it selfe should be deliuered to a Lay-man altogether vnlettered which should distribute to euery coheyre her part at aduenture wherwith she should stand contented But this might be otherwise by their agréement amongst themselues to elect according to the prerogatiue of their age Bracton discendeth déeper into examination what things may be parted amongst coheyres exempting neither lands tenements homages villinages seruices seruitudes or anything belonging to lands and tenements from diuision vnlesse it be seriantia quae diuidi non debent ne cogatur-Rex seruitium accipere per particulas or a castle or the head of some Earldome or Barrony quod propter ius gladij diuidinon debet sit illud castrum vel aliud edificium hoc ideo saith he ne sic caput perplures particulas diuidatur plura iura comitatus Baroniarum deueniunt ad per nihilum quod deficiat regnum quod ex comitatibus Baronijs dicitur esse constitutum Therfore Caput comitatus vel Baroniae resteth indiuisible and shall go to the eldest copartner though where there are many chiefe and great Mansion-houses euery one may haue one perhaps and if there be but one euery one may haue part thereof where the frank-tenement is holden by seruice militarie for if a frée soke-man die whose heritage it is ab antiquo partibilis the eldest son by Bracton shall haue his house and the rest shall haue allowance Amongst other things Bracton standeth long vpon the bringing to a common heape which we call Hotchpot Lands giuen in marriage to a coheyre shewing that though lands giuen in marriage whether the Inheritance be discendens or perquisita and whether shee to whom the land is giuen be at the time of the gift a maid or a widow must needs fall into partition when part of the other lands is claimed hoc quamuis homagium interuenerit post tertium haeredem yet for all that she to whom there is giuen in marriage already more then an euen portion may well retaine it and is not compellable to any confusion vnlesse she demand a share in that which remaineth so that she to whom all is giuen may likewise retaine all And where a daughter was infeoffed pro homagio seruitio or where a stranger was infeoffed of part of the inheritance which afterwards married a daughter c. they might be made parcell of the other lands without any Hotch-pott of these things ye may read more in Bract. li. 2. c. 33 and 34 with a Writt of habere facias seisinam for he saith possessio non pertinet ad haeredes nisi naturaliter fuerit apprehensa animo et corpore proprio vel alieno sicut procreatorio prius ad ipsos non pertinebit vnde cum in curia Regis facta fuerit partitio statim habeanâ— breue de seisma sua habenda SECT XX. of Hotch pott according to Littleton FOr putting of lands in Hotch-pot there is no where so full and plaine learning as in M. Littl. third booke c. z. If saith he a man seised in fée-simple lands hauing issue two daughters of which the eldest is married giue parcell of those lands to his daughter and her husband in franke-marriage and die seised of other lands excéeding in value those which are giuen c. the husband and wife shall haue no part of this remnant vnlesse they will put the land giuen vnto them in Hotch-pot for example If the father had 30. acres and gaue 10. now after his decease if the donées refuse to make commixtion the other daughter may enter and occupie the whole 20. and hold it to her selfe But putting all in Hotch-pott to finde the intire value for it is but an estimation or valuation finding the acres to bee of like goodnesse the Donées in franke-marriage shall haue an nâ—reasement of 5. acres to hold all 15. in seueraltie so that alwayes the land giuen in frank marriage must remaine to the donées and their heyres for else saith Littleton should follow a thing vnreasonable and inconuenient which alwayes the Law detesteth there is the same Lawes betwixt the heyres of Donées in frank marriage and the other partners if the Donées themselues die before their ancestor or before partition This putting of Land in hotchpot is where the other lands descend from the Donor onely and not from any other auncestor for if they descend from the father or brother of the donour from the mother of the Donée that which is equallie so discended shall be without Commixtion equally diuided Also by Littleton if the land descended be of equall valew with the land giuen in franke Marriage Hotchpot should be then in vaine and to no purpose and sée Littl. Chapter of parceners more concerning such Hotchpot How partition may be auoyded PArtition made betwixt two Sisters tenants in fée simple they both being of full age is not defesable though there want oweltie and equall valew in their parts But if the land were in fée-taile the parties making the partition should bee bound and concluded onely for their time the issue of her which had the meaner value might enter after her mothers death into her Aunts part and occupie with her in common and she againe with her niece in the part alotted to her Sister If two Coparceners in fée both married together with their husbands make partition it shall stand in force during the coverture but after the death of a husband his wife hauing a meaner part may enter and defeat the partition not so if at the time of the alotment the parts were both of equall annuall valew If two Coparceners whereof the one is vnder 21. yeares age make partition so that a meaner valew is allotted to the puisne partner she may enter and defeat the partition either in her minoritie or when she is of full age but let her take héed when shée commeth once to full age that shée take not the whole profit of that which to her selfe was alotted for that is an agréement to the partition and maketh it indefeasable peraduenture a moietie of the profits she may take Thrée acres of land are giuen to one in taile which hath other thrée in fée and after his death his two daughters make partition so that one hath the land intailed and another the land in fée if shée which hath the fée-simple alien her part and die her issue may enter into the land tailed and hold occupation in Common with her Aunt whose folly was to make such a partition for since shee is without remedie against the alienée of her mother and without recompence for the lands intailed whereunto she is an heyre by descent from the first Donée it is reason she may enter specially considering that the state taile is not discontinued yet 20. Hen. 6. it is holden that she is put to her Formedon A man seised of two carues of land one by iust title another by disseisin of an infant dieth seised hauing issue two daughters they diuide
matter but the other conclusion puts it to the Law and Courts consideration Yee sée now of what possession of Law a woman is dowable per Brian 4. H. 7. â—o 17. if the Kings ward die vnder age and the neâ—t heyre being married die before â—â—uâ—nâ—runt sued his wife shall not haue Dower But by Dâ—uers and Hussey if the Kings Tenants Heyre haue a wife and after office found the Heyre doth not enter but dieth the wife shall be endowed of the possession in Law before office for the Statute of prerogatiue cap. 13 is intended onely where the Heyre taketh a wife after office and intrudeth SECT LIX There must be in the Husband an Inheritance not cut from the Franke Tenant A Woman shalll haue no Dower in Lands whereof the Frankement and Inheritance was neuer conioyned in her husband during Couerture therefore where the Husband had but a reuersion after estate for life the wife is not dowable vnder this rule commeth one other dos de dote peti non debet And if a man seised c. take a wife and alien with warrantie and then both the feoffor and feoffée die if the wife of the feoffée bring a Writt of Dower against the heyre of the feoffor which voucheth to warrant the heyre of the feoffor and hanging the voucher the wife of the feoffée demands Dower against the heyre of the feoffée if shée bring her Writt not for a third of two paâ—ts but for a third of all that whereof her husband dyes seised she shall not haâ—e iudgement fill the first plea be determined Littleton If there be father and sonne both married and the Father seised of one acre c. dieth and the sonne entreth and dieth if now the sonnes sonne enter and endow his Grandmother which dieth his mother is not Dowable of that which the Grandmother held in Dower for of that his Father had no more in méere right but a reuersion vpon or after a Franke tenement and the Grandmother endowed was in of her Husbands possession yet if the father had in his life time iâ—feoffed the Sonne c. the sonnes wife might well haue Dower after the Grandmothers death of that very Land which the Grandmother held And if the sonnes sonne voluntarily or compulsarily â—â— Writ of Dower had endowed his mother against whom the Grandmother had then receiued her Dower and died after execution the mother might well haue