
    * Ambler and Wife v. Norton.
    April, 1809.
    Dower — Construction of Statute — Jointure — How Pleaded. — Construction of the term averment in the act of Assembly, relating to dower; also how a jointure made by deed or will, in lieu of dower should be pleaded and proved,
    i. Same — Jointure—Intention—How Ascertained.— Under the 11th section of that act, (1 Rev. Code, p. 171,) any estate conveyed by deed or will for a wife’s jointure, in lieu of dower, though not so expressed, may be averred to have been so intended, and parol or other evidence dehors the deed or will, is admissible as to the relative situation of the parties, and circumstances of the testator, from which such intention may be inferred.
    a. Pleading — Wills,—In pleading, it is not necessary to set forth the whole of a will, but only the substance of so much thereof, as relates to the point in question.
    
      3. Same — Jointure-Demurrer—Substantial Defects.  —In averring' a jointure in bar of dower, the failure to state in the plea, that the husband “being seised in fee of the premises” made the jointure, is not a substantial defect, nor sufficient to authorize the revérsaloi a judgment for the tenant, the defendant having failed to assign it as a cause of demurrer.
    4. Same — Same—Time of Taking Effect. — In such plea it is not necessary to state expressly, that the jointure was to take effect in possession immediately on the death of the husband, or that it was determinable by such acts only as would forfeit the dower at common law; it being incumbent on the demandant (in replying) to shew that any intervening estate existed, or that the jointure was subject to any condition, other than the law imposes on a dowress.
    5. Dower — Jointure—Validity of — incumbrances.—It is not essential to the validity of a jointure, that it should be exempt from any imcnmbrance, by judgments, statutes, mortgages, or bonds; the widow, if evicted of her jointure having still a right to claim her dower.
    6. Same — Same—Election of Widow. — If personal property be bequeathed, as well as real estate devised to the widow, the whole of such bequests and devises being averred to be in lieu of dower, her entering on the real estate is sufficient to shew her election to take the jointure, and in pleading, it is not necessary to state that she received the personal property also.
    7. Pleading — Jointure—Locality of Jointure Land.— In pleading a jointure in bar of dower, it is not necessary to specify the name of the county in which the jointure land lies; provided the locality and identity of the land be described with reasonable certainty.
    On the 20th day of October, 1800, John Ambler and Catharine his wife, late the wife of John H. Norton, deceased, sued out of the clerk’s office of the Winchester District Court, a writ of dower against George F. Norton. The count demanded “one-third part of, and in a freehold of a certain part or proportion of lot No. 62, situate in the corporation of Winchester,” by metes and bounds; which they claimed as the reasonable dower of the said Catha-rine, of the endowment of the said John H. Norton, deceased, her late husband, whereof she or they had nothing, and whereof they complained that the said George F. Norton deforced her,” &c. The tenant pleaded, first, “that the said John H. Norton, or any other person to his use, was not at any time, during the coverture of the said Catharine with him, seised of an estate of inheritance, in the premises in the declaration mentioned, or of any part thereof, and of this he put himself upon the country, and the demandant likewise.” Secondly, that during the coverture aforesaid, viz. on the 19th of November, *1792, the said John H. Norton duly made his last will and testament, whereby he devised that the said Catharine his wife, should receive an annual income of 1501. during her life, out of the estate of the said John, and that she should have the full use of the mansion-house, and other houses of the said John, where the said John did then live, together with the ground on which they stand, and the garden, stable and stable lot, during the life of the said Catharine; likewise the free use of all the household and kitchen furniture, plate, linen, pictures, books, carriages, horses, cattle and house-servants for her life, and the said John did, in and by the said will, also bequeath to the said Catharine, mulatto Hannah and her issue and the said John did afterwards, to wit, on the 6th of January, 1794, duly make and publish a codicil to his said will, whereby he bequeathed to the said Catharine, two hundred pounds during her life, in lieu of the one hundred and fifty pounds bequeathed to her in the said will, and did moreover bequeath to the said Catharine, black Betty and her issue; and the said John did further, on the 13th day of October, 1795, duly make and publish one farther codicil to his said will, whereby he bequeathed to the said Catharine, all the plate to which he was entitled on the death of Mrs. Mary Prescott; which said will, and the codicils, annexed thereto, have been duly proved and' recorded in the Court of Frederick County, and are now in full force; and the said tenant in fact saith, the said several bequests and devises, were in lieu of the said Catharine’s right of dower in the estate of the said John, and that the said Catharine did, after the death of the said John, and before the commencement of this suit, actually enter into and occupy the greatest part of the property, so as aforesaid devised to her, to wit, the mansion-house and other houses where the said John did live, and the stable and stable-lot and garden, and hath ever since been in the possession and occupation thereof, in lieu of her dower ■ aforesaid, and this he is ready to verify,” &c.
    *The demandants demurred to the second plea and averment of the defendant ; and set forth for cause of demurrer the following, to wit, 1st. “The averment in the said plea, is of matter not contained in the said will and codicils, or either of them, or any part thereof, and the tenant ought not to ayer any thing out of the said will and codicils; 2d. The averment aforesaid, is respecting matter, which, if it exists, is matter of record, and ought to be verified by the record, and is not so verified in and by the said plea; 3d, The said plea is otherwise insufficient, defective and wants form.” The tenant joined in demurrer, and, upon argument, the District Court adjudged the law to be for the defendant. Judgment was thereupon entered for him, and the demandants appealed to this Court.
    This cause was argued at the October term, 1808, by Call, for the appellants, and by Williams, for the appellee. On account of the numerous and important points involved in it, the Judges took time till this term, to consider of their judgment.
    Call, for the appellants, contended, that the plea was insufficient on two grounds: 1st. On the merits; 2d. In setting forth defectively the matter intended to be relied upon.
    As to the merits, the question chiefly turn on the meaning of the word “averment” in the act of Assembly,  which ought to be taken in the sense in which it .was generally received, both in law and equity, at the time of passing the act. According to the authorities, the averment permitted is not of any matter dehors the will, but only of its construction, or of an implication evidently deducible from its words,  because the whole devise must be in writing.
    It is a rule in pleading, that the legal effect and not the words only of an instrument must be set forth. In Cooke v. *Sims,  the note in writing which contained a promise, was actually set forth in the declaration; yet the judgment was reversed, because the assumpsit (which was the legal effect) was not expressly laid. In 2 Saund. .97, c. the case of Baker v. Dade, 3 Dev. 291, is quoted, in which the judgment was reversed in K. B. because the defendant had pleaded the words of the deed, without stating to what purpose he intended to use them; and other cases to the same effect are there cited. When, therefore, the words of the will are not expressly, that the estate devised shall be in lieu of dower, the tenant must aver that the estate was so devised, and prove it by the implication. Parol evidence is not admissible, except to explain some latent ambiguity, or to prove a latent fact, relative to the situation and nature of the estate, but not inconsistent with the words; as in the case of a bequest to the testator’s son John, there being two sons of that name; or of a bequest of 1501. to the wife, and 1501. to another person, where the whole estate is worth only 2001. there the collateral fact of the value of the estate, may be proved by parol evidence; because, if the wife were to have her dower as well as the 1501. the other legatee would be defeated altogether.
    Even in equity, (except in such cases,) no averment dehors the will is admitted. 2 Ves. jun. 572, 'French v. Davis; 3 Ves. jun. 249, Strachan v. Sutton; 1 Cruise’s Dig. 203, citing 3 Atk.8,Tinney v. Tinnejr: 4 Bro. Ch. Cas. 410, Middleton v. Cator; 6 Ves. jun. 615, Gretorex v. Carey, are clear and positive authorities to this point.
    Every statute should be construed so as to prevent mischief, if possible. The mischief of a different construction of the act now in question would be, that the statute of frauds would be repealed as to this case, which would injure the rights of a defenceless part of the community; and this, too, without any reciprocity in the rule; for the widow cannot by parol evidence, get more than the words give her. The legislature could not have intended to introduce so great a mischief.
    *Both statutes according to my construction can have effect. There is also internal evidence in the statute relative to dower of an intention to conform to the existing law; for the jointure to be effectual as a bar to dower, must in the first place be of real estate; 2dly. It must take effect in the widow’s own possession, immediately on the death of her husband ; 3dly. It must continue during her life at least; and, 4thly. Be determinable by such acts only as would forfeit her dower at common law; in all which respect our act agrees with the pre-existing law. The fair inference is, that the existing law was in the contemplation of the legislature.
    2. This plea is defective in not saying that the husband was seised in fee, and capable of conveying an estate sufficient to bar the dower. In 3 Dord Raym. 151, the pleadings in Daurence v. Dodwell are inserted; and there the husband is stated to have been seised “in his demesne as of fee;” whereas, here, John H. Norton is only said to have been seised of a freehold. In Dyer, 361, b.; Beamond v. Deane, the tenant having pleaded in bar an assignment of rent made by himself to the de-mandant, on demurrer, the plea was held to be bad, because it did not allege that he was seised of the land, &c. at the time of the assignment, and that it could not be supplied by intendment. Co. Ditt. 303, b.; Plowd. 104, and Bac. Max. 340, prove that no implication can be made for the pleader in such a case as this; for if the words of a plea are capable of two intendments, it must be taken most strongly against him who pleads it.
    3. Another defect. The plea does not aver that the devise was accepted. In Story’s Pleadings, 358, such is the form, taken from a plea of the late Dord Camden. In the case from Dord Raymond, the plea expressly stated that the widow entered “by virtue of the devise.” But in this case it is merely stated that she entered. The inference is as fair that she entered tortiously, as that she did so by virtue of the devise. This not being averred, the words must be *taken most strongly against the pleader according to the rule before mentioned.
    4. Again; it should have been averred that she took the estate, in lieu of dower, by virtue of the words of the will, or by virtue of some latent ambiguity or latent fact as aforesaid. The rule is that, where a record or will is relied on, the verification must conclude “as in the said record or will more fully appears;” and if a latent ambiguity or latent fact is relied on, such ambiguity or fact must be specially stated.
    
