eldest dye having issue a sonne though this issue be heire to B the other sonne after the death of Alice shall have the land as néerest of blood and by Greene and Seaton if there had béene severall issues of divers sonnes and daughters to the devisor when the remainder vested it should have gone to them all But here because the daughter of him had issue a daughter when the tenant for life died and there was not issue of any sonne at the instant to take from her or with her this Daughters Daughter shall have all and though there came an after borne sonne of any of the brethren she may detaine all c. for a remainder vested is not like to fée simple discended to a daughter where a sonne Posthumus may enter And if lands be letten for life the remainder to the right heires of I. if I. dye having issue a son which entereth after the death of the tenaÌ„t for life then dieth his son shal have nothing because he was not capax at the fal of the remainder likewise where there is a brother sister lands are let for life to an estranger the remainder to the right heires of the brother if he and the tenant for life die the sister may enter and retaine the possession and fée though the brothers wife bee afterward delivered of a sonne in like sort did the remainder rest in the child of Maâ—d in Eliz. viz. which recovered by award 30. Assi p. 47. But where there is father and sonne which sonne purchaseth and dieth without issue and an uncle entereth if two yeares after the father hath a sonne by the mother of the purchasor this sonne may enter and put out the uncle and the reason of Law is that hée that comes in by purchase must be capax at the time when the purchase vest in him but in case of discent it is not so requisite Perk. in his Chapter of devises saith that if a devise bée made to a colledge which is not a colledge at the time of the devise it is a void devise although afterward it be made a colledge upon the same reason is Dier 13 Eliz. 303. of a devise to an infant in ventre sa mere And where a man dieth seised and his daughter entereth c. a son borne afterward may enter but it is not so in case of purchase c. for if a woman consent to a ravishor her daughter and heire enter by the statute 6. R. 2. ca. 6. the son Posthumus shall not put her out no more shall he where a daughter and heire entereth for condition broken and where a daughter hath a villain by discent which purchaseth she entereth into the perquisits an after borne sonne her brother shall have that which discended viz. the villien but not the land these cases hath Brook Discents 58. out of the Doct. and Student 5. Ed. 4. fo 58. in the case of Elizabeth Venor agreeth concerning entry made by 6. Ri. 2. And so doth Hales and Mountague in the case of Wimbish and Talbois yet Mountague Chiefe Iustice taketh there a learned difference if a man devise land for life the remainder to the right heire male of the devisor the heires of his body c. now if the devisée for life die and a woman which is heire generall to the devisor entereth and hath afterward a sonne the sonne shall never out the mother in whom is vested the inheritance for want of other persons to take the falling remainder per le melior opinion 9. H. 6 yet he saith the cases of ravishment possession of a brother abatement of a bastard c are all to bee understood of fée simple for where the entry gaineth but estate taile one may beate the bush and another take the bird so if a man seised by discent from his mother make a feofment with condition c. and die without issue if a woman heire on the father side enter for condition broken an heire male or female on the mothers side may oust her Plow c. fo 56. a. b. 57. a. West 1. ca. 22. THen West goeth on with heire females that so soone as they come to the age of fourtéene yeares if the Lord for covetousnes will not marry them yet he shall not kéepe their land above two yeares after they have accomplished 14 within which two yeares if they be not married by their Lord they may take action against him for their inheritance to recover it without paying any thing for the custody or for marriage If so be that of their proper malice or through the mischievous counsell of others such women refuse convenable marriage offered by their Lord he may in this case retaine their land untill they be of 21. yeares and longer untill he shall receive the value of their marriage Littletons words upon this statute in his 2. booke cap. 4. BY Littleton if tennant by service of Chivalry die his here female being 14. yeares old or more the Lord shall have custody neither of the land nor body for at that age a woman may have a husband able to doe knights service but if such an heire be under 14. and unmaried at the time of her auncestors death the Lord shall have ward in her land untill she be of 16. yeares age West 1. cap. 22. which getteth the Lord 2. yeares to tender marriage without disparagement and if during these two yeares the Lord tender no such marriage shee may enter and oust the Lord. If such an heire female be married under the age of 14. in the life of her ancestor which ancestor dieth before she accomplisheth 14. yeares the Lord shall have no more but the wardship of her land till shee be 14. yeares old and then her husband with her may enter into her land and put the Lord out for this is out of the Statute because the Lord may not tender marriage to her that is already married for before the Statute of West such an heire female that was under the age of 14. at the death of her ancestor and had atteined afterward to the age of 14. yeares without any tender of marriage by her Lord made unto her might well enter into her land and put out the Lord as appeareth by the rehearsall and very words of the Statute which as it séemeth so saith Littleton was made altogether for the advantage of the Lord. A suspition of Littletons error NOw saving Mr. Littletons inspiration I am greatly afraid that ye shal not finde by the text of the Statute That an heire female being under 14. at the death of her ancestor might by the common law before this Statute enter and oust her Lord as soone as she had accomplished 14. yeare of age without tender of marriage The law perhaps was so but this Statute proves it not Againe I doubt Littleton was deceived in taking this Statute to be all for the advantage of Lords yet it is
garde at the age of 14. yeares THe principall reason that mooved our law founders so soone to set women out of ward is none other then hath béene already declared she is quickly able domui preesse viro subesse and her husband for her shall doe Knights service or some other for him and in his stead the cases are therefore 26 H. 8. fo 2 If the Kings tenant in chiefe having feoffees to his use marry his daughter vnder age to a man of full age and dye this daughter being heire is out of ward for her body though not for her land for that shal be in ward in this case an the Kings possession must bee voided by suite and livery But had she béene of full age of 14. yeares at her fathers death no such thing had néeded neither should she have bin in ward nor the King have any primer seisin For that was not as yet seene into by the Statutes of H. 7. which had given ward reliefe and herriots upon the death of him which died intestate and seised of onely a bare use againe if the King have a woman ward which he marrieth before she be 14 she shal be be to all intents out of ward at 14. and may immediatly sue her livery 28. H. 8. for as a ward masculine married by his Lord vnder 21. shal be sui luris at 21. so shall a ward feminine being maried before 14. bee out of ward at 14. altogether In the old Natura brevium in the writ de electione custodiae it is said that where the tenant marieth his daughter being under age to a man of ful age dieth the daughter shal be out of ward But if he mary his daughter being of full age to a man under age and die she shall be in ward This Mr. Brooke taketh to be no law even so doe I his reason is that no Lord can have the marriage of her that is already married or compell any heire to be twice married For if a tenant marry his son and die and then the sonnes wife dieth holden the Lord shall not have his body in ward to marry him Which is cleare specially if the sonne were infra annos nubiles at the time of his fathers death But certainely if the Lord couple his ward to a wife which dieth the ward is at full liberty for his body and shall not be married by his Lord. The reason why an heire female of full age married by her father to a man under age should not be out of ward must be because the supposition of law faileth her husband is not able arma portare officiis fungi militaribus vel pro iisdem faciendis cum alio pacisci But this notwithstanding me thinketh a woman married should bee out of ward for all her husbands nonage thought the woman bee but twelve yeares old a boy knight shall be out of ward for his body shall a woman innupta matura viro be in kéeping of any but her husband shall shee at 14. yeares age bee ward because she hath a husband but 19. yeare olds who should not have béene in ward had she had no husband at al non videtur The husbands ability to doe souldiers service is neither the onely nor the principall cause in mine opinion why a woman is by law out of ward at 14. yeares age But law going with the trace or tide of nature that hath made women as Bracton saith fit to carry cey and key cloge betimes suffereth them to mary very early And it should be a mischievous inconvenient unjust and unnatural law that should hold a woman from her husband or from her inheritance which is without offence of law maried fully able to bring forth children because her husband is not fully fit for all mannor of horsemanship Be not therefore good woman absterred from a young husband by old natura brevium SECT XII How a woman that hath beene in ward shall come by her land A Woman past 14. yeares of age at her ancestors death shall not be in ward And where she is in ward till 16. she may have action at 16. against her Lord for her inheritance according to the Statute By Littleton she may enter which standeth with reason for the Statute giving action to her affirmatiuely doth not disaffirme the entrie which she might have had by the auncient catholicke Common law if shee cannot or dare not enter she may have alone if she be alone or with her fellowes if she be a coheire a writ of mortdancester as well against her Lord as against any other abator Marlbridg ca. 16. But if shee be ward to the King against whom a mortdancestor writ of Aile Besaile or Cosinage then it melts into petition and she must sue for livery And where the King hath a woman in ward with some lands holden of other Lords in socage such a ward shall not so soone as shee is 14. yeare old have livery of that socage lands but she must arry unlesse she be married in the meane while till she be 16. because livery must be at once parcell not by percels Yet if 3. copartners be in ward to the King she which first commeth to age shall sue her livery and have partition vpon it SECT XIII Of Parceners FOr it must not be omitted there where a man dieth seised of any manner of inheritance having issue none but daughters to whom such inheritance descendeth when they have entered by Litt. they are parceners one heire to their common ancestor so are the heires of females parceners and they ought to come in by descent for if by purchase they are jointenants they are called partners saith he because they are compellable by a writ de partitione facienda to divide the inheritance amongst them Like or the same law is where a man dying seised having no issue his land goeth to his sisters or aunts that are partners if one of them dye before partition made her part shall descend to her issue and for want of issue to her coheires which shal be déemed and adjudged in by discent and not by survivour SECT XIII Difference betweene partners and jointenants FOr although partners have a conjoyned estate yet law maketh a great diversity betwixt them and jointenants Partners by the cōmon law are onely females or the heirs of females which also must be in by descents for if sisters makeajoint purchase they are jointnants and not partners Betwixt whom observe here the germaine apparent difference If two coparceners be of lands in fee simple wherof one before partition made chargeth her part with a rent dieth without issue her coparcener taking as heire and by discent shall hold the land charged But it is otherwise betwixt jointenants Also partners may devise and give away their part by testament so cannot jointenants SECT XV. Difference betweene partners and tenants in common ANd as in the cases precedent parteners are like tenants in
matter but the other conclusion puts it to the Law and Courts consideration Yee sée now of what possession of Law a woman is dowable per Brian 4. H. 7. â—o 17. if the Kings ward die vnder age and the neâ—t heyre being married die before â—â—uâ—nâ—runt sued his wife shall not haue Dower But by Dâ—uers and Hussey if the Kings Tenants Heyre haue a wife and after office found the Heyre doth not enter but dieth the wife shall be endowed of the possession in Law before office for the Statute of prerogatiue cap. 13 is intended onely where the Heyre taketh a wife after office and intrudeth SECT LIX There must be in the Husband an Inheritance not cut from the Franke Tenant A Woman shalll haue no Dower in Lands whereof the Frankement and Inheritance was neuer conioyned in her husband during Couerture therefore where the Husband had but a reuersion after estate for life the wife is not dowable vnder this rule commeth one other dos de dote peti non debet And if a man seised c. take a wife and alien with warrantie and then both the feoffor and feoffée die if the wife of the feoffée bring a Writt of Dower against the heyre of the feoffor which voucheth to warrant the heyre of the feoffor and hanging the voucher the wife of the feoffée demands Dower against the heyre of the feoffée if shée bring her Writt not for a third of two paâ—ts but for a third of all that whereof her husband dyes seised she shall not haâ—e iudgement fill the first plea be determined Littleton If there be father and sonne both married and the Father seised of one acre c. dieth and the sonne entreth and dieth if now the sonnes sonne enter and endow his Grandmother which dieth his mother is not Dowable of that which the Grandmother held in Dower for of that his Father had no more in méere right but a reuersion vpon or after a Franke tenement and the Grandmother endowed was in of her Husbands possession yet if the father had in his life time iâ—feoffed the Sonne c. the sonnes wife might well haue Dower after the Grandmothers death of that very Land which the Grandmother held And if the sonnes sonne voluntarily or compulsarily â—â— Writ of Dower had endowed his mother against whom the Grandmother had then receiued her Dower and died after execution the mother might well haue entred into the land which the ailesse recouered against her Parkins 63. The Franke tenement and Inheritance may be both in a sort in the Husband and yet not sufficiently knit and vnited together to giue Dower for example the Lands bee giuen to two and to the heyres of the body of one of them if hee which hath the inheritance die first his Wife is not dowable no not after the death of the suruiuor for the state taile was not executed in her husband to all intents though the Issue in a Formedone against an abater might alleage seisin and esplees as we call them in his father Likewise if by fine sur graunt render estate be made to a husband for terme of life the remainder to I. S. his sonne in taile the reuersion to the right heyrâ—s of the husband and the fine is executed if now the Baron die liuing I. S. or any of his Issue the wife of the Cognusée is not dowable But if a Lease be made for yeares the remainder to I. S for life the remainder to his right heyres c. the wife of I. S. shall haue Dower of this estate though erecution of Dower cannot be â—asting the terme And if a Lease be to the Husband for life with a remainder to a stranger for â—eares the remainder to the Husband in â—ée the inheritance and Franke Tenement are sufficiently connexed to giue the wife Dower bâ—t execution shall cease during the terme for when an estate for yeares is more ancient or as ancient as the Inheritance which the Husband had during Couerture there the execution of Dower to the Wife must néeds tarrie the termes expiration And so it is if a man grant me a rent in fée by Indenture with Condition that the rent shall cease during the non-age of mine heyres my Wife shall not bee endowed during mine heyres minoritie What if a man that is seised in Fée-simple make a lease for life rendring rent c. and then taking a Wife he dieth the heyre shall haue this rent incident to the reuersion and it shall be aâ—ets to him in a Formedone in Descender but the wife gets here no Dower aâ—d saith Parkins a woman shall not be endowed of a rent reserued by her Husband to himselfe and his Heyres vpon a Lease for yeares 1. Ed. 6. titulo Dower in Brooke accordeth If the Law be so Dower hath lesse fauour in this case then the estate per Courâ—â—siâ— d'Angleterre But Cléere if a man take a wife first lease his Lands for yeares or for life and die now the Wife may recouer Dower of the Land it selfe and by Breton if the woman recouer the third part of Lands leased for yeares de office de iustice il serra a gard que el tertiâ— remnant les deux parties que demorent de terre iesques aâ—â—nt que il eâ—t receiue al value de le tierrâ— partie que il auera perduâ— c. But if she recouer all the Land leased from the termer he shall haue recouerie per plâ—â— de garranti either of such other Lands as the Lessor had or if he had no other of the Lands seised when the widdow is dead by sâ—irâ— facias out of the Court where the Iudgement was inrolled Note That though the Law be as is abouesaid where Lands are giuen to two and to the Heyres of one of them yet if the Husband purchase to himselfe and his wife and to the heyres of the Husband the wife may relinquish the purchase and disagree by bringing her Writ of Dower Like Law séemeth to be where the purchase is to the Baron and feme during the life of the Baron the remainder to his right heyres SECT LX. Of what things Dower is granted LIttletons ground is of Lands or tenements But a woman is Dowable also of all manner of rents which are rents of Inheritance Also of Offices as for example of a Bayly-wicke in fée a woman may haue the third part of the profit in Dower and be contributary to the charge Also at this day where the Baron hath but an vse in fée-simple or fée-taile generall vnlesse it be in case where the Husband may and doth disagrée the wife shall haue Dower and if a bargaine and sale be made of Lands to the Husband which dieth before inrolement the wife notwithstanding shall haue Dower and by the inrolement einsement it shall be indefeisable against the Vendor and the Heyre of the Vendée Also a woman is Dowable of Villaines regardant to a Mannor and if a villanie in gros a