entred into the land which the ailesse recouered against her Parkins 63. The Franke tenement and Inheritance may be both in a sort in the Husband and yet not sufficiently knit and vnited together to giue Dower for example the Lands bee giuen to two and to the heyres of the body of one of them if hee which hath the inheritance die first his Wife is not dowable no not after the death of the suruiuor for the state taile was not executed in her husband to all intents though the Issue in a Formedone against an abater might alleage seisin and esplees as we call them in his father Likewise if by fine sur graunt render estate be made to a husband for terme of life the remainder to I. S. his sonne in taile the reuersion to the right heyrâ—s of the husband and the fine is executed if now the Baron die liuing I. S. or any of his Issue the wife of the Cognusée is not dowable But if a Lease be made for yeares the remainder to I. S for life the remainder to his right heyres c. the wife of I. S. shall haue Dower of this estate though erecution of Dower cannot be â—asting the terme And if a Lease be to the Husband for life with a remainder to a stranger for â—eares the remainder to the Husband in â—ée the inheritance and Franke Tenement are sufficiently connexed to giue the wife Dower bâ—t execution shall cease during the terme for when an estate for yeares is more ancient or as ancient as the Inheritance which the Husband had during Couerture there the execution of Dower to the Wife must néeds tarrie the termes expiration And so it is if a man grant me a rent in fée by Indenture with Condition that the rent shall cease during the non-age of mine heyres my Wife shall not bee endowed during mine heyres minoritie What if a man that is seised in Fée-simple make a lease for life rendring rent c. and then taking a Wife he dieth the heyre shall haue this rent incident to the reuersion and it shall be aâ—ets to him in a Formedone in Descender but the wife gets here no Dower aâ—d saith Parkins a woman shall not be endowed of a rent reserued by her Husband to himselfe and his Heyres vpon a Lease for yeares 1. Ed. 6. titulo Dower in Brooke accordeth If the Law be so Dower hath lesse fauour in this case then the estate per Courâ—â—siâ— d'Angleterre But Cléere if a man take a wife first lease his Lands for yeares or for life and die now the Wife may recouer Dower of the Land it selfe and by Breton if the woman recouer the third part of Lands leased for yeares de office de iustice il serra a gard que el tertiâ— remnant les deux parties que demorent de terre iesques aâ—â—nt que il eâ—t receiue al value de le tierrâ— partie que il auera perduâ— c. But if she recouer all the Land leased from the termer he shall haue recouerie per plâ—â— de garranti either of such other Lands as the Lessor had or if he had no other of the Lands seised when the widdow is dead by sâ—irâ— facias out of the Court where the Iudgement was inrolled Note That though the Law be as is abouesaid where Lands are giuen to two and to the Heyres of one of them yet if the Husband purchase to himselfe and his wife and to the heyres of the Husband the wife may relinquish the purchase and disagree by bringing her Writ of Dower Like Law séemeth to be where the purchase is to the Baron and feme during the life of the Baron the remainder to his right heyres SECT LX. Of what things Dower is granted LIttletons ground is of Lands or tenements But a woman is Dowable also of all manner of rents which are rents of Inheritance Also of Offices as for example of a Bayly-wicke in fée a woman may haue the third part of the profit in Dower and be contributary to the charge Also at this day where the Baron hath but an vse in fée-simple or fée-taile generall vnlesse it be in case where the Husband may and doth disagrée the wife shall haue Dower and if a bargaine and sale be made of Lands to the Husband which dieth before inrolement the wife notwithstanding shall haue Dower and by the inrolement einsement it shall be indefeisable against the Vendor and the Heyre of the Vendée Also a woman is Dowable of Villaines regardant to a Mannor and if a villanie in gros a
multiply and replenish the Earth take the joynt soveraigntie over the Fishes of the Sea the Foules of the Ayre and over all Beasts moving upon the Earth Genesis 1. In the second Chapter Moses declareth and expresseth the Creation of Women which word in good sense signifieth not the woe of Man as some affirme but with Man For so in our hasty pronouncing wée turne the preposition with to woe or wée oftentimes and so shée was ordained to bée with man as a helpe a companion because God saw it was not good that Man should bée alone Then when God brought Woman to Man to bée named by him hée found straight way that shée was bone of his bones flesh of his flesh giving her a name testifying shée was taken out of Man and he pronounced that for her sake man should leave Father and Mother and adhere to his Wife which should be with him one Now Man and Woman are one NOw because Adam hath so pronounced that man and wife shall be but one flesh and our Law is that if a feofment bée made joyntly to Iohn at Stile and to Thom. Noke and his wife of thrée acres of land that Tho and his wife get no more but one acre and a halfe quia una persona and a writ of conspiracy doth not lye against one onely and that is the reason Nat. br â—o 116. a writ of conspiracy doth not lie against baron feme for they are but one person by this a married Woman perhaps may either doubt whether shée bée either none or no more then halfe a person But let her bée of good cheare though for the néere conjunction which is betwéene man and wife and to tye them to a perfect love agreement and adherence they bée by intent and wise fiction of Law one person yet in nature in some other cases by the Law of God and man they remaine divers for as Adams punishment was severall from Eves so in criminall and other speciall causes our Law argues them severall persons you shall finde that persona is an Individuum spoken of any thing which hath reason and therefore of nothing but Vel de Angelo vel de homme fol. 154. in Dyer who citeth no worse authority for it then Callepinus owne selfe séeing therefore I list not to doubt with Plato whether Women bée reasonable or unreasonable creatures I may not doubt but every woman is a temporall person though no woman can be a spirituall Vicar Of Hermaphrodites OF Hermaphrodites I have some kind of doubts not whether they bée persons but what persons they bée If a man die seised leaving 3. children which bee all Hermaphrodites whether the eldest shall have all his land or that it bée partable as among coheires Also if the eldest bée a Hermaphrodite and the other 2. faire young Virgins which way jetteth the discent Bracton in his first Booke Cap. 7. saith Hermaphroditus comparatur masculo tantum vel feminae tantum secundum praevalescentiam sexus iâ—calescentis that is it must bée déemed male or female according to the predominance of the sex most inciting And as I remember I have read the like division Vâ— Britt Cont. sol 1678. Bracton in his first book the 30. Chapter fol. 438. where hee sheweth that a man shall not be tenant by the courtisie Si partus declinaverit ad monstruÌ„ cum clamore emitteret deberet emisit rugituÌ„ saith it is not partus monstrosus licet natura membra mâ—nuerit vel ampliaverit ut si quis habeat digitos aut articulos sex vel plures Now then if these creatures bee no Monsters but are in conjunction to take on theÌ„ the kind which is most ruling in theÌ„ this must néeds be understood in matrimony and consequently they may have heires which being granted why may they not be heires according to the prevalescence which Bracton speaketh of if I were to furnish my selfe a house I would place no picture or Image in any parlour dining or bed-chamber but it should be of good séemely and natural proportion Satyres and Centaures should come no nearer then the post at my doore And at the threshold of this my treatise or as it were a little behind the doore I will leave these deformed Children of Mercury or Venus suffering them to enter no further SECT III. The punishment of Adams sinne REturne a little to Genesis in the 3. Chap. whereof is declared our first parents transgression in eating the forbidden fruit for which Adam Eve the serpent first and lastly the earth it selfe is cursed and besides the participation of Adams punishment which was subjection to mortality exiled from the garden of Eden injoyned to labor Eve because shée had helped to seduce her husband hath inflicted on her an especiall bane In sorrow shalt thou bring forth thy children thy desires shall bee subject to thy husband and he shall rule over thee Sée here the reason of that which I touched before that Women have no voyse in Parliament They make no Lawes they consent to none they abrogate none