    S. Another objection is, the plea states sundry things as devised in lieu of dower, yet does not say that she accepted the whole, but only the greatest part, to wit, the mansion-house and lot. Now the whole was intended as the bar, or nothing. Her getting a part only was not sufficient. The pleader ought to have shewn what bpcame of the rest. So, in accord and satisfaction, part satisfaction is not sufficient, 
    
    It may be urged that this is on a demurrer; and that several of these objections which were not assigned as causes of demurrer, must be considered as on a general demurrer; but either way, the effect is the same; for these exceptions are of the gist and essence of the bar. As to the seisin, and as to the acceptance, each of them is an essential pivot on which the cause turns. So, the testator intended the whole devise, or no part of-it, as a bar; and it is essential to shew that she accepted the whole. If issue had been taken on this plea, and a general verdict found for the defendant, judgment might have been arrested, because the plea left every thing in dubio; and whatever is ground for a re-pleader, applies more strongly, on a demurrer, against the person pleading.
    Williams, for the appellee. The first question to be considered is, whether the matter stated in the plea is a bar to the appellant’s claim of dower; 2dly. If so, is the matter sufficiently pleaded upon this demurrer?
    *1. The language of the act of Assembly is, “If any estate be conveyed by deed or will, either expressly or by averment, &c. The legislature certainly intended by this word averment, something more than was expressed in the deed or will; for otherwise the first part of the sentence would have answered their purpose; but they use the term averment, an expression which is not to be found in the statute 27 Hen. VIII. c. 10, and therefore, if the construction of that statute had been such as Mr. Call contends, it does not follow that a similar construction should be applied to our act. Besides, the statute 27 Hen. VIII. speaks only of deeds, but our act speaks of wills also. In consequence of the silence of the statute as to wills, Lord Coke, in his commentary upon lyittleton, 36, b, says, that a gift by will, unless expressly in lieu of dower, is not a bar; but he admits that a deed made to the wife, or for her use, and excepted after coverture, although not expressed to be in lieu of dower, is a bar, and may be so averred. This point is also settled in 4 Co. Rep. 3, Vernon’s case. So that, though the words “by averment,” are not in the English statute, yet an averment of a matter not expressed in the deed, was even there allowed. The cases of Arnold v. Kempstead and wife,  Villa Real v. Hord Galaway,  Jones v. Collier,  Wake v. Wake,  and Pearson v. Pearson, are all to a similar effect.
    It is objected by Mr. Call that in the case of a will, nothing can be averred but what can be gathered by implication or construction from the will itself, or a latent ambiguity. But, according to his own ideas, the legislature must be supposed to have understood the distinction between a deed and will, established by the British authorities under the statute of Hen. VIII. and therefore, as our act of Assembly has put a gift by will on the same footing with a gift by deed, those authorities must now apply to the case of a will in the same manner as to that of a deed.
    He says, too, that permitting the averment would amount to a repeal of the statute of frauds, which is incorporated *into our act concerning wills,  The second section of that act saves to the widow her dower; and the clause now under consideration of the act relating to dower, (passed the same session,) provides that she may have her dower, but that, if she claims as devisee, it may be averred that she was not to claim dower also. Is there any inconsistency in this? or can our construction of the latter clause operate as a violation or repeal, of any part of the act concerning wills? She takes by the will: but the legislature says that, under such a state of things, she shall be barred of her dower at common law ; provided it appears that such was the testator’s intention. So, no estate can pass but by deed, &c. yet a consideration not expressed in the deed may be averred. In the case of a legacy, too, it may be presumed to be in satisfaction of a debt due from the testator to the legatee. 
    
    In this case the plea states, that he devise to her 2001. to be paid annually out of his estate, and gave her the mansion-house, &c. which she entered into, and has occupied ever since his death, in lieu of dower. If it had been necessary to draw the averment from the will, his charging his estate with payment of annuity, would fairly lie in averment that it was in lieu of dower. But,
    2. It is said, that the matter is not sufficiently set forth in the plea. To this I answer, that the demurrer is general, except as to two causes, viz. 1. That he avers things out of the will; 2d. That the plea respects matters of record, and ought to be verified by the record.
    The other objections made by Mr. Call, being only matters of form, and not having been mentioned in the demurrer, he cannot now avail himself of them,  The averment is, that the said several bequests and devises were in lieu of dower, and that after the death of the testator, she actually entered and enjoyed the greater part, (being all the real property devised,) and that she hath ever since been in possession thereof, in lieu of her dower aforesaid. If this plea is not sufficiently formal, it certainly ^contains the substance of the bar, and would have been good after verdict, or on a general demurrer. The rule is that, where a plea sets forth a good bar defectively, upon general demurrer it will be good; but, if it sets forth a defective title or bar, it is otherwise. Here the real gist of the bar is the devise for life in lieu of dower; and this is set forth substantially. The want of a profert of the will is unimportant ; for a will is not such a paper as the law requires to be pleaded with a pro-fert; it being sufficient to set out the substance, as far as it relates to the case. A profert need never be made of a paper of which oyer cannot be demanded: but oyer cannot be demanded of a will; because it is in the custody of the law, and equally open to the examination of either party. Besides, in this case, the averment is not made upon the will alone, but upon matter dehors the will.
    However, even admitting the plea to be as defective as Mr. Call supposes, the count is defective also; for the demand is of the third part of a freehold only; whereas dower cannot be claimed except of a freehold of inheritance, or 'an inheritance in fee-simple. The demandants, therefore, having committed the first fault in pleading, cannot have judgment.
    Call. There is nothing in the exception taken to the count; as it is conformable to all the precedents. He referred to Booth on Real Actions, 166; Coke’s Entries, 176, 179; Rastall’s Entries, 229; Crompton’s Practice, 316, and 10 Wentworth’s Pleadings, 157, 163.
    Curia adv. vult.
    