second wife may be endowed for after the death of the first wife the remainder in generall taile vesteth maine tenant and is executed 50. Ed. 3. fo 4. Newton saith 7. He. 6. fo 11. if a man make a lease for yeares with Condition if the Lease pay an hundred pound at the end of the terme that then he shall haue fée etsi nemy que il auera que terme that in this Case by paying an hundred pound at the end of the terme the termer shall haue fée from the beginning and his wife is Dowable quere for it seemeth tunc hath relation but ad tempus solutionis If Tenant in Dower lease her estate to the Heyre for her life and the Heyre dieth his wife shall bee endowed notwithstanding the life of the first dowager 45. Ed. 3. fo 13. In action of Dower the tenant shewed that Tenant per Courtesie granted his estate to him in the reuersion rendring rent with clause of re-entry for non-payment he in the reuersion marry the demandant the tenant per le Courtesie re-entreth for the Condition he in the reuersion died his wife was barred Dower for the surrender might well be vpon Condition 14. E. 4. fo 6. SECT LXIII Where Dower is giuen or not giuen of an estate determined VVHere the Husbands estate is loyally enuicted or determined Dower for the most part faileth As thus two men make exchanging of two acres executed in fée one of them dieth his sonne takes a wife and entreth and the otherpartie being impleaded voucheth the sonne which entreth into warrantie so that the Tenant recouereth in value the acre which he deliuered in exchange the sonnes wife shall neuer be endowed of this acre for the title of recouerie in value is from time of the exchange by way of relation and so before the Marriage Likewise if two Copartners in gauell kinde make partition one of them marrieth and the other being impleaded prayeth ayde of his partner which ioyneth c. if the demandant recouer and the Tenant haue pro rata of the partners part which afterward dieth his wife shall not haue Dower of that which is recouered for the title of recouery pro rata is from the death of the common Ancestor saith Parkins As a Villeine takes a wife purchases lands in fée his Lord enters the Villeine dieth his wife shall haue Dower for the Lords title begun by his entrie and the wiues by seisen in the husband the Tenant alieneth in Mortmaine or erecteth a crosse sée thereof W. 2. c. 33. and the Lordentreth the tenants wife shall haue Dower notwithstanding So if the Lord recouer in a Cessauit the tenants wife shall be endowed yet if the tenant had made part and brought a writ of Dower it came to issue ne vnques seisie c. The Iury found the speciall matter and being asked what they thought of it they answered because there was neuer any permanent seisin in the husband that she was not Dowable Your thinking said Iustice Thorpe is contrary to your verdict for here was a possession whereof she is Dowable Et ceo fuit opinion de toutes Littleton also séemeth to be against me in Estate sur condition but it is not ipse dixit but plusiors on t dit Therefore if hee were aliue I might perhaps intreate him to bee on my side SECT LXIV How much and how a woman shall hold in Dower THe Common Law alloweth for Dower the third part of that whereof the Husband during Couerture had such seisin as is before declared to haue and hold if it be in lands by limits and bounds But this Indowment per metes bonds cannot be where the husband is Tenant in Common If one of two Copartners in gauell kinde take a wife and die before partition made the Heyre may assigne his mother a third part of his moity to hold in Common or he may first make partition and then endow her per metes bonds Generally when a woman recouers Dower the Sheriffe shall put her in possession per metes bonds and it hath beene holden that wheresoeuer the heyre assigneth Dower a third part per mi per tout to occupie in Common if the widdow accept it accordingly that this should be a good endowment The Law seemeth to be otherwise By Common right Parkins saith a woman shall haue Dower the third auoydance of euery Aduouson and the third part of euery Mannor that was her husbands for if shee take it in another forme by assignment from the Heyre she may suffer preiudice As if a man seised of thrée Mannors takes a wife and grants a rent charge issuing out of all thrée Mannors and dieth now if the wife by assignment of the heyre accept one Mannor in Dower for all the two parts of this Mannor remaine subiect to the distresse of the granter because the woman for the two parts accepted here her Dower in counter comen droit But had shee vpon recouery of Dower béene assigned this Mannor by the Viscount she should haue held all discharged Yet if a married man seised of thrée Aduousons of thrée seuerall Churches grant to I. S. that he shall present to the Church which next becomes voyde and the granter dying his wife recouers in a Writ of Dower against the heyre before auoydance and the Viscount assigneth to her the Aduouson of one Church for all c. if now the Church thus assigned become voyde ascuns diont saith Parkins the grantée shall present and not the woman for she is endowed incounter common droit and I. S. the grantée which is a stranger to the assignement cannot otherwise take aduantage of his grant But in the first Case after assignment of one Mannor by the Viscount the grantée might distraine in the other two Mannors SECT LXV Lesse or more then a third part THough by the Common Law a woman is to haue no lesse then a third part yet if a widdow will be so foolish as to accept a fourth or fift part or moity of her husbands Inheritance assigned in allowance of all his Franke Tenement it is a good assignement And by custome in some seised of three acres in fée marry and die and a stranger which hath but two of these acres entreth by abatement into the third and after hee hath married the Widdow hee infeoffes a stranger of all thrée acres by indenture resexuing vt supra and dieth the rent goeth out of all the acres but if the heyre of the first husband recouer his acre and assigne it to the woman in Dower shee is Dowable also of the rent for indéed it is entirely issuing out of the two other acres And if a man seised of thrée acres in fée make a feoffement of two reseruing rent out of those two acres vt supra the wife hauing the acre which remained in Dower may haue Dower also of the rent reserued quâ—ere saith Parkins car il est incounter le conscience de diuers homes And making
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
vnques seisi que Dower c. THere are other pleas that goe to the action and verie right of Dower as Ne vnques seisi que Dower c. id est The husband had neuer any seisin or state of Inheritance where of the wife can claime Dower sée 45. E. 3. fol. 13. The tenant in Dower leased her whole estate to the heire rendring rent for terme of her life the heire died and this was adiudged a seisin whereof the heires wife might demand Dower though the first tenant in Dower were still aliue for the lease was a Surrender and if a stranger had entred immediately after the heires death his heire must haue had a Mordancester Ergo said one the wiâ—e dowable Yet marke this case â—bid a man seised c. in fée simple dies his sonne entreth and he dies the sons sonne enters and endowes his Aylâ—sâ—e she dies a stranger abateth In this case it is cleere the sons wiâ—e shall haue no Dower of the portion assigned to the Aylesse though the sonnes sonne may haue a Mordancester per Kirton Finch and Mowbray But betwiâ—t this casâ— and the other they say is great oddes for here the Grandmother endowed was in from her husâ—â—â—â— and she sonnes possession and estate howsoeuer to his â—â—ire in whom the fée rested it were not destroyed but hee might bring a Mordancester yet to his wiâ—e it was cleane adnihilate whereas in the first case the Fée and Francktenâ—ment not a whit impeached by the life of her which surrendred were perfectly conâ—â—â—ned in the Baron to whom the Surrender was made And if a râ—uersion be granted to I. S. of certaine lands per faiâ— in pais in which lands I. T. and his wiâ—e haue â—state for life which doe atturne and afterward surrender there is no doubt but I S. his wife if hee die shall hauâ— Dower though it bee indéed defeasible after death of T. K. if his wiâ—e suruiue and will vndâ—â— the Surrendâ—r whereas in our first case the Surrender is no way auoydable but the heires wife shall pay rent according to her portion per Finch â—bâ—â— 14. Ed. 4. fol. 6. Tenant by the courtesâ—e granted his estate to him in reuersion rendring rent with clause of re-entrie for non payment the Grantée married the rent was arréere tenant per le curteâ—â—e re-entred hee in the reuersion died his wife waâ—â—arred of Dower for the Surrâ—nder might well bee vpon candition 2. H. 4. fol. 22. In action of Dower it was pleaded that the Demandants husband had nothing in the land â—ut by 〈◊〉 done to the tenant Iudgement si action c. The woman shewed how her husbands father hauing two sonnes leased his land to the eldest sonne and to hiâ— wife for 〈◊〉 of theâ—r liues and that shee her selfe married with the youngest sonne the eldest died and his wife married with the tenant the father died the reuersion descended to the second sonne being her husband the tonants wife died and he kept possession the Demandants husband did put him out he re-entred she prayed seifin c. Brooke thinketh she ought to haue trauersed the Disseisin And if the Baron had not entred after the death of the eldest sonnes wife she should not haue béene endowed yet saith he 〈◊〉 if without entrie there had not beene a seising in Law and whether the Francktenement which the tenant had once in right of his wife â—e determined in puncto by her death 11. H. 4. 73. In action of Dower the Tenant saith That N. gaue the land to the Baron and his first wife for terme of their liues the remainder in taile to the tenant remainder in Fée to the right heires of the Baron his first wife diâ—d he married this demandant and then hée died and the tenant entred c. he demands Iudgement if of this estate she shall haue Dower This amounted plaine to ne vnques seisi que Dower la puit but per Hanke Thirn that plea might not serue by reason of the Fée simple in remainder which might ingender doubtâ—ulnesse a layes gentes But where a lease was made to Baron for life the reuersâ—on to the Lessor or remainder to a stranger there in action of Dower ne vnques â—eiâ—â— â—ec iâ— good for no manner of Inheritance was in the husband 11. H. 4. 83. Dower was demanded of twentie pounds rent respondetur the Baron had nothing but â—oyntly with â— N. who is yet aliue â—udgement si Dower c. and he was not compelled to shew whether he pleaded as â—ertenant or as Pernor of the rent the Demandant replyed that I. N. had released all his right in the rent â—â— her husband But becauss she shewed not the Déed of â—â—â—ease shee pleaded by aduisement of the Câ—urt seisie que Dower la puit Quaere of the generall â—ssue against the â—â—eciall matter 11. H. 4. 88. A woman shall haue Dower of rent 〈◊〉 chased by her husband in fée though hee die before dâ—â— of payment And if it be pleaded against her Ne vnques fâ—â—â—â— que Dower c. she shall not shew the speciall matter but say seisi que Dower la puit and shew the matter iâ—â—â—â—dence 22. H. 6. 4â— per Newton In action of Dower the â—â—nant plead Ioynt estate to the Baron and I. N. in plein vy whose estate he hath the demandant shall not say â—â—â—â—â— que dower c. vnlesse shee shew how or trauerse that I. N. tooke nothing by she Feoâ—ment â—9 H. 6. fol. 9. Against Dower the Tenant pleadeâ— that I. S. seised in Fée infeoffed him and hee leased to the Baron to hold at will which estate hee continued all his life time sâ—ns câ—o that he was seised of any such estate que Dower la puit the Iudges orderad that for the long continuance of the possession and dought deslais gâ—â—â— all should be entred 10. H. 6. 17. It is not a good plea against Dower â—o say the Baron had nothing but for terme of his life for this amounts to the generall 〈◊〉 Ne vnques seisi que Dower la puit But to say the Baron had nothing but 〈◊〉 ment with A. in fée and that A. suruiued c. This by â—â—â— Fée simple confessed makes a good plea. 14. H. 6. 5 6. In action of Dower the tenant said â—e was seised till by the Baron disseised vpon whom he re-entred Iudgement c. the Demandant said that before this tenant had any thing in the land W. being seised in Fée infeoffed her husband issâ—â—t seisi c. and she prâ—â—â—â— to be endowed per Martiâ— the replication is not good â—â—â— this might â—e before the Disseisin and before couerture too and if so then the Baron Ne vnques seisi que Dower la puâ—â— That yée may yet perceiue further how 〈◊〉 a point it is to take or relinquish this plea rightly marâ—â— well the case 30. H. 8. Dyer fol. 41. In a Writ of Dower the issue was Ne vnques
where it saith Deins l'an iour apres le fait this le fait is vnderstood the felony whereupon Appeale must commence Therefore if a man bee strucken and wounded on one day and dye within the yeare another day the Appeale must be begun within a yeare and a day after the wound giuen And if a yeare after a murder committed one become accessarie there lyeth an Appeale against this accessarie as it seemeth within the yeare and day after he became a Felon And the Appellant is not confined to a yeare and a day next after the murder committed Stamford fol. 63. a. But in Heydons case Sir Edw. Cokes 4. Rep. fol. 42. Wray Chiefe Iustice said that the common experience of the Kings Bench was and so was the Law without question that the yeare for the bringing of the Appeale shall be accounted from the death and not from the stroke against Stamfords opinion And the rest of the Iudges there said that there is no felony vntill the death And in the 7. Rep. fol. 30. it is said If the Appeale be deliuered to the Sheriffe within the yeare and before its returne or that the Sheriffe hath done nothing and the King dieth and the yeare ends before the returne in that case the Plaintiffe shall haue a Certlorare to the Sheriffe returnable in the Kings Bench and vpon that the Plaintiffe shall haue Reattachment c. and that for necessitie c. otherwise she should lose her Writ lawfully purchased SECT IV. Within what Countie an Appeale must be brought REgularly this Appeale ought to be brought into the Countie where the homicide or murder was committed But admitting that a man he wounded in one Countie and goe into another and there dye where shall the appeale commence by Common Law Titulo coronae In Fitzherbert 59. it appeares that it â—as commenced in the Countie where the wound was giuen but both Counties ioyned in triall as well where the wound was as the death And in the same title Placito 60. in such case the Appellant commenced in the Countie where the partie died and triall by ambideux Counties By these bookes it should séeme that at Common Law the Appellant might chuse his Countie but now the Statute 2 3. E. 6. is plaine which ordaineth whereas Iurors in one Countie could not take knowledge of things done in another by the Common Law That in cases vt supra an Inditement found by Iurors of the Countie where the death happeneth whether before the Coroner supra visum corpoâ—s or before Iustices of Peace or other Iustices or Commissioners which haue authoritie to enquire of such offences shall be as good as if the stroke wound or poysoning had béene in the same Countie where the partie shall die c. And the Iustices of Gaole deliuerie or if Dyer and Terminer aâ— the same Countie where such Indictment shall be taken And the Iustices of the Kings Bench after the Indictment remoued before them may procéed as if the stroke or poysoning and the death had béene all in one Countie And the partie to whom Appeale is giuen may commence take and pursue in the same Countie where the partie feloniously stricken or poysoned shall dye against the principals or accessaries in whatsoeuer place or Countie the same accessaries shall be guiltie And the Iustices before whom the Appeale shall be commenced sued and taken within the yeare and day after the slaughter committed shall proceed against all such accessaries in the Countie where the Appeale shall be so taken in like manner and forme as if the offence of such accessarie had beene done and committed in the same Countie where such Appeale shall be taken as well by triall of twelue men of the same Countie whereâ—â— such Appeale is so sued vpon plea of not guiltie or otherwise And further it is ordained that where murder â—â— any manner of felony shall be committed in one County and another person or more shall become accessary or accessories in another County an Indictment found or taken by Iustices of Peace or other Iustices or Commissioners to enquire of fellonies in the County where such offence of accessories is committed or done shall bée as good as if the principall offence had bééne committed and done in the same County wherein the Indictment of accessary is found The Statute appointed further how the Custos rotulorum or Keeper of the Records of the principals attainder or aquitall shall certifie c. Before this Statute if one man had committed murder in one County and another had béene accessary in another County there was no remedy against this Accessary by the Common Law Stanford fol. 63. yet Kinuet said 43. E. 3. fol. 18 If a man were slaine in one part of the Towne and another man receiued the Manqueller in another part of the Towne which is in another County Appeale might bee sued against them both in the Courty where the killing was committed and that so it had béene adiudged SECT V. Before whom appeale shall be sued By the afore recited Statute it appeares before whom appeale must be sued but Stanford sets it out yet more largly Libro 2. cap. 14. The party entitled to an appeale is at election to take it by Writ or by Bill If he take it by Bill he must sue al procheuie County maintenant as soone as the fellony is committed and by Britton fol. 5. the Plaintiffe must stude two sufficient pledges lyable to the Viscoâ—â—â—â— distresse to pursue his appeale according to the Laâ— of the land and the Coroner shall enter the appeale and the â—ame of the pledges Then it shall bee commanded to a Bayley or seriaunt du pais wherein the fellâ—ny was done that hee haue the bodies of the appellées at the neâ—t County to make answer c. If the â—â—rieant testifie at the next County that â—ee cannot finde them it shall be awarded that the principals which are appeaâ—â—d d â— fait be solemly demanded to come to the Kings peaâ—â— and due triall of the fellony whereof they be appealed and so they shal be called from County to County vntill they appeare or vntill they bee outlawed So saith Brâ—â—ton and with him aâ—cordâ—th 22. Assis 97. 98. which séemes a maruelloâ—s matter to Sâ—aâ—â—ord viz. that any Viscount or Coroner should award processe of outlawry in such a case Because Magna Charra 17. written long time before either Brâ—tton or the â—â—ok of Assizes is that no Viscount Constable Escheator Coroner or other the Kings Officers may hold any pleas of the Crowne Therefore many doe hold opinion that 〈◊〉 appâ—ale is commeâ—ced before the Sheriffe or Coroner although they may awaâ—â— processe till exigent yet the exigent it selfe tâ—ey cannot award neither if he appeare can they put him which is appealed to answer but onely commit him to prison because of the Statute Anâ— when appeale is commenced before the Viscount or Coroner it may be remoued into the Kings Bench by a
mothers side yea and before a sonne of the second uncle on the part of the father and this by the worthinesse of blood I will not examine the crainkes of discent but turne to the case where possession of the brother excludeth a brother and taketh in a sister If a man hath issue a sonne and daughter by one venter and a sonne by another and give land to the eldest sonne in taile now if the father die and the reversion in fée discend to the eldest sonne who likewise dies without issue of his body the second sonne shall have this land For here was no possession but an expectance of fée simple in the eldest Per omnes Iusticiarios de Communi Banco 24 E. 3. fol. 13. For it is possessio fratris non reversio fratris c. Yet Thorpe Iustice of the Kings Bench thought the land should goe to the daughter Brooke con Brooke discent 13. Againe afine was levied to I. and A. his wife in taile the remainder in fée to A. they had issue a sonne and the husband died the wife tooke another husband by whom shee had issue another sonne and died the eldest sonne entered and died without issue the collaterall heire to him entered as into the remainder in fée and the youngest sonne of the halfe blood to execute the fée brought a Scire facias which was holden good for though the eldest might have charged forâ—ited or given the fée simple by atteinder yet it was not actually in him and therefore the demi sanke none impediment but the younger sonne might have it as heire to his mother 24. E. 3. fol. 30. Which cases prove that the possession of a brother to convey the fee to a collaterall heire if it be not apprehendeth actively the generall heire to the common ancestor may enter Therefore where there is a son or daughter by one venter and a puisne sonne by an other venter if the father die seised of an advouson or a rent and the eldest son died before he present or receive the rent the daughter shall not inherit and if the father die seised of an use in fee possessio fratris facit sororem esse haeredem by taking the profits of the ground 5. E. 4. 