*Dower may be recovered by bill in equity, as well as by action at law. The jurisdiction of chan

cember, 1830. Robinson on the Practice in the Courts of Law and Equity, in Virginia, vol. i. 464. The writ of right is retained and regulated by the Territorial Law of Michigan, of February 26th, 1821, and the writ of disseisin in Indiana. Revised Statutes of Indiana, 1838. The action of ejectment with its harmless, and as matter of history, curious and amusing English fictions, is retained in New-Jersey, Delaware, Ohio, Indiana, Illinois, Maryland, North Carolina, Virginia, Kentucky, Mississippi, Tennessee, and perhaps in some other states. In Pennsylvania, South Carolina, Missouri, and New-York, the fictitious part of the action is abolished by statute. In Alabama the action of trespass is used to try title to lands. In Tennessee a writ issues and is served by the sheriff on the tenant along with the declaration in ejectment. This is by the statute of 1801. In Pennsylvania, the revisors of the civil code suggested that the action of ejectment might well be expanded, modified, and applied as a substitute for the principal part of the ancient real actions, and they prepared a bill for that purpose. By the bill it might be brought upon the right of possession of real estate of a corporeal nature, and upon the right of property in incorporeal hereditaments; and upon the right of property in any remainder or reversion in real estate against any other person claiming the same remainder or reversion, and by any person in possession of real estate to determine adverse claims thereto. Possession of land might also be recovered in the action of trespass quare clausum fregit. In Massachusetts, the writ of right, and the possessory real actions, would appear to be in active and familiar use, in all their varied forms and technical distinctions, after having become simplified, and rendered free from every troublesome encumbrance that perplexed the ancient process and pleadings. See Professor Stearn's and Judge Jackson's Treatises on the Pleadings and Practice in Real Actions in Massachusetts, passim, and 2 Metcalf's Rep. 32. 163. So late as 1834, we perceive a decision in New-Hampshire, in the action of formedon in remainder, in the case of Frost v. Cloutman, (7 New-Hampshire Rep. 1,) and to which the defence was a common recovery, levied there in 1819, in bar of an estate tail. The law of common recoveries was familiarly and learnedly discussed. Indeed it is a singular fact, a sort of anomaly in the history of jurisprudence, that the curious inventions, and subtle, profound, but solid distinctions, which guarded and cherished the rights and remedies attached to real property in the feudal ages, should have been transported, and should for so long a time have remained rooted in soils that never felt the fabric of the feudal system; whilst, on the other hand, the English parliamentary commissioners, in their report, proposed, and parliament executed, a sweeping abolition of the whole formidable catalogue of writs of right, writs of entry, writs of assize, and all the other writs in real actions, with the single exception of writs of dower, and quare impedit. This we should hardly have expected, in a stable and proud monarchy, heretofore acting upon the great text authority of Lord Bacon,

cery over the claim of dower, has been thoroughly examined, clearly asserted, and definitively established. It is a jurisdiction concurrent with that law; and when the legal title to dower is in controversy, it must be settled at law; but if that be admitted or settled, full and effectual relief can be granted to the widow in equity, both as to the assignment of *dower and the damages. The equity jurisdiction was so well established, and in such exercise in England, that Lord Loughborough said that writs of dower had almost gone out of practice. The equity jurisdiction has been equally entertained in this country, though the writ of dower unde nihil habet, is the remedy by suit most in practice. The claim of dower is considered, in New

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that it were good if men, in their innovations, would follow the example of time itself, which, indeed, innovateth greatly, but quietly, and by degrees scarce to be perceived."

By the statute of 3 and 4 William IV., c. 27, all real and mixed actions, except the writ of right of dower, and the writ of dower unde nihil habet, quare impedit, and ejectment were abolished. So, the legislature of Massachusetts, upon the recommendation of the commissioners appointed to revise their laws, have at length yielded to the current of events, the force of examples, and the innovating spirit of the age, which is sweeping rapidly before it, in England and in this country, all vestiges of the ancient jurisprudence. They have abolished all writs of right and of formedon, and all writs of entry, except the writ of entry upon disseisin, and which is regulated and reduced to its simplest form. This last writ was deemed by the commissioners more simple and convenient, and much more effectual than the ejectment, because a final judgment in a writ of entry is a bar to another action of the same kind. The old common law remedies for private nuisances are also abolished, and the substituted remedies are the action on the case, and an enlarged equity jurisdiction given to the Supreme Judicial Court. Mass. Revised Statutes, 1835, part 3, tit. 3, c. 101. 106.

⚫ Goodenough v. Goodenough, Dickens, 795. Curtis v. Curtis, 2 Bro. 620. Mundy v. Mundy, 4 ibid. 295. 2 Ves. jun. 122, S. C.

Swaine v. Perine, 5 Johns. Ch. Rep. 482. Greene ». Greene, 1 Hammond's Rep. 535. Dr. Tucker, note to 2 Blacks. Com. 135, n. 19. Chase's Statutes of Ohio, vol. ii. 1316. Grayson v. Moncure, 1 Leigh, 449. Kendall v. Honey, 5 Monroe, 284. Stevens v. Smith, 4 J. J. Marsh's Rep. 64. Badgeley v. Bruce, 4 Paige, 98. London v. London, 1 Humphrey's Tenn. Rep. 1. 12.