      
       Dower — Jointure—Intention— How Ascertained. — In construing a will to ascertain whether a provision in it is intended by the testator as in lieu of dower and in determining whether it be a jointure, the situation of the testator and the circumstances surrounding him when he wrote the will, may be looked to by the court. Tracey v. Shumate, 22 W. Va. 499, citing the principal case.
      The principal case is cited in this connection in Dixon v. McCue, 14 Gratt. 540; Jarrettv. Johnson, 11 Gratt. 336.
      Same — Same—Barring Dower — Bequest of Personalty. —A widow cannot be barred of her dower by a devise of an estate for years, nor can any provision made by her husband's will in personal estate, accepted by her, bar her dower in real estate. Wise-ley v. Findlay, 3 Rand. 361, 372. The court said: “The Act of 1792, ch. 92, § 25, which declares, that unless the widow shall renounce the provision made for her by her husband’s will, she shall have no more of his slaves and personal estate, than is given her by the will, is confined, in express terms, to personal property; and this was decided in Blunt v. Gee, cited by Judge Tucker, in Ambler v. Norton, 4 ffen.SM. 23.”
      
        See foot-note to Blunt v. Gee. 5 Call 481.
      But in Dixon v. McCue, 14 Gratt. 552, it was said: “We are not precluded I presume, by the opinion of the court in that case (Wiseley v. Findlay, 3 Rand. 361), from giving to the act a construction which would make even personalty a bar to dower, when properly settled by way of i ointure. Thus, if before marriage a woman of full age enters into articles with her intended husband, by which ten thousand dollars in stock are settled upon her in lieu of dower. I shall have no doubt it would operate an absolute bar under the broad terms of our act, unless indeed they shall be narrowed down by judicial legislation. See Ambler v. Sorton. 4 lien. <6 JC 23.”
      See monographic note on “Dower” appended to Davis v. Davis, 25 Gratt. 587.
      Same — Prior Rights of Creditors — To the point that the widow cannot take personal property except in subordination to creditors, after they are satisfied, and in the mere character of a distributee, see the principal case cited in Lightfoot v. Colgin, 5 Munf. 72.
    
    
      
       [•General Demurrer — Substantial Defects. — In Kern v. Zeigler, 13 W. Va. 715, it is said: “Judge Roahe, in Ambler v. Aorton, 4 lien. <6 1/. 23, commenting on the provision in the Code of 1803. that declared, that on a general demurrer the court should not regard any defect or imperfection, unless something be omitted so essential, that judgment according to law and the very right of the case could not be given, said: T am of opinion, that what is substance, or not, is to be determined on every action according to its nature.’
      “Tn applying the law to each particular case, the court must determine, whether the objection is to the mere form, or to the substance, of the declaration. If it is to the form merely, since the statute abolished special demurrers, the declaration would be held good; hut if it is to the substance, and there is omitted something so essential to the action or defense, that judgment according to law and the very right of the case cannot be gimen, a general demurrer would be sustained.”
      
        The principal case is cited in this connection in Kennaird v. Jones, 9 Gratt. 188.
      See monographic note on “Demurrers” appended to Commonwealth v. Jackson. 2 Va. Cas. 501.
      Bill of Review — Newly-Discovered Matter. — The usual course is for the defendant in a bill of review for newly-discovered matter, to plead and set forth the original decree, and then demur to the new matter set up for reopening the enrollment, i. e. final decree; the court then judges from the face of the decree whether the new matter as admitted by the demurrer, is sufficient for its reversal. Poole v. Nixon, 19 Fed. Cas. 998, citing the principal case.
      See monographic note on “Bi_ls of Review” appended to Campbell v. Campbell, 22 Gratt. 649.
    
    
      
       Rev- Code, vol. 1, p. 171, s. 11.
    
    
      
       1 Cruise’s Dig-. 179, s. 22, citing 1 Inst. 36, b.: 4 Co. Rep. 4, a.; Laurence v. Dodwell, 1.
    
    
      
       2 Call, 39, 374.
    
    
      
       Cited ante, from Lutw. 734, and also reported 1 Ld. Raym. 438.
    
    
      
       Dyer, 27, b.
    
    
      
       Story, 858.
    
    
      
       1 Bac. Abr. (Gwil. edit.) 43: Roll. Abr. 129 Burn's Dlff. 281.
    
    
      
       2 Tuck. Black. 137, note a.
    
    
      
       Ambl. 4(36.
    
    
      
      i) Tbifl. 682. and 1 Bro. Oh. Rep. 292, S. C.
    
    
      
       Ambl. 730.
    
    
      
       3 Bro. Oh. Rep. 255.
    
    
      
       1 Bro. Oh. Rep. 292.
    
    
      
       Rev. Code, vol. 1, p. 160, c. 92, s. 1.
    
    
      
       2 Vern. 498. Brown v. Dawson.
    
    
      
       5 Bac. Abr. (Gwil. edit,.)!464; Rev. Code, vol. 1, p. 112, s. 27.
    
   Saturday, May 6, 1809. The Judges delivered their opinions.

JUDGE TUCKER.

The appellants, one of whom was the widow of John H. Norton, brought a writ of dower against G. E. Norton. The count demands one-third part of, and in a freehold, of a certain part or proportion of a *lot in the town of Winchester, by metes and bounds. The tenant pleads, first, that the said J. H. Norton, or any other person to his use, was not at any time during the coverture, &c. seised of an estate of inheritance therein, and thereupon issue was joined. Secondly, that the demandants ought not to have or maintain their action, &c. because he says, that during the cover-ture, &c. the said J. H. Norton duly made and executed his last will and testament, whereby the said John devised that the said Catharine his wife should receive an annual income of 1501. during her life, out of the estate of the said John, and that she should have the full use of the mansion-house and other houses of the said John, where the said John, did then live, (not saying where or in what county,) together with the ground on which they stand, and the garden, stable, and stable-lot, during the life of the said Catharine; likewise the-free use of all the household and kitchen furniture, &c. for her life; and the John did, in and by the said will, also give and bequeath to the said Catharine, mulatto Hannah and her issue; and the said John did afterwards, during the coverture, &c. dulj make and publish a codicil to his said will, whereby he bequeathed to the said Catharine 2001. during her life, (not saying by the year,) in lieu of the 1501. bequeathed to her in the said will, and did moreover bequeath to her black Betty and her issue. And the said John did also, during the coverture, &c. duly make and publish one further codicil to his said will, whereby he bequeathed to the said Catharine all the plate to which he was entitled on the death of M. P. which said will and the codicils annexed thereto, have, since the death of the said John, been duly proved and recorded in the Court of Frederick County, and are now in full force. And the said tenant in fact saith, that the said several bequests and devises in the said will and codicils before set forth, were in lieu of the said Catharine’s right of dower, in the estate of the said John, and that the said Catharine did, after the death of the said John, and before the commencement of this suit actually enter into and occupy *the greatest part of the property so as aforesaid devised to her, to wit, the mansion-house and other houses, where the said John did live, (not saying where or in what county,) and the stable, &c. and ha^h ever since been in the possession and occupation thereof in lieu of her dower aforesaid, and this he is ready to verify, &c. and therefore prays judgment, &c. To this plea the demandants demurred specially; and for causes of demurrer they say, 1st. That the averment in the said plea is of matter not contained in the said will and codicils, or either of them, or any part thereof, and the said tenant ought not to aver any thing out of the said will and codicils. 2d. The averment aforesaid is respecting matter, which, if it exists, is matter of record, and ought to be verified by the record; and is not so verified in and by the said plea. 3d. The said plea is otherwise insufficient, defective, and wants form. The tenant joins in the demurrer.

As this is the first case that has occurred in this Court, wherein a similar plea in bar has been pleaded, since the passage of the act concerning dower, wherein it is enacted, among other things, “That if any estate be conveyed by deed or will, either expressly or by averment, for the jointure of the wife in lieu of dower, to take effect and continue as in the act is expressed, such conveyance shall bar her dower,” &c. I shall enter somewhat at large into her consideration of the questions arising upon this demurrer.

