eldest dye having issue a sonne though this issue be heire to B the other sonne after the death of Alice shall have the land as néerest of blood and by Greene and Seaton if there had béene severall issues of divers sonnes and daughters to the devisor when the remainder vested it should have gone to them all But here because the daughter of him had issue a daughter when the tenant for life died and there was not issue of any sonne at the instant to take from her or with her this Daughters Daughter shall have all and though there came an after borne sonne of any of the brethren she may detaine all c. for a remainder vested is not like to fée simple discended to a daughter where a sonne Posthumus may enter And if lands be letten for life the remainder to the right heires of I. if I. dye having issue a son which entereth after the death of the tenaÌ„t for life then dieth his son shal have nothing because he was not capax at the fal of the remainder likewise where there is a brother sister lands are let for life to an estranger the remainder to the right heires of the brother if he and the tenant for life die the sister may enter and retaine the possession and fée though the brothers wife bee afterward delivered of a sonne in like sort did the remainder rest in the child of Maâ—d in Eliz. viz. which recovered by award 30. Assi p. 47. But where there is father and sonne which sonne purchaseth and dieth without issue and an uncle entereth if two yeares after the father hath a sonne by the mother of the purchasor this sonne may enter and put out the uncle and the reason of Law is that hée that comes in by purchase must be capax at the time when the purchase vest in him but in case of discent it is not so requisite Perk. in his Chapter of devises saith that if a devise bée made to a colledge which is not a colledge at the time of the devise it is a void devise although afterward it be made a colledge upon the same reason is Dier 13 Eliz. 303. of a devise to an infant in ventre sa mere And where a man dieth seised and his daughter entereth c. a son borne afterward may enter but it is not so in case of purchase c. for if a woman consent to a ravishor her daughter and heire enter by the statute 6. R. 2. ca. 6. the son Posthumus shall not put her out no more shall he where a daughter and heire entereth for condition broken and where a daughter hath a villain by discent which purchaseth she entereth into the perquisits an after borne sonne her brother shall have that which discended viz. the villien but not the land these cases hath Brook Discents 58. out of the Doct. and Student 5. Ed. 4. fo 58. in the case of Elizabeth Venor agreeth concerning entry made by 6. Ri. 2. And so doth Hales and Mountague in the case of Wimbish and Talbois yet Mountague Chiefe Iustice taketh there a learned difference if a man devise land for life the remainder to the right heire male of the devisor the heires of his body c. now if the devisée for life die and a woman which is heire generall to the devisor entereth and hath afterward a sonne the sonne shall never out the mother in whom is vested the inheritance for want of other persons to take the falling remainder per le melior opinion 9. H. 6 yet he saith the cases of ravishment possession of a brother abatement of a bastard c are all to bee understood of fée simple for where the entry gaineth but estate taile one may beate the bush and another take the bird so if a man seised by discent from his mother make a feofment with condition c. and die without issue if a woman heire on the father side enter for condition broken an heire male or female on the mothers side may oust her Plow c. fo 56. a. b. 57. a. West 1. ca. 22. THen West goeth on with heire females that so soone as they come to the age of fourtéene yeares if the Lord for covetousnes will not marry them yet he shall not kéepe their land above two yeares after they have accomplished 14 within which two yeares if they be not married by their Lord they may take action against him for their inheritance to recover it without paying any thing for the custody or for marriage If so be that of their proper malice or through the mischievous counsell of others such women refuse convenable marriage offered by their Lord he may in this case retaine their land untill they be of 21. yeares and longer untill he shall receive the value of their marriage Littletons words upon this statute in his 2. booke cap. 4. BY Littleton if tennant by service of Chivalry die his here female being 14. yeares old or more the Lord shall have custody neither of the land nor body for at that age a woman may have a husband able to doe knights service but if such an heire be under 14. and unmaried at the time of her auncestors death the Lord shall have ward in her land untill she be of 16. yeares age West 1. cap. 22. which getteth the Lord 2. yeares to tender marriage without disparagement and if during these two yeares the Lord tender no such marriage shee may enter and oust the Lord. If such an heire female be married under the age of 14. in the life of her ancestor which ancestor dieth before she accomplisheth 14. yeares the Lord shall have no more but the wardship of her land till shee be 14. yeares old and then her husband with her may enter into her land and put the Lord out for this is out of the Statute because the Lord may not tender marriage to her that is already married for before the Statute of West such an heire female that was under the age of 14. at the death of her ancestor and had atteined afterward to the age of 14. yeares without any tender of marriage by her Lord made unto her might well enter into her land and put out the Lord as appeareth by the rehearsall and very words of the Statute which as it séemeth so saith Littleton was made altogether for the advantage of the Lord. A suspition of Littletons error NOw saving Mr. Littletons inspiration I am greatly afraid that ye shal not finde by the text of the Statute That an heire female being under 14. at the death of her ancestor might by the common law before this Statute enter and oust her Lord as soone as she had accomplished 14. yeare of age without tender of marriage The law perhaps was so but this Statute proves it not Againe I doubt Littleton was deceived in taking this Statute to be all for the advantage of Lords yet it is
garde at the age of 14. yeares THe principall reason that mooved our law founders so soone to set women out of ward is none other then hath béene already declared she is quickly able domui preesse viro subesse and her husband for her shall doe Knights service or some other for him and in his stead the cases are therefore 26 H. 8. fo 2 If the Kings tenant in chiefe having feoffees to his use marry his daughter vnder age to a man of full age and dye this daughter being heire is out of ward for her body though not for her land for that shal be in ward in this case an the Kings possession must bee voided by suite and livery But had she béene of full age of 14. yeares at her fathers death no such thing had néeded neither should she have bin in ward nor the King have any primer seisin For that was not as yet seene into by the Statutes of H. 7. which had given ward reliefe and herriots upon the death of him which died intestate and seised of onely a bare use againe if the King have a woman ward which he marrieth before she be 14 she shal be be to all intents out of ward at 14. and may immediatly sue her livery 28. H. 8. for as a ward masculine married by his Lord vnder 21. shal be sui luris at 21. so shall a ward feminine being maried before 14. bee out of ward at 14. altogether In the old Natura brevium in the writ de electione custodiae it is said that where the tenant marieth his daughter being under age to a man of ful age dieth the daughter shal be out of ward But if he mary his daughter being of full age to a man under age and die she shall be in ward This Mr. Brooke taketh to be no law even so doe I his reason is that no Lord can have the marriage of her that is already married or compell any heire to be twice married For if a tenant marry his son and die and then the sonnes wife dieth holden the Lord shall not have his body in ward to marry him Which is cleare specially if the sonne were infra annos nubiles at the time of his fathers death But certainely if the Lord couple his ward to a wife which dieth the ward is at full liberty for his body and shall not be married by his Lord. The reason why an heire female of full age married by her father to a man under age should not be out of ward must be because the supposition of law faileth her husband is not able arma portare officiis fungi militaribus vel pro iisdem faciendis cum alio pacisci But this notwithstanding me thinketh a woman married should bee out of ward for all her husbands nonage thought the woman bee but twelve yeares old a boy knight shall be out of ward for his body shall a woman innupta matura viro be in kéeping of any but her husband shall shee at 14. yeares age bee ward because she hath a husband but 19. yeare olds who should not have béene in ward had she had no husband at al non videtur The husbands ability to doe souldiers service is neither the onely nor the principall cause in mine opinion why a woman is by law out of ward at 14. yeares age But law going with the trace or tide of nature that hath made women as Bracton saith fit to carry cey and key cloge betimes suffereth them to mary very early And it should be a mischievous inconvenient unjust and unnatural law that should hold a woman from her husband or from her inheritance which is without offence of law maried fully able to bring forth children because her husband is not fully fit for all mannor of horsemanship Be not therefore good woman absterred from a young husband by old natura brevium SECT XII How a woman that hath beene in ward shall come by her land A Woman past 14. yeares of age at her ancestors death shall not be in ward And where she is in ward till 16. she may have action at 16. against her Lord for her inheritance according to the Statute By Littleton she may enter which standeth with reason for the Statute giving action to her affirmatiuely doth not disaffirme the entrie which she