in assise, double damages under the statute of conjunctim feof- In general. fatis may be given against one tenant, and single damages against another. (a) So where a writ of waste or mortd'ancestor. is brought by the aunt and niece coparceners. (b) In real actions to which damages have been superadded by statute, the judgment for damages is a separate judgment, and therefore a notice of executing a writ of inquiry must be given in such case, as well as in a personal action. (c) mesne. The plaintiff cannot recover damages in a writ of mesne if it In a writ of be brought merely to establish the acquittal before distress in the mesne's default (d); but if the defendant plead not distrained in his default the plaintiff may have judgment for the acquittal im, mediately, and damages when the issue is tried. (e) Damages are recoverable in a quod permittat. (ƒ) No damages were at common law recoverable in this action (g), but by the statute of Merton, 20 Hen. 3, c. 1, when widows are deforced of their dower of lands, whereof their husbands have died seised, they shall recover damages to the value of their whole dower from the time of the death of their husbands to the day that by judgment they have recovered seisin of their dower, &c. (h) The statute is confined to cases in which the husband died seised, (i) and such seisin must be a seisin of the freehold and inheritance, so that upon the death of the husband the possession immediately devolves upon the heir (k), but it is sufficient if the husband dies seised of an estate tail. (1) The statute also applies only to a writ of dower unde nihil habet, and not to a writ In quod permittat. In dower. In dower. of right of dower, for in no writ of right can damages be recovered. (a) The statute extends to copyholds. (b) If the heir or his feoffee assigns dower, and the widow accepts it, she cannot afterwards claim damages. (c) But where the husband dies seised, the heir may save himself from damages by coming in upon the summons the first day and pleading tout temps prist, in which case no damages are recoverable, and judgment is given immediately for the demandant; though if the widow has previously demanded her dower, she may reply that fact, and the damages will await the trial of that issue (d), and the demandant cannot in this case take judgment and pray a writ of inquiry (e); but it is said that if the widow admits the plea of tout temps prist and takes judgment, although she will not recover mesne profits and damages from the death of her husband to the commencement of the suit, yet she will be entitled to receive them from the commencement of the suit to the award of the writ of inquiry. (ƒ) A neglect in the tenant to assign dower upon demand is sufficient, without an actual refusal to entitle the demandant to damages. (g) The tenant cannot take any advantage of the demandant's neglect to demand dower, except upon the plea of tout temps prist (h); but where the demandant after the death of her husband entered upon the lands in demand and continued in possession five years, and afterwards the heir entered, against whom she brought dower, it was said that the tenant need not plead tout temps prist after his reentry, for that the time the demandant had occupied was a sufficient recompense for the damages. (i) It might, indeed, be a sufficient recompense for the five years, and ought therefore to be allowed in damages, but possession of the lands demanded (a) Co. Litt. 32, b. (b) Co. Litt. 33, á. Copyhold Cases, 4 Rep. 30, b. (c) Co. Litt. 33, a. Corsellis v. Corsellis. Bul. N. P. 117. 1 Cruise Dig. 169. (h) Dobson v.Dobson, Ca. tem. Hard. 19. 2 Barnard. B. R. 180, 207, 445. S. C. Kent v. Kent, 2 Barnard. B. R. 357, B. N. P. 117. (i) Rich's Case, 3 Leon. 52. Dal. 100, S. C. but see Belfield v. Rous, 4 Leon. 198. In the latter case, however, the wife took the profits as guardian, (d) Co. Litt. 32, b. 33, a. Ante, p. 224. See B. N. P. 117, where it is said that though tout temps prist be pleaded, damages are recoverable from the teste of the original, to the execution of the writ of entry. (e) Br. Ab. Br. de enquire, 18. Tout (Moor, 80), and was consequently antemps prist, 40. swerable to the heir, and see Co. Litt. 33, a. (f) 2 Saund. 44, a. (Note 4.) 1 Rich. Pr. C. B. 509. (5th edit.) but quære. for five years appears to be no recompense for the dower for a longer period. The words of the statute of Merton are, that those who are convicted of a wrongful deforcement shall yield damages, and it may therefore be a question, if a feoffee of the heir, or a person who is in by him in the per, shall be charged with damages, without a previous demand of dower, which would render him a deforcer. Damages being given à morte viri, the feoffee cannot plead tout temps prist (a); so that unless a previous demand be necessary, he may be charged without his default. It appears, however, that if he plead a false plea which is found against him, damages may be recovered without any demand, and such damages will be from the death of the husband. (b) It is the safer course when the writ is brought against the feoffee of the heir to make a previous demand of dower. By damages are to be understood the profits of the third part since the death of the husband, (deducting reprises) and such damages as the wife has sustained by the detention of her dower (c), which are usually assessed severally, although damages given generally, without finding the value of the land, are good. (d) If the lands have been leased for years, before marriage, rendering rent, the wife is entitled to be endowed of the rent (e), and the damages must in such case be estimated according to the rent, not according