Carpenter, J.
The first objection taken to the plea is an objection in point of form, which, if available on special demurrer, has been waived by pleading over. Much importance was formerly attached to the different modes of making defence, and any deviation from the proper form gave occasion to critical and subtile exceptions, now discountenanced by the courts. Tout [546]*546temps prist is a plea which goes only to the damages and not to the action, and has been irregularly pleaded in the present instance, but the error is an error in form merely. Want of defence, when required — and upon the same reason an irregular mode of defence — is aided upon general demurrer. Gould, 31; 1 Ld. Raym. 282; 3 Salk. 271.
Another objection, that the defendant should have averred -himself heir, is not supported by the precedents. In this respect this plea conforms to that in the case of Spiller v. Adams, 1 Lil. Ent. 189; and to other approved precedents in the books.
But the chief point on the argument was, whether the husband dying seised tout temps prist is a good plea by the heir or devisee in this state, under our statute. It was held by a majority of the Court in Woodruff v. Brown that it was a good plea by the heir, and, unless in case of obvious error or inadvertence, it is not expedient to unsettle what has been once decided. ■ The Court, however, having been divided as to the validity of this plea under our statute, and the point, although largely and ably discussed, not absolutely necessary to the decision of that cause, it may perhaps seem necessary to examine the reasons given for the prevailing opinion. I shall not undertake to recapitulate the learning to be found in the arguments and opinions in that case, and which has been so thoroughly reviewed on the present argument, any further than niay be necessary to present the grounds of my own judgment. After a careful consideration of what is to be found in the report of that case, and of what has been said on the present, I have come to the conclusion that this plea may be pleaded by the heir. It seems to me that the learned judge who drafted our statute did not intend, by that part of the third section to which this discussion refers, to change the rules settled under the statutes of Magna Charla and of Merton, in relation to the remedy of the widow. The peculiar phraseology of our statute seems to have been the consequence of some alteration of other parts of the statute, and for the purpose of preserving those rules in relation to the remedy to which we refer. See opinion of Dayton J. 2 Har. R. 263, 264. Well known rules in the construction of statutes ought not to be lightly departed from. Statutes in affirmance of the common law, or in [547]*547affirmance of judicial construction upon a former statute, ought not to be holden a deviation from the former law, unless it be obviously so. It has been said to have been well settled in New York in respect to their revisions that the “ mere change of phraseology ” was not to be construed a change of the law, unless such phraseology evidently purported an intention to work a change. Cowen J. Douglass v. Howland, 24 Wend. 45, 47; Taylor v. Delaney, 2 Caines Cas. 150, 151. Cited with commendation by Chancellor Kent, 1 Com. 468 note.
Our statute enacts that “ If the widow be deforced of her dower or cannot have it without suit, or if her dower be unfairly assigned, or be not assigned within forty days after the death of her husband, then she may sue for and recover the same with damages, that is to say, the value of the whole dower, to her belonging from the time of her husband’s death, if he died seised, or shall die seised, or from the time of demanding dower, if the husband was or shall be seised, but did not, or shall not die so seised, unto the day that she shall recover seisin of her dower, by the judgment of the court.” Rev. Laws. 397; Rev. Stat. 72, § 3. By Magna Charta, dower was to be assigned to the widow within forty days after the death of her husband, but dower being areal action no damages were recoverable either by the common law or under this statute. A subsequent enactment partially remedied this grievance. If deforced, (which signifies the witholding her dower, and may be by unfairly assigning, or by not assigning at all for the space of forty days) and the widow was hence put to her action, the statute of Merlon then gave her damages from the death of her husband, in case be died seised. It will be seen that this comprises the corresponding part of our statute, no more and no less. There are no two distinct cases in which the English statute gives damagc?s s it merely prescribes that the widow who is deforced, and therefore obliged to resort to her action, shall recover damages. A deforcement of a widow’s dower is simply the witholding the dower by the heir or alienee. 3 B. C. 172, 173. The question of damages can only arise in case of suit brought, and the statute of Merton in effect, then simply enacts, that if the widow, being deforced, should recover by plea, they that should be [548]*548convicted of such wrongful deforcement, should yield damages &e. The heir had forty days, the widows quarantine, within which to assign dower, and was not liable to an action, until the expiration of that 'period. In this state, in place of the mere right to occupy the mansion house and plantation for forty days, our statute authorizes the widow to remain and to hold them without rent until her dower shall be assigned her. This alteration of the law rendered some provision necessary to define the period, within which the heir should be required to assign dower, and after the expiration of which he should be liable to an action. The provision in regard to the forty days, adopted from the rule of the English law, under the statute of Magna Charta, was therefore, incorporated in the third section of our act. The substance of the third section, where the husband died seised, then is, that if dower be not assigned, within forty days, or be assigned unfairly, which in either case, constitutes a deforcement, the widow has her right of action, and shall recover damages according to the rule prescribed by the statute. It is only in case of action brought that the statute can ever apply, and hence no argument can legitimately be based upon the mere change of the word; and in the English statute, to the word or in our own act.