might have had by the auncient catholicke Common law if shee cannot or dare not enter she may have alone if she be alone or with her fellowes if she be a coheire a writ of mortdancester as well against her Lord as against any other abator Marlbridg ca. 16. But if shee be ward to the King against whom a mortdancestor writ of Aile Besaile or Cosinage then it melts into petition and she must sue for livery And where the King hath a woman in ward with some lands holden of other Lords in socage such a ward shall not so soone as shee is 14. yeare old have livery of that socage lands but she must arry unlesse she be married in the meane while till she be 16. because livery must be at once parcell not by percels Yet if 3. copartners be in ward to the King she which first commeth to age shall sue her livery and have partition vpon it SECT XIII Of Parceners FOr it must not be omitted there where a man dieth seised of any manner of inheritance having issue none but daughters to whom such inheritance descendeth when they have entered by Litt. they are parceners one heire to their common ancestor so are the heires of females parceners and they ought to come in by descent for if by purchase they are jointenants they are called partners saith he because they are compellable by a writ de partitione facienda to divide the inheritance amongst them Like or the same law is where a man dying seised having no issue his land goeth to his sisters or aunts that are partners if one of them dye before partition made her part shall descend to her issue and for want of issue to her coheires which shal be déemed and adjudged in by discent and not by survivour SECT XIII Difference betweene partners and jointenants FOr although partners have a conjoyned estate yet law maketh a great diversity betwixt them and jointenants Partners by the cōmon law are onely females or the heirs of females which also must be in by descents for if sisters makeajoint purchase they are jointnants and not partners Betwixt whom observe here the germaine apparent difference If two coparceners be of lands in fee simple wherof one before partition made chargeth her part with a rent dieth without issue her coparcener taking as heire and by discent shall hold the land charged But it is otherwise betwixt jointenants Also partners may devise and give away their part by testament so cannot jointenants SECT XV. Difference betweene partners and tenants in common ANd as in the cases precedent parteners are like tenants in
demand made of the rent by her husband hee shall haue Courtesie in the rent notwithstanding So it is if an Advouson in grosse descend to a woman married hauing Issue c. though she die afore auoydance the husband shall present and though the Bishop after the descent present by lapse yet the husband shall haue the second presentment for there cannot in these things possession be taken maintenant and at all times as they be in Lands And take with you here these Cases out of Dier 1. Ma. fo 95. Tenant per Cheualrie in cap. dieth his Daughter and Heyre being vnder age office is found and the King grants the wardship of body and Land to me which marrieth the ward and hath Issue by her and after shee accomplisheth the age of sixetéene yeares and the King is satisfied for the two yeares profit they tender a generall liuerie and before it be past the Wife dieth the Baron shall haue the Courtesie come semble saith the Booke And 6. Eliz. Dier 229. the like descent is to a Daughter and married hauing Issue by her husband and she dieth ten dayes after her Father no Liuery being sued that is found by office the Baron shal be Tenant by the Courtesie and shall sue liuery SECT XLIII No Courtesie of reuersion after estate for life THe seisin must be to the Wife in estate of Inheritance not mangled or cut off from the Frank Tenement and therefore by Parkins where a Woman an Heyre enters after her Fathers death and being seised in fée-simple makes a Lease of her Land to I. S. for terme of his life if she now marry haue Issue and die during the Lease the Husband shall neither be Tenant by the Courtesie of the Land when it reuerts nor of the rents in the meane while Also 8. assi p. 6. If a Daughter and Heyre enter endolâ— den and haue Issue by her and the condition being broken she dyeth if now the Feoffor enter the Feoffée shall not be Tenant per le Curâ—esie of the Seignorie But if a feme sole haue a rent or common in or out of certaine Lands and the Tenant leasseth the Land to a stranger during the life of I. S. and the woman intermarrieth with the Lessée hath Issue and I. S. dyeth now if the wife die the Baron shall haue Courtesie in the rent or Common And if the Tenant leased his ground for 20. yeares and a woman hauing in the ground a rent charge in fée intermarrieth with the Lessée c. dieth during the terme it is a question in Parkins whether the husband shall haue Courtesie in the rent after the terme determine see Parkins cap. By the Courtesie SECT XLVII No Courtesie of a bare vse IF a Woman sole seised c. make a feoffement to the vse of her selfe her heyres and then she marrieth hath Issue and dieth before any estate in the same lands be againe by entry or otherwise executed to her her husband shall not be Tenant by the Courtesie and this aswell after the Statute of 27. H. 8. as before if the Feoffement were since the Statute SECT XLVIII What Husband may be Tenant by the Courtesie and of what estate WHere the Wise is actually seised of Lands in â—éesimple see-taile generall or as Heyre of sée-taile speciall the second Baron may bee Tenant by the Courtesie as well as the first for so is the Maxime And Parkins Fitzherbert and Brooke haue all of them the Case 21. H. 3. viz. A woman Inheritour hath Issue by her Husband and he dieth she takes another Husband hath Issue by him and that Issue dieth the woman dieth her second Husband shall be Tenant by the Courtesie Bracton agréeth also who when hee hath shewed this Ciuilitie of England concludeth Quod dicitur de primo diâ—i poterit de secundo siue de primo viro haeredes apparentes extiterunt siue non plenae aetatis vel minoris But hee addeth Quod iniuriosum est secundum Sâ—ephanum de Segraue qui dicebat quod lex illâ— male â—uit intellecta male vsâ—tata Nam quod dicitur de lege Angliae intelligi debet de primo virâ— communibus haeredibus non de secundo maxime cum haeredes apparentes extiterint de primo My mind giues mee that hee said truth and that Law turning a little out of her Channell here before Iustice Segraues time could neuer since bee brought to her course SECT XLIX Of speciall Taile BEfore West 2. cap. 1. all the Estates which wée now call tailed that is curtailed or cut off were sée-simple Conditionall If Lands had béene giuen to a man and a woman in Franke Marriage or to them and to the Heyres of their two bodies which gifts make now a speciall Taile as soone as they had Issue the Condition was thought to be performed And as a woman suruiuing her first Husband in this case might alien the Land so might she by bearing a Childe to her second Husband c. this makes him Tenant by the Courtesie be inforced to proue that the Childe sent forth some voyce or cry arguing life and naturall humanity for if it bellowed bleated brayed grunted rored or howled there accrued no courtesie by getting such an vnciuill vrchin By him therefore there must be a naturall crie heard inter quatuor parietes for he saith though a Child be borne mutus surdus tamen clamorem emittere debet sive masculus sit siue foemina nam Dicunt E. vel A. quotquot nascuntur ab Eâ—a E. or A. all crye that from Eue come Though they be borne both deafe and dumbe Non sufficit igitur tantum baptizatus scpultura yâ—t 28. H. 8. Dyer fol. 25. sets downe Fitzherberts opinion that a man may be Tenant by the Courtesie though the Childe neuer crie car paraduenture lissue soit nee dumbe And so saith Parkins 9. 4. 7. viz. that if the issue bee borne aliue though it die before it be heard crie or before it be baptized for that is a matter also with Bracton if there were no lachesse contumacie or contempt in the Baron he may be Tenant by the Courtesie But by negligence or by contempt he shall preiudice himselfe ascuns diont SECT LI. A Childe borne beginneth the title of Courtesie NOw this hauing a Childe is such a matter as it séemeth that maine tenant thereupon the title of Courtesie beginneth for example if a bond woman purchase Land and marrie if the Lord enter before Issue be had no Childe borne afterwards shall make the husband tenant by the Courtesie But if the Baron haue Issue by his wife before the Lords entrie he shall be tenant by the Courtesie and the auourie from that time forward shall rest vpon him solement And the possession in Law if the wife die shall not light vpon the Heyre but vpon the Baron which shall be tenant to euery praecipe Câ—o est cleere lei Brooke out of the Doctor and Student vide Brooke
