In Nepean v. Doe d. Knight (1),—where it was held that the doctrine of non-adverse possession is done away with by the 3 & 4 Will. IV. c. 27, ss. 2, 3, except in the cases provided for by s. 15,-it was admitted that the possession was adverse, and the case exactly within the 3rd section. In Doe d. Corbyn v. Bramston (2), a feme sole, seised in fee, married, and she and her husband ceased to be in possession or enjoyment of the land, and went to reside at distance from it: they both died at times which were not shown to be within forty years from their ceasing to occupy: the wife's heir-at-law brought ejectment against the party in possession, within twenty years of the husband's death, and within five years of the passing of the statute 3 & 4 Will. IV. c. 27, but more than forty years after the husband and wife ceased to occupy: and it was held, that the heir-at-law was barred by the 17th section of the statute, though it did not appear when or how the defendant came into possession, and though proof was offered that the wife had levied no fine. [They also cited Doe d. Jones v. Williams (3) and Culley v. Doe d. Taylerson (4).] (MAULE, J.: In all these cases, the party came within the description of a person dispossessed.) In Doe d. Jacobs v. Phillips, the plaintiffs were trustees for two infants: the estate was gavelkind: both trustees and cetteux que trust had been kept out of possession more than twenty years, by the uncles and aunts of the latter. (MAULE, J.: If not barred in twenty years, they never would be. : COLTMAN, J. The uncles and aunts were co-parceners: the case, therefore, came within the 12th section (5).) No doubt. The remarks upon this statute by TINDAL, Ch. J., in are much to the purpose. (1) 46 R. R. 789 (2 M. & W. 894). (2) 42 R. R. 325 (3 Ad. & El. 63; S. C. per nom. Doe d. Corby v. Branson, 4 Nev. & M. 664). (3) 44 R. R. 421 (5 Ad. & El. 291; 6 Nev. & M. 816). (4) 52 R. R. 566 (11 Ad. & El. 1008; 3 P. & D. 539). (5) Which enacts, " that, when any one or more of several persons entitled to any land or rent, as co-parceners, joint-tenants, or tenants in common, shall have been in possession or receipt of the entirety, or more than his or R.R.-VOL. LXXIX. their undivided share or shares of such (6) 43 R. R. 741 (3 Bing. N. C. 544; 31 GARRARD t. TUCK. [ *240 ] [242] [ *244 ] GARRARD v. TUCK. [ *213 ] Whether or not a surrender of a term ought to be presumed. is ordinarily a question for the jury: Doe v. Scott (1); Jenkins v. Harvey (2); Best on Presumptions (3). The circumstance of the existence of the term not being noticed in the will of Thomas Bowles, in 1762, and of James Roberts, in 1793, or in the mortgage to Thomas Bignold, in 1812, or the conveyance to trustees for sale. in the same year, affords no valid ground for presuming that the term created by Sarah *Thurston, in 1739, had ceased to exist. It could not be expected that the term would be mentioned in the wills: and, in practice, it is not usual, in the case of a mortgage, to get in an outstanding term, especially if it be an old one: Sugden's Vendors and Purchasers (4). Of the seven cases upon the subject, to which Sir E. Sugden refers (5), in three of them there were outstanding terms, of which no notice was taken. No doubt, it is more prudent in all cases to get in the term; but it is not so universally the practice to do so, as to warrant an inference being drawn from the non-observance of that precaution. It was not until the decision in Mole v. Smith (6), that it was considered that a purchaser was obliged to take an estate protected from dower by a term. As to the identity of the lands, the quantities and descriptions are as nearly identical as could, under the circumstances, be reasonably looked for, regard being had to the fact, that, under the two Inclosure Acts, sixteen new public, and thirty-two private roads had been set out; and that, under those Acts, lands were exchanged as well as newly allotted, and no distinction between allotments and exchanges was made in the awards of the Commissioners. It was not necessary for the defendant to show a term covering a quantity of land equal to that mentioned in the count. The writ and count in dower resemble the writ and declaration in assumpsit, rather than in debt, where the writ used to be for a particular sum. In a writ of right, the demandant claims specific land: in dower, the writ merely claims a reasonable endowment out of the lands which belonged to the husband; and, when she comes to count, the demandant may abridge her claim; or she may recover on the trial, (1) 11 East, 478. Deardon, 8 East, 248; Maundrell v. Maundrell, 7 R. R. 393 (10 Ves. 246); The Marquess of Townshend v. The Bishop of Norwich, MS., 27th Jan., 1820; Cholmondeley v. Clinton, 22 R. R. 84 (2 J. & W. 158). (6) Jac. 490. although she may fail in proof as to part: Williams v. Gwyn (1); Littleton, § 39; Co. Litt. 34 b, 281. (MAULE, J. The question is, whether it was not necessary for the tenant to plead the term as to so much, and ne unques seisie que dower as to the residue. Dower does not very much resemble either debt or assumpsit: in debt, the plaintiff claims a certain sum of money; in assumpsit, he claims compensation for the non-performance of a contract or promise. But, where land, or dower out of land, is claimed, it has reference to some particular and specific land.) There are three cases in Style to that effect: Thynn v. Thynn (2), Fairefax v. Fairefax (3), and Booth v. Lambert (4). The tenant clearly proved the substance of the issue. If necessary, the verdict on the second issue may be entered distributively, for the tenant as to part, and, as to other part, for the demandant. For this the authorities are numerous: Co. Litt. 227 a; Com. Dig. Pleader (S. 19); Bac. Abr. Verdict (M.), (Q.); Bates v. Bates (5); Wheatley v. Best (6); Pheasant v. Pheasant (7); Tiffin v. Tiffin (8); Hooper v. Shepherd (9); Benington