7. Where it is said that if the father by testameÌ„t bequeath the profits for tearme of yeares this letteth not the possession of the eldest brother otherwise it is if it had beene for tearme of life and the like difference is by this booke if a lease be made for yeares or for life of lands not in use c. SECT VIII Where the manner of gift altereth the discent BRactons first exception to his general rule that a Woman shall not inherit when there is an heire male is Nisi contrarium faciat modus donationis His example is A man giveth land to one in mariage with his daughter to them two and to the heires of their bodies they have issue a daughter and the husband dying the wife taking another husband hath by him a sonne and dieth the daughter shall inherit per modum donationis the case is plaine But Littleton hath a limitation where modus donationis doth cleane exclude Women from inheriting That is where lands are given to a man the heires male of his body now if he die having issue a sonne and a daughter by one wife and a second sonne by a second wife the daughter can never inherit nay if he die having issue a daughter onely which daughter hath a sonne neither daughter nor son shall inherit for whosoeuer shall inherit by force of an intaile made to heires males must per modum donationis be males coÌ„vey his disceÌ„t to it per heirs males which because the sonne cannot doe here the donor may reenter But Littleton saith also lest women should take the matter unkindly at his hand that where land is given to a man to the heires females of his body his issue female shal inherit per formaÌ„ doni not the issue male for the will of the giver must be observed He hath another case which I may not omit When lands are given a man to the heires males of his body which have issue 2. sonnes the eldest dyes having issue a daughter if hée lease the land for tearme of yeares the reversion descendeth to the sonne but if the lease bée for tearme of life of the lessée the reversion and the fée simple descendeth to the daughter the discontinuance is the cause here the daughter is in not in the per but contra modum donationis by violating the will of the giver SECT IX Where a woman comming to lands shall retaine them c. NOw I will shew you where a female having gotten inheritance per modum donationis or otherwise shall retaine it and where not Marke well this case Iohn died seised of fée leaving issue Robert the eldest sonne and Richard the puisne Robert entred tooke a wife and had issue Alice which Alice died hée tooke another and leaving her great with childe hée died the Lord seized the land and ward of Alice and granted the custody to one which indowed the wife of Robert she was delivered of a sonne William The Lord seized William his ward which lived ten yeares and died without issue Henry the sonne of Richard the second sonne of Iohn entereth Alice entereth upon Henry and hée brings an assise now because the possession of the Lord was seisin and possession of William to whom Alice was but of the halfe blood it was awarded that Henry should recover But by the opinion of the Court the land which the wife held in dowre should goe to Alice for therein William had Broke dispent pl. 19. no more but a reversion 8. Assisa pl. 6. Againe Henry seised of tenements deviseable in Winchester where the Custome is that hée which is seised by devise may not with warranty or without warranty make alienation to barre the reversion or remainder deviseth them to his wife Alice for tearme of life the remainder to Th. his sonne for life so that Th. should make no alienation quo minus tenementa devenirent propinquioribus haeredibus de sanguine puerorum post mortem predicti Thom. Henry died having issue Steven an elder sonne and Maud a daughter which had issue Eliz. Steven died without issue Alice the wife entered and died seised Tho. entereth and alieneth in fée with warranty Maâ—d dieth Elizabeth maketh claime by taking the haspe of the doore in her hand Tho. dieth without issue Eliz. entereth upon the alienee he puteth her out shée bringeth an assise It was holden that the heires of Henry had nothing in the fée simple by the limitation which went not to his children but to the next of blood to his children excluding ses infants demesne And by Wilby if B. make a lease to Alice for life the remainder to the néerest of blood if he die having issue 2. sonnes and the
45. Edw. 3. is contra But severall tenancy or non-tenure is no plea in a Nuper obiit for the priuity of blood But a sister may claime by purchase and disclaime in the blood and this is a good plea. If one coparcener die leauing issue a sonne which sonne infeoffeth a woman in all the land c. then marrieth her now cannot the other percener haue a Nuper obiit against the baron feme But she may haue a mordancestor in her owne name and in the name of the seisure which the father had the day of his death for that amounteth to a dying seised see Novel nat br 197. c. SECT XVII Of the writ of right de rationabili parte THere is also another Writ called a writ de recto de rationabili parte that neuer lieth but betwixt priuies in bléed as betwixt brothers in gavell kinde or betwixt sisters nephewes nieces c. It is also for lands in fée simple as where the ancestor leaseth land for tearme of life and dieth having two daughters and after the death of tenant for life one of the daughters entreth into the whole inheritance and deforceth her sister the deforced may haue this Writ it is maintenable by two or thrée sisters against the fourth or by an aunt or niece against a sister that deforceth and this writ lieth as wel where the ancestor dyed seised as where he died not seised It is in nature a writ of droit patent must be directed to the Lord of whom the land is holden from before whoÌ„ it is remoueable by a Tolt as the Haught writ is where the ancestor dieth seised and one coheire deforceth another whether it be in gauell kinde or amongst partners at the common law the deforced hath election of this writ or of the nuper obiit But when he died not seised and a coparcener afterward deforceth the Nuper obiit lieth not The forme of this writ is Precipimuâ— to the Lord ut sine dilatione plenum rectum teneas A. de decem acris cum pertinentiiâ— quas clamat esse rationabilem parteÌ„ de libero tenemento quod fuit I. patris vel c. tenere per liberum servititum tertiae partis c. for it must be séene what rent and seruice the whole land yéeldeth to the Lord according there to shall the plaintiffe be rated in his or her writ If after the death of their ancestor two coparceners enter and the one doe then deforce the other of something appendant or appertenent to that which is holden in coparcenery she may haue a writ de rationabili parâ—e of this appendant or appertenent which shall say quod clamat tenere ad liberum tenementum If a man dying seised of lands intailed haue two daughters whereof the one entereth and deforceth the other the remedy is by formedon and neither by Nuper obiit or Rationabili parte If a sister aunt niece or cousin claime from her ancestor by feofment in fée one which should haue bin coparcener had the feofment not bin deforceth her she may haue a writ of Droit patent and joine the mise by battaile or graund assise come semble saith Fitzherbert because shée claimeth not as heire But where there is no impediment intaile feoffement or such thing all the partners deforced bring a rationabili parte against all the copartners terre-tenants for so it must bée and the heire of an heire may sue for part of the seisin of the coÌ„mon ancestor there battail or grand assise voucher or view lie not neither is noÌ„tenure any plea for the writ lieth only betwéen privies in blood finally the demand in this writ must bée of a portion certaine as of x. acres if xx discend to two sisters and the demandant if she recouer shall haue iudgement of so many to hold in seueralty SECT XVIII Of Partition NOw of Partition it may be made in diuers maners as first for example by agréement amongst two copartners or more which accord to diuide the inheritance into certaine parts of equall valew to bee holden in severalty and alwaies the part which the elder hath is called Ini ia pars though in this kinde of partition there bee no prerogatiue of primer election giuen to the eldest Another manner of partition is where they cause certaine friends to make the parts or diuision here the eldest shall first chuse then the next eldest and so succéedingly If by their whole agréement the eldest make the diuision it is said saith M. Littleton that she shall last make election which is as much to say say I as she shall haue none election at all Littleton hath another maner of alotment wherein after partition made of the lands euery part being written in a seroule and lapped vp in a bale of wax is put into a bonnet which must be holden by some indifferent body and then as wee use to choose Valintines euery partner pulleth out a part the first borne first the rest after her in degrée of ancientry and euery one shal hold her to her chance Also partition may be made in Chancery as when one copartner of full age and another remaineth in ward to the King c. in such case if she which resteth in ward at full age haue not her full part she may sue a writ of partition or Scire facias vpon the record returnable in Chancery to shew why a new partition shall not be made and partition may be of a reversion or of an aduowson Of a reuersion thus that A. shall haue reuersion of such such lands B. the reuersion of such other laÌ„ds of an aduowson that A. shall haue euery 2. 3. or 4. auoidance c. this is good without deed where partition is made of a mannor without mention of the aduowson it remaineth in common sée that case of aduowson and partition of aduowson 2. Hen. 7. 5. a. Partition by agréement of parceners is good in law aswell by paroll as by writing and if vnto two copartners there doe descend two houses whereof the one is worth xx s. and the other x. s. annually the best house may bee allotted to one copartner and she and her heires to pay to the other and her heires for owelty or equalities sake v. s. rent issuing out of her house and all this is good without writing so that the partner that shall haue this rent and her heires may distraine for the same when it shal be arere of common right in whose hands soeuer the house charged shall come and this shall be a rent charge of Common right had and receiued for equality of partition Fitzherb fol. 252. Plow 134. Partition of lands that one partner and her heires shall haue and hold them from Easter to the gule of August alone and by her selfe and the other and her heyres from August till Easter in the like manner was awarded a good partition in the time of Ed. 2.
it selfe should be deliuered to a Lay-man altogether vnlettered which should distribute to euery coheyre her part at aduenture wherwith she should stand contented But this might be otherwise by their agréement amongst themselues to elect according to the prerogatiue of their age Bracton discendeth déeper into examination what things may be parted amongst coheyres exempting neither lands tenements homages villinages seruices seruitudes or anything belonging to lands and tenements from diuision vnlesse it be seriantia quae diuidi non debent ne cogatur-Rex seruitium accipere per particulas or a castle or the head of some Earldome or Barrony quod propter ius gladij diuidinon debet sit illud castrum vel aliud edificium hoc ideo saith he ne sic caput perplures particulas diuidatur plura iura comitatus Baroniarum deueniunt ad per nihilum quod deficiat regnum quod ex comitatibus Baronijs dicitur esse constitutum Therfore Caput comitatus vel Baroniae resteth indiuisible and shall go to the eldest copartner though where there are many chiefe and great Mansion-houses euery one may haue one perhaps and if there be but one euery one may haue part thereof where the frank-tenement is holden by seruice militarie for if a frée soke-man die whose heritage it is ab antiquo partibilis the eldest son by Bracton shall haue his house and the rest shall haue allowance Amongst other things Bracton standeth long vpon the bringing to a common heape which we call Hotchpot Lands giuen in marriage to a coheyre shewing that though lands giuen in marriage whether the Inheritance be discendens or perquisita and whether shee to whom the land is giuen be at the time of the gift a maid or a widow must needs fall into partition when part of the other lands is claimed hoc quamuis homagium interuenerit post tertium haeredem yet for all that she to whom there is giuen in marriage already more then an euen portion may well retaine it and is not compellable to any confusion vnlesse she demand a share in that which remaineth so that she to whom all is giuen may likewise retaine all And where a daughter was infeoffed pro homagio seruitio or where a stranger was infeoffed of part of the inheritance which afterwards married a daughter c. they might be made parcell of the other lands without any Hotch-pott of these things ye may read more in Bract. li. 2. c. 33 and 34 with a Writt of habere facias seisinam for he saith possessio non pertinet ad haeredes nisi naturaliter fuerit apprehensa animo et corpore proprio vel alieno sicut procreatorio prius ad ipsos non pertinebit vnde cum in curia Regis facta fuerit partitio statim habeanâ— breue de seisma sua habenda SECT XX. of Hotch pott according to Littleton FOr putting of lands in Hotch-pot there is no where so full and plaine learning as in M. Littl. third booke c. z. If saith he a man seised in fée-simple lands hauing issue two daughters of which the eldest is married giue parcell of those lands to his daughter and her husband in franke-marriage and die seised of other lands excéeding in value those which are giuen c. the husband and wife shall haue no part of this remnant vnlesse they will put the land giuen vnto them in Hotch-pot for example If the father had 30. acres and gaue 10. now after his decease if the donées refuse to make commixtion the other daughter may enter and occupie the whole 20. and hold it to her selfe But putting all in Hotch-pott to finde the intire value for it is but an estimation or valuation finding the acres to bee of like goodnesse the Donées in franke-marriage shall haue an nâ—reasement of 5. acres to hold all 15. in seueraltie so that alwayes the land giuen in frank marriage must remaine to the donées and their heyres for else saith Littleton should follow a thing vnreasonable and inconuenient which alwayes the Law detesteth there is the same Lawes betwixt the heyres of Donées in frank marriage and the other partners if the Donées themselues die before their ancestor or before partition This putting of Land in hotchpot is where the other lands descend from the Donor onely and not from any other auncestor for if they descend from the father or brother of the donour from the mother of the Donée that which is equallie so discended shall be without Commixtion equally diuided Also by Littleton if the land descended be of equall valew with the land giuen in franke Marriage Hotchpot should be then in vaine and to no purpose and sée Littl. Chapter of parceners more concerning such Hotchpot How partition may be auoyded PArtition made betwixt two Sisters tenants in fée simple they both being of full age is not defesable though there want oweltie and equall valew in their parts But if the land were in fée-taile the parties making the partition should bee bound and concluded onely for their time the issue of her which had the meaner value might enter after her mothers death into her Aunts part and occupie with her in common and she againe with her niece in the part alotted to her Sister If two Coparceners in fée both married together with their husbands make partition it shall stand in force during the coverture but after the death of a husband his wife hauing a meaner part may enter and defeat the partition not so if at the time of the alotment the parts were both of equall annuall valew If two Coparceners whereof the one is vnder 21. yeares age make partition so that a meaner valew is allotted to the puisne partner she may enter and defeat the partition either in her minoritie or when she is of full age but let her take héed when shée commeth once to full age that shée take not the whole profit of that which to her selfe was alotted for that is an agréement to the partition and maketh it indefeasable peraduenture a moietie of the profits she may take Thrée acres of land are giuen to one in taile which hath other thrée in fée and after his death his two daughters make partition so that one hath the land intailed and another the land in fée if shée which hath the fée-simple alien her part and die her issue may enter into the land tailed and hold occupation in Common with her Aunt whose folly was to make such a partition for since shee is without remedie against the alienée of her mother and without recompence for the lands intailed whereunto she is an heyre by descent from the first Donée it is reason she may enter specially considering that the state taile is not discontinued yet 20. Hen. 6. it is holden that she is put to her Formedon A man seised of two carues of land one by iust title another by disseisin of an infant dieth seised hauing issue two daughters they diuide
the woman they shal remaine ioyn-tenants of the Franke Tenement and the Inheritance is gone Tailâ— 9. But per Dyer fo 147. and 12. assi p. 22. and 19. assi p. 2. If Tenants in Franke Marriage be diuorced the Woman shall haue all the Land for the Land was giuen for the womans sake and for her aduancement and by Iohn Bracton her husband hath no more in it but Custodiam as he is the wiues tutor and Guardian By the same reason therefore that the wife shall haue the land if she be diuorced by the same I should thinke she should haue it if her Sponsus refuse to marry her But where I giue Land to one to marry my Daughter or if hee marry my Daughter there if hee marry another woman I may enter SECT XXXVI The word Franke Marriage maketh Inheritance IF a man giue lands with his Sister to I. S. in Franke Marriage habendum â—is haeredibus suis in perpetuum By Kniueâ— Mowbray and Finchden 45. Ed. 3. fo 19. this maketh neither Frank Marriage nor estate taile with an expectance of fée as in Case where Lands are giuen expresly in taile habendum eis haeredibus but the fee-simple passeth presently by the gift for Frank Marriage must be holden of the Donor which here hath nothing left in him but all is holden of the Lord Parainount and the words doe not make any other estate taile yet 13. Ed. 1. lands were giuen to one with the Cousin of the Donor in Franke Marriage habendum eis haeredibus and it was taken for good Frank Marriage This saith Brooke was in the yeare that estates taile were made in But for all that if yee look the case in Fitzherbert Formedone 63. whither Brooke sendeth you you shall perceiue that at the time of the gift it was Franke Marriage in fée-simple for by those dayes the Donee had potestatem alienandi post prolem suscitatâ—m But in a gift made after the Statute of quia emptoreâ— on such a fashion I take it the Law will be as before in the case 45. Ed. 3. According as it was also holden in the yeares of H. 8. that if a gift bee made in Franke Marriage the remainder to I. S. in fée this is no good Franke Marriage for warrantie and acquitall that are incident c. bee only in regard of the reuersion to the Donor and they cannot be had when the fée-simple is presently conueyed to a stranger SECT XXXVIII The Accompt of the Degrees LIttl accounts the Degrees from the Donor to the Donees the first Degrée from the Donées to their Issue the second from the Donées Issue to his Issue the third c. and the Issue in the fift Degrée shall doe seruice And this saith he because the Issue of the Donor and the Issue of the Donée after the fourth Degrée past may inter-marrie by holy Churches Law Bracton accompts thus donatarius facit primum gradum haeres suus facit secundum haeres haeredis facit tertium haeres secundi haeredis facit quartum qui tenebitur ad seruitium yea hee maketh it an expresse rule that onely the Donée and two heyres succéeding lineally shall enioy the immunitie of being acquitted And hee seemeth to vnderstand no other reason of the acquitall so long but onely an abstenancie from homage lest the taking of it should hinder a reuerting if it betided the Donée or the Issue to die without Issue Fitzherbert titulo droit 55. and 60. citeth 6 H. 3. and 15. H. 3. in warrant of Bractons Computation which I thinke he fetched not any further then out of the Author himselfe in whom fo 21. I find it And fo 22. hee answereth a doubt of his owne asking that is Whether all other seruice shall follow and continue if homage be done ante terâ—ium haeredem wherein he concludeth that the seruice euer followeth homage quamuis ad damnum soluentium And I conclude whether it be the third heyre or the fourth that shall doe seruice he may still vouch haue a Writ of me ne as if the fourth Degrée were not past and if he bring a Formedone the Writt shall be Dedit in liberum Maritagium SECT XXXIX A Woman giues Lands to one to marry her AS Franke Marriage maketh Inheritance without the words Heyres and is alwayes made to a woman and for her sake so there is another Donatio propâ—er nuptias that is conditionall without words of Condition made euer by a woman to a man That is where a woman giues Land to a man in fee-simple or for tearme of his life to the intent that hee marry her who if hee afterwards when hee is thereto within conuenient time required refuse c. there is now an ordinary Writt for remedy granted in this case to reduce the Land which Writt may be sued in the per cui or post after one or more alienations either by the woman sole or by her and her husband married against such a one as should haue married her after the refusall or after her death by her Heyre whether it bee Sonne or Daughter or Daughters with the child of another and there needs no scripture or writing to proue that the feoffement was for intent of Marriage nay if a woman infeoffe a stranger to the intent to infeoffe her and one which she intendeth to marrie if now the espousals take not effect she may haue Writt causa Matrimonij prelocuti against the stranger though the déed of feoffement were simple and sans Condition an 34. Ed. 3. li. assi and 40. Ed. 3. li. assi a woman enfeoffed one which had a wife and entred for non-performance of the Condition heritance of woman and in this part because it resembleth the Donations that are propter nuptias the Doctrine of it being something like that of Dower SECT XLI Marriage THis Courtesie is in the Inheritance of a Wife therefore a consequent of lawfull Marriage and exceptions of Concubinage or such like which are impediments of Dower must needs be good exceptions here SECT XLII Seisin THere must be in the wife a seisin and possession for if she were but heyre in appearance die before her Ancestor this auaileth her husband nothing Similie If the Father being seised of Lands dye and soone after his Daughter and Heyre dyeth before actuall seisin had by entrie either by the husband wife or other person for them so that no possession and a naked possession in law here is all one yea the law is taken that if a man dwell in Essex with his wife and lands descend to her in Yorkeshire if she die the next day after before entrie the husband shall not bee Tenant by the Courtesie for euen in this case is found a default in him that he did not constitute one to make entrie for him maintenant after the Auncestors death yet if rent descend to a woman Couert c. which dieth before day of payment or after the day and no