the Statute as also what lands are subiect to the Statute as also what lands are subiect to seisure aswell of the husbands lands as of the wiues If that were reason saith Fitzherbert a womans inheritance might be seised too Et semble a moy the King cannot grant marriage of his widdowes as he may of his wards for a widdow may remaine sole without penalite or paying for it by Mag. Chart. cap. 7. But Stamford includeth that a widdow endowed oâ— lands holden in capite by the Kings Committee or husbands heire though vnsworne is not freed from marriage sans licence for she is presently as soone as she is endowed tenant to the King and not to the heire which is in reuersion yet only the heire is he which shall haue action of waste against her but if trespasse bee done vpon the ground she may haue a writ out of Chancerie supposing entrie vpon the Kings possession And Auowrie to bee made by the King resteth onely vpon her as holdeth Wood 1. H. 7. fol. 17. and 4. H. 7. 1. Now note that Endowment in Chancerie is of such strength that be it by wrong or by right it cannot be auoyded by plea without suit in Chancerie And if it bee too little the woman must stand in her owne harmes that hath once attempted it in Chancerie bee shee within aâ—e or of full age as appeares 18. Ed. 3. fol. 29. If any office bee trauersed because the land is holden not of the King but of some other Lord who therefore hath an Ouster le maine vna cum exitibus yet Dower which is already assigned remaineth vndefeated till another suit be made in Chancerie to auoid it Yet in this case because Admeasurement is no preiudice to the King of whom the land is not holden the Lord that tendreth trauerse may haue a Writ of Admeasurement at yâ— Common Law And the heire may haue Admeasurement of Dower assigned by his Ancestor But an Abator cannot haue Admeasurement neither can Gardian in fait haue Admeasurement vpon assignment by Gardian in droit nor if the heire were at full age at his Ancestors death and died his heire being within age can the Gardian haue Admeasurement but where a woman is endowed in Chancerie and afterward the heire or some other for the King surmiseth eâ—cesse of value it may bée admeasured beginning with Scire facias as Fitzherbert hath taught supra and fol. 249. â— If the husband had l 〈…〉 in diuers Counties by reason whereof diuers writs of diem clausit extremum were awarded after his death into euerie of those Counties the widdow cannot be endowed till such time as all the writs be returned into Chancery If after she is once endowed in Chancerie her Dower be recouered from her by any title she hath no remedie but to remoue the record of this recouerie into Chancerie and then vpon the first record which sheweth that she was endowed and vpon this other of recouerie she shall haue Scire facias reciting both the records against him which is tenant of the two parts to reseise them into the Kings hands and so to bee newly endowed but not to recouer any dammages though dammages were recouered against her Lib. 43. Assisar Pl. 32. for by the latter part of the Statute Prerogatiue cap. 4. It séemeth the King hath lost his prerogatiue and that he is bound by West 1. cap. 22. Note that woman Ioynt purchaser with her husband is not within this Law to fine for her marriage when she becomes a widdow say I therefore well fare a Ioynture SECT VIII Suit for Dower at the Common Law THus we haue séene how and when a widdow muâ—â— fâ—â— for Dower in the Châ—â—â—erâ—â— viz. when either her husband died the 〈…〉 tenant in capâ—te or by â—nights seruice his heire vnder age or otherwise tenant to some other â—hole lands are in the Kings hands by vacancie or nonage of the heire But if the husband which held in Socage or by â—nights seruice not of the King did giue or alien any manâ—â—r of way his lands or were disseised of them or died sâ—isâ—â— of them The widdow if by simple demand she cannot obtaine her Dower to bee assigned her may haue a wâ—â—t of Dower Vnde nihil habet at the Common Law against him which is tenant of the Franktenement by the old Nat. breuium this writ is maintainable against him which hath possession of the land by what manner soeuer or against the Gardian in Chiualrie in this or like forme Rex Vâ—cecomiti c. command A. to render to B. which was the wise of C. â—er reasonable Dower quae ad cam contingit de libero â—enemento quoâ— fuit praedict C. sometime her late husband in D. vnde niâ—iâ—â—abet vnde queritur quod A. ei defortiat c. nisi fecerit B. fecerit tâ— securum de clamore prosequendo c. summoneas A. vt sit apud WestmÌ„ ostensurus If the Dower were ad ostium Ecclesiae or ex assensu patris or otherwise there is mention made of it in the writ In London there may be a writ from the King to the Maior and Sheriffes in these words Quod Iusticietis A. quod iuste â—â—ne delatione secundum consuetudinem ciuitatis nostrae London redd ' B. quae fuit vxor C. rationabilem dotem c. Et Iusticietis D. quod iuste c. whereby appeares that a widdow in London may haue a writ of Dower against seuerall tenents by seuerall Iusticies as well as at the Common Law seuerall Precipes against seuerall tenants all in one writ the Processe in the Common Place is summons Grand cape pettie cape in the Common Place this writ of Dower vnde nihil habet must be returned into the Kings Court Et per grand reason saith Britton cap. 10. 4. For if two or more women should striue euerie of them affirming her selfe to be the lawfull wife of him which is dead not minding to be buried with him as is the corse in India but to get a third of his lands This must be tried by Certificate from the Bishop vnto whom if any but the King should write for the deciding of debate it might fall out to be all in vaine because none hath power but the King to compell the Bishop to make Certificate In the next Chapter Britton sheweth that if the Tenant vouch to warranty one which appeareth according to summons the Plea shall proceed betwixt the Plaintiffe the Warrantor or Vouchée the Tenant keeping seisen till the Warrantie be determined Then if the Garrantie cannot be denied nor the womans right disproued if that which she demandeth were certainly assigned to her for Dower from her husband shee shall recouer against the Tenant Et le renant le value But if the demand bee of no other than reasonable Dower the woman shall recouer in value against the Warrantor and the Tenant shall hold his land in peace If so be
mothers side yea and before a sonne of the second uncle on the part of the father and this by the worthinesse of blood I will not examine the crainkes of discent but turne to the case where possession of the brother excludeth a brother and taketh in a sister If a man hath issue a sonne and daughter by one venter and a sonne by another and give land to the eldest sonne in taile now if the father die and the reversion in fée discend to the eldest sonne who likewise dies without issue of his body the second sonne shall have this land For here was no possession but an expectance of fée simple in the eldest Per omnes Iusticiarios de Communi Banco 24 E. 3. fol. 13. For it is possessio fratris non reversio fratris c. Yet Thorpe Iustice of the Kings Bench thought the land should goe to the daughter Brooke con Brooke discent 13. Againe afine was levied to I. and A. his wife in taile the remainder in fée to A. they had issue a sonne and the husband died the wife tooke another husband by whom shee had issue another sonne and died the eldest sonne entered and died without issue the collaterall heire to him entered as into the remainder in fée and the youngest sonne of the halfe blood to execute the fée brought a Scire facias which was holden good for though the eldest might have charged forâ—ited or given the fée simple by atteinder yet it was not actually in him and therefore the demi sanke none impediment but the younger sonne might have it as heire to his mother 24. E. 3. fol. 30. Which cases prove that the possession of a brother to convey the fee to a collaterall heire if it be not apprehendeth actively the generall heire to the common ancestor may enter Therefore where there is a son or daughter by one venter and a puisne sonne by an other venter if the father die seised of an advouson or a rent and the eldest son died before he present or receive the rent the daughter shall not inherit and if the father die seised of an use in fee possessio fratris facit sororem esse haeredem by taking the profits of the ground 5. E. 4. 7. Where it is said that if the father by testameÌ„t bequeath the profits for tearme of yeares this letteth not the possession of the eldest brother otherwise it is if it had beene for tearme of life and the like difference is by this booke if a lease be made for yeares or for life of lands not in use c. SECT VIII Where the manner of gift altereth the discent BRactons first exception to his general rule that a Woman shall not inherit when there is an heire male is Nisi contrarium faciat modus donationis His example is A man giveth land to one in mariage with his daughter to them two and to the heires of their bodies they have issue a daughter and the husband dying the wife taking another husband hath by him a sonne and dieth the daughter shall inherit per modum donationis the case is plaine But Littleton hath a limitation where modus donationis doth cleane exclude Women from inheriting That is where lands are given to a man the heires male of his body now if he die having issue a sonne and a daughter by one wife and a second sonne by a second wife the daughter can never inherit nay if he die having issue a daughter onely which daughter hath a sonne neither daughter nor son shall inherit for whosoeuer shall inherit by force of an intaile made to heires males must per modum donationis be males coÌ„vey his disceÌ„t to it per heirs males which because the sonne cannot doe here the donor may reenter But Littleton saith also lest women should take the matter unkindly at his hand that where land is given to a man to the heires females of his body his issue female shal inherit per formaÌ„ doni not the issue male for the will of the giver must be observed He hath another case which I may not omit When lands are given a man to the heires males of his body which have issue 2. sonnes the eldest dyes having issue a daughter if hée lease the land for tearme of yeares the reversion descendeth to the sonne but if the lease bée for tearme of life of the lessée the reversion and the fée simple descendeth to the daughter the discontinuance is the cause here the daughter is in not in the per but contra modum donationis by violating the will of the giver SECT IX Where a woman comming to lands shall retaine them c. NOw I will shew you where a female having gotten inheritance per modum donationis or otherwise shall retaine it and where not Marke well this case Iohn died seised of fée leaving issue Robert the eldest sonne and Richard the puisne Robert entred tooke a wife and had issue Alice which Alice died hée tooke another and leaving her great with childe hée died the Lord seized the land and ward of Alice and granted the custody to one which indowed the wife of Robert she was delivered of a sonne William The Lord seized William his ward which lived ten yeares and died without issue Henry the sonne of Richard the second sonne of Iohn entereth Alice entereth upon Henry and hée brings an assise now because the possession of the Lord was seisin and possession of William to whom Alice was but of the halfe blood it was awarded that Henry should recover But by the opinion of the Court the land which the wife held in dowre should goe to Alice for therein William had Broke dispent pl. 19. no more but a reversion 8. Assisa pl. 6. Againe Henry seised of tenements deviseable in Winchester where the Custome is that hée which is seised by devise may not with warranty or without warranty make alienation to barre the reversion or remainder deviseth them to his wife Alice for tearme of life the remainder to Th. his sonne for life so that Th. should make no alienation quo minus tenementa devenirent propinquioribus haeredibus de sanguine puerorum post mortem predicti Thom. Henry died having issue Steven an elder sonne and Maud a daughter which had issue Eliz. Steven died without issue Alice the wife entered and died seised Tho. entereth and alieneth in fée with warranty Maâ—d dieth Elizabeth maketh claime by taking the haspe of the doore in her hand Tho. dieth without issue Eliz. entereth upon the alienee he puteth her out shée bringeth an assise It was holden that the heires of Henry had nothing in the fée simple by the limitation which went not to his children but to the next of blood to his children excluding ses infants demesne And by Wilby if B. make a lease to Alice for life the remainder to the néerest of blood if he die having issue 2. sonnes and the