All of them are understood either married or to bée married and their desires or subject to their husband I know no remedy though some women can shift it well enough The common Law here shaketh hand with Divinitie but because I am come too soone to the title of Baron and feme and Adam and Eve were the first and last that were maried so young it is best that I runne backe againe to consider of the things which I might seeme to have lost by the way that are fit to be knowne concerning women before they be fit for marriage SECT IV. The Ages of a Woman THe learning is 35. Hen. 6. fol. 40. that a Woman hath divers speciall ages at the 7. yeare of her age her father shall have aide of his tenants to marry her At 9. yeares age shee is able to deserve and have dowre At 12. yeares to consent to marriage At 14. to bee hors du guard at 16. to be past the Lords tender of a husband At 21. to be able to make a feoffement And per Ingelton there in the end of the case a woman married at 12. cannot disagrée afterward but if she be married younger shee may dissent till shee be 14. The age of 7. yeares when Bracton wrote this aide for making the sonne a Knight or marrying the daughter was due de gratia non de Iure and pro necessitate indigentia domini capitalis measured by the indigence of the Lord and opulence of the tenants But West 1. Cap. 35. in the third yeare of Edward 1. the Law was made certaine the Lord shall have aide of his tenants as soone as his daughter accomplished 7. yeares age-for the marriage of her Viz. xx s. of a whole knights fée and xx s. of xx I. â—and in soccage and so forth according to the rate more or lesse The King shall have this aide according to
the acres to be of equall value it must needs bee against law also for one acre of three equally vallued or of euery acre one third part is a iust Dower But if the acre vnsold were inferior in value there is both conscience and law for the woman to claime Dower of the two acres or of the rent for a woman must be endowed of the best possession and not according to the number of acres but according to the value of the Inheritance whilst it was the Husbands Therefore if I make a feoffement of my lands and dye and the feoffée builds a house vpon it or otherwise improoues it my wife shall be endowed no otherwise then according to the value of my possession yet if a disseisor or a feoffée sur condition doe edifie the disseisie or feoffor re-entring shall haue the building If being married I make a feoffement and the feoffee ruinateth a house which was vpon the Lands before the feoffement and that was worth foure or fiue pound annually my wife shall be endowed according to the value that the land was of at time of my death because a woman hath no right to possession of Dower before the death of her husband But Parkins dares not let this Case goe without a quaere SECT LXIX Of Dower at the Church doore THe old kind of endowment at the Church Doore commeth now a dayes seldome in vse But for all that I would haue women better learned then to be ignorant of it it is when a man seised in fee-simple being of full age comming to the Church doore to be married doth there affirme affiance and endowe his spouse of all his lands or of part as of halfe or a lesse quantity openly and with certainty the woman thus endowed may enter into her Dower after the husbands death without assignement and this Dower may be at the Church doore in one County of Lands in another County and without déed Parkins sect 217. Vide Plowd in Sharington ca. fo 304. b. it is good without liuery of seisin Et per Shelly 28. H. 8 Dyer fo it may be done within view and the puisne sonne of Land in borow English may not make such a Dower Also a sonne and heyre apparant when he is espoused by consent of his father may endow his wife at the Church doore in part of such lands and tenements as are the Fathers in fee-simple and the sonnes wife after his death the father liuing may enter presently without further assignement into the parcels thus certainly appointed But if shee enter after her husbands death and agrée to any of these endowments ad ostium ecclesiae she is concluded from claiming any other Dower Thus farre Littleton By Bracton none can endowe his wife in this manner vnlesse hee bee Liber homo for in his time if I bee not much deceiued the greatest number of bond-men held in manurance Lands of their Lords which they occupied to the Lords vse and profit in pure villeinage These hauing none other lands could not endow c. Also by Bracton Quis posset dotem constituere sciendum quod tam minor quam maior masculus Cui vxori tam Church doore to be married deliuer the Deed to her shewing her the lands saying his will is she haue them according to the déede if the Baron neuer claime otherwise then in right of his wife that is a good feoftement But he may endow her of his owne lands ad ostium Ecclesiae without déede though the Land be in a forraigne Countie marry when the Dower is of the fathers Land ex assensu there must bee a deed for assent lieth not in auerment 40. Ed. 3. 43. yet this is contrary to Bracton and in old Bookes the consent hath beene tried by proofes Dowment may be good ex consensu matris but as they say now not ex consensu fratris sororis vel consanguinei The assent ought to be at the Church or Church doore yet 2. H. 3. the sonne married against the will of his parents and eight weekes after indowed his wife of his fathers lands ex assensu patris per curiam it was holden good Fitzherbert 199. Of the head of a Baronie or the Capitall Messuage of a Knights fée Dowmente ad ostium c. is not good but it may be of a moity of all such Lands as the Baron shall hereafter purchace in fee or of all such Lands as the Barons mother holdeth in Dower But if the Father lease his Lands for life and the Sonne and Heyre apparant endow his wife ex assensu c. of the reuersion now if the Lessée die the Lessor enter and the sonne die the wife shall not haue Dower because she was not Dowable of the reuersion at the Common Law though it had beene in her husband during couerture so is it if the Father were seised for life or iointly with another in fee But if the father had beene Tenant in taile the endowment by consent had beene good during his life though no conclusion after his death to his Issue or his wife claiming Dower euen as by Election if tenant in taile being himselfe in actuall seisin endow his wife ad ostium Ecclesiae die if his wife enter the Issue may out her and so may hee in the reuersion if issue faile If the Father at time of endowment ex assensu bee seised none otherwise then in his wiues right Yet Parkins argueth hee shall bee bound during his life quaere I haue held young Maides now indeed somewhat long in the old endowments and I would proceed to instruct them in the dower of the new learning iointures I meane for my desire is that they should be able to haue when they are Widdowes a coach or at the least an ambler and some money in their purses But they are of the minde for themselues I perceiue that Themistocles was in for his daughter He desired a man rather without money then money without a man here is a wise adoe yee say I tell you of Dower of the Widdowes estate and God knowes whether ye shall euer haue the grace to be widdowes or no yee would know what belongeth to wiues on then in a good way I haue brought you to the Church doore if ye be not shortly well married I pray God I may FINIS with her Husbands protection and supereminency Now the Law that giueth Dower to her that is able to deserue it and enableth at so greene yeares knoweth well enough that women are at their Husbands commandement If Titus being dead haue left his wife her maidenhead immunis a culpa a poena immunis erit This I might dilate as in probabilitie or likelinesse of reason at Common Law but it seemeth the matter resteth otherwise determinable For in action of Dower the Tenant shall not plead nunquam carnaliter cognouit nor the demandant be driuen to auerre a knowledge c. But the case may perchance bee drawne to
