New-York, May, 1840.-Reynolds v. Reynolds.

wife shall have dower if she become a widow, is sometimes spoken of, through the imperfection of language, as though it were a present estate or interest in the land; but, in truth, it is not so; she has no right, until af [198] ter the death of her husband. In Lampet's case, 10 Co. 49, Lord Coke, although he was endeavoring to prove that the wife might be barred by a fine, was forced to admit that, "notwithstanding her husband is seized in fee, and the mariage is lawful, yet she has but a possi bility of dower till the death of her husband."

:

It was this difficulty that puzzled the old lawyers. Although they were resolved that a fine levied by the husband and wife, or by the husband alone in certain cases, should bar the widow of her dower, they were at a loss to discover any good reason for their judgment. Some of the earliest cases held that a fine was no bar and such was the opinion of Plowden, as given in his report of the case of Stowel v. Lord Zouch, which was adjudged in 11 Eliz. Plow. Comm. 373. He says, "in the case of dower, the title is wholly accrued after the fine, viz. by the death of the husband, for until his death no title was consummate, nor wrong done by the conusee in detaining the land from the wife. And the other two points [marriage and seisin] are of no moment without the third, viz. the death of the husband." He insists, that the wife had no right to be barred, at the time of the fine levied. Lord Coke, who prides himself upon being able to give a reason for every thing, attempted to answer Plowden; and he says: "Although at the time of the fine levied, her title was not consummate, yet the law respects the first and original causes, scil. marriage and seisin." Bingham's case, 2 Co. 93. Now this is plainly no answer to the fact, which he does not deny, that the wife had no right or title at the time of the fine levied. He afterwards repeats the same idea, in different language, in Lampet's case, 10 Co. 49. His words are," the intermarriage and seisin are the fundemental causes of dower, and the death of the husband but as an execution thereof." He might have carried his retrospect somewhat further, and gone back to the birth of the wife, or even to the creation of the world; for those events must be ranked among "the first and original," or "the fundamental caus

es of dower," as well as "marriage and seisin." But neither [*199] the one nor the other, nor all of them together, conferred any

title on the wife. That accrued on the death of the husband. His lordship, as though not quite satisfied with his own reasoning, proceeds to show, that the opinion of Plowden, as was no doubt true, had been overruled; and then concludes with the remark, that "now, common experience, without contradiction, is against it." The whole matter evidently comes to this the woman is barred of her dower by a fine, because the courts have so adjudged; and not on the ground that she had any interest or estate in

New-York, May, 1840.-Reynolds v. Reynolds.

the land upon which the fine could operate at the time it was levied. So in this and most of the other states, if the wife unite with her husband in aliening the land, by deed acknowledged, although that is not a mode in which a feme covert could act at the common law, she will be barred of her dower. She may also alien her own lands in the same way. How this happens to be the rule has never been very satisfactorily explained. Parsons, chief justice, thought it depended on immemorial usage, or a kind of New-England common law. Fowler v. Shearer, 7 Mass. R. 14. And in this state, it is said to depend on an ancient practice. Bool v. Mix, 17 Wendell, 128, 129. Probably no one can give a better reason why a widow shall not have dower after a fine levied, or deed acknowledged, than that which was given by Lord Coke in his answer to Plowden-" common experience, without contradiction, is against it."

It is undoubtedly true, as a general rule, that a statute shall not have a retrospect beyond the time of its commencement, or be so construed as to take away a vested right of property, or defeat a right of action already accrued. Sayer v. Wisner, 8 Wendell, 661. Varick v. Briggs, 6 Paige, 332. But that doctrine can have no bearing upon this case. While her husband lived, the plaintiff had no interest in the land; no right of property or of action which could be forfeited. Her misconduct vested no new interest or title in any third person, and consequently none was taken away by the act of 1830.

I cannot think it a sufficient objection to the plaintiff's claim, that there was a time, when if her husband had died, she would have been. barred. Though she was disabled by "the adultery, and her dow- [200] able capacity was gone for a time, it was restored before the right accrued the obstacle in the way of her taking was removed by the repeal of the act of 1787. The point is, I think, settled in her favor by authority. Coke says, "if the husband alien his land, and then the wife is attainted of felony, now is she disabled; but if she be pardoned before the death of the husband, she shall be endowed." Co. Litt. 33, (a). And Hargrave in his note, (202), gives a reading of Phillips, who holds, that "if the wife be attainted, and then the husband purchases land and aliens it again, and then the wife is pardoned, she shall have dower of the land which was purchased and aliened during the time she was not dowable." He adds"So if the wife elopes, and the husband purchases lands and aliens them, and then the wife is reconciled, she shall have dower of those lands." The same doctrine was laid down in Menvil's case, 13 Co. 23, where it was said, in relation to the elopement, that it was "only a temporary bar until reconcilement, which being accomplished, the temporary bar ceaseth." And in relation to the pardon after the wife had been attainted of felony, it was said, that "when the impediment is removed, she shall be endowed."

New-York, May, 1840.-Reynolds v. Reynolds.

I think the learned judge was mistaken in the view he took of the case at the circuit, and that the non-suit must be set aside.

New trial granted.

[ *201 ] *THE PEOPLE ex relatione Norton vs. GILLIS.

Where the owner of a mill, by a written contract without seal, stipulated to pay a mill-wright for repairing the mill a certain sum in advance and a certain other sum when the mill should be finished; and further agreed to secure the mill to the mill-wright until the profits of the mill should be sufficient to discharge his claim; IT WAS HELD that the contract was not a lease, but an agreement for a lease; and it was further held, that if it could be considered a lease, it created an estate for life determinable when the claim of the mill-wright should be paid, and thus the estate being an estate of freehold, it could not be granted by writing without seal.

