summons, as the cause shall require, until a summons and proclamation shall be duly made and returned according to the tenor and meaning of this act." But this is, to a certain extent, repealed by the 7 Will. 4, and 1 Vict. c. 45, s. 2, which, instead of the proclamation, substitutes the affixing of a copy of the summons on or near to the doors of all the churches and chapels within such parish or place. Where the lands lie in more parishes than one, a proclamation, made at the parish church door of one, seems sufficient. Return of Writ.a Received 1st of A.D. 18-. Pledges of prosecution John Doe and Richard Roe. Summoners J. B. T. E. And after the aforesaid summons made to wit on the A.D. 18previously to the commencement of Divine Service I caused to be affixed on [or near to"] the doors of all the churches [and chapels] within the parish of E. within specified within which the tenements within mentioned do lie a copy of the said summons according to the form of the statutes in such case made and provided. Grand Cape.b High Sheriff.b Victoria &c. to the sheriff of W. greeting: Take into our hand by the view of good and lawful men of your county the third part of &c. in the parish of E. in your county which B. in our Court before our justices at Westminster claims as the dower of her the said B. of the endowment of C. her late husband against A. by our writ of dower unde nihil habet for the default of him the said A. and the day of the taking thereof make known to our justices at Westminster by your letters under seal and summon by good summoners the said A. that he be before our justices at W. on according as he was summoned before our justices at W. on last past, and have there the names of those by whose view you shall do this and this writ. Witness &c. Return.d By virtue of this writ to me directed I have by J. B. and C. D. good and lawful men of my bailiwick given notice to the within named A. to be and appear before the Queen's justices at W. at the time and place within mentioned and as I an within commanded. a A return of infancy or coverture is bad. Cro. Jac. 111. A return that the Sheriff had proclaimed "the contents of the writ," is insufficient, because he must proclaim that he made summons on the land, see 2 Wms. Saund. 43. b Appearance must be the third day after such return, exclusive of the day of the return; or, in case such third day shall fall on a Sunday, then on the fourth day after such return, exclusive of such day of return. 1 Will. 4, c. 3, s. 2. In default of appearance, the next process is a grand cape. There is a grand cape and petit cape; the former never lies after an am appearance by the tenant in chief; the latter issues where the tenant has appeared and makes default afterwards; 1 Roper, 433. That part of the writ which commands the Sheriff to take the land into the hands of the Queen is mere form, and void; Dalt. ch. 62: if the place be within a liberty the Sheriff must send his mandate to the bailiff of the liberty, as in other cases; ibid. The writ must be served fifteen days before the return day; Dalt. ch. 62. Br. Grand Cape, 29. a If there be no lands, &c., the Sheriff may return nihil; ibid. Return of Nihil. By virtue &c. and I further certify that the said A. hath no lands which I can take by the view of &c. The answer of The execution of this writ appears in a certain schedule hereto annexed. Writ of Inquiry and Seisin.Þ Victoria &c. to the Sheriff of W. greeting: Whereas B. widow who was the wife of C. lately in our Court before our justices of the bench at W. recovered her seisin against A. of the third part of &c. with the appurtenances in the parish of E. in your county as her dower of the endowment of the said C. her late husband by our writ of dower whereof she has nothing as by the record and process thereof now remaining in our said Court appears to us of record; therefore we command you that without delay you cause the said B. to have her full seisin of the said third part with the appurtenances to hold to her in severalty by metes and bounds and how you shall have executed this writ make known to our said justices at W. on &c. We command you also that by the oath of twelve good and lawful men of your bailiwick you diligently inquire if the said C. the late husband of the said B. died seised of or had a right to the said tenements with the appurtenances in fee simple or fee tail at law or in equity and if by that inquisition you shall have so found that you diligently inquire how long time has elapsed from the death of the said C. and how much the said tenements with the appurtenances are worth by the year in all issues beyond reprises, according to their value; and what damages the said B. hath sustained as well as by occasion of the detention of her said dower beyond the said value as for her costs and charges by her about her suit in this behalf expended and the inquisition thereupon made make known to our said justices at the said time under your seal and the seals of those by whose oath you shall have made that inquisition and this writ. Witness &c. Return. W. An inquisition taken at in the said county the- day of - between to wit. the hours of ten and twelve of the clock in the forenoon of the same day in the year of our Lord 18- before me Sheriff of the said county by virtue of her Majesty's writ to me directed upon the oaths of twelve good and lawful