and that her right to dower had no dependance upon the subsequent continuance or discontinuance of working them, either by the husband, or those claiming under him.

It was also held that this right of dower could not be affected by leases made by the husband during coverture; but if any of the existing leases for years were made by the husband before marriage, then the endowment must be of the reversions and the rents reserved; in which case the widow would be bound, so long as the demises continued, to take her share of the renders, whether pecuniary or otherwise, according to the terms of reservation.

Dower may be assigned by parol, notwithstanding the Statute of Frauds, for her estate is not created but only ascertained by assignment; and when she has entered, after assignment, the freehold rests in her without livery of seisin, (a) whether the assignment has been accomplished by agreement, or by the course of law.

Dower may be assigned by mutual agreement between the owner of the freehold and the widow, and her acceptance of the provision by indenture will preclude her from asserting any further claim. (b) But if her dower be refused to her, she may proceed either by writ of dower, at common law, or in equity by a bill for an assignment. In the former case, if her right is established, the sheriff is then directed to make the assignment; and, in the latter case, a commission usually issues for the same purpose, or the master may be directed to assign it. (c) But the mode of proceeding, though varying in form, are substantially the same, with respect to the principle of assignment.

It is not necessary that the widow should have a third or other proportion of each part of the husband's estates. Thus, it has been held, that if the husband be possessed of several different mines, it is not necessary that the sheriff should divide each of them; but he may assign such a number of them as may amount to one-third in value of the whole. (d)

But when there is but one mine, or if it is not desirable to assign some in discharge of the whole, it it obvious that the ordinary mode of assignment by metes and bounds is impracticable, and some other means must be resort ed to for determining the estate of the dowress. The following distinctions have been recognized :

If the mines are within the lands of the husband, the sheriff must estimate the annual value; but he need not assign to her any of the mines themselves, or any part of them; the widow's part may consist wholly of lands set out by metes and bounds, in which are some of the mines.-But he may, if he chooses, include any of the mines or minerals in the assignment; and if the

(a) Co. Litt. 32. b, n. 1. 34 a. 35 a. Rowe . Power, 2 N, R, 134.
() Dyer, 91 b., pl. 12.
(c) Goodenough v. Goodenough, 2 Dick, 795.
(d) Stoughton v, Leigh, 1 Taunt. 411. See 9 Vin. Ab. 257 960.

lands in which they are form no part of the lands assigned for dower, the mines should be specifically described; if, however, the mines assigned be included in the lands set out in dower, it is not necessary to particularise them, as they are parts of the lands assigned. But the sheriff may not adopt any of these methods; he may divide the enjoyment and perception of the profits of the mines between the parties-viz., by directing the sepa rate alternate enjoyment of the whole for short periods, proportioned to the share each party had in the subject, or by giving to the widow an adequate part of the profits. (a)

If, again, the mines subject to dower are in the lands of other persons, the sheriff need not divide each of the mines; but he may assign such a number of them as may amount to one-third in value of the whole, or he may proportion the enjoyment of them in such a manner as to give each person a proper share of the whole. (b)

It would be to enter too minutely into the subject to discuss the remedies for excessive or defective assignments. (e) It may be observed, however, that when the assignment is made by the heir of full age and under no disability, and not by the sheriff, the heir will be bound by the assignment, although it exceeded the widow's part of the estate; for it is the act of a person sui juris, and uncontrolled in the distribution of his estate. (d) But a Court of equity, it is presumed, would relieve the heir against the consequences not only of fraud, but of evident mistake.

In the case of Stoughton v. Leigh, just cited, it appeared that the heir being of full age, let his ancestor's widow into possession of, and assigned to her for dower of a certain estate certain closes of land, in which there was an open coal mine wrought at times during the marriage, but which had been discontinued long before the husband's death.-The value of the closes was amply sufficient to answer any demand of dower, without regard to the value of any of the coal. The question was, whether the heir had any and what relief in respect to the excess of his own assignment. And it was held, that since the assignment was the act of the heir himself, he being of full age at the time, he had no remedy at law against the dowress for avoiding the consequences of that act, and that the dowress was at full liberty to work the mine, notwithstanding the excess of assignment.

