by the better opinion 3. Ed. 4. â— 9. 10. such a partition is good enough if it be vpon the ground but see the bookes of 2. Eliz. Dyer 179. 18. Eliz. Dyer 350. There is also a prety case of a mill parted betwéen two brethren ioynt-tenants by an award of a third that one should repaire the mill on the one side of a certaine poste and the other on the other side imperpetuum c. which was awarded a good partition without any writing 47. Ed. 3. 24. â—9 Assi p. 1. It hath béene also much doubted whether iudgement may be giuen to hold in seuerall when in assise of nouell disseisin brought by one ioynt-tenant or tenant in common against another it is found for the plaintiffe as it is cleare it may be if the action were betwixt partners 7. assi p. 10. Herle would not haue giuen iudgement to hold in seueraltie had the parties beéne ioynt-tenants But 10. Assi p. 17. such a iudgement is giuen and no bones made of it yet 28. assi p. 35. R. Thorp in like case would giue no iudgement but generally to hold a moity per my per tont though he were besought in the Country at the assises at West again and again for Iudgement to hold seuerally 7. H. 6. fo 4. Weston glanceth on such a iudgement and Strange denyeth that it may be for it destroyeth the suruiuor But Chine saith that it may be and hath béen often the reason why the Law was more scrupulous in those points betwéene tenants in Common and ioynt-tenants then betwéen partners was as I guesse because coheyres haue their estate by course of law and the other are in either by the act of some body which made the estate or by their own doing so that though for necessity they may alien that which belongeth to them or charge it yet otherwise the Contract made by consent may not without manifest assent be vndone Bract. saith fo 206. sufficit femel voluisse nec dissoluitur mutua voluntas nisi mutua voluntare contraria It is perceiued how the law was before the Statutes 31. 32. H. 8. a summarie of which is set downe already now that it may the better in part be vnderstood how the law hath béene taken since those Statutes obserue the causes following out of my Lord Dyers Reports The puisne of thrée Coparceners of a reuersion vpon estate for life gauel-kind alieneth by a fine the lessée dieth the eldest parcener entreth into all his Inheritance the middlemost and the Alienée bring a ioynt Writt of partition vpon the Statute the eldest pleadeth the generall issue non tenent insimul pro indiviso the case appearing by the euidence it was holden vpon a demurrer cleere that the action was not maintainable for the one ought to haue her Writt by the Common Law and the other by the statute but ioyne they could not Quaere saith Dier if the entry of the eldest giue seisin to the rest that it should giue it to the stranger were hard 2. 3. Phi. Ma. fol. 12. 8. One of three Coparceners alieneth that which to her belongeth one of the other two bringeth a Writt of partition against her fellow parcener and the alienée vpon the statute because in this case she might haue had a Writ by the Common Law this Writ vpon the statute abated But if the two Coparceners had ioyned against the alienée and the one had beene at non-suite she should haue been summoned and seuered and her part beene diuided as well as the others quaere by the Register when the husband vnto one of thrée partners purchaseth one part c. he and his wife may haue a speciall Writt against the third euen so it séemeth if one of thrée Coparceners purchase a fellowes part the purchaser may haue a speciall writt against the third parcener 7. ct 8. Eliz. 243. in Dyer by Anthony Browne and Dyer ioint-tenants cannot at this day make partition by paroll out of the countie where the land lieth for 31. and 32. c. change not the law in this point But the partition must bee by Writt out of Chancery Humfrey Browne and Weston 2. Eliza. Dier 179. a man deuised socage lands to his two daughters and to the heyres of their two bodies loyally engendred and died the two daughters tooke husbands and at full age c. partition was made by paroll one husband had issue by his Wife and shée dyed By the opinion of the whole Court the other Husband and his wife shall haue the whole Land by suruiuor for partition by word onely betwixt ioint-tenants or tenants in Common of estate of Inheritance is voyd yet of a tearme peraduenture saith Dier such a partition is good enough fo 350. in Dier If ye doubt now of any thing somthing more then you did before yée are the better learned and warned to worke surely The manner of partition by Writ c. THe Iudgment vpon a writ de partit faciend if that diuision be made betwéene the parties and that the Viscount in proper person going to the lands and tenements by the oath of 12. loyall men of his Countie make the partition deliuering one part to the plaintiffe or to one of the plaintiffes and another part to another parcener c. making no mention in the iudgement more of the eldest then the youngest Sister The Sheriffe must giue notice to the Iustices of the partition which he hath made aswell vnder the seale of the 12. men as vnder his owne seale And in this partition there is no primer election giuen to any but the second may haue liuery before the eldest or the younger before either of them euen as it pleaseth the Sheriffe And this difference is betweene partition by Writ here and the other partition which is by agreement In the first the Viscount shall make to euery partner her distinct share but in the other they may agrée that one shall hold in seueraltie and the rest shall occupie that which remaineth in common Thus farre Littleton Bractons partition THere is in Bracton a large discourse of partition which I sée not why for the forme at this day should not be good if not of all other the best And this partition is by commission to men either chosen by the parties or appointed by the King as Iustices or extenders with commandement to the Sheriffe to make them come before those Commissioners or extenders tam milites quam alios legales homines nulla affinitate attingentes per quos negotium melius expedire poterit He hath also a precept to the Coroners where the Sheriffe is negligent Tepidus remissus in executione preceptorum domini Regis with a rule for valuation of an aduowsan viz. that a marke annuall to the parson shall be rated a shilling to the parcener to whom the aduowsan shall be alotted And when the extent and diuision is made euery part being written by
an issue of ne vnques accople in loyall Matrimonie and that must be tried by the Bishop Therefore for the better direction of Brides take the case verbatim as it is propounded with the solution 22. Eliz. Dyer 369. A woman of full age contracts Matrimonie by words of the present instant with a young man of twelue yeares age and this being solemnized in face of the Church with consummation after a sort the young man being put to bed to her died vnder age quaere if the Ordinarie ought to certifie an accomplement in loyall Matrimonie Solutio doctorum quindecem We be all of opinion that she is to be taken for a loyall wife coupled in loyall Matrimony and in question of Dower that the Bishop ought so to certifie for albeit that in other regards these were but Sponsalia de futuro yet in case of Dower and the priuiledge thereof they are extended to Matrimony consummate Et iudicium datum pro dote heere ye say was the Law as cleere as Christall on your side when supper is done dance a while leaue out the long measures till you be in bed get you there quickly and pay the Minstrels tomorrow SECT II. Baron and Feme one person NOw that Matrimony is celebrated and consummate here is so strait a fellowship or rather identitie of person that if a feoffement bee made to a man and his wife iointly with I. S. the Baron Feme take but a moity and in a feoffement to Baron and Feme and I. S. and T. K. they take but a third part and where a feoffement is made to a man and his wife ioyntly they take not seuerall moities as other ioynt Feoffees doe but the Baron and feme take intirely together and in Law they are said to be seised by intierties and there is no halfing betwixt them For if the Baron charge the whole land or part of it with a rent the wife shall hold it discharged after his death and if he sell all or part and die the wife shall recouer all by Writt of cui in vita See 40. assi pla 7. If a Villeine and his Wife purchase land ioyntly the Lord enter and the Villeine die the Feme or her Heyre shall haue the whole Land Eadem lex videtur where the Husband ioynt-purchaser is an Alien borne or attaint in premunire or of fellonie But the booke of Assises goeth not so farre The videtur is Parliament 43. in Brooke where likewise ye shall see it was holden 5. H 7. fo 31. that if T. infeoffe W. and A. his wife afterward it is by Parliament enacted that all estates made by T. to W. shall bée voyde that the feoffement shall be voyd as well towards the wife as towards the Husband because they are but one person in Law and the Feme taketh nothing but by agréement of the husband And vpon the like reason is the case Dyer 3. Eliz. fo 196. Sir Rob. Catline purchase land held in capite to him and his wife and his heyres without licence and the Queene pardons all offences pro quacunque alienatione sibi facta and doth not speake of the wife in the pardon and yet it was allowed in the Exchequer But if the feoffement had beene to W. and I. S. this I. S. should haue held his moity notwithstanding the Parliaments decrée and this seemeth to bee the better opinion though there were in manner equall number to maintaine That if the feoffement were before couerture the Parliament should voyd it for a moity but if it were after couerture it should voyde for no part against the Feme when shee was discouerte leauing to Parliaments their omnipotencie it is cléere the husband cannot seuer the Ioynture betwixt him and his wife as an other Ioynt-tenant may if the Ioynture were made during Couerture because there is then no moity Otherwise it is if the Ioynture were made before the Marriage And if lands be giuen to a man and his wife habendum one moity to the husband and habendum the other moity to the wife now they bee seised of moities as Tenants in Commom But for this I finde no other authority then the opinion of Knightly in Dyer 28. H. 8. 