of the Obligée And if I bee bound to C. that A. shall marry B. before Easter If I marry B. and our Espousals continue till Easter my bond is forfeited Similiter If C. marry B. or if A. and B. cannot marrie because one of them dieth or wareth mad before the day I finde none other cause in our Yéere-bookes alleaged why things may not passe by gift betwéene Baron and feme saue only vnitie of person But vndoubtedly the restraint springeth from a politique consideration rather to bréed cherish and maintaine the vnity then in iudging of an impossibility because of the vnitie But the Ciuill Law vir non potest dare vxori ne foeminae amorem coniugalcm in quaestu habeant prohibenter inter coniuges donationes quia silicerct coniugibus inuicem donare matrimonia fierint venalia saepe distraherentur c. And because it would amount to arguing inter coniuges there is a restraint by that law Ne priuignus dare queat nouercae vel nouerca priuigno What if the Matrimonie be inualidum legibus non consistens yet non valet inter coniuges putatiuos facta donatio ne melioris sint conditionis quam illi qui recte faciont But a gift to a plaine Concubine is good enough vnlesse the giuer be a Soldier By old Iohn Bracton lib. 2. ca 5. Non valent donationes inter virum vxorem non enim poterit vir dare vxori nec e conuerso constante Matrimonio quia huiusmodi donationes prohibitae sunt inter tales personas nec infraudem facere possint constitutioni veluti si Maritus donet extraneae personae ea mente vt redonet in vita viri vel post mortem hee maketh his reason in the 14. Chapter Si tales donationes fieri possint ob amorem inter virum foeminam posset alter eorum egestare inopia premi But at this day though lands cannot passe betwixt Baron and Feme right out by plaine liuery or bargaine yet in the obliquitie of fines recoueries and vses there is an Expedite transporting of Inheritance betwixt them to the vndoing perhaps of the partie whose Lands are transferred and auferred with not so much as coniugall loue alwayes in recompence SECT IIII. In what sort things may passe betwixt Baron and Feme LAnds cannot passe from the Baron by feoffement to put the state from him immediately to the wife though he were infeoffed to that intent and vpon such a condition But one man may infeoffe another vpon condition to infeoffe the wife of the Feoffor whatsoeuer Bracton say and the condition good Also a feoffement fine or recouery may be made knowledged or suffered to the vse of her and her heyres which is wife to the Feoffor Conusor or sufferer c. And as I may make another man the instrument to conuey lands to my wife so may I be the meanes to conuey Lands to my wife from another man for by Letters of Atturney-ship I may deliuer seisen of Lands to my Wife for another and the feoffement shall be good by Parkins 41. And a man may deuise in his last Will and Testament either by the custome or by the Statute 32. H. 8. Lands to his Wife in fée fée-taile for life or for yeares because this taketh none effect till the Couerture be dissolued It is said in Scolasticus case If I deuise that he shall haue greene acre after the death of my wife my wife shall haue estate for life by the intent c. And although a wife by the generall rule hath no will but her Husbands and all Testaments of a feme-couert to deuise any Mannors Lands Tenements and Hereditaments are ineffectuall by expresse declaration of 34. Henrici 8. capite 5. soeuer be the courtesie among Dames of honor a womans name of dignitie changeth with the degree of her husband and of such women as haue not their honor by birth but acquire that by Marriage the rule of Law taketh order Si mulier nobilis nupserit ignoblem desinet esse nobilis when she taketh a second husband But what though the scrupulositie of the Common pleas were obserued throughout the Realme that Esquires Ladies should be no Ladies in Court and Country wherevnto I will neuer giue voyce what inequality were in this depressing shall not likewise a Knights widdow marrying with a Baron or Earle as be much exalted verament yet you see the dignitie hangeth meerely on the male side carrying the scepter of Wedlocke SECT VI. Touching seruitude NOw touching the state of fréedome or bondage Littleton saith that if a free-man marry a bond-woman the Lord cannot seise her but there is remedie by action for taking her sans gree or licence Fitzherbert in his liberâ—are probanda agreeth 78. G. that she should be fréed perpetually But the Law seemeth to be otherwise And so you may find the opinion of Doct. Stud. fo 139 b. And that indeed it is no more but a Temporarie priuiledge and exemption from seisure of her Lord during time of couerture for if the Seigniour of a Mannor marrie his Niefe regardant the best authority that I can finde is that this Niefe is no more but shrined in the honour of her Lord if he die she shall haue no Dower but remaine still in her niefitie regardant to the Mannor And to say truth I perceiue not how a womans being married can in any sort be an infranchisement no not for a time it is no more but a sconsing or hiding of the seruitude Bracton saith elegantly manumission is a detection or laying open of the freedome which is a natura A womans liberty is free licence to doe what she list vnlesse shee be letted by force or by Law it is not restored to Niefe when she marrieth Marriage rather pulleth it from her which before was free When a Seignieur therefore marrieth with his bond-woman she must not turne her bumme to him and say heretofore my Lord I lay in your bed and now I lye in mine owne as the French Concubine said being married newly to her French Lord but let her bee burome and mindfull of her subiection for if this louing Seignior of hers die she may right well be an apparant Niefe againe to her owne sonne for ought that I know why not as well as causes may happen that the father to sonne or one sonne to another may be a villeine the case did happen 3. Ed. 3. that the villaine married his Lords mother and so the father in Law and the brother de demisank were villeines If a free woman marry a villeine her naturall freedome is not otherwise infringed then by subiection to her husband If the villeine purchase Lands and die before seisure made by the Lord the wife shall haue Dower But if a frée-woman seised in fee or fee-tails take a husband which is a villeine and die the Lord may enter vpon the husbands possession per le Courtesie or vpon the Issue being Tenants
NOw let vs looke backe a little and see what shall become of the dealings which Mistris Titus had whilest shee was Sempronia an agent in the world widdow or maide sola and vncouert SECT XII Of Infancie TO debate matters of infancie would aske a whole volume perse But breefly know that all deeds gifts grants c. made by an Infant which take not effect by deliuery of the infant be absolutely void By matters in fait or writing which take effect by hand and deliuery are onely voydable by the infant or by them which haue the infants estate Out of his rule are excepted acts apparently of necessity or profit to the infant or which can be no disprofit to him for manger boire necessarie apparell and schooling the obligation or couenant of an Infant is good Also an Infants presentation to a Church is good enough for danger of lapse and because it is no matter of emolument and things done by vertue of office as giuing of goods or payment of debts by an infant Executrix are good so are acts which concerne the infants proper purchace As if estate be made to an Infant of two acres to haue and to hold the one for life the other in fee a feoffement of one acre made by the Infant is a good election And it is said fo 104. in Dyer that an Infant is bound by all Statute Lawes if there be not an expresse exemption Now whatsoeuer a Feme sole might auoyd by infancie she and her husband may auoid it by entry or action after Marriage if they take the time else not For example An infant feme sole hath title to enter for Mortmaine within a yeare after alienation or title to enter into the purchase of her villeine before his alienation if by lachesse she let slip her aduantage as she may doe notwithstanding her infancie no wise husband that she taketh afterward can mend it for here was but a title to that which neither she nor her auncestor euer had But if an infant Feme sole haue a right as vpon disseisin done to her or her auncestor she may alwayes enter whilst she is sole notwithstanding any descent during infancie And so may her husband which marrieth her after the descent Littl. teacheth vs fo 95. Chap. Descents that lachesse of a husband which suffers descent shall not toll the entry of a Feme couert or her heyres after Marriage dissolued But there is an addition to Littleton that it is otherwise where a title is already giuen to a Feme sole which taketh a husband and suffers descent c. for it shall now be accounted the Womans folly that shee would take such a husband Howsoeuer it be Law or howsoeuer it be vnderstood the Case before must néeds be good Law for an infant Feme hath as much fauor as an infant Male And taking of an husband cannot toll an entry which was saued to a Feme sole by infancie neither doe I perceiue how the husbands lachesse at the time of descent can toll the Wiues Infancie to make any imputation of folly where infancie might excuse it By Parkins If a man lease two acres to me for life the remainder of one of these acres to a Feme sole which afterwards takes a husband and then the Lessée dying the Baron entreth into one acre and thereof enfeoffes a stranger by mets and bonds the wife shall not after his death enter and if Baron and Feme make a gift in taile or lease for life of the wiues Land rendring rent so