according to the distinctions already explained; but if, on the other hand, some equitable remedy or relief be sought, then there must be a hearing of the action as hitherto in a suit in chancery: and after such hearing, an interlocutory or final decree must be framed in accordance with the decision of the court. And it may be conjectured that the rules hitherto in force with regard to the steps through which such final decree is ultimately arrived at, and most of which have been adverted to in the preceding sketch of a suit in chancery, will still be substantially adhered to under the fresh system of practice which will be set on foot in the chancery division of the High Court of Justice. CHAPTER XI. OF THE PROCEEDINGS IN SOME PARTICULAR ACTIONS. HAVING now taken a compendious though comprehensive view of the course of proceeding in an action in general, it may be useful to advert shortly to some varieties upon that course, as exhibited in the case of the particular actions of dower, quare impedit, replevin, and ejectment; as to which, however, it is to be understood that their deviation is confined, in general, to the instances we are about to specify, and that in other respects they are conducted in conformity to the regular system of which we have given an account. I. The action of dower unde nihil habet was, formerly, commenced, not by summons, but by original writ, of the nature of which an account has elsewhere been given (a); and which, it will be remembered, was antiently the process used for beginning all suits, though, in personal actions, its use became in the course of time evaded (b). In real and mixed actions, however, it was retained (long after its general abandonment), together with an antiquated and cumbrous process upon it to procure the appearance of the defendant (c). But by the (a) Vide sup. p. 397, where it is mentioned that the other action of dower, viz., "the writ of right of dower," has always been of rare occurrence. Its existence, however, is recognized in 23 & 24 Vict. c. 126, s. 26; and supposing such an action to be brought, its proceedings would be the same as those in an action of (c) Under this process, as used in dower, the defendant (or tenant as he is called in a real action) was called on to appear by the sheriff's. sticking up a form of written sum 23 & 24 Vict. c. 126, (called the Common Law Procedure Act, 1860,) both the original writ itself, and the subsequent process upon it, were, even in these cases, abolished; it being enacted, that no original writ of dower or dower unde nihil habet, and no plaint for freebench or dower in the nature of any such writ (d), should be brought after the commencement of that Act in any court whatsoever; but that where any such writ, action or plaint would at the date of that statute lie either in a superior or in any other court, an action might be commenced by writ of summons issuing out of the Common Pleas, in the same manner and form as the writ of summons in an ordinary action (e). That Act also proceeds to direct, that upon such writ shall be endorsed a notice that the plaintiff intends to bench, as the case may be; mons, and leaving it, on the premises out of which the dower is claimed. (See Garrard v. Tuck, 8 C. B. 231.) And in order to secure notice to the tenant, the summons had (by 31 Eliz. c. 3, s. 2) to be proclaimed in the church, which proclamation was afterwards directed, by 7 Will. 4 & 1 Vict. c. 49, to be affixed to the church doors instead. And after the original writ had been returned into court, the tenant was entitled to cast an essoign, that is, allege an excuse for failing to appear. (Sco Twining . Lowndes, 10 Bing. 65.) In default of appearance, the demandant (as the plaintiff is termed in a real action) was entitled to suc out further process, called a grand cape; under which the sheriff was directed to take possession into the hands of the Crown of the premises claimed; and then, if, on the return of the grand cape, there was still no appearance, the demandant was entitled to judgment. If on the other claim in dower, or for freeand that the service of such hand the tenant appeared, then the next step was for the demandant to count (which is equivalent to declaring in a personal action), and by her count to make demand, in general terms, of the third part of the lands of her deceased husband. (See William v. Gwyn, 2 Saund. by Wms. 43-45a; Roscoe on Real Actions, p. 282.) (d) Plaints, in the nature of real or mixed actions, were the method of commencing remedies for the recovery of land in