Dobson and Others v Dobson. Dower

JurisdictionEngland & Wales
Judgment Date01 January 1766
Date01 January 1766
CourtCourt of the King's Bench

English Reports Citation: 94 E.R. 1028

IN THE COURT OF KING'S BENCH

Dobson and Others
and
ers. Dobson. Dower

dobson and others vers. dobson. Dower. A writ of dower unde nihil habet was brought in the Duchy Court of Lancaster, and judgment for the demandant. A writ of seisin was awarded accordingly, and a writ of inquiry; and on the return of it, damages were given to the widow to the full value of her dower from the death of her husband to the return of the writ of inquiry. Error is brought in B. E. and the following exceptions were taken by the counsel for the plaintiffs in error. First, that no damages can be given in this case. Damages are not to be recovered but in a writ of dower unde nihil habet, according to Lord Co. 1 Inst. 32 b. But it does not appear that this ia such a writ, for the word unde is left out. Secondly, damages are given a morte viri, whereas they should not have been given but from the time of suing out the writ of [9] dower; since it does not appeal-there was any demand of dower in pais; and in Co. Lit. 32, it is said that the demandant should take care to make demand as soon as possible, lest she lose the value of her dower, and that the heir does no wrong till a demand is made. Thirdly, there does not appear to have been any default in the tenants; the entry being quod ipse exact, non ven. in the singular number, whereas there are four tenants; so that it does not appear that above one was summoned, nor can it be ascertained, which one that is. And lastly, here is a discontinuance; no day being given to the tenants to appear on the return of the writ of inquiry. The counsel for the defendant in error argued, that they were intitled to the damages given; for it was incumbent on the plaintiffs, if they would have excused themselves from damages, to have pleaded touts temps prist. As to the omission of the word unde, the plaintiffs ought to have brought the original writ before the Court by certiorari, otherwise the Court will not presume it to be so. And as to carrying damages too far, the natural construction of the words of the Stat. of (a) Merton is, that the widow shall recover damages till she have seisin. So it was determined in 1 Leon. 56. The case is this : " Walker and his wife brought a writ of dower against (a) Stat. of Mert. 20 Hen. 3, A.D. 1235, " Of widows which after the death of their husbands are deforced of their dowers, and cannot have their dowers or quarantine without plea, whosoever deforce them of...

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