learning he insisteth vpon his Writt of Consultation adding that if he die which made the promise the other may sue in Court Christian against the Executor or Executors of Executors 22. ass pla 70. is thus vpon Contract had betwixt two men that if one of them will marry the others Daughter hee shall haue ten pound c. the ten pound after Marriage must be demanded in the Kings Court because the promise was not with his Daughter in Marriage but by Couenant that he should c. But if he had promised the money with his Daughter in Marriage it must haue béene demanded in Court Christian And if a man promise vpon his faith to pay ten pound the Ordinarie cannot compell him to pay it but he may enioyne corporall penance vnlesse the promiser will voluntarily redéeme it Thus teacheth Iustice Thorpe in declaration of the Statute of circumspecte agatis 45. Ed. 3. fo 24. The Demandant declares vpon a couenant betwixt him and the Defendant that if he married the Daughter of the defendant hee should haue an hundred pound c. It was moued that this demand of debt vpon a Couenant concerning Matrimony was not good but the matter concerned the Court Christian per articulos cleri Notwithstanding because the demand was vpon a déed and a written déed maketh a lay couenant the defendant was compelled to answer But 14. of Ed. 4. fo 6. in an action of debt the Plaintiffe declares that he had married the Defendants daughter vpon agréement of twenty pound to be paid c. and all the Iudges of the common pleas without tarrying the Defendants answer awarded que le plaint prist rieu person brief for the demand is say they of the same nature with the espousals viz. ius spirituale and determinable no where but in Court Christian and yet the Booke of assises was there remembred 15. Ed. 4. fo 32. the plaintiffe in a Writt of debt demanding fiue markes declares vpon a couenant quod notâ— for fiue pound where he had marryed c. and 33. pound fiue shillings foure pence was paid but the residue being 5. Marks the defendant denyed to pay yet I care not saith Catesoy though he be discharged for I know well enough that vpon such a matter the action lieth not at common Law quod fuiâ— concessum per curiam And the cause alledged was that there was not quid for quo 17. Ed. 4. fo 5. The master of the Rowles asketh the Iustices of the Common pleas if a man promise money to another to marry his daughter or seruant which marrieth her accordingly whether an action of debt will lye at the common Law or no No saith Townsend for it is but a nude promise of no more effect then if I promise you 20. pound to build you a new Chamber and ex nudo pacto non oritur actio But if I promise you sixe shillings euery wéeke for the bording of I. S. here is quid for quo for law intendeth here that I haue aduantage and profit by the seruice of I. S. But further in your case the thing that is to bee done is spirituall which cannot bee sold neither can the party be compelled to doe it Rogers and Siliard were contrary to him in opinion That a promise vpon Marriage is no â—â—dum pactum because the daughter cousin or friend is by intendment aduanced And if I promise a Schoole-master money to teach my childe he shall haue action of Debt Likewise if I promise a Surgeon money to heale a poore mans wound or a Labourer money to mend a high-way But in the end Choke Littleâ—on agréed with the Master of the Rowles that in the case by him propounded none action lyeth at common Law because Matrimony whereupon the promise is founded is a thing spirituall and by no manner of meanes vendable 19. Ed. 4. fo 10. in an action of debt brought vpon such a bargaine Collow saith it is true a man must demand a woman contracted to him in the spirituall Court but money is a temporall thing And when a Parson of a Church is to recouer tythes he must sue in Court Christian but if he sell his tythes when they be seuered hee shall sue for the money in the Kings Court but then and afterward in the same or like case 20. of Ed. 4. fo 3. Bryan asketh him then to what end serueth the Statute that things touching Matrimony and Testaments must be tryed in Courts Christian cui des vous quam vous purres achate les Sacraments Sir saith Neale dismes are a thing spirituall but if a Parson of a Church lease his Tythes hee must sue for the rent in a temporall Court and Collow stands to it that per emptionem venditionem res spirituales efficiuntur temporales he neuer spake a truer word in his life Out of these opinions consorting together like harpe and harrow may be gathered this sure learning That hee which will wed shall doe well and according to the Statute of circumspecte agatis to take as much as he can of his wiues marriage money before hand with faire Indentures or good obligation for the residue And by the aboue-said Bookes as also by M. Plowden in that case he may haue action of debt for euery déed sealed and deliuered carrieth sufficient consideration to wit the will of him that made it Concerning the old scruple though money be a visible signe of inuisible grace Sacramentall and Spirituall specially if it be in Angels yet I trust it is not more spirituall then the woman her selfe with whom it is promised And as there is no question made but a man may sue in Court Christian for his lawfull wife vnlawfully taken and witholden vpon which suite if a prohibition be granted a consultation may be had for procéedings quatenus pâ—r restitutione vxoris duntaxat prosequitur c. So by Fitzherbert in his Writt of Consultation an Action may be brought at Common Law de vxore abducta cum bonis viri or an action of trespasse for taking onely of the Wife But for a cleare proofe that in these promissions of money vpon Marriage neither the money is any Ghost nor the promise any nudum pactum Sée the case 10. Eliz. Dyer 272. An Action of the Case was brought vpon promise of twenty pound made to the Plaintiffe in consideration that at speciall Instance and request of the Defendant he had married his Cousin this was a good cause of action in the Queenes Court although the Marriage were celebrated and perfected before the assumption because the Nuptialls did ensue the Defendants request And as Lands may bee giuen in Franke marriage after the Espousals and yet the Espousals be cause and consideration of the gift so may money be promised after Espousals and yet the Espousals be cause of the promise But Reader be not confident of the Law in that Case of Dyer for I haue séene a report of a Case betwéene Sandill Plaintiffe and
Lessor running to smoke rightly to smoke which is something more then nothing for if after all this the Lessor bring an action of waste against the Baron and Feme the Baron cannot barre her by shewing her reprisall and remitter but hee is stopped from speaking against his owne Feoffement and receipt So that here may bee an estoppell or conclusion by a matter not witnessed with specialty or any manner Scripture But if in the action of waste the Baron will make default at the grand distresse the wife vpon her prayer receiued to shew her matter shall barre the Lessor of his action right well For in euery case where a woman is receiued to plead in her husbands absence she shall haue aduantage as if shee were a Feme sole And the reason why rendring backe the land by the Alien to Baron and Feme worketh a remitter though it were by â—ne is because a Feme Couert that taketh any thing by fine is neuer examined by the Iustices But where somewhat is to bee conueyed from a Feme Couert by a fine as if Baron and Feme make cognizance to another c. or a grant or render or a release by fine in all or such like cases because the right of a Wife is passing and she shall be eternally concluded she must bee examined before the fine can be receiued and if shee confesse that her husband menaced her if shee would not leuie the fine c. it shall not be receiued 15. E 4 â—0 1. But where nothing is moued in fines saue onely a wiues purchase and gaining there is vsed none examination of her and therefore such fines doe not conclude her If Tenant in taile discontinueth it and dieth and the discontinuee makes a Lease to the Daughter and heyre of the Tenant in taile being of full age and to her husband for their two liues the daughter is remitted If Baron and Feme Tenants in speciall taile be and the Baron alieneth in fée and takes backe an estate to him and his wife for their liueâ— because they are but one person and the estate is likewise one and intire without moities and the Feme cannot be remitted here without the Husband be also remitted they are adiudged both in their remitter But the Baron himselfe is stopped from claiming so much contrary to his owne alienation If Lands he giuen to a Woman in taile remainder to another in taile remainder to a third in taile with remainder ouer in Fee if the woman take a husband that discontinueth in fee all the remainders are discontinued and if the Wife dyeth without Issue there is no remedie but a Formedon by turne if the first second or third Donée die without Issue But if after the discontinuance an estate be made to the Baron and Feme for their owne life or another mans life or any other estate the Wife is remitted and so are all they in remainder If the Feme die the next in remainder may enter and so is it for them in the reuersion after the caile is ended A Lease of a house is made to a Feme sole for terme of her life and in a â—aint or false action a stranger recouereth this house against her by default so that she may haue a quod ei deforcear by West 2. ca. 4. now is the reuersion of the Lessor discontinued and hee cannot haue an action of waste But if the woman marries and the recouerer lease this house to the Baron and Feme for life the wife is remitted to her first estate by the Lease the first Lessor to his reuersion and he may haue action of waste if there because Yet here if the other which recouered in the false action bring an action of waste the Baron hath no other remedie but to make default at the grand distresse and then the wife receiued may bar him by shewing the fainâ—nes or falshood of his action whereby he recouered If after discontinuance c. the Baron take backe estate to himselfe and his Wife and to a third person this is a remitter for a moity and for the other moity the Feme must sue her cui in vita after the death of her Husband If after discontinuance of the Wiues estate the Baron goe beyond the Seas and the discontinued lease the Land to the Wife for life and deliuer seisin if the Baron agree thereunto at his returne this is a remitter for the Feme shall be