¶1concurred.
¶2Nevius, J. This is an ordinary count in dower, to which the defendant has pleaded that from the death of John J. Hopper, the demandant’s late husband, he hath been always ready, and is still ready to render to her her dower in the premises, and rendereth the same in court here. To this the demandant has replied, that the said defendant is not seised of said lands as heir at law of her said husband, who died seised of the same, and that after his death the said defendant became seised thereof, and yet holds the same by virtue of a devise in the last will of her said husband, and that after the death of her said husband, and before the suing out of the writ in this cause, to wit, on the 1st of April, 1846, she requested the said defendant to render her dower in said lands, yet he has neglected and refused, and still neglects and refuses, &c. Wherefore, &c.
¶3*551The rejoinder is, that the demandant ought not by reason of anything in her replication alleged, to have her damages for the detention of her dower, because as before, he says that he has been always ready, and still is ready to render, &c.
¶4To this rejoinder there is a general demurrer and joinder.
¶5In support of this demurrer the demandant excepts to the plea, under the rule that on demurrer any antecedent defective plea may be excepted to.
¶6The main objection to this plea is, that it does not on its face shew that the defendant has a right to plead tout temps prist. That where the husband died seised, neither the heir nor devisee is entitled to this plea. The only question in my mind is, whether this may be considered res judiowtd. In Woodruff v. Brown, 2 Har. 246, this question as to the right of the heir to such plea was raised and discussed at large, and two judges gave opinions affirming the right, and two gave opinions denying it. The whole court concurred in that ease in overruling the plea, but that concurrence was on another point. Judge White gave no written opinion, but at the close of the Chief Justice’s opinion, simply expressed his concurrence, but it does not appear whether it was a concurrence in all the views contained in that opinion, or merely in its final result. I incline to think the latter, and therefore consider it an open question. If it be so, I can do no more than reaffirm the opinion which I expressed in Woodruff v. Brown, and which upon a careful review of it, I am willing to do. I think the demurrer must be sustained, and this plea overruled with costs
¶7Judgment on demurrer for defendant,
¶8Reversed, 2 Zab. 715.