As to the first of these points; I conceive that whatever averment might have been made in England, in respect to a deed of lands, as meant, or intended, to be made in satisfaction of dower, may, since the act concerning dower, ed. 1794, c. 94, s. 11, was made, be made in this country in respect to a will as well as a deed; the intention and design of that act, being to put any provision made for the wife, by way of jointure, subsequent to the marriage, upon the same footing to all intents and purposes, whether made by will or deed. By the common law, according to the resolution in Reake and Randall’s case, cited 4 Co. 4, if a man devised *lands to his wife for term of life, generally, it could not be averred to be for the jointure of the wife, and in satisfaction of her dower, for two causes: 1st. Because a devise implies a consideration in itself, and therefore a devise cannot be averred to be to the use of another than the devisee, if it be not so expressed in the will; no more can a devise be averred to be for a jointure if it be not expressed in the will. But it shall be taken for a benevolence. 2d. The whole will concerning lands ought to be in writing, and no averment ought to be taken out of the will, which cannot be collected by the words in the will. But, if it were expressed in the will, that the devise was made in lieu and satisfaction of dower, the same was good by way of jointure, and bar of dower; if she accepted the same. 4 Co. 4; Co. Ritt. 36, b. And this case was cited and approved by the whole court of B. R. 1 Rord Raym. 438, in Rawrence v. Dod-well. In a report of the same case by Rutw. Treby, Ch. J., said, if it had been said (in the will) that the devise to the demandant was for her jointure, it had been good; and so, although the word join-ture had not been in the will, if there had been other words therein tantamount; as if it had been said, that the devise was for a provision for the wife, or other words of the like kind, so that the intention of the testator might appear by the words of the will; but no evidence out of the will can be admitted; for then, one part of the will would be in writing, and the other not: parol discourses out of the will are of no signification, for it must be entirely in writing. And to the same effect is Rord Raymond’s report of that case, who says, that judgment was given for the demand-ant by the whole Court; because the averment, (in that case,) being matter out of the will, and not contained in it, ought not to be allowed, And the same rule as to averments, I apprehend, applies also to a deed, as well as a will; the general rules of construction being the same, as to both: and therefore no implications can be allowed but such as are necessary, *or at least highly probable; and not merely possible implications, In the case of Tinney v. Tinney, where a bill was brought in the High Court of Chancery for dower, the heir at law insisted that the husband, in his life-time, gave a bond for 1,0001. in trust, to secure to his wife S001. in case she survived him, and that it was intended at the time in lieu of dower, and that she acknowledged it .to be so, and offered to read evidence of her acknowledgment. But Rord Hardwicke was of opinion that parol evidence could not be allowed in that case, being within the statute of frauds and perjuries, and that a general provision for a wife was not a bar of dower, unless expressed to be so: but that a bond to secure a sum of money, for her livelihood and maintenance, had been decided to be within the equity of the statute of H. VIII. of jointures. This is perfectly conformable to the opinion upon the will, in the case of Rawrence v. Dodwell; and since the provisions of the Rnglish statute of frauds and perjuries are ingrafted into ours respecting wills and conveyances, the construction ought to be the same here as there. Now certainly there is no expression in the will, so far as the same is ser forth in the plea, by which it can appear to the Court, whether the devise of the dwelling-house, &c. was intended to be in satisfaction of dower, or not: for, if it were so intended, it ought to be in satisfaction .of her whole dower, and not of a part only, But by the terms of this averment, it would appear that the devise of the house and lots was only in part satisfaction. Ror the words are, “and the said tenant in fact saith, that the said several bequest and devises in the said will and codicils before set forth, were in lieu of the said Catharine’s right of dower in the estate of the said John;” which shews that the devise of the dwelling-house, &c. must, at law, be in part satisfaction only and not for the whole. And if they were in part only, the devise thereof is no bar, 4 Co. 3, Co. Ritt. 36, for a bequest of personal estate is no bar of dower in lands, as was adjudged in this Court in the case of Blount *v. Gee. The case of Rastwood v. Vinke, is in principle not unlike the present. A man on his marriage gave a bond to a trustee in a penalty, conditioned that if, within four months, he should settle and assure freehold lands of the value of 1001. per ann. the bond to be void. The husband soon after the marriage made his will and devised certain freehold and copyhold lands, lying intermixed, of the yearly value of 881. to his loving wife and her heirs, and died within the four months. The Master of the Rolls said “as money and lands are things of a different nature, one shall not be taken in satisfaction of the other. Whatever is given by a will is prima facie to be intended a bounty, or benevolence. The devise of such of the land as is copyhold cannot possibly be taken towards satisfaction of the 1001. per ann. which was to be freehold. Nay, supposing the whole 881. per ann. were freehold, it would not go towards satisfaction of the 1001. not being so expressed :” and this decree was affirmed by the Chancellor. The averment, therefore, is so far from being proved by the words of the will and codicils, that to me they seem to contradict it, in express terms.

But it may be objected that the bequest of the annuity out of the testator’s estate, must be taken as a devise of a real estate, and therefore, coupled with the devise of the dwelling-house and lots, must be intended, as a satisfaction for the whole and not a part only, of her right of dower. To this there are several answers. 1st. -It is not averred that the testator had lands to 'that value, and therefore the devise may :fail. 2d. It is not shewn out of what lands (if he had any) the annuity should be paid; but only that it should be paid out of his estate; which might be wholly personal except this lot; nor when it should commence ; nor that any power of distress or entry was given, in case it should be withheld ; nor is it shewn whether, if he had lands to that value, he had such an estate therein, as that her estate therein should not be forfeitable, or determinable *by such acts only as would forfeit her dower at the common law. For if he were tenant for a hundred or a thousand years, of lands to the value of the annuity, a devise thereof would be no bar of dower. So, if he were tenant pur autre vie, or even for several lives; for peradventure the term may expire, or be forfeited by the actual tenant’s committing waste, or some breach of condition, in deed., or in law, without her fault,

There is another ground upon which it may be questioned whether this plea and averment are so pleaded as that the Court can judge whether the devise is to be taken as a bar and satisfaction of dower or not. By the statute against fraudulent devises, any creditor by bond or other specialty, wherein the testator and his heirs were bound, might maintain his action of>debt against the heir and devisee jointly, by virtue thereof. Now suppose a bond creditor were to bring suit against the widow upon the bond of her husband, could she plead in bar of the demand, that the devise to her was in satisfaction of her dower, unless it were so expressed in the will? What then is the situation of a widow? If, when she accepts of a benevolence from her husband in his will, it may be averred that it was in bar of her whole dower, (although not so expressed or apparent,) and that she accepted the same in satisfaction thereof; the next day comes a creditor by bond ; she cannot aver that the devise was in satisfaction of her dower, because not so expressed or apparent in the will, and the creditor sweeps the devise. Can this be right, or is it at all consistent with law, equity or moral justice? Again; suppose (as is very common) the testator shall have subjected his whole estate . to the payment of his debts, previous to any devise or legacy, therein contained, taking effect; could this operate as a bar of a legal right, founded upon a valuable consideration, the marriage? Surely not. Ought not the will then to have been set forth at large, and pleaded, with a profert in curia, that the court might judge upon the whole of the will, whether this devise was such a one, as could operate as a bar of dower, according *to the terms of our statute, which are so emphatical, that I must beg leave to recite them. “Also if any estate be conveyed by deed or will, either expressly. or by averment, for the jointure of the wife, in lieu of her dower, to take effect in her own possession, immediately on the death of her husband, and to continue during her life at the least, determinable by such acts only, as would forfeit her dower at the common law, such conveyance shall bar her dower of the residue of the lands, which at any time were her said husband’s. ’ ’ Can a devise after payment of debts, or a devise of an estate by law, subject to the payment of debts by specialty ; or of an estate determinable in any manner during the life of the wife, by any act which would not amount to a forfeiture of dower at the common law, or by any other cause, be averred to be in satisfaction of the dower of the wife, unless the testator’s intention to that effect, be either expressed in, or apparent upon, the face of his will? And, if not, can this Court decide the auestion of such intention, without having the whole will and codicils before them? And if that be necessary, ought there not to be in every case, a profert in curia of the will, or an authentic copy thereof, that the Court may, upon inspection, judge of the testator’s intention, and of the operation of the law upon the devise, taken with the rest of the will, as such a satisfaction, as the law requires, to be a complete bar of dower?