adiudged as an Infant and not as a Feme sole in this Case Quaere saith Littleton if the Baron at his returne disagree c. whether this oust the Feme of her remitter If the Baron discontinue the discontinuée be diseised and the disseisor lease the tenements to the Baron and feme for life this is a remitter to the Wife though the Baron were consenting to the disseisin But if the Baron and Feme were both of Conen and Consent to the disseisin the wife shall be a disseiseresse and not remitted If the discontinuée make backe estate to Baron and Feme by indenture vpon condition viz. rendring rent and for fault of payment re-entry and because the rent is arâ—eare the discontinuée doth re-enter vpon this entry the woman may haue an assise of nouell disseisin after the husbands decease for the condition by the remitter was cleane extinct in truth though during couerture the Baron was estopped c. so that he and his Wife could not haue an assise together If the Baron discontinue take backe estate to himselfe for life the remainder after his decease to his wife for her life here is no remitter till the husband be dead but the Wife suruiuing Franke Tenement is cast vpon her maine Tenant will she nill she by act of Law and shee is remittted for though shee enter not yet shee can haue none action against any body for this land but any man that hath cause may haue action of it against her because a recipe quod reddat is maintainable against tenant in ley and that is the widdow here But Tenant of Franke Tenement in fair is one which hath an actuall seisin and vpon disseisin thereof may maintaine an assise The Statute of Glocester perceiued how by common Law a man may play fast and loose with his Wiues Inheritance by feoffement to discontinue her estate and to continue it againe by resumption and so to make it Inheritance or not to his wiues at his pleasure But a feoffement doth onely barre the Wiues entry what if to his feoffement the Baron aimes warrantie what if to his warrantie assets what if he leuie a fine Glocester ca. 3. anno 6. Ed. 1. is If Tenant by the Courtesie alion c. his sonne shall not be barred in a Writt of Mortdancester by the deed of his Father from whom none heritage is descended to demand and recouer the mothers land although his Fathers Charter be with warrantie for him and his heyres But if land descend to him de part son
according to the will and died Now the question is whâ— the Issue in taile or Deuisée of the remainder should haue this Land Et per iudicium curiae Partly because his mother had waued the estate taile and although shee had not done so yet because he could not conuey his title and discent but aswell as heyre to his father as to his mother the fine with proclamations leuied onely by his father barres him So farre goeth the Booke And you may obserue that it barres the wife if she will See also 5. Eliz. 224 in Dyer the husband leuied a fine with proclamations of his owne land and after fiue yeares died his widdow continuing sole of full age whole memory out of prison within compasse of the foure Seas and doth not make any demand or claime of dower within 5. yeers after her husbands death quaere if he which pleadeth in barre of Dower ought expresly to auerre this The question was if she were barred of Dower Dyer telleth vs termino Hillarij 4. H. 8. rotulo 344. such a barre pleaded was admitted good for the ground of Dower was the Husbands seisin and the action giuen by his death So that it is within the second sauing of 4. H 7. which preserueth to all which are not parties pursuit of right growne after the fine by or vpon cause before the fine so that they take it within fiue yeares In Plowden fo 373. Iustice Dyer arguing Stowell and the Lord Zouches case affirmes the learning which I haue recited out of his owne booke But Plowden inserts his note that he takes the Law to be otherwise and that a woman is bound to no time of her Dower after such a fine for saith he the ayme of 4. H. 7. as against future droicts is wholly against such rights as either suffered wrong before the fine or by the fine and in this case of Dower the title is all after the fine and standeth well in accord with it not touched by the Statute the woman therefore may demand when she listeth So if there be a cessor begun a yeare before a fine with proclamations continued a yeare after the Lord is not restreyned at the end of 5. or 15. yeares to bring a cessauir so he saith likewise if a morgage be disseised a fine lenied by the Disseisor with Proclamations passed yet the morgager paying his mony to the Morgagee may at any time within 5. years or more after the payment re-enter When Giants fight Pigmées may not part them but howsoeuer some incertainty arise in euery corner of the Law this is here certaine that a fine leuied by the husband onely of his owne land tolleth not the wiues action of Dower if she come in time And a fine so leuied by him of the wiues Land taketh not away her seasonable entry but the gulfe that swalled vp entrie action right and all possibility of reducement by Law is a fine lawfully leuied by baron and feme where forsooth because a woman is examined by a Iustice or one that hath a Dedimus potestatem c. and acknowledgeth her frée consent and agréement what cannot men get wiues to doe if they list she shall be barred and for euer excluded of a great many acres of ground for a few kisses and a gay gowne That is a fine finem litibus imponens for till it be done and dispatcht the poore woman can haue no quiet her husband keepes such a iawling SECT XXIX Of common recoueries AS for trickes of Common recoueries I perceiue not how that can be greatly preiudiciall to women for first if a man will suffer a faigned recouery of his owne Land to defeate his wiues Dower she may falsiâ—â—e it c. sée the Eiectione firmae per Eare against Snow Plowd fo 515. the baron there being tenant in taile his wife hauing nothing in the Land he and his wife suffered a common recouery with voucher to his owne vse c. the opinion of all the Iustices was that though the woman suruiued yet the estate taile shal be barred for it was found precisely by verdict that the wife had no interest in the Inheritance The baron therefore which alone lost estato taile by the recouery might recouer alone estate taile in value But as for the wife no man can say what estate shee had nor whether she should haue a quod ei deforceat or a Writt of right if she had lost the land by default So likewise hauing lost by the recouery nothing or no man can tell what her recompence in value must be She was named said the Iustices vpon intent to barre her of Dower and such is the meaning of husbaÌ„ds which wil haue their wiues named in such recoueries but cleere the estate taile is barred if in this case the wife might sue execution in value against the vouchée by estoppell yet the issue in taile should not be concluded by the act of his Father but he might oust her of that which she had so recouered in value c. see Sir E. Cokes 10. Rep. 43. a. in Mary Portingtons ca. that the vsage hath béen alwayes vpon common recoueries against Baron and Feme to examine the wife and to grant a dedimus potestatem to take vpon her examination her Conusance as in case of a Fine But let the case be Tenant iure vxoris is agréed with Iohn a Stile to suffer a recouery of his wiues Lands to certaine vses comprised in Indentures betwixt them two a Writ of entry in the post is brought against the Baron and Feme which appeare in person or by Atturney calling to warranty the common vouchée a man well worth a couple of new rosted egges which re-enters into warrantie Then after declaration and imparlance at the day of the appearance shall the demandant recouer against Baron and Feme and they in right of the Wife shall recouer against the Vouchee of such lands as he hath or is like to haue when time hath a hairy crowne shall this recouery or possibility of vnlikely recouery in value binde the wife when the Baron is dead whether she will or no by Brooks nouell cases 23. H. 8. pl. 37. it séemes that such a recouery did then bind the wife to but without examination mee thinks it should not bind the wife The Statute of 32. is that none Act of the Barons shall make discontinuance c. except onely a Fine by Baron and Feme Ergo such a recouery notwithstanding though it be executed the wife may enter See 23. Eliz. cap. 3. and there is a sauing to euery Feme couert or her heyres her Writt of error to be sued within 7. yeares after she become sole for reuersing of Fines and recoueries past if they must be reuersed by error it séemes without error they were very dangerous For a rule to conclude withall take this That wheresoeuer the Baron doth any thing out of Court which thing he and his Wife were compellable to doe it
de peccatis for the heire could not be bastardized when the parents both or one of them were dead and therefore not citable to appeare c. And it is holden strongly by Thorpe 39. Edw. 3. and in the Parliament 24. H. 8. see Brooke titulo Bastardie 23. 37. 44. 47. And a diuorce cannot bee had but of a marriage consisting and not yet by death dissolued for there cannot wel be a reuersing of any diuorce when the parties diuorced be dead as Brooke vnderstandeth Connings by 12. H. 7. 