likewise said by Davers 13. H. 7. 11. that this Statute was made for advantage of the Lords Glanvill ibro 7. cap. 12. HEare what Glanvill saith women shal be in ward vntill they be of ful age the Lord shal mary them being of ful age euery one of theÌ„ with their reasonable portion thoughthey be of ful age they shal remaine notwithstanding in their Lords custody vntil they bée married by his aduise for by the law of the land no woman heire can be married but by her Lords disposing and assent In so much that whosoever having a daughter or daughters heire or heires shall in his life time without grée of his Lord marry any of them he suffereth by the right and generall custome of the Realme perpetuall disinherison without ever recovering any thing but by the grace méere mercy of his Lord. If it be prooved that any woman holden in ward do forfit with her body she shal be deprived of her heritage her portion shall goe and accrue to her parceners And if they all offend the whole heritage shall fall as escheate to the Lord. But after such heires be once lawfully maried though they become widdow afterwards they shall no more be holden in ward nor then by their incontinency can they forfit any inheritance But yet they may not remarry without their Lords assent Thus far Glanvill Bracton his 2. Booke cap. 37. BRacton who as it may very well be gathered wrote one halfe hundred yeares after Glanvil and but very little before the making of West 1. In his 2. Booke and 37. Chap. finding it a question at what time an heire female should bee out of ward whether at 14. or 15. or at 21. acknowledgeth a greater capacity of deceipt and maturity of desire to be in women then in men And that therefore a woman might be out of ward at 14 and marry because at that age she is able disponere domui suae et habere cone et key et virum sustinere that is to order and dispose a to have the key clog at her girdle and to be a jolly stay vnto a man But this early emancipation of women heires he taketh to be onely of such as inherit laÌ„d of socage tenure for drawing toward the end of the Chapter he falleth in with Glanvil And saith of heires coparceners in Chivalry si ab initio omnes maiores extiterunt nihil ominus in custodia dominorum â—rint donec per consilium et dispositionem eorum maritentur quia sine ipsorum coÌ„silio et assensu mulier haereditateÌ„ habens maritari non potest non etiam in vita antecessorum quod si olim fecissent hereditatem amitterent sine spe recuperanâ—i nisi solum per gratiam Hodie tamen aliam paenam incurrent And presently hee sheweth the reason why they might not marry without their Lords assent viz. lest the Lord might be constrained to take homage of his capitall enemy or of a man altogether vnfit or vnworthy SECT X. How the law came to a certainty in the point of a womans being out of ward CHoose now whether ye will learne of Glanvil and Bracton what the law was in their time or of Mr. Littleton that wrote many score yeares after the making of Westm 1. In mine opinion neither did this law bring any advantage to Lords neither doth it shew that heires females oftenants in Chivalry might enter at 14. yeares neither is there any cléere proofe that the law was cléerely so taken The letter of the Statute doth not expresly give 2. yeares to tender mariage but rest raineth covetous Lords that they shall not hold the land above 2. yeres after the 14. which séemech plainly to import as it is reasonably taken both by Needh Billing 35. H. 6 that before the making of this law the age of male and female in this point tooke no difference I may be asked how it commeth then to passe that the law is so cléere in that which Littleton concludeth withall viêªt That the Lord shall not have two yeres to tender his woman ward marriage save onely where she is under 14. and unmaried at the death of her ancestor before the Statute it was either out of doubt that a daughter and heire should not be cleane out of ward at 14. or at the least it was doubted whether she should or no and the words of the Statute whatsoever Mr. Littleton saith maketh not the matter plaine enough But we have the helpe of Reverend Prisot in the Booke above mentioned 3. 5. Henrici 6. Westm 1. saith he was made in the time of Edward the first who purposing to put all the law into certainty and in writing begun to makes Bookes thereof by helpe of the most sage men of the law in this Realme Iudges and others And he made a Booke two yeares after the making of this Statute in which all the Statute is rehersed which booke goeth on and saith by expresse words that no woman shal be said to be vnder age thereby to be in ward after she is past the age of 14. Thus saith Prisot By him therefore and by other Iustices in the Eschequer chamber it was ruled cleere that where the Kings tenant in Chivalry died leaving his daughter and heire of the age of 15. yeare she should not be in ward And Billing saith for law that if betwéene the 14. and 16. yere when an heire female is in ward another ward falleth which holdeth in Chivalry of the first the Lord shall not have gard per cause de garde for the first ward is out of his power to all intents excepting onely tender of mariage And another Iustice saith if a tenant hold ofone lord bypriority of another by posteriority the daughter heir vnder 14. shal be in custody of the anteriour Lord till she be 16. but shée may enter vpon the land by posteriority as soone as shee commeth to 14. likewise if the Lord hath once maried this woman-woman-ward after the age of 14. she may presently enter into her land for now the Lord hath had all that which to him belongeth the marriage And the course of the Chancery is to make livery before 14. cum exitibus but after 14. livery tantum vid. 4. Eliz. 213. Dyer Dyer 20. Eliz. 362. 1. Hen. 720. on livery for then such an heire is to have the profits by the law To come to an end of this matter I will not forget that even in Mr. Littletons daies very néere two hundred yeares after the making of West 1. by the last Statute that ever Hen. 6. made in the yeare of his reigne 39. ca. 2. it was established by Parliament that women being of the age of 14 yeares at the death of their ancestors without question or difficulty shall have delivery of their lands and tenements discended to them for so the Law of the land wils SECT XI A search for the true reason why a woman is hors du
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
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
by Parliament But if the Ioynture were made before Marriage the woman must néeds hold her to her Ioynture sans election And this is by implication vpon the third prouiso as appeareth by the report of Anderson c Sée Commentaries Plowden 390. The Case 6. Eliz. Dyer 228. is That Richard Ashton Esquire in accomplishment of certaine Indentures dentures betwixt him and Sir William Barenport concerning Marriage to be had betwixt Richard Ashton the sonne and Elizabeth the daughter of Sir William which gaue seuen hundred Markes with her in marriage infeoffed certaine persons before Marriage of Land to the annuall rent of twenty pound to the vse of the said Elizabeth for terme of her life The Marriage being consummate first Richard the Father and then Richard the Sonne died then it was found by office that Richard the sonne died seised in Fée if these Lands whereof the Feoffement was made and of other Lands holden by Chiualry as of the Dutchie of Laâ—caster his heyre being vnder age the first question was whether shee might retaine the twenty pound Lands â—â—d haue Dower of the rest because she was not Richard Aâ—â—â—ons wife at the time of the Feoffement first made neither was it made of the barons lands or by the baron resolued by Councell of the Court that shée was barred of Dower And it was so likewise resolued in Vernons Case Sir Ed. Cokes 4. Report wherein is much learning touching Ioynture The second question in Eliz. Astons ca. was whether she were Dowable from the Quéene because the feoffement was not found by the Office The third question whether it might be aâ—â—râ—ed for the Quéene in stay of petition of Dower that the Feoffement was made pro iunctura no such matter being expressed neither in the déed of Feoffement or Indenture of Coâ—â—â—ants The fourth question whether the Widdow Elizabeth might be receiued to auerre and proue by Commissi 〈…〉 the Court of Wards that the Feoffement was not meant for a Ioynture Here is enough to make Women be wâ—â—e how they take Ioyntures before Marriage Take 〈…〉 ther to admonish you beware of fines after Marriâ—â—â— Ioynture was made to a Feme Couert by her Baron shée and her baron aliened the land by fine sur connusance de droit by the opinion of Iustices Wray Bell Manhood and Dyer she shall not demand Dower of the residue of her husbands Land after his death for she aliened her Ioynture before time of election was giuen her by the Statute quaere But if the fine