men of my bailiwick and being then and there sworn and charged upon their oath say that C. in the said writ named died seised ofd &c. with the appurtenances at E. in the parish of E. in the said county in his demesne as of fee simple and that the tenements aforesaid with the appurtenances are worth by the year beyond reprises according to the true value of the same the sum of £ and that months are elapsed from the death of the said C. and that B. his widow in the same writ named hath sustained damage by reason of the detaining her dower in the said writ specified to the value of £ and for costs and charges by her about her suit in that behalf expended the sum of 40s. In testimony whereof as well I the said a If the Sheriff do not return the writ, the demandant may sue out an alias grand cape at the return of the first writ; see Entry, Rastall, 239 a, pl. 4. If the defendant appear on the summons or on the grand cape, and the default of appearance upon the summons has been released to the defendant, the demandant must count; see Chitty, Pl. 1218; Doctr. Plac. 147; 2 Wms. Saund. 43. If on the return of the grand cape the tenant makes default, and the demandant insists upon the default, he is entitled to judgment of seisin and to an years and award of a writ of inquiry, but the demandant may waive the default and take an appearance upon the grand cape. b No alias habere facias seisinam can issue; for in Dyer, 278 a, Anon., the Sheriff assigned dower by metes and bounds, but the demandant refused to receive it; held, a good return, and that the widow might enter at any time after without an alias. c 3 & 4 Will. c. 105, ss. 2, 3. d "Seised of," or "had a right to" (as the case may be). Sheriff as the jurors aforesaid have interchangeably put our seals to this inquisition the day and place above written. The answer of High Sheriff. And I do further certify to the justices of our lady the Queen at W. that by virtue of the said writ I did on &c. cause the said B. to have full seisin of the third part of the &c. with the appurtenances to wit of &c. in the tenure of A. to hold to the said B. in severalty by metes and bounds as the dower of the said B. of the endowment of the said C. her late husband, as by the said writ I am commanded. The residue of the execution of this writ appears in the inquisition hereunto annexed. The answer of a C High Sheriff. The assignment of dower, being a judicial act, must, like all Assignother judicial acts, be done by the Sheriff in person, and not by ment, how deputy. He can only assign dower according to the rule of the made. common law, and the tenor of the writ. When, according to the exigencies of the writ, the whole, as in gavelkind, is to be seized, no difficulty can well arise in executing it; but when a part only is to be seized, and that part incapable of a beneficial severance, as in mines, tolls, and the like, the assignment of dower is frequently beset with many difficulties. The general rule is, that if the thing, of which she is endowed, be divisible, her dower must be set out by metes and bounds; but if it be, in its nature, indivisible, she must be endowed specially; as of the third presentation to a church, the third part of an advowson, the third toll dish of a mill, or" de integro molendino per quemlibet 3 mensem; "d the third part of the profits of an office; the third part of a piscary, viz. tertium piscem vel jactum retis tertium; and so of a rent charge and common of pasture, that is, a stinted pasture. The judgment, in Stoughton v. Leigh, throws considerable light on the mode of executing this writ, especially where the subject-matter is incapable of a beneficial severance. It was a case directed out of the High Court of Chancery for the opinion of the Court of C. P., and the main features of it were these:-John Hanbury died seised of divers landed estates, and of several mines and strata of lead and coal-some of these mines being under his own land-others under land not his own; some of them opened, others not opened. The certificate, after stating that the widow was not dowable of any of the mines or strata which had not been opened at all, whether in lease or not, proceeds to say, that "in assigning the dower of Mr. H.'s own lands the Sheriff must estimate the annual value of the open mines therein as part of the value of the estates of which the widow is dowable; but it was not absolutely necessary that he should assign to her any of the open mines themselves, or any portion of them. The third part in value which he should assign to her might consist wholly of land set out by metes and bounds, a Bandal's ca. Noy. 21. b 1 Roll. Abr. 683, pl. 35; see also 1 Roper on Husband and Wife, where the matter is ably treated. c Hence it follows that the endow ment must be parcel of the lands them- d Co. Litt. 32. e 1 Taunt. Rep. 402; and see Doe d. Riddell v. Gwinnell, 1 G. & D. 191. and containing none of the open mines. Or, he might include any of the mines themselves in the assignment to the widow, describing them specifically, if the particular lands in which they lie should not also be assigned; but if those lands should be included in the assignment, the open mines within them might, but were not necessarily to be so described, being part of the land itself which was assigned and as the working of open mines was not waste, the tenant in dower might work such