10. b. SECT III. Baron feme cannot infeoffe one another MOreouer this Conglutination of persons in Baron and feme forbiddeth all manner of feoffing or giuing by the one vnto the other for a man cannot giue any thing vnto himselfe therefore 27. H. 8. fo 27. In action of debt vpon an obligation to performe couenants where it passed for the Plaintiffe because the Defendant had not paid annually seauen pound to his wife it is alleaged in arest of Iudgement that the Couenant was impossible in it selfe c. But Chomeley Shelley and Fitzherbert moued the husband to agrée with the Plaintiffe Car le exception sert de riens for although in strict intelligence of Law money and Chattels paid deliuered or giuen to the wife by the husband are still his owne yet a man may giue his wife a paire of hose saith the booke as a man is bound by honesty so he may be bound by red waxe and parchment to finde his wife sustenance and to bee bound to giue her money for her securitie is all one from this Lanthorne I thinke he tooke his light which bound a gentleman of mine acquaintance to giue his Wife the Obligée his Daughter yearely such and so many gâ—wnes Hertles c. And the meaning must bee taken and obserued in the booke of 4. H. 7. fo 4. is another memorable Cause A man was bound to I. S. by obligation to make a sure estate to a woman in certaine tenements within three moneths after his fathers death The Obligor marrieth the woman in his fathers life time and the Matrimony continueth till the three moneths be expired the obligation is forfeited Vauisor said the husband might well haue performed the condition by fine leuied vpon a writt of Couenant brought by a stranger against the Baron and feme Fisher said he might haue performed it by making a Lease vnto a stranger the remainder to the wife quaere of that Vauisors performance had beene good I thinke if there had beene in the beginning a full purpose and intent of intermarriage betwixt the woman and the Obligor But that appeares not and therefore being that hee hath brought himselfe to an impossibility of performance either of words or meaning the Obligée must néeds be allowed the aduantage If the obligation had béene to the woman her selfe the condition by inter-marriage had béene dispensed with for where the Obligee is a cause that the condition cannot be performed the not performing is without penalitie to the Obligor as if in the old dayes I had béene bound to an Abbot that A. should infeoffe him c. before Christmas if A. had presently entred into Religion my bond had presently beene forfeited not so If A. had béene professed vnder the obedience
substance of the entrie is no more but conâ—iderâ—tum est vt reâ—upâ—â—â—◠〈◊〉 de 〈◊〉 pâ—rte and then either presently or after ward â—â— the 〈◊〉 of the demandant there is awarded a writ 〈◊〉 〈◊〉 〈◊〉 de tertia parte to the Sheriffe who must make returne how he hath executed the Kings commandement But I finde by Dyer 11. Eliz. fol. 278. that an Alias habere fac shall not be awarded after the Sheriffe hath executed the Formedon the case was that the Sheriffe vpon the Habere fac ' c. profer seism by meanes of a third part and the Demandant refuse yet by Harpur and Dyer her entrie was afterwards lawfull for the certaintie appeared and they that an Alias habere fac ' by no president shal be granted and as images of this course must be the procéedings in all basâ— Courts which hold of Dower So that it is now more than sufficiently perceiued that the third part of euerie mans inheritance is assignable for Dower by the husbands heire or the heires Gardian or by the Feoffée or Feoffées of the husband or heire or by some other tenant or tenants or by the Chancellor Escheator or Viscount But it ought to appeare yet mâ—re fully how these thrée parts shall be assigned and wherein Sée Dyer 2. Eliz. 187. In Dower against eight two confesse the action and the rest plead in â—arre sir had iudgement for a third part of two in eight diuided and afterward vpon verdict against the sir iudgement was of sir partâ— in eight diuided Parcell of any thing whereof a woman may rightly claime Dower is assignable c. But other lands than those whereof she is by title dowable or not assignable Acceptance of a greater or lesse part than the third in name of Dower of all the franktenement which the Baron had bindeth a woman But assignment of all the land which the Baron had is not good But I referre you to Sir Edw. Cokes Commentarie vpon Littleâ—on fol. 346. how Assignment is to be made and what Assignment is good where it is said eight things are obseruable to a perfect Assignment of Dower The heire is not bound to assigne any widdow Dower in his capitall Messuage or in any part thereof But Assignment of such house in allowance of all other lands or of other lands whereof she is dowable for the house is good when it is accepted And Assignment of a chamber in the husbands dwelling house when other lands are not whereof to make assignation is good being accepted But a woman is not bound to accept this kinde of Dower except she list Arent may be assigned her out of the house and this shall be good sans fait Like wise it is of Common of Estouers of Pasture assigned in allowance of lands or other things whereof a woman is dowable And lands in Wales may be assigned for a whole Dower and thereby â— woman may be excluded from her Dower in England If vpon Iudgement of Dower and before execution the tenant assigne a rent per paroll issuing out of the land whereof the Iudgement was giuen and the woman accepts it in stead of Dower thâ—â— iâ— a good barre in a Scire facias and it is distrainable of common right but if the Assignment had béene by pâ—roll of other lanâ—s than of such as wherein the woman might haue claimed Dower it would not haue barred execution because it was not pursuant to the first Iudgement Dyer 1. Mar. fol. 91. It is said in Sir Edw. Cokâ—â— 4. Rep. fol. 1. in Vâ—rnons case that at the Common Law no collaterall satisfaction or recompence made to a woman in satisfaction of her Dower was any barre of her Dower for no title of Franâ—kteâ—â—ment or inheritance may be barred by any collaterall satisfaction When the Writ of 〈◊〉 comes to the Sheriffe he shalâ— deliâ—â—r 〈◊〉 â—â—â—â—â—â— and bounds but this rule cannot stretch to things not boundable Therefore if Dower be demanded or recouered of thrée shillings rent assignation of one shilling is sufficient And when dower of a 〈◊〉 or will is demanded a third part of the proâ—â—t c shall â—â— assigned and it â—â—â— good Indowment without certaintiâ— Et â—l 〈◊〉 〈◊〉 free serra contribâ—â—â—â—iâ— And so dower of a villeinâ— either the third dayes worke or euerie third wéekâ— or moneth And so of the profit of thâ— thirâ— part of Stallage of the third part of the profits of a Faire and so of the third paâ—t of the proâ—â—t of a Parke and of a Doue house and so of the third part of a Piscarie viz. Pertertium piscâ—m veliactum â—erâ—iuâ—â—eâ—is c. SECT XX. New Indowment IF that which a womâ—â— holdeth iâ— dower 〈◊〉 lawfully against her will and without her fault 〈◊〉 and eâ—icted c. she shall be new indowed of the other lands whereof the â—â—ate which her husband had remaines still â—ndefeated for example The Baron seised of thrâ—â— Acres dies the wiâ—dow is indowed of one Acre which he gained by 〈◊〉 if she be â—â—sted she shall be â—â—dowed of the other two Acres Tenant in taile of thrâ—â— Acreâ— discontinueth in fée the Discontinuée marrieth and dieth his wife recouereth dower against his heire the issue in taile brings a Formedon against the widdow shâ—â— voucheth the heire he enters into Warrantie loseth and the demandant hath execution though the â—state which thâ— heire hath in the other two Acres remaining be defeasâ—ble yet the woman shall be newly indowed of them till they be defeated yea though the Discontinuâ—â— his heire haue aliened the widdow shall bée newly indowed notwithstanding Againe a man seised of two Acres in fée within one Countie takes a wife enfeoffeth a stranger of one Acre with Warrantie and dying hauing issue a sonnâ— which entreth into thâ— other Acre the wife brings a writ of Dower against the Feoffâ—â— which â—oucheth the heire and the heire loâ—â—â—h â—â— default so that the Demandant hath Iudgement conditionall and execution against him to recouer of the land which he hath by discent within the same Countie where the Writ was brougâ—t If now the Vouchâ—â—â—â— restored by a Writ of deceipt to the lanâ— which the woman recouered shée shall haue Sciâ—â— facias against the Feoffâ—â— that was tenant in her first Writ to be newly endowed of the other Acre And if he haue therof inâ—eoffâ—d a stranger yet this stranger shall be bound by the first Iudgement in dower that was conditionall If a woman that is dowable take a second husband and be endowed by his assent per metes bounds if now the Baron discontinue in fée and die the wife may haue a Câ—â— in vitâ— and Perkins leaues it not cleane out of doubt whether she may not be new endowed of such other possessiâ—ns as were her husbands during couerture because the endowment was not by Writ This new endowment is when the euiction is loyall mâ—â—gâ—â—â—â— tâ—st del feme for when it iâ— otherwise she must recouer the land againe
