FOR DOWER. undivided third part of the premises, as her reasonable dower EJECTMENT as the widow of her husband, naming him." The declaration is not required further to describe the nature of the estate claimed by the plaintiff in the premises;67 and it cannot contain several counts, nor may several parties be named as plaintiffs jointly in one count, or separately in others, as in ordinary Plea, &c.] The defendant appears, pleads the general issue, Plea, &c. or demurs, as in ejectment in ordinary cases: And in ordinary cases we have seen that he can plead the general issue only: But in cases of dower, there is one defence which he is allowed to plead in bar specially. The statutes provide, in relation to this, that where the widow shall have accepted an assignment of dower, in satisfaction of her claim upon all the lands of her husband, it may be pleaded in bar of any further claim of dower, by the heir of such husband, or any grantee of such heir, or any grantee of such husband.69 Trial.] Under the general issue the defendant may give Trial. in evidence any matter, which, if pleaded in the former action Defendant's of dower, would have barred the action of the plaintiff.7° This provision renders it necessary to inquire into the defences which might have been made in a writ of dower; but the provision is of course to be construed with reference to such alterations as the revised statutes have made in those matters which formerly constituted a bar to the writ of dower. Those alterations, whatever they may be, are made, by the provisions which we have been considering under "right of dower." evidence. 1. That the husband was never seized was a good plea in bar Defences in ol action of dower. 67 2 R. St. 304. s. 10. 68 2 R. St. 304. s. 11. VOL. II. 67 69 1 R. St. 743. s. 23. FOR DOWER. EJECTMENT in the writ of dower; as, that he was only tenant for life, &c."1 A person, however, who derives his title from the husband, is precluded from denying his seizin :72 2. That the husband is alive: But when the defendant claims under the heirs of the husband, he is precluded from denying his death:7 3. That the husband and wife were never lawfully married:74 4. Elopement, and living in adultery, was formerly a bar by statute; but the provision is not re-enacted, the revised statutes making it a forfeiture of dower only when followed by divorce; and, as we have seen, a divorce for any other misconduct, is now equally a bar.75 5. A jointure was formerly a bar; and a jointure, or a pecuniary provision or devise is now, under certain circumstances, as we have seen, a bar of dower 6. Where there was an outstanding term created before the coverture, the practice was for the tenant in a writ of dower to plead it, and pray that the demandaut might not have execution before the end of the term, or that she might be endowed of the reversion and rent:76 7. A release of the lands by the plaintiff:77 8. The alienage of the plaintiff:78 9. That lands were assigned for dower by the heir; and we have seen how the acceptance of such an assignment may now be pleaded in bar.10 And it would appear that any fact which constitutes a defect in the widow's title to dower, under the existing laws, is a defence in ejectment. There were also certain defences allowed in the writ of dower, which were specially pleaded, but did not har the action: Such as, that the widow detained the deeds and evidences belonging to the estate;79 that the tenant was, and is 75 71 2 Saund. 44. n. 4. as to evi- 74 2 H. Bl. Rep. 159. 18 Johns. dence of the seisin of the husRep. 346. band, see 1 Caines' Rep. 185. 2 Johns. Rep. 119. 15Johns. Rep. 21. 72 6 Johns. Rep. 290. 7 Ib. 278. 9 Ib. 344. 2 Ib. 119. 73 9 Johns. Rep. 344. 1 R. St. 741. s. 8. FOR DOWER. ready to render dower;80 and also, where the husband had EJECTMENT alienated, and great improvements had been afterwards made, in the husband's lifetime, that he was, and is ready to assign one third of the premises in value, as at the time they were conveyed by the husband.81 The rest of the proceedings, until and including the judg ment, are the same as in ejectment in ordinary cases; but after a recovery, the plaintiff is not entitled at once to a writ of session, but proceeds as follows, to have her dower assigned: pos assigned. Assignment of dower.] Upon filing the record of judg- Dower how ment, the court, on motion of the plaintiff, are required to appoint three reputable and disinterested freeholders, commissioners, for