1833. JONES บ. JONES. the tenant in the action of dower; or so much of the costs Exch. of Pleas, as were incurred after the inquiry was awarded. It is objected, that the demandant was deprived of her right to recover damages under the statute of Merton, 20 Hen. 3 c. 1, and therefore was not entitled to costs by the statute of Gloucester, 10 Ed. 3, in consequence of the plea of tout temps prist. This, however, is not a plea of tout temps prist sufficient to deprive the widow of her damages, as it does not state that the tenant hath been always ready to render dower, from the death of her husband up to the commencement of the suit (a). But, even if this were a plea of tout temps prist, the demandant would still have been entitled to damages from the commencement of the suit to the award of the writ of inquiry (b). Secondly, the damages should be computed up to the time of taking the inquisition-Thynne v. Thynne (c), Walker v. Nevil (d). Penrice's case was determined on another point, and therefore is no authority contrà. Thirdly, although the inquisition does not state that the husband died seised, but merely his seisin during coverture, yet it must be intended that the seisin continued to the time of the husband's death, as the writ of seisin and inquiry are founded on the averment by the widow, that the husband died seised. But the want of such an allegation is not material, as it is not usual to insert it in a writ of dower unde nihil habet-Williams v. Gwynne (e), and it is not clear that the widow would be deprived of damages, even if the husband did not die seised; for, in Roscoe on Real Actions, 509, n. (i), it is said, "that, though the husband do not die seised, yet, if the wife demand her dower, she may recover damages from the time of the refusal." On this authority, (a) Co. Litt. 326; Richardson's Pract. C. P. 5th ed. 509. (b) 2 Wmns. Saund. 44 d; cited 1 Richardson's Pract. 5 Ed. 509; Penrice's case, Barnes, 234. (c) Trin. 1649; Hal. MSS. (e) 2 Saund. 43; Register fo. 1832. JONES v. Exch. of Pleas, therefore, the assessment of damages by the jury for the time elapsed since the demand of dower, is correct; but, admitting the legal objections to be good, it is still questionable whether it is competent to the defendant to resort to such a defence, as he was the attorney for the plaintiff'; and, if the award of damages and costs was improper, it was occasioned by his own laches and misconduct. JONES. E. V. Williams, contrà.—The widow is not entitled to damages and costs, on two grounds-first, by reason of the plea-secondly, by reason of the omission of an allegation in the inquisition, that the husband died seised. The plea is, in substance, a plea of tender; and, although it might be bad on demurrer, it is made good by the demandant's confessing and taking judgment on it. [Bayley, B. The demandant only confesses what is alleged, and not that the tenant has always been ready. Tender alone does not exonerate, unless the tenant has always been ready to render the land; and this plea does not state that he was ready to render the land at the proper time. It might be, that the tender was made when she was entitled to damages, and, if so, what remedy would she have had for the damages, if she had then taken the land?] The class of persons who, by the statute of Merton, are to pay damages, are those who are to be amerced for the deforcement, for, it is expressly laid down, that, wherever the tenant pleads tout temps prist, and the demandant takes judgment immediately, then there shall only be recovery of seisin, et nihil de misa, quia venit primo die; but, if the demandant would have damages, she may aver that she requested her dower, and the tenant did not endow her; and that the judgment for damages and value shall wait till the issue is tried (a). From Rastall's Entries, fol. 228, it appears, that "de misa," is only an abbrevation (a) Hal. MSS., Harg. Co. Lit. 33 a., n. 199. 1832. of "de misericordia." Penrice's case only applies to the Exch. of Pleas, extent of the damages, and the remark in Harg. Co. Lit. n. 198, 32. b, that the judgment intended by the statute of Merton, is not the first, but the second judgment, is referable only to a writ of inquiry upon the grand cape. Secondly, it is clear that the widow can recover damages in dower only where the husband dies seised (a); and that such seisin must be suggested upon the record, was admitted by Reeve (arguendo), in Kerry v. Kent (b). There is here no suggestion or confession of this fact upon the record, but the finding of the jury that the husband was seised "during his intermarriage," rather excludes the inference of seisin at the time of his death. BAYLEY, B.