soone as the Baron dies the reuersion is onely in the wife who by accepting the rent shall bind her selfe and her heyres But if shée will refuse the rent because she was vnder age at time of the feoffement it séemes she may be receiued to a dum fuit Infra etatem wherby she affirmes the feoffement to be her owne If this be infallible Law I doubt not then if a Feme infant disseised doe marry and during her infancie the husband suffereth a descent but her entry is saued and she may enter after Couerture dissolued if not before But Fitzherbert concludeth with a quaere and so must I. SECT XIII Acts c. of a Feme sole being full Age. VNderstand now by a Feme sole a Woman of sull age If a Feme sole become indebted and marry the Baron and Feme may be sued for this debt during life of the Feme If the Creditor sue the recouer the Baron shall be charged with it after the wiues death aliter non A Feme sole Lessée for life rendring rent takes a husband the rent is arrere the wife dieth though here be no recouery in the wiues life time yet because the Baron tooke the profit he is still chargeable in a Writt of debt for the rent for quisentit commodum sentire debet onus If a Feme endowed of rent take a husband and die the husband shall haue action of debt for the rent arere for it was a duty accrued during couerture But if a man be bound to a Feme sole and she takes a husband and the day of payment comes during Couerture now if she die her husband cannot haue an action of debt vpon the obligation for this was a thing in action before marriage Nat. bre fol. 120. 121. And agréeing to that is 39. H. 6. 27. Br. Testaments 10. but by that booke the Wife may make the Baron her Executor and so saith the Booke of 12. Hen. 7. 22. If a Feme sole being made Executrix take a husband she remaine still a disposer of the Testators goods to his vse and after payment of his debts she may deliuer Legacies and after all that giue the rest for Gods sake maugre le test sa Baron But vpon such a giuing of goods or deliuering of Legacies before payment of debts the husband may haue an action of trespasse for gift before payment is not a right administration but a deuastation of the Testators goods Par. fo 2. and 18. H. 6. A feme sole seised of a carue of land grants out of it a rent Charge by déed and deliuers this deed to a stranger with Condition to deliuer it to the grantée as her déed if he goe to Rome and returne before Easter the Woman takes a husband the grantée performes the Condition the déed is deliuered to him he hath a good rent Charge yet the Baron was seised of the land before the grant tooke effect what though if the Feme had infeoffed a stranger of the land he should haue held it charged for to some intent the grant hath relation from deliuery of the deed as an escrow though for the rent the grantée cannot haue that but for the dayes incurring after the darraine deliuery and if the Feme at the deliuery of the escrow had béene marryed all had béene voyd Par. fo 2. 3. and fo 29. some hath maintained he saith where a Feme sole deliuers an
obligation or other déed of grant as an escrow with condition c. vt supra that it should haue no relation at all saue onely to the last deliuery for if hée to whom an obligation is so made release all action to the Feme sole before performance of the condition and before deliuery of the déed by the baylée he may notwithstanding sue vpon the obligation when it is deliuered which proues that it takes none effect till the last deliuery and then it must néeds bee void if the Woman be married at time of this deliuery if all were not countermanded presently by taking a husband But Parkins will not yéeld to these reasons for the Feme sole was a person able to oblige her selfe in any manner of Contract and her couenants and agréements made vpon consideration she could not countermaund though she would If a Feme sole seised of Land infeoffe a stranger by déede indented reseruing rent to her and her heyres to be paid annually at Easter with a conditionall clause of entry for non-payment and then they two inter-marry c. héere can be no failing in performance of payment during couerture for all this while the rent and condition are suspended If the condition had béen to pay ten or an hundred pound it had béene drunke vp by the inter-marriage for if a feme sole make a feoffement to a stranger vpon condition to pay her ten pound and then she marrieth with I. S. I. S. before the day of payment may release all manner of conditions duties and demands and the condition shall be determined But such a release comming after the day wherein the condition should haue beene performed at what time the wife hath a title of entrie will not binde her or her heyres after the husbands death Par. fo 148. There followeth a question if a Feme sole infeoffeth a man of blacke acre by indenture with Condition that hee shall infeoffe her of green acre before Easter and they two marry and continue married till after Easter whether the husband be maine-tenant seised of blacke acre in-the right of his wife There followeth in Par. fo 149. a case ayding towards solution of this doubt If I be bound by obligation to a Feme sole to marry her by munday next if shee marry a stranger and the espousals continue till tewsday I néed not tender my selfe to her A Feme sole makes cognizance of her right to leuie a fine before Commissioners per dedimus potestatem hauing the Writt of Couenant vt oportet and at the day giuen in banke when the Concord should be recorded the woman is married but notwithstanding the fine was recorded and ingrossed as leuied by a Feme sole the question was whether it should binde the Husband or not it was said death of a partie c. which as the act of God dissolues the whole busines by abatement of the Writ but marrying after the teste of the Writ of Couenant and dedimus potestatem and Cognizance made doth not so The woman therefore and her heyres are bound for euer and the Husbands release of all his right to the Conusée makes all cléere 7. 8. Eliz Dyer 246. the Lord Keeper of the great seale of England his case SECT XIII Of Acts done by a Feme Couert EUery Feme Couertis quodammodo an infant for sée her power euen in that which is most her owne A wife may be seised in her owne right with her husband in estate of Inheritance but if she make liuery and seisin to another in any parcell of this Inheritance by her selfe alone without grée of her Husband it is voyd yea her Husband and shee together may maintaine an assise vpon the entry but where onely the Baron is seised and the Feme maketh liuery the assise must bee onely by the Baron in his owne name Par. 38. Likewise fo 2. he telleth vs where a man is seised in the right of his wife and the wife grants a rent charge out of her owne Land the Husband not knowing it or the Husband knowing but not consenting but the déed is onely in the name of the wife this grant is voyd Admit the Husband be vagrant out of the Countrey and the Wife ignorant of his life or death grants a rent Charge by deede reciting that shee is sole yet if the Grantée enter and distraine for the rent the husband may maintaine an Action of Trespasse for this entrie Admit that this vna caro Baron and Feme through false loue or iealousie bee set at nine miles asunder variance and certaine Lands are assigned to the Wife by the Baron for her maintenance if the Wife grant a rent Charge out of this Land it is meerely void If a Feme Couert grant a rent Charge out of her land by fine as though she were sole this bindeth not the Husband but if he die before hee and his Feme haue reuersed their fine by error the Feme shall be bound And if to a Feme Couert there be a feoffement made a feoffement and liuery is of great celebritie yet a naked disagréement of the Baron auoydeth it 1. H. 7. fo 16. If a Feme Couert her Husband being beyond the Seas bee enfeoffed of an acre of Land and the Husband comming home refuseth and causeth the Wife likewise to relinquish all manner of seisin or taking any profits of the Land this in a Writt of entry sur disseisin in le per brought against the Baron and Feme will discharge the Husband of damages from the time of the refusall but not for the occupation before refusall tamen quaere Par. fo 10. yet saith he they remaine Tenants for all the refusals of the Franke Tenement to vse any action so long as none other person entereth but if a Tenant when his Seignior is beyond the Seas doe infeoffe his Lords wife ioyntly with a stranger of the Tenancie and the Lord comming home distraines the cattle of the stranger for his rent this distresse is a compleat disagréement and puts the Wife out of seisin so that now the possession remaines intirely to the stranger the ioynt feoffée otherwise the husband should be at a shrewd mischiefe viz. without remedie for his rent for all the time incurred before the distresse Par. 10. Note that in these Cases it is no plea for the grauntor to say that the Baron did not agrée but hee must shew the disagréement A Feme Couert may be a disseiseresse without assent of the Baron and hee shall be charged with damages in assise against him and his wife But if the Baron doe a disseisin to the vse of his wife and she agrées to it the Franke Tenant for all this setleth not in her for the entry of a husband gaineth nothing to his wife but where she hath either right of entry as vpon disseisin or title of entry as vpon a Condition c. A Feme Couert makes a Testament of the goods of her husband she dieth