the purpose of making admeasurement of the dower of the plaintiff, out of the lands described in the record; and the commissioners so appointed, are required to proceed in like manner, and are declared to possess the like powers, and be subject to the like obligations and control, as commissioners appointed in proceedings for the admeasurement of dower.82 For the proceedings in the action after the appointment of the commissioners, until their report, the reader is referred to the subject of proceedings for the admeasurement of dower, which will be treated of hereafter. The report of the commissioners may be appealed from by any party to the action, within the same time, and the like proceedings are to be had thereupon, and the costs and expenses incurred in the admeasurement are the same as in proceedings for admeasurement of dower, to which the reader is also referred for these subjects. 30 2 Johns. Rep. 486. 6 Ib. 390. s. 1. sess. 29. Ch. 168, which does 2 Saund. 45. n. 31 11 Johns. Rep. 510. 13 Ib. 179. 15 Ib. 21. and see former statutory provision, 1 R. L. 60. not appear to have been re-enacted. 83 Ib. 84 2 R. St. 312. s. 56. Execution.] Upon the confirmation of the report of the commissioners, a writ of possession is issued to the sherif of the proper county, describing the premises assigned for dower, and commanding the sheriff to put the defendant in possession thereof.85 After the widow has recovered her dower, she is also entitled to recover damages for withholding it;86 but this subject will be deferred until we come to treat of the action for mesne profits. SECTION III. EJECTMENT UPON RIGHT OF RE-ENTRY FOR NON-PAYMENT OF RENT, Ejectment on right of Whenever, by the terms of the agreement or lease, under re-entry for which a tenant holds his estate, the landlord has the right secured covenants; to him, of re-entry for the non-performance of any of the coveat common nants or agreements between them, he may, if he becomes breach of law, under the statute. thereupon entitled to re-enter, bring ejectment to recover possession of the premises. The action, in such cases, may be brought at common law, and in all cases, where there is a right to re-enter for the breach of any covenant. But the usual cases in which the action is brought, are, where the right of re-entry arises from the non-payment of rent; as in this particular instance the landlord has been relieved by statutory provisions, from those embarrassing difficulties which attended bringing the action at common law. The statute however, does not extend so far as to embrace 85 2 R. St. 312. s. 55. 86 1 R. St. 742. s. 19-22. re-enter for may EJECTMENT FOR RENT. every case in which the landlord non-payment of rent, and such cases as are not within it, are still perplexed with the common law difficulties. We shall consider the action Subject. Arranged. in cases as at common law, and notice some principles of general applicability before proceeding to treat of the practice under the statute. forfeited un of covenant The maxim of the law is, that every doubtful grant shall be Estate not construed favourably to the grantee," and the law also inclines less breach against constructions which lead to forfeitures: For these rea- be clear. sons it has been held repeatedly, that where the breach is not within the letter of the covenant, the tenant's estate is not forfeited; as where the tenant covenanted not to assign, and afterwards devised;88 or that he would not assign, or otherwise do, or put away the lease, and afterwards under-let;89 or that he would not under-let, and then took in lodgers.9 90 But where the tenant covenanted not to let or assign over, and then under-let ;91 and where he under-let, after covenanting not to assign, or otherwise part with the premises;92 and also where he took a partner, and agreed that he should have, and did let him in fact possess, a part of the premises exclusively, after covenanting that he would not let the premises, or any part thereof,98 in these cases it was held, that the estate was forfeited.94 versioner advantage of To enable a reversioner to take advantage of a forfeiture, it When reis necessary that he should have the same estate in the lands, at may take the time of the breach, as he had when the condition was forfeiture. created; an extinguishment of the estate in reversion, in respect of which the condition was made, extinguishing the condition also. Thus, where a lease was made for a hundred |