
    [Lancaster,
    May, 1827.]
    BARNETT against BARNETT.
    IN ERROR.
    Where, ia an action of dower, the defendant pleaded defectively, an agreement before marriage in lieu of dower, and a recovery thereon by the plaintiff, and the plaintiff replied, denying the facts set forth in the plea, and concluding to the country, and the defendant demurred to the replication, and the court below entered judgment for the plaintiff on the demurrer: Held, that in this judgment there was no ei’ror.
    In an action of dower, the record of the suit, founded upon an alleged agreement entered into before marriage, upon which a recovery was had, is not evidence for the defendant, without producing the agreement itself, or proving its loss and contents.
    But it seems, that, if the loss of the original agreement were proved, the recital of it in the record, by the plaintiff, might, as far as it went, be evidence against her of the contents of the agreement.
    If, in an action of dower, the jury find “for the plaintiff, her dower as stated in the declaration,” and the court thereupon enter judgment that a writ of seisin and inquiry of damages issue, the plaintiff may release all but the judgment to recover seisin, and that may stand.
    The defendant in error, Margaret Barnett, widow of Thomas Barnett, deceased, brought this action of dower under nihil habet against Frederick Barnett, the plaintiff in error, in the District Court of Dauphin county, from which it was removed to this court by writ of error.
    Among other pleas, the defendant pleaded, “ that the said Margaret ought not to have and maintain her suit against the said Frederick, for this that she the'said Margaret, whilst sole, in consideration of a marriage which was about to take place between her, the said Margaret, by the name of Margaret Wingert of the one part and Thomas Barnett of the other part, on the 26th of March, 1804, contracted and agreed with each other that if the intended marriage should take effect, and he the said Thomas should live ten years from that time, that he the said Thomas would pay to the said Margaret four hundred pounds of lawful money of Pennsylvania, in full and lieu of her dower or thirds of his estate; and the said Thomas then and there signed and sealed the said agreement, and the said Margaret accepted thereof as the marriage contract entered into by her the said Margaret and the said Thomas; and the said Frederick avers, that in consideration thereof the marriage was afterwards solemnized, to wit, on the same day and year aforesaid, and the said Thomas did live ten years from and after the solemnization of the said marriage, to wit, until the 14th of April, in the year of our Lord 1813; and the said Frederick Barnett avers, that after the death of the said Thomas the said Margaret, afterwards, to wit, to the term of November, A. D. 1814, in the Court of Common Pleas in and for the county of 
      Cumberland, in the state of Pennsylvania, she the said Margaret prosecuted an action of covenant on the marriage contract aforesaid against George Barnett, Adm., of the goods, chattels, &c., of the said Thomas Barnett, deceased; on which said suit she the said Margaret, at the term of Jlpril, recovered a final judgment for the sum of one thousand four hundred and forty dollars, as by the record of the said court hereunto annexed more fully appears.
    
      “ Wherefore the said Frederick prays judgment if the said Margaret ought to have or maintain her said action thereof against the said Frederick. With this that the said Frederick will verify that the same Margaret is the plaintiff in this action and not other or a different person.”
    The plaintiff replied, that she “ ought to have her dower of the lands and tenements with the appurtenances by the endowment of him her said h.usband, the said Thomas Barnett, because the facts set forth in her declaration in this suit are true; and because all and singular the matters stated and set forth by him the said Thomas Barnett, the defendant, in his foregoing plea, with the averments therein contained, are false and unfounded throughout, and this the said Margaret prays may be inquired of by the country.”
    To this replication the defendant demurred, because it did not contain matter pertinent to the said plea, and because the only replication to the plea of a former recovery, is mil tiel record.
    
    The court below gave judgment for the plaintiff on the demurrer; and in this there was error assigned.
    On the trial, the defendant offered in evidence the record of an action of covenant, brought by the said Margaret Barnett against ■George Barnett, administrator of Thomas Barnett, deceased, in the Court-of Common Pleas of Cumberland county to November Term, 1814. In this case two declarations were filed; the first of which contained two counts, upon an agreement under seal, the 26th of March, 1804, entered into between Thomas Barnett and Margaret Wingert before their marriage.
    The second declaration also contained two counts, the first of which was upon a sealed agreement bearing date the 29th of March, 1804, entered into by Thomas Barnett and Margaret Wingert before their marriage, by which the said Thomas acknowledged himself to be bound to the said Margaret in the sum of four hundred pounds, to be paid to her, provided the said Thomas should live ten years from that time. It averred, that he did live ten years from that time, and afterwards, viz. on the 10th of Jipril, 1814, died, leaving the said Margaret to survive him. .
    The second count set forth, that a marriage being in contemplation, between the said Thomas and Margaret, then Margaret Wingert, it was covenanted by certain articles of agreement, under seal, entered into between them, dated the 29th of March, 1803, that the said Thomas, his executors and administrators, in consideration of the said marriage, should pay to the said Marga
      
      ret, the sum of 400 pounds, provided the marriage should take place, and the said Thomas should live ten years from the time of the marriage, leaving the said Margaret to. survive him. Then followed averments, that the said marriage did take place on the 39th of March, 1803, and that the said Thomas did live ten years from that time, and afterwards, viz., on the 10th of April, 1814, died, leaving the said Margaret to survive him.
    Each count contained an averment of the loss of the agreement, from time or accident.
    The admission of this record was objected to by the plaintiffs’ counsel; the court sustained the objection, and sealed a bill of exceptions.
    Several other bills of exceptions to evidence, were returned with the record, all of which were abandoned on the argument, in this court.
    The jury having found a verdict “for the plaintiff, her dower, as stated in her declaration,” the court gave judgment, “thata writ of seisin and inquiry of damages issue.” In this judgment, error was also assigned.
    