THIS was the trial of a traverse of an inquisition in a case of forcible entry and detainer, at the Washington circuit in June, 1838, before the Hon. JOHN WILLARD, one of the circuit judges.

By the inquisition the jury found that the relator had an estate in possession of a grist mill, situate, &c. and was lawfully and peaceably in possession until the 26th October, 1836, when the defendant with strong hand and a multitude of people entered and expelled him, and unlawfully and forcibly keeps him out. The inquisition was removed into this court by certiorari and traversed by the defendant.

On the trial the relator offered to prove, that on the 24th October, 1834, the premises and mill site in question were owned and possessed by the defendant, and that on that day he and the defendant entered into a written. contract, without seal, by which he agreed to build, or rather repair, a grist mill for the defendant, in a manner particularly specified, to find all the castings, &c. and to have the whole done in November, 1836. The defendant on her part agreed to prepare the building or receive the gears, to furnish a corn-cracker and one run of stone then in the mill, &c. and to pay the relator for his work and materials $1191,82, in the following manner-$300 in advance, and $891,82, to be paid with interest after the mill should be finished; and stipulated as follows: "And I do further agree to bind myself

and heirs to secure the above mill to the said John till the profits [*202] of the mill is sufficient to discharge his claim." The relator entered immediately after the date of the agreement, went on with the work, and continued in possession until the 26th of October, 1836, when the defendant entered the mill with two men and ordered the relator to quit, telling him that if he did not go he would be put out. The relator thereupon left the mill—the work not then being completed, nor the time for com

pleting it expired.

New-York, May, 1840.-The People v. Gillis.

The judge ruled against the relator-he excepted, and the jury thereupon found a verdict for the defendant. The relator now moves for a new trial.

C. L. Allen, for relator.

J. Crary, for defendant.

By the Court, BRONSON, J. The contract contained no words of present demise, and the parties did not, I think, intend that it should operate as a lease, but only as an agreement to give a lease after the mill should be completed. I have looked into the cases on this subject, and none of them go far enough to prove that the relator had a present interest in the property while the work was in progress. Indeed, if the work had been finished, I think his only remedy at law would be an action on the contract.

But if this was a lease, the case is embarrassed with another difficulty. It was a demise until the profits of the mill should be sufficient to discharge the debt. This grant for an indeterminate period created an estate for life, determinable when the debt should be paid from the rents and profits of the mill. Co. Litt. 42, (a). 4 Kent's Comm. 26. It was an estate of freehold, which could not be granted without a seal, 1 R. S. 738, § 137, and this was a simple contract.

The agreement amounted to a license to enter for the purpose of doing the work; but it was revoked. For the breach of the contract by the defendant, the relator has a remedy by action to recover damages; but he has no title to the possession.

New trial denied.

*COOLEY & BANGS vs. BETTS.

[ *203 ]

An action will not lie against a factor or agent to whom goods are sent to be sold at auction, without a demand of the proceeds or instructions to remit, before suit brought.

It seems that there is a distinction between an action for not accounting and an action for not paying over the proceeds of goods sold, and that in the former case it is enough to show a neglect to account within a reasonable time, to maintain the action.

ERROR from the New York common pleas. Betts sued Cooley and Bangs in the common pleas, and declared on the common counts in assumpsit for goods sold, money had and received, &c. The declaration also contained a special count that in consideration that the plaintiff would deliver goods, wares and merchandizes to the defendants, to be sold by them for him, they undertook to sell the same, and to render a true and just account of the sale VOL. XXIV.

20

New-York, May, 1840.-Cooley v. Betts.

and of the proceeds when they should be thereunto afterwards requested. The plaintiff then averred a delivery of the goods to the defendants, a sale by them, and a request to account and pay over, and for breach alleged that the defendants had not rendered an account of the goods or of the moneys arising from the sale. There was a second special count, similar to the first. The defendants pleaded non-assumpsit as to all but $28,98, and as to that a tender. The tender was admitted in the replication. On the trial in the C. P. the plaintiff proved that in March, 1837, he sent a quantity of books which cost $419,16, to the defendants, to be sold at auction, and that the defendants during the same month sold the books. Upon this proof he rested. The action was commenced in October, 1837. The defendants moved for a nonsuit on the grounds: 1. that no demand of an account or request for a settlement had been shown; and 2. that there was no proof of the amount for which the goods sold. The motion was denied, and the defendants excepted. In the further progress of the trial, the defendants showed that the proceeds of the plaintiff's goods on the sale were $210,07. A verdict having passed against the defendants, they sued out a writ of error.

[ *204 ] * Willis Hall, (attorney general,) for the plaintiff in error.

R. Lockwood, for the defendant in error.

By the Court, BRONSON, J. In the absence of any express stipulation. between the parties, the law will imply a promise by a factor, bailiff or other agent to render an account to his principal; but it seems not to be fully settled whether the agent will be deemed in default after the lapse of what may be considered a reasonable time, or whether he must be plainly put in the wrong, by showing a demand before suit brought.

So far as relates to the two special counts, it is not necessary to decide this question, for the plaintiff has not declared on a promise to account within a reasonable time, but on a promise to account on request; and a special request is alleged in stating the breach. The plaintiff has put his own construction upon the contract, and if we should think him mistaken, and that he might have recovered in another form of declaring, I do not see how we can help him out of the difficulty. In the language of Best, C. J. in Elbourn v. Upjohn, 1 Carr. & Payne, 572, the plaintiff has tied himself down to a particular averment, which he is bound to prove.

But as the declaration also contains the money counts, the question is presented in another form. In relation to those counts, I may remark, that it does not appear whether the factors were to sell for cash or on credit, nor whether they have received the money. But if we assume that the sale was for cash, and that the money was paid, I still think the plaintiff cannot recover without showing a demand, or instructions to remit. The action is