had bene sur connusance de droit come ceo que le connuseead de done le Baron tantum this had béene a better forme for the wife and lesse dangerous 19. Eliz. Dyer 358. SECT XXXIX What is a sufficient refusall or agreement of or to a Iointure made after Couerture See Sir Edw. Cokes 3. Rep. in Butlers and Bakers Case THe refusing or agreement c. because they are peremptory must not bee clouded darke doubtfull or implicatiue but plaine and expresse a bare word or saying by a woman that she will refuse her Ioynture or accept it is not materiall as diuers Iustices doe hold it But if shee come vpon the Land whereof she is Dowable and there refusing her Ioynture pray the heyre to assigne her Dower this is such a refusall that the heyre by this shall be charged in damages from this time forth in a writt of Dower and this refusall must be to the heyre himselfe and not to a Stranger If a Widow waiue the possession of a house or tenement assigned in Ioynture by her husband and get her to another place this is no refusall But if she haue any medling with the land assigned in Ioynture or doe any other act amounting to assent or dissenting as for example If she bring a writt of Dower and declare vpon it this is peremptory although she bee vnder age Couert or not Couert of a second Husband for the Law saith that they which haue discretion to acquire and get things haue sufficient discretion to giue and preserue those things gotten Therefore if an Infant cdme to any thing by purchase hee shall not in that haue any aduantage or bee in better plight then a parson of full age As where estate is made to an Infant of two acres to haue and hold the one for life the other in fée c. a Feoffement made of one whilest he is yet vnder age is a sufficient election And if a rent charge bee granted to an Infant whereupon he bringeth a Writt of annuity he shall neuer auow for it as a vent when he commeth to full age So if an Infant recouer debt and sue execution by elegit c. he shall neuer haue a scire facias And an Infant is subiect to an action of waste or entry for condition broken as well as any other person These collections gathered as I thinke by some well learned and industrious Student out of M. Brograues reading though they want of the fulnesse and perfection which the owne pen of so great a Lawyer might haue giuen them yet are they pertinent and important And I not a little beholding to him from whose hands I obtaine them SECT XL. Of Actions brought by Baron and Feme or by one of them NOw because the common sayings are found by common experience true Qui capit vxorâ—m capit lites and qui habet terras habet guerras A Wife brings iarres and wealth brings warres quarrels suits and controuersies at Law sans câ—o that it hath any other intendment it will not be amisse a little to declare how and in what manner actions at law must be commenced and pursued by baâ—on and Feme or against them or by or against one of them according to prescription of Law and their seuerall and ioynt Interests c. SECT XLI Where the Baron shall sue onely in his owne name A Man shall sue for his Wiues Marriage money onely in his owne name but how or where that is a matter of some obscurity by Bracton lib. 5. ca. 10. 407. money that is promised causa Matrimonij is as a sequell of Marriage and so being annexed to a thing spirituall requires a spirituall suite yet he confesseth that it is otherwise for Land promised or couenanted c. Fitzherbert in his Writ of Debt citeth 31. Ed. 3. that if a man promise one twenty pound to marry his Daughter which marrieth her accordingly he may haue a Writ of debt vpon his promise but he forgets not the â—éere difference in the Booke of assizes for in the Writt of prohibition he tels vs if a man promise one twenty pounds if he marry his Daughter after marriage if the promiser will not pay the money the husband may not sue in Court Christian if hee doe a prohibition lyeth marry if I promise one twenty pounds with my Daughter in Marriage c. now vpon non-payment he may sue in Court Christian for this concerneth Matrimony The same
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
by such meanes as she may from him which recouered it 50. Ed. 3. fol. 7. loane late wife of L. W. brought her Writ of dower against T. H. demanding the third part of a Mannor It was pleaded Qâ—â—â—l ne poâ—â—nâ—â—s demander for â—â—no 12. huius â—â—gis a sine was leuied of the said Mannor betwixt I. and E. and the tenant sued Scâ—â—â— facias out of the fine against the now demandant which came and pleaded to parcell that shee held it in Dower of indowment from her husband bâ— assignment of W. C. â—â—â—â—â—â—dâ— dâ— lâ—â— c. for another part she claimed for terme of â—er life by lease from W. C of whom likewise shee prayed aid and had it granted C came in by procâ—sse and ioyning in aid pleaded a Feoffment made to himselfe in fée by L. the baron sonne and heire to I. W. whereunto the tenant pleaded Râ—â—ns passâ— per lâ— fait and the processe câ—ntinued against the Iury till a day certaine at which day C. made default and this demandant maintained the issâ—â— which was found against the now demandant viz. that Rieâ—s passa per le fait and execution awarded for the plaintiffe in the Scire fac Iudgemeâ—t si â—â—countâ—r ceâ—â— recoueâ—â—e a quel el fuit party el poâ—t nens demander and the demandant demurred Her pretence was that by the recoâ—erie she was remitted to her action paramont because the recouerie affirmes her husbands possession But the better opinion was that whâ—n her Dower once lawfully assâ—gned was recouered against her she had here no remedy but by exrour or attaint for a writ of right shee might not haue But if in the Scirâ— faciâ—s shée had alleaged to that part which she claimed in Dower that she hâ—ld it in Dower of the Assignment of W. C. Prist daâ—tenderâ— a qâ—e le coâ—rt voâ—â—â—â— gâ—rder she had saued her estate by protestation and the reuersion might hâ—ue héene iudged to him which had right whereas pleading as she did some thought shâ—â— had forfeited hâ—â— Dower but that was denyed by Tresiliâ—n Belkâ—ap who said that when one is â—â— per tort as iâ— the Disseâ—sée or his heirs â—nter vpon him which is in by discenâ— or if a widdow enter vpon a discontinâ—â—â— of her husband and then vpon issue taken sur seisin or disseisiâ— it is found for the plaintiffe the tenant is remitted to his Action paramoâ—â— Briefe â— â—â—triâ— in the one case and in the other a Cuâ— in vâ—â—a But if a recouerie bée against a Tenant that hath rightfull possession the remâ—die must be by errours attaint or writ of right And therefore in the last cases if the tenants had pleadedâ— release or other matter which might eâ—tinct the right if it had passed againâ—â— them their reâ—edy must haue béene by writ of right pâ—â— Clopâ—on quâ—â—â—e Wich said if a recouerie be had against the Baron vpon a delatory plea as noâ—tâ—nure misâ—osmâ—â— of the town or such like a woman may falsifie such a recouerie in a writ of Dower It seemes to be otherwise saith Brooke if a recouerie be had in that mannâ—r agaâ—â—â—â— the woman her selfe who is endowed SECT XXI Admeasurement of Dower ADmeasurement is in a kinde a recouerie against a woman not of her whole Dower but of part of it for if the heire whilest hée is vnder age or the Gardian whilest the heire is in ward doe indow a widdow of more land than â—he ought to hold in Dower the heire when hee commeth to full age may haue a writ Dâ—â—â—mâ—nsurâ—tione doâ—is against her and the Surpluâ— or excesse shall be restored to the heire but there is in this case onely an amputation without any nouell assignment If the heire being vnder age assigne Dower too largely before his Lord and Gardian enter into the land or seise his Ward the Gardian may haue a writ of Admeasurement by West 2. cap. 7. And if the Gardian pursue the writ faintly against the wâ—man indowed the heire may haue a writ of Admeasurement bâ— the same Statute Custodi de caeâ—â—â—o concedâ—tâ—â— breue de admensuratione dotis nec per sectâ—â— custodis si fictae per collusionem sequâ—tur vâ—â—sus mulâ—â—â—em tenentem in dotâ—m prâ—â—ludatâ—â— haeâ—â—â— cum ad aeâ—â—â—â—m pâ—â—uâ—neriâ—â—d 〈◊〉 admensuâ—â—â—dom c. If the plea be in the Coâ—â—tie the Plaintiffe may remoue it without cause and the Defendant may remoue it with â—â—â—â—e â—hewed in the writ as in a Repleuin And when the writ is râ—â—â—â—ed by Poâ—â— into the Common place the proâ—â—â—â—e iâ— summons attachment and distrâ—sse c. according to the Statute Then the Sheriffe cannot make admeasurement but he shall extend the land particularly and returning the Extent â—â—â—o the Common place the Iustices shall admeasure Dower Note if the Gardian assigne Dower excessiue and then grant ouer his estate his assigne shall neuer haue a writ of admeasurement Likewise if the heire vnder age assigne Dower which his Gardian may admeasure when he hath entred c. but the Action is not grantable for the Gardian assigned or grantee shall not admeasure But an heire may haue the admeasuring of Dower assigned in his Ancestors tune And if a woman be indowed in Chancery per le Roy c. the heire may haue a Writ of Admeasurement if a woman after shee is indâ—wed make any improuement of the â—and so that it becomes of farre gâ—eater value than it was of at the time of the Assignement there lieth no admeasuring vpon this improuement And Bracton saith Noâ— erit estimâ—nda melioraâ—â—o muâ—â—â—ris quaÌ„ fecit in dore suapost assignationem tempus eâ—im assignationis dotis erit spectandum But if this improuement bee by casualty iâ— some myne of câ—ale or lead which had béene formerly found and occupied in the husbands time the matter is somewhat doubtfull But sée Sir Edward Cokes 5. Rep. fol. 12. a. in Saunders cap. qÌ„ sc That if the myne appeared at the time of the ad assâ—gnemâ—nt admeasurement lieth As for new mynes a widdow may not make or dig any that is waste thus farre Fitzherbert Briton cap. 113. and Bracton lib. 4. cap. 17. shew with what circumstance admeasurement shal be made by the vicount surserement de probes homes praesentes per boâ—e legale extent They say that the amputation is not onely of excesse and superâ—â—uity by this Writ of admeasurement but also of that which â—ught not to bee assigned admensuratio debet esse â—am de indebito quam de superflâ—o And therefore if a Castell or head of a Barrony were assigned in Dower by the Gardâ—an without any necessity the heire may haue this Writ for enter hee cannot say they They shew also what plea a woman may haue against admeasurement viz. that the Plaintiffe himselfe made the assignation or confirmed or allowed it being of â—ull age c. SECT XXII The charge of Dower ADmitting the Dower assigned to be both for quality and quantity iust there is yet to