villenage 35. And if a woman Heyre haue issue by her husband commit felonie and be attainted it hath béen mostly holden that the husband shall be Tenant by the Courtesie notwithstanding and that after Issue had the Lord may auow for homage vpon the husband without the wife 21. Ed. 3. 49. By Parkins 91. 475. Likewise if the Wiues Inheritance be recouered against Baron and feme by false oath or erronious Processe and execution is had and sued of this recouerie if they haue Issue afterwards and then the wife dieth the Baron now reducing the Land by attaint or error shall hold per le Courtesie SECT LII What if the Childe die IF a man haue Issue by his wife that is here in possession the death of the Issue is no losse of Courtesie and by Parkins if a Daughter and Heyre apparant take a Husband haue Issue by him and the Issue dieth if now the Father die and the Baron and feme enter he may be Tenant by the Courtesie without hauing other Issue Brooke makes it questionable Also by Brooke if a man die his wife being priuement enseient a Daughter entreth as heyre taketh a Husband and hath Issue if a Sonne post-humus enter vpon the Baron and feme and the Issue of the Daughter dieth and the posthumus dieth without Issue the Baron cléerely shall not be Tenant by the Courtesie vnlesse hee re-enter in his wiues time and he doubteth though the Baron enter sans other Issue bility his wife may beare him may by possibilitie be heyre of that estate Si le possession le Baron ne soit loyalment anient As addeth Parkins the Wife shall be endowed SECT LVI The Husband must be seised DOwer is of the possession of a Husband the ground of it therefore is Marriage a Concubine then shall haue no Dower no more shall shee which is but onely contracted and it was holden by some 10. H. 3. that she which was married in a Parlor or Chamber should haue no Dower but it is now taken otherwise Also where Marriage is cleerely voyde and vnlawfull there groweth no title of Dower But if a woman first contracted to E. I. intermarry afterwards with T. K. this Marriage is voydable but not cléerely voyde and if it be not frustrated otherwise then by death of T. K. the Wife shall haue Dower of his Land Here yee may perceiue that which destroyeth an absolute true Marriage destroyeth Dower also for though by Bracton there may be by speciall Constitution a Dower appointed that shall stand good against the tempest of diuers assaults yet by ground of the Common Law Matrimonium est fulcimentum doâ—is And Bracton saith in his second booke and 39. Chapter Vbi nullum omnino Matrimonium ibi nulla dost igitur vbi Matrimonium ibi dos quod verum est si Matrimonium in facie ecclesiae contrahatur SECT LVII Matrimony may be and yet no Dower THough Matrimony doe alwayes precede Dower yet doth not Dower alwayes follow Matrimony for first where the husband had no Land the Wife can haue no Dower by the Common Law Bracton and Breton which giue a woman Dower in a certaine somme of money or in other Chattels speake rather as Ciuill Lawyers then méere English Also Dower is not granted vnlesse the Husband is aboue 7. yeers old and the wife aboue nine 13. Ed. 1. Fitzherbert Feme perdera Dower si son Baron morust deuant 9. ans d'age Dyer 14. Eliz. fo 313. Also if a man marry his bond-woman in grosse and die she shall not recouer Dower against the Heyre for shee is his bond-woman but against the Feoffée of her husband she shall recouer Dower vnlesse she be regardant to the Mannor whereof the Feoffement was made SECT LVIII What Seisin is requisite in a Husband WHere the Huband hath neither possession in fact nor possession in Law during the Couerture nor any thing saue onely a right or title the wife shall not haue Dower as also if the Baron suffer a Disseisin an abatement a Condition broken an alienation in Mortmaine or cesser of his rent or seruices by two yeares space c. and then he take a wife dieth before reduction of his Land or if iudgement be giuen for him in a plea of Lands and hee marryeth afterward and die before entry or suing of execution the wife shall not haue Dower of these Lands So is it if I. S. exchange Lands with T. K. and I. S. entreth but T. K. taketh a wife and dieth before entrie his wife shall not haue Dower in any of the Lands exchanged but where a husband is once actually seised the wife shall bee endowed notwithstanding any disseisin afterward done to him or feoffement made by him either absolute or conditionall And if before or after Marriage celebrated and not dissolued a possession in Law be cast vpon a Husband by descent escheate or fall of some remainder the wife shall be endowed though the Baron die before entrie as if the Kings Tenant die seised and his Heyre being married dieth before office or entrie the wife of the heyre is dowable so if rent desâ—end to a husband which dyeth before day of payment c. for there is not requisite in the husband such a seisâ—n as whereof an assise lyeth but if a precipe quod reddat might lie against him it sufficeth 4. He. 7. fo 1. Brooke 66. in Dower A husband may haue possession in law by descent of a villaine in gros or possession in law of a rent charge by excepting the déede of grant and hereof the wife shall be endowed although the Baron doe afterwards refuse receit and seisin of the rent But iudgement in a Writ of annuity for the Baron taketh away Dower of a rent charge from the wife and a woman may haue Dower of an estate that was suspended as if the Lord married with his Tenant now is the Seignorie suspended but if he die the wife shall haue Dower a third part of the rent per retâ—igneâ— for the Seigniorie though it slept yet there was still a possession in Law of it in the husband Here it must not be forgotten that it â—éemeth doubtfull whether an abatement of a stranger which is a possession in fact destroyeâ—h a Possession in Law it appeares by Park â—o 72. sect 371. 372 4. H. 7. 1. per meux that it doth not But 21. Ed. 4. â—o 60. which is accorded for good Law 4. H. 7. fo 1. where in a Writt of Dower the Tenant pleadeth ne vnques seisie in dower c. the demandament sheweth that Lands descended to her husband she being then his wife and that he dyed before entry made either by him or by other person issuit est donable per le lâ—y and shee was inforced by the Court to plead that none entred for if a stranger had entred she had not béene dowable And if she had pleaded 〈◊〉 〈◊〉 que Dowâ—e la Poet this had wayned the speciall
NOw let vs looke backe a little and see what shall become of the dealings which Mistris Titus had whilest shee was Sempronia an agent in the world widdow or maide sola and vncouert SECT XII Of Infancie TO debate matters of infancie would aske a whole volume perse But breefly know that all deeds gifts grants c. made by an Infant which take not effect by deliuery of the infant be absolutely void By matters in fait or writing which take effect by hand and deliuery are onely voydable by the infant or by them which haue the infants estate Out of his rule are excepted acts apparently of necessity or profit to the infant or which can be no disprofit to him for manger boire necessarie apparell and schooling the obligation or couenant of an Infant is good Also an Infants presentation to a Church is good enough for danger of lapse and because it is no matter of emolument and things done by vertue of office as giuing of goods or payment of debts by an infant Executrix are good so are acts which concerne the infants proper purchace As if estate be made to an Infant of two acres to haue and to hold the one for life the other in fee a feoffement of one acre made by the Infant is a good election And it is said fo 104. in Dyer that an Infant is bound by all Statute Lawes if there be not an expresse exemption Now whatsoeuer a Feme sole might auoyd by infancie she and her husband may auoid it by entry or action after Marriage if they take the time else not For example An infant feme sole hath title to enter for Mortmaine within a yeare after alienation or title to enter into the purchase of her villeine before his alienation if by lachesse she let slip her aduantage as she may doe notwithstanding her infancie no wise husband that she taketh afterward can mend it for here was but a title to that which neither she nor her auncestor euer had But if an infant Feme sole haue a right as vpon disseisin done to her or her auncestor she may alwayes enter whilst she is sole notwithstanding any descent during infancie And so may her husband which marrieth her after the descent Littl. teacheth vs fo 95. Chap. Descents that lachesse of a husband which suffers descent shall not toll the entry of a Feme couert or her heyres after Marriage dissolued But there is an addition to Littleton that it is otherwise where a title is already giuen to a Feme sole which taketh a husband and suffers descent c. for it shall now be accounted the Womans folly that shee would take such a husband Howsoeuer it be Law or howsoeuer it be vnderstood the Case before must néeds be good Law for an infant Feme hath as much fauor as an infant Male And taking of an husband cannot toll an entry which was saued to a Feme sole by infancie neither doe I perceiue how the husbands lachesse at the time of descent can toll the Wiues Infancie to make any imputation of folly where infancie might excuse it By Parkins If a man lease two acres to me for life the remainder of one of these acres to a Feme sole which afterwards takes a husband and then the Lessée dying the Baron entreth into one acre and thereof enfeoffes a stranger by mets and bonds the wife shall not after his death enter and if Baron and Feme make a gift in taile or lease for life of the wiues Land rendring rent so soone as the Baron dies the reuersion is onely in the wife who by accepting the rent shall bind her selfe and her heyres But if shée will refuse the rent because she was vnder age at time of the feoffement it séemes she may be receiued to a dum fuit Infra etatem wherby she affirmes the feoffement to be her owne If this be infallible Law I doubt not then if a Feme infant disseised doe marry and during her infancie the husband suffereth a descent but her entry is saued and she may enter after Couerture dissolued if not before But Fitzherbert concludeth with a quaere and so must I. SECT XIII Acts c. of a Feme sole being full Age. VNderstand now by a Feme sole a Woman of sull age If a Feme sole become indebted and marry the Baron and Feme may be sued for this debt during life of the Feme If the Creditor sue the recouer the Baron shall be charged with it after the wiues death aliter non A Feme sole Lessée for life rendring rent takes a husband the rent is arrere the wife dieth though here be no recouery in the wiues life time yet because the Baron tooke the profit he is still chargeable in a Writt of debt for the rent for quisentit commodum sentire debet onus If a Feme endowed of rent take a husband and die the husband shall haue action of debt for the rent arere for it was a duty accrued during couerture But if a man be bound to a Feme sole and she takes a husband and the day of payment comes during Couerture now if she die her husband cannot haue an action of debt vpon the obligation for this was a thing in action before marriage Nat. bre fol. 120. 121. And agréeing to that is 39. H. 6. 27. Br. Testaments 10. but by that booke the Wife may make the Baron her Executor and so saith the Booke of 12. Hen. 7. 22. If a Feme sole being made Executrix take a husband she remaine still a disposer of the Testators goods to his vse and after payment of his debts she may deliuer Legacies and after all that giue the rest for Gods sake maugre le test sa Baron But vpon such a giuing of goods or deliuering of Legacies before payment of debts the husband may haue an action of trespasse for gift before payment is not a right administration but a deuastation of the Testators goods Par. fo 2. and 18. H. 6. A feme sole seised of a carue of land grants out of it a rent Charge by déed and deliuers this deed to a stranger with Condition to deliuer it to the grantée as her déed if he goe to Rome and returne before Easter the Woman takes a husband the grantée performes the Condition the déed is deliuered to him he hath a good rent Charge yet the Baron was seised of the land before the grant tooke effect what though if the Feme had infeoffed a stranger of the land he should haue held it charged for to some intent the grant hath relation from deliuery of the deed as an escrow though for the rent the grantée cannot haue that but for the dayes incurring after the darraine deliuery and if the Feme at the deliuery of the escrow had béene marryed all had béene voyd Par. fo 2. 3. and fo 29. some hath maintained he saith where a Feme sole deliuers an
comfort of your Husband yet a farre greater comfort the effect of Balaams desires Let me die the death of the righteons and let my end be like his SECT XV. The Husbands power in Lands which the Wife holdeth in Dower or otherwise for life THe Husbands Soueraigntie ouer his wife her goods and chattels personall or reall is no lesse then hath béen declared The dominion likewise ouer all manner of Franke Tenements his owne or his Wiues is supereminent in him during Couerture but so that he standeth well bridled from doing any thing a per luy whereby either the Dower which his wife had by a former marriage or expecteth by the present or any other estate for life or in fée can be taken from her when heâ— is gone If a Widdow tenant in Dower marry and her new husband surrendreth c. this is good during Couerture but if the Feme suruiue or if there be a Diuorce causa praecontractus the Feme may enter and defeate the surrender though he to whom it was made be dead and his Heyre in by descent yea and the Law differeth not heere though the Wife had ioyned with the Husband in the surrender But if Baron and Feme will surrender Lands which the wife holdeth for life by fine this shall bind the wife for the wife which is giuer shall be examined c. for no particular Tenant can surrender by fine without being named in the writt wherevpon the fine is leuied Par. 117. If a lease be made to Baron and Feme for life and the Baron make aliâ—nation in fee the Lessour may enter for a forfeiture and maintaine an assise if he be ousted but the Wife surâ—iâ—ing may haue a cui in vira post mortem is by a husband disseised release all his right to the husband and afterward notwithstanding the release brings a writt of entry in nature of an Assise and recouereth against him by default the wife of the releassée shall bee indowed But if the Heyre of a disseisor being in by descent the disseisée re-enter and take a wife now a recouery against the Baron by default or reddition in a writt of entry in nature of Assise taketh away Dower from the wife for the recoueror had right according to the nature of his action and the possession which the Baron had during Couerture is destroyed But it falleth out otherwise where a man is married and then there is a disseisin descent entry and recouery vt supra If a Precipe be brought against the Baron which pleadeth misnosmer or iointenancy and it is found against him whereby the demandant recouereth this ousteth not Dower vnlesse the Demandant had right In a writt of entry in le post against the Baron hee voucheth himselfe to saue the state taile and sheweth how his father gaue him the land in taile and that the fée simple is descended vnto him and vpon a trauerse of the gift in taile it is found for the demandant which recouereth and the Baron dieth Now if so be that the Baron might well haue pleaded a release of all actions or all right of the demandant the Wife may falsifie this recouery in her writt of Dower Tenant in taile hauing Issue dieth a stranger abateth dieth his heyre entreth and takes a wife the Issue of tenant in taile arraignes an assise of Mortdancestor against the Baron which trauerseth the points of the writt and they are found against him so that the demandant recouereth and the Baron dieth It hath béene holden that the wife shall not recouer Dower heere vntill the heyre haue reuersed the verdict by attaint But it seemes saith Parkins he may falsifie the recouery in a writt of Dower maine tenant for the husband might haue pleaded to the action of the demandants writt and if the Feme which by no meanes might haue attaint must tarry till the Heyre haue defeated the verdict perhaps he will neuer sue attaint or he will release so the wife which once was intituled to dower by her husbands possession neuer defected but by his owne lachesse should lose her Dower maugre sat est which seemeth vnreasonable Yet quaere saith he for the iudgement is upon a verdict comprehending matter repugnant and contrary to that which should hee pleaded against the writt But if the demandants entry had béene congeable then out of doubt the wife had had no power of falsifying for the entry had wrought a remitter The Heyre of a Disseisor entreth taking a wife and the Disseisée in a writ of entry ad terminum qui preterit recouereth against the Baron by default the wife may falsifie this recouery in a writ of Dower But it is seldome that the demandant in Dower shall falsifie a recouery against the husband had by his lachesse in not pleading a plea which went méerely in abatement of the writt And therefore to say that the Baron might haue pleaded misnosmer or ioynt-tenancie will not serue to falsifie a recouery But if she can proue that the demandant had no right nor cause of action but iointly with a stranger which stranger by his deed shewed forth to the Court had released before commencement of suit all his right to her husband being in possession this will serue to falsifie the recouery for a moity Thus hath Parkins in his treatie of Dower at large discouered that a title neuer tryed against the Baron in his life time may be tryed by his wife when he is in his grane And so further 36. H. 6. titulo fauxifier de recouerie in Fitzherbert 15. That a woman may falsifie a recouery had against her husband by action tried but it must be in another point and not in the very same which was tried by the recouery SECT XVII Losse of Dower by the Husbands attainder HEe that hath a notable grudge against his wife and would be sure to delude her hope of Dower hath adirect way though it be somewhat dangerous and I will not be of his Counsell Hee needs doe no more but imagine compasse and conspire some detestable renowned treason of the old stampe and if he be once attainted thereof according to his desire c. But if he doe but pingle as suffer himselfe to bee outlawed in action of trespasse this was neuer any forfeiture of Franke Tenement The Law was in the late dayes of Littleton and Parkins that euery attainder of murther or felonie done by the Baron was an ouster of dower to the wife The first Solons of the English Law be like thought that tender regard of a wiues estate should restraine a husband from all inormious transgression against the sacred Crowne and dignitie Royall would God it might but the true reason why the law was so penall for such offences of the husband toward the wife in whom perhaps was no fault that thereby shee should haue no Dower and towards the children that they should haue no descent of inheritance but the hereditary blood should be corrupt was vpon
