mentaries. One instance, however, may be mentioned, in which Courts of Equity administer the most wholesome moral justice, following out the principles of law; and that is, where an agent, by fraud or gross negligence, has confounded his own property with that of his principal, so that they are not distinguishable. In such a case, the whole will be treated in Equity as belonging to the principal, so far as it is incapable of being distinguished.'

CHAPTER XII.

DOWER.

§ 624. ANOTHER head of concurrent equitable jurisdiction is in matters of DowER. As dower is a strictly legal right, it might seem at first view, that the proper remedy belonged to Courts of Common Law. The jurisdiction of Courts of Equity in matters of dower, for the purpose of assisting the widow by a discovery of lands or title-deeds, or for the removing of impediments to her rendering her legal title available at law, has never been doubted.2 And indeed, it is extremely difficult to perceive any just ground, upon which to rest an objection to it, which would not apply with equal force to the remedial justice of Courts of Equity, in all other cases of legal rights in a similar predicament. But the question has been made, how far Courts of Equity should entertain general jurisdiction to give general relief in those cases, where there appeared to be no obstacle to her legal remedy. Upon this question there has in former times been no inconsiderable discussion, and some diversity of judg

1 Lupton v. White, 10 Ves. 432; Panton v. Panton, cited ibid.; Chedworth v. Edwards, 8 Ves. 46; Hart v. Ten Eyck, 2 John. Ch. R. 108; 2 Black. Comm. 405; Story on Bailm. § 40; ante § 468.

21 Fonbl. Eq. B. 1, ch. 1, § 3, note (ƒ).

31 Fonbl. Eq. B. 1, ch. 1, § 3, note (ƒ); Huddlestone v. Huddlestone, 1 Ch. Rep. 38; Park on Dower, ch. 15, p. 317.

ment. But the result of the various decisions upon this subject is, that Courts of Equity will now entertain a general concurrent jurisdiction with Courts of Law in the assignment of dower in all cases.1 The ground most commonly suggested for this result is, that the widow is often much embarrassed, in proceedings upon a writ of dower at the Common Law, to discover the titles of her deceased husband to the estates, out of which she claims her dower (the titledeeds being in the hands of heirs, devisees, or trustees); to ascertain the comparative value of different estates; and to obtain a fair assignment of her third part.2 In such cases, where the title of the widow to her dower is not disputed, the Court proceeds directly to the assignment of dower; but, if the title is disputed, it is first required to be established by an issue at law, or otherwise.3

625. There are some cases, in which the remedy for lower in Equity seems indispensable. At law, if the tenant dies after judgment, and before damages are assessed, the widow loses her damages. And so, if the widow herself dies before the damages are assessed, her personal representative cannot claim any. But a Court of Equity will, in such cases, entertain a bill for relief; and decree an account of rents and profits against the respective representatives of the several persons, who may have been in possession of the estate since the death of the husband; provided, at the time of filing the bill, the legal right to damages is not gone. §626. Upon principle, there would not seem to be any real difficulty in maintaining the concurrent jurisdiction in

1 Curtis v. Curtis, 2 Bro. Ch. R. 620; Mundy v. Mundy, 2 Ves. jr. 122; S. C. 4 Bro. Ch. R. 294.-I am aware that Mr. Park, in his excellent Treatise on Dower, doubts, if the doctrine is maintainable to this full extent. But, notwithstanding his doubts, it appears to me the just result of the authorities, and maintainable upon principle. Indeed, Mr. Park seems to admit, that where a discovery or account is wanted, there seems no just objection to the jurisdiction. Park on Dower, ch. 15, pp. 317, 320, 325, 326, 329, 330.

2 Mitf. Pl. Eq. 121, 122, 123, by Jeremy, and note (a); Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 5, p. 508, 509.

3 Ibid. Park on Dower, ch. 15, p. 329.

1 Park on Dower, ch. 15, p. 330; Id. 309; Curtis v. Curtis, 2 Bro. Ch. R.

Courts of Equity in all cases of dower; for a case can scarcely be supposed, in which the widow may not want either a discovery of the title-deeds, or of dowable lands; or some impediment to her recovery at law removed; or an account of mesne profits before the assignment of dower; or a more full ascertainment of the relative values of the dowable lands; and for any of these purposes, (independent of cases of accident, mistake, or fraud, or other occasional equities,) there seems to be a positive necessity for the assistance of a Court of Equity. And if a Court of Equity has once a just possession of the cause in point of jurisdiction, there seems no reason why it should stop short of giving full relief, instead of turning the dowress round to her ultimate remedy at law, which is often dilatory, and always expensive.2 Dower is favoured, as well in Law, as in Equity. And the mere circumstance, that a discovery of any sort may be wanted to enforce the claim, would, under such circumstances, seem to furnish a sufficient reason, why the jurisdiction for discovery should carry the jurisdiction for relief.*

3

§ 627. Lord Eldon has put this matter in a strong light. After having remarked, that he did not know any case, in which an heir had claimed, merely as heir, an account (of mesne profits) without stating some impediment to his recovery at law; as that the defendant has the title-deeds 632; Dormer v. Fortescue, 3 Atk. 130; Mordaunt v. Thorold, 3 Lev. R. 275 ; 1 Salk. 252.

The action of Dower is now, in consequence of the jurisdiction in Equity being established, less frequently resorted to at law than in former times. And the Parliamentary Commissioners, in their report, (2 Report of Common Law, p. 7, 1830,) say; "The necessity for a discovery to ascertain the state of the legal title, before a widow can safely resolve to commence an action against any person as tenant of the freehold, and the convenience of a commission for setting out her dower under the authority of a Court of Equity, generally make it expedient, that a suit in Equity should be instituted."