may be conveyed from him to her 123. where hee shall be charged for her debt 136. what Acts she may doe and what not 141. How they shall bring actions 196. 197. 204. Impediments of Marriage by affinity 59. by adoption c. 60. Infant what acts voyd and what voydable 132. Ioynture 183. where both it and Dower shall be had 192. what shall be said to be a refusall or agreement to a Ioynture 195. Law reduced to a Method 1. of King Edmond 375. Marriage what 51. Promises thereof defined and distinguished 52. 53. How long such Promises are to be expected 55. who may and who may not contract Matrimonie 57. Impediments thereof 59. 60. why it's necessary 63. when it's consummate 63. Not dissolved for any crime 67. Statutes concerning it 68. 69. Lands given to marry one when recoverable when not 78. It changes the Womans name and dignitie 125. Nuper Obijt where it lyeth 27. Out-larie of Baron and Feme 221. Partners what 24. difference between them and Ioynt-tenants and tenants in Common 25. the coherence between them 45. where they shall be heire one to the other and where not 46. where they shall contribute 47. where they differ in service 49. Pardon of the King 364. Partition of the manner thereof 31. where a Writ lyeth 33. what plea in that writ is good 34. who may sue it 35. In what case it shall abate 38. The Iudgement upon that Writt 39. what things shall not be parted 40. Where it may not be avoyded 42. 43. where it may 44. Polygamie forbidden 61. Posthumus where he may enter 14. where not 15. Promises of Marriage how long to be expected 55. How they may bee dissolved 55. and by what authority 56. Quarentine what 242. Rape 376. of two sorts 377. Recoveries what 180. Remitter what and when 157. Rent reserved upon a gift in Frank-marriage is voyd 73. a Woman dowable of Rent 109. Seisin to make Tenant by the Courtesie 8. and the Wife dowable 93. Service of Parteners where it differeth 49. Statutes concerning Marriage 68. 69. of Gloucester 160. of 32. H. 8. cap. 28. 163. that Stat. expounded 166. 170. 173. of 27. H. 8. cap. 10. 183. Of 11. H. 7. cap. 20. Of 3. H. 7 cap. 1. Of West 2. cap. 12. Of West 1. cap. 14. West 2. cap. 35. Of 6. Rich. 2. cap. 6. Of 31. H. 6. cap. 9. Of 3. H. 7. cap. 2. Tayle speciall 85. Treason 208. Wast 307. Wooing 71. when the gifts shall be restored if the match take not effect 72. Women why in subjection 6. their severall ages 7. when compellable to serve 8. Writs whereby a woman may have her Land 23. of nuper obijt 27. de rationabili parte 30. of partition 33. The end of the TABLE THE WOMANS LAWIER SECT I. ALl Law saith Iustinian in his Imperiall institutions belongeth to persons to things or to actions which division I acknowledge to bee good and so in his method of the Civil Law doth a Doctor and very learned man Conradus Lagus yet the same Lagus saith it is too strait for his purpose and therefore not féeling himselfe at ease in so narrow a distribution to drive the formes of Civill Law to certaine heads according to their materiall varieties hée confesseth hée iâ— compelled to constitute a pluralitie of Law members more then the very Law setteth down as appeareth in the 2. Part of his Method the 2. Chapter yet a curious Caviler I perceive might find in Iustinians partition a very great redâ—â—dance rather then any defect for Res is a transcendente comprehending actions persons and what not And actions in the widest signification séeme alone to bée the theame and right subject matter of Lawes and all Humane Constitutions as for persons they are so many and so differing that I thinke there is no use Custome Injunction or decrée but it appertaineth to some person and that in some peculiarity of difference either in state age sex function profession merit or some other like severall regard so that in mine opinion Law might bée dispersed into apt titles of this personall difference in such sort as both Students might come to the easier knowledge the one of their learning generall and the other of their particular duty I though I bée farre unable to produce a perfect method of the Lawes of England as Lagus following his owne artificial project hath framed an excellent Deliniation of the Lawes of Rome and though I bée unworthy to have the Marshalling of the titles of Lawe to bring all matter cohering under them yet I will make a little assay what I am able to doe if I were put to it in a popular kind of instruction following a frame by distinction of persons chasing the primary distribution of them made before the World was seven daies old Masculum Foeminam fecit eoâ— of which division because the part that wée say hath least judgement and discretion to bée a Law unto it selfe Women onely Women they have nothing to do in constituting Lawes or consenting to them in interpreting of Lawes or in hearing them interpreted at lectures leets or charges and yet they stand strictly tyed to mens establishments little or nothing excused by ignorance mée thinkes it were pitty and impiety any longer to hold from them such Customes Lawes and Statutes as are in a maner proper or principally belonging unto them Laying aside therefore these titles which include onely the masculine as Bishop Abbot Prior Monke Deane and Chapter Viscount Coroner together with those which bée common to both kinds as Hereticke Traitour Homicide Felon Laron Paricide Cutpurse Rogue with Feoffor Feoffée Donor Donée Vendor Vendée Recognisor Recognisée c. I will in this Treaty with as little tediousnesse as I can handle that part of the English Lawe which containeth the immunities advantages interests and duties of women not regarding so much to satisfie the déep learned or searchers for subtility as woman kind to whom I am a thankfull debter by nature SECT II. The Creation of Man and Woman GOd the first day when hée created the World made the matter of it separating light from darkenesse the second day hée placed the Firmament which hée called Heaven betwixt the waters above the Firmament and the waters under the Firmament the third day hée segregated the waters under the Firmament into one place calling the waters Seas and the dry land Earth which hée commanded to bring forth â—ructifying herbes plants and trees the fourth day hée made the Sun the Moone and the Stares in the Firmament to bée for Signes Seasons Daies and Yeres and to give light upon the earth the fift day he made by his Word the Fishes of the Sea Whales and every fethered foule of the ayre commanding them to increase the sixt day he made Cattle créeping things the beasts of the Earth and now having made all things that should be néedfull for them hée created Man Male and Female made he them Bidding them
it selfe should be deliuered to a Lay-man altogether vnlettered which should distribute to euery coheyre her part at aduenture wherwith she should stand contented But this might be otherwise by their agréement amongst themselues to elect according to the prerogatiue of their age Bracton discendeth déeper into examination what things may be parted amongst coheyres exempting neither lands tenements homages villinages seruices seruitudes or anything belonging to lands and tenements from diuision vnlesse it be seriantia quae diuidi non debent ne cogatur-Rex seruitium accipere per particulas or a castle or the head of some Earldome or Barrony quod propter ius gladij diuidinon debet sit illud castrum vel aliud edificium hoc ideo saith he ne sic caput perplures particulas diuidatur plura iura comitatus Baroniarum deueniunt ad per nihilum quod deficiat regnum quod ex comitatibus Baronijs dicitur esse constitutum Therfore Caput comitatus vel Baroniae resteth indiuisible and shall go to the eldest copartner though where there are many chiefe and great Mansion-houses euery one may haue one perhaps and if there be but one euery one may haue part thereof where the frank-tenement is holden by seruice militarie for if a frée soke-man die whose heritage it is ab antiquo partibilis the eldest son by Bracton shall haue his house and the rest shall haue allowance Amongst other things Bracton standeth long vpon the bringing to a common heape which we call Hotchpot Lands giuen in marriage to a coheyre shewing that though lands giuen in marriage whether the Inheritance be discendens or perquisita and whether shee to whom the land is giuen be at the time of the gift a maid or a widow must needs fall into partition when part of the other lands is claimed hoc quamuis homagium interuenerit post tertium haeredem yet for all that she to whom there is giuen in marriage already more then an euen portion may well retaine it and is not compellable to any confusion vnlesse she demand a share in that which remaineth so that she to whom all is giuen may likewise retaine all And where a daughter was infeoffed pro homagio seruitio or where a stranger was infeoffed of part of the inheritance which afterwards married a daughter c. they might be made parcell of the other lands without any Hotch-pott of these things ye may read more in Bract. li. 2. c. 33 and 34 with a Writt of habere facias seisinam for he saith possessio non pertinet ad haeredes nisi naturaliter fuerit apprehensa animo et corpore proprio vel alieno sicut procreatorio prius ad ipsos non pertinebit vnde cum in curia Regis facta fuerit partitio statim habeanâ— breue de seisma sua habenda SECT XX. of Hotch pott according to Littleton FOr putting of lands in Hotch-pot there is no where so full and plaine learning as in M. Littl. third booke c. z. If saith he a man seised in fée-simple lands hauing issue two daughters of which the eldest is married giue parcell of those lands to his daughter and her husband in franke-marriage and die seised of other lands excéeding