Another objection to this plea and averment is, that it alleges that the widow after the death of the husband, and before the commencement of the suit, did actually enter into, and occupy the greatest part of the property so as aforesaid devised to her, to wit, the mansion-house and other houses, where the said John did live, (not saying where, or in what county,) and the stable, stable-lots and garden, and hath ever since been in the possession and occupation thereof, in lieu of her dower as aforesaid. Now these things which are thus alleged to constitute the greatest part (that is a part only) of the several devises and bequests before set forth, cannot, according to the authorities *before cited, be averred to be in satisfaction of the whole; consequently, the entry into, and occupation of that part, could not operate as an acceptance thereof, in satisfaction of the whole. Because this part, the mansion-house, &c. is the only real estate devised to her; all the rest, for aught that appears to the contrary, being merely personal estate, and therefore no satisfaction.

Again; the entry into, seisin, and occupation of, the mansion-house, with the stable and garden thereto belonging, are matters of fact, which ought to have been so pleaded and averred as that a trial of those facts might have been had. But it is no where in the plea or averment mentioned, where, or in what county those premises lie; so that there is no venue laid. This appears to me to be a substantial defect in the plea. For by our law, until dower shall be assigned to a widow, it shall be lawful for her to remain and continue in the mansion-house, and the messuage or plantation thereto belonging, without being chargeable to pay the heir any rent for the same, any law, usage or custom to the contrary in any’ wise notwithstanding.” The law then gave her a right to remain and continue in the mansion-house, &c. whether devised to her or not; or whether accepted by her in satisfaction of her dower or not, until such time as her dower (or full satisfaction for the same) should be assigned, or made to her. This then being a legal right, of which she could not be deprived, the fact of the entry, and, in what right such entry was made, ought to have been so pleaded as to be triable by a Jury of the vicinage. But the mansion-house, into which the entry is alleged, not being alleged to lie in any particular County or place, the plaintiff might not be prepared to repel the evidence which might be offered to prove the fact. For, if the husband had more than one mansion-house, evidence might be offered of an entry into one, as well as another; so that the plaintiff might be unable to meet it. And I hold it to be an invariable maxim in pleading, that every substantive plea in bar, in which any new matter of fact is alleged, affirmatively, and without Reference to any matter of fact before alleged in the pleadings, must be pleaded so as that an issue in fact may be made and joined thereon; or, in other words, that there must be such circumstances of time and place alleged, as constitute a venue in law, otherwise such plea is substantially bad. If a special justification, or other matter xfieaded in bar, be local, the defendant must plead it in the proper County where the matter arose; and, at the common law, the cause must have been tried there; otherwise it was error, And it is a general x>rinciple, that the want of a venue is only curable by such a plea as admits the fact for the trial whereof it was necessary to lay a venue: and, though it is aided after a verdict, in England, by statute 16 and 17 Car. II. yet there is no such provision in our statute of jeofails.

But, it may be objected, that this is a special demurrer; and this omission to lay a venue is not assigned as a cause of demurrer. I have already said, the omission to lay a venue is matter of substance; and, though it be true, that a demurrer confess-eth all such facts as are sufficiently pleaded, matters not sufficiently pleaded are not admitted by a demurrer, And though it be also true, that he that demurs specially can take no advantage of any other matter of form, than what he hath expressed in his demurrer; yet he may of any other matter of substance, Where the defendant pleaded Queen Elizabeth’s letters patent, (as the defendant in this case hath the will of the husband,) without a profert in curia, in bar to an action of trespass, to which the plaintiff demurred, and for cause of demurrer, alleged that the defendant’s plea amounted only to the general issue; judgment was given for the plaintiff for this reason; because there was no profert in curia made of the letters patent, -which was matter of substance. Here, then, the plea is substantially bad, in my opinion, not only because there is no venue laid, which I hold to be matter of substance; but because there is no profert in curia of the husband’s will; (or of a certified copy thereof at least;) *but a part only, and not the whole of the will is set forth in the plea; so that the Court cannot make such a construction thereof as the law requires, viz. that the construction be made upon the entire deed, or will, and not merely on disjointed parts of it. In Vernon’s case, where the demandant in her replication relied on the will of her husband, we are told that she shewed all the will in certain. And the same ought to have been done here. Then, with respect to the venue, as to the entry into the mansion-house, in the same case, the tenant pleaded, that the husband was seised of other lands (besides those whereof dower was demanded) in the same County, in his demesne as of fee, and by deed en-feoffed certain trustees and their heirs, to the use of himself for life, and after his decease to the use of the demandant, his wife, for her life, &c. and averred that the said estate, limited for life to the demand-ant, was for her jointure, and in full satisfaction of her dower; and that after the death of her husband, the demandant entered into the said land so limited to her for her jointure, and agreed to the same. And therewith all the forms agree; which shews that the laying the venue in such a plea is mafter of substance: it shews, moreover, that the state of the husband in the lands settled, or devised, ought to be shewn, that the Court may judge whether the estate of the wife therein be such, as is determinable only by such acts as would forfeit her dower at the common law. But the case of Ilderton v. Ilderton, in which to a plea of ne unques accouple in loyal marriage it was replied by the demandant, that she was married at Edinburgh, in Scotland, without laying a venue in England, and the replication was held good upon a special demurrer, for that cause, may be considered as overruling the objection to this plea, for want of a venue. But I am of opinion it does not: Eirst, the fact of the marriage was alleged to be in another kingdom; to which the process of the Court did not extend. Secondly, it was of such a nature as was not triable by Jury, if alleged to have taken place in England, but by the bishop’s certificate. *'Thirdly, it was a collateral and transitory fact, which might happen in any County, and therefore the trial of the principal matter, where there was a venue already laid, would draw to it the trial of this collateral and transitory matter. See also Mostyn v. Fabrigas, Cowper, 176, 177, with respect to the distinction between local and transitory matters. Fourthly, that case turned upon the question, whether the practice in respect to replications, must be governed by the same rules, as were admitted to prevail in declarations and pleas; and the Court held, that there were no precedents, by which the same strictness was required in replications, as in declarations, and pleas in bar.

After what I have said upon the first point, and upon the merits as connected with it, I deem it unnecessary to say any thing upon the second point.

But an exception was taken to the count by Mr. Williams, which at first appeared to me to contain great weight: to wit, that the demand is of the third part of a freehold, and not of a freehold of inheritance, or of an inheritance in fee simple. But the case cited by Mr. Call, from Booth on Real Actions, 166, Co. Entries, 176, 179, Ras-tall’s Entries, 229, as well as in later books of practice, (Crompton’s Pr. 316, 10 Wentworth’s Plead. 1S7, 163,) and the decision in Davenport v. Tyrrel, 1 Black. Rep. 679, that where a seisin is alleged in pleading, it shall be intended a seisin in fee; for that, in pleading, the larger estate is always presumed; (which last case I recollect to have heard Judge Eyons rely on, in this court;) have fully satisfied me that there is nothing in that exception.

Upon the whole matter, I am of opinion the demurrer to the plea ought to have been sustained; and consequently that the judgment of the District Court ought to be reversed, and the cause sent back to be tried upon the issue joined on the first plea.

*JUDGE ROANE.

This is a writ of dower unde nihil habet, brought by Ambler and wife for dower in a lot in. the corporation of Winchester, which Mrs. Ambler claims as of the endowment of J. H. Norton, her former husband.

The tenant pleads two pleas: 1st. That the said J. H. Norton was never seised of an estate of inheritance in the premises during the coverture; on which issue is joined; and, 2d. That the demandants ought not to have their action, &c. because, during the coverture aforesaid, viz. on the 19th of Nov. 1792, the said J. H. Norton duly made his will, whereby he devised that the appellant, Catharine, (his then wife,) should receive an annual income of 1501. during her life, out of the estate of the said J. H. Norton, and have the full use of the mansion-house and other houses where he then lived, garden, stable, &c. during the life of the said Catharine, (as also various bequests of personal property for life and in absolute property,) which will (with two codicils) was duly recorded in the Court of Frederick, since the death of the said John, and are now in full force. The plea goes on to aver that the several bequests in the said will and codicils mentioned, were in lieu of her dower, and that she did, after the death of the said John H. Norton, and before the ' commencement of this suit, actually enter into and occupy the greatest part of the property so as aforesaid devised to her, viz. “the mansion-house, lot,” &c. (stating all the real property devised,) and hath ever since been in the possession and occupation thereof, in lieu of her dower aforesaid; and this he is ready to verify, •&c. To this second plea the demandants filed a demurrer, stating as causes thereof, 1st. ‘That the averment in the said plea is of matter not contained in said will or codicils, or either of them, and that the said tenant ought not to aver any .thing out of the said will and codicils;” and, 2d. “That the averment aforesaid is respecting matter which, if it exists, is matter of record, and ought to be verified by the record, and is not so verified in and by the said plea.” To this demurrer there is a joinder; and, on *arguing the demurrer, the Court adjudged the law for the defendants; from which judgment there is an appeal to this Court.