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
hath not the force of a negatiue implying in nul auter manner then is therein described Amy is therefore a ioynt purchaser with her husband in estate for life and not in or by descent of estate taâ—â—e Now to say that her right and estate should change by silent operation of the Law after shee was repossessed that cannot be for the whole entry is tolled and if she be not remitted by her first possession and reprisall she is neuer remitted If a Disseisour make feoffement to the vse of the Disfeisée and after the Disseisor enter he shall be remitted but before his entry he shall not be remitted for he shall be adiudged in possession by vertue of the Statute but so soone as hee entreth he is remitted for his entry was neuer tolled But Amy Townesends entry was cleane taken away by the discontinuance c. further if she should be remitted by the Statute of 27. the remainders should be all destroyed contrary to the text of the same Statute And to the inconueâ—iencie alleadged if she shall not be remitted shee shall hold incombred with the charges of her Husband that is none at all for Amy after her husbands death might haue disagréed and relinquished the vse with possession annexed to it by bringing a cui in vita against him next in remainder for in him by such disagréement or vser of action had the remainder vested as though the woman had beene a Monke or dead person in Law or neuer named in the limitation If the vse had béene to Amy Townsend in fée she might haue brought her cui in vita against the Feoffor or his heyre by which they shall be Tenants to her action and so might the inâ—umbrance haue béene auoyded for when a feoffement is to the vse of one which refuseth the vse it shall be in effect as if the vse had beene limited to Paules stéeple or to Charing-Crosse all falling or reflecting because the Feoffor hath no recompence or consideration to his vse and hee shall be Tenant to euery Precipe It was further agreed that as the Cause fell out Amy Townesend could not be remitted though her possession had returned by refeoffemeÌ„t at the Common Law because Sir Roger Townesend her Husband outliued her for 21. Ed. 3. the Case is Baron made a Feoffement the Feoffée â—einfeoffe the Baron and Feme and heyres of the wife she woman dyed the Heyre entred the Baron brought an Assise which was iudged maintainable for whilest the Baron liued he was tenant to the heyres action And the thâ— Iudgement was that Amy Townsend was neuer remitted the reason was indéed because there is nothing in the Statute of 27. to make a remitter for the clause of sauing of Drâ—its Titles and Actions is of such right c. as was before the Statute and not of any right title or action risen since or after it Now note that as a Lease made for twenty yeares by Baron and feme Tenants for life binds not any remainder by the Statute which speaketh onely that Leases made by Tenants of Inheritance shall binde heyres and Successors so I would inferre that if the Leassors inheritance be determined whether it were iure vxoris in taile or otherwise in taile the remainder must be frée from the Statute But note that the point which made me choose this case for illustration of the Statute is this Amy Townesend was iudged not remitted because she had no title of entry but onely by the 27 c. of vses and therefore she must néeds claime her possession according to the vse But put Case the Feoffement had béene since the Statute of 32 the Law would then haue iudged a remitter for by Littleton where any persons entry is congeable which taketh estate for life or in fée it is a remitter if the reprisall be not by Indenture or record or some matter of estoppell for alwayes where there is a double right or title the Law must iudge for the best as well in the entry as in the possession and an Indenture made by Baron and Feme is none estoppell to the Wife by the Common Law Concerning the Case 21. Ed. 3. Wilby which gaue iudgement thought the Barons aduantage a hinderance to the Remitter yet if he died the wife should be remitted But if you looke Brooke remitter 21. and 41. ye shall finde that the Feme was maintenant remitted though to saue the husbands aduantage of warranty they would not so iudge it quod mirum saith Brooke and quaere quia contrarium a ceo iour SECT XXVII Whether acceptance or taciturnity may not take away an entry at this day NO fine feoffement or other act done by the husband onely shall make any discontinuance or be preiudiciall to the wife but that she may enter c. what if Baron and Feme make a feoffement or Lease for life by solemne Indentures with Liuery and seisin cleere this takes not away at this day the wiues entry after Couerture ended But admit when shee is a widdow shee refuseth to enter and accept payment of rent or performance of couenants is not now both her entry and her action gone also euen as in case of an Infant which makes such a feoffement or Lease and accepts the rent when he is of full age The question must be answered out of the Statute and in mine opinion there is nothing in it to ayde a woman after such ratification by acceptance volenti non fit iniuria nec inuitis confirmantur beneficia A Lease by Baron Feme per Indenture is not voyd presently by the Barons death But whereas before she was driuen to suit and action shee may now enter by the Statute yet it compels her not to enter neither caâ—teth any frée-hold vpon her In like manner if the Baron alone alien his Wiues Land by fine with proclamation the Wife may enter by force of this Statute but per opinionem totius curiae Ed. 6. Dyer fo 72. If she suffer fiue yeares to passe and expire without entry or vser of action she and her heyres shall be barred for euer for this Statute of 32. though it limit no time for the womans entry yet it speaketh nothing of fines with proclamation and therefore it takes not the generall Law made 4. Hen. 7. cap. 24. of fines with proclamation And sée Sir Ed. Cokes 8. Rep. fo 72. in Grenlies case SECT XXVIII Of Fines SEe further the case 18. Eliz. Dyer 351. Land holden in socage was giuen to a man and his wife in taile the remainder in sée to the Barons right heyres the Baron alone leuied a fine with proclamation to his owne vse and afterward by his last will and Testament in writing deuised the Land to his wife for life the remainder ouer to a Stranger vpon condition to pay certaine rent annually out of the land with Clause of distresse c. the Baron died the wife entering and claiming estate onely for life paid rent
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
this Warrantor be vnder age yet the Law fauoureth widdowes so much that the plaint shal not attend his full age Therefore if the Tenant shew forth any Charter Déed or speciall cause whereby the Court may perceiue that the Infant is bound to Warrantie by the Ancestors act he shall answer presently what age soeuer he be of And though the Infant in ward be aliened by his Gardian or Gardians from hand to hand this shall not preiudice the Voucher for alwayes he shall vouch to warrantie the Heire and not the Gardian who is bound to present his ward so vouched in Court without difference whether it be one or many parceners Thus saith Britton and 48. Ed. 3. fol. 5. agreeth that he which voucheth an heire vnder age must vouch him in ward de vntiel If he be a ward it is said there also that hee which voucheth an heire at full age must shew a Déed quaere But when the lands are in the Gardians owne possession to his owne profit and vse the writ of Dower must â—ée brought against the Gardian and not against the Infant 46. Ed. 3. fol. 19. Where Mowbray saith where an Infant is vouched in ward of the King the woman shall recouer Dower maintenant 3. H. 6. fol. 17. It was agréed per curiam that in Action of Dower if the tenant vouch the heire in the Kings ward within the same Countie where the writ is brought the Demandant shall not recouer before the warrantie be determined but the Law is contra if the Voucher had prayed summons in another Countie for then the Demandant should recouer maintenant yet by the Register fol. 7. if in a writ of Dower the tenant vouch in Durham the Demandant shall abide triall of the warrantie and not recouer presently But by Fitzherbert for a rule in titulo Voucher if the tenant vouch in a forraine Countie shee shall recouer maintenant and neuer attend triall of the warrantie but when Voucher is in mesme lâ— countie If the heire vouched to warrantie aftâ—r â—hee hath appeared and countâ—â— pleaded the warrantie or before appearance being lawfully summoned do 〈…〉 ke default the Defendant shall haue execution against him maintenant if hee haue lanâ—s within the Countie Brooke Dower 5. And also Dower the 6â— when the heire is vouched in the same Countie the woman shall recouer against the heire Dyer 3. Eliz. â—â—â— In Dower the tenant vouch the heire in the same Countie who co 〈…〉 as one that hath nothing by descent in â—ée and renders Dower the tenant auers that he hath assâ—â—â— by descent qu 〈…〉 if he should not say in fée for by Weston and Browne if the lands be in taile it doth not 〈…〉 the tenants lanâ—s And the opinion of the Court was that the Demandant shall haue Iudgement presently aga 〈…〉 the heire if he hath lands c. and if not against the tenant and that before the issue of the assâ—â—s tried 1 Ed. â— fol. 24 In a writ of Dower against Tenant for