in value those which are giuen c. the husband and wife shall haue no part of this remnant vnlesse they will put the land giuen vnto them in Hotch-pot for example If the father had 30. acres and gaue 10. now after his decease if the donées refuse to make commixtion the other daughter may enter and occupie the whole 20. and hold it to her selfe But putting all in Hotch-pott to finde the intire value for it is but an estimation or valuation finding the acres to bee of like goodnesse the Donées in franke-marriage shall haue an nâ—reasement of 5. acres to hold all 15. in seueraltie so that alwayes the land giuen in frank marriage must remaine to the donées and their heyres for else saith Littleton should follow a thing vnreasonable and inconuenient which alwayes the Law detesteth there is the same Lawes betwixt the heyres of Donées in frank marriage and the other partners if the Donées themselues die before their ancestor or before partition This putting of Land in hotchpot is where the other lands descend from the Donor onely and not from any other auncestor for if they descend from the father or brother of the donour from the mother of the Donée that which is equallie so discended shall be without Commixtion equally diuided Also by Littleton if the land descended be of equall valew with the land giuen in franke Marriage Hotchpot should be then in vaine and to no purpose and sée Littl. Chapter of parceners more concerning such Hotchpot How partition may be auoyded PArtition made betwixt two Sisters tenants in fée simple they both being of full age is not defesable though there want oweltie and equall valew in their parts But if the land were in fée-taile the parties making the partition should bee bound and concluded onely for their time the issue of her which had the meaner value might enter after her mothers death into her Aunts part and occupie with her in common and she againe with her niece in the part alotted to her Sister If two Coparceners in fée both married together with their husbands make partition it shall stand in force during the coverture but after the death of a husband his wife hauing a meaner part may enter and defeat the partition not so if at the time of the alotment the parts were both of equall annuall valew If two Coparceners whereof the one is vnder 21. yeares age make partition so that a meaner valew is allotted to the puisne partner she may enter and defeat the partition either in her minoritie or when she is of full age but let her take héed when shée commeth once to full age that shée take not the whole profit of that which to her selfe was alotted for that is an agréement to the partition and maketh it indefeasable peraduenture a moietie of the profits she may take Thrée acres of land are giuen to one in taile which hath other thrée in fée and after his death his two daughters make partition so that one hath the land intailed and another the land in fée if shée which hath the fée-simple alien her part and die her issue may enter into the land tailed and hold occupation in Common with her Aunt whose folly was to make such a partition for since shee is without remedie against the alienée of her mother and without recompence for the lands intailed whereunto she is an heyre by descent from the first Donée it is reason she may enter specially considering that the state taile is not discontinued yet 20. Hen. 6. it is holden that she is put to her Formedon A man seised of two carues of land one by iust title another by disseisin of an infant dieth seised hauing issue two daughters they diuide
the 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
such Lease there shall be reserued yearly to the Lessors their heyres and successors to whom the Lands should haue come after the Lessers death if such Lease had not béene made or to whom the reuersion shall appertaine so much or more annuall ferme or rent as hath béene most accustomably yéelded c. within twenty yeares next before such Leases were made And euery person to whom the reuersion shal appertaine after the death of such Lessors or their heyres shal haue such remedies a aduantages to all intents against the Lessées their executors or assignes as the Lessor might haue had So that if the Lessor were seised in in speciall taile c. the issue or heyre of that speciall estate shall haue the reuersion rent and seruices c. Prouiso that the wife bee made party to euery Lease made by her Husband of any Mannors Lands Tenements or Hereditaments being the wiues Inheritance and that euery such Lease be by Indenture in the name of the Husband and the Wife and she to seale the same And that the ferme be reserued to the Husband and wife and to the heyres of the Wife according to her estate of Inheritance And that the Husband shall not in any wise alien discharge grant or giue any the rent or any part therof longer then during Couerture without it be by fine leuied by the Husband and wife but the rent shall remaine descend reuert or come c in such sort and manner as the land should haue done if no such Lease had béene made prouided that this act extend not to giue liberty of taking more fermes c. then before was lawfull c. nor inable Vicar or Parson to make or grant their Lease of Messuages Lands Tenements Tythes c. or Hereditaments belonging to their Church or Uicarage And it is further enacted that all Leases made within thrée yeares before the twelâ—th of Aprill in the 31 yeare of H. 8. made by Indenture sealed by person or persons of full age of whole memory not vnlawfully coacted nor vnder Couert Baron for terme of yeares of any Mannors Lands tenements or Hereditaments whereof the Lessor or Lessors were seiâ—ed in any estate of Inheritance to their onely vse at the time of their Lease-making and whereof the Lessées their executors or assignes at time of this act Making were in possession by vertue of the Lease no cause of re-entry or forfeiture being had or made shall be good and effectuall in law against the Lessors their heyres and successors according to the couenants and agréements specified in the Indenture c. so that there be reserued to the Lessors their heyres successors c. as much yearely rent as was at any time yéelded within 20. yeares before making of any such lease or else the Leases to be of none other effect then they were of before this act And moreouer it is ordained that no fine feoffement act or acts to be made suffered or done by the husband onely of any Mannors Lands c. being the Inheritance or fréehold of the wife during Couerture betweene them shall in any wise be or make any discontinuance or be preiudiciall to the said wife or her heyres or to such as shall claime right title or interest by her death But that shée or her heyres or they to whom such right or title shall appertaine after her decease shall and may lawfully enter into such Mannors Lands c. any such fine feoffement or other act notwithstanding except fines onely leuied by Baron and Feme wherunto the wife is priuie and a partie Prouided that this clause extend not to giue any liberty to any Wife or her heyres to auoid any Lease hereafter to bee made of any her Inheritance by her husband and her selfe for 21. yeares or vnder or for thrée liues at the most whereupon yearely rent shall be reserued vt supra Prouided also that this act extend not to any Lease heretofore made by Ecclesiasticall or other person by Coâ—eâ—t or Common-seale which Lease is made voyd by act of Parliament nor to make good any Lease of any Ecclesiasticall person made by câ—uent seale or otherwise or of any other person attainted of â—reason c. SECT XXIII The Exposition THis Law in the first part is affirmatiue or I may say leasatiue a leasing Law or Statute Tenant in fée-simple iure mero suo nothing restrained by it No more is Tenant iure vxoris but he may make a Lease for yeares to continue till the last hower of Platoes great yeare or till King Arthur come againe for all this Statute for no greater rent then thrée bundle of bulrushes as well as he might before although her land were neuer leased before since Noaâ—s floud and such a Lease shall bind him during Couerture But if the Husband make a Lease by paroll or by poll déede or by Indenture and the wife not partie or if the Land were not informer times demised or if the ancient rent or more be not reserued then as the earth stayeth in the worlds center vpon nothing but Gods prouidence and permission the Demisée leaneth vpon no Statute but hangeth at the wiues courtesie ponderibus librata suis as at Common Law SECT XXIV Law before the Statute HOw that was yée shall perceiue by the cases following If before the Statute of quia emptores tenant in fée iure vxoris infeoffed a stranger expressing no tenure the feoffés was to hold of the Baron by such seruices as he and the Wife held by of the Lord Paramount If the Baron and Feme had ioyned in a Feoffement to hold of the Baron c. th expressed tenure had béene voyd and the Feoffee must haue held of them both by such seruices as they held ouer c. If the Baron in this case had died and the Wife accepted the rent in her viduity this acceptance here barred her for euer from auoyding the Feoffement by Writt of cui in vita If Tenant iure vxoris and his Wife had made a Feoffement to hold of the Wife the Feoffor should haue held of them both and if the Wife had died the Feoffor was to hold of the Baron till the feoffement were auoyded by sur cui vâ—a Par. 126. Againe if before this Statute of 32. H. 8. Tenant in fée iuro vxoris and his wife had ioyned in exchange for other lands in fée and the exchange being executed the Husband had dyed now the Feme by entring in vpon the Land giuen her vpon the exchange should be barred for euer from defeating the exchange But if it had béene made by the Baron alone she might haue defeated it notwithstanding her entrie for that could giue noseisin by force of the exchange to her that was neither partie nor priuie to it Par. fo 8. And if a man seised in right of his Wife c. make a Lease for life rendring rent with a letter of Atturney to his Wife to make liuery the Wife deliuers
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