these reasons grounded vpon the Law of nature and giuen by Iustice Stamford in his booke fo 194. saith he to this effect men will now eschew those Capitall crimes when they shall sée those persons who in nature and affection are néerest and dearest vnto them and most to bee beloued shall be punished with themselues so that if themselues will not refraine such crimes for themselues yet they should the rather refraine for the loue of their wife children vpon whom they bring so perpetuall losse and punishment and staine of so infamous a note as that their stocke blood and Lineage shall be corrupted and attainted their children disinherited and the wiues of their bosomes because the wiues of such impious and foolish Husbands by their defaults depriued of all their meanes and liuelihood And Breton fo 258. makes another reason why a wife of a man attainted c. shall lose her Dower est pur ceo que est a supposer que el scauoit del felony son mary and by him a woman lost no Dower in case the felony were committed before Couerture King Edward the sixt in the first yeare of his Reigne abrogating some Statutes concerning treasons or felonie for their austerity and making some new decrees concerning treason preserued Dower against all perpetrations of an euill husband But 5. 6. eiusdem regis ca. 11. by the last prouiso It was againe enacted that no Wife of any person attainted of treason should bee receiued to demand or haue Dower c. Yet for felonie 1. Ed. 6. is still in force And treasons by Act 5. Eliz. ca. 1. for assurance of her Maiesties royall power or by the Act eodem anno cap. 11. against clipping washing rounding or filing of Coynes or by the Act 18. Eliz. ca. 1. against diminishing or impayring the Quéenes Coyne or other coyne currant here doe none of them make any corruption of blood or forfeiture of Dower Note if after attainder the Baron purchase his pardon this is so farre forth a new birth vnto him that his Wife shall haue Dower of the Lands which come to him after pardon if his Issue by her may per possibilitie inherite Par. 75. And remember this Case 3. 4. Phi. Marie Dyer 140. b. Marie the wife of Sir Iohn Gate attainted of treason brought a Writt of Dower against Wiseman the attainder of Sir Iohn was certainly pleaded in barre she replyed that long time before the attainder and before the treason committed after the Espousals the said Sir Iohn Gate was seised in fee of the Land whererof she demands Dower and thereof enfeoffed A. B. whose estate the tenant hath vpon a demurrer without argument at barre or bench the Councell of the parties being heard in Iustice Brookes Chamber the demandant was barred of Dower by opinion of all the Iustices because the Statute is The Wife of a man attainted of any manner of treason whatsoeuer shall in no wise bee receiued to aske challenge demand or haue dower of any her Husbands Lands during the force of that attainder And by Stamford 195. this extendeth to petty treason But nota saith Dyer the Lands here sold and gone before treason committed were neuer subiect to forfeiture or escheate vt in causa Vauisor M. Littleton in the Chapter of Dower And therefore Antho Browne Serieant was angrie at the heart for this Iudgement See Littleton fo 11. per Vauisor If a man commit felonie aliene his land and then be attainted the Wife shall haue action of Dower against the Feoffée but not against the King or Lord if it be escheated SECT XVIII The Husbands power in his wiues inheritance and of discontinuance A Womans Inheritance is Lands of Inheritance which she hath by descent or purchase and her Marriage such as was giuen her in Franke Marriage by learned M. Littleton But take heere all fée-simple or fée-taile which she hath sole by her selfe or ioyntly with some other to be her Inheritance Then know that at Common Law a man seised in the right of his Wife of greene acre may make a feoffement of it to a stranger and this is such an interruption called a discontinuance of the wiues estate that not onely the Baron is bound whilest he liueth but the Wife also when he is dead is by common Law forbidden entry into her owne land and put to her action of cui in vita but if a man seised in the right of his wife be disseised and release to the disseisor though it bee with warrantie this is no Discontinuance If a man seised in fée in the right of his Wife haue Issue by her a sonne and die and then a second Husband makes a Lease of the Land for terme of his life and the Wife dyeth if now the Lessée surrender to the second Baron it is a question whether the sonne can enter during the life of lease for life But cleere saith Littleton when he is dead the son may enter for the discontinuance which was but forthe life was determined If Tenant in the right of his Wife make a Lease for his owne life the reuersion in fée is in the Baron If hee die in the life time of his Wife and of the Lessee and his heyre grant the reuersion with atturnament now though the grantee enter after the death of the Lessee yet the wife may re-enter for as an estate taile cannot be discontinued but by one which is seised by force of the intaile so the estate of a Wife is not discontinuable but by him which is seised in the wiues right SECT XIX Of a Remitter YOu must vnderstand somewhat also of a Remitter And because women learne faster by example then by precept I will not stay to define a Remitter Baron and Feme seised together in speciall taile haue Issue a daughter the wife dyeth the Baron catcheth another wife hath Issue by her another daughter discontinueth the taile disseiseth the discontinuee and dieth now is the Land descended to the two daughters the eldest daughter is remitted that is remaunded and setled in the ancient estate for a moitie and driuen to a Formedone against her Sister for the other moity for here the Sisters are by seuerall titles tenants in common not parceners If Tenant in taile infeoffe a Feme sole and die and then his sonne being vnder age intermarrieth with the Feme Feoffée this is a remitter to the Sonne and his wife which before had fée-simple hath now nothing at all in the land But if the sonne had beene of full age at the time of espousals hee had not regained the ancient estate but stood seised onely in droit sa feme If a Woman seised c. take a husband which alieneth in fee and then takes backe an estate to him and his wife for life this reprisall though it were by Indenture or by fine is meerely the act of the Husband and the woman sans folly is adiudged in her Remitter the reuersion of the
such Lease there shall be reserued yearly to the Lessors their heyres and successors to whom the Lands should haue come after the Lessers death if such Lease had not béene made or to whom the reuersion shall appertaine so much or more annuall ferme or rent as hath béene most accustomably yéelded c. within twenty yeares next before such Leases were made And euery person to whom the reuersion shal appertaine after the death of such Lessors or their heyres shal haue such remedies a aduantages to all intents against the Lessées their executors or assignes as the Lessor might haue had So that if the Lessor were seised in in speciall taile c. the issue or heyre of that speciall estate shall haue the reuersion rent and seruices c. Prouiso that the wife bee made party to euery Lease made by her Husband of any Mannors Lands Tenements or Hereditaments being the wiues Inheritance and that euery such Lease be by Indenture in the name of the Husband and the Wife and she to seale the same And that the ferme be reserued to the Husband and wife and to the heyres of the Wife according to her estate of Inheritance And that the Husband shall not in any wise alien discharge grant or giue any the rent or any part therof longer then during Couerture without it be by fine leuied by the Husband and wife but the rent shall remaine descend reuert or come c in such sort and manner as the land should haue done if no such Lease had béene made prouided that this act extend not to giue liberty of taking more fermes c. then before was lawfull c. nor inable Vicar or Parson to make or grant their Lease of Messuages Lands Tenements Tythes c. or Hereditaments belonging to their Church or Uicarage And it is further enacted that all Leases made within thrée yeares before the twelâ—th of Aprill in the 31 yeare of H. 8. made by Indenture sealed by person or persons of full age of whole memory not vnlawfully coacted nor vnder Couert Baron for terme of yeares of any Mannors Lands tenements or Hereditaments whereof the Lessor or Lessors were seiâ—ed in any estate of Inheritance to their onely vse at the time of their Lease-making and whereof the Lessées their executors or assignes at time of this act Making were in possession by vertue of the Lease no cause of re-entry or forfeiture being had or made shall be good and effectuall in law against the Lessors their heyres and successors according to the couenants and agréements specified in the Indenture c. so that there be reserued to the Lessors their heyres successors c. as much yearely rent as was at any time yéelded within 20. yeares before making of any such lease or else the Leases to be of none other effect then they were of before this act And moreouer it is ordained that no fine feoffement act or acts to be made suffered or done by the husband onely of any Mannors Lands c. being the Inheritance or fréehold of the wife during Couerture betweene them shall in any wise be or make any discontinuance or be preiudiciall to the said wife or her heyres or to such as shall claime right title or interest by her death But that shée or her heyres or they to whom such right or title shall appertaine after her decease shall and may lawfully enter into such Mannors Lands c. any such fine feoffement or other act notwithstanding except fines onely leuied by Baron and Feme wherunto the wife is priuie and a partie Prouided that this clause extend not to giue any liberty to any Wife or her heyres to auoid any Lease hereafter to bee made of any her Inheritance by her husband and her selfe for 21. yeares or vnder or for thrée liues at the most whereupon yearely rent shall be reserued vt supra Prouided also that this act extend not to any Lease heretofore made by Ecclesiasticall or other person by Coâ—eâ—t or Common-seale which Lease is made voyd by act of Parliament nor to make good any Lease of any Ecclesiasticall person made by câ—uent seale or otherwise or of any other person attainted of â—reason c. SECT XXIII The Exposition THis Law in the first part is affirmatiue or I may say leasatiue a leasing Law or Statute Tenant in fée-simple iure mero suo nothing restrained by it No more is Tenant iure vxoris but he may make a Lease for yeares to continue till the last hower of Platoes great yeare or till King Arthur come againe for all this Statute for no greater rent then thrée bundle of bulrushes as well as he might before although her land were neuer leased before since Noaâ—s floud and such a Lease shall bind him during Couerture But if the Husband make a Lease by paroll or by poll déede or by Indenture and the wife not partie or if the Land were not informer times demised or if the ancient rent or more be not reserued then as the earth stayeth in the worlds center vpon nothing but Gods prouidence and permission the Demisée leaneth vpon no Statute but hangeth at the wiues courtesie ponderibus librata suis as at Common Law SECT XXIV Law before the Statute HOw that was yée shall perceiue by the cases following If before the Statute of quia emptores tenant in fée iure vxoris infeoffed a stranger expressing no tenure the feoffés was to hold of the Baron by such seruices as he and the Wife held by of the Lord Paramount If the Baron and Feme had ioyned in a Feoffement to hold of the Baron c. th expressed tenure had béene voyd and the Feoffee must haue held of them both by such seruices as they held ouer c. If the Baron in this case had died and the Wife accepted the rent in her viduity this acceptance here barred her for euer from auoyding the Feoffement by Writt of cui in vita If Tenant iure vxoris and his Wife had made a Feoffement to hold of the Wife the Feoffor should haue held of them both and if the Wife had died the Feoffor was to hold of the Baron till the feoffement were auoyded by sur cui vâ—a Par. 126. Againe if before this Statute of 32. H. 8. Tenant in fée iuro vxoris and his wife had ioyned in exchange for other lands in fée and the exchange being executed the Husband had dyed now the Feme by entring in vpon the Land giuen her vpon the exchange should be barred for euer from defeating the exchange But if it had béene made by the Baron alone she might haue defeated it notwithstanding her entrie for that could giue noseisin by force of the exchange to her that was neither partie nor priuie to it Par. fo 8. And if a man seised in right of his Wife c. make a Lease for life rendring rent with a letter of Atturney to his Wife to make liuery the Wife deliuers
seisin the Baron dieth she accepts the rent the may haue a cui in vita by the common Law for the acceptance here maketh not the Lease good because the liuery which the wife made was as seruant to her Master and onely the act of the Baron Par. 41. we haue concerning acceptances some plentifull Learning 21. H. 6. fo 24. Ascu saith there That if Lessée for yeares bee in arrerage of rent and die his Executors shall pay the arrerages if they occupie the Ferme contra if they waiue possession and so if a Lease for life be made to Baron and Feme the Baron commits waste and dies the wife shall be subiect to an action for waste done by the husband if she occupie the land contra if she waiue the possession and by Paston in the end of the case if Baron seised â—ure vxoris make a lease for life of the land and die the wife can haue no action of waste for she was not partie to the lease ex hoc sequitur that a woman vpon acceptance of rent of lease for yeares made by her husband without being her selfe a partie is not bound but shee may enter And albeit the lease were for life yet acceptance barreth not a cui in vita if she were not partie c. 26. H. 8. â—â— 2. per curiam if Baron and Feme sell the Wiues land make feoffement and the Vendée by the Indenture of sale couenants to pay ten pounds annually to the Baron and Feme during their liues if the Baron die and the feme accept the ten pounds this is no bar in cui in vita no more then acceptance of rent after Marriage dissolued where the Baron a per luy made a feoffement or lease But acceptance of rent c. where they both made a feoffement or lease for life is a barre of all actions I will hunt for no farre fetcht learning of acceptances but this I finde if a man lease his land to â— 8. to hold at will by certaine rent none acceptance of the rent here after the Leassors death can barre the Heyre of entrie or make any â—ffirmance of the lease for acceptance can neither make good a lease determined by entry or a lease already void without entry by the lessors death And he that leaseth to hold at will endeth that will when he endeth his life but a lease for yeares by an Abbot or Tenant in taile is not by their death presently void but voydable and the successour or Issue by acceptance of the rent affirmes the Lease So doth the Feme affirme the Lease made for yeares by her husband of her Land by acceptance when she is become sole and sée Dyer 5. Mar. 159. by the opinion of thrée Iustices Dyer Stamford and Browne if Baron and Feme had made a Lease by Indenture rendring rent and the Baron before rent day die and the Feme before the day take another husband who accepts the rent and dies this acceptance shall bind the Wife but note and take with you this peculiar rule where acceptance binds her that she be a partie to the Lease and that by writing for if a man makes a Lease for yeares without déed of land which he holdeth in right of his wife this was méerly void towards the wife so soone as the Husband is dead and acceptance of the rent is to no purpose Plo. 431. per Bromley Againe 9. H. 6. If tenant in Fée iure vxoris make a Lease for yeares and the wife dieth the Lessée shall pay the rent vntill the Wiues heyre enter for so long there is a continuance of a Fermour by force of the Lease but none â—â—owry lyeth for the Husband because he hath no reuersion And an action of trespasse vi armis may be against him but he cannot haue action of debt for the rent But to come home to the very brinke of the Statute nota saith Dyer That the common opinion amongst all Iustices at this day is If Baron and Feme make a Lease for terme of yeares before the Statute of 32. Hen. 8. by Paroll reseruing rent to them both if the wife when shee is become sole accept the rent at the Fermors hands this binds her not from anoyding the Lease if it were not by Indenture for her assent was requisite at the beginning and that ought to haue appeared by déed Dyer 1. Mar. fo 91. The same Learning is 4. Mar. fol. 146. When a Feme Couert departs from her Land the intent consideration and cause ought to be expressed in scripture to proue her consent to the whole Mannor for it is agréed for Law That if before the Statute Baron and Feme had made a Lease by paroll of the Wiues Land for terme of yeares rendring rent though after the Barons death she had accepted the rent yet she might out the Termer because her priuitie to the Lease appeares not per escript likewise if a feme couert suffer a recouery or fine of her Land it shall be intended by Law to be to her owne vse if there appeare none other intent expresly by Writing And none auerment shall be taken of intent or consideration in such Case other then the Indenture specifieth SECT XXV Obseruations vpon the very Statute I Haue shewed what strength a Demise or Lease for yeares made of the Wiues Land by Baron and Feme or by the Baron onely was of before the Statute and is of being made since the Statute without the appointed circumstance and solemnitie Now a little to the very Statute As I said before the ordinance is that Leases shall bee good c. But not directly that any terme shal be boyd though voyd of strength by this Statute they may be many wayes as appeares by the prouiso Note that the forerunning Lease Demise or occupation by Fermors must bee deriued from one that had Inheritance for if at the end of a primitiue Lease made by the Lord of whom the Tenancie is holden or by the Kings grantée or committée of wardship or by tenant in Dower or by Tenant per le Courtesie some of which may by good possibilitie haue had power to make Leases by space of twice twenty yeares a tenant in tayle makes a Lease this succéeding demise hath no vertue or ingredience of the Statute though it séeme to haue good correspondence with it And it is doubted whether a Ferme continued twenty yeares by the Donors demise be sufficient or no to make roome for a new Lease This for ought I perceiue is by a prudent interpretation of the Constitution rather vpon equitie and intent then vpon the Text tenants in fée simple or tailed which transmit their possession to their déere off-spring will not make Leases to any great disaduantage of any of their owne babes or blood and therefore their Leases may well bee â—mitated But like enough it is that Tenant per le courtesie or in Dower or in right of his owne or in