mines for her own exclusive profit. Or, the Sheriff might divide the enjoyment and perception of the profits of any of the particular mines as after mentioned. In regard to the mines and strata which Mr. H. had in the lands of other persons, they were of opinion that it was not necessary that the Sheriff should divide each of the mines or strata; but he might assign such a number of them as might amount to one-third in value of the whole, or he might proportion the enjoyment of such of them as he should think necessary, so as to give each a proper share of the whole. If the division of an open mine could be made by metes and bounds as lands are required to be divided, without preventing the parties from having the proper enjoyment and perception of the profits, they thought that mode should be adopted; but as the property seemed to them to be incapable of a beneficial severance in that way, they thought the case analogous to some of those stated by Lord Coke, 1 Inst. 32 a, wherein it is held that the Sheriff may make the assignment in a special manner, and that therefore he might proceed with respect to the mines in question. They found no authority however establishing any precise mode of dividing a mine, nor could they point out any that might not be attended with inconvenience; but if the Sheriff was to make the assignment, they thought he might lawfully execute his duty by directing separate alternate enjoyment of the whole for short periods, proportioned to the share each had in the subject, or by giving the widow a proportion of the profits. In answer to the last question proposed to them, they were of opinion that the widow was entitled to work for her own exclusive use the open mines within the close that had been assigned to her, without any exception of the mine, for her dower of one of the estates, notwithstanding the excess arising from the omission of such exception; and inasmuch as the assignment was the act of the heir himself, being of full age at the time, they thought he had no remedy at law against the dowress for avoiding the consequences of that act. Had he been under age at the time he might have had relief by writ of admeasurement of dower; or had the assignment been made by the Sheriff in execution of a judgment in dower, the heir might have had a scire facias to obtain an assignment de novo." The Sheriff may put the widow into possession or seisin, by a clod, or by grass growing upon the land, or by any beast being upon the land; or he may assign it by parol.b a Fitz. Dower, 38. a b Co. Litt. 35; Rowe v. Power, 2 N. R. 1, 34; Watk. on Conv. 83. If the commands of the writ be to deliver possession of a third part of all lands and tenements, &c., and there are lands in meadow, pasture, and corn, he may assign the whole dower out of any of them. Although the Sheriff do not return the writ, the widow is lawfully seised in dower. It is not necessary for him to state in Certainty of his return the particular fields which he has assigned; it is suffi- return. cient to state, with certainty, of what such thirds consist. The Sheriff's mistake, in assigning it, may be corrected by scire facias Excessive for an assignment de novo by the heir or tenant; d semble, a Court assignment, of Equity would relieve. For any misconduct, in assigning Sheriff's dower, the Court will punish the Sheriff-in the case cited he misconduct. was committed to prison. SECTION II. QUARE IMPEDIT." THIS is the proper process to try the right to a presentation. By the common law there were three writs for the church itself:1. Right of advowson. 2. Assize of darrein presentment. 3. Quare impedit. The two former have been abolished.h Quare impedit For whom is, in strictness, a mixed and not a real action. But it is not an and when it lies. action over which the three Superior Courts have a concurrent jurisdiction; so that The Common Law Procedure Act (15 & 16 Vict. c. 76) does not apply to it, nor do the general rules of Hil. T. 1853. It is a possessory writ, and lies, for the patron of an advowson, to restore him to the possession of his advowson, and to his right of presentation. 66 At common law, it lay only when the patron was hindered from presenting during the vacancy of the church, plenarty being in all cases a good plea. But since the 13 Edw. 1, c. 5, plenarty by defendant's own presentation is no plea, so that the writ be purchased within the six months, though he cannot recover his presentation within the six months." A patron is said to be disturbed in presenting, either when the bishop hath admitted and instituted a clerk upon the presentment of another pretended patron, or, when the bishop will not admit the patron's clerk presented him, upon any pretence. But, if the ordinary hath filled the church, by a wrongful collation, the patron is not thereby disturbed; and, in such a case, the patron must present, and the ordinary refuse to admit his clerk, before the patron can bring his action; neither is a Moore, 19 pl. 66. b Ashborough's ca. Cro. Eliz. 43. c Howard v. Cavendish, Cro. Jac. 621; Palm. 264. d 1 Roper, 406; Gilb. Exc. "Dower," 389. e Hoby v. Hoby, 1 Vern. 218: 1 Roper, suprà; Sneyd v. Sneyd, 1 Atk. 442. f Howard v. Cavendish, suprà; Longville's ca. 1 Keb. 743. 2 Inst. 357; 2 Roll. Abr. 375. h 3 & 4 Will. 4, c. 27, s. 36. i Miller v. Miller, 1 Scott, 387; Tol son v. Bishop of Carlisle, 3 C. B. 50. |