v. Benington (10); Spilsbury v. Micklethwaite (11); Timothy v. Simpson (12); Rodgers v. Maw (13). Cur, adv. vult. WILDE, Ch. J., now delivered the judgment of the COURT, after stating the pleadings: On the trial of the cause, a verdict was found for the demandant, with leave to the tenant to have the verdict entered for him on the second issue, if the Court should be of opinion that he had made out his plea. A rule nisi was accordingly granted, for entering the verdict for the tenant on the second issue. It was insisted, on the argument, that, inasmuch as the number of acres specified in the count amounted to 500, the tenant was bound to show a term of years covering 500 acres of land, in order to make out his plea. But we do not assent to this position. The GARRARD TUCK. [ *216 ] writ of dower is brought for the third part of specific lands in the tenure of the tenant; and, though the writ, in conformity with the established forms of writs, demands a certain number of acres, yet we do not consider the exact number of acres to be material. The effect of the pleadings in the case, we conceive to be this: The tenant not having pleaded ne unques seisie que dower, has thereby admitted that the demandant's husband was seised of all the lands in respect of which dower is demanded; and the demandant has the right to apply her demand to any lands in the tenure of the tenant, which the demand, as framed, is capable of covering, that is, under the circumstances of this case, to all the lands of the tenant in the parishes of Surlingham, Rockland, and Bramerton: consequently the tenant, who by his plea has undertaken to show that the lands demanded are covered by the term of one thousand years, has, in effect, bound himself to show that all his lands in those parishes are covered by the term. The term relied upon by the tenant was originally granted, in 1739, by Sarah Thurston (then being seised in fee of thirty-two pieces of land, containing by estimation *thirty-seven acres, and one other piece of land of uncertain quantity), to Thomas Seaman, for securing a sum of money, by the description of all those thirtythree pieces, &c. (particularly describing them), and all other the messuages, &c., lands and hereditaments, of her the said Sarah Thurston, situate, lying, and being in Surlingham St. Mary, Surlingham St. Saviour, Rockland, and Bramerton. In 1746, Seaman assigned the mortgage to one Anthony Aufrere. In 1750, Sarah Thurston conveyed the mortgaged premises, in fee-simple, to one Thomas Bowles, by whom the mortgage was paid off; and thereupon Aufrere assigned the term to John Kerridge, in trust to attend the inheritance. Thomas Bowles, by will, dated the 27th of December, 1762, devised all his messuages, lands, tenements, and hereditaments, in Surlingham, or in any other town next or near adjoining, which he had purchased of Sarah Thurston, widow, and all other his messuages, lands, tenements, and hereditaments whatsoever, situate, lying, and being in Surlingham aforesaid, to James Roberts and his heirs. James Roberts, by his will, dated the 17th of October, 1793, devised all his messuages, lands, tenements, and hereditaments in Surlingham, Rockland, Bramerton, Kimpnall, Fritter, and Topcroft, in the county of Norfolk, and all other his real estates whatsoever, to James Roberts Garrard (the husband of the demandant), and his heirs for ever, subject to an executory devise over on a contingency which never occurred. In January, 1812, James Roberts Garrard demised all his freehold or charter-hold messuages, lands, tenements, and hereditaments in Surlingham, Rockland, and Bramerton, and in Fritter, Topcroft, and Kimpnall, to Thomas Bignold, for a term of years, to secure a sum of money. In October, 1812, James Roberts Garrard conveyed to Farr and Fiske all his freehold or charter-hold messuages, lands, tenements, and hereditaments in Surlingham, Rockland, and Bramerton, and any other town thereto next or near adjoining, in trust to sell, and pay debts. In May, 1813, Farr and Fiske, and James Roberts Garrard and Thomas Bignold, conveyed to Thomas Tuck (the tenant) so much as was freehold or charter-hold of and in all that messuage or dwelling-house in Surlingham, and various pieces of land particularly described, in Surlingham, Bramerton, and Rockland, amounting in the whole to near fortyeight acres and, at the same time, one Edward Bickersteth (to whom a special administration had been granted of the goods of John Kerridge, so far only as concerned the rights and title of John Kerridge of and in the hereditaments comprised in the said term for one thousand years) assigned over the messuages, lands, &c., vested in Bickersteth, as administrator, for the residue of the term of one thousand years, to William Farrer, in trust for Thomas Tuck, and to attend the inheritance. On the part of the demandant, it was contended, that, as a portion of the land conveyed by the demandant's husband to Tuck, was land allotted under certain Acts which had been passed for inclosing lands in the parishes of Claxton and Rockland, and in the parishes of Strumshaw and Surlingham, that land was not subject to the term to which the lands in lieu of which it was allotted had been subject. But we think there is no ground for doubt on this point, it being expressly provided by each of those Acts that every proprietor shall stand and be seised of the lands to be allotted to him, to such and the same uses, for such and the same estates, and no other, as the lands in respect whereof such allotments shall be made would have been subject to in case the Act had not been made. It was further objected, that the lands conveyed to Tuck did not correspond in quantity exactly with the *antient estimated quantities; nor could the land in respect of which the allotments were supposed to have been made, be precisely identified. It cannot be GARRARD v. TUCK. [ *247 ] [248] |