      Fisher, for the plaintiff.in error, contended,
    1st. That the record ought to have been admitted. Though not expressly so stated, the jury might have presumed, that the settlement on which a recovery was had, was in lieu of dower. Provisions of this sort are frequently taken to he so, by implication, and whether it was so, or not, was a matter for the jury to determine. 1 Madd. 369, 370. 1 Halls’ L. Journ. 450. 10 Johns. 31. 5 Serg. & Rawle, 309.
    2. The judgment for damages was erroneous, the jury not having found, that the husband died seised. 3 Yeates, 38.
    3. The judgment on the demurrer was wrong.
    
      Elder, contra, stated,
    that as to the judgment, the plaintiff below would release the damages, and let the judgment stand for seisin alone.
    The record, he said, was properly rejected. The articles, and not the record, were evidence of the contract, and if they were not produced, then evidence should have been given of their loss, and their contents proved, in the ordinary way. The contract, and not the recovery, constituted the bar, whether suit was brought on it, or not. Besides, the record offered in evidence, was not the record set out in the plea. Two declarations were filed, on distinct contracts, of different dates. 2 Bl. Com. 136, 7.
   The opinion of the court was delivered by

Huston, J.

In this action of dower, brought by Margaret Barnett, widow of Thomas Barnett, against Frederick Barnett, several pleas were pleaded, and issues thereon to the country. There was also a demurrer to.a replication of plaintiff, which was decided in favour of plaintiff below.

There were also several bills of exception to testimony, all of which, except one, were abandoned in this court; and error was assigned in entering the judgment.

After several other pleas, the defendant pleaded in substance, that before the marriage of Thomas Barnett with the plaintiff, then Margaret Wingert, on the 26th of March, 1804, an agreement was entered into between them, and executed under the hand and seal of the said Margaret, by which it was stipulated, “that if the said marriage should take effect, and if the said Thomas should live ten years from that lime, that he would pay her four hundred pounds in full, and in lieu of her dower, and, that she agreed to and accepted the same in full of her dower, or third part of his estate; and said Frederick averred, that said Thomas did live ten years from the date of said marriage, viz., until the 14th of Jlpril, 1813. And Frederick further averred, that after the death of the said Thomas, the said Margaret, at November Term, 1814, instituted a suit against his personal representatives in Cumberland county, on the said agreement, and recovered the sum of one thousand four hundred and forty dollars from the estate of the said Thomas, as appeared by the record produced.

The plaintiff replied to this plea, to which the defendant demurred. The demurrer was decided for the plaintiff, and rightly. The replication took issue on all the facts. The defendant, however, alleged that to that part of the plea which stated the record of the suit in Cumberland, the only replication was nul tiel record. It is, however, apparent that although the plea stated as well the agreement as the suit on it, yet the bar, if any, arose from the agreement; and that the agreement and suit on it, the two facts put together, made but one plea. Besides, the plea itself was in more respects than one defective; and, as on demurrer you go back to the first error, the judgment must have been for the plaintiff.

On the trial the defendants offered this record in evidence. The narr. set out an agreement very different from that stated in the plea, and concluded by averring that the agreement was destroyed by time or accident. This record was objected to, and rejected by the court below, and rightly. The defendant, if he would not produce the agreement, ought to have proved that it existed at one time, that he had made inquiry for it, and could not find it, and ■then perhaps the recital made of it by the plaintiff herself in her suit in Cumberland might have been properly offered and read, to prove, as far as it went, the contents of it. From the notice of the paper, it was as much to be expected that the paper, or a counterpart of it, should have been kept by Thomas Barnett, as by the plaintiff, and search for it, by his personal representative, was necessary, and proof that it could not be found, in order to make out the plea of the defendant; for, I repeat it, if there was a defence, it arose on the article and not on the suit. The narr. did not state the agreement to contain any clause, by which she agreed to relinquish her dower.

The verdict found for the plaintiff her dower, as stated in the declaration. The judgment was entered, that writ of seisin and inquiry of damages issue.

At common law there were no damages in dower. By the statute of Merton, (20 H. 3, c. 1,) it was enacted, That if a widow shall recover her dower of lands whereof her husband died seised, the tenant shall yield the damages, that is to say the value of the land from the time of the death of the husband, until the day she shall have judgment to recover seisin.” And the statute of Gloucester gives costs in all cases where the party is entitled to recover damages.

It is most usual for the jury who tries the cause, to find all the matters necessary to end the contest between the parties, and it must find the fact that the husband died seised, if he did so die; the time of his death, the value of the lands, and assess the damages on account of the detention of her dower, and costs; (see the form of verdict, 2 Saund. 331; Dennis v. Dennis, Bul. Ni. Pri. 116:) and she then has judgment to recover seisin of the third part of the premises, by metes and bounds, and the mesne profits and damages. If, however, the husband did not die seised, the jury ought to find it so expressly; or, where the jury do not find all the necessary facts, the omission may be supplied, generally, by a writ of inquiry. It might be doubtful, — if a jury found for plaintiff, and damages and costs, but omitted to find that husband died seised, — whether a writ of inquiry would supply the defect; but the party may remit the value of land from death and damages.

As the damages and costs are added by the statute to the judgment at common law to recover seisin, the judgment to recover seisin may be affirmed on a writ of error, and the rest of the judgment reversed, and a writ of error lies after judgment of seisin and before writ of inquiry and judgment thereon for damages. 2 Saund, 43. Williams v. Guiger, 3 Yeates, 000.

In this case the plaintiff has released all but the judgment of seisin. There is then no error, and the judgment for seisin is affirmed.

Judgment for seisin affirmed,  