inferior courts,— such as the court baron and the sheriff's county court, and courts of record having jurisdiction under their charters to entertain plea of land. As to free-bench, it is the name under which dower is, by the custom of some manors, claimable in the lord's court in respect of lands of copyhold tenure. (See Fitz. Nat. Brev. 155 P.) (e) 23 & 24 Vict. c. 126, s. 26. writ, the appearance of the defendant, the proceedings in default of appearance, the pleadings, judgment, execution, and all other the proceedings and costs on such writ, shall be subject to the same rules and practice, as nearly as may be, as the proceedings in an ordinary action commenced by writ of summons (ƒ). Among the defences peculiar to the action of dower, is that of ne unques seisie que dower, viz. that the demandant's husband was never seised of such an estate in the lands in question as could give the demandant a legal claim to dower; another is ne unques accouple en loial matrimonie, viz. that the demandant and her supposed husband were never joined in lawful matrimony; another, that the husband is still living; another, that the demandant eloped from her husband and lived in adultery with another person (g); and another is tout temps prist, viz. that from the death of the husband the tenant has always been and still is ready to render the demandant her dower, and rendereth the same into the court (h). And to the defence ne unques accouple, the demandant may reply that she was married at such a place, in such a diocese; on which it has been the course to award a trial by certificate (i); the court sending to the bishop of that diocese to certify whether there was a marriage or not. To the defence that her husband is still living, she may reply his death; and the practice has been that the issue thereon shall be tried by witnesses (j); but all other issues are triable by jury (k). At the common law there were neither damages nor (f) The provisions of 15 & 16 Vict. c. 76, and 17 & 18 Vict. c. 125, in particular, were made applicable to such writ, pleadings, and proceedings. (23 & 24 Vict. c. 126, ss. 26, 27.) No special notice of the action of dower is made in the rules of procedure annexed to the Judicature Act, 1873. (9) Hetherington v. Graham, 6 Bing. 135. (h) As to this plea, see Sarah Watson, dem., John Watson, ten., 10 C. B. 3. (i) Vide sup. p. 513, n. (m). (j) As to the trial by witnesses, vide sup. p. 513, n. (m). (k) Roscoe, 222, 300. costs in dower. But by the statute of Merton, (20 Hen. III. c. 1,) it was enacted, that if a widow shall recover her dower of the lands whereof her husband died seised, the tenant shall yield damages, that is to say, the value of the dower from the time of the death of the husband, until the day the widow shall have judgment to recover seisin. And by the statute of Gloucester, (6 Edw. I. c. 1,)— which gave costs in all cases where the party is entitled to damages, and by the subsequent statutes of 4 Jac. I. c. 3, and 8 & 9 Will. III. c. 11, costs were made recoverable by the successful party, (whether demandant or tenant,) in this action. In addition to which, there is now, also, the above-mentioned provision of 23 & 24 Vict. c. 126, s. 27 (1). If the jury find a verdict for the demandant, they ought also to find, 1, that her husband died seised, and also of what estate, and the time of his death; 2, the annual value of the land; 3, the amount of damages she has sustained by the detention of her dower. And the judgment in this action, when given for the demandant, has been, that she recover seisin of a third part of the tenements in demand, to be set forth by metes and bounds, together with the damages and costs (m). II. The action of quare impedit also used to commence by original writ (n); and, as the general rule, such writ was returnable into the Common Pleas only (o). This original writ directed the sheriff to command the defendants who disturbed the presentation, (that is, in general, the bishop, patron and clerk,) to permit the (7) All the above enactments, however, will be subject to that provision in the rules of procedure annexed to the Judicature Act, 1873, which leaves all questions of costs to the discretion of the court. (36 & 37 Vict. c. 66, sched. r. 47.) (m) William v. Gwyn, 2 Saund. by Wms. 44 e. (n) As to a quare impedit, vide sup. pp. 361, 362, 416-420; and see Tolson v. Bishop of Carlisle, 3 C. B. 41; 5 C. B. 761. (0) At the suit of the Crown, however, it might be made returnable into the Queen's Bench. (See Dyversité des Courtes, Ch. Bank le Roi.) |