to the value of the land. (ƒ) The demandant cannot recover damages for a period during which she would not have been entitled to the beneficial occupation of the lands demanded (g); and if the demandant has been in pos. session under the habere facias seisinam damages must not be given for that time. (h) Upon damages being adjudged they shall be recovered against the tenant to the writ in toto, notwithstanding there may have been several in receipt of the profits successively, since the death of the husband. (i) (I). (a) Co. Litt. 33, a. Bac. Ab. Dower, Ante, p. 223. (ƒ) But see Winch, 80. Which seems (b) Belfield v. Rous, 4 Leon, 198. misreported as to the point of daMoor, 80, S. C. Co. Litt. 33, a. (c) Hale's note, Co. Litt. 32, b. (4). Walker v. Nevil, 1 Leon. 56. Penrice v. Penrice, Barnes, 234. (d) Hawes's case, Hetl. 141. Hale's note, ut supra. (e) Park on Dower, 346. Winch, 80. mages. See Park on dower, 306. In dower. In dower. The damages may be assessed by the jury at the trial, or if this be omitted to be done, it may be supplied by a writ of inquiry. In case of judgment by default or confession, &c. the damages must of course be ascertained by a writ of inquiry. (a) This writ commands the sheriff to inquire whether the husband died seised, and if he did, what value the lands are by the year, and how long it is since the husband died, and what damages the wife has sustained by the detention of her dower, and upon the return of the writ of inquiry judgment is entered for the damages. (b) The words of the statute of Merton are, that the tenant shall yield damages to the day, that the widow by judgment has recovered seisin of her dower, and although the court of Common Pleas were of opinion that the damages ought to be computed only to the time of the awarding of the writ of inquiry (c); yet it seems to be now established that they shall be computed to the time of assessing damages upon the inquisition (d), unless the demandant has been in possession any part of the time under the hab. fac. seisinam. (e) The judgments for seisin and for damages are distinct, and therefore if the latter judgment be erroneous the damages may be released (f), and the judgment quoad the land may be affirmed in a writ of error, and the judgment for damages reversed.(g) Unless the damages are ascertained by the inquisition, the judgment does not bind the land as to the damages, so as to charge the heir, if the tenant die before they are assessed (h), and if the demandant die before the damages are ascertained, his executor shall not have them. (¿) No authority was given by the statute of Merton to superior courts, when a writ of error was brought upon a judgment in dower in an inferior court, to give judgment for the value till the time of affirmance, but by statute 16 and 17 Car. 2, c. 8, the (a) Hale's note, Co. Litt. 32, b. (4) 2 Towns. Judgmı. 100. (b) Rast. Ent. 238, a, b. 2 Saund. (c) Penrice v. Penrice, Barnes, 234. (ƒ) Butler v. Ayre, 1 Leon. 92. (g) Kent v. Kent, cases temp. Hardw. 50. Hale's note, Co. Litt. 32, b. (4). 2 Ld. Raym. 1385, arg. Specot's case, 5 Rep. 58, b. 59, a; but see Glefold v. Carr, 1 Brownl. 127. (h) Aleway v. Roberts, 1 Keb. 85, 171, 646, 711. 1 Sid. 188. 1 Lev. 38, S. C. (i) Mordaunt v. Thorold, Carth. 133. 1 Salk. 252, S. C. court wherein execution ought to be granted upon affirmance of the judgment, shall issue a writ to inquire as well of the mesne profits as of the damages by any waste committed after the first judgment in dower, and upon the return thereof judgment shall be given, and execution awarded. (a) By the same statute bail in error is required after verdict in a writ of dower. (b) If the demandant obtains damages in a writ of dower, she is entitled to costs, by the statute of Gloucester. (c) In a writ of admeasurement of dower, the plaintiff may recover damages, but the defendant to excuse himself, may plead at the first day that he is ready to admeasure. (d) In dower. An assise of novel disseisin was at common law in some degree In assise of a mixed action, for damages were recoverable in it against the novel disseisin. disseisor (e), but not against the alienee of the disseisor, and therefore by the statute of Gloucester, 6 Ed. 1, c. 1, it is enacted, that if disseisors do alien the lands, and have not whereof damages may be levied, they, to whose hands the tenements shall come, shall be charged with the damages, so that every one shall answer for his time. Not only an alienee of the disseisor, but also a tenant who comes in by wrong, is within the statute, but not a tenant for years, by statute staple, &c. unless the assise be brought by a tenant by statute staple, &c. (ƒ) If the disseisor alone can pay the whole damages, he alone must be charged, and therefore the assise must find whether he is sufficient. (g) The mean occupiers may be named in the assise, and if the disseisor be found insufficient, damages may be recovered against them, each for his time, and if they be insufficient, the tenant shall answer for all. Several judgments, however, shall not be given against each, but the damages may be apportioned on the execution. (h) In cases in which double and treble damages are given by statute in assise, every mean tenant under the disseisor shall, on the insufficiency of the latter, answer the double or treble damages for his own time. (i) If the assise be brought (a) Kent v. Kent, Cases temp. Hardw. 50. 2 Str. 971, S. C. Park on Dower, 311. (b) Tidd's Pr. 1195, 7th edit. (c) Vide post. (d) 2 Inst. 368. 1 Rol. Ab. 573, 1. 46. (e) Stat. Gloucester, c. 1. 2 Inst. 284. Sayer on Dam. 7. Vin. Ab. Dam. (G.) Booth, 287. (f) 2 Inst. 284. (h) 2 Inst. 285. Br. Ab. Ass. $18. |