22. for saith he it was adiudged in Coâ—bers case where the baron and feme had issue and afterward were diuorced the baron taking another wife by whom he had issue and died that when the first issue sued in spirituall Court to reuerse the diuorce and bastardize the second issue after his fathers death a prohibition lay But it was said that the title and discent were comprised in the libell or else the prohibition could not haue beene granted Thus saith Brooke titulo Deraignment But titulo Bastardy 47. hee setteth downe the same case that a man may be bastardized after the espousals wherein he was begotten and borne or by death determined Sée Sir Edw Cokes 7. report Kennes case that some diuorces dissolue the matrimony scilicet à vinculo matrimonei and bastardize the issue and â—arâ—â— the woman of her Dower and some à mensa Thoro which dissolueth not the marriage nor barre the wife of her Dower nor bastardize the issue And therefore if any action be brought and diuorce pleaded the cause of diuorce ought to bée shewed And there it is said that a diuorce may be repealed in the spirituall Court after the death of the parties but a suit after the death of the parties to diuorce them and to bastardize their issue may not be for that the triall of bastardy or not belongeth to the temporall Court originally if sentence doe not hinder And sée Sir Edw. Cokes Institut ca. Dower f. 33. ca. Estates upon condition fol. 181. the deriuation of the word diuorce à diuertendo or dinoâ—â—â—ndo quia vir diuertitur ab vxore and sée there the seuerall causes of diuorces and how for any of them respectiuely doe extend in power and effect and in Littletons tune many diuorces were of force which the Statute of 32. H. 8 cap. 8. take away and there sée that a man may marry the sister of his first wife since that Statute By Na. br â—â—l 44. in the writ of prohibition and Na. br 1â—9 and Dyer 28. H. â— 1â— agrée if the woman shall haue the goods not spent and that detinue lyes for them If goods be giuen in marriage with a woman shée shall recouer them in the spirituall Court after diuorce and there lyeth no prohibition â—6 Hen. 8. fol. 7. is that if the husband before diuorce had haue giuen or sold without collusion such goods as were the wiues before marriage she is without remedy for them being diuorced But if he aliened them by collusion and bring a writ of detinue for so much of them as the property may bée decerned of and for the residue money and such like shee shall sue in spirituall Court If a man which is bound to a woman by obligation marry her and they be diuorced she hath her action againe which was suspended ibid by Fitzh and Norwich But see the booke of 11. Hen. 7. 4. p Cur. contrary where the diuorce is causa praecontract ' and it is so cited Dyer 4. Mar. fol. 140. If the woman diuorced were an Inheritrix c. and the husband before diuorcement hath done waste felled her woods receiued her rents granted her wards presented to her Churches giuen away her goods none of these things past in possession executed can be reuersed or recalled But if the Inheritance it selfe were discontinued or charged or a release made of it or hir villaines manuâ—â—itted shée shall haue remedy for these things by common Law If baron and feme Iointpurchasers de disseised and the baron release c. the wife shall haue a moiety if they bee diuorced although before there were no moieties betwixt them for the diuorce conuert that into moieties which sée Brooke title Deraignement and diuorce 32. H. 8. In Sir Edward Cokes 5. Rep. in Olands case it was holden that if a Lease bée made to baron and feme during the Couerture and the baron soweth the land and after there is a diuorce causa praecontract the baron shall haâ—e the Corne and not the lessor for although the baron prefecuted the suit yet the sentence which dissolues the marriage is the iudgment-in Law and Iudicium redditur in â—â—ultum And as by diuorce that which was intire may bée conuerted or diuided into moeties so by it inheritance may bee made francktenement And if baron and feme donées in taile haue issue and be diuorced now they haue but francktenement and the issue shall not inherit for it is not like here as where lands are giuen to two men or â—o a man and his mother or to a man and his daughter and to the heires of their bodies where seuerall heires shall seuerally inherit for it was neuer lawfull for them to marry 7. Hen. 4. 16. Brooâ— 9. in titulo Taile sée also 13. Edw. 3. titulo Deraignment If land be giuen to baron and feme in taile which be diuorced causa praecontract c. they shall hold ioyntly for terme of their liues and the land goe to the Suruiuor But by the Reporter if the gift were in franckmarriage the party which did not cause the diuorce shall haue all and agreeing to that difference is Perk. Chap. feoffement Sect. 238. and also agréeing is Sir Edw. Cokes 9. Rep. in Beamonts case 12. Assisar p. 22. Dorees in franckmarriage were diuorced at the womans suit the baron continued possession till he died and afterward the womandied the possession was adiudged to haue remained alwayes to the woman because shee neuer made any debate for it so that the man neuer had it by disseisin and agréeing to that is Plowden Wymbysses case fol. 58. Dyet 3. M. fol. 126. 19. Assisar plac 2. The Doâ—â—e in franckmarriage wedded infra annus nubiâ—es sued diuorce by the barons motiue and the wiues agréement at their full age and the woman recouered all the land against her quondam husband by assise And Titulo Assise in Fitzh pla 413. 44â— is this case A man of certaine tenements infeoffed his feoffor his wife in tayle the remainder to the right heires of the baron they were diuorced at the suit of her husband which kept the woman out of the lands and she brought an Assise whereby she recouered a moyty of the tenemen's by iudgement presently And propter difficultatem it was adiâ—rned for the other mâ—ity to the Commonpleas where shee had â—udgement of that also because diuorce was at the husbands sâ—â—t As a woman may haue an Assise against her
companion diuorced for lands wherein shee claimeth inheritance or estate for life so if he haue aliened in sée â—ée tayle â—r for life the lands which he had in fée simple â—ée â—a le or for terme of life to a stranger she may as soone as she iâ— diuorced bring a Writ called a â—â—i ante diuorâ—â—â—m against the Alâ—enee And this Writ may be in the per cuâ— post If shee dye before action commenced or before recouery her heire may haue a Writ called a surâ—uranâ—e diuortium and the Aunt and Néece may joyne in iâ— But for her estate tayle her heire shal be put to a formidone But note Reader that it séemeth both the woman and her heire may enter after the Statute of 32. Hen. 8. and neuer bring Cui in vita nor sur cuim viâ—a c. for the opinion in Grenlies Case Sir Edw. Cokes 8. Rep. fol. 73. is that if the baron alien and after the wife is diuorced causa praecontract which dissolue the marriage à vinculoma rimonii the wife during the life of the husband or after his death may enter for the words of the Aâ—tare nâ— fine feâ—ffeinent c. during the Couerture betwéene them and although the Statutâ— saith But that the same wife c. that is to be intended of her which was his wife at the time of the alienation c. Note that whereas West 2. cap. â— giueth a cui in vita vpon recouery by default against the husband c. shée shall haue a cuâ—â—hâ—e diuortium vpon the like â—eâ—ouery by equity extension of the Statute and the processe is summons grand cape peâ—iâ— cape I wil here set the bounds and limits of my third booke not because this sequell and consequence â—iuorte I meane whereby the issue had is basâ—â—â—â—â—zed and the wâ—â—an restored to her goods and lands conforteth with the marriage so perfectly begun as I meant it for this is not the vntying of true wedlocke but rather a dissipation of marriage tainted at the beginning and in Christian Court adiudged to a â—â—llity as if it had neuer béene the Baron and Fâ—me that I hâ—â—â— spoken of all this while if they were not married in their infant loue and very first flowing age yet were they not â—rostbitten or so blasted either of them when they were young but they might well haue frâ—â—tified neither was either of them a common Law breaker intangled with promise or praecontract and as for consanguinity or affinity there was no more betwixt them than is betweene Iack Flecher and his bolt You may imagine some matter by onely imagination perhaps more visible than it could haue béene being true whereupon a publike sentence of seperation being published a Thoro mensa but then there was a monition of chast liuing and prohibition to both the parties that neither of them should flâ—â— to other marriage so long as both of them were liuing And the Author of seperation that is the party suing diuorce did put in sufficient caution to doe nothing contrary to this prohibition So that the holy liues of matrimony were not cleane broken and pulled asunder but within a yéere or two they were reconciled voluntarily of their â—wne accord And soone after so I will make it hauing the Distaffe Spindle and Shéeres all in mine owne hand the husbands life was suddenly cut off or else the wiâ—e had béene sole executrix THE WOMANS LAWYER The fourth BOOKE PAle death equo pulsans pede pauperum tabernas regnumque â—urres Death I say to whom the Poet did attribute so much power in this his verse Omnia sub leges mors vocat aâ—â—a suas hath called the husband hence left the house full of mourning and specially the wife cannot chuse but sorrow and lament If my â—oure legged beast should fall into halues the one halfe starke dead without motion or spirit and the other halfe standing still vpright senting séeing féeling gazing must it not thinke you be wonderfully astonished If an Elephant in whom as some dâ—e write is vnderstanding of his countries spéech a wonderfull memorie and recenting of things past a great delight in loue and glorie besides prudence equitie and religion should haue his head cut off his body remaining still for all that vegetable and sensitiue would he not trow yée be excéeding sorrowfull for the forgoing such an ornament I dare be bold to giue a woman as much as Pliny gaue the Elephant She hath vnderstanding and spéech firme memorie loue naturall and kindnesse desire of glorie and reputation with the accomplishment of many meritorions vertues But alas when she hath lost her husband her head is cut off her intellectuall part 〈…〉 gone the verie faculties of her soule are I will not s 〈…〉 cleane taken away but they are all be 〈…〉 ned di 〈…〉 ed and dazled so that she cannot thinke or remember when to take rest or refâ—ction for her weake body And though her spirits and naturall moysture being inwardly exhausted with sorrow and extreme griefe she be called and inforced to seeke restauration by such aliments as life is prolonged by yet is she nothing desirous of life hauing lost a moytie of herselfe yea the principall maytie now best prised and estéemed but neuer best loued Time must play the Physitian and I will helpe him a little Why mourne you so you that be widowes Consider how long you haue beene in subiection vnder the predeminance of parents of your husbands now you be frée in libertie frée propriiâ—uris at yoâ—r owne Law you may see num cap. â—0 That maidens and wiues vowes made vpon their soules to the Lord himselfe of heauen and earth were all disauowable and infringible by their parents or husbands vnlesse they ratified and allowed them either expresse or by silence at the day when such vowes came first to their notice and knowledge But the vow of a widow or of a woman diuorced no man had power to disallow of for her estate was free from controlment Must a woman néeds wéepe thus for the losse of her Buckler Shield and defence in the person of him with whom she held daily commutation of all offices proceeding from loue and superlatiue kindnesse Let her learne to cast her whole loue and deuotion on him that is better able to loue and defend her than all the men in the world Him I meane that hath forbiddâ—n to afflict widdowes or orphans with promise to heare their cries and vindicate their wrongs by killing them by the sword and making the wiues widdowes and their children fatherlesse of them which breake this Commandement Exod. cap. 22. Then because a sober carefulnesse and moderate sedulitie in businesse of profit or disprofit doth mitigate greatly the sorrowing for such actions as opinion or fancie makes thus grieuous let her looke to her affaires as cause and need requireth SECT I. Of Executorship and Administration SHe is not made an Executor because the office is troublesome let her take