But if the heir making an excessive assignment was only an heir in tail, it may be doubted whether those in remainder would be bound by his acts.

An infant heir may assign dower, for the widow's claim is urgent, and necessary for her immediate support. (e)-However, in consequence of his disability, the law protects him against the consequences of an excessive assignment, and he may, even before he arrives at full age, be supplied with the

(a) Stoughton v. Leigh, supra.

(c) See Roper on Husband and Wife, chap. ix. sec. 3. (d) Gilb. Dower, 300.

(b) Ibid.

(e) 1 Roll. Abr. 137, 681. Gore v. Perdue, Cro. Eliz. 309.

writ of admeasurement, which is addressed to the sheriff, and which directs him to make the admeasurement finally. (a)

It has been doubted, whether, if an open mine of coals or lead were in the share assigned by the infant heir, so as to render the widow's third of greater value than the remaining two-thirds, a writ of admeasurement would lie.(b) It is difficult to conceive, in the case of an open mine not taken into the estimation, any ground of distinction from an ordinary case of excessive assignment; and it is presumed, that there can be no doubt in such a case. But if the value of the mine had been taken into account, and its prospects, though since improved, were then such as to make no material distinction in the actual apportionment, it might of course be contended, that there was reason why the writ should be issued. It is presumed the value must be taken at the time of the assignment, and the heir would not be entitled to the writ if the value had increased since the assignment, for the writ is given to correct errors and unfair dealings; and the assignment might be perfectly fair at the time it was made. All such questions may be brought by either party before the judges of the Court of Common Pleas, who will direct the writ, and proceed to make the proper admeasurement. (c)

It would appear, therefore, that if the value was fairly ascertained at the time of the assignment, the dowress will be entitled to all the increased value which may afterwards have resulted from the improved condition of the mine.

But if the value was not fairly ascertained at the time of the assignment, there must then be a proper re-valuation of the property at that period, and a fair distribution made accordingly. In the case of mines, this would be sufficiently difficult to determine. It might be a matter of great doubt, and subject to much conflicting evidence, to ascertain the value of a mine at any remote period of its history; for the value of a mine not only depends upon the actual profits, but upon the difficulties which have been overcome, or which may be anticipated, and the general prospects of the adventure. It is sufficiently difficult to estimate the value of a mine at any period.

It is stated by Fitzherbert, that if the lands assigned by the infant heir exceed one-third of the whole, and they become more valuable than the remainder, by improvements made by the widow, a writ of admeasurement will not lie on account of such improvements, as that would be unjust, since she may have been induced to make them under a presumption that the assignment was proper (d) It has been suggested, that there seems no objection to the admeasurement of the lands assigned, and to the heir taking the overplus, upon allowing for the value of the improvements of the excess of lands assigned. Thus, if the assignment were of four acres when the number

(a) Fitz. N. B. 149 B. Gilb. Dower, 385. (b) Fitz. N. B. 149 C.

(d) Fitz. N. B. 149 C.

But see Co. Litt. 39. 2 Inst. 367. (c) Fitz. N. B. 148, G. H. Gilb. Dower, 385.

should have been three, the heir might take back the fourth upon the admeasurement, and make compensation to the widow for the value of its improvements. (a) But it does not appear clear that the sheriff of the Court of Common Pleas has the power under the writ, of awarding compensation, in such cases, to the widow. If this be the case, reiief must be sought for in a Court of Equity, which would probably either put the parties to elect between the acceptance of certain terms, or a new assignment on the basis of the improvements. (b)

To what extent such a principle might be held to apply to mines, it would be impossible to say. If the dowress had been successful in converting her expenditure into a source of profit, there seems no reason why such a rule should not be made available in her favour. But in other instances, it is conceived, the uncertain nature of mining speculations would preclude her from demanding any amount of compensation.