life if he vouch his Lessor which is heire to the husband the woman shall recouer against the Tenant and he ouer against the Vouchee But when the heire iâ— vouched by Charter of his Ancestor the Demandant shall 〈…〉 couer against the Vouchee and the Tenant shall hold 〈…〉 peace Yet in a Writ of Dower against Lessée for 〈…〉 e of the Barons demise if the heire bee vouched to Warrantie though here the reuersion which is the cause of the Warrantie were made by the Baron the Demand 〈…〉 shall recouer against the Tenant and he against the heire If the tenant vouch in a writ of Dower and the Vouch 〈…〉 counter plead the Warrantie the woman shall recouer maintenant though in other actions it bée otherwise 46. Ed. 3. fol. 25. and 49. Ed. 3. fol. 23. In a Writ of Dower the Tenant vouched himselfe to sâ—â—e the 〈…〉 taile 2. H. 4. fol. 18. in Dower the Tenant vouched the heire Processe went on to sequatur sub suo periculo sicut alias the Vouchée came not it was awarded the Demandant should recouer against the Vouchée if hee had lands in the same Countie If not that shee shall recouer against the Tenant and hee ouer in value But first it was examined if the Vouchee were heire to the Baron 21. Ed. 3. fol. 30. In Dower the tenant voucheth the Barons heire in ward of the demandant per cause de nurture shewing the Ancestors Déed he was compelled to plead in barre because now the woman might be endowed De la plus beale for Gardeine pur nurture hath alwayes intendment to Soccage tenure Vide Brooke Dower 42. 5. Ed. 3. The fathers wife was endowed the Grandmother brought a writ of Dower against her â—he vouched the heire in reuerston the Demandant recouered against the tenant and shee against the heire a third part of two parts remaining but not in value Sée Brooke Dower 79. If the Grandmother die the mother may enter into the first dower and the heire into the second SECT IX Plees in a writ of Dower ADmitting there were no Voucher let vs run ouer other matters vsually pleaded 14. H. 4. 33. in Dower was demanded a third part of two mils of other lands yâ— tenant asked Iudgement of the plaintiffe for they were during the whole time of couerture but the â—â—te of two mills viz. toâ—ts 38. Ed. 3. fol. 13. In a writ of dower against one as Gardian of land and heire of K. de R. the defendant answered that the Infants father was â— de R. Iudgement del briefe and if the writ were good hee was ready to render dower You cannot said Knyuet plead to the writ render dower both at one day so the demandant praying Iudgement seisen was awarded her And because she auerred that the defendant was not touts temps prist to render dower an Inquest of dammages was awarded and that execution should cease till the Inquest were past 13. Ed. 4. fol. 7. In action of dower the tenant pleaded touts temps prist de render Dower vncore est The demandant said that I. S. her husband died seised and that such a day and yeere she required the tenant to indow her at Dale which refused c. he replyed that at the same day he offered to goe with her to the lands and to assigne her dower but she refused sans ceo that he refused The Court held the Issue well taken by this speciall pleading But if hee had said generally and barely hee refused not some thought it had not beene sufficient insomuch as it denies not the request Bryan said the demandant here might not haue seuerall Iudgements of one thing for note shee was to recouer dower vpon the first plea but all the other Iustices were of opinion cleere that shee should haue Iudgement of Dower maintenant and 18. Ed. 3. In action of Dower Iudgement was to recouer dower with an inquest for dammages As in a Quare
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
seisi que Dower la puit It was giuen in eâ—idence to the Inquest on the Demandants â—ehalâ—e that a feosment was made to the â—aron in fee yâ— déed of feofment was shewed to the Court it was answered that long time before the feofment the Earon was seised to him and his first wife in speciall taile and how afterward hee discontinâ—ed that and takes backe an estate in fée simple to himselfe by â—he 〈◊〉 aforesaid of which estate hee died seised so that the heire in speciall taile was remitted and the second wife being now Demandant not dowable Mountague would haue demurred and disâ—â—ssed the â—ury but the Iustices were cleare in opinion that the â—ury ought to 〈◊〉 for the Demandant because their charge was only vpon the issue viz. whether the Baron had euer â—eiâ—in of such â—state that thâ— wife might haue dower And they were not to â—â—gâ—â—d the Remitter but onely to looke to the generall issue giuen them in charge But if the speâ—iâ—ll matter had 〈◊〉 pleaded the Demandant must nâ—â—dâ— haue â—éene â—arred for if he which makes a feoffement with condition to râ—â—nter for the condition broken and then in a Writ of dâ—â—er brought by thâ—feâ—â—â—â—â—s wiâ—â— hee will plead ne vnques â—â—iâ—â—â— quâ— dower it shall be found against him Knighâ—ly therefore would haue the spâ—â—iall matter found by the Iury and a verdict at large but the Iustâ—ces would not consent Yet â—empore Edw. 1. There was a case that the Baron discontinued his wiâ—es 〈◊〉 and died his wife recouered against the discontinue and he died the discontinues wife brought a Writ of Dower against the woman Recouâ—rer and she pleaded the generall issue ne vnques â—eisi que dower la puit All this matter was found â—y â—peâ—iall verâ—â—â—â— and â—udgement giâ—â—n vpon the issue 〈◊〉 foolishly â—â—ynâ—d that the Demandant should recoâ—er Dower which shee should neuer haue done had the 〈◊〉 â—éene good Sâ—â— and marke well this case and 21. Edw. â— fol. 60. and the â—â—se 28 Aâ—s pl. 4. SECT XIV Recouerie against the husband 14. H. 4. 33. IN action of Dower the Tenant pleaded a recouery in Assise against the husband iudgement si action c. the Demandant said her husband was seised c. and married her and infeofed the Tenant and afterward disseised him against whom the Tenant recouered in Assise the Baron died she prayed to bee indowed The Tenant said he was seised till by the Baron disseised against whom hee recouered by Assise sans câ—o that the Baron was seised before the disseisin que dower la puit the Demandant said seised before the disseisen que dower la puit Likewise 47. Edw. 3. 13. the Baron makes a feofment and ousteth the feofée the feofée recouers in assize the baron dieth now in a writ of Dower if the feoffée plead recouery in assize the widdow cannot â—alâ—â—â—â—â— the recouery but she may plead that long time before it c. her husband was seised que dower la puit and the Defendant contra 12. H. 4. 20. 21. The Tenant said he brought a Formedone against the husband which Writ hanging he shewed to the husband a dâ—ed of intailment whereupon presently he rendred the land in pâ—is to the Tenant which entred and now auâ—rreth the entailâ— Iudgement si action Thiâ—â— said the Statute was si vir reddat aduersario suo de plenâ— Iusticiarii adiudicent mulieri dotem but he and the whole Court agréed that rendring in pais doth not defeat meâ—â—â— estates of them which were neither parties nor priuy to the rendring and therefore they awarded the woâ—â—â— should recouer Dower Hanke said fée simple might not be rendered without liuery and seisin and where there is Lord and Tenant the Tenant may not surrender to his Lord Of falsifying of recoueries I haue spoken already Note If land bee recouered in value against the husband because of warranty made by his Ancestors the widdow shall haue Dower of those lands notwithstanding for if the Baron had aliâ—ned the land before voucher it should not haue beene rendred in value Consequently therefore the womans title is more ancient than the vouchers which beginneth but the day of vouching By Fâ—â—zh in his Abridgemâ—nt Dower 129. And his â—atâ— â—re 150. d. SECT XV. Ne vnques accouple c. SOmetime the vnlawfulnesse of marriage is pleaded in barre of Dower As 39. Edw. 3. 15. the Tenant pleaded the Demandant was first married to A and hée liuing she married B. of whoâ—e dowâ—ent she claimeth A. being still aliue this was holdâ—n no good pleading and therefore he added â—ssâ—â—t nient accouple in loyall matrimony The entry was only ne vnques accouple c. and a Writ awarded to the Bishop to certifie but for all such pleas deduced at length by old Writers as stand vpon the inualidity of marriage I will refâ—rre widdowes to that which is gone before of marriage and diuorce The pleas also of vnder 9. yéeres of age of attainder of non tenure ioyntenure or seuerall tenure I will not tarry on them 39. Ed. 1. fol. 4. A woman brought Dower against twâ— by seuerall precipes and one of them prayed â—yd of the other as parceners so that it appeareth that seuerall tenaâ—cie is a good plea in action of Dower Contra in Assise Brooke 99. SECT XVI Plea that tâ—e Baron is yeâ— aliue THe Writ de dote vnde nihil habet affords another eâ—ception against Dower because it saith quondâ—â— viri sui for though the fundamentall cause of dower be matrimony quoad le title yet as to the possession a woman cannot claime it till matrimony be dissolued therefore by Fitzherbert if the Baron take habit of religion the wife shall not be endowed till the husband be dead re vera yet by Britton it is issuable whether the Baron be entred into religion or no and that issue shall be tried by the Ordinary and iudged according to his certificat â—ut when the deforcer will barre Dower by â—lâ—a that the husband is yet aliue if the widdow reply he is dead the proofe regularly belongs to the Plaintiffe But if the Defendant say the husband is in plein vy ceo est prist auerrer he must proue his aâ—erâ—ent and sometime â—oth parties shall be heard to make their prâ—â—e which if it â—e aâ—â—â—e strong on either â—â—â—e the Deâ—andant may haue iâ—dgâ—ment oâ—â—eisiâ— finding surety such as the Court shall â—ward to resâ—ort if hâ—r husband hereafter â—ee brought into Court the â—aâ—d with the issues and proâ—â—â—s therâ—â—â— iâ— tâ—e interim recoâ—â—â—d But if the matter be doubtfull and the womaâ—â—aâ—â—ot â—â—â—â—e such surety the seisen shall râ—â—â—â—â—e where iâ— is and tâ—â— plea in suspence to be renewed pâ—â—summons as occasion shall serue Britton fo 25. SECT XVII Iudgement IVdgement in a Writ of Dower is framed according to the substance of the title and circumstance of the pleading It is touched aboue when or how a woman shall recouer dammages by sâ—râ—ise that the husband dyed