-I am of opinion that this rule must be made absolute to reduce the damages to 30%. If the case stood merely upon the objection that the party had made a tender, and had been ready to assign the dower, I should have thought that the demandant, by the way in which this was pleaded, would not have been deprived of the right to recover damages, because I take that right to be this"You, the tenant in dower, are to be at all times ready and willing to assign, and unless you are, the widow is entitled to recover damages." Now, in this case, it is not positively stated that he was so ready and willing, at least that point is left questionable upon the pleas. Upon the second objection, however, viz. that it is not alleged that the husband died seised, I am not able to get over the difficulty the statute of Merton presents. The words of the statute are, "Whoever deforceth widows of their dowers of the lands whereof their husbands died seised, and that the same widows after shall recover by plea, they that be convicted of such wrongful deforcement shall yield damages to the same widow; that is to say, the value of the whole dower to them belonging, from the time (a) Co. Lit. 32. b.; Dy. 284 a. (b) Lord Raymond, 1384. JONES บ. JONES. Exch. of Pleas, of the death of their husbands, unto the day that the 1832. JONES บ. JONES. said widows, by judgment of the Court, have recovered their seisin thereof, and the deforcers nevertheless, shall be amerced at the king's pleasure." Now, at the common law, the widow was entitled to no damages; and this statute, in terms, gives damages only in those instances where the husband dies seised; and when we come to see what was the language of the earliest treatises of those lawyers who wrote nearest to the period of time when the statute passed, we find it laid down in the books, that these were the instances to which damages were confined. In Coke Littleton, 32. b, it is said-" She shall recover damages only where her husband dies seised, that is to say, of the freehold and inheritance; for, albeit the husband, before the title of dower, had made a lease for years, reserving a rent, the wife shall recover the third part of the reversion with a third part of the rent and damages; for, the words of the statute are, " de quibus viri sui obierunt seisiti." The like rule is said to be in conformity with the practice and precedents in the Common Pleas. In Easter Term, 11 Eliz. Dyer, 284 a, and in the note 198 Co. Litt. 32, Mr. Hargrave gives a passage from Lord Hales's manuscript, explanatory of the language of the statute'First, what shall be said to be a dying seised: husband makes feoffment to the use of himself for life, remainder to his son in tail, and dies seised; the wife shall not have damages, because he doth not die seised of the inheritance, which descends to the son; and, therefore, finding that the husband dies seised, without saying of what estate, is ill:" therefore, it is not sufficient that the widow shew the husband died seised, but, it must also be alleged, that he died seised of an estate of inheritance. I am, therefore, of opinion, that, according to the strict rule, there ought to have been no damages; because, it is not shewn that the husband died seised. It has been objected, that, as this point was not raised 1832. JONES V. JONES. at the trial, it ought not now to prevail; but, as it would Exch. of Pleas, be of no use to send the case down to a new trial, the rule may be made absolute. An objection has also been made, that it is not competent for the present defendant to say that the damages were improperly recovered, as he was the attorney for the present plaintiff, the tenant in the writ of dower. Although an attorney is bound to bring to the conduct of a cause all the knowledge requisite for a fair and skilful conduct of it, it is not essential that he should understand every nice and difficult question of law that may arise. For gross negligence he is answerable; and that question may be raised in an action for negligence. But, the attorney here, as it seems to me, is not blameable for not knowing the nicety of the law; nor do I think we can visit him with the costs that might be recovered back by a writ of error. BOLLAND, B.--I agree in opinion upon the main point, that it does not appear upon the face of the record that the husband died seised; and, consequently, that the widow was not entitled under the statute to recover damages. The finding of the jury might, perhaps, be construed to amount to a finding that the husband died seised; but, at best, it is equivocal, and, therefore, it is not fit that we should give it that interpretation. If the jury did so find, it wouldhave been easy to draw up the judgment according to the form of the allegation of seisin made by the widow: instead of which there is almost a studied departure from this form, in stating that the husband died on the 1st of June, having "during his intermarriage" been seised. GURNEY, B., concurred. VOL. I. Rule absolute to reduce the verdict to 301., T T |