these reasons grounded vpon the Law of nature and giuen by Iustice Stamford in his booke fo 194. saith he to this effect men will now eschew those Capitall crimes when they shall sée those persons who in nature and affection are néerest and dearest vnto them and most to bee beloued shall be punished with themselues so that if themselues will not refraine such crimes for themselues yet they should the rather refraine for the loue of their wife children vpon whom they bring so perpetuall losse and punishment and staine of so infamous a note as that their stocke blood and Lineage shall be corrupted and attainted their children disinherited and the wiues of their bosomes because the wiues of such impious and foolish Husbands by their defaults depriued of all their meanes and liuelihood And Breton fo 258. makes another reason why a wife of a man attainted c. shall lose her Dower est pur ceo que est a supposer que el scauoit del felony son mary and by him a woman lost no Dower in case the felony were committed before Couerture King Edward the sixt in the first yeare of his Reigne abrogating some Statutes concerning treasons or felonie for their austerity and making some new decrees concerning treason preserued Dower against all perpetrations of an euill husband But 5. 6. eiusdem regis ca. 11. by the last prouiso It was againe enacted that no Wife of any person attainted of treason should bee receiued to demand or haue Dower c. Yet for felonie 1. Ed. 6. is still in force And treasons by Act 5. Eliz. ca. 1. for assurance of her Maiesties royall power or by the Act eodem anno cap. 11. against clipping washing rounding or filing of Coynes or by the Act 18. Eliz. ca. 1. against diminishing or impayring the Quéenes Coyne or other coyne currant here doe none of them make any corruption of blood or forfeiture of Dower Note if after attainder the Baron purchase his pardon this is so farre forth a new birth vnto him that his Wife shall haue Dower of the Lands which come to him after pardon if his Issue by her may per possibilitie inherite Par. 75. And remember this Case 3. 4. Phi. Marie Dyer 140. b. Marie the wife of Sir Iohn Gate attainted of treason brought a Writt of Dower against Wiseman the attainder of Sir Iohn was certainly pleaded in barre she replyed that long time before the attainder and before the treason committed after the Espousals the said Sir Iohn Gate was seised in fee of the Land whererof she demands Dower and thereof enfeoffed A. B. whose estate the tenant hath vpon a demurrer without argument at barre or bench the Councell of the parties being heard in Iustice Brookes Chamber the demandant was barred of Dower by opinion of all the Iustices because the Statute is The Wife of a man attainted of any manner of treason whatsoeuer shall in no wise bee receiued to aske challenge demand or haue dower of any her Husbands Lands during the force of that attainder And by Stamford 195. this extendeth to petty treason But nota saith Dyer the Lands here sold and gone before treason committed were neuer subiect to forfeiture or escheate vt in causa Vauisor M. Littleton in the Chapter of Dower And therefore Antho Browne Serieant was angrie at the heart for this Iudgement See Littleton fo 11. per Vauisor If a man commit felonie aliene his land and then be attainted the Wife shall haue action of Dower against the Feoffée but not against the King or Lord if it be escheated SECT XVIII The Husbands power in his wiues inheritance and of discontinuance A Womans Inheritance is Lands of Inheritance which she hath by descent or purchase and her Marriage such as was giuen her in Franke Marriage by learned M. Littleton But take heere all fée-simple or fée-taile which she hath sole by her selfe or ioyntly with some other to be her Inheritance Then know that at Common Law a man seised in the right of his Wife of greene acre may make a feoffement of it to a stranger and this is such an interruption called a discontinuance of the wiues estate that not onely the Baron is bound whilest he liueth but the Wife also when he is dead is by common Law forbidden entry into her owne land and put to her action of cui in vita but if a man seised in the right of his wife be disseised and release to the disseisor though it bee with warrantie this is no Discontinuance If a man seised in fée in the right of his Wife haue Issue by her a sonne and die and then a second Husband makes a Lease of the Land for terme of his life and the Wife dyeth if now the Lessée surrender to the second Baron it is a question whether the sonne can enter during the life of lease for life But cleere saith Littleton when he is dead the son may enter for the discontinuance which was but forthe life was determined If Tenant in the right of his Wife make a Lease for his owne life the reuersion in fée is in the Baron If hee die in the life time of his Wife and of the Lessee and his heyre grant the reuersion with atturnament now though the grantee enter after the death of the Lessee yet the wife may re-enter for as an estate taile cannot be discontinued but by one which is seised by force of the intaile so the estate of a Wife is not discontinuable but by him which is seised in the wiues right SECT XIX Of a Remitter YOu must vnderstand somewhat also of a Remitter And because women learne faster by example then by precept I will not stay to define a Remitter Baron and Feme seised together in speciall taile haue Issue a daughter the wife dyeth the Baron catcheth another wife hath Issue by her another daughter discontinueth the taile disseiseth the discontinuee and dieth now is the Land descended to the two daughters the eldest daughter is remitted that is remaunded and setled in the ancient estate for a moitie and driuen to a Formedone against her Sister for the other moity for here the Sisters are by seuerall titles tenants in common not parceners If Tenant in taile infeoffe a Feme sole and die and then his sonne being vnder age intermarrieth with the Feme Feoffée this is a remitter to the Sonne and his wife which before had fée-simple hath now nothing at all in the land But if the sonne had beene of full age at the time of espousals hee had not regained the ancient estate but stood seised onely in droit sa feme If a Woman seised c. take a husband which alieneth in fee and then takes backe an estate to him and his wife for life this reprisall though it were by Indenture or by fine is meerely the act of the Husband and the woman sans folly is adiudged in her Remitter the reuersion of the
Legacie was with an expresse exclusion of Dower c. But see Sir Ed. Cokes 4. Rep. fo 4. a. in Vernons case resolued that vnlesse it be expressed in the will to bee for her Ioynture it shall be no satisfaction for her Dower See 38. H. 8. Dyer 61. William Whorewhod seised of Land to the value of 360. pound of which 60. pound was by ioynt purchase to him and his Wife during Couerture deuised that his wife should haue the third part of all his land during her life with those Lands which she had in Ioynture the assignement to be made by his executors if it were not contrary to Law this Widdow refused her Iointure of 60. pound and demand a third part of the whole inheritance viz. 120. pound as her Legacie with a third part of that which remained for her Dâ—wer viz. 80. pound at last by agréement it was ordered and decréed in the Court of Wards that she should haue the Legacie vt supra and forty pound ouer for Dower This Case decideth the question for it is against the latter opinion expresse ideo quaere Brooke noteth also Dower 69. that per Iusticiarios if a man make his Wife ioynt-purchaser with him after Couerture of any estate of Franke Tenement vnlesse it be to him and his Wife and their Heyres in fée-simple it is a barre of Dower if she agrée to the Ioynture post mortem viri otherwise it is of fée-simple for thereof the Statute saith nothing But M. Brograue in his reading did maintaine for all the foresaid opinion that where fee-simple is conueyed to a Feme for Ioynture expresly it is a good Iointure within compasse of this Statute for if estate in taile or for life be a good Iointure and exclude Dower by acceptance c. a fortiore fée-simple shall barre And sée in Vernons case reported by Sir Ed. Coke 4. Rep. fo 