Jersey, which has a distinct and well-organized equity system, as emphatically, if not exclusively, within the cognizance of the common law courts.a

In addition to the legal remedies at law and in equity, the surrogates, in New-York, and courts in other states are empowered and directed, upon the application either of the widow, or of the heirs or owners, to appoint three freeholders to set off by admeasurement the widow's dower. This convenient and summary mode of assignment of dower, under the direction of the courts of probates, or upon petition to other competent jurisdictions, in the several states, has, probably, in a great degree, superseded the common law remedy by action. When a widow is legally seised of her freehold estate, as dowress, she may bequeath the crop in the ground of the land holden by her in dower.

Having finished a review of the several estates of freehold not of inheritance, we proceed to take notice of the principal incidents which attend them, and which are necessary for their safe and convenient enjoyment, and for the better protection of the inheritance.

*(1.) Every tenant for life is entitled, of common right, to take reasonable estovers, that is,

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• Harrison v. Eldridge, 2 Halsted, 401, 402.

New-York Revised Statutes, vol. ii. 488-492. Coates v. Cheever, 1 Cowen, 460. Hotchkiss Code of Statute Law of Georgia, 433.

‹ Perkins, sec 521. Dy. 316, pl. 2. The statute of Merton, 20 Hen. III., had this provision; and it has been frequently re-enacted in New-York, and is now included in the new revision of the statute laws. New-York Revised Statutes, vol. i. 743, sec. 25. In the revised statute codes of the several states, the law concerning dower is usually one of the titles, and it is well digested upon common law principles, and power is given to the circuit courts, county courts, probate, surrogate, or orphan's courts, before whom suits in dower are brought, to cause dower to be assigned by commissioners. These revised codes in the western, as well as in the Atlantic states, are ably executed, and wisely conservative in their provisions, not only in this particular case, but under all the titles and modifications of property. None of the states have gone quite as far in their improvements or innovations as the Revised Statutes of New-York, of 1830.

wood from off the land, for fuel, fences, agricultural erections, and other necessary improvements. According to Sir Edward Coke, they are estoveria ædificandi, ardendi, arandi et claudendi. But, under the pretence of estovers, the tenant must not destroy the timber, nor do any other permanent injury to the inheritance; for that would expose him to the action and penalties of waste.b

(2.) He is entitled, through his lawful representatives, to the profits of the growing crops, in case the estate determines by his death, before the produce can be gathered. The profits are termed emblements, and are given on very obvious principles of justice and policy, as the time of the determination of the estate is uncertain. He who rightfully sows ought to reap the profits of his labor; and the emblements are confined to the products of the earth, arising from the annual labour of the tenant. The rule extends to every case where the estate for life determines by the act of God, or by the act of the law, and not to cases where the estate is determined by the voluntary, wilful, or wrongful act of the tenant himself. The doctrine of emblements is applicable only to the products of the earth which are annual, and raised by the yearly expense and labour of the tenant. It applies to grain, garden roots, &c., but not to grass, or fruits, which are the natural products of the soil, and do not essentially owe their annual existence to the cultivation of man. The tenant, under the protection of this rule, is invited to agricultural industry, without the apprehen

a Co. Litt. 41, b.

b Co. Litt. 73, a. b.

c Oland's case, 5 Co. 116. Debow v. Titus, 5 Halsted, 128.

d Evans v. Roberts, 5 Barnw. & Cress. 829. Com. Dig. Biens. G. 1. Evans v. Iglehart, 6 Gill. & Johns. 171. In England, a custom that a tenant shall have the way-going crop, after the expiration of his term, is good, if not repugnant to his lease. Wigglesworth v. Dallison, Doug. 201.

sion of loss by reason of the unforeseen contingency of his death."

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(3.) Tenants for life have the power of making underleases for any lesser term; and the same rights and privileges *are incidental to those under-tenants which belong to the original tenants for life. If the original estate determines, by the death of the tenant for life, before the day of payment of rent from the under-tenant, the personal representatives of the tenant for life are entitled to recover from the undertenant, the whole or a proportional part, of the rent in arrear. The under-tenant is likewise entitled to the emblements, and to the possession, so far as it may be necessary to preserve and gather the crop.

(4.) In estates for life, if the estate be charged with an encumbrance, the tenant for life is bound, in equity, to keep down the interest out of the rents and profits; but he is not chargeable with the encumbrance itself, and he is not bound to extinguish it. The doctrine arises from a very reasonable rule in equity, and applies between a tenant for life, and other parties having successive interests. Its object is to make every part of the ownership of a real estate bear a rateable part of an encumbrance thereon, and to apportion the burthen equitably between the parties in interest, where there is a possession. The tenant for life contributes only during the time he enjoyed the estate, and the value of his life is calculated according to the common tables. If he

. Co. Litt. 55, b. A dowress may bequeath her emblements, otherwise they go to her personal representatives. Statute of Merton, 20 Hen. III.,

c. 2.

Lord Hardwicke, in Casborne v. Searfe, 1 Atk. 606.

Revel v. Watkin

son, 1 Ves. 93, and in Amesbury v. Brown, ibid. 480. Tracy v. Hereford, 2 Bro. 128. Penhyrn v. Hughes, 5 Ves. 99. Burges v. Mawbey, 1 Turner & Russell, 961. Hunt v. Watkins, 1 Humphrey's Tenn. Rep. 498. Foster v. Hilliard, 1 Story's Rep. 77.