if he were intituled by the Curtesie the Aâ—tion is stayed so leng as he liueth And this Writ lyeth of a Vâ— Mi. 21. Edw. 3. 44. Edw. 3. 4 5. A man â—eised in right of his wife discontinued and after diuers alienations hee repurchased the lands to himselfe his wife died the heire brought a â—ur cui in vita against him praecipe W. â— quod reddar c. cui contradicere non potuit exception against the writ because it was not by another naâ—e but it was disalowed and the writ awarded good If the Baron alien his wiues see simple with warranty and leaâ—ing asseâ—â—â— to discend in fée he and his wife dye and the hâ—ire alieneth the asseâ—â—s and dieth his heire shall be barred in a sur cui in viâ—a But if an heire intailâ— alien the asseâ—â—s and dye his issue shall not be barred SECT XXIV The 〈◊〉 dâ—fâ—rciat THe quod ej deforciat though it be not méerly a womans Writ yet perhaps it comes not more â—ptly into consideration any where than in this place after the cui in vita If Tenant in â—aile or Teâ—â—â—â— in Dower or Tâ—nant per Courcesie or Tenant for tâ—â—me of life â—â—â—e their laâ—â— by default in any 〈◊〉 quod reddaâ— brought against them they haue no remedy if they were summoned according to Law but by this Writ which is giuen in expresse for me by West 〈◊〉 〈◊〉 And 〈◊〉 the 〈◊〉 vpon 〈◊〉 〈◊〉 the Writ lyeth against the 〈◊〉 and his heires in which case 〈◊〉 particular Tenant was without remedy at the Common law for a writ of right hee could not haue The Statute having â—irst appointed 〈◊〉 woman shall recouer Dower where the husband 〈◊〉 his 〈◊〉 by deâ—ault viz. by writ of Dower in which the Tâ—nant must not plead the iudgement alone but he mâ—st also prâ—â—e her right sheweth also how actions run together When a woman already indowed or Tenant by the curtesie or in franck marriage or by other in taile or for life demand the estate which they theâ—â—â—â—ues lost by default in which cases when it is come to that that the Tenant mâ—st proâ—e hâ—s right the Demandants which cannot anâ—wer withoâ—t them in the reuersion may vouch them â—â—â—iâ— flent â—eneâ—tes in priori brâ—â—â— And so the Tenant â—â—it loco actoris and if the Action were â— Writ of right they may procéed to the grand aâ—â—ise or battaile And furtâ—er Câ—m mulier ius non habens impeteâ—â—â— breâ—e de dote super custodem custos per faâ—orem mulieris dotem reddiderit vel defaltam fecerit vel placitum i 〈…〉 ct peâ— collâ—sionem defenderit vt dos fuerit mulieri adiudicata prouisum est quod cum ad aetatem veâ—eâ—t haeres habeat actionem petendi seisâ—â—am â—ntecessoris sui c. it a tamen vt salua sit mulieâ—i exceptio quod ius hâ—beâ—t in dote quod si ostenderit recedat quiâ—â—a sit haeres in misericordia grauiter amerciâ—tur secunduÌ„ discretionem Iustieâ— Then to the quod â—i deforciat Si haeres vel alius de dore sua implacitaverit muliâ—râ—m si dotem suam per defaultam amisserit fiâ—â— ei tale breue praecipe A. quod iuste reddaâ— B. qui fuit vxor C. vnum messuagium cum pertinentâ—s in N. quod clamat â—ssâ— rationabilem dotem vel de rationabilâ— dote sua quod idem A. inâ—uste ei defoâ—ciaâ— So is â—â—â—zherberâ— but by the old â—â— bâ—â— it must not be called an iâ—â—uâ—â— forâ—ing Ps. car le poll iniâ—ste non habetur in Statâ—to which is true ad istud breue habeat tenens exceptionem ad osten deâ— duâ— quod mulieâ— iâ—â— non habeat in doâ—â— quod si â—â—â—nd at reced aâ— quietus c. Last of all because vntill this time the Law 〈◊〉 no remedy vpon loâ—â—e by default â—â—â— only a writ of right which serued not for them that â—â—â—ld not speake de mero iure viz. Tenants for life in 〈◊〉 marriage or in taile â—he 〈◊〉 to aâ—oid that proiudiâ—e gâ—â—es them likewiâ—e their 〈◊〉 writâ— of quoâ—â—â— defoâ—â—â—â—◠〈◊〉 according to their title either quam clamat ad termium vitae vel vt ius maritagium vel sibi haeredibus de corpore Tenant by the curtesie likewise though it be not expressed by the Statute may haue a quod eâ— deforciat quam clamat tenere per lâ—gem Angliae which is by equity saith Fitzherbert If any Tenant of those particular estates lost by default by reason of non summons he may haue a quod ei deforceat or a writ of deceipt at his pleasure If a man lose by default in a writ of waste sued against him hee shall not haue a quod ei deforciat because the waste must be found by verdict nouell na bre Yet 2. Hen. 4. fol. 2. Hanc said if a writ to enquire of waste were awarded the Defendant which lost the land might haue a quod eâ— deforciat videtur lex esse contra saith Brooke for it was there agreed by all the Court that attaint lyeth in an Action of waste and the party may challenge the Iury yea the booke at large is that the Viscount may quash the pannell though it be of his owne making so that this kinde of recouery is by verdict and not by default Note that 21. Hen. 6. Challenge is denied but by Newton and Vaston Iustices Markham and Portington Serieants attaint lieth But sée Sir Edw. Cokes Comment vpon Fitzherbert fol. 355. that is resolued that if the Tenant in a Writ of waste in the tenet lose by default a quod ei deforceaâ— lieth as well as in assise and it is no reason to say that attaint lyeth against the Iury for so it doth in assise yet it is there said that attaint doth not lye after a Writ of inquirie of waste for it is but an inquest of office But there it is said that if the iudgement be a nihil dicit there a quod ci deforceat lyeth not for that is after appearance and is not a iudgement per defaultam And note there that if Tenant for life make default after default and he in the reuersion is receiued and plead to issue and it is found by verdict for the Demandant the default and the verdict are causes of the indgement and yet the Tenant shall haue a quod â—i deforâ—eâ—t vide Dod. fol. 556. more est quod ei deforceat 33. Hen. 6. 46. Littleton saith that Tenant for life or in taile may haue a quod ei deforciat as well vpon disseisen done to them as vpon recouery against them by default for before West 2. there was a quod ei deforceat at Common And all is one whether it be brought vpon a disseisen or a recouery for neither Writ nor Declaration make any mention of any recouery and the Tenant may choose whether hee will plead the recouery or other matter in barre which if he doe the Demandant cannot vouch
acsi esset tenens Neither is nul tiel recouery a good plea prima facie saue only for the Demandant when the Tenant pleads a recouery by default 2. Edw. 4. fol. 11. Littleton stands to his old opinion that there was a quod ei deforciat at the Common law and hee would haue it maintainable still by one that hath cause to bring a formedone or an assize or writ of entry sur disseism But the Court séemes to wonder at his sayings and also at the first when Billing comes and demands oier del record for the Tenant in a quod ei deforceat the Court askes him quae intendes per ceo so that with questionâ— of adâ—iration they séeme plainly to reiect both opinions that there is any quod ei deforciat at the Common law giuen otherwise than vpon recouery by default and then the Tenant may plead â—ul tiel record for neither the writ nor the dâ—claration makes any mention of the recouery But Liâ—â—leton comes once more 10. Edw. 4. fol. 2. and 〈◊〉 that once he brought a quod ei deforciat for his mother of lands which shee claimed to hold in Dower the Tenant said there was no record to 〈◊〉 that the 〈◊〉 were lost by default And Littleton challenged the plea because it might be the 〈◊〉 was in a 〈◊〉 Baron by default in a Writ of right in which â—â—â—â— quod â—â— deforcâ—at lyeth and therein iâ— no record 〈◊〉 is a record by default â—he Tenant said there waâ— neither record nor recouery where any 〈◊〉 by default appeared and this was holden a good plea per le◠〈…〉 And Littleton relinquished his suit 44. Edw. 3. fol. 42. A quod ei deforciat was brought against the heire of one which recouered in an assize hee prayed the plea might stay for his non age and vouched to warranty W. N. c. the voucher was allowed but not his age because he might not haue had it in his first Action So that it appeares this writ lyes vpon recouery in assize and the Tenant may vouch But by Thorpe if it had béene the party himselfe which recouered he could not haue vouched Et mirum saith Brooke that vpon a recouery in assize which is by iury and not by default this writ should be And if yée looke this booke at large yée shall finde againe that this writ and the procéeding in it is méerly by the Statute vpon a recouery by default therefore a quod ei deforciat lieth and that vpon a recouery by default in a quod ei deforciat As 13. Edw. 1. a woman recouered in a Writ of Dower by default against Tenant for life of rent and afterward the Tenant which lost by default brought a quod ei deforciat against the woman and she lost by default and then sued a quod ei deforciat c. This is the highest Writ which these particular tenants can haue of their owne possession as it were their writ of right and it lieth against him which is Tenant though he be not party to the recouery as against the feofée of him which recouered But it lyeth seldome or neuer for a stranger to the recouery Yet 41. Edw. 3. fol. 30. the Baron and Feme ioyned in a quod ei deforciat of lands lost by the Feme before marriage bene And by Belknap it lyeth vpon a recouery in a sciri facias and it lyeth without shewing the record The Tenant in this Writ whether it be he which recouered or his alienée shall not haue view 41. Ed. 3. 