The question propounded by the first cause of demurrer, appears to have been a vexed question, perhaps, in England, as it relates to wills: but the most modern and satisfactory opinion seems to be, that where the devise is expressed to be in satisfaction of dower, or such seems to be the clear and manifest intention of the testator, the wife shall not have both dower and jointure, This doctrine would be undoubtedly rendered more clear in favour of the averment, since the decisions in Kennon v. M’Robert, and Shermer v. Shermer. In those cases it was admitted to be law, that in collecting the intention of the testator as from .the will itself, the words of the will are to be explained by the relative situation of the parties, and circumstances of the testator; facts derived from these sources, thus sanctioned, in relation to the construction of wills, may be as imperious as any expressions whatsoever, in the will, to import an intention to substitute the joint-ure for the right of dower. But the words of our act are so clear and explicit as to put this matter entirely at rest. They are, ‘if any estate be conveyed by deed or will, either expressly, or by averment, for the jointure of the wife, in lieu of her dower, to take effect in her own possession, immediately on the death of her husband, and to continue during her life at the least, determinable by such acts only as would forfeit her dower at'the common law, such conveyance shall bar her dower of the residue of the lands, tenements or heredita-ments, which at any time were her said husband’s.” The intention of the Eegislature to this effect is still further manifested by. the provision contained in the 12th section, (not to be found in the statute of Hen. VIII,) that where any estate intended to be in lieu of dower, shall, through any defect, fail to be a legal bar thereto, and the widow shall demand dower also, the estate limited to her with intention to bar dower shall thereupon cease. This provision, taken in addition *to the' clear expressions of the act as aforesaid, puts the question beyond all doubt: it adopts that equity which always leans against a double provision: it overrules the grounds on which a jointure, unless so expressed in the deed or will, had been held to be no bar to dower, and which in 3 Bac. Abr. 712, are said to be, (as they are,) contrary to justice; and places the subject on the true ground of intention as it relates to the devisor; saving to the wife, in case of a jointure made during the coverture, the right to make her election after she becomes sole. While another clause of our act provides, that a widow expulsed from her jointure-land shall recover dower pro tanto, the clause just mentioned, on the other hand, coniines her to dower only, where the jointure estate should fail through ‘‘any defect” to be a bar thereto. This expression “any defect” embraces a defect of the want of averment, as well as any other, and the whole case is put upon the ground of intention. If ii be said that this construction contravenes the spirit of the statute of frauds, the answer is, 1st. That the words of the act in question are express and positive; 2d. That the .Legislature had power as well to depart from as to enact that statute; and, 3d. That the principle settled, or rather recog-nised, in Kennon v. M’JRobert, and Shermer v. Shermer, will suffice for every purpose of the averment, and was not considered by the Court in those cases as infringing that statute.

As to the second cause of demurrer, the demandants (after having complained, in the first, that the matter averred was not contained in the will or codicil) object that the “averment aforesaid” is of matter of record, (meaning, I suppose, by the probate and recording of the will,) and ought to be verified by the record. It wilt readily occur here that the averment of a matter not contained in a will cannot be proved .by the will: but, perhaps, the objection intended was, that the will itself should have been set out at large in the plea. As to this, it was rightly said by the appellee’s counsel that the substance of a will, as far as it relates to the case, may be averred, and that the whole *will need not be set out In the plea. In Lawrence v. Dodwell, the will was not set out: it is true indeed that Powell, Justice, stated, as his opinion in that case, that, if any intent in the devisor had appeared that the devise was to be in bar of dower, the devise should have been pleaded at large: but this is only the declaration of a single Judge; no decision is found to support it; nor do the forms of pleas bear out the idea that it is necessary.

The causes of demurrer assigned in this case being therefore incompetent to overrule the plea, let us see whether there are any other grounds competent to do it.

This case being upon a special demurrer, we are not to regard “any defect in the plea, except those assigned; unless something so essential thereto, as that judgment according to law and the very right of the cause cannot be given, shall be omitted.”

Notwithstanding the comprehensiveness of the above terms, we must have enough in the plea to enable us to give judgment “according to law and the very right of the cause.” On this subject, I am of opinion, that what is substance, or not, is to be determined in every action according to its nature, I also think we ought to adopt a principle, in relation to demurrers, analogous to that adopted in relation to general verdicts. In respect of them, it is held that, although a matter must have been proved to the Jury, and the general words of the act of jeofails would seem to extend to all such cases, yet that the gist of the action must be laid in the declaration, or else a judgment thereupon cannot be given; so, in the case of a plea, the gist of the bar must be stated.

Under this distinction, I will briefly examine the objection that the plea ought to have stated that the testator, “being seised in fee of the premises,” made the jointure in question. It is not denied that this is the regular form of pleading: but the question is whether this is indispensable upon a general demurrer. I have seen no decision shewing that it is. In this respect the plea is as ample as the act under which it is pleaded. That statute does not enact *“that where one seised of an estate of inheritance, &c. shall convey by will,” &c. but that “if an estate be conveyed by deed or will, either expressly, or by averment, for the jointure, &c. it shall bar dower,” &c. This provision of the act would seem to determine what the gist of the plea really is; and this gist is stated in the plea in question.

When, in addition to this, it is provided by the act, that if the jointress shall ever be evicted, she shall recover her dower pro tanto, why may we not, according to the. very right of the cause, give judgment against her, if the averment be proved or admitted to be true? She can, in no event, be left destitute; aud, in making her election to accept the jointure, undoubtedly took into her consideration her husband’s right to the premises conveyed in jointure. As it must appear to the Court that the estate conveyed in jointure has the requisites of the law, the widow, on the other hand, is to judge whether her husband was capable to convey it.

Again it is said that it ought to appear to the Court, that the devise of the jointure was to take effect in possession immediately on the testator’s death, aud not after payment of his debts. I answer that nothing of this is stated in the plea in the case of Lawrence v. Hod well, or any other pleadings that I have seen. As to the estate taking effect immediately, that is the natural inference from the facts stated in the plea, (and which are admitted to be true by the demurrer,) unless an intervening estate had been shewn to have been limited, which ought to have been shewn on the part of the demandants; and (as to the latter part of this objection) although a title to dower, having relation to the date of the marriage, is held to be discharged of judgments, statutes, mortgages, &c. yet the husband has no power to exempt join-ture-lands therefrom; nor is such exemption essential to the validity of a jointure. We are told by Blackstone, that there are some advantages attending tenants in dower that do not extend to jointresses; and vice versa. He states them ^particularly. If this exemption from incumbrances, &c. exists in favor of dower, whereas it does not in favor of jointures; so, on the other hand, the jointress finds an equivalent in her right to enter at once into her jointure-lands, and in their exemption from forfeiture for treason; privileges which do not exist in relation to dower lands.

It is also said that it ought to appear that the devise was not clogged with any condition whatever, other than such as the law imposes as a forfeiture of dower. The answer is, that the plea sets forth an unclogged devise for life, which is admitted, and it is not shewn on the other side to be otherwise.

Again, it is said, that the jointure-land, not being solely (but only in connexion with other property) devised for the join-ture, is not a satisfaction for the whole dower. In the case of Lawrence v. Lawrence legacies were coupled with the jointure-land, and did not prevent it from being held to be an adequate bar to the whole dower; as it would have been adjudged to be if in other respects the join-ture had been held sufficient. As to its not being shewn that the widow entered into more than the real estate, she could not do so; but her entering into that shewed her election to take the jointure.