The learned Doctor in the venerable treatise of St. Germain,, did not question the opinion of the student, that under the statute of Merton, damages were not recoverable at law when the husband did not die seised. But the Doctor insisted that in conscience the widow was entitled to damages from the time of demand made on the alienee and refusal on his part to assign dower, seeing that immediately after the death of her husband she ought to have her dower. Doct. & Stud. Dial. 2, a 13. Our statute supplies this defect, and gi-ves damages from the time of demanding dower; in which respect only, according to my judgment, does the third section depart from the construction aud practice under the English Statute : The English author-ties may therefore be referred to for the proper practice under our act in respect to that part of the section common to both.
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Carpenter, J.
The first objection taken to the plea is an objection in point of form, which, if available on special demurrer, has been waived by pleading over. Much importance was formerly attached to the different modes of making defence, and any deviation from the proper form gave occasion to critical and subtile exceptions, now discountenanced by the courts. Tout [546]*546temps prist is a plea which goes only to the damages and not to the action, and has been irregularly pleaded in the present instance, but the error is an error in form merely. Want of defence, when required — and upon the same reason an irregular mode of defence — is aided upon general demurrer. Gould, 31; 1 Ld. Raym. 282; 3 Salk. 271.
Another objection, that the defendant should have averred -himself heir, is not supported by the precedents. In this respect this plea conforms to that in the case of Spiller v. Adams, 1 Lil. Ent. 189; and to other approved precedents in the books.
But the chief point on the argument was, whether the husband dying seised tout temps prist is a good plea by the heir or devisee in this state, under our statute. It was held by a majority of the Court in Woodruff v. Brown that it was a good plea by the heir, and, unless in case of obvious error or inadvertence, it is not expedient to unsettle what has been once decided. ■ The Court, however, having been divided as to the validity of this plea under our statute, and the point, although largely and ably discussed, not absolutely necessary to the decision of that cause, it may perhaps seem necessary to examine the reasons given for the prevailing opinion. I shall not undertake to recapitulate the learning to be found in the arguments and opinions in that case, and which has been so thoroughly reviewed on the present argument, any further than niay be necessary to present the grounds of my own judgment. After a careful consideration of what is to be found in the report of that case, and of what has been said on the present, I have come to the conclusion that this plea may be pleaded by the heir. It seems to me that the learned judge who drafted our statute did not intend, by that part of the third section to which this discussion refers, to change the rules settled under the statutes of Magna Charla and of Merton, in relation to the remedy of the widow. The peculiar phraseology of our statute seems to have been the consequence of some alteration of other parts of the statute, and for the purpose of preserving those rules in relation to the remedy to which we refer. See opinion of Dayton J. 2 Har. R. 263, 264. Well known rules in the construction of statutes ought not to be lightly departed from. Statutes in affirmance of the common law, or in [547]*547affirmance of judicial construction upon a former statute, ought not to be holden a deviation from the former law, unless it be obviously so. It has been said to have been well settled in New York in respect to their revisions that the “ mere change of phraseology ” was not to be construed a change of the law, unless such phraseology evidently purported an intention to work a change. Cowen J. Douglass v. Howland, 24 Wend. 45, 47; Taylor v. Delaney, 2 Caines Cas. 150, 151. Cited with commendation by Chancellor Kent, 1 Com. 468 note.