8. If a man lose by default in a writ of right brought in a Court Baron he may remoue the record and haue a quod ei deforciat in the Common place and quaere saith Fitzherbert if he neuer remoue the record if he then may not sue his quod ei deforciat in which Court hée will either the common place or the Court Baron He agréeth if a woman lose by default and then marrie she and her husband may haue this Writ but if Tenant in tailâ— lose by default and dye his heire must sue a Formedon for that is his Writ of right If lands be giuen to Baron and Feme in especiall taile the remainder to the Baron in generall taile and the wife die sans issue now if the Baron lose by default in a Praecipe quod reddat his writ of Quod ei deforceat must be Quod clamat tenere sibi haeredibus de corpore suo for so soone as the wife died the state apres possibility drowned in the remainder 50. Ed. 3. fol. 4. If in a Scire facias brought in Chancerie by an heire of full age to auoyd indowment assigned in Chancerie whilest he was ward he recouer by default the woman may haue a Quod ei deforceat in Commune Banco So likewise if a man recouer land by default in Scire facias out of some record in the Kings Bench the Tenant which lost by default may sue a Quod ei deforceat in the Common Place If two coparceners tenants in taile lose by default they may ioyne in a Quod ei deforceat yet the default of one is not the default of the other 46. Ed. 3. in Fitzherbert Nat. Breu. Brooke hath it also A Quod ei deforceat brought by two men heires in taile of Gauill kinde Quam clamaâ— sibi tenere haeredibus de corporibus exeuntibus was awarded good though they could haue none issue of their two bodies 46. Ed. 3. 21. If tenant for life or in taile appeare in a Praecipe quod reddat and afterward depart in despite of the Court he shall lose the land but yet he may recouer by Quod ei deforceat for the recouerie is by default for that he doth not appeare when he is demanded But if tenant for life or in taile after the mise ioyned in writ of right depart in despite of the Court they shall lose the land and not haue a Quod ei deforceat for the Iudgement is finall If Baron and Feme seised in droit le feme for her life lose by default in a Praecipe quod reddat they may haue a Quod ei deforceat by Fitzherbert which is denied in the old Nat. Breu. 155. If tenant for life lose by a default in a Câ—ssauit he shall haue a Quod ei deforceat by this Statute of West 2. If â—e in reuersion vpon default of tenant for life pray to bée receiued plead and lose by action tried yet the tenant for life may haue a Quod ei deforceat for the Iudgement must be against him by his default If in a Praecipe quod reddat the Tenant vouch and the â—ouchee will not appeare so that the Tenant loseth by default of the Vouchée Fitzherbert makes it a question whether hee may haue a Quod ei deforceat or no because the Iudgement is not giuen vpon the tenants owne default But cléere it is if the Vouchée appeare enter into Warrantie and lose
by default that now the Tenant shall not haue a Quod ei deforceat but Iudgement to recouer in value against the Vouchée If Baron and Feme tâ—nants for life in the wiues right lose by default and the Baron dye a Quod ei deforceat lieth not but a Cui in vita as vpon a Demise made by the baron In a Quod ei deforceat the Demandant must count that he was seised c. in his Demesne as of Francktenement or in his Demesne as of Fée tailâ— laying the Esplees in himselfe but he néeds not shew of whose gift lease or demise though he claime for life or she claimes in Dower or sibi haeredibus de corpore And the Defendant must deny the Demandants right c. and shew how he recouered in a Formedon or in some other Action concluding that he is ready to maintaine his right aâ—d title aforesaid c. vnde petit iudiciâ—m Then the Demandant must either trauerse it or shew matter in barre but he shall not make defence and then plead inbarre as he shall doe in a Formedon Fiâ—zh 10. Ed. 4. fol. 2. Dictum fâ—â—t and the tenant may plead a release of all the Demandants right in a Quod ei deforceat But the old Nat. Breu. obserueth that if the Demandant vouchâ—one that entreth into Warrantie hee which recouered shall not plead the Vouchées release made after recouerie In a Quod ei deforceat the Tenant may vouch and so may the Demandant 50. Ed. 3. 25. But if the Demandant vouch his Vouchée cannot vouch ouer 10. H. 7. 39. The old Nâ—t Bâ—eu acknowledgeth that in a Scire fâ—cias there lies no oucher yet if a man recouer by default in a â—câ—re facias out of a sine against Tenant in taile which bringeth a Qâ—od ei deâ—orceat if the Recouerer maintaine the title of his first Writ the Tenant in taile may vouch The Law séemes to be otherwise sée Plow 11â— 206. 14. H. 7. 18. The questions arose vpon the Demandants vouching 10. H. 7. fol. 10. The first whether he must shew cause of the Warrantie or no. The second whether hée may vouch one that hath nothing in the reuersion The third whether he shall recouer in value Frowicke answered The Voucher is by Statute and hee néeds not shew any cause for the Statute of W. 2. cap. 3. saith Concedatur ei quod vocet ad warrant ac si esset tenens in priori breue in which case he should shew no Déed Second hée shall not vouch any stranger for the Statute is Ideo concedatur eis quod vocenâ—ur ad warrantum quia non possunt sine his ad quos spectat reuersio respondere Third the Statute giuing voucher meanes that he shall haue the effect of his vouching id est to recouer in value And if a Statute giue action for a thing whereof the action did not lye at Common Law the partie shall haue iudgement processe and execution incident or belonging to that action and a reuersion is a cause of voucher and of recouerie in value Frowicke said fuâ—ther That though he which leased cannot disclaime yet his Grantee may and award his charge and if voucher here should be no more but an aid prayer the Grantée might not disclaime for if Tenant for life pray in aid of him in reuersion hée shall not disclaime And Tenant by the courtesie cannot vouch for he shall neuer recouer in value SECT XXVII Admonition for women to take heed of him in the reuersion THe rest of this fourth booke shall consist most in warnings to widdowes and women tenants in â—articular estates that they doe nothing preiudiciall to their warrant It is true for the most part Ex quibus rebus maxima vtilitas ex iiâ—dem summa pernicies Water washeth and drowneth fire reasteth and it burneth the Sunne ripeneth and it scortcheth and seareth They that can help can hurt The reuersioner of a widdowes estate of whom she shall haue aid to defend her shall take her estate from her in many cases if she offend him in his reuersion SECT XXVIII Of Waste EVen by the antique Law of England if Bracton say truth fol. 316. The Gardian in Chiualrie committing waste did lose the wardship was auerred Et damna restaurabat But if Tenant in Dower committed waste there was no forfeiture of her land or parcell of it but he in reuersion might stop and let her from doing waste and such hinderance was no Disseisen Also he might haue if néed required a Non permittas to the Sheriffe commanding him not to suffer waste vendiction or exile in lands tenements houses woods garden c. and he might haue attachment against the widdowes or a Pone per vadios saluos plegios to make her come c. shew why shée committed waste If the waste in a wood were found by Inquisition the paine was no more but that from thenceforth shée should take no manner of Estouers either to build burne or inclose but it must be per visum forestariorâ—m haeredis And Bracton sets forth the Wâ—â—â— for placing and appointing of the Fâ—râ—eâ—cor or by the heire ad praedict ' 〈…〉 custodiendum But now by the Stat. of Gloc. cap. 5. A writ of waste lyeth against Tenant in the courtesie or for life or for yeares or in Dower and the partie attainted in waste shall lose the thing wasted and make grée to trebble value of so much as the value shall be taxed at This Statute made 6. Ed. 1. ordaineth also that the Gardian which loseth his wardship for committing waste shall render dammages if losse of wardship be not equiualent to the harme Peraduenture Bracton wrote after the Statute for in one part of his Booke Ed. 1. is named â— 3. But it is said Sir Edw. Câ—kes 3. Rep. fol. 40. a. that Glanuile wrote temps H. a. Bracton temps H. 3. Britton temps Ed. 1. and in Sir Edw. Cokes 8. Rep. in Iohn Webs case fol. 46. b. he saith that Bracton wrote in fine del Roy H. 3. and Fleta wrote in temps E. 1. But note a woman shall not answer for waste done before her time yea if land bée leased to Baron and Feme for terme of their liues and they commit waste if the Baron die now the widdow is not punishable for this waste For that which the Baron did during couerture was only his act and offence dead and determined with his person Concessum per curiam 2. H. 4. and Br. 59. in his Writ of waste Yet if the lease had beene made to a Feme sole who takes a husband which commits waste otherwise it is by 9. H. 6. 52. women need no further warning to take héed of waste they are of themselues so hauing SECT XXIX The Writ of Entrie in casu prouiso BVtlet eâ—â—â—rie good woman take héed how she maketh any gift or alienation of such lands as she holdeth in Dower For Glocest cap. 3. is if a woman sell or
