The opinion of the court was delivered by

By the statute of Merton, damages-were recoverable only, in respect of lands, whereof the husband, died seized. 2 Bac. abr. tit. Dower, (1.) ; Gwil. ed. fol. 392,. 393; 2 Saund. 45, in note 4 ; Dennis v. Dennis, 2 Saund. 331; 2 Sell. Pract. 209, 210; and to these authorities may be added, two decisions of this court. Fisher v. Morgan, Coxe’s Rep. 125; and Sheppard v. Wardell, Coxe’s Rep. 452; and the authorities referred to by the court in the first of these cases. If, therefore, the jury did not find that the husband died seized, judgment, at least for the damages, would be reversed; and in case of a judgment by default, the demandant, if she seeks to recover-damages under the statute, must suggest upon the record, that* the husband died seized ; and thereupon a writ of inquiry will, be awarded. If the jury find that the husband died seized, they must find also, the time when he so died, of what estate, the annual value of the land, and damages with costs. But if' the husband did not die - seized, then no damages nor costs, but only the value of the land; for the statute of Merton gives no* *129damages in such case; and tlie statute of Gloucester gives costs only, where the plaintiff recovers damages. These positions will be found to be sustained by the cases I have already cited.

I am not aware of any difference in this respect, between our act relative to dower, Rev. Laws 397, sec. 3, and the statute of Merton, except, that by the latter, damages are given only in ease the husband died seized; whereas, by our act, damages are given, “from the time of demanding dower,” if the husband did not die seized. There is, it is true, some difference in the language of the two statutes on the subject of damages. The statute of Merton, as quoted by Sergeant Williams, in 2 Saund. 45, note 4, is in these words: “ That if a widow shall recover her dower of the lands, whereof her husband, died seized, the tenant shall yield damages, that is to say, the value of the dower, from the time of the death of her husband, until the day she shall have judgment to recover seizin.” The act of this state relative to dower, enacts, “that if the widow be deforced of her dower, &c. then she may sue for and recover the same,” that is, her dower, “ with damages; that is to say, the value of the whole dower to her belonging, from the time of, &c.” The language of the two statutes, appears to me, to be substantially the same; and in each of them, the “ damages ” spoken of, seem to be explained by the words, “ that is to say,” to mean, “ the value of the dower Tn other words, that the “ damages ” and “ the value of the dower,” in both statutes, mean the same thing. Yet it has been a question, and perhajjs still is, at least in this state, whether the word “ damages,” includes, the value or mesne profits; or whether damages for the detention, is to be recovered, over and above the value. " Chief Justice Kinsey, in Fisher v. Morgan, Coxe’s Rep. 125, says, “ upon this subject the books seem irreconeileable.” The question was debated in that case, and examined by the court, but without coming to any decision on the point. The cases and entries, on the one side and the other, are there cited by the chief justice, and may be examined by the student.

In Trials per pais, 333, the jury are directed, if they find the husband died seized, then to enquire: first, the value beyond ■■reprises : second, what time has elapsed since the death of the husband, and thirdly, what damages the demandant hassustain*130ed by the detention of the dower. In the forms given us by Sergeant Williams, 2 Saund. note 4, in the writ of enquiry, the jury are commanded to make the same inquiries; and in the inquisition, the damages are assessed separate from, and over and above the value. And in the case of Young v. McPherson, 2 Pen. Rep. 896, this court evidently considered the damages as a distinct thing from the annual value. Such may then be considered the rule in this state ; as to costs, we have no statute giving it in terms to a demandant in dower; but the act concerning costs, Rev. Laws, 168, gives costs to every plaintiff and demandant, in every action wherein such plaintiff or demandant, by verdict or otherwise, recovers damages. If, therefore, the demandant in this case, is not entitled to damages, she cannot have costs; and whether she is entitled to damages or not, must depend upon the facts in the case, to be found by the jury, if upon the trial of an issue, or upon an inquest, if judgment is by default.

• The judgment in this case, was entered by default. If the demandant intended to seek for damages, she ought to have suggested on the record, either that her husband died seized, or that she had demanded her dower and the writ of inquiry ought to have commanded the sheriff to inquire as to the truth of such suggestion, and in other respects have been conformed to the precedents in the books. 2 Saund. 45, note 4; 10 Went-worth, pi. 240, and other entries. Instead of this, the writ, after shortly reciting the count in dower, and that such proceedings have been had thereon, that the demandant ought to recover her damages, commands the sheriff, that by the oath, &c. he should inquire what damages she hath sustained, &c. The writ is certainly defective, and the inquisition taken thereon, is equally so. The jury have not informed the court, whether the husband died seized, or of what estate, or when he so died; but only that the yearly value of the premises beyond reprisals, is forty-eight dollars, and that two years have elapsed since the death of the husband, and they then assess the demandant’s damages, “ including ” the value aforesaid, at so much, instead of assessing the damages for the detention, over and. above, or beyond the value. In Young v. McPherson, 2 Pen. Rep. 896, this court granted a new trial, chiefly on the ground, that the jury had blended the damages with the value.

*131It is impossible for the court intelligently to give any judgment on such an inquisition. We cannotgive judgment against the defendant for damages, from the death of the husband, without knowing whether he died seized, nor for any other damages, without knowing how much and from what period they were estimated. By the statute, damages are to be recovered by the demandant, “ unto the day, that she shall recover seizin by the judgment of the court.” And therefore, the writs of seizin and of inquiry, are generally blended or united in the same writ—when that is done, damages are properly assessed up to the suing out of the inquisition, as in this case. But this is a separate writ of inquiry, and may have been issued long after a writ of seizin had been sued out. If such was the fact, the inquisition is bad on that account; because the demandant ought not to have damages for any longer period than she was kept out of possession.

I am of opinion that the writ of inquiry and the inquisition taken thereon, should be set aside.

Inquisition set aside.

Cited in Woodruff v. Brown, 2 Harr. 264 ; Rogers v. Potter, 3 Vr. 83.