It is objected that the plea does not state that the devise was accepted in lieu of dower. But it does state that the jointure-land was “entered upon” and enjoyed “in lieu of dower.” In saying that she entered on such land, it is conclusive that the wife did not merely remain in the mansion-house and hold it, under the law, until dower was assigned. Besides; although the mansion-house entered into was the mansion-house at the date of the will, and, consequently, the one intended in the will, non constat, for it is not averred nor stated, that it was the mansion-house at the time of the death of the testator; and, if not, the wife could not have entered upon it except under the will:- she could not have remained therein under the law.

*This objection, and several others of similar character, if there was otherwise any thing in them, would stand interdicted by the effect of the special demurrer filed in this cause.

Another objection is taken, however, by the Judge who has preceded me, which was not taken at the bar; namely, that the County in which the jointure-lands lie is not stated in the plea. This objection may be considered in two points of view: 1st. That the plea is alleged to be defective in not laying a venue; and, 2d. In not having that particularity and certainty which the law requires a plea to have. As to this last view of the plea; while it is readily conceded that a demurrer admits the truth of such pleas only as are properly pleaded, (bearing in mind at the same time the effect resulting as to this point from a special demurrer,) it is a rule equally true that a plea need only contain a reasonable certainty of time, place and persons. It seems also to be a just rule on this subject, that less particularity is necessary in relation to matters which equally lie within the knowledge of the adverse party, than in relation to such as lie only within the knowledge of the party pleading. The plea before us stands justified by both these rules of construction. The locality and certainty of the jointure-land must have been at least as well known to the wife as to the tenant. Independent of this consideration, the plea, in respect of certainty, is entirely sufficient: it has every datum, whence to acquire a precise knowledge of the identity of the land, except the name of the County or Corporation in which the land lies. It is confined to land devised by a will of Nov. 19th, 1792; and is further ascertained by being described as the mansion-house, &c. in which the testator then lived. I will ask cui bono insert the County on the ground of certainty? Even then we must resort to the above criteria to ascertain the land in question; for there may have been more than one mansion-house within a given County or Town: on the other hand, this plea referring to the mansion-house in which the testator lived *on the 19th of Nov. 1792, affords an unerring standard. There is no want of certainty therefore in this plea.

With respect to laying a venue in this plea, there was no necessity for it. In England, as all writs emanate from the Court of Chancery, and the kingdom is divided into Counties, it is necessary to lay a venue directed to the Sheriff of the County in which the injury is supposed to have been committed; and then the trial must be had in the County in which the venue is laid, I mean not to say at present (as being unnecessary) how far this doctrine of venue is applicable to this country, owing to the different organization of our Courts: but having remarked the above as the true ground of the doctrine on this subject, I will test this case by it, on a supposition that we were now in England.

In that country it is held that the laying a venue is sometimes substantial and sometimes formal only. It is substantial when the action is in rem, as in ejectment; for there the Sheriff must deliver possession, which he could not do unless the venue was laid in the proper County: but it is only formal where the action is transitory; but yet some County must be laid to which the process must go to bring a Jury from. And this formal idea of a venue is carried so far as even to justify a fiction; as where a bond on the face of it was made at Bengal, it must be stated to have been made at some place in England under a videlicet. These points are laid down with great force and perspicuity in the case of Mostyn v. Eabrigas. I infer from this that a venue is not a matter of substance, unless the cause of controversy be local; unless the proceeding be in rem; in which case also the real County is to be laid. This doctrine would shew the necessity oí a venue in the action for the dower; for it is local, and the Sheriff is to deliver possession of the land: but, in relation to the jointure-land, that would equally bar dower, if it lay in another country. In that case, if its locality were mentioned, it need only be mentioned, by a fiction, to be in Virginia. As the suit in question is not to recover the 'x'jointure-land, but the dower-land, and the question concerning the former comes in only collaterally, if a venue were necessary in relation to it, which it is not, it would be merely of the formal and not of the substantial kind. In Ilderton v. Ilderton, in a replication to a plea of rie unques accouple, in a suit for dower alleging a marriage in Scotland, it was held not to be necessary to state by way of venue, even by a fiction, that the marriage was held in England. The best reason given for it is, that the Court had already possession of the cause, and this matter arose incidentally; and that the want of it could not be taken advantage of even on a special demurrer.

By the statute of 16 Car. II, the want of a venue is aided after verdict. This shews it is not matter of substance; for we have often held here (as I have before said) that a want of substance going to the cause of action is not cured by a verdict, although the matter thereof must of necessity have been given in evidence to the Jury.

By the same statute, c. 8, it is enacted, inter alia, that the “want of a right venue,” and all “such omissions, variances and defects, and other matters of a like nature, not being against the right of the matter of the suit, shall be amended after verdict.” This is an express legislative declaration that the want of a venue does not go to the very right of the cause.

When to this we add, that by our act we are not to regard any defect or imperfection in a plea, other than what shall be specially alleged as causes of demurrer, unless something, so essential to the defence as that judgment, according to law, and the every right of the cause, cannot be given, shall be omitted, thewantof a vc-nue (a mere formal matter in a case like the present, even in England) must not impede a judgment.

The statute of 4 Ann. c. 16, in England, (which is not stronger than ours as to the point in question, and from which our act was taken,) expressly overrules defects not stated as causes of demurrer, “notwithstanding such defect or omission might heretofore be taken to be matter of *substance.” If, therefore, this want of a venue had, before our act, been held to be a matter of substance, non constat that it would prevail since the enaction of the statute. ,

On every ground, therefore, I am of opinion that there was no necessity for laying a venue in the plea in question; and, if there was, the omission to do it is not such a matter of substance as to justify the demurrer; since it was not set down as one of the causes thereof.

My opinion is to sustain the plea, overrule the demurrer, and affirm the judgment ; and not, by sustaining the demurrer, to give the demandants the land if they shall, on the first plea, be able to shew that the testator was seised of the land sued for during the coverture. In that case, when we consider that a jointure was made by the testator, and accepted by the appellant after the coverture, the judgment would not only give a double provision to the widow, but be equally reprobated by the justice of the case and the law of the land.

JUDGE FLEMING.

The principal question in this case is, whether the Court below erred in overruling the demurrer to the defendant's second plea, or whether that plea, in the form it appears on the record, was not, if sustained, a legal bar to the de-mandant’s action?

In considering the question, I shall briefly s+ate so much of the plea as seems to be material; and, secondly, state the substance of the demurrer, and endeavour to apply the law to the case, as it appears on the record.

The plea is, that the said John H. Norton, by will, duly made, &c. devised that the said Catharine, his wife, should have the full use of the mansion-house, and other houses of the said John, where he did then live; together with the ground on which they stand; and the garden, stable and stable-lot, during the life of the said Cath-arine, (and then mentions two codicils to the said will, by which a considerable personal estate was bequeathed to her,) 53 *which said will, and the codicils annexed thereto, have since the death of the said John, been duly proved and recorded, in the Court of Frederick County, and are now in full force; and that the devises, &c. in the said will and codicils, before set forth, were in lieu of the said Catharine’s dower in the estate of the said John ; and that the said Catharine did, after the death of the said John, and before the commencement of this suit, actually enter into and occupy the said mansion-house, and other houses where the said John did live, and the- stable, stable-lot and garden, so as aforesaid devised to her, in lieu of her dower aforesaid.”

To this plea there is a special demurrer; and for causes thereof, the demandants shew, 1st. “That the averment in the said plea is matter not contained in the said will and codicils, or either of them, or any part thereof; and the tenant ought not to aver any thing- out of the said will and codicils.

2d. “The averment aforesaid is respecting matter of record, and ought to be verified by the record, and is not so verified by the said plea.”

1st. With respect to the first cause of demurrer, it was formerly held that a jointure by deed, though not expressed to be in lieu of dower, might be averred to be so; but that a devise to á wife for life, cannot be averred to be in satisfaction of dower, unless it be so expressed in the will, Because, say the books, it shall be considered as a kindness and benevolence of the testator.