giue away in fée or for life the tenement which shée holdeth in Dower the heire or he which is in reuersion may maintenant haue his recouerie by Writ of Entrie and this is termed a writ of Entrie in Casu prouiso There is no doubt but Fée in this Statute signifieth both Fée simple and Fée taile And he which hath Fée simple Fée taile or Estate for life in the reuersion may haue this Writ against the Alienée or against him which is tenant of the Francktenement And this during the life of the tenant in Dower which aliened for when she is dead it lieth not perâ—el Nâ—t Breu. The Statute expresseth not the writ but the forme is Praecipe A. quod reddat B. vnum tonemen um quod clamat in quod non habet ingressum nisi per C. quae suit vxo D. qui illud ei demisâ—â— illud tenuit in dotem de dono praedicti D. quondum viri sunt cuius haeres c. quod post eemisionem per istud C. praefat ' A. contra formam Statuti Glocest c. ad praefatum â— reuerti debet performameiusdem Statuti And it may be in the Per Cui or Post If a woman recouer Dower against the heire and then alien in Fée the recouerie must be mentioned by the heire in his writ of Entrie in Casu prouiso In like manner as it must be in a writ of Entrieâ—d Communem Legem vpon an alienation by tenant in Dower and though this alienation be but in taile or for life yet the forme of the writ varieth not If he which hath the reuersion in Fée grant it to another and the Tenant in Dower after Atturnment alieneth in Fee the Grantée of the reuersion shall haue Writ specifying the grant Likewise if the heire grant his reuersion with Atturnment and the Grantée grants it ouer with Atturnment the third Grantée may haue a writ specifying that the woman held of the first second and third ex assignatione c. The Aunt and Néece hauing the reuersion by discent may ioyne in this writ and the processe is summons grand and petit cape SECT XXX The Writ if Enirie in Casa coasimili THis Writ is in nature like the other and it lyeth when Tenant by the courtesie or Tenant for his owne life or another mans alieneth in fée or in taile or for terme of life he in the reuersion which hath it for life or in taile or in fée may haue this Writ of Entrie in Casu consimili during the life of him which aliened and this is formed and granted vpon West 2. cap. 24. which willeth That as often as there is a Writ found in Chancerie for one case and another case falling sub eodemâ—â—â—e and requiring like remedy there is none in the registrie of the Chancerie for that the Clerks of the Chancerie shall concord in framing a writ Vel atterminent quaerâ—ntes in proximo Parliamento scribantur vsus in quibus concordare non possunt c. referant eos ad proximum Parliamentum fiat breue de consensu Iurisperitorâ—m ne contingâ—tdâ— caetero quod curia Domini Regis deficiat conquerentibus in Iustitia perquirenda The Writ is Reuerti debet performam statuti in consimili casu prouisi And it supposeth alwayes altenation in feodo although the Tenant leased or dem sed it but for terme of another mans life or in taile And so the writ of in Casu prouiso And that of Entrie ad Communem Legem This writ may be in the per cui and post And without title made in the writ if if so be that the Demandant himselfe made the particular estate of him which aliened But if the father or other Ancestor make a lease for terme of life and die and then the Tenant for life alieneth in fée now the heire in reuersion shall haue a writ comprising his title in it selfe And if this writ be brought vpon alienation made by Baron and Feme the writ supposeth that the wife aliened with her husband but yet shée may haue a Cui in vita after her husbands death the alienation not letting it If Tenant for life grant his estate to another and the grantee alieneth in fée the Writ shall be in quod non habet ingressum nisi per C. cuâ— D. qui illud tenuit ad vitam ex demissione B. deâ—â—sit ad eusdem teâ—mâ—num c. If a man make a lease for life and dye and his heire grant the reuersion to B. and the Tenant attâ—â—nes If now the lessée grant his estate to another which alieneth in fee to A. B. shall haue a Writ comprehending the assignation and grant of all the estates If lands bee giuen to two men and to the heires of one of them and he which hath the fée simple dies and then the Tenant for life alieneth in fée now the heire of him in remainder may haue this Writ for it lyeth as well for him as for Tenant in reuersion If any Abbot or Prior make a lease for life the lessée alien the Prior dye c the successor may haue this Writ Also tenant in taile may haue it if hee make a lease for life and his lessee alien in fée And it séemes if Tenant in taile make a lease for life of the lessee and dye the issue in taile may choose to bring a Formdon or Writ of Entrie in Consimili casu against the alienée whilst the lessée for life is yet liuing for the alienée which is Tenant in the Action cannot plead in Abatement of the Writ that the Demandant hath title to a Formedone But if Tenant in taile make a lease for terme of his owne life which is no discontinuance if now the lessee alien in fee and the lessor dye his heire cannot haue a Writ de consimili casu but he is driuen to his Formedone for in this case he hath no title to other Actions by colour of any demise But in the former case he had title by reason of the discontinuance made for life to claime by right of the new reuersion discended so that hee had a double title the reuersion reserued sur le seas and the title in taile consequently election of Action Quaere P. 17. Ed. 3. A lease made for life the remainder to another in fée the lesses aliened in fée and a writ de consimili casu brought by him in the remainder and it abated for the Court said that hee in remainder was not possessed in fait till the remainder did fall after the death of the â—essée Saith Fiâ—zherbert the Law is not so taken at this day but that hee in remainder hath the remainder vested in him as well as hath hee in the reuersion for hee may haue an action of waste and enter for alienation of his tenement as well as hee in the reuersion may Ergo hee hath his remainder in faâ—t and mee séemeth this Iudgement was not well giuen saith Fitzherbert And
Hill 18 E. 2. it was held by Herle Iustice that the Writ lieth well enough for him in remainder And Tri. 31. E 1. the heire in taile maintained a writ of entry in Consimili casu vpon alienation made by tenant le curtesie SECT XXXI The Writ of Entrie ad communem legem THe Writ of Entry at Common law is giuen in Case where Tenant in Dower or per curtesie or for life doth alien in fée or in taile or for life c. now if the Tenant which aliened doe dye hec in the reuersion must take this Writ of Entry ad communem legem which is very like the former Writs and may be in the per cui post If a woman recouer Dower alien and dye the Writ of Entry ad communem legem must make mention of the recouery And if Tenant by the curtesie aliâ—â— in fée and dye he in the reuersion if he be heire in fée simple may sue this Writ or his Assise of Moâ—â— dancester giuen by the Statute of Glocester ca. 3. If Tenant for life alien in fée and dye the Writs for him in reuersion are in diuers formes for if hee haue the reuersion by discent the Writ is in quod idem A. non habet ingressum nisi per C. câ—i D. pator vel antecessor of the Demandant cuius haeres c. demised c. But when the Demandant himselfe made the lease to him which aliened then the Writ is or may be Pâ—aecipe quod recidat c. omitting these words quod clomat vt ius haereditatem and note if Tenant for life alien in fee and dye hee in reuersion may chuse whether he will haue this writ or an ad terminum qui praeteriit If Tenant for life grant his estate and hee in reuersion grant his reuersion with Atturnement if now the Tenant which atturned alien in fée the grantée of the reuersion shall haue a Writ mentioning the grant and assignation c. SECT XXXII More of forfeitures and how a particular Tenant may forfeit his estate without alienation NOte If Tenant for life lease the land to I. S. for terme of life of I. S. which dyeth the first leasâ—e still liuing hee shall not haue the land againe because hee leased more than was in him and therefore hee in the reuersion shall haue it But if two be seised for life the inheritance in fée to one of them and ioyne in a lease for life and the leasee dyeth they shall bee ioynt tenants againe ê‘ Littleton 13. E. 4. fol. 4. Because hée which had the fée was priuy to the lease and so the other gained no new reuersion It is yet further to be vnderstood both that he in reuersion may enter vpon alienations made by particular Tenants vt supia to his disinheritance without suing the aboue mentioned Writs And also that there are sundry other forfeitures to the Reuersioner besides expresse alienations which I would haue widdowes to take héed of 6. Edw. 3. fol. 17. In Action of waste by an Infant against Tenant by his fathers demise he pleades that the father confirmed his estate to haue and to hold to him and his heires in fee by his déed shewed to the Court Iudgement si c. It was said for verity that if the claime were found false the heire might enter Page 64. in Fitzh And if a reuersion bee granted by fine and the conuse brings a quid iuris clamat against the Tenant for life which pleadeth that shee hath estate in taile by deuise in Testament from the Commissors if it bee found by verdict that shee hath but estate for life that estate is forfeited Quod vide Plowd fol. 212. in Saunders in Fremans Case where the entry for the conusée is consideratum est pro seisina reddâ—t praed cum partium versus c. occasionae clam ' placit praedict ' forisfact ' habend ' si voluerit persequatur ac etiam quod finis praed si voluerit ingrossetur Plesingtons Case 6. R. 2. was this A man made a lease for yéeres and granted further by Indenture if he aliened the reuersion or dyed within the teâ—me that the leassée should haue francketenement and liuery was made the fée simple was granted by fine c. and in a quid iuris clamat the leassee claimed francketâ—nement iudgement was giuen that the cognisée might enter for a forfeiture and that the fine should be engrossed si voluerit Sée 3. 