another mans Seignory may Lease away their estate for a proud fine and a little rent Nay yée may be sure that if they might set the example they should be gotten to make Leases for esperuiers annuall and small yearely income in hope that my young Master at his full age should be content with the old rent and a kennell of 〈…〉 ds King Henries and the Parliaments meaning was not therefore that their Leases should be any patternes for reseruation of rent by Tenant in Taile or as I suppose in the right of his Wife If Baron and Feme make a Lease by Indenture for twenty yeares to commence at Michaelmas it might séeme doubtfull by the booke 7. 8. Eliz. Dyer 246. whether it be a good Lease by this Statute If Baron and Feme by their Indenture make a Lease to commence after the Wiues death I thinke this no good Lease according to the Statute for twenty one years ought to be from the making of the Lease c. If the Baron and Feme die the Heyre is not bound to accept the rent or allow the Lease And though he doe accept it if the Land were tailed he may enter notwithstanding vide 10. Eliz. Dyer 279. If Baron and Feme make a Lease by Indenture c. for 31. yeares quaere the Baron dying whether this be a good Lease for 21. yeares or no I thinke it is not but standeth méerely at Common Law For the first Prouiso of this act is that it shall not haue respect or extend to Leases made for aboue 21. yeares When King Henry the eight in 31. of his Reigne by Parliament had made voyd all Leases to bee made of Lands which should afterward come to him if any Leases former were in esse or being with prouiso viz if he which had an old vnexpired lease tooke a new that he should hold for 21. yeares from making of the new Lease so that it excéeded not twenty one yeares it was admitted in Falmestones Case that such a Lease made for fifty yeares was good for 21. Plo. 110. And when Thomas Vmpton after 32. Henry the 8. ca. 1. which gaue power to Tenant per Chiualrie to deuise two parts of his land had deuised a whole mannor in fée before 34. Ed. 3. 5. Hen. 8. of explanation which will by the said Statute of explanation was referred to the Law the deuice was adiudged good for two parts contra Kelwais opinion as you may sée 4. 5. Phil. Mar. Dyer 150. But these cases differ farre from the former as yee may finde by the comparing the Statutes If after a Demise by Baron and Feme for twenty shillings of vsuall rent the husband release all his right except twelue pence c. or grant that the Lessée shall hold dispunishable for waste the Wife accepting twelue-pence post mortem viri may distraine for the rest notwithstanding and haue an action of waste Dyer 304. Note before this Statute was made the Count Bridge water being tenant in taile the remainder to Basset in taile he bound himselfe in recognizance to the said Basset to make no alienation grant sale conueyance or exchange otherwise then for his owne life it was a question after the statute whereunto Basset and all men were parties whether the Earle might now make a lease for xxi yeares without forfeiture of his Recognizance resolved by Bromely Portman and Harris serjeants that he could not but if hee did make such a lease they thought that neither hee in remainder or the donour should euer auoid it by any dying sans issue 33 H. 8. f. 49. in Dyer who concludeth and so shall the statute be expounded for so was the intent a meaning of the makers yet the text hath no word of donours or of them in remainder I heare that law is taken now to bee cleane contrary in the last point viz that remainders and reuersions are freed from this act and I beleeue it the rather because 34. H 8. ca. 20. that frustrateth fained recoueries against tenant in tayle where the King is in reuersion or remainder in the prouision for strength of leases made according to the Statute is only against the Heyre or heyres of tenant in taile c. The last part of the Statute SECT XXVI THe Last part of the Statute is negatiue against 〈◊〉 continuance which how farre it preuailed before or after the act the former instructions with the act it selfe doe put in some cleerenesse But a case or two will make it more plaine Amy Townsend seised of a Mannor in tayle take a husband the husband made a feoffement 29. of H. 8. to diuers persons in fée to the vse of himselfe and his wife for life of them two with remainders of vse ouer After this Statute made Amy and her husband made a Lease for 21. yeares of part of this Manuor according to this act of 32. H 8 Amy died first then her husband died the question is whether Amy were remitted to her former estate taile by vertue of 27. H. 8. ca. 10. and so the Lease good 〈◊〉 was argued on the one part that reduction of the possession by the statute 27. c. was of effect alone with their feoffement and because this possession was regained without either tort or folly in the wife whose agréement whether she would or no was included in her husbands agreement during Couerture she must néeds when Couerture was dissolued till disclaimer or some act done to the contrarie be â—diudged in possession there was then no tenant against whom to bring her cui in vita if she should not bring her cui in vita to purge the first wrong she must needs be remitted if she were remitted this cause must néeds be good And although the Statute of 27. settle possessions according to qualitie and quantitie of the vse yet it séemeth not that so it shall continue but they may change by a former ancient right for the Act being affirmatiue takes not the Common Lawes operation in remitters besides that it hath an expresse sauing of eygne right further if that the wife should not be remitted this inconuenience followeth the Baron might charge the Wiues inheritance with a rent to the whole yearly value or be bound in a Statute merchant c. and then making a feoffement to his wiues vse shee should hold the land charged after his death To this it was answered on the other part that the feoffement at the time therof made a discontinuance which puts Amy to her cui in vita which because she hath not vsed but is come to possession onely by force of 27. c. she must take it onely by the manner order and limitation of the same Statute Couerture or infancie being no whit materiall because the Statute hath none exception The words are in manner forme qualitie and condition of the vse c. and because this was a new Constitution of that which was not at the Common Law it
a man and his wife be bound by Obligation a Writ against them both vpon that Obligation shall abate car fait del Feme couert est void See 15 Ed. 4 fol. 10. that if an Obligation bee made to Baron and Feme and the husband dieth the wife or husbands Executor which of them shall hap to haue the Obligation shall sue c. as it is said by Bryan And Detinue of Charters shall bee brought by Baron and Feme for Charters concerning her ioynt possession 38. H. 6. fol. 25. If Baron and Feme make a Lease for yeares of the wiues lands they must ioyne in an action of waste or else the Writ shall abate 7. H. 4. 15. yet 3. H. 6. fol. 53. a Writ of waste so brought was doubted of because forsooth a Feme couert cannot make any Lease But at the last the Writ was holden good for the wife might accept the rent or distraine for it and make auowrie after the husbands death at what time and not before shee hath power to agree or disagree but during the Couerture the lease was the Act of them both baron feme tenants for yeares may ioyne in an Action of couenant against the Lessor that outeth them for the wife suruiuing shall haue the terme if the husband doe not aliene 47. of Ed. 3. fol. 12. And where a remainder is to bee executed to a Feme couert by force and conueyance of a fine c. the Baron and Feme may haue a Scire facias to shew why the land should not remaine to I. S. and to N. his wife for the land cannot remaine to one of them but it must remaine to them both But a Formidon in Discender or Reuerter or a Writ of Escheat differeth 11. H. 4. fol. 15. 44. Ed. â— fol. 10. a Writ of Dower was brought by Baron and feme and the tenant pleaded that the former baron had neuer any thing in the land during the espousals which the Demandants did not deny therefore the Tenant prayed they might be barred and their confession recorded but it would not be granted because it should bee preiudiciall to the wife yet at the request of the Tenant they were receiued to acknowledge their right by fine and the woman was examined Quod nota for she shall not be examined vpon confession of an Action SECT XLVI Actions against Baron and Feme AS Actions are rightly puâ—sued by Baron and Feme when right is withholden from her or wrong done to her selfe her interest or possession so when the wife is or is supposed a wrong doer or her husband doth wrong vnder pretext of her interest writs must be sued against them both for as it hath béene shewed already if a Feme couert bee condemned in any ciuill Action without her husband she and her husband may haue a Writ of error Therefore if a woman which is indebted take a husband an Action of Debt shall be against her and her husband in the Debent 9. E. 4. fol. 24. 7. H. 7. fol. 2. agréeth and if any thing were owing to the Feme before marriage the Writ of such a debt shall bee Quasâ—is debet If a man baile goods to a Feme sole which marrieth afterward an Action of Detinue shall be against her and her husband for these goods per curiam 39. Ed. 3. 17. And 1. H. 4. fol. 31. a Writ of trespasse sur le case was brought for not repairing certaine bankes vpon lands which the defendant had in Dale by reason wherof the plaintiffes ground was surrounded and because the Defendants whole interest in Dale was only jure vxoris which wife was not named in the Writ it abated for they ought to haue béen ioyned 3. H. 4. fol. 1. Upon a Lease made to Baron and Feme for yeares rendring rent the Lessor brings a Writ of Debt c. against Baron and Feme and Iudgement was asked of the Writ because it was not brought against the Baron onely Thiâ—â—ing holdeth the Writ good aswell as an Action of waste shall bee against both Baron Feme vpon such a Leafe and so doth one other Iustice but some pleaders argued contra And in Actions against Baron and Feme the woman must be named wife 42. Edw. 3. fol. 23. A writ of trespasse is brought against Iohn and Alice with others Alice saith shee was and is the wife of Iohn iour del briefe purchase iudgement del briefe and this is a good plea in abatement of the writ So if a writ be against Iohn and Alice his wife Alice if shée be single may plead not the wife Iudgement del briefe But Iohn shall not haue that plea per totam curiam for none as Brooke maketh the reason shall plead Misnosmer but the partie 7. H. 6. fol. 9. In Assise against Baron and Feme the Uicount returned that hee had attached the Baron per centum ones matrices but the wife had nothing to be attached of within his Bâ—â—liwicke heâ— eâ—â— in eádem inuenta the best opinion is that the returne is not good for he was commanded to attach the wife which the Law would neuer command if the thing were impossible but it is possible enough for the wife to be attached by her husbands goods and by him shee must bee brought into the Court. Babington saith an Attachment must bee by a meere chattle which shall be forfeited by Default but not by any Chattell reall as a Lease for yeares or a ward or by appartell c. Now note it hath béene said that in an Action of debt or trespasse or other personall Actions if the Baron appeare and the wife make default or if the wife appeare and the baron make default they shall not answer the one without the other 44. Ed. 3. fol. 1. A writ of debt was brought against Baron and Feme the wife outlawed the Baron rendred himselfe at the Exigent at returne whereof hee appeared in ward and the Plaintiffe prayed because the Processe was determined against the wife that the husband might answer sed non alocatur But sée in the next lease a writ of trespasse pursued against Baron and Feme to the Exigent the Uicount returned that hee had taken them at the day the Baron came inward without the wife c. The Plaintiffe declared against him he was compelled to answer and pleaded not culpable le Vicont fuit charge de le corps le Feme amercâ—e and a writ went out to haue the wife at Westminster at a certaine day with a Venire facias betwixt the Plaintiffe and the husband returnable the same day sée 34. H. 6. fol. 29. A writ of trespasse against Baron and Feme and the Baron as seruant to the Chancellor brought a Superâ—edeas for himselfe and his wife Littleton said it was to be allowed for neither of them no more than where trespasse is brought against one of the Chancery and another man c. Nay not so much saith Prisot for in that case the
vpon the first maineprise or a new scire facias by new maineprise neither of them might be allowed without his wife yet it was agréed that if two men were outlawed one might sue pardon and scire facies without the other for in that case the one may plead alone vpon the first originall without his fellow against whom the processe is determined but the Baron cannot plead here without his wife sée the booke 11. H. 4. fo 89. Baron and Feme being outlawed the wife appeared and brought a Charter of pardon shee was suffered to goe at large but the pardon might not bee allowed because the baron appeared not and the wife could not plead without him 14. â— 6. fo 14. Iune said that one kinde of diuorce betwixt baron and feme is when an action of trespasse is brought against them and the baron only appearing processe goes out against the wife till she be waiue c. Shee can neuer purchase her pardon vnlesse her husband appeare so that if he will he is diuorced The like subtilty hath M. Littleton 13. Ed. 4. fo 4. where he affirmes that if a woman be outlawed by erronious processe if the husband will not bring a writ of error hee may so be rid of a shrew for that counteruailes a diuorce 11. H. 4. Sheweth that a woman may be suffered to goe at large though her pardon bée not allowed till her husband appeare with her c. And sée Dyer 10. Eliz. 271. In debt against baron and feme processe was continued till the baron was outlawed and the wife waiue afterward the wife came in ward by processe brought the queenes pardon for her waiuery Though the pardon could not bée allowed because the wife without the husband could not sue scire facias against the platntiffe to make him declare vpon the first originall for the pardon had a condition in law ita quod ipsa staret recta in curia which shée could not doe alone yet by the opinion of the Court shée was to bee discharged of the imprisonment I thinke the shrew went home But that a woman outlawed by her selfe alone for an offence touching her in an action brought against her husband and her and the husband appeared before outlagary was discharged of her imprisonment vpon sight of her pardon I find not here nor no where else and therefore it may be M. Iunes way will serue sometime to bee rid of a shrew and that by a like manner a woman may be voided of a slouin or vncumbred of a Churle An action of trespasse is brought against baron and feme and the baron outlawed the wife appearing at the exigent goeth sanâ—iour if a capias vtlagatum lay hold of the husband I perceiue not well how he can get loose without his dames fauour SECT L. Of Diuorce BVt it is time to make an end of marriage since wee are come to matter of diuorcement of which I reckon this of outlary for none 47. Ed. 3. in the very end of the yéere setteth downe flue wayes Causa professionis Causa pcontractus Causa consanguinitatis causa affinitatis and Causa frigiditatis with an obseruation that when diuorce is Causa professionâ—â— the wife shall be indowed and the heire inherit contra in al the residue â—mmaturiâ—iâ— also or miâ—oritie of age at the time of espoâ—sals may be one cause of diuorce As â—9 Ed. 3. fo 32. Iohn Alice his wife brought an assise the Tenant said that Alice had sued diuorce in the Archbishoprick of Barwicke because she was vnder age of consent tempore sponsaliuÌ„ neuer consenting afterward and diuorce was had iudgement del briefe And Broke titulo garde 124. remembreth that 5. Ph. Mar. the Doctors of Law declared for diuorces vpon this case That if an heire or other body be married infra annos nubiles and doe disassent at the age of discretion or after before assent to marriage it is sufficient and the party may be wedded to some other body without either diuorce or testimony of the disagréement before the ordinary who though hee may punish ê‘ arbitrium Iudicis here yet the second espousals are good by Law of both Realme and Church But when diuorce is had for kindred praecontract frigiditie or such like case the Law is cleane contrary for tryall of diuorce when it is pleaded in a temporall Court must bee by certificate of the Bishop and not ê‘ pais 5. Hen. 4. fol. 2 and sentence of diuorce belongeth to the Bishop in his spirituall Court Of which there is authority 2. Eliz. 179. in Dyer This yéere he saith sentence of diuorce was giuen Causa frigiditatis naturalis in the Archbishops Court of Audience and the woman was actrix querulans de impotentia proâ—râ—andiâ—â— viâ—o who was adiudged impotent by the Physitians The same yéere or next yéere another case and iudgement hapned like and the woman which complained married to a second husband of better stuffe by whom she had children and gaue him all her land by fine c. her first husband also was married to another woman and had children by his second wife vt asserebatur in which case the Doctors held that the parties diuorced were compellable to liue againe together vt vir vxor quia sancta Ecclesia decepta fuit in Iudicio priori Therefore much adoe was made to stay the ingrossing of the fine yet the Iustices made it be ingrossed contra mandaâ— domÌ„ Custodis c. But sée Sir Edw. Cokes 5. Report fo 98. in Buryes case that the Doctors were deceiued for the parties diuorced causa frigiditatis cannot liue together againe and the issue by the second wife is legitimate for a man may bee habilis inhabilis diuersis temporibus Againe 13. and 14. of Eliz. Dyer fol. 305. teacheth that right and lawfulnesse of marriage is euer to be iudged not by the temporall but by the spirituall Iudge And therefore in an issue of ne vnques accouple in loyall matrimonie if the Bishop certifie not the lawfulnesse of wedlocke but the circumstances hée shall be amerced and a melius certiorando awarded Séeing therefore right of marriage is to be discussed by the spirituall Iudge they which are married ought in no case to seuer themselues and remarry without the spirituall Iudge if they doe the second marriage is no marriage the children had in it are illegitimate and the woman not dowable except in the case first specified And generally where espousals are not méerely void but defiesable if they bee not auoided by diuorcement the issue which is had without defeiting that shall inherit as if a man marry his cosin or his sister saith the booke and haue issue by her and die before diuorce had now nothing can bastardize the issue for though the Commissary was wont in his visitation to make a kinde of diuorce in such cases after death of one of the parties it was neuer any more than an Inquisition of office Ad inquirendum
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
seised 20. Hâ—â— â— The Statute oâ— Moâ—â—on cap. 1. ordeineth concernâ—ng widdowes qâ—â— post moâ—tem vâ—â—oâ—â—â— expeâ—luntur de dotibus suis dores sâ—os vel quaâ—â—â—â—enam habere non possâ—nâ—â—iâ—e placito That whosoeuer shall dâ—force them of Dower â—r â—â—arâ—ntino in any tenemâ—nts whereof their husbands dyed seised if they bee conuiâ—ted de iniâ—â—â—o dâ—forciâ—meâ—to they shall râ—nder dammages to the widdowes so much as the Dower should haue bâ—â—ne worth to them from the time of the husbands death till the day where the widdowes recouer seisen of Dower pâ—r â—udicium Curâ—e And the Deâ—orcers shall â—eâ— in â—iseâ—icordia Regâ—s neuer awâ—it the lesse It is plaine now that the Baron dying sâ—ised if the wife be deforced sâ—e shall recouer dammages which are sometime comprised in the iudgement oâ—seisin and sometime awarded 〈◊〉 iudgemâ—nt â—â—â—â—â—uerâ—â—nt or sâ—râ—â—â—se vt sâ—pâ—â— But for all this Statute of Mâ—â—toâ— de iniusâ—â— deforciamento a widdow shall not in all cases recouer dammages by this dying seiâ—â—d for if the Tenant plead touts temps prist c. and it be confessed or found to haue béene so there iâ— now no fault in him â—â—â— Câ—â—yâ— Hill â—â— Hâ—â— 4. fol. 40. 41â— foreuery hâ—â—re hath right to all the parts of hiâ— since storâ— iâ—heritaâ—â—e â—till the widdow will â—â— indowed The case they say obiected viz. that in a Writ of Coâ—sâ—â—â—â—â— touts â—emps prist will not excuse the Tenant of dâ—â—â—ages is no thing â—like for the Oâ—cuâ—iour there hath not iust â—itlâ— c. Doctor and Student tels vs fol. 82. 8â— that though the husband dieth seised if hiâ— widdow â—oth not deâ—â—â—d Dower sâ—â— shall recouer no daâ—â—ages for it is a gâ—â—â— plea in a Writ of Dower â—â—â—â— the Tenants appeare the first day to say touts tempâ— pâ—ist a yeeldâ—â— Dower if it be deâ—â—â—ded and that plea â—â—all â—xcuse him of dâ—mmages but iâ— he had made refusâ—â—â— he shall bée chargeable as well for dammages before the request as after But in Sir Edward Cokes 4. Rep. 30. b. in Shawes Case a woman recouered Dower by plaint in a Court Baron and shee recouered dammages from the death of her husband because he died seised and it doth not appeare that there was any request and refusall I dare not say that it is Idemius whether the heire or his feoffée plead his plea though I cannot findâ— any presâ—â—ent of dammages giuen vpon it being true but often sur plea de touâ—s temps prâ—st the iudgement ended thus niâ—ilde materia quiâ— venit primo edis vide â—â— Ed. 4. fol. 7. I doe referre the Reader for his better instruction touching this matter where hee shall finde variety of store Sir Edward Cokes Comment vpon Litleton fol. â—2 b. The second Chapter of Merton giues power to all widdowes to make wils as well of Corne growing vpon their dowry lands as vpon their inheritance saluis sâ—ruâ—â—s dominorum de â—eodis quae de doâ—ibâ— aliis tenementis suis debentur Britton séemeth to be taken with a Chancâ—â—y spirit vpon â—ight of this Statute cap. 10â— fol. â—â—0 where he saith that in euery iudgement of seisâ—â— awarded of reasonable Dower there ought to be a â—oreprisâ— or exception de bleâ—â— câ—â—ssaunâ—s femes â—auches I will subioyne Bracton as an Adiutor perhaps more orthâ—doâ— Dower saith he lib. 2 cap. 40 shall â—â— assigned by the heire if he â—e of full age or by the Lord in the heires name if he be vnderage And this within forty dayes after the husbands death for otherwise occurâ—iâ— tempus sequantur damna nisi rationâ—bilis causa excuset This assignation must be made of the land as it was by the husband tilled or vntilled with the fruits growing vpon it allowing nothing to the heire or Executor for manuring husbanding or culture of it for of old time it was obserued that in what â—â—sâ— or plight a woman had receiued her Dower whether it â—â—â—â— tilled or vntilled shee must restore in like plight to the heire c. she might not make her Will of any corne groâ—ing or fruit not sâ—parated from the francktenement Sed nouâ— superueniente gratia sicut pâ—â—et de prouisionibus apud Merton A woman may now ordeine her Testament of corne or fruit growing on her dowry or seuered growing all is one If the husband alien all his lands and the Tenants need not yéeld dower to the widdow as soone as shée demandeth it if there bee iust cause of calling to warranty one or more successiuely till the heire bee vouched And all that time the Tenants are not charged with dammages or cosâ—s But when the heire entreth into warranty if he doe not presently yeeld Dower but stand out â—bstinately hee shall pay dammages as much as dower mâ—ght haue béene worth to the woman from the time of the husbands death to the day wherein shee hath iudgement and the heire shall be amercered In like manner is it if a widdow without any assignation enter into her Dower that was certainly nominated to her ad ostium Ecclesiae and which shee findeth empty at her husbands death if she be eiected or put to suit and delayes she shall recouer dammages So shall shee if shee be eiected the tenement assigned for quarentine during the forty dayes or before dower assigned after the forty dayes So likewise is it if shée haue no place at all assigned to dwell in vbi recliâ—et caput suum c. Thus Bracton and thus long wee haue béene in the Writ de dote nihil vnde habet which though it bee aptliest brought in the common place for the reason aboue declared yet it may bee sued in the County before the Sheriffe per Iusticies as saith Fitzherbert in his na bre 148. But then it séemes it must bée remoued by recordari facias if the Tenant plead ne vnque accouple c. so the booke of Entries 223 224. for in the base Court that issue cannot be tryed SECT XVIII The Writ de recto de dote THere is another Writ called the Writ of right of Dower not because the former Writ hath any â—orciousnesse in it or claimeth vpon wrong title but because this second Writ hath fewest ambages in pleading and the forme of it is vpon pure right Britton saith there are cases wherein a woman is driuen to a Writ of right of dower pleadable in Court One is where a woman hath lost seism of her dower as if shee were disseised and after long peacable seism of the desseisor shee reentred with force if the desseisor recouer against her by assise she hath no remedy but onely by Writ de recto de doâ—e counting of her owne seism Aâ—other is where a woman demands lands or tenements which were her husbands as part of her dower when shee is seised of a surplus or greater part already And the third is when shee demands something as appertenant â—â— hâ—r dower Fitzherbeâ—â— séemes not to allow Bractonâ— relation of vnde nihil