seisi que Dower la puit It was giuen in eâ—idence to the Inquest on the Demandants â—ehalâ—e that a feosment was made to the â—aron in fee yâ— déed of feofment was shewed to the Court it was answered that long time before the feofment the Earon was seised to him and his first wife in speciall taile and how afterward hee discontinâ—ed that and takes backe an estate in fée simple to himselfe by â—he 〈◊〉 aforesaid of which estate hee died seised so that the heire in speciall taile was remitted and the second wife being now Demandant not dowable Mountague would haue demurred and disâ—â—ssed the â—ury but the Iustices were cleare in opinion that the â—ury ought to 〈◊〉 for the Demandant because their charge was only vpon the issue viz. whether the Baron had euer â—eiâ—in of such â—state that thâ— wife might haue dower And they were not to â—â—gâ—â—d the Remitter but onely to looke to the generall issue giuen them in charge But if the speâ—iâ—ll matter had 〈◊〉 pleaded the Demandant must nâ—â—dâ— haue â—éene â—arred for if he which makes a feoffement with condition to râ—â—nter for the condition broken and then in a Writ of dâ—â—er brought by thâ—feâ—â—â—â—â—s wiâ—â— hee will plead ne vnques â—â—iâ—â—â— quâ— dower it shall be found against him Knighâ—ly therefore would haue the spâ—â—iall matter found by the Iury and a verdict at large but the Iustâ—ces would not consent Yet â—empore Edw. 1. There was a case that the Baron discontinued his wiâ—es 〈◊〉 and died his wife recouered against the discontinue and he died the discontinues wife brought a Writ of Dower against the woman Recouâ—rer and she pleaded the generall issue ne vnques â—eisi que dower la puit All this matter was found â—y â—peâ—iall verâ—â—â—â— and â—udgement giâ—â—n vpon the issue 〈◊〉 foolishly â—â—ynâ—d that the Demandant should recoâ—er Dower which shee should neuer haue done had the 〈◊〉 â—éene good Sâ—â— and marke well this case and 21. Edw. â— fol. 60. and the â—â—se 28 Aâ—s pl. 4. SECT XIV Recouerie against the husband 14. H. 4. 33. IN action of Dower the Tenant pleaded a recouery in Assise against the husband iudgement si action c. the Demandant said her husband was seised c. and married her and infeofed the Tenant and afterward disseised him against whom the Tenant recouered in Assise the Baron died she prayed to bee indowed The Tenant said he was seised till by the Baron disseised against whom hee recouered by Assise sans câ—o that the Baron was seised before the disseisin que dower la puit the Demandant said seised before the disseisen que dower la puit Likewise 47. Edw. 3. 13. the Baron makes a feofment and ousteth the feofée the feofée recouers in assize the baron dieth now in a writ of Dower if the feoffée plead recouery in assize the widdow cannot â—alâ—â—â—â—â— the recouery but she may plead that long time before it c. her husband was seised que dower la puit and the Defendant contra 12. H. 4. 20. 21. The Tenant said he brought a Formedone against the husband which Writ hanging he shewed to the husband a dâ—ed of intailment whereupon presently he rendred the land in pâ—is to the Tenant which entred and now auâ—rreth the entailâ— Iudgement si action Thiâ—â— said the Statute was si vir reddat aduersario suo de plenâ— Iusticiarii adiudicent mulieri dotem but he and the whole Court agréed that rendring in pais doth not defeat meâ—â—â— estates of them which were neither parties nor priuy to the rendring and therefore they awarded the woâ—â—â— should recouer Dower Hanke said fée simple might not be rendered without liuery and seisin and where there is Lord and Tenant the Tenant may not surrender to his Lord Of falsifying of recoueries I haue spoken already Note If land bee recouered in value against the husband because of warranty made by his Ancestors the widdow shall haue Dower of those lands notwithstanding for if the Baron had aliâ—ned the land before voucher it should not haue beene rendred in value Consequently therefore the womans title is more ancient than the vouchers which beginneth but the day of vouching By Fâ—â—zh in his Abridgemâ—nt Dower 129. And his â—atâ— â—re 150. d. SECT XV. Ne vnques accouple c. SOmetime the vnlawfulnesse of marriage is pleaded in barre of Dower As 39. Edw. 3. 15. the Tenant pleaded the Demandant was first married to A and hée liuing she married B. of whoâ—e dowâ—ent she claimeth A. being still aliue this was holdâ—n no good pleading and therefore he added â—ssâ—â—t nient accouple in loyall matrimony The entry was only ne vnques accouple c. and a Writ awarded to the Bishop to certifie but for all such pleas deduced at length by old Writers as stand vpon the inualidity of marriage I will refâ—rre widdowes to that which is gone before of marriage and diuorce The pleas also of vnder 9. yéeres of age of attainder of non tenure ioyntenure or seuerall tenure I will not tarry on them 39. Ed. 1. fol. 4. A woman brought Dower against twâ— by seuerall precipes and one of them prayed â—yd of the other as parceners so that it appeareth that seuerall tenaâ—cie is a good plea in action of Dower Contra in Assise Brooke 99. SECT XVI Plea that tâ—e Baron is yeâ— aliue THe Writ de dote vnde nihil habet affords another eâ—ception against Dower because it saith quondâ—â— viri sui for though the fundamentall cause of dower be matrimony quoad le title yet as to the possession a woman cannot claime it till matrimony be dissolued therefore by Fitzherbert if the Baron take habit of religion the wife shall not be endowed till the husband be dead re vera yet by Britton it is issuable whether the Baron be entred into religion or no and that issue shall be tried by the Ordinary and iudged according to his certificat â—ut when the deforcer will barre Dower by â—lâ—a that the husband is yet aliue if the widdow reply he is dead the proofe regularly belongs to the Plaintiffe But if the Defendant say the husband is in plein vy ceo est prist auerrer he must proue his aâ—erâ—ent and sometime â—oth parties shall be heard to make their prâ—â—e which if it â—e aâ—â—â—e strong on either â—â—â—e the Deâ—andant may haue iâ—dgâ—ment oâ—â—eisiâ— finding surety such as the Court shall â—ward to resâ—ort if hâ—r husband hereafter â—ee brought into Court the â—aâ—d with the issues and proâ—â—â—s therâ—â—â— iâ— tâ—e interim recoâ—â—â—d But if the matter be doubtfull and the womaâ—â—aâ—â—ot â—â—â—â—e such surety the seisen shall râ—â—â—â—â—e where iâ— is and tâ—â— plea in suspence to be renewed pâ—â—summons as occasion shall serue Britton fo 25. SECT XVII Iudgement IVdgement in a Writ of Dower is framed according to the substance of the title and circumstance of the pleading It is touched aboue when or how a woman shall recouer dammages by sâ—râ—ise that the husband dyed
by such meanes as she may from him which recouered it 50. Ed. 3. fol. 7. loane late wife of L. W. brought her Writ of dower against T. H. demanding the third part of a Mannor It was pleaded Qâ—â—â—l ne poâ—â—nâ—â—s demander for â—â—no 12. huius â—â—gis a sine was leuied of the said Mannor betwixt I. and E. and the tenant sued Scâ—â—â— facias out of the fine against the now demandant which came and pleaded to parcell that shee held it in Dower of indowment from her husband bâ— assignment of W. C. â—â—â—â—â—â—dâ— dâ— lâ—â— c. for another part she claimed for terme of â—er life by lease from W. C of whom likewise shee prayed aid and had it granted C came in by procâ—sse and ioyning in aid pleaded a Feoffment made to himselfe in fée by L. the baron sonne and heire to I. W. whereunto the tenant pleaded Râ—â—ns passâ— per lâ— fait and the processe câ—ntinued against the Iury till a day certaine at which day C. made default and this demandant maintained the issâ—â— which was found against the now demandant viz. that Rieâ—s passa per le fait and execution awarded for the plaintiffe in the Scire fac Iudgemeâ—t si â—â—countâ—r ceâ—â— recoueâ—â—e a quel el fuit party el poâ—t nens demander and the demandant demurred Her pretence was that by the recoâ—erie she was remitted to her action paramont because the recouerie affirmes her husbands possession But the better opinion was that whâ—n her Dower once lawfully assâ—gned was recouered against her she had here no remedy but by exrour or attaint for a writ of right shee might not haue But if in the Scirâ— faciâ—s shée had alleaged to that part which she claimed in Dower that she hâ—ld it in Dower of the Assignment of W. C. Prist daâ—tenderâ— a qâ—e le coâ—rt voâ—â—â—â— gâ—rder she had saued her estate by protestation and the reuersion might hâ—ue héene iudged to him which had right whereas pleading as she did some thought shâ—â— had forfeited hâ—â— Dower but that was denyed by Tresiliâ—n Belkâ—ap who said that when one is â—â— per tort as iâ— the Disseâ—sée or his heirs â—nter vpon him which is in by discenâ— or if a widdow enter vpon a discontinâ—â—â— of her husband and then vpon issue taken sur seisin or disseisiâ— it is found for the plaintiffe the tenant is remitted to his Action paramoâ—â— Briefe â— â—â—triâ— in the one case and in the other a Cuâ— in vâ—â—a But if a recouerie bée against a Tenant that hath rightfull possession the remâ—die must be by errours attaint or writ of right And therefore in the last cases if the tenants had pleadedâ— release or other matter which might eâ—tinct the right if it had passed againâ—â— them their reâ—edy must haue béene by writ of right pâ—â— Clopâ—on quâ—â—â—e Wich said if a recouerie be had against the Baron vpon a delatory plea as noâ—tâ—nure misâ—osmâ—â— of the town or such like a woman may falsifie such a recouerie in a writ of Dower It seemes to be otherwise saith Brooke if a recouerie be had in that mannâ—r agaâ—â—â—â— the woman her selfe who is endowed SECT XXI Admeasurement of Dower