3. b. that the case in Brooke is mis-reported and the Lord Dyer is against it and confuteth Brooks reasons of this opinion Hee relied also vpon dame Dennis case 8. Eliz Dyer 248. An Indenture was made 36. Hâ—n 8. Betwixt Sir Maurice Dennis and Elizabeth Statham that in consideration of expected Marriage and other things reasonable the said Sir Maurice and his heyres should from thenceforth stand seised of certaine Lands c. to the vse of himselfe and his heyres vntill Marriage were had and solemnized and then to the vse and behoofe of the said Maurice and Elizabeth and their heyres after Marriage Sir Maurice dyed entred into the Lands and demanded Dower of his other Lands it was a question whether this conueyance and matter vt supra with auerrement that it was for a Ioynture should barre her of Dower Catline Saunders and Dyer were against the Dower by equitie of the Statute which in the third prouiso is of Ioyntures for terme of life or otherwise Against them were Iustice Browne and Whiddon and they resembled this Statute to another of the 11. H. 7. ca. 20. which cannot be extended to fée-simple but is meant and expressed onely of estate for Life or in taile seuerally or ioyntly with the Baron But Iustice Dyer as it séemeth by M. Brograue vpon diligent conference with sage men of Law did strongly adhere to his former opinion that this conueyance with auerment made a good Ioynture Yee shall finde againe 14. 15. Elâ—z he affirmeth for Law that where Fée-simple is limited ouer to a Wife or estate made to Baron and Feme in fée it is auerrable pro iunctura if the conueyance he not expresly contrary Sée a question for auerment Dyer 226. One that had an vse in Fée of certaine Lands to the value annuall of 100. pound tooke a wife 22. H. 8. and after espousals at request of his wiues friends and Parents caused the Feoffees to execute estate to him and his wife and to the heyres of himselfe of parcell of this Land to twenty pound value c. He then purchased other Lands and after 27. dyed seised of all The wife by taking rents and profits of the twenty pound land agreed to her estate therein and afterward brought a Writ of Dower detertia parâ—e residui omnium terrarum c. because the Statute is expressed of Iointure and the déed whereby estate was made to the baron and feme hath no mention of Ioynture or Dower quaere whether this matter generally alledged without auerment that it was pro junctura vel pro doâ—e shall barre or no See the Institutions of Sir Ed. Coke â—o 36. much matter concerning Ioynture In all conueyance or purchase for Ioynture vnlesse it be by fine or common recouerie he which makes the estate must be a person able to conuey c. at the time of Ioynture making or else it is not good He must not therefore be non compos mentis attaint of treason an alien borne or vnder age but the non-age of the Wife is not materiall whether the Ioynture be made before Couerture or after if she accept it agréed at M. Fiâ—ches reading SECT XXXII The Words Land Tenement or Hereditament LAnd is intended as well of pasture meadow woods heath c. as of arable and lands couered with water or surrounded is within the Statute So is a Towne an Isle c. but vestura terrae or an vpper Chamber cannot make a Ioynture as Land Tenements assured in Ioynture may bee Aduousans Rectories Windmils an vpper Chamber a Seigniory in Chiualrie and a reuersion sur estate pur viâ— all comming within the meaâ—ing of the Statute As for a reuersion vpon or after estate for yeares it is rather in account of law land then a tenement for the Franke Tenement which is the principall is as the present substance of the Land it selfe And the reuersion of either of these particular estates if rent be reserued may well be assigned for a Ioynture Yea and whether rent be reserued or no vpon a Lease for yeares it might be somewhat doubted whether the reuersion be assignable for a Ioynture c. because the Frank Tenement passeth presently and a woman may haue an assise thereof But cleere a nude reuersion sur estate pur vie sans rent because it is no present commoditie cannot make a Ioynture yet if such a reuersion be assigned and it turne to a possession in the Husbands life time it may be a good Ioynture by matter of subsequent Hereditament within the Statute may be a rent charge granted to a woman for life though it were neuer in esse before or a rent reserued vpon a Lease for life But the Hereditament assigned must bee a profit and commodity or else it is not assignable c for homage or fealtie shall not make any Ioynture Rent payable euery fiue yeare may be assigned for Ioynture for is a profit though it be not annuall And an ancient kéepership of a Parke with a fée belonging to it may be appointed or assigned in Dower But so is not a
of the heire non aliter This saith Dyer is holden no good pleading for the quarentiâ—â— but shee should haue shewed the death of her husband certaine and the time of the forty dayes continuing therefore the opinion of the Court made her wâ—iâ—â— her plea and trauers the entry nâ—ta prolege If a woman marry within the forty dayes shee loseth her quarentine Dower Brooke â—y Dower 101. 1. M. But if otherwise she be ouâ—â—ed by the heire within the forty dayes shee shall haue a Writ de quarentena habenda no â—â— br 161. b. SECT IV. Assignement of Dower NOw to assignement of Dower it is true that when it appeares certaine what it is that a woman shall haue in Dower shee may enter presently when her husband is dead and tarry for none Assignement per Littleton yet Perkins saith if a man dye seised of iij. s. rent charge in fee though here the third part bee certaine enough his widdow shall not distraiâ—â—â— for xij d. before Assignement Nay further if she recâ—â—â—â— this Dower by action yet shee shall not distraine for it before execution But if the Lord of a Manor doe marry with a woman tenant by iij. s. rent and dye here shée shall haue xij d. Dower by way of reteiner without any Assignement And in case where rent is recouered in Dower the Viscount may deliuer seisen by grasse by a bough by a clod of land or by the distresse of beasts taken vpon the land though the day of payment be not yet come But the party cannot charge any those beasts 40. Ed. 3. fo 22. SECT V. who may assigne Dower SOmetime Dower is assignable by the husbands heire as if a man seised of two acres of land in one County make a feoffement of one acre with warranty and dye the heire may indow the widdow with parcell of the acre remaining in allowance and full satisfaction of the whole Dower bene for if in a writ of Dower brought by her against the feoffée of her husband hee vouch the heire c. shee shall recouer conditionally against the voucher And if the heire make a Lease for life of part of such lands as are to him descended and indow his mother of the parcell remaining in allowance of all c. it is good yet in this case in a Writ of Dower against the Lessée if hée vouch his Lessor the recouery shall not be against the vouchée because he is not bound to warranty as the heire of his father But if he had béene generally vouched the heire and had generally entred into warranty iudgement perhaps should bee conditionally against him Sometimes the husbands one feofee or vendée shall assigne Dower for the rest And if a woman accept Dower from one of her husbands feofées in parcell of his land in allowance of her Dower of the rest it séemeth this shall binde her against the other 〈…〉 fees yet some haue doubted thereof because the other feoffees say they cannot plead this in an action of Dower against them neither is there meanes to bring into Court him which made assignement being a stranger If diuers Ioyntenants bee of certaine lands assignement of Dower by one of them shall bée good against them all But if one Ioyntenant of land assigne rent in allowance of Dower his followes shal not be distrained for this rent for there could bee none inforcement to assigne Dower after this manner Likewise if the Desseisor assigne a rent charge out of the land this shall not bind the desseisâ—e causa qua supra Assignement of Dower may be by one which is a Disseisor Abator or Intrâ—dor c. if this assignement be without fraud in the woman indowed and sans â—orâ— to any other person it is good though the Assignor be a tortious Possessor but if there bee any such couine or tort the assignement is voidable for the most part by entry 44. Ed. 3. fol. 46. A woman that had title of Dower with intent of defeating the Tenants warranty made a stranger to enter and against him she recouered Dower it was holden in an Assize which shee brought afterwards that hee recouery would not serue her but her estate was gained by desâ—isin because of the couine Assignement of Dower by him which hath Francktenement is good and if the wife hath not right of Dower of that which is so assigned by the Tenant of the Francktenement yet