husband till his death then by his death the widdow is made sole Tenant of them so little needing either assignation or other circumstance that without new entry claime or challenge shee may haue action of her owne possession against any other that shall enter If the husband aliened intirely any lease for yéeres of his wiues it is gone irreuocable and if hee make no sale and the wife dyes hee shall haue the leafe except shee bee ioyntly possest with another and the seruing ioyntenant shall haue Commentar vpon Fitzherbert 185. If he aliened part of the estate as for ten yéeres next ensuing where the terme was for twenty the widdow may enter when ten yéeres expired But sée in that Case that if the husband rested a rent and dyes the Executors of the husband shall haue the rent for it was not incident to the reuersion yet the wife shall haue the resioue of the terme Sir Edw. Cokes Commentar vpon Fitzherbert fol. 57. b. if he aliened for the ten last yéeres shee may continue possession till those ten yéeres be commenced If the husband deuise away by his last Testament a terme for yéeres which he hath by right of his wife I suppose the deuise is â—â—id as well as if it were made of some higher estate as it appeares by Perkins chap. Dâ—â—â—ses and Plowd 419 in Bra 〈…〉 gâ—â— case And the Law is all one in all respects where the Baron and Feme are possessed of lease for yeares by intâ—eâ—ties that if the estate be made to them during their couerture or by moyties that is to them ioyntly before marriage or where the Baron is possessed of a lease iure vxoris Sée Dame Haâ—â— case Plowd 260. And if the Baron possest of a lease for yeares in the right of his wife charge the land with a rent and die the rent is gone Plowd 4â—8 in Bracebridges case for shee is remitted And if Feine Gardian in Socrage be and her Baron alienateth it and die the wife may enter And sée Dyer 8. Eliz. 25 the same is of Coppy holds per 〈…〉 der to the vse of a Feme for yeares the wife die the estate rests in the husband without a custome be to the contrary If an husband be possest of a terme for yeares in the right of his wife and Iudgement is had against him and the terme is extended and the husband dieth it shall be good against the wife as appeares by Sir Edw. Cokes 8 Rep. 96. in Maâ—â—ing case And see the 9. case of 50 E. 3. lib. Ass note Sir Edw. Cokes Rep. in â—ulwoods case and Plowd 26â— in Damè Hales casâ— where a lease made to Baron and Feme is extended for the debt of the King after the wiues drath If a man possest of a te me deuiseth it to one for his life the remainder to a woman for her life who takes an husband the husband may release that to the particular tenant although it be but a possibilitie Sir Edw. Cokes 10. Rep. 47. Lampeâ—â—s case And if a woman hath a lease for yeares as Executâ—iâ— and takes an husband hée may sell it per â—oâ— curi 〈…〉 pr 〈…〉 r Fitzherbert Dyer â—8 H. 8. 7. A woman hath a terme 〈…〉 trir the husband s 〈…〉 wits to 〈…〉 vâ—â—n which a moytie is awarded to the pretendor of the title the wife is bound thereby but because the defendant in detinue brought by the wife for the Indenture of lease plead non dâ—tinet and not the speciall matter Iudgement was against him Dyer 2. E 〈…〉 183. 21. H. 7. 6. agrees If the husband discontinue the Franck tenement of his wife the apt instrument whereby to recouer it when she is a widdow is a Cu 〈…〉 vita Which though it be not so necessarie and néedfull perhaps since the Statute of 32. which disableth husbands to discontinue as it was before yet I. perceiue not by what reason the vse of it is forbidden euen in those cases where the entrie is â—ongeable for the vertue of the Writ is not decayed by lawfulnesse of the entrie neither doth free libertie to take possession prohibit the resort to Iustice and action at Law when perhaps a woman cannot or dares not enter By Common Law therefore if the Baron alien in fée the heritage of his wife or her Francktenement by Feoffment or by Demise for terme of life or in taile she may haue remedy after his decease by this Writ Of which the generall forme is Praecipe A. quod â—â—d â—â—â— Bâ—quae fuit vxor Câ—â—â—um messuagium 〈…〉 quod clamat esse ius hereditat suam Et in quod A. noâ— habet ingressum nisi per C. quondam virum c qui illud â—â— de 〈…〉 isit cui in vita contradicere non pot 〈…〉 Th 〈…〉 may be in the per â—ui and post and some varietie it hath according to title of the Demandant as Quâ—â—â— clamat 〈…〉 ius haereditatem or Vt ius maritagium or Vt ius exâ—onâ— I. qui ipsaâ— B. C. virum suum feofavit in quo c. or Quam clamat tenere sibi haeredibusde corpore suo de 〈◊〉 C. quondam viri sui exâ—untibus â—â— d 〈…〉 ne I. or Quam clamat essâ— dotem suam ex dono E. pri 〈…〉 vel secundi c. If Baron and Feme lose the wiues landâ— by de 〈…〉 shée may haue this Writ when shee is a widdow But if the wiues lands be recouered in a Cessauit perâ—de 〈…〉 â—â— Baron and Feme vpon a C 〈…〉 during esp 〈…〉 shall neuer haue a Cuâ—â—â— vita 4. Ed. 2. If Baron and Feme and a third person being Ioyntenants in Fée the Baron alien the intiertie and die his widdow shall haue a Cui in vita of a inoytie during the life of the third person for it séemed the alienation was a seuerance of Ioynture saith Fitzherbert But hée sends vs to 36. Ed. 3. in his Abridgement titulo Cui in vita By which booke the wife in this case cannot haue a Cui in vita for any part so long as the third person suruiueth because they two may ioyne in a Writ of right and if hee die she may haue a Cui in vita of all Vide Librum Of lands which a man and woman purchase ioyntly before couerture the Cui in vita shall be but of a inoytie but of lands purchased ioyntly during coâ—eâ—â—ure the Cui in vita is of the in 〈…〉 e and being brought of a inoytie the Writ is not good 39. H. 6. 45. for in the one case they are seised by inoyties in the other by intireties A woman by excepting lands which she and her late husband tooke in exchange or by excepting rent reserued out of it shall be bâ—â—â—ed in a Cui in vita or any other action Fitzherbert and â—6 Ed. 4. 8. Idem ius if shée accept parcell â—â— her owne land in Dower but 17. Assisarum pl. 3. Brooke 24. Cui in
to be recouered after the first day of December next comming in the forme aforesaid should appertaine to enter into all and euery of the Premisses and peaceably to possesse and enioy the same in such manner and forme as he or they should haue done if no such discontinuance warranty or recouery had beene had or made And if any of the said husbands and women or any other seised or that shall be seised to the vse oâ— them of the estate afore specified after the said first of December doe make or cause to be made or suffer any such discontinuance alienations warranties or recoueries in forme aforesaid that then it shall be lawfull to the person or persons to whom the said manors lands and tenements should or ought to belong after the decease of the woman to enter into the same and to possesse and enioy them according to such title and interest as they should haue had in the same if the woman had béene dead no discontinuance warranty nor recoueries had as against the said husband during his life if the discontinuance alienation warranties and recoueries he hereafter had by or against the same husband and woman during Couerture and espousals betwixt them â—â—â—uided that the said women after the decease of their said husbands may reenter and enioy c. according to their first estate And ouer this it is enacted that if the woman at the tune of such discontinuance alienation recouery warranty c. besole that then shee shall bee barred and excluded of her title and interest in the same from thenceforth and the person or persons to whom the title interest and possession of the same should belong after the womans decease shall immediately after the discontinuance alienation warranty and recouery enter possesse and enioy the same Manors Lands c. according to his or their title Prouided that this Act extend not to auoid any recouery discontinuance or warranty after the forme aforesaid heretofore had made or suffered but only where the husband and wife or either of them now being aliue or any other to their vse now haue title and Interest to the said Manors c. or take the issues and profits to their vseâ— Prouided also that this Act extend not to any recouery or discontinuance where the heire next inheritable to the woman or â—e or they that next after â—er deatâ— should haue estate of inheritance c. 〈◊〉 〈◊〉 or agréeing to the reâ—â—uerieâ— where â—he same assâ—ent and agréement is of record or inrowled Prouided also that it shall bee lawfull to euery woman being â—olâ— or married after the death of her first husband to giue sâ—ll discontinue c. for terme of her life only after the course of the common Law SECT XXXIV The Expâ—sition BEfore this Statute if Tenant in Dower had aliened in fée with warranty and dyed the warranty discending vpon him in reuersion had barred him for against collaterall warranty of Tenant in Dower or for life the Statute of Gloucester cap. 3. determined nothing Lâ—â—â—â—eton fol. 164. He addeth that if the heire were vnder age both at time of alienation and also when the warranty discended hée should hee at no preiudice by this collaterall warranty But if he wore vnder age at time of the alienation and came afterward to full age during the womans life and neuer entered then perchance hee should be barred This was Law when Littleton wrote and had continued so aboue two hundred yéeres and during the raigne of nine Kings after the making of Glocester cap. 3. which Statute Dyer comparing with the later he reputes the last cruell against women for by this Aâ—t of 11. Hen. 7. all alienations recoueries releases and warranties of Tenant in Dower or â—oynture of the husbands lands are of no strength And where Glocester alloweth Tenant by the curtesie to alien with warranty and assets this from women is cleane taken away this he saith is vn case fort dure That if a woman â—oyntresse in taile whose warranty is lincall to her heires doe aliâ—n and leaue assets yet the heire may enter Therefore hee is of the minde that this Statute being rigoroâ—s of it selfe ought to receiue a streâ—t and litterall interpretation fol. 148. But Stamford Browne Brook eâ—poâ—â—ded these words giuen by the Ancestors to bée intendible of all manner of assurances for money or otherwise There are two Cases in Plowden that inâ—ued great Argraments vpon this Statute The first is betwixt Winibishe and Falboâ—es a man enfâ—offed diuers persons to the vse of himselfe and his wise in speciall taile before the Statute of 27. Heâ— 8. of vses and after the Statute the husband died a stranger recouered in a formedone per ment deduc the first day by couin and vpon false tiâ—le he to whom the title appertained after the womans death entred and the entry waâ— adiudged lawfull though hee could not haue Iudgement for a default in the pleading and that was want of certainty in his replication and not shewing how he was heire or the party to whom the entry was giuen by the Statute The greatest matter vpon the Statute obiected to inforce a proofe that the widdow which suffered the recouery was not bound by this Act was that she held not ioyntly with her husband any lands or tenements but only shée was seised of an vse in taile for they tooke it cleare on all paâ—ts that the case came into consideration as if the Act of 27. had not béene made and that seemes to bee directly within the letter of the Lawes But Montague chiefe Iustice shewing how greatly the marriage of women and their aduancement by it is respected in Law as appeareth by the Writ of â—aâ—â—a matrâ—moâ—iâ— proloâ—â—â—i and the â—â—i ante diuâ—rtium taken by equity of West 2. cap. â— and also by that that where donées in frankemarriage are diuorced the woman shall haue all the lands aâ—â—irmeth it to bee reason against such women thus fauored and who abuse such fauors as the Law bestowes vpon them and will be of Couin and Faâ—â—ity to impaire their deceased husbands inheritance and disinhe it their heires to construe this Law for their coâ—â—â—â—tion for the Law-makers of the statute were bent extremely against them though it be penall in some sort oâ—it selâ—e And so it was agreed that if the widdow were not within the words yet she was within the intent and meaning of this Statute The other case was this betwixt Eiston and Stud. Baron and Feme leâ—ied a fine of lâ—nds of the wiues inheritance taking backe an estate in taâ—le the remainder to the right heires of the wife the question was whether the woman after her husbands death might alien without danger of this Statute adiudged that she might because shée was cleare without the intent and meaning of the Act For whatsoeuer the words import the matter that this Statute aimed was and is to restraine women which haue Ioyntures procéeding originally from their husbands or
of the death of her sonne If a woman haue issue a sonne which is murdred and there is no heire to him on the fathers side by Billing chiefe Iustice Needham and Choke none vncle nor other kinsman which must coâ—â—â—y as heire by the mother can haue the Appeale because the Statute before remembred excludeth her from whâ—m they must deriue Briaâ— Littleton Nâ—ale and the chiefe Baron are contra For said they the Vâ—cle on the â—â—ther side may haue Appeale of the Nephewes death which the father from whom the Vncle must conueigh 〈◊〉 haue any more than the mother But Billing tels them the Cases are nothing like for a father may haue an Aâ—peale of his Ancestors death but so cannot another iâ— any case the bridge therefore being once broken â—d eâ—â— the meane of conueyance stopped and disabled the Appeale is altogether and for euer taken away â—7 Eâ—â— 4 fol. 1. And so is it adiudged likewise â—0 Hen. 6. fol. â—â— where there was grandfather mother and sonne the mother died the grandfather was murthered the sâ—nnâ— might not haue Appeale because hee conueyed by a woman scilicet by his mother and there it was stood â—â—â— that an Appeale shall neuer discend but hee to whom it first falleth shall haue it and if he dye the Aâ—tion dâ—â—â—â— It is a good case well argued in the booke at large Sée the booke of 11. Hen. 4. 1â— It appeares that in Appeale oâ— Rape by the husband ne vnques accouple c. nest pâ—â—â— for the husband in Act or possession shall haue that wâ—erâ— the marriage is not void and yet that plea is good in Appeale by the wife of the death of her husband for there shée shall not râ—uenge his death to whom she was not lawfully married and see 50. E. 3. 15. Brâ—â—â—on agrées with Bracton qui null â—ee puisseare appeller de felonie de mort â—orsque de mort son baron â—uâ— deins â—â—â— lâ—â—our enter ses braâ— And it is true that by the ancient Law neither woman or other person might haue appeale of death vnlesse the appellant â—â—â—â— prâ—sâ—nâ— or did sée the dead man at the tiâ—â— when hee was slaine But the Law is changed by â—loâ— cap. 9. which willeth that no Writ henceforth shall goe out of Chaâ—â—â—ry for the dâ—â—â—â— of man to enquire whether a man killed another by â—â—â—aduenture or in his owne defence or â—therwiâ—e â—eâ—â—niouâ—â—y but he shall remaine in prison till the comming of Iustices errants or gaiâ—â— deliuery and before them put himsâ—lfe to the country for triall of good and euill And if it â—e â—ound by the couâ—try that what he did was â—â— his owne defence or by â—â—sadâ—enture the Iâ—â—â—â—â—es â—â—â—ll dâ—e the King to wit and thâ— King doe the party grace â—â—luy pleiâ—â— Also it is prouided that no Appeale shall be â—â—â—ted si le gâ—â—r menâ— come 〈◊〉 aâ—â—eâ— â—uâ— if the Appeal ouâ— shew tâ—â— dâ—â—d the yâ—â—re the day and â—oâ—â—â— â—â—â—â—mps lâ—â—â—y the Towne where and the weapon wherewith the sâ—aughter was committed â—he appeale shall stand goâ—d and â—â—â—â—e appeale shall bee abated for want of â—resh â—uâ—â— iâ— it bee perâ—â—ed within a yâ—â—re and a day after the â—â—â—t coâ—â—iâ—â—â—d Before this Statute the Appellâ—nt alwayes 〈◊〉 oâ—â—â—s proper view â—ow â—â— nâ—â—ds not The 〈◊〉 â—hat â—â—â—ll â—â—ing â—his appeale 〈◊〉 be wiâ—e to thâ—â—aâ—â—◠〈◊〉 â—◠〈◊〉 〈◊〉 â—or â—â—enâ— accouple in loyall matrimony is a good plea in barre oâ— her appeale as before is said But this plea is not so perâ—mptory but that after the Bishop hath â—â—◠〈◊〉 â—â—yâ—â—ment â—ccoâ—â—â—e c. the Defendant may afterward â—â—â—ad non culpable and this in 〈◊〉 in vitâ—â— but he cannot â—â—â—ad on to the fellony immediately vpon the â—â—rst plea. Therefore here is requisâ—te two trials as it séemeth 50. â—â— â—â—â— Idem 27. 〈◊〉 p. â— Furthermore it is requistâ—e that she be sole and vnmarried married that made this Appeale for if she marrie again 〈…〉 her Appeale is gone though the new married husband be dead within the yeare and day after his death that was slaine Yea and not onely a widdow which hath an Appeale hanging abateth her Appeale and loseth it for euer by new marriage but also if after Iudgement and before execution she take an husband she loseth execution of the Iudgement 11. H. 4. fol. 48 By Brian and Hussey 2â— F. 4 fol. 72 72. If a woman pursue her Appeale till the Defendant be outlawed and then marrie she may sue execution And so did Skrâ—â—nâ— hold the Law to be in the 〈…〉 â— â— â— â—ut Gaseoâ—gâ—e Chiefe Iustice denyes it And â— or 2. Mariae Brooke Appeale 100 the Iustice of the Kings Bench did all agrée that a widdow loseth her Appeale by taking of a second husband Et idem videtuâ— saith Brooke de executione for the reason wherefoâ—â— this Action is giuen to a widdow is not as Glanuell makes it Quia vna caro est v 〈…〉 vxor For then the Baron might haue an Appeale Dâ— morte vâ—oris which is neuer granted but her heire shall haue it And if the wiâ—â— kill the husband his heire shall haue the Appeale And I hearâ— saith Stanford Pleeâ— de Coron fol. 5â— it hath been adiudged If she King pardon the woman all manner of treasons the heires Appeale is gone But the true reason why a woman hath the Appeale De morte viâ—i is because by his death shee is thought lesse able to liue and maintaine her selfe so said the Iudges in Q 〈…〉 ne Maâ—â—â—s dayes and that therefore when she taketh another husband ccâ—â—ante causa ceâ—â—at effectus and her Appeale is gone like as a widdowes Quarentine is determined when she is once remarried But where a woman continueth sole she 〈…〉 d â—â—ne other shall haue this Action either in her life or after though she dye within the yeare and before Appealâ— commenced 20. H. 6. 42. It is not requisite that the Appellant here â—e dowable of his possessions which is slaine for though a woman â—lope from her husband and neuer be reconciled yet 〈…〉 may haue Appeale of his death per Iâ—glibie 50. â— â— 15. Sir Edw. Cokes Comment vpâ—n Littleton fol. 3â— saith That if the Baron be attainted of treason c. his wife shall not be indowed and yet if any doe kill him the wife shall haue an Appeale So likewise agrées the Booke of 35. H. 6 58. where in an Appeale de morâ—â— viri the Defendant said the Baron wâ—s indicted arraigned forâ—d culpable and iudgement to be hanged c. and to the felonie nient culpable It was agréed that there is no such corruption betwixt a man and his wife by Attainder as is the corruption of bloud betwixt a man and his heire for the heire of a man attainted shall not haue an Appe 〈…〉 e and she is his wife notwithstanding the Attainder but the other is not heire And per Markham If an Appeale bee not good the Defendant shall not bee arraigned