ADmeasurement is in a kinde a recouerie against a woman not of her whole Dower but of part of it for if the heire whilest hée is vnder age or the Gardian whilest the heire is in ward doe indow a widdow of more land than â—he ought to hold in Dower the heire when hee commeth to full age may haue a writ Dâ—â—â—mâ—nsurâ—tione doâ—is against her and the Surpluâ— or excesse shall be restored to the heire but there is in this case onely an amputation without any nouell assignment If the heire being vnder age assigne Dower too largely before his Lord and Gardian enter into the land or seise his Ward the Gardian may haue a writ of Admeasurement by West 2. cap. 7. And if the Gardian pursue the writ faintly against the wâ—man indowed the heire may haue a writ of Admeasurement bâ— the same Statute Custodi de caeâ—â—â—o concedâ—tâ—â— breue de admensuratione dotis nec per sectâ—â— custodis si fictae per collusionem sequâ—tur vâ—â—sus mulâ—â—â—em tenentem in dotâ—m prâ—â—ludatâ—â— haeâ—â—â— cum ad aeâ—â—â—â—m pâ—â—uâ—neriâ—â—d 〈◊〉 admensuâ—â—â—dom c. If the plea be in the Coâ—â—tie the Plaintiffe may remoue it without cause and the Defendant may remoue it with â—â—â—â—e â—hewed in the writ as in a Repleuin And when the writ is râ—â—â—â—ed by Poâ—â— into the Common place the proâ—â—â—â—e iâ— summons attachment and distrâ—sse c. according to the Statute Then the Sheriffe cannot make admeasurement but he shall extend the land particularly and returning the Extent â—â—â—o the Common place the Iustices shall admeasure Dower Note if the Gardian assigne Dower excessiue and then grant ouer his estate his assigne shall neuer haue a writ of admeasurement Likewise if the heire vnder age assigne Dower which his Gardian may admeasure when he hath entred c. but the Action is not grantable for the Gardian assigned or grantee shall not admeasure But an heire may haue the admeasuring of Dower assigned in his Ancestors tune And if a woman be indowed in Chancery per le Roy c. the heire may haue a Writ of Admeasurement if a woman after shee is indâ—wed make any improuement of the â—and so that it becomes of farre gâ—eater value than it was of at the time of the Assignement there lieth no admeasuring vpon this improuement And Bracton saith Noâ— erit estimâ—nda melioraâ—â—o muâ—â—â—ris quaÌ„ fecit in dore suapost assignationem tempus eâ—im assignationis dotis erit spectandum But if this improuement bee by casualty iâ— some myne of câ—ale or lead which had béene formerly found and occupied in the husbands time the matter is somewhat doubtfull But sée Sir Edward Cokes 5. Rep. fol. 12. a. in Saunders cap. qÌ„ sc That if the myne appeared at the time of the ad assâ—gnemâ—nt admeasurement lieth As for new mynes a widdow may not make or dig any that is waste thus farre Fitzherbert Briton cap. 113. and Bracton lib. 4. cap. 17. shew with what circumstance admeasurement shal be made by the vicount surserement de probes homes praesentes per boâ—e legale extent They say that the amputation is not onely of excesse and superâ—â—uity by this Writ of admeasurement but also of that which â—ught not to bee assigned admensuratio debet esse â—am de indebito quam de superflâ—o And therefore if a Castell or head of a Barrony were assigned in Dower by the Gardâ—an without any necessity the heire may haue this Writ for enter hee cannot say they They shew also what plea a woman may haue against admeasurement viz. that the Plaintiffe himselfe made the assignation or confirmed or allowed it being of â—ull age c. SECT XXII The charge of Dower ADmitting the Dower assigned to be both for quality and quantity iust there is yet to
vita If the assignment of this Dower be sans fait it is no barre or conÌ„clusiou but a Remitter otherwise if it be by Deed or Record If a man giue lands to a woman to marrie with him and after espousals he alieneth the same land and dieth she may haue a Cui in vita And note that the gift or demise alleaged in a Cui in vita is trauersable Thus much Fitzherbert 48. Ed. 3. 8. In a Cui in vita claiming to hold sibi 〈…〉 de corpore without shewing of whose donation the 〈◊〉 pleaded to the Writ and it was abated But in a Quod â—â— de 〈…〉 the Demandant needs not shew by whoâ—e gift she claimeth 49. Ed. 3. fol. â—9 The Writ was Qua 〈…〉 sib 〈…〉 W. N. The tenant said she neuer had any â—â—ing of the gift of W. N. per Belknap the answer was not good for were the gift from one or other if the husband aliened she might haue the action and the Writ may be Quâ—m elamaâ— vt ius haereâ—â—aâ—em though she purchased the lands adiorâ—atâ—r The latter point is affirmed 7. H. 4. fol 5 per Littleton accorded but for the first vide 50. Ed. â— fol. 6. in a Cui in viâ—a quam clâ—mat â—enerâ—â—x dimissione per termino viâ—ae â— N. it was admitted vpon argument a good answer per â— uâ—iam for where one maketh title it â—ught to be true And there finde sur release made to Baron and Fâ—me and to the herres of the baron by I. N. was holden no demise for it must be supposed the baron and feme were in possession tempore finis And Persy said it had béene adiudged if a woman claimed in her Writ ad termiâ—um vitae if it were found she had estate taile the Writ should abate So likewise if a woman claime by lease for terme of life per A. and it was sound that A. made no lease shée had now no estate and consequently hath none action Likewise said Kirton if in Assâ—ze of nouell disseism the plaintiffe make his title by fâ—offâ—â—nt of A. and is found that A. infâ—offed him not but B. did hée shall bee barred in the Assize for where a man maketh his title vpon a point which is boâ—nd against him it cannot be intenâ—â—â— that he hath a better title and there he shall not haue aduantage of any other 39. H. 6. fol. 38. In a Cui in vita quod clamat esse ius suâ—â—â— ex dâ—no I. which infeoffed tâ—â— Demandant and her fate husband with declaration that they were seised as of Franktenement and lâ—e les explees as teâ—ants for life c. Priâ—oâ— said That in cases speciall this Writ ought to make mention of whose gift lease or demise the Demandant claimeth as Ad â—erminum vitae ex dono I. S. or Sibi haeredibus ex dono I. S. But in demand of Fée â—â—â—nple it is enough to say Qâ—â—m â—lâ—mâ—t vt â—us haeâ—â—ditatem without shewing by whose gift or feâ—ffment 7. H. 7. fol. 2. If this Writ â—e againsâ—â—aron and feme for lands holden in the wiues right it must bee in quod vxor ingressa est per I. N. non quod vir vâ—or ingressi sunt per I. N. Sâ—CT XXIV west 2. Case 3. 2. Eâ— 4. foâ— 13. IF a man be seisod in right of his wife and recouerie is had against them by default the woman after his death may haue a Cui in vita but not a Quod ei deforceat per Moyle Iustice It séemes that at Common Law this writ of Cui in vita was onely granted vpon actuall discontinuance by the baron for West 2. casâ—â—â— iâ— Qâ—ando vir amiserit per defalcum tenementum quod â—uit in vxoris suae duruâ—â— fuit quod vxor post mortem viri non habuâ—rit aliud recupâ—rare quam per breue de recto propter quod Dâ—minus Rex â—â—atuit vt mulier post morâ—â—in â—iri haâ—eat râ—â—â—pâ—raâ—â— pâ—n breâ—ede ingressu cui â—â—â—a in vita c. But in this case if the tenâ—â—â— can proue that hee had right on his side when hee recouered Muâ—er â—iâ—il capit per â—reueâ— Nâ—tâ— also by the way that this heat wâ—â—s Si vir se absentaveriâ— â—â—luerit â—â—â— vxoris 〈◊〉 defendâ—re vâ—d si in vlta vxoris reddâ—â—◠〈◊〉 â—â— vâ—â—â— anâ—◠〈◊〉 〈◊〉 paraâ—a 〈◊〉 〈◊〉 〈◊〉 deâ—â—â—dete 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to further for recoueries If Iudgement of â—or eiudger be giuen against Baron and Fâ—uie this is not void as soone as the Baâ—on is dead but vâ—ydable by error for the woman cannot haue a Cui in vita 〈◊〉 fol. 2â—â— A 〈◊〉 â—y 〈◊〉 â—◠〈◊〉 alienation â— and therefore vpon suâ—â— a â—â—coverie as soone â—â— the husband is dead the woman may haue a Câ—â—â—â—â—â—â— by the Common Law 4 Ed. 2. â—rook◠〈◊〉 vitâ— 18. If a râ—coâ—eriâ— be â—â—â— by 〈◊〉 Wâ—â—â— of waâ—â—e thâ— wâ—â—e cannot â—â—uâ—â—◠〈◊〉 〈◊〉 either because the recouerie is not méerely by default or else because the 〈◊〉 of waste hath no demand of land quaere if shée shall haue a Quod eâ— deâ—oâ—ceat 9. Ed. 4. 16. If Baron and Feme be impleaded by one which hath good title and the Baron confesse the action the woman hath no remedie Yet the Statute is that vpon rendring by the Baron the wife may be receiued â—â— But if Baron and Feme be receiued vpon default of tenant for life where the reuersiâ—n is in the wife the Baron cannot confesse the action for hée must be 〈◊〉 Ad ius 〈◊〉 defâ—â—â—endum 7. Ed. 4. 17. SECT XXV The Sur â—ui in vita IF she which hath cause to bring a Cui in vita of Fée simple lands die before she hath sued c. her heire shall haue â— Sur â—â—â— in vita But if the wiues lands which the husband aliened were in state of Fee taile and the wife neâ—â—◠〈◊〉 her heire must sue a 〈◊〉 in disâ—onder and not a 〈◊〉 â—â—â—â—â—â— for though both these 〈◊〉 hée the children of the ancient Common Law and were before West 2. Yea and this latter Writ was maintainable for lands giuen to the mother in francke marriage or to the heires of her body which at the first was Féâ—â—â—â—pte yet when 〈◊〉 made 〈◊〉 â— taile it did also expressely set downe â— Writ whereby the heire should recouer such estates The Sur câ—â—â—n vita for it is no â—ore but Praecipe quod 〈◊〉 c. quod 〈◊〉 esse iâ—â— haeâ—â— ditateÌ„ suâ—â— in quod non habuit ingressum nisi per Eâ— and so in the Cui oâ— in the 〈◊〉 And the Aâ—â—t and Néeâ—◠〈◊〉 〈◊〉 in it vpon alienatioâ— made by the husband of their common Ancestor or vpon recouerie had against â—â—â— and her If a second husband alienhis wiues Fée siâ—ple landâ— and she dieth the issue by her first husband 〈◊〉 â—uâ—â— Sur cui in 〈◊〉 〈◊〉 these â—â—nd husband still liuing if hée were neuer intituled to be Tâ—nant by the Curtâ—sie But