that shall stand vntill it bee defeated And if tenant per elegit statute staple or statute merchant assigne Dower it is not good And Assignement of Dower by gardian in soccage séemes not to be good saith Perkins for a Writ of Dower lyeth not against such a gardian sée 29. Assis p. 68. But Assignement by gardian in Chiualry is good till it be defeated and it shall neuer be defeated if the womans title of Dower be iust SECT VI. Assignement to her selfe or de la pluis beale IF a man seised of forty acres of land 20. by Chiualry and 20. by soccage die c. and his wife being gardian in soccage bring her Writ of Dower in the Kings or some others Court against the Lord which is gardian in Chiualry he may plead this matter and pray to haue it adiudged that the woman indow her selfe of the faâ—â—est in her owne possession and if she cannot deny the case it shall be iudged for the Lord to retaine quietly the lands which hee hath during the nonage of the Infant And after this iudgement the woman may indow her selfe in presence of her neighbours by limits and bounds de la pluis beale part of the soccage lands to haue to hold to her selfe for terme of her life This manner of indowment is neuer before iudgement bee giuen for it either in the Kings or some other Court and it is to saue the state of gardian in Chiualry Perkins giueth this matter which Litlton leaueth thus raw a turne or two more And so doth Keble 14. Hen. 7. 26. If say they the land which the woman hath by her gardianship bee not the whole valew of her iust Dower for the smalnesse of it or because it is charged with some rent she may shew the matter in her replication And if the Lord cannot deny it or doe trauers it and it is found against him then shall the woman haue so much of the lands holden in Chiualry as together with that shee hath in possession already may make vp iust a third part of her husbands inheritance If the inheritance were all of soccage tenure the widdow being gardian cannot indow her selfe de la pluis beale but shee shall be allowed a third part in her accompt for so long time as shee is Gardian for if she bring her Writ of Dower in this case against the heire he cannot plead her gardinship and that she may indow her selfe Sée 45. Edw. â— fol. 6. If such a Feme gardian bring a Writ of Dower against one whom her husband
impedit the Plaintiffe may haue one writ to the Bishop and another to the Sheriffe to enquire of dammages Likewise 14. H. 8. fol. 25. in a plea of dower vpon confession the demandant recouered Iudgement and after Iudgement auerring that her husband died seised shee prayed a writ to enquire of dammages habuit for if the demandant in dower will recouer dammages shee must euer surmize that her husband died seised though the Tenant confesse the Action or plead but onely to the Writ and in the end of her Demise shee may maintaine the Writ for sur plee briefe the dying seised appeares not without surmise c. 22. H. 6. fol. 44. SECT X. Deteiner of Euidence BY Perkins none may deteine Dower for deteining of euidence but only the heire to whom the euidence belongeth and the heire when he pleads must shew what the euidence is c. And they must concerne the lands discended vnto him whereof Dower is demanded for hée may not deteine Dower of land which the Charters concerne not or for Charters concerning his purchased lands or those whereof he hath no seisin Aliter if they concerne some reuersion descended But if the heire come in vouched to warranty by the Barons feofée hée cannot plead this Deteiner of Euidence because in verity the land is another mans to whom most rightly the Charters belong But one copercener may haue this plea after partition against her mother or other Demandant in Dower though the euidence concerne the other parceners and her all alike see 41. Titulo Dower in Brooke If a widdow that is with child deteine euidence against her husbands daughter and heire or other heire collaterall it shall bée no sufficient plea to delay Dower 1. Perkins 70. 71. 18. Hen. 8. fol. 1. The heire said the Demandant deteined a bagge ensealed with the euidence concerning the land which if hée would deliuer hee was ready to render Dower bone plee per Curiam 33. Hen. 6. fol. 51. The Tenant pleaded for part of the land whereof Dower was demanded non tenure for another part detinue of Charters for another part Ioyntenancie which his father for a fourth part demanded view but it might not be granted because he tooke notice to himselfe of that part by pleading to the rest And the Plaintiffe to his plea of suruiuor pleaded his release made to the father her husband in his life time Issiâ—â— seisi que Dowre c. The plea of Euidence detained as Littleton said went to the whole action quod fuit negatum vâ—de Brooke â—y Dower 4 but he was forced to shew what euidence he deteineth viz. a speciall Charter 4â— Ed. 3. The Tenant pleaded a withholding of Euidence certaine conceâ—ning his inheritance and shewes what Et qâ—e il aâ— estre toures temps prist si c. the woman made title to two deeds by gift to her husband and her selfe and for the other Euidence shee said whereas the Defendant claimed as brother and heire to her husband shee kept it to the vse of her child si ouâ—sqÌ„ soit inseint qÌ„ serra â—eure si dien luy done nostre and issue was taken whether she were insâ—int die obitus mariti not whether shee were inseint per son baron die obitâ—s And that booke of 41. Edw. â— is cited for law in Sir Edw. Cokes 7. Rep. fol. 9 that a woman may deteine Charters for the heire in ventre â—a mere And 22. Hen. 6. fol. 16. It was agréed that deteiner of Euidence is no plea in an Action of Dower vnlesse it concerne Inheritance discended Et siâ— videtur ibidem saith Brooke that if it concerne inheritance though it be not the very land whereof Dower is demanded the plea is good 9. Edw. 4. to plea of Charters deteined the Demandant answered veies cyâ—le fait prâ—â— dower the Court reading and perceiuing it to bee the déed c. gaue iudgement for Dower 14. Hen. 6. fol. 4 The Tenant pleaded detinue of a chest with two fines and other Charters ê‘ Martin Iustice if the Chest were open he ought to declare euery déed specially by it selfe and so it is likewise in action of detinue for a Chest open with euidence quod curia concessit 2. Hen. 7. fol. 6. Is set downe the reason why the certainty of euidence deteined must bee showne viz. That the Iury may be more able to make their verdict and the Court to iugde to whom they appertaine for if they belong to the Defendants purchase he is put to a Writ of detinue And 6. Eliz. Dyer 230. sée a man seised of foure acres soccage land and of one déed or Charter concerning those lands by his last will in writing deuised thrée of his acres to his youngest sonne in fée the fourth acre to his wife for life the remainder to a stranger in fee hâ— died his wife got the déed entred into her acre and the sonne into the three acres deuised to him the woman brings a Writ of Dower for a third of these thrée acres The sonne pleads detinue of the Charter which if she would deâ—â—uer he is and alwayes had beene ready to render Dower shee shewed the whole cause by way of replication vpon that the other side demurred It seemeth saith Dyer that this plea serueth for none saue only the Barons heire and for no land but that which is descended And not for the heire himselfe if he come in by voucher or â—s Tenant by receipt in default of Tenant for life Where hee is no more but tenant per admittance for such a one cannot say that he hath béene toutes temps prist a render Dower si c. Neither can gardian in chiualry haue this plea for he cannot haue a writ of detinue of the heires euidence And this plea is a bar for no lands but those which the Charters deteined do concerne 22. H. 6. Where Newton saith the reason of this barre is because the euidence being séene and looked into may yéeld matter to barre the Demandant of her Dower for such lands therefore as the Charters doe not touch Dower shall be granted of them this plea notwithstanding Also certainty must euer bee alleaged in this case if the euidence bee not in some bag boâ— or chest sealed or locked vp And note the Defendant supra was not named heire by the demandant neither had he inabled himselfe to this plea as heire therefore the Court might take it indifferently As in a quare impedit if the incumbent bee named Clericus the Court takes him for a Disturber if hee inable not himselfe as incumbent or person impersonée Another fault was found in this Tenants conclusion of his plea because hee said vncoâ—e prist a render Dower but in very déed hee relied not againe on the condition if the Demandant would deliuer the Charter according to the ancient booke of entries And at the last iudgement was giuen pro dote Sée Sir Edw. Cokes 9. Rep. in Anna Beddingfelds case 1.
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