IN REAL AC PROVISIONS Such tenant may have a writ of scire facias upon the same judgment so reversed or given on any writ of error, if he deand may therein traverse the fraud, and not otherwise." real actions as in perso nal. sire, 9133 Practice in "The practice in actions relating to real estate, enumerated to be same in this chapter, shall be the same in all respects, as in personal actions, except where otherwise specially provided by law; and rules to plead, reply, and answer, may be entered, and may be enlarged, and proceedings may be stayed, in the like cases. And all the provisions of law respecting pleadings, process, records, and judgments, in personal actions, shall, so far as may be, apply to actions relating to real estate."34 What for "All writs of right, writs of dower, writs of entry, and writs actions, pro of assize, all fines and common recoveries, and all other real mer writs, cess, &c. abolished. Provisions proceedings in real ac actions known to the common law, not enumerated and retained in this chapter; and all writs and other process heretofore used in real actions, which are not specially retained in this chapter, shall be, and they are hereby abolished." 1135 "No injunction shall issue to stay proceedings at law, in tions to stay any action for the recovery of lands, or of the possession thereof, tions. after verdict, unless the party applying therefor shall execute a bond, with one or more sureties, to the plaintiff in such action at law, in such sum as the chancellor, or officer allowing the injunction, shall direct, conditioned for the payment to the plaintiff in such action, and his legal representatives, of all such damages and costs, as may be awarded to them, in case of a decision against the party obtaining such injunction." "The damages to be paid upon the dissolution of such injunction, shall be ascertained by reference to a master, and shall include, not only the reasonable rents and profits of the land recovered by such verdict, but all waste committed thereon, after the granting of the injunction."87 33 2 R. St. 340. s. 7. 84 2 R. St. 342. s. 23. 35 2 R. St. 343. s. 24. 36 2 R. St. 189. s. 144. 37 2 R. St. 190. s. 145. "Whenever an injunction shall be applied for, to stay proproceedings at law, in any action after judgment or verdict, on the ground that such judgment or verdict was obtained by actual fraud, the chancellor shall have power to dispense with the deposit of any monies or the execution of any bond."38 "The chancellor shall direct the delivery of any bond, so executed, to the person entitled to the benefit thereof, for prosecution, whenever the condition of such bond shall be broken, or the circumstances of the case shall require such delivery."""" PROVISIONS IN REAL ACTIONS. SECTION II. EJECTMENT FOR Dower. right of dow ses, Right of dower.] A widow is entitled to dower of the Widow's third part of all the lands, whereof her husband was seized of er, an estate of inheritance, at any time during the marriage." And a widow of an alien, who, at the time of his death, is in what caentitled by law to hold any real estate, if she be an inhabitant of this state, at that time, is entitled to dower, of such estate, in the same manner as if her husband had been a native citizen.41 If a husband exchanges lands, for other lands, his out of what widow is not entitled to dower of both, but must make her election, by commencing proceedings within a year after her and its exhusband's death, to recover her dower of the lands given in exchange, or she will be deemed to have elected to take it of the lands received.42 lands; tent. EJECTMENT FOR DOWER. When widow barred Of lands mortgaged by the husband before marriage, his widow is entitled to dower, except as against the mortgagee, and those claiming under him.45 And as against them, the widow is not entitled to dower, where the husband buys lands, and mortgages them after the marriage; if to secure the purchase money, although she has not united in the mortgage;# But as against all others, she is entitled to be endowed of such lands, mortgaged after the marriage ;101 and if, after they are sold to pay the mortgage, a surplus remains, she is entitled to be endowed of the surplus. Of lands mortgaged to the husband, his widow is not entitled to dower, unless he acquires an absolute estate in them, during marriage.46 45 The widow is allowed to bequeath the crop in the ground of the land holden by her in dower.47 49 In case of divorce for the misconduct of the wife, she is not of dower; entitled to dower.48 If a jointure, or pecuniary provision in lieu of dower,50 be made, and duly assented to by the wife, she is barred of her dower; but her assent must appear by her becoming a party to the conveyance by which the same is made, or if she be an infant, by her joining with her father or guardian therein.51 And if a jointure or pecuniary provision in lieu of dower, be made without her assent, or after the mar riage;52 or if lands be devised to her, or a pecuniary or other provision be made for her by will, in lieu of her dower, she cannot have dower also, but must make her election:55 And she will be deemed to have elected to take the jointure, devise, or pecuniary provision, unless within a year after her busband's death, she enters on the lands to be assigned to her for dower, or commences procceedings for its recovery or assignment. 54 EJECTMENT FOR DOWER. No act, deed, or conveyance, executed or performed by the when not. husband, without the assent of his wife, evidenced by her acknowledgment, in the manner required by law, to pass the estates of married women, and no judgment or decree, confessed by, or recovered against him; and no laches, default, covin, or crime of the husband, can prejudice the right of his wife to her dower or jointure, or preclude her from recovering the same, if otherwise entitled to it.55 er must be demanded. The widow must demand her dower within twenty years When dow after the death of her husband; but if, at the time of his death, she is under the age of twenty-one years, or insane, or imprisoned on a criminal charge or conviction, the time such disability continues does not form any part of the twenty years.56 not prejudi lusive reco er. And the statutes provide, that, where a widow, not having Infant heir a right to dower, shall, during the infancy of the heirs of the ced by colhusband, or any of them, in any suit, commenced either by very of dowthe widow, or by the guardian of any heir, or upon any application to the supreme court, court of common pleas, or surrogate, recover by the default or collusion of such guardian, such infant heir shall not be prejudiced thereby, but when he comes of full age, shall have an action against such widow, to recover the lands so wrongfully awarded for dower,57 quarantine. The right of the widow to remain in the chief house of her Widows husband forty days after his death, and to be supported out of his estate during that time, which is called her quarantine, is secured to her by statute. But the statutes do not prescribe Within the period within which dower must be assigned, nor by whom dower to be it is to be done, but leave these as at common law, which, ever 58 what period assigned; 57 1 R. St. 743. s. 24. 54 1 R. St. 742. s. 14. 55 Ib. s. 16. 56 Ib. 8. 18. 58 Ib. S. FOR DOWER. EJECTMENT since the time of magna charta, has required that it should be assigned within the forty days; and it has been said that the widow is entitled to be endowed immediately after her husband's death.59 and when action may Formerly, if dower was not assigned during quarantine, be brought, her right to bring the action of dower, thereupon accrued." The present action is allowed to be brought after the expiration of six months, from the time her right accrued ;61 and until it is assigned, or possession recovered, she cannot lawfully enter.62 The heir or his guardian, or whoever may be the owner of the freehold, is the party to assign the widow's dower, if she has not commenced legal proceedings to compel its assignment or admeasurement, but it cannot be assigned by a and against tenant for years, as he has but a chattel.63 But the former writ of dower could only be brought against the tenant of the freehold,64 whose duty and right it was to make the assignment; while the action of ejectment must be brought against the actual occupant of the premises, if there be any.65 Besides ejectment, the law has provided the widow with another remedy by which she may proceed, at the end of her quarantine, to obtain her dower; this, is by petition for its admeasurement, which will be considered hereafter. whom. generally. Proceedings The proceedings in this action, for the recovery of dower, are generally the same as in ejectment in ordinary cases, of which we have been treating; and we shall now notice such proceedings only, as belong peculiarly to cases of dower. Declaration. 66 Declaration.] The action may be brought by the widow. or, if she has a husband, by both jointly, and the declaration must state, that "the plaintiff was possessed of the one |