2 See Park on Dower, ch. 15, p. 318.

3 Com. Dig. Chancery, 3 E. 1, 2.

See Dormer v. Fortescue, 3 Atk. 130, 131; Moor v. Black, Cas. Temp. Talb. 126; Herbert v. Wren, 7 Cranch, 370, 376; Curtis v. Curtis, 2 Bro. Ch. R. 620; Mundy v. Mundy, 2 Ves. jr. 122; S. C. 4 Bro. Ch. 294; Graham v. Graham, 1 Ves. 262; D'Arcy v. Blake, 2 Sch. & Lefr. 389, 390; Powell v. The Monson Manuf. Co., 3 Mason, R. 347.

necessary to maintain his title; that terms are in the way of his recovery at law; or other legal impediments, which do, or may probably prevent it; upon which probability, or upon the fact, the Court might found its jurisdiction; he proceeded to say;-"The case of the dowress is upon a principle somewhat, and not entirely, analogous to that of the heir. An indulgence has been allowed to her case, upon the great difficulty of determing a priori, whether she could recover at law, ignorant of all the circumstances; and a person against whom she seeks relief, &c., having in his possession all the information necessary to establish her rights. Therefore it is considered unconscientious in him to expose her to all that difficulty, to which, if that information was fairly imparted, as conscience and justice require, she could not possibly be exposed.'

" 1

§628. But the propriety of maintaining a general jurisdiction in Equity in matters of dower is still more fully vindicated in a most elaborate opinion of Lord Alvanley, when Master of the Rolls, in a case, which now constitutes the pole-star of the doctrine. After adverting to the fact, that dower is a mere legal demand, and the widow's remedy is at law, he said ;—“"But then the question comes, whether the widow cannot come either for a discovery of those facts, which may enable her to proceed at law; and, on an allegation of impediments thrown in her way in her proceedings at law, this Court has not a right to assume a jurisdiction to the extent of giving her relief for her dower; and, if the alleged facts are not positively denied, to give her the full assistance of the Court, she being in conscience as well as at law, entitled to her dower." He then proceeded to state the reasons, why the widow should have the assistance of the Court by relief, as well as by discovery; insisting, that the case of the widow is not distinguishable from that of an infant, where the relief would clearly be granted; and that it would be unconscientious to turn her round to a suit at law for the re

1 Pulteney v. Warren, 6 Ves. 89. See Co. Litt. 208. Butler's note, 105, as to dower in ease of a mortgage for a term of years.

covery of her dower, which must be supposed necessary for her to live upon, when she has been compelled to resort to Equity for a discovery. And he finally concluded by saying, that the widow labours under so many disadvantages at law, that she is fully entitled to every assistance that this court can give her, not only in paving the way for her to establish her right at law; but also by giving complete relief, when the right is ascertained.1

1 Curtis v. Curtis, 2 Bro. Ch. R. 620, 630 to 634.-The judgment of the Master of the Rolls contains so masterly a view of the doctrine, that I venture to transcribe the material passages, as they cannot be abridged without injury to their force :— "Dower, therefore, is a mere legal demand, and the widow's remedy is primà facie at law. But then the question comes, whether the widow cannot come either for a discovery of those facts which may enable her to proceed at law, and on an allegation of impediments thrown in her way in her proceedings at law, this Court has not a right to assume a jurisdiction to the extent of giving her relief for her dower, and, if the alleged facts are not positively denied, to give her the full assistance of this Court, she being, in conscience as well as law, entitled to her dower. Her remedy at law is a writ of dower. Generally there are no damages in real actions, but so favourable was the law to this particular action, that it provided a special relief for the widow by giving her damages. If the widow was disturbed in her quarantine, she had a particular writ penned for her relief. As to dower, the widow at first was only entitled to have an assignment of the land by metes and bounds. Then came the statute of Merton, which showed particular anxiety for the relief of widows; and it is curious to see, that the attempt now is to drive the widow to that remedy as the least advantageous, though, it is very evident, the statute was meant to give her an additional remedy. The deforcers of dower are (by that statute) to be in mercy, or fined at the pleasure of the king, which in those days was a very serious thing, and was meant as a real punishment to deforcers. I own I think it an odd construction of this statute, that the damages given by it are to be considered strictly as damages, that is, as vindictive damages in the breast of a jury, and not capable of ascertainment by the Court, and that, therefore, they are to die with the person. However, so it has been determined. As to what is said in Sayer's Law of Damages, that a widow shall have no damages when her dower is assigned to her in Chancery, it certainly is a mistake of the meaning of Co. Litt. 33 a; for Coke is there speaking of the writ De Dote assignandâ, issued by the Court of Chancery, and not a decree of a Court of Equity. In Fitzherbert's Natura Brerium, the nature of the writ de Dote assignanda appears very clear, and on this there are no damages, because there is no deforcement of the widow, who is put to no trouble, but has a summary remedy provided for her. "Now, as to the cases which have been cited, Hutton v. Simonds, 2 Vern. 722, does not seem to bear much upon this case. Tilly v. Bridges, Prec. Ch. 252, is also reported in 2 Vern. 519, and I have some doubt about the authority of that case, for it is more particularly stated in Vernon than in Prec. Ch., and yet, what is said in Vernon, as to the injunction not preventing the entry, certainly cannot be right. Duke of Bolton v. Deane, Norton v. Frecker, and other