tenancy at will. But dower is created by operation of law, and not by the act of a party, and no livery of seisin is necessary. Lit. § 39; Co. Lit. 35 a; 1 Cruise’s Dig. 126, 153, 166. There cannot be a livery of seisin of dower, any more than in the case of a descent cast on the heir ; it is therefore not within the mischief intended to be remedied by the statute, and the assignment need not be in writing. The question here, however, is on a point of pleading merely, and it is apprehended that the plea is good, independently of the proper mode of assigning dower.
    
      Hoar, in reply,
    observed that the precedent in Story was copied from the one in Rastall, which was before the statute of frauds, and that the others were not in point.
   The opinion of the Court was delivered at March term 1823.

Per Curiam.

This case turns entirely upon the question, whether an assignment of dower can be made by the heir, or other person liable to have it demanded of him, without an instrument in writing or deed, but no case has been cited to* 1 show that an instrument in writing or deed is necessary, li seems to be admitted by the counsel for the demandant, that but for the statute of frauds an assignment without an instrument in writing or deed would be good, for his only answer to the authorities cited on the other side is, that they were before the passing of that statute. Now, if an assignment was a conveyance from the heir to the widow, without doubt, since the statute, a deed or writing would be necessary ; but it is not a conveyance ; the widow holding her estate by law, and not by contract, wants nothing but to have that part which she is to enjoy set out and distinguished from the rest, and this may be done by setting it out by metes and bounds, as well as by deed. The widow does not hold her estate of the heir, but of her deceased husband, or rather by appointment of law. If she received land that was not her husband’s, or other thing, in lieu of dower, a deed would be necessary, because she would derive her title from the person making such conveyance in lieu of dower. On consulting the entries and plead • ings which have been cited, we find that the plea in bar conforms to them, and this is enough to show that at common law an assignment in pais was sufficient.

Replication adjudged bad. 
      
       See Jones v. Brewer, post, 317; Baker v. Baker, 4 Greenl. 67; Pinkham v Gear, 3 N. Hamp. R. 163.
     