Who may assign Dower. 356. be forced to marry; or be obliged to pay a fine for the assignment of their dower. 3. With respect to the persons whose duty it was to assign dower, the heir in common cases, as lord Gilb. Uses, of the manor, and who was to create the tenure, assigned dower. If there was any dispute, as to the quantity of land assigned, it was determined by the pares curiæ, in the court baron. But the suit might be removed to the county court, and also to the king's court. 1 Inst. 35 a. 357 b. Idem. 1 Inst. 34 b. How it is to be assigned. 1 Inst. 32 b. 4. No person can regularly assign dower who has not a freehold estate in the land. But where a disseisor, abator, or intruder assigns dower, it is good, and cannot be avoided; unless they are in of such estates by fraud and covin of the widow, to the intent that she may be endowed by them, or recover dower against them; in that case the assignment may be avoided by the entry of the real owner. 5. The reason why such an assignment of dower shall be good is, because the widow having a right to dower, she might have compelled them as terre-tenants to assign dower to her; and was not obliged to wait till the heir thought proper to re-enter, or sue for the recovery of his right. 6. Where the heir, or other tenant of the land, refuses to assign dower, and the widow is compelled to resort to the courts of law to obtain it, the assignment is made by the sheriff. 7. With respect to the manner in which dower ought to be assigned, the rule is, that where the property assigned is capable of being severed, it must be by metes and bounds; if the sheriff does not return seisin by metes and bounds, it is ill. Where no division can be made, the widow must be endowed in a special and certain manner. As of a mill, a woman cannot be endowed by metes and bounds; nor in common with the heir. But either she may be endowed of the third toll dish; or of the entire mill; for a certain time. 1. 8. It was held by the Court of Common Pleas, in ante, c. 3. the case of Stoughton v. Leigh, that dower may be assigned of mines, either collectively with other lands, or separately of themselves; that it should be assigned by metes and bounds if practicable; otherwise either by a proportion of the profits, or separate alternate enjoyment of the whole, for short proportionate periods. 9. Dower was assigned by metes and bounds, Gilb. Uses, because it was a tenancy of the heir, and like all 356. other lands in tenure, ought to be separated from the demesnes of the manor. And the reason why the law created this tenure was, that the heir might be obliged to do the service for it, during the time of its continuance; as he was obliged to do for all lands which he had given out in tenure, as well as for those which he held in demesne. 1 Roll. Ab. 682. Lambert,. 10. The right to have an assignment of dower Coots v. by metes and bounds, may be waived by the widow; and in that case an assignment in common will be good. Roe v. Power, 1 Inst. 32 b. 11. An assignment by metes and bounds can only 2 Bos & Pul. take place where the husband is seised in severalty, for where he is seised in common with others, his widow cannot be endowed by metes and bounds; for she being in pro tanto of her husband's estate, must take it in the manner in which he held it. 12. Where dower is assigned by the sheriff, he is 1 Roll. Ab. obliged to assign a third part of each manor; or a third part of the arable, the meadow, and the pasture. But where dower is assigned by the heir, he may 683, 4. 1 Inst. 32 b. n. 2. Turney v. 4 Rep. 1 a. 1 Roll. Ab. 683. Brickley v. Wheatley v. Best, Cro. Eliz. 564. 1 Inst. 34 b. Wentworth y. Went Eliz. 450. assign one manor in lieu of a third of three manors; which will be good, if accepted by the widow. And this is called an assignment against common right. 13. Lord Coke says an endowment by metes and bounds, according to common right, is more beneficial to the widow than to be endowed against common right for there she shall hold the land charged, in respect of a charge made after her title to dower. 14. The assignment of dower must be of part of the lands whereof the widow is dowable; for an assignment of lands whereof she is not dowable, or of a rent issuing out of such lands, is no bar of dower; because a right or title to a freehold estate cannot be barred by a collateral satisfaction. 