4. Eliz. Dier 209. in a like case the iudgement was not quod quaerens recuperet seisinam but quod prosequatur pro seisina si voluerit finis ingrossetur c. SECT XXXIII The Statute of 11. H. 7. cap 20. THe Common Law restrictiue of it selfe and helped something by the Statute of Glocester was sufficient a great while to bridle women from making alienations for any land that they held in Dower or Ioynture as arguments of their owne good deserts and testimonies of their husbands loue But time which made the art of fencing more fine than it was at the first when Combattants fought all at head and shoulders and it was greater shame to strike vnder the girdle than it is now made law also more subtile than in the beginning it was when lands went altogether or for the most part by liuery of seisin And women witty of themselues instructed by crafty men grew cunning at the last that they could alien lands holden for life or in taile to whom they listed in fée And hee which suffereth disinheritance should not easily helpe himselfe by Writ of Entry either ad communem legem or in casu prouiso for remedy whereof was made this seuere statute in effect as followeth 11. H. 7. If any woman which hath had or hereafter shall haue any estate in Dower or for life or in taile ioyntly with her husband or only to her selfe or to her vse in any Manors Lands Tenements or other Hereditaments of the inheritance or purchase of her husband or giuen to the husband and wife in taile or for terme of life by any Ancestors of the husband or by any other person seised to the vse of the husband or of his Ancestors and haue or shall hereafter being sole or with any other after taken to husband discontinued or discontinue aliened released or confirmed alien release or confirme with warranty or by couin suffered or suffer any recouery of the same against them or any of them or any other seised to their vse or to the vse of either of them after the forme aforesaid that all such recoueries discontinuances alienations releases confirmations and warranties so had and made and from henceforth to be had and made be vtterly void c. And that it shall be lawfull to euery person and persons to whom the interest title or inheritance after the decease of the said woman of the said manors lands or tenements or other hereditaments being discontinued aliened or suffored
the Action may bee pleaded that the woman which bringeth the Appeale c. hath taken another husband or that shee was neuer accoupled in loyall matrimony to him of whose death shee brings the Appeale And if it bee brought by the heire it is a good plea in Barre to say the wife of him which is dead is yet aliue and the Action giuen to her In the booke of Entries fol. 50. Praedicta Alicia dicit quod â—â—mpore mortis praedicti Thomae â—adem Alicia fuit vâ—oâ— praedicti Thomae in quo casu â—idem Aliciae non praedicto Nicholao de â—ure pertinet hâ—bere prosequi appellum c. Et vâ—terius â—adem defendens dicit quod praedictus Nicholaâ—s appellum praedictum versus â—andem Aliciam inter Alios per couinam ea intentione ad eam de prosecutione appellinus de morte praedicti Thomae excludendam impetrauit que oia singula c. petit inde allocationem c. quoad felonia non culpabilis Et inde de bono malo ponit se super patriam 30. H. 6. Also it is a good plea in Barre to say that the Plaintiffe hath succeased her time in that shee hath not brought her Appeale within the yeere and day after his death which is supposed slaine or to say that he of whose death the Appeale is brought is yet aliue at such a place and to bring him in the Court that hee may bee viewed and knowne sée thereof 43. Assis pa. 26. in Appeale de morte viri the Defendant pleaded le Baron in viâ— c. and the Plaintiffe contraâ— day was giuen to bring in their proofes which when they came were found one both sides defectiue The Defendant therefore for his safest way pleaded â—on culpabilis videâ—ur ergo that the first issue if it had béene found against him should haue béene peremptacy and that hee may waiue it before triall in fauorem vitae And note that if a man plead not guilty and pute himselfe vpon the Iury in an Inditement of felony and hée may confesse the fact before verdict and pray a coroner otherwise in an Appeale as it was holden 11. Hen. 7. 5. 8. Hen. 4. fol. 18. In Appeale de morte viri and at the day the Baron was brought into Court examined 〈◊〉 knowne and the woman for her false Appeale was committed to prison till she payd a fine The generall barres against all Appeales of which some may bee obiected against the Plaintiffe here are those That the Plaintiffe is attainted of felony or treason or a Monke or a Priest a mayhemed body by some other than by the Plaintiffe or of non sane memorie or deafe and dumb or a layâ—r or a naturall foole Attainder by outlawry if it be erronious is a barre no longer than vntill it bee reuersed It is a good plea in barre also that heretofore the Plaintiffe brought an Appeale of the same felony in which shée was at non suit after Declaration or withdrew her selfe from her Action Or that heretofore shée sued Appeale of the same fellony against another person which was acquited or condemned at her suit Or the Plaintiffes release may bee pleaded in barre if it were made to the Defendant himselfe for release made to another will not serue though it were made to one ioyned with the Defendant in the Appeale Corone in Fitzherbert 9. and 2. Rich. 3. 9. agrées And so if the Plaintiffe withdraw her selfe as against one of the Defendants her Appeale shall stand good against the other And note where the Defendant pleads in barre any of these pleas yet in fauour of 〈◊〉 the Law permits him to plead ouer to the fellony and his pleading shall not therefore be counted double exceptin the case of release in which indéed he may not plead to the felony for not guilty in contrary to accepting of relâ—â—â—â— which â—â—tâ—liâ—th guilt So also of a woman bring Appeale of robery and the Defendant pleads villenage in the Plaintiffe hee shall not conclude ouer to the felony 〈◊〉 culpable for that were an iâ—franchisment But perchance when the villenage is found against the Defendant hee may then take his plea of rien culpable as well as hee shall haue when hée plead any other pleas for if he plead them without concluding to the fellony hée may after his barre is found against him plead rien culpable notwithstanding quod vide 28. E. â— fol. 91. 22. E. 3. fol. 38. 18. E. 3. fol. 32. except only in pleas of release as is said which implieth alwayes a confession of felony 9. Hen. 4. fol. 2. in Appeale de morte viri the Defendants pleaded the wiues release made since the darraine continuance of all accords reall and â—â—rsonall and shée demurred the best opinion was tâ—at reall actions are of things reall and durable as lands rents c. and personall actions are of dammages and such like yet p Hulls personall is as well the punishment of the person as dammages and the punishment here is death which is released le barre is good But Littleton teacheth vs contrary in his booke for hée saith that Appeales of robery rape or death or any Appeale wherein the â—â—dgement is of death are more high than personall Actions and therefore they are not barred by release vnlesse it be of all manner of Actions or of all Appeales See Sir Edward Coke in his Commentaries vpon Littleton fol. 287. b. in any Appeale wherein iudgement is of death a release of all Actions reall and personall is no barre for that release extendeth but to common or ciuill actions and not to criminall but if a release of actions personals is good in an Appeale of mayhem for euery Action wherein dammages are onely recouered is in Law taken for personall fol. 288. a. And in Sir Edw. Cokes 4. Rep. in Hudsons Case it is said although the Appeale of mayhem runneth feloniously â—uy mayma yet he shall recouer but dammages and therefore recouery in trespasse is a good barre therein SECT XII Auterfoits acquit ALthough it be now no plea in Appeale of death for the Defendant to lay that he was here to fore acquite of the same felonie yet because Stanfords handling of it containeth good learning and it may still serue in appealâ— of rape And likewise in Indâ—ctments of death for hée that was acquite in appeale may haue it I will not omit it By Common Law therefore in all Appeales or Inditements of felony for the Defendant to say that hée was Aâ—terâ—oirs aâ—raigne de mesme le felonie before â—uth Iustices and acquited vouching the record is a good plea and he néeds not to haue the record in Court because this plea is not delatorie but in barre Coron in Fitzherbert 2 â— This plea the Common Law disalloweth not because it alloweth that a man should not put his life in ieopardy twice for one and the same offence The acquitall then must be of the verie same offence or