As this demurrer contains a traverse or denial of facts, it is wrong in form. But we do not overrule it for that reason. We treat it, as the counsel for the defendant treated it, namely, as a demurrer because the declaration, though it sets forth an agreement which is within the statute of frauds, does not allege that the agreement was in writing. This, however, is not a legal cause for demurrer. The statute of frauds has not *274altered the rules of pleading, in law or equity. A declaration on a promise which, though oral only, was valid by the common law, may be declared on in the same manner, since the statute, as it might have been before. The writing is matter of proof, and not of allegation. 1 Saund. 276, note (2). Steph. Pl. (1st Amer. ed.) 376. Browne on St. of Frauds, § 505. And this rule of pleading is not changed by the practice act of 1852. We must therefore overrule the demurrer. If the defendant shall hereafter rightly answer and go to trial, he will prevail, unless the plaintiff shall prove that the agreement declared on was in writing, and was signed as the statute of frauds (Rev. Sts. c. 74, § 1) requires. t Demurrer overruled.