15. A rent issuing out of the land, whereof a woman is dowable, may be assigned for dower. And if a tenant in tail assigns a rent out of the land entailed for dower, not exceeding the yearly value of such dower, it will bind the issue in tail. 16. Where the lands have been leased for years, before the marriage, the assignment of dower is made, with a proviso that the tenant for years shall not be disturbed. 17. The assignment of dower must be absolute, and not subject to be defeated by any condition, nor worth, Cro. lessened by any exception or reservation. For the widow comes to her dower in the per, by her husband; and is in, in continuation of his estate, which the heir or terretenant is but a minister, or officer of the law, to carve out to her; therefore such condi tions or reservations are totally void, and her estate discharged from them. Or else the estate assigned with such conditions is no bar to her recovery of dower in an action. Booth v. 18. Dower may be, and was usually assigned by 1 Inst. 35 a. the heir, by a parol declaration that the widow shall have such particular lands for her dower; or else that Sty. 276. she shall have a third part of all the lands whereof her husband died seised. 19. In some cases a woman shall have a new as- 4 Rep. 122 a. signment of dower. As where she is evicted out of the lands assigned to her, she shall be endowed of a third of the remainder. 20. Where the sheriff makes an improper assign- Remedies ment of dower, it will be set aside by the Court of against an improper Common Pleas, or the Court of Chancery; and he Assignment. will be punished. Palm. 264. Case, cited 21. Thus where the sheriff returned that he had Abingdon's assigned to the demandant, for her dower of a house, the third part of each chamber; and had chalked it out for her. This was held an idle and malicious assignment, and the sheriff was committed for it; as he ought to have assigned to her certain chambers or rooms. 743. 22. In another case the sheriff was committed for Longvill's refusing to make an equal allotment of dower: and Case, 1 Keb, for taking sixty pounds to execute the writ. An information was also ordered against him. 23. A bill was brought by the heir to be relieved against a fraudulent assignment of dower by the sheriff; because a third part of the lands was assigned, without taking notice of a coal work that was on the estate. The plaintiff offering the defendant one entire third, both of land and coal work, by way of rentcharge on the whole. The Court ordered that she should accept thereof; or that otherwise a new assignment of dower should be made. Hoby v. 1 Vern. 218. 24. The widow acquires an estate of freehold by Effect of an Assignment the assignment, without livery of seisin; because of Dower. 1 Inst. 35 a. dower is due of common right; and the assignment is an act of equal notoriety. Lit. § 393. Gilb. Uses, 356-395. ante, c. 3. § 20.. 1 Inst. 38 b. Actions for recovering Dower. Gilb. Uses, 374-367. May be ob- 25. As soon as dower is assigned, the widow holds by the institution of the law, and is in of the estate of her husband. So that after assignment, she is considered as holding by an infeudation immediately from the death of her husband; therefore the heir is not considered as having ever been seised of that part of his ancestor's estate, whereof the widow is endowed. 26. Where dower is assigned, there is a warrantỹ in law implied, that if the tenant in dower is impleaded, she shall vouch the heir; and if evicted, shall recover in value a third of the remainder. 27. Where the heir or terretenant refuses to assign dower to the widow, the law has provided her with several remedies for recovering it. The first of these is the writ of dower, unde nihil habet, which lies where no dower has been assigned: if any part of dower has been assigned, the widow cannot say, unde nihil habet, and therefore she must have recourse to the writ of right of dower; which is a more general remedy, extending either to a part, or to the whole. 28. Where a woman was disabled from suing for her dower at law, she was always relieved in equity. And now it is settled that widows labour under so Treat. of Eq. B. 1. c. 1. 3. many disadvantages at law, from the embarrassment of trust terms, &c. that they are fully entitled to every assistance which a court of equity can give them, not only in paving the way to establish their right at law; but also by giving them complete relief, when the right is ascertained. Shute v. Shute, ante, c. 2. § 7. Hamilton v. 1 P. Wms. 29. Where a mother was guardian to her child, and received the rents of the estate of which she was dowable, but dower was never assigned to her; the |