by default that now the Tenant shall not haue a Quod ei deforceat but Iudgement to recouer in value against the Vouchée If Baron and Feme tâ—nants for life in the wiues right lose by default and the Baron dye a Quod ei deforceat lieth not but a Cui in vita as vpon a Demise made by the baron In a Quod ei deforceat the Demandant must count that he was seised c. in his Demesne as of Francktenement or in his Demesne as of Fée tailâ— laying the Esplees in himselfe but he néeds not shew of whose gift lease or demise though he claime for life or she claimes in Dower or sibi haeredibus de corpore And the Defendant must deny the Demandants right c. and shew how he recouered in a Formedon or in some other Action concluding that he is ready to maintaine his right aâ—d title aforesaid c. vnde petit iudiciâ—m Then the Demandant must either trauerse it or shew matter in barre but he shall not make defence and then plead inbarre as he shall doe in a Formedon Fiâ—zh 10. Ed. 4. fol. 2. Dictum fâ—â—t and the tenant may plead a release of all the Demandants right in a Quod ei deforceat But the old Nat. Breu. obserueth that if the Demandant vouchâ—one that entreth into Warrantie hee which recouered shall not plead the Vouchées release made after recouerie In a Quod ei deforceat the Tenant may vouch and so may the Demandant 50. Ed. 3. 25. But if the Demandant vouch his Vouchée cannot vouch ouer 10. H. 7. 39. The old Nâ—t Bâ—eu acknowledgeth that in a Scire fâ—cias there lies no oucher yet if a man recouer by default in a â—câ—re facias out of a sine against Tenant in taile which bringeth a Qâ—od ei deâ—orceat if the Recouerer maintaine the title of his first Writ the Tenant in taile may vouch The Law séemes to be otherwise sée Plow 11â— 206. 14. H. 7. 18. The questions arose vpon the Demandants vouching 10. H. 7. fol. 10. The first whether he must shew cause of the Warrantie or no. The second whether hée may vouch one that hath nothing in the reuersion The third whether he shall recouer in value Frowicke answered The Voucher is by Statute and hee néeds not shew any cause for the Statute of W. 2. cap. 3. saith Concedatur ei quod vocet ad warrant ac si esset tenens in priori breue in which case he should shew no Déed Second hée shall not vouch any stranger for the Statute is Ideo concedatur eis quod vocenâ—ur ad warrantum quia non possunt sine his ad quos spectat reuersio respondere Third the Statute giuing voucher meanes that he shall haue the effect of his vouching id est to recouer in value And if a Statute giue action for a thing whereof the action did not lye at Common Law the partie shall haue iudgement processe and execution incident or belonging to that action and a reuersion is a cause of voucher and of recouerie in value Frowicke said fuâ—ther That though he which leased cannot disclaime yet his Grantee may and award his charge and if voucher here should be no more but an aid prayer the Grantée might not disclaime for if Tenant for life pray in aid of him in reuersion hée shall not disclaime And Tenant by the courtesie cannot vouch for he shall neuer recouer in value SECT XXVII Admonition for women to take heed of him in the reuersion THe rest of this fourth booke shall consist most in warnings to widdowes and women tenants in â—articular estates that they doe nothing preiudiciall to their warrant It is true for the most part Ex quibus rebus maxima vtilitas ex iiâ—dem summa pernicies Water washeth and drowneth fire reasteth and it burneth the Sunne ripeneth and it scortcheth and seareth They that can help can hurt The reuersioner of a widdowes estate of whom she shall haue aid to defend her shall take her estate from her in many cases if she offend him in his reuersion SECT XXVIII Of Waste EVen by the antique Law of England if Bracton say truth fol. 316. The Gardian in Chiualrie committing waste did lose the wardship was auerred Et damna restaurabat But if Tenant in Dower committed waste there was no forfeiture of her land or parcell of it but he in reuersion might stop and let her from doing waste and such hinderance was no Disseisen Also he might haue if néed required a Non permittas to the Sheriffe commanding him not to suffer waste vendiction or exile in lands tenements houses woods garden c. and he might haue attachment against the widdowes or a Pone per vadios saluos plegios to make her come c. shew why shée committed waste If the waste in a wood were found by Inquisition the paine was no more but that from thenceforth shée should take no manner of Estouers either to build burne or inclose but it must be per visum forestariorâ—m haeredis And Bracton sets forth the Wâ—â—â— for placing and appointing of the Fâ—râ—eâ—cor or by the heire ad praedict ' 〈…〉 custodiendum But now by the Stat. of Gloc. cap. 5. A writ of waste lyeth against Tenant in the courtesie or for life or for yeares or in Dower and the partie attainted in waste shall lose the thing wasted and make grée to trebble value of so much as the value shall be taxed at This Statute made 6. Ed. 1. ordaineth also that the Gardian which loseth his wardship for committing waste shall render dammages if losse of wardship be not equiualent to the harme Peraduenture Bracton wrote after the Statute for in one part of his Booke Ed. 1. is named â— 3. But it is said Sir Edw. Câ—kes 3. Rep. fol. 40. a. that Glanuile wrote temps H. a. Bracton temps H. 3. Britton temps Ed. 1. and in Sir Edw. Cokes 8. Rep. in Iohn Webs case fol. 46. b. he saith that Bracton wrote in fine del Roy H. 3. and Fleta wrote in temps E. 1. But note a woman shall not answer for waste done before her time yea if land bée leased to Baron and Feme for terme of their liues and they commit waste if the Baron die now the widdow is not punishable for this waste For that which the Baron did during couerture was only his act and offence dead and determined with his person Concessum per curiam 2. H. 4. and Br. 59. in his Writ of waste Yet if the lease had beene made to a Feme sole who takes a husband which commits waste otherwise it is by 9. H. 6. 52. women need no further warning to take héed of waste they are of themselues so hauing SECT XXIX The Writ of Entrie in casu prouiso BVtlet eâ—â—â—rie good woman take héed how she maketh any gift or alienation of such lands as she holdeth in Dower For Glocest cap. 3. is if a woman sell or
else this plea is to no purpose Therefore if two men be indited of felony as principals and afterward by another Inditement it is â—ound that one of them did the felonie and the other did feloniously receiue him after the felony committed hée that is secondarily indicted and arraigned as accesâ—arâ—e shall not be discharged by pleading arraignment and acquitall vpon the first Inditement for the offence is not supposed the same and one but committed at diuers dayes 27. Ass p. 10. And this for accessaries after the felony But when felony iâ— done by force of commanding and procurement of another he that shall be arraigned as accessarie may plead that he was acquit c. though it were as principall and the offences were at diuers dayes for Vulnus preâ—eptum factum sunt quasi vnum factum Yet Stanford noteth the antient Law to haue béene taken otherwise Sée 8. E. 2. is Potest quiuis acquiâ—tari pro morte alicuiâ—s per patriam hoâ— non obstantâ— ex indictamento vel secta alicuius de â—â—xilio abetto vâ—â— procuramento potest suspendi pro morte eiusdem And note that hee that was indicted and arraigned of the death of Iohn at Stile may plead that hée was heretofore indicted and acquite of the death of Iohn at Noke auerring that Iohn at Stiâ—e and Iohn at Noke were one person Eâ— seira discâ—arge Fitzherbert Coâ—one 189. So likewise if a man were slaine two yeares since and one which was indicted and acquit of his death is againe indicted of the same mans death supposing that â—e killed him this present yeare he shall plead the first acquitall and bee discharged notwithstanding the variance for a man can be slaine but once and the Court in this 〈◊〉 shall charge the Inquest with the time of his death which is supposed slaine and whether it were the same parson supposed to be slaine by the 〈◊〉 Indictment So likewise if a man be indicted and acquit in one Countie and afterward indicted of the same death in another Countie the acquitall at first shall discharge c. But in robberis it séemeth otherwise for one and the same man may be robbed by one other man sâ—ndrie tunes and therefore acquittance of a robberie done at one day is no discharge of a robberie done at another day Now if a man be indicted of robberie in one Countie he shall not plead thâ—â—â—e was indicted and acquit of the same robberis in another Countie 4. H. 7. fol. 5. But it is said there that in appeale of robberie it is a good plea because the Plaintiffe is to recouer his goods againe by the Common Law not so in Indictments in the booke at large the Defendants plea is that hee was indicted of taking the same goods c. which 〈◊〉 said â—ust be take 〈◊〉 〈◊〉 iâ—lly for the King that the same goods â—ere shall â—â— twice 〈◊〉 〈◊〉 said the Countâ—â—s 〈◊〉 not ioyns in triall of the aâ—â—rment deâ— meâ—â—ne â—â— felonie when one Countie had acquitted him Froâ—ioke said That by the same â—eâ—son 〈◊〉 by he might be found culpable in one Countie of felonie done in another by the same reason acquitall in one should discharge him in another Seâ— Corone in Fitzherbert 220 41. ass p. 9. A man indicted in the Kings Bench of rape and robberie pleaded acquitall at the Countie of Cornwall at the Assises and it was adiâ—dged good Stanford bids vs enquire where the Kings Bench was at the taking of the Indictment and whether any other Indictment in Cornwall of that matter were remoued into the Kings Bench because the Booke saith one indited in banke le Roy c. Yée must know that if there were not sufficient matter of felony in the Indictment or Appeale vpon which the acquitall was had auterâ—orts acquite is no plea to stay a man indicted of new from new arraignment for it fals out vpon the matter that the parties life was neuer in ieâ—pardie And so is it if a man be acquite in an erroneous Appeale which acquitall is reuersed by errour hee may bée arraigned at the Kings suit vpon Indictment for by the reuersall he is become as neâ—er acquited But before reâ—ersall outerâ—oiâ—s acquiâ—e is good plea and if the errour were onely in the proâ—esâ—e it is not materiall for appearance salâ—es those defects And it séeâ—â—eth also that hée which was once acquited in appeale shall not answer any more to the Appellant though the acquitall be reuersed by â—â—â—â—ur howsoeuer for so the Court might be deliuered 〈◊〉 〈◊〉 and the Defendants neuer be deliuered But if one bring an Appeale which hath no cause or title to it as perhaps one which is neither wife nor heire c. and the Defendant takes none aduantage of it but pleads 〈◊〉 and is acquited this will noâ— serue to 〈◊〉 the right heire or wife in their appeale or the King vpon arraigning him vpon Indictment or vpon the new Appeale if the wife or heire be at non suit therein And if one be arraigned vpon Indictment at the Kings suit and acquited whereas by order of Common Law the King should haue stayed till the Appeale hanging had béene determined Yet this is no errour for thâ— plea of auterfoits acquiâ—e shall