It has been decided that when dower has been sued for at law, and a partial or improper return has been made by the sheriff, the heir or tenant may be relieved in equity. Thus, a suit was brought for relief against a fraudulent assignment of the sheriff, who had given to the widow a full third part in which there was a coal mine of considerable annual value, but in respect of which no consideration was had in the assignment. The Court proposed terms for the consideration and acceptance of the widow, and directed, if they were not accepted, that a new assignment of dower should be made. (c)

A widow will also be entitled to dower, when there is a licence or liberty in fee to work mines. Although this liberty only forms an incorporeal hereditament, yet it savours of the reality sufficiently to become liable to dower. (d)

Mines, of course, may also descend in coparcenery.

The case of Lord Mountjoy, (e) is the only one which seems to refer to this subject. In that case, there was only a liberty to work mines, and it appears to have been held that such a right descending in coparcenery, was incapable of division, and that the coparceners should continue to work the mines with one stock, participating equally in the expenditure and the profits.

It has been observed, that from the report of the case by Lord Anderson, it appears that this was a mere dictum, either of some of the judges, or of the other reporters. For this point of indivisibility is not noticed in Anderson, who gives the opinion of the judges as it was certified in writing to the

(a) Roper on Husb. and Wife, vol. i. p. 409.

(b) Hoby v. Hoby, 1 Vern. 218.

(c) Hoby v. Hoby, 1 Vern. 218. 2 Ch. Ca. 160. See also Sneyd v. Sneyd, 1 Atk. 442, (d) Co. Litt. 32 a, and b. Cro. Jac. 621. Fitz. N. B. 148 c.

(e) Godb. 17, 1 And, 807, and Mo. 174.

privy council; nor is it one of the questions stated by Anderson to have been referred to the judges. (a)

This dictum, however, meets with the approbation of Sir Edward Coke, and does not seem to be any reason for disputing it. After citing the case, Coke proceeds to say, that then it might be demanded what should become of these inheritances?-The answer is, that it appeared that regularly the eldest should have the indivisible inheritance, and the rest should have a contribution, that is, an allowance of the value in some other of the inheritance. But what if the common ancestor left no other inheritance to give any thing in allowance, what contribution or recompense should the younger coparceners have ?-It is answered, that one coparcener shall have the subject matter for a time, and the other for a like time-as the one for one year, and the other for another, or more, or lesser time, whereby no prejudice could grow to the owner of the soil. (b)

The mere right to work mines, is, as we have seen, an incorporeal heredi tament existing in the land of other persons; and it is indivisible, because a division of the right would create new rights, and would prejudice the owner of the soil. All the coparceners cannot exercise the full right. This is the true reason why the enjoyment of coparceners must be distributed with respect to time, or limited to acts proceeding from a union of interests. Such is the law with respect to estovers, appendant to a freehold, a right of piscary uncertain, and common sans number, in all which and similar cases, a parti tion would enlarge the original grant beyond the intention of the grantor. (c)

But the case is very different when a distinct right of property in mines descends in coparcenery. And though this subject has never called for judicial discussion, there can be no doubt that, in analogy to what has been decided with respect to dower in mines, coparceners would be also held to be entitled to a partition. Their rights, in this case, have no such interference with the property of others. They are seised not of bare right, but of an estate in fee, divisible in its nature.

It is presumed, therefore, that mines whether forming a distinct inheritance or not, may be divided amongst any number of coheiresses under a commission issuing from the Court of Chancery. The writ of partition is now abolished. If there are other hereditaments or many mines, each coparcener may be entitled to a distinct and separate estate either in any of the mines or in other hereditaments, or in both, according to the circumstan ces of the case. If the property consist only of mines, and these are incapable of convenient and separate partition, the proper proceedings might easily be suggested by reference to the mode of partition in a case of a similar nature, or of assignment of dower. It is unnecessary to add, that

(a) See Co. Litt. 165 a. n. 1.

(c) Co. Litt. 32 a, Godb. 21. Perk, sec. 341.

(b) Co. Litt, 165 a.