Our statute enacts that “ If the widow be deforced of her dower or cannot have it without suit, or if her dower be unfairly assigned, or be not assigned within forty days after the death of her husband, then she may sue for and recover the same with damages, that is to say, the value of the whole dower, to her belonging from the time of her husband’s death, if he died seised, or shall die seised, or from the time of demanding dower, if the husband was or shall be seised, but did not, or shall not die so seised, unto the day that she shall recover seisin of her dower, by the judgment of the court.” Rev. Laws. 397; Rev. Stat. 72, § 3. By Magna Charta, dower was to be assigned to the widow within forty days after the death of her husband, but dower being areal action no damages were recoverable either by the common law or under this statute. A subsequent enactment partially remedied this grievance. If deforced, (which signifies the witholding her dower, and may be by unfairly assigning, or by not assigning at all for the space of forty days) and the widow was hence put to her action, the statute of Merlon then gave her damages from the death of her husband, in case be died seised. It will be seen that this comprises the corresponding part of our statute, no more and no less. There are no two distinct cases in which the English statute gives damagc?s s it merely prescribes that the widow who is deforced, and therefore obliged to resort to her action, shall recover damages. A deforcement of a widow’s dower is simply the witholding the dower by the heir or alienee. 3 B. C. 172, 173. The question of damages can only arise in case of suit brought, and the statute of Merton in effect, then simply enacts, that if the widow, being deforced, should recover by plea, they that should be [548]*548convicted of such wrongful deforcement, should yield damages &e. The heir had forty days, the widows quarantine, within which to assign dower, and was not liable to an action, until the expiration of that 'period. In this state, in place of the mere right to occupy the mansion house and plantation for forty days, our statute authorizes the widow to remain and to hold them without rent until her dower shall be assigned her. This alteration of the law rendered some provision necessary to define the period, within which the heir should be required to assign dower, and after the expiration of which he should be liable to an action. The provision in regard to the forty days, adopted from the rule of the English law, under the statute of Magna Charta, was therefore, incorporated in the third section of our act. The substance of the third section, where the husband died seised, then is, that if dower be not assigned, within forty days, or be assigned unfairly, which in either case, constitutes a deforcement, the widow has her right of action, and shall recover damages according to the rule prescribed by the statute. It is only in case of action brought that the statute can ever apply, and hence no argument can legitimately be based upon the mere change of the word; and in the English statute, to the word or in our own act.
The learned Doctor in the venerable treatise of St. Germain,, did not question the opinion of the student, that under the statute of Merton, damages were not recoverable at law when the husband did not die seised. But the Doctor insisted that in conscience the widow was entitled to damages from the time of demand made on the alienee and refusal on his part to assign dower, seeing that immediately after the death of her husband she ought to have her dower. Doct. & Stud. Dial. 2, a 13. Our statute supplies this defect, and gi-ves damages from the time of demanding dower; in which respect only, according to my judgment, does the third section depart from the construction aud practice under the English Statute : The English author-ties may therefore be referred to for the proper practice under our act in respect to that part of the section common to both. Under the English Statute, if the heir had never refused to assign dower, and pleaded that he had always been ready, and [549]*549was then ready, the courts, by no unreasonable construction then held, that in such ease there was no wrongful deforcement, and gave damages only from the issuing of the writ. It was said that the heir held by title, and did no wrong till a demand made, when his neglect or refusal to assign dower, made his holding tortious toward the widow. The rule is too well settled in the English law, and the validity of this plea too well established, to be disturbed at the present day by any criticism upon the reason for its adoption. I believe it to be equitable in its operation, and feel no disposition to disturb the rule. It cannot lead to the inconvenience apprehended by one of the judges who dissented in Woodhull v. Brown. It would not be necessary to await the return of some unknown son or grandson, travelling in Europe,or elsewhere, to whom the estate may have descended. The demand need not be personal, but may be made on the land. This is not only clear upon general principles, but plainly appears from the chapter in the Doctor cfc Student already referred to, the author of which, Lord Coke assures us, was a discreet man, and well read both in the common law and in the civil and canon laws also. Student — “ Though she ought to be endowed immediately after the death of her husband, yet she can lay no default in the feoffee till she demand her dower upon the ground, and that the tenant be not there to assign it, or if he be there, that he will not assign it.”
I have not been able to find any case directly in point as to the right of the devisee to plead this plea, but the question may be resolved by the rules already discussed, applied by way of analogy. The alienee of the heir cannot plead tout temps prist and the reason given is because he had not the laud all the timo since the death of the ancestor. The alienation is said to be equivalent to refusing dower by making it impossible for the heir, upon whom the law has imposed the duty, to assign dower. The alienee of the heir enters upon the premises subject to dower, by a tortious act on the part of the heir, equivalent to a wrongful withholding or deforcement, and cannot be said to be in of right, as regards the widow from whom the laud had been withheld. The reasons upon which the distinction between [550]*550the heir and his alienee rests, do not apply to the devisee, who is in of right equally with the heir, and doeth no wrong till demand be made. It is generally said that the plea is personal and peculiar to the heir, but this seems to be said in contradistinction to his alienee'. It has already been shown that in pleading tout temps prist, th.e tenant need not aver himself heir. In a case in dower the tenant having pleaded tout temps prist, the demandant replied that the baron died seised, and that on a given day she required the tenant to endow her at D. and he refused, &c. The tenant said that on the same day he offered the femme to go with her to the land and to assign her dower, and she refused, absque hoe that he refused. The court held the issue good. 9 Vin. 291 pl. 17. The course of pleading applicable, as well as the reasons upon which this plea rests, equally apply to the devisee as to the heir; the distinction based upon the statute seems to be, whether the husband did or did not die seised. I am of opinion that when the husband dies seised, the plea is well pleaded under our statute by the devisee of the husband. The replication is therefore no answer- to the plea, and being insufficient, judgment on the demurrer must be given for the defendant.