serue the Defendant in Appeale well enough And Auterfoits acquiâ—e in Appeale is no plea against the King in an Iindictment of the same felony if the acquiâ—all were by battaile and not by Inquest 12. E. 2. Corone in Fitzherbert â—75 For battaile lieth not against the King aâ—d therefore that triall against another shall not binde Quaere saith Stamâ—ord for Bracton is contra Si à pluribus appellatus sit de vno facto vna plâ—ga versus vnum se defendâ—rit recedet quietus versus omnes alios appellanâ—es etiam de secta regis quia per hoc purgat innocentiam suam c. Before the Statute 3. H. 7. cap. 1. Whereby Auterfoits acquiâ—e is become no plea in appeale of death if a man were indicted of another mans death the Iustices would not arraigne him as appeares by recitall of the Statute till the yeare and day were past And in Corone Fitzheâ—â—ert 44. Yée may â—ee that in 22. E. 4. the Iustices of England aduised all men of Law to obserue this order and course thorowout the Realme yet before this time it appeares 7. H. 4. fol. â—0 21. H. 6. fol. 32. That where thâ—re was no appeale hanging if suggestion had beene made to the Iustices that the â—uidence was manifest and apparant against the party indicted they would arraigne and try him vpon the Indictment alâ—hough it were within the yeare Likewise if the Appellant were vnder age the Iustices did vse to arraigne and try him that was indicted maintenanâ— For otherwise the partie indicted might cause by Couin that the Appeale should be brought by an Infant vnder age as perhaps thrée yeares old and so perish the Kings sâ—â—t for euer But all this seemeth now
quit hee shall recouer dammages So if the Appellée haue both the Kings pardon and the Appellants release and yet he will waiue them and plead riens culpable hee shall recouer dammages if the Country acâ—uit him yet hee hath done a matter of record which by implication acknowledgeth the felony quoeâ—e for if the pardon were by Parliament sans question hee might not waiue it Sée thereof 11. Hen. 4. fol. 40. He is not acquited debito modo that is acquited erroniously without dew processe As 9. Hen. 5. fol. 2 the Defendant câ—me in by exigent vpon which the Viscount had returned ceâ—â— corpus whereas he should haue returned exigifeci and the Defendant appearing vpon the exigent without taking aduantage of the processe pleaded riens culpable to the appeale and so was found but yet he could not get iudgement to recouer dammages for the cause aforesaid quaere for 19. E. 3. Titulo Corone in Fitzherbert 444. is contra that errour in the processe is not materiall so long as there is no errour in the Writ of appeale Declaration or pleading for the Defendant is arraigned vpon the originall and not vpon the meane processe The Statute speakes thus vel ad sectam domini Regis vel appellatoris The Kings suit here is vnderstood in appeale when after arraignement of the Defendant the Appellant hauing declared is at non suit fâ—r if the Defendant bée acquit at the Kings suit vpon an Indictment of the same felony he shall recouer no dammages And the manner of recouering dammages when acquitall is at the Kings suit differeth some what â—â—em recouery vpon suit of the party c. for in the first â—ase hée which is acquited shall recouer no dammages till he haue sued scire fac to bring the Plaintiffe into Court which by non suit was become out of Court But in the other case hee shall recouer dammages without other processe Titulo Dammages in Fitzherbert 7. 7. Whore the Caâ—e was that the Appellant tooke a husband after non suit and yet scire facias was awarded against the woman onely The Statute is further that the Iustices before whom c. shall punish the Appellâ—ur c. this cannot bée vnderstood by Iustices of Nisi prius though by the Statâ—te 14. Hen. 6. cap. 1. they haue power to giue Iudgement in treason and felony tried before them and that â—s well where the Defendant is acquited as where hee is attainted But yet within this Statute they are not 〈◊〉 the plea of the whole appeale is not heard before them nor any more saue only the triall as you may â—ée 10. E. 4. â—o 14. The Statute is further that the dammages shall bee considered hauing respect to the imprisoâ—â—â—nt c. Therefore if appeale bee against diuers men and they all are acquited dammages shall be taxed to them seuerally because perhaps one is more damniâ—ied than another for one may be appealed as principall and anâ—ther as accessary and one may be a Gentleman and another nâ—â—â— â— Hen. 5. fol. 1. and 40. E. 3 titulo Dammages in Fitzherbert p. 77. But note that this recouery of dammages is not for euery one for if an appeale â—ee against a Monke â—â— Feme couert without the ioyning the Soueraigne or â—â—â—band as it must bee except the Soueraigne with his Monke or the Baron with his wife commitâ—â— the â—â—lâ—ny the Monke or Feme couert shall recouer no dammages though they bée acquit Titulo Corone in Fitzherbert 276. 22. E. 3. The principall Case was an appeals against a Monke and the Iustices said it was all one for Law if it had boene a Feme couert quaere for if an appeale bee against Baron and Feme which are acquited dammages shall bee taxed and recouery seuerally viz. The Baron sole shall recouer for his owne imprisonment and the Baron and Feme ioyntly for the impâ—â—sonment of the wife The Statute is moreouer versus Dominum regem grauiter redimantur This fining to the King is neuer but where the Defendant is to haue dammages also for otherwise the Plaintiffe shall not fiâ—e but only beeamerced as 9. Hen. 5. fol. 1. the appeale abated for misâ—oâ—mer and the Plaintiffe was but only amerced vide 41. Assis Corone 219. the appellant was at non suit after Declaration and the Court presently awarded processe against the Appellant to câ—me and make fine agréeing that if the party were afterward acquit at the Kings suit so that hée recouered dammages against the Appellant yet shée should not pay a new fine Put the caâ—e therefore that at the Kings suit the Defendant had béene found culpable of the felony what remedy there might be for the Plaintiffe to recouer his fine againe which hee payd before noone as it sâ—â—meth for it séemes the Plaintiffe which is at non suit in the appeale shall pay a fine by the Common Law and this was the cause why they awarded it to bée payd maintenant Then for enquiry of Abbettours c. Cum appellatores non habeant vnde praedicta damâ—a restitueâ—â— inquiratur per quorum abettum These words imply that if dammages be not by Law recouerable against the Appellours there shall be none enquiry of Abbettours And where the Statute is that if the Appellants are not able to restore dammages it is intendible all the dammages for if the Appellant bee sufficient to render part but nâ—t all the dammages enquiry shall be of the Abbettors and they shall be charged 8. E. 4. fol. 3. 8. Hen. 5. 219. â—itulo Corone in Fitzherbert The Statute is shoppellatus hoc petat Of office only therefore and without request as it should séeme the Court cannot enquire of Abbettors And â—8 Assis 222. titulo Corone where they â—ad enquired of Abbettors at the desire of one Defendant and they found none and afterwards another of the Defendants being acquited prayed enquiry likewise it might not bee obtained because it appeared by the first verdict that there were none Abbettors there rem ined therefore no more to be enquired oâ— but what dammages were susteined This Stamford affirmes to bâ—e in appearance against Law for saith hee it is against the words of the Statute and against reason for what reason is it that a man should bee bound by an enquest whereunto he is not priuy and against which hée can haue no remedy because it was but an enquest of offiâ—e for albeit that commonly the enquiry of Abbettors is by the same enquest that acquited the Defendant yet their enquiry in this point is but of office for if they finde Abbettors these Abbettors when they come may trauerse all that is found in this point As if it be found that the Appellant is not sufficient and A. and B. were Abbettors A. and B. may come and say by protestation not knowing the felony for plea that the Appellant is sufficient or that they neuer abetted 8. E. 4. fol. 3. and the words Sâ— legitimo modâ— conuictus fuerit de huiusâ—odi abbeâ—to
per maâ—â—â—iam proue also that answer is allowed to that which is found by the enquest And note that it is a good answer for the Abbettor to shew matter wherefore the Defendant ought not to haue dammages or to shew that hee was acquited not lawfully buâ— erroniously But the Abbettors shall not take exception against the Inquisition for that it is not found at what day yeere or place they abetted for the Abeâ—nent simply found satisfieth the Statute which willeth vâ— inquiratur per quorum abeâ—â—um And when that it is once found the Defendant may supply that which wanteth adding to the inquisition the yéere day and plaâ—â— â—iâ—ulo Corone in Fitzherbert 45. 22. E. 4. By the words per brâ—ue de iudicto ad sectam appellati distringantur all veniâ—ndum coram Iusticiariis c. And the processe should séeme to bee distresse infinite But Titulo Corone 102. the Court awarded first a Venire facias then Disâ—resse which course hath little authoritie for it for all the other Bookes giue a Dâ—string as for the first Processe which is alwayes sued out by him which is acquited And for his better spéed he may pursue this if he will though the Appellant bée not in Court. As if the Appellant bée at non suit and the Defendant arraigned at the Kings suit is acquited his dammages taxed and his Abbettors found now he may haue Processe against the Abettors maintenant though the Iudgement of dammages bée suspended till Scire facias â—e sued and returned against the Appellant and note if the Defendant which is acquited in an Appeale be non suit in his Processe against the Abettors this is not peremptorie but he may commence processe againe of new if he will Corone 386. And 3. E. 2. titulo Action sur le Statute 28. An originall Writ brought for Abetment and Declaration against the Abettors for greater dammages than were assessed in the Appeale is awarded good For of dammages taxed in Appeale there lyeth no attaint because the Enquest as to the dammages is but of office and the Defendant cannot compell the Iustices to encrease dammages therefore it is reason that he aid himselfe by Action So saith Stamford SECT XVIII Of the old Law I Haue waded further into this vindicatiue Action than I thought to haue done and yet not touched what the Princes warrant of a mans life may auaile him