Declaration in Appeale THe Count or Declaration in Appeale of murder according to the ancient forme was thus A. appellat B. de morte C. fratris sui c. quod cum ipse A. C. essent in pace Dei Domini regis apud S. c. venit idem B. cum talib c. nequiter in felonia in assultu premeditato contra pacem domini regis fecit idem B. praedict ' fratri suo vnam plagam mortalem in capite cum quodam gladio vel quouis alio genere armorum multorum c. vt obierit infra triduum de plaga illa Et quod hoc fecit nequiter in felonia contra pacem Domini regis offert se dirationare versus â—um per corpus suum sicut ille qui praesens â—uit hoc vidit sicut curia Domini regis considerauerit Et si de eo male contigerit per corpus fratris sui vel alterius parentis c. Et sic plures possunt appellare vnum de vno eodem facto siloqui possunt de visus sui testimonio So that Bracton sheweth if one of the appellants had died or made default the other might take the appeale and bee admitted ad dirationandum But if the Appealee had defended himselfe against one or béene aquit by iudgement hee was fréed from them all The reason why no man was admitted to bring appeale de morte vnlesse hee could speake of his owne eye witnesse was saith Stanford the reasonablenesse which séemed to bee in it that a man should not combate for the truth when the Accuser was not able to verifie it but by relation from others And therefore in a Writ of right vntill West 1. cap 40. had changed the Law the Demandants Champian in his oath did euer affirme that he or his â—ather had séene the seisin of his Lord or Master so that his owne sight or his fathers caused him to combat And as it seemes battaile did not lye in any appeale de morte in Bracton time except the wound were giuen with some sword dagger or such like as he cals 〈◊〉 mosâ—â—â— Also his forme speaketh nothing of the length breadth or déepnesse of the wound as the Declarations doe at this day I will leaue Stamfords president and take one or two out of the booke of Entries There â—ol 43. Katherin Iohnson late wife of Robert Iohnson comes in person and doth instantly appeale Iohn Bishop late of Harling in the County Norff. Yeâ—man and W. F. late of the same Towne and County Yeoman and R. W. late of H. in the same County Yeoman of the death of the aforesaid Robert Iohnson late her husband videlicer of that that whereas the said Robert Iohnson was in Gods peace and the Kings at Harling aforesaid vpon Munday next before the Feast of Saint Mathew the Apostle in the second yéere of eur late King H. 7. about two of the clocke after noone of the same day Iohn Bishop and W. F. there came felloniously and as Felons of our Lord the King that now is of their premeditate assault against our Lord the Kings peace Crowne and dignity in the day yéere houre place and County aforesaid and the aforesaid Iohn Bishop with a sharp pointed weapon called a dagger of twelue price which hee had and â—eld there in his right hand did feloniously strike the aforesaid Robert Iohnson vpon his breast and into the hart giuing to the same Robert Iohnson then and there a mortall wound foure inches déepe of the which mortall wound the said Robert Iohnson did forthwith then dye at Harling aforesaid And so the aforesaid Iohn Bishop did then feloniously kill and murder the aforesaid Robert Iohnson at Harling aforesaid And W. F. the same munday in the same yéere at the same towne of Harling was present feloniously procuring consenting and keeping the same Iohn Bishop to doe the felony and murder in forme aforesaid done and committed And after the felony and murder aforesaid committed by the aforenamed Iohn Bishop the same W. F. and R. W. the same Munday in the same second yéere of our Lord the King at Harling in the County aforesaid did feloniously receiue the said Iohn Bishop harboure comfort and maintaine him knowing that he the said Iohn had done the felony and murder in forme aforesaid and as soone as the same felons had committed the said murder and felony they fled and the said Katherin did fresly follow them from Towne to Towne into foure of the next Townes c. And if the Felons will deny the felony abâ—â—esaid in forme aforesaid alleaged against them Katherin the Appellant is ready to proue it against them as the Court shall thinke méet Againe fol. 51. is another Declaration Thus Elizabeth c. in person doth instantly appeale the aforesaid Iohn Clerke of this That whereas the aforesaid Iohn Browne was in peace of God and our Lord the King that now is at W. in the City of N. in a certaine place called Carrow the twelft day of Ianuary c. about ten of the clocke aforenoone There came the aforesaid Iohn Clerke which now appeareth and the aforesaid William Clerke which appeareth not and whom the aforesaid Elizabeth would likewise appeale of the death of her said husband if he were present And they two did feloniouâ—ly and as felons of our Lord the King that now is in the day yeerâ— houre and City aforesaid giue to the aforesaid Iohn Browne a certaine drinke which they the said Iohn Clerke and William Clerke had mixed and compounded with powders and intoxicatiue spices viz. Ratsbane and others and they did feloniouâ—ly incite and prouoke the said Iohn Browne to drinke vp the said drinke so intoxicate which said Iohn Browne hauing good trust confidence in them and being vtterly ignorant of the intoxication aforesaid did then and there and at their perswasion drinke vp the said drinke and therewith was then and there by the said Iohn and William feloniously poisoned And afterward the said Iohn Browne at Billingford in the County of Norff. the 20. day of Ianuary next ensuing in the same yéere being so poisoned of the same poison died and so the aforesaid Iohn Clerke and William Clerke feloniously and as felons of the King at Billingford aforesaid in the County aforesaid the 20. of Ianuary the aforesaid Iohn Browne did kill and murder c. And if Iohn Clerke which now appeareth denyeth the felony aforesaid of death and murder layed against him the aforesaid Elizabeth is ready to proue it against him as the Court shall thinke good It might bee collected out of these presidents without any more helpe that a woman may maintaine her appeale without expressing any arma moluta as the fashion was Bracton saith the Appellant néeds not set downe the houre wherein the party was staine but the Statute of Gloc. makes it materiall yet Stanford acknowledgeth that the Declaration which was at Common Law without
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
likewise said by Davers 13. H. 7. 11. that this Statute was made for advantage of the Lords Glanvill ibro 7. cap. 12. HEare what Glanvill saith women shal be in ward vntill they be of ful age the Lord shal mary them being of ful age euery one of theÌ„ with their reasonable portion thoughthey be of ful age they shal remaine notwithstanding in their Lords custody vntil they bée married by his aduise for by the law of the land no woman heire can be married but by her Lords disposing and assent In so much that whosoever having a daughter or daughters heire or heires shall in his life time without grée of his Lord marry any of them he suffereth by the right and generall custome of the Realme perpetuall disinherison without ever recovering any thing but by the grace méere mercy of his Lord. If it be prooved that any woman holden in ward do forfit with her body she shal be deprived of her heritage her portion shall goe and accrue to her parceners And if they all offend the whole heritage shall fall as escheate to the Lord. But after such heires be once lawfully maried though they become widdow afterwards they shall no more be holden in ward nor then by their incontinency can they forfit any inheritance But yet they may not remarry without their Lords assent Thus far Glanvill Bracton his 2. Booke cap. 37. BRacton who as it may very well be gathered wrote one halfe hundred yeares after Glanvil and but very little before the making of West 1. In his 2. Booke and 37. Chap. finding it a question at what time an heire female should bee out of ward whether at 14. or 15. or at 21. acknowledgeth a greater capacity of deceipt and maturity of desire to be in women then in men And that therefore a woman might be out of ward at 14 and marry because at that age she is able disponere domui suae et habere cone et key et virum sustinere that is to order and dispose a to have the key clog at her girdle and to be a jolly stay vnto a man But this early emancipation of women heires he taketh to be onely of such as inherit laÌ„d of socage tenure for drawing toward the end of the Chapter he falleth in with Glanvil And saith of heires coparceners in Chivalry si ab initio omnes maiores extiterunt nihil ominus in custodia dominorum â—rint donec per consilium et dispositionem eorum maritentur quia sine ipsorum coÌ„silio et assensu mulier haereditateÌ„ habens maritari non potest non etiam in vita antecessorum quod si olim fecissent hereditatem amitterent sine spe recuperanâ—i nisi solum per gratiam Hodie tamen aliam paenam incurrent And presently hee sheweth the reason why they might not marry without their Lords assent viz. lest the Lord might be constrained to take homage of his capitall enemy or of a man altogether vnfit or vnworthy SECT X. How the law came to a certainty in the point of a womans being out of ward CHoose now whether ye will learne of Glanvil and Bracton what the law was in their time or of Mr. Littleton that wrote many score yeares after the making of Westm 1. In mine opinion neither did this law bring any advantage to Lords neither doth it shew that heires females oftenants in Chivalry might enter at 14. yeares neither is there any cléere proofe that the law was cléerely so taken The letter of the Statute doth not expresly give 2. yeares to tender mariage but rest raineth covetous Lords that they shall not hold the land above 2. yeres after the 14. which séemech plainly to import as it is reasonably taken both by Needh Billing 35. H. 6 that before the making of this law the age of male and female in this point tooke no difference I may be asked how it commeth then to passe that the law is so cléere in that which Littleton concludeth withall viêªt That the Lord shall not have two yeres to tender his woman ward marriage save onely where she is under 14. and unmaried at the death of her ancestor before the Statute it was either out of doubt that a daughter and heire should not be cleane out of ward at 14. or at the least it was doubted whether she should or no and the words of the Statute whatsoever Mr. Littleton saith maketh not the matter plaine enough But we have the helpe of Reverend Prisot in the Booke above mentioned 3. 5. Henrici 6. Westm 1. saith he was made in the time of Edward the first who purposing to put all the law into certainty and in writing begun to makes Bookes thereof by helpe of the most sage men of the law in this Realme Iudges and others And he made a Booke two yeares after the making of this Statute in which all the Statute is rehersed which booke goeth on and saith by expresse words that no woman shal be said to be vnder age thereby to be in ward after she is past the age of 14. Thus saith Prisot By him therefore and by other Iustices in the Eschequer chamber it was ruled cleere that where the Kings tenant in Chivalry died leaving his daughter and heire of the age of 15. yeare she should not be in ward And Billing saith for law that if betwéene the 14. and 16. yere when an heire female is in ward another ward falleth which holdeth in Chivalry of the first the Lord shall not have gard per cause de garde for the first ward is out of his power to all intents excepting onely tender of mariage And another Iustice saith if a tenant hold ofone lord bypriority of another by posteriority the daughter heir vnder 14. shal be in custody of the anteriour Lord till she be 16. but shée may enter vpon the land by posteriority as soone as shee commeth to 14. likewise if the Lord hath once maried this woman-ward after the age of 14. she may presently enter into her land for now the Lord hath had all that which to him belongeth the marriage And the course of the Chancery is to make livery before 14. cum exitibus but after 14. livery tantum vid. 4. Eliz. 213. Dyer Dyer 20. Eliz. 362. 1. Hen. 720. on livery for then such an heire is to have the profits by the law To come to an end of this matter I will not forget that even in Mr. Littletons daies very néere two hundred yeares after the making of West 1. by the last Statute that ever Hen. 6. made in the yeare of his reigne 39. ca. 2. it was established by Parliament that women being of the age of 14 yeares at the death of their ancestors without question or difficulty shall have delivery of their lands and tenements discended to them for so the Law of the land wils SECT XI A search for the true reason why a woman is hors du
woman may haue Dower by taking his seruice euery third day and if a mill by taking the third part of the profit and shee shall grinde tole-frée and if a House a woman is Dowable by a Chamber or rent assigned out of the house Note that if such a rent be assigned out of the Land wherein Dower is claimed the woman may haue Assise without Déed contra if it be assigned out of other Land 33. H. 6. fo 2. Also a woman may hold an Aduousan appendent in Dower of the third part of an Aduousan in gros by presenting at euery third auoydance or the third part of the moitie of an Aduousan by presenting at euery sixt auoydance And of a Common in grâ—s which is certaine a woman is Dowable Likewise if any grant to I. S. that hee and his heyres shall take yearely in his Meadow thrée load of Hay c. For Common appendant Parkins saith If a woman accept two acres parcell of a Mannor in allowance of Dower she shall haue no Common appendant aliter if a moitie bee assigned her Eâ— 5. lacobile Countelle of Oxfords case cited in Harpers case Coke 11. Rep. fo 256. Dower shall be of prediall Tythes c. SECT LXI Of what things Dower is not granted OF naked seruices as homage and fealtie there is none endowment nor of a bare annuity granted in fée nor of things vncertaine as of Common without number And if it be granted to I. S. that hee and his heyres shall take so many Estouers in Methold wood as they will burne in c. this will yéeld no Dower no more then a License or grant de coylor bois in auter bois By the old writers if in the first establishment of Dower speciall mention be not made or Aduousons or third presentments the wife cannot haue Dower of any Aduouson pur ceo que aduouson dâ—â—sgly sevest mi departible But when a Mannor with the appurtenances is ordained for Dower if an Aduouson be appendant to the Mannor and the Church become voide after the Husbands death the Wife may present Also by them a woman cannot challenge a Castle chiefe Mease or head of any Baronie or Countie or any thing within the close or Circuit of the chiefe Mease to be assigned her in Dower But for her habitation she may choose aliquod honestum Messuagium de villenagijs that is some bond Tenements within the Mannor-house And where there is none such to choose shee shall haue one clapped vp for her in aliqua platea competenti de commum bosco as long and broad as the third part of her husbands chiefe house A cottage of clay and splints set close in a corner of a cold Common which is but a rewmaticke Lodge to welcome Suitors to But how if the Common and all things bee so inclosed that there is not roome to swing a Cat in women are not put in Rogum with their Husbands any where but in the Indies and I thinke that custome is left there also by this time If there be neither base tenement nor wood nor ground wherewith whereon to build a Widowes habitacle she may bee endowed for necessity of the principall Messuage and without necessity alwayes if the heyre be so contented The reasons which Breton and Bracton doe expresly alleadge for nicenesse of Law making dainty in their time to endow Widdowes in Aduousons and great Messuages is onely the indiuiduity or impartablenes of the things Of an Aduouson because it is but ius quoddam and not corporall and great houses c. for the dignity and strength which the Realme was thought to haue by their conseruation But considering that the end of Dower is chiefly the maintenance of a Wife Si vir premoriatur it may further bee colourably said that Law at first did neuer meane to trouble Widdowes with presenting of Clarkes for that either is not or ought not to bee a matter lucratiue or of gaine though indeede Bracton prize a Benefice of an hundred Markes at one hundred Shillings valew SECT LXII Of what estate of Inheritance the Husband must bee seised THe Learning here is not discrepant from that which went before in title of Courtesie Of fée or fée-taile generall a Woman shall haue Dower so shall she of fée-farme or of a base fée-simple but not of Coppy-hold vnlesse the Custome serue for it And if Tenant for life make a feoffement in fée the wife can haue no Dower 3. H. 4. fo 6. The which Littl. inserteth in this Chapter of Dower viz. where the Husband is seised as heyre of speciall taile c. is no interdiction of Dower in all cases to her which is married to the Donée of speciall taile Littletons own example is That if Lands be giuen to a man and the heyres which he shall ingender of his wife Alice if he dies Alice shall be endowed of this estate for no Issue of a second wife could be heyre of speciall taile and that makes the difference The case 41. E. 3 fo 30. is this A man seised in generall taile by fine made a feoffement and tooke backe an estate in speciall Taile to himselfe and his first Wife and died the King seise by Tenure in capite and endowed the second wife the Issue of the first Wife came shewing the speciall taile and by scire facias against the Wife recouered for default she tooke a second Husband who with his wife brought a quod ei deforceat against the Heyre and hee pleaded the speciall taile the woman by remitting the heyre to the ancient taile would haue concluded him to say that her husband was seised of any other estate Et non allocatur Parkins makes this case somewhat more austere against Dower for as he putteth it fo 60. the Issue is sonne to the Woman which claimeth Dower yet the mother by him not Dowable because the sonne though hee be Heyre is in of another estate then that which was in the Baron during Couerture so likewise 44. Ed. 3. fo 26. in a Writ of Dower against the Heyre Tenant hee sheweth that the band was giuen by fine to his father and mother in speciall taile and that afterwards his father mother discontinued the taile by fine to a stranger and taking backe an estate in generall taile they had Issue this heyre then his mother dyed and the father taking the demandant to wife he died so the sonne was now in per lun taile per lauter and being adiudged in his eigne right by remitter the wife was barred of dower this Case in my conceit fringeth the generality of Littletons rule for the Issue which by possibility the second wife might haue had might by possibility haue inherited though not indefeisably in such estate as was in the Husband during Couerture To conclude where Lands are giuen to the Baron and feme in speciall taile the remainder to the Heyres of the body of the Baron and the Wife dies without Issue there a