But our act of Assembly, “reducing' into one the several acts relating to dower,” passed the 6th Dec. 1792, places the provision made for the wife, by deed, or by will, on the same ground; in which it is enacted (section 11,) that, “if any estate be conveyed by deed, or by will, either expressly, or by, averment, for the jointure of the wife, in lieu of her dower, to take effect in her own possession, immediately on the death of her husband, and to continue during her life, at least, determinable by such acts *only as would forfeit her dower at common law, such con- : : ■ veyance shall bar her dower of the residue of the lands, tenements and hereditaments, which at any time were her said husband’s. But, if the said conveyance were before the marriage, and during the infancy of the feme, or if it were made after marriage, in either case, the widow may, at her election, waive such jointure, and demand her dower.” And in the 12th section, it is enacted, that, “when any conveyance, intended to be in lieu of dower, shall, through any defect, fail to be a legal bar thereto, and the widow, availing herself of such defect, shall demand her dower, the estate and interest conveyed to such widow, with intention to bar her dower, shall thereupon cease and determine.” : i ■ '

By this act, it appears to be the will of the Legislature, that a widow shall not have both jointure and dower, whether the former be by deed or by will; but, in certain cases, may make her election.

The first recited section shews, clearly, that where a testator, by his will, makes provision for his widow, intending (but not expressing or declaring) it to be in lieu of her dower, the proper and only mode of shewing it to have been so, is by averment; and therefore the averment in the case before us, that the devises in the will of Jonn H. Norton, to his widow, were in lieu of her dower, was proper, and no good cause of demurrer; and the same answer may suffice for the second cause, “that the averment aforesaid is respecting matter of record, and ought to be verified by the record, and is not so verified;” for it seems to ■ me not necessary that the averment should have been verified by the record; the will, in which the devises averred to be in lieu of her dower were made, being particularly referred to in the plea.

But it is contended, that the plea is faulty and cannot be supported, because there is no venue laid therein ; and it is not stated that the mansion-house, &c. are situate in the *town of Winchester and County of Frederick, or at any other particular place.

If we inquire into the reason why laying a venue is necessary, in pleadings, where the subject in controversy is local, I conceive it to be, to identify the subject, and to prevent surprise on the adverse party; and it seems necessary on the part of the : demandant also, that in case of a recovery, process may issue to the proper officer to give possession of the premises.

If I am correct in this position, the object is fully attained by the plea, in this case; in which it is stated, “that the mansion-house, &c. devised to the said Catha-rine, during her life in lieu of her right of dower, in the estate of the said John, is the mansion-house, &c. where the said John did then live, and that, after the death of the said John, and before the commencement of this suit, the said Catharine did actually enter into and occupy the said mansion-house, &c. where the said John did live, and hath ever since b«en in the possession and occupation thereof, in lieu of her dower aforesaid.” The plea refers to the .will of John H. Norton, “proved and recorded in the Court o.f Frederick County;” and, as the law directs, that if wills be proved in a County Court, the proof shall be in the Court of the County wherein the mansion-house, or place of residence of the testator is, it consequently follows that the mansion-house of John H. Norton was in the County of Frederick, though not stated to be in the Town of Winchester, which appears to me to be as complete a description of the mansion-house, garden, stable and stable-lots, as if he had added, “lying in the Town of Winchester,” which I consider as matter of form merely, the substance having been sufficiently stated in the plea, in which the premises were so particularly described, that the demandants could not, I conceive, have possibly mistaken their identity; and I am the more confirmed in this opinion, as neither the counsel below, in the demurrer, nor the able counsel in the argument at this bar, *took the smallest notice of the omission. And, in my apprehension, the plea tendered a fair issue to the demandants, on which they might have tried the cause on its true merits, and the onus probandi would have been on the defendant.

■ But, admitting that the omission would have been fatal, had it been alleged as a cause of demurrer, it is now too late to make the objection; for, by the act for limitation of actions, &c. passed the 19th Dec. 1792, section 27, it is enacted, “that where a demurrer shall be joined in any .action, the Court shall not regard any other defect, or imperfection in the writ, return, declaration or pleading, than what shall be specially alleged in the demurrer, as causes thereof; unless something so essential to the action, or defence, as that judgment according to law and the very right of the cause, cannot be given, shall be omitted.”

: ■ The question then occurs, whether there is not sufficient matter stated in the record to enable the Court to give judgment according to law, and the very right of the cause? and I have no difficulty in saying, that. I am of opinion there is. The demurrer, I conceive, admits the fact, that the demandant Catharine, under the devise aforesaid, entered into and occupied the mansion-house, garden, stable and stable-lot, &c. and hath ever since been in the possession thereof; but denies it to be in lieu of her dower; and that the defendant ought not so to have averred it, in his said plea, as it is matter not contained in the said will and codicils, or either of them, or •any part thereof.

By the act of Assembly, relating to dower, above recited, a widow shall nof have both dower and lands intended to be in lieu thereof; and the demandant Catha-rine, having accepted and occupied the lands, mansion-house, &c. (wherever they be), devised to her by her late husband’s will, is not entitled to dower in any other of his lands or tenements; as it appears to me that they were intended *to be in lieu of her dower, though not so expressed in the will. I am therefore of opinion that the judgment of the District Court ought to be affirmed.

By a majority of the Court, (absent JUDGE) IvYONS,) the judgment of the District Court affirmed. 
      
       Vol. 1, p. 737, old ed.
     
      
       1 Lord Raym. 438: Vide 3 Lord Raym. 151, where the plea in that case will be found.
     
      
       3 Black. Com. 381.
     
      
      <D 3 Atk. 8.
     
      
       4 Co. 3, a.; Co. Litt. 36, b.
     
      
       Nov. 1.1805, MS.
     
      
      
        S) 3 P. Wins. 613.
     
      
       4 Co. Vernon’s case; 3 Bro. Ch. 351, Poster v. Cook; 6 Ves. jun. 615; 4 Bro. Ch. 513, Caruthers v. Caruthers; Rev. Code, vol. 1, p. 171, c. 94, s. 11; 3 Bro. Ch. 255, Wake v. Wake.
     
      
       Vide Co. Litt. 46, a.; 4 Rep. 65, a.
     
      
      c) 4 Rep. 65, a.
     
      
      d) Vide Lawrence v. Lawrence, 1 Eq. Ca. Abr. 219; 1 Lord Raym. 438, S. C.;3Bro. Pari. Ca. 483, S. C.; Incledon v. Northcote, 3 Atk. 430; Boynton v. Boyn-ton, 1 Bro. Ob. 445; French v. Davis, 2 Ves. jun. 572; Foster v. Cook, 3 Bro. Ch. 347; Villareal v. Lora Galway, Ambler, 682. 1 Bro. Ch. 292, S. C.; Pearson v. Pearson, Ibid. 291; Harg. Co. Litt. 366, in.
     
      
       Rev. Code. vol. 1, p. 170, c. 94, s. 2.
     
      
       co Litt. 803, b.
     
      
       1 .Saund. 247. n. (1).
     
      
       Hob. 56, 5 Go. 69; Go. Litt. 72. a.
     
      
       10 Co. 88, Leyfleld’s case.
     
      
       2 Bl. 379.
     
      
       4 Go. 1.
     
      
       2 H. Jila. 145.
     
      
       2 Bl. 138, Christian’s note, and other authorities.
     
      
       1 Wash. 162.
     
      
       Ibid. 172.
     
      
       1 Ld. Raym. 438. See the pleading's in 3 Ld. Raym. 151.
     
      
       Rev. Code, vol. 1, p. 112, c. 76, s. 27.
     
      
       5 Bac. Abr. 404.
     
      
       Rev. Code. vol. 1, p. 112.
     
      
       3 Jjd. Raym. 151.
     
      
       2 Bac. A hr. 373.
     
      
      
        s) 2 Bl. Com. 138.
     
      
       2 Vern. 365.
     
      
       3 Bl. Com. 308.
     
      
       3 Bl. Com. 273, 294.
     
      
       Cowp. 176.
     
      
       2 H. Bl. Rep. 145.
     
      
       See 7 Bac. .A ter. 49.
     
      
       See 1 Bac. 150. and Buller's N. P. 324.
     
      
       Rev. Code. vol. 1. c. 112, s. 27.
     
      
       See 1 Bac. 151.
     
      
       Co. Litt. 36 te„ 4 Rep. 3.
     
      
       Co. Litt. 86, b. 4 Co. 4, Leake and Randall’s case.
     