against the instant appeale of a widdow I know one or two that are thought to be buckled against Appellants by a lease of their owne liues from the King but how trâ—â— it is or how contording with Law I know not Howsoeuer it be I aduise a widdow that is full of spléene for the slaughter of her husband to read ouer mine instructions here to aâ—â—aâ— choller and then if composition be offered not to refuse it For first I doe you to wéet that appeales dâ— morâ— are but slipperie Actions Be iudged by the case 33. H. â— Dyer â—ol 50 Warnforo of the Temple was sued in an appeale of murder the Writ was Ad respondendum A. B. alias dict A. B. fraâ—â—â— haetedi to him that was murdered and the Defendant was discharged because the Plaintiffe was not named brother and heire in the substance of the Writ but onely in the Alias dictâ— for it ought to haue bâ—â—ne Ad respondendum A. B fratri â—â—â—â— redi alias dâ—ctâ— c. This was the chiefe cause why the Defendant was discharged Then I say it is a more Christian thing to take fiue hundred poâ—nds of a mankiller for a release leauing him to agree with the King for his necke as good cheape as he can than to séeke bloud and death though of one which hath deserued it in anger malice and reuengefulnesse Last of all I affirme that it agréeth with the eldest custome and ancientest English Lawes For that which learned M. Lamberd in one place speaketh but as coniecturall is me thinketh true without all peraduenture Id â—st that this forme of procéeding against an homicide giuen to the dead mans heire or widdow is a â—euengefull Action first giuen to appease such quarrels and capitall enmities of families and kindreds as the Northerne men yet vse and call Fâ—awds which heretofore but a long time since were generall and ouerspread the Realme So that an Appeale du mort is but an image of deadly Feawd The inducements to thinke so are these The action of Appeale is preferred before the Kings action the offer of triall by the Appellant by Bracton is per corpus c. si de eo male contigerit per corpus fratris c. And the ancient vse was when the Appellée condemned went to execution that all they which were of bloud to him that was murdred should draw the man-flayer to the gallowes by a long rope or cord to shew loue to their kinsman and desire of reuenge per Bromley in Plowdens Commentarie 306. And 11. H. 4. fol. 12. When Tâ—rwit had affirmed that by the ancient Law in Appeales de mott the dead man kindred and his wife should draw the Felon to execution Gasâ—olgne added Hoc â—uit in diebus nostris By these dayes Appeales de mort shewed by their outward face and phisnomie from whence they sprung But by the old Lawes of King Inas King Edmunâ— and the rest yee shall plainly perceiue that Feawd was their mother and that money was the quencher of the quarrell verie often if not alwayes See therefore in M. Lamberds Booke Depriscis legibus the Law 7â— of Inas If a bond man kill an Englishman his Lord shall deliuer him into the hands of the Lord or kinsman of him which is slaine or redéeme him at sixtie shillings If the Lord will not pay the money he shall at the least emancipate his bondman and the kinsman of the murderer so emancipate may vndertake for him to pay the price of him which is dead If hée haue no kinsman that will doe so much for him Metuat sibi malum ab aduersarâ—is Let him be at the hazard of his enemies And I haue read an old Law which I cannot finde againe Parentibus occisi fiat emendatio vel guerra eorum portetur But in the same booke De priscis Legibus yée may finde that King Edmund which reigned an hundred yeares and more before the Conquest by the aduice of Odo of Canterburie and the Archbishop Wolstan of Yorke with many other of the Clergie and Laytie made Lawes amongst which one hath this Preface Etenim nos omnes harum taedet pugnarum quotidianarum and therefore we ordaine as followeth SECT XIX King Edmunds Law IF any man hereafter doe kill another man hée alone shall take vpon him and sustaine the deadly enmitie of the dead mans kindred vnlesse he can by the helpe of his friends pay the whole price and estimation of his head whom he hath killed what condition soeuer he were of and that within the space of twelue moneths If his
Ienny Defendant entred in Banco Regis Hillar 2. Iacobi Rot 571 where the Plaintiffe declared that the Defendant in consideration that the Plaintiffe had formerly married his Daughter at his speciall request the Defendant promised the Plaintiffe to pay him euery yéere during the life of the Defendant ten pound c. and as my report saith the Plaintiffe vpon non assumpsit pleaded had verdict and iudgement in the Kings Bench but vpon a writ of error in Exchequer Chamber the Iudgement was reuersed for that the Marriage was executed before the promise made and yet the declaration supposed that the Defendant requested the Plaintiffe to Marriage c. But let me not run so farre from my Tert as neuer to finde the way backe againe A man may sue for Marriage money in his owne name onely and so is it generally where that which is in demand or to be recouered commeth méerely and onely to the Baron Example 43. Ed. 3. fo 8. The Earle of Arundell brought a Writt of Trespasse against one for chasing in a free Chace that he held in right of his Wife and the Writt awarded good though the Wife were not named in it because nothing was to be recouered by damages Likewise is it if the Baron bring a Writt of Trespasse for strayes taken in Lands holden in right of his Wife And eod anno fo 26. for breaking of a house and carrying away of timber the Husband alone shall haue the action because hee may when hee list pull downe a house or sell timber standing vpon his Wiues Inheritance or make a release to any body vpon such manner of trespasse and the Wiues action is gone for euer There is also the same yeare fo 16. another Case wherein because a decies tantum was brought by Baron and Feme the Writt abated for though the first action concerned the Wiues Interest yet nothing is to be recoueredin a decies tantum but damages c. Sée the Booke of 20. H. 6. fo 1. a Writt of maintenance wherein nothing is recouerable but damages was brought by Baron and Feme vpon maintenance in a bill of fresh force against them by the better opinion they might ioyne c. And the Defendant passeth Ouster but not by award 41. Ed. 3. f. 9. a Writ of Champertie brought by the Baron onely vpon an assise which had passed against him and his wife was allowed good notwithstanding exceptions taken of the wiues Interest c. vpon the reasons before expressed And by Finch if a man haue a Ward in right of his Wife Dower shall be demanded against him onely because the gard is a Chattell vested But if a Writt of Wardship be to be brought it shall be against the Baron and feme c. because of voucher And in trespasse if the Plaintiffe recouer against Baron and Feme by false verdict they both must wyne in the attaint for that must be according to the record 46. Ed. 3. fo 20. a man brought a Writt of rauishment de gard declaring vpon a possession iure vxoris and the Writ held good yet in this case there is more then damages to be recouered for the Plaintiffe shall haue the Infant restored by the very words of his Writt But there againe it was agréed that an action to recouer a Ward must be against them both because of voucher though in a writt of Dower it be vt supra because therein there is no voucher c. If Baron and Feme sell the Wiues Inheritance by fine for twenty pound an action of debt for the money shall bee brought by the Baron onely for the grant was onely the Barons grant and if he die the Executors shall haue the action and not the Feme 48. Ed. 3. fo 18. And a repleâ—â—n must bee brought by the Baron onely because a Feme Couert cannot haue a propertie in any goods or Chattels But for such goods as the Wife hath as Executrix it séemeth the Baron and Feme may ioyne in ar pleuen so shall they for goods of the Wife taken dum sola fuit Fitz. in the title reception In trespasse at Common Law or vpon the Statute Anno 5. Rich. 2. the Baron alone shall haue action of trespasse and so likewise for taking away Charters concerning the Wiues inheritance So is it if he alone deliuer such Charters he alone may haue action against the Bayliffe c. But a Writt of Detinue of Charters of the Wiues inheritance must be sued by both c. because the Charters themselues are to be recouered And therefore vpon recouery of them the Baron and Feme must ioyne for recouery A quare impedit was brought 50. of Ed. 3. fo 13. and the Baron declared of an agréement betwixt thrée Sisters to present by turne to a Church whereof they had the Aduousan and this was the turne of his Wife c. The Defendant demands Iudgement of the Writt because the Wife being still aliue was not named but this Writt also was awarded good because nothing was to be recouered here but onely the Presentment and not the Aduousan And if a Writt should be awarded to the Bishop against the Baron the Wife thereby should not be out of possession because she is not partie to the Iudgement besides that she is ayded by West 2. cap. 3. And for a generall rule where the Husbands release is good the action may be brought in his name onely as vpon cutting of trées grasse Corne c. And such actions may be brought in the name both of the Husband and the Wife An assise of â—arraigne presentment is a mixt action and the Aduousan it selfe shall be recouered in it therefore of necessity it must be brought both by Baron and Feme 15. Ed. 4. fo 9. The Baron Seignior in right of his wife ioyned in a writt of rescous and it was argued that he alone ought to haue brought the writt But it was awarded well brought by them both Though per Littleton it were good enough in nosme le Baron tantum And per Pigot when an obligation is made to Baron and Feme the Baron alone may haue the action or they may ioyne â—adem lex in trespasse c. maintenance c. for alwayes where the action may suruiue to the wife the wife may ioyne in the writt They which shall read these two last Cases argued 50. Ed. 3. and 15. Ed. 4 in the yeares at large shall not néed to repent it SECT XLII When a Wife may sue or be sued alone IT is seldome almost neuer that a marryed woman can haue any action to vse her writt onely in her owne name her husband is her sterne her primus motor without whom the cannot doe much at home and lesse abroad But if her Huusband commit felonie take the Church and abiure the Realme she is now in case as a Widdow inabled to make alienation of her owne land as a Feme sole or to bring a cui in vita for