her Lands aliened by her husband quod vide cui in vita Fitz. 3. Likewise 1. H. 4. fo 1. The Kings writt of Ward against Sybill Belknap is awarded good though it were brought by the King but iudgement was asked of it because Sybill was a Feme Couert iour del briefe purchase and the husband not named whereunto was answered that for offence against the King and his Péeres Belknap was banished to Gascoigne there to remaine till he obtained the Kings Grace c. Iustice Gascoigne by the assent of his fellowes commands the Defendants to answer and she pleads in barre Againe 2. H. 4. fo 7. all the Iustices testifie that the wife of Sir Robert Belknap who was banished sued a writt alone without naming her husband and by their common award it was holden good for that as some said the said Sibyl was the Kings Ferâ—er But howsoeuer it were Markham exclaimes Ecce modo mirum quod foemina fert breue regis Non nominando virum coniunctum robore legis Some say it should be conuictum c. It is like a miracle that a wife should commence any suit without her husband 18. Ed. 4. fo 4. If a feme Couert be impleaded without her husband and outlawed the baron and feme may ioyne in a writt of error to reuerse the outlary for the wife cannot sue without the Husband If a fine be leuied to a feme Couert yet she and her husband must ioyne in the quid juris clamat as the book of 11. H. 4. 7. testifieth If Baron and Feme be beaten c. they must Ioyne in action for battery of the Feme but for his owne stripes the Baron shall bring his owne action by himselfe or else his writt abates for that part 9. Ed. 4. fo 52. Because a feme Couert hath nothing to doe to participate in the suites of her husband nor in the priuiledges of her husband Therefore a suite against the Wife of an atturney shall not be in the Court where hee serueth by bill but by originall writt and none essoine de seruitio Regis or other essoine cast for the Husband shall serue for the wife for if in a praecipe quod reddat against baron feme at the grand Cape the Baron be essoyned de seruitio regis and the wife make default shee shall lose her Land So likewise if the Baron be a seruant of the Chancellor c. no writt of priuiledge shall serue for him and his wife but actions against them both must be sued at the Common Law But a protection cast by the Baron dismisseth the plea sans iour for both because the Feme cannot answer without her husband 35. H. 6. f. 3 4. a feme couert shal not be receiued to disauow the atturney of her husband but he shal make an atturney for them both 33. H. 6. f. 31. And cod â—n fo 43. If the wife will come into the Court offer to plead any other plea then that which her husband hath pleaded or to confesse the action she shal not be receiued to it but the husband may not forcher per essoin And if baron feme wage the law c. If the wife appeare not at the day giuen the baron shall be condemned But a wife shal neuer be receiued to disauow the suite of her husband and her selfe quod vide 39. Assisarum pla 1. a good Case SECT XLIII Of Felonies IN matters criminall and capitall causes a Feme couert shall answere without her husband 15. Ed. 4. fo 1. And note if a Feme Couert steale any thing by cohersion of her Husband this is not felonie in her 27. lib. Assisarum 40. It was found that a woman had stollen bread to the worth of two shillings by compulsion of her husband and awarded that she should goe quite It seemeth to be all one if a woman steale by commandement of her husband quaere If a man and his wife commit felonie ioyntly it séemeth the wife is no felon but it shall be wholly iudged the Husbands fact saith Stamford Seuen men and a woman were arraigned of felonie found guilty and because thâ— woman cryed out she was wife to one of the seuen the Iudges sent to the Bishop to be certified of the Marriage But a woman by her selfe without the priuitie of her husband may commit felonie to become either principall or accessary As if shee steale goods or receiue théeues to her house c. and if the husband so soone as hee perceiue it waiue and forsake their company and his owne house in this case the Womans offence makes not felonie in the baron But if the baron commit felonie his wife not ignorant of it may kéepe his company still notwithstanding and not be deemed accessary for a woman cannot bee accessary to her husband insomuch as shee is forbidden by the Law of God to bewray him note also that a woman cannot be thiefe of her husbands goods if shee take and giue them away the receiuer is no felon Stanford lib. 1. cap. 19. Briton allowes that the wife shall keep her husbands counsell but yet so that if she acquit her selfe per pais del fait consent for felons wiues hee saith haue often held men whiles the husband killed them and in that case it is reason and Law that they hang together fo 47. By Bracton non debet virum accusare vxor nec deâ—egere â—urâ—um suum neque feloniam conâ—enâ—ire tamen non debet nec coâ—diutrix esse sed feloniam nequiâ—iam viri quantum potest impedire And by him if goods stollen be found sub claâ—ibus vxoris she shal be culpable with her husband of his felonie Item si vxor cum viro coniuncta fuerit vel confessa fuerit quod viro consilium vel auxilium praestiterit â—â—nâ—bunâ—â—â— ambo nam licet obedire debeat vxor viro in aâ—â—ocioribuâ— tamen laâ—â—oâ—inijs nec est ei obediendum Poterit vir ligare tenere atque vxor sponte non coacta occidere ita â—eneâ—ur de maleficio vterque libro 3. ca. 32. In the end he sheweth how execution of iudgement shall bee deferred when the woman condemned is with child siue ante delictum conceperiâ— siue post Hee coteth ciuill Law for it But Stanford hath it perfecter If a woman bee arraigned of felonie it is no plea to say she is with child but she must plead to the felonie and if she bee found guilty shee may then claime the benefit of her wombe wherevpon the Marshall or Vicount shall bee commanded to put her in a chamber and cause some women to examine and try her whether she be ensoint de vn infant which if she be not she shall be hanged maintenant And though she be quicke with child yet Iudgement shall not be delayed but onely execution deferred If after such respite when she is once deliuered she become great againe and obiect to prolong her life the
de peccatis for the heire could not be bastardized when the parents both or one of them were dead and therefore not citable to appeare c. And it is holden strongly by Thorpe 39. Edw. 3. and in the Parliament 24. H. 8. see Brooke titulo Bastardie 23. 37. 44. 47. And a diuorce cannot bee had but of a marriage consisting and not yet by death dissolued for there cannot wel be a reuersing of any diuorce when the parties diuorced be dead as Brooke vnderstandeth Connings by 12. H. 7. 22. for saith he it was adiudged in Coâ—bers case where the baron and feme had issue and afterward were diuorced the baron taking another wife by whom he had issue and died that when the first issue sued in spirituall Court to reuerse the diuorce and bastardize the second issue after his fathers death a prohibition lay But it was said that the title and discent were comprised in the libell or else the prohibition could not haue beene granted Thus saith Brooke titulo Deraignment But titulo Bastardy 47. hee setteth downe the same case that a man may be bastardized after the espousals wherein he was begotten and borne or by death determined Sée Sir Edw Cokes 7. report Kennes case that some diuorces dissolue the matrimony scilicet à vinculo matrimonei and bastardize the issue and â—arâ—â— the woman of her Dower and some à mensa Thoro which dissolueth not the marriage nor barre the wife of her Dower nor bastardize the issue And therefore if any action be brought and diuorce pleaded the cause of diuorce ought to bée shewed And there it is said that a diuorce may be repealed in the spirituall Court after the death of the parties but a suit after the death of the parties to diuorce them and to bastardize their issue may not be for that the triall of bastardy or not belongeth to the temporall Court originally if sentence doe not hinder And sée Sir Edw. Cokes Institut ca. Dower f. 33. ca. Estates upon condition fol. 181. the deriuation of the word diuorce à diuertendo or dinoâ—â—â—ndo quia vir diuertitur ab vxore and sée there the seuerall causes of diuorces and how for any of them respectiuely doe extend in power and effect and in Littletons tune many diuorces were of force which the Statute of 32. H. 8 cap. 8. take away and there sée that a man may marry the sister of his first wife since that Statute By Na. br â—â—l 44. in the writ of prohibition and Na. br 1â—9 and Dyer 28. H. â— 1â— agrée if the woman shall haue the goods not spent and that detinue lyes for them If goods be giuen in marriage with a woman shée shall recouer them in the spirituall Court after diuorce and there lyeth no prohibition â—6 Hen. 8. fol. 7. is that if the husband before diuorce had haue giuen or sold without collusion such goods as were the wiues before marriage she is without remedy for them being diuorced But if he aliened them by collusion and bring a writ of detinue for so much of them as the property may bée decerned of and for the residue money and such like shee shall sue in spirituall Court If a man which is bound to a woman by obligation marry her and they be diuorced she hath her action againe which was suspended ibid by Fitzh and Norwich But see the booke of 11. Hen. 7. 4. p Cur. contrary where the diuorce is causa praecontract ' and it is so cited Dyer 4. Mar. fol. 140. If the woman diuorced were an Inheritrix c. and the husband before diuorcement hath done waste felled her woods receiued her rents granted her wards presented to her Churches giuen away her goods none of these things past in possession executed can be reuersed or recalled But if the Inheritance it selfe were discontinued or charged or a release made of it or hir villaines manuâ—â—itted shée shall haue remedy for these things by common Law If baron and feme Iointpurchasers de disseised and the baron release c. the wife shall haue a moiety if they bee diuorced although before there were no moieties betwixt them for the diuorce conuert that into moieties which sée Brooke title Deraignement and diuorce 32. H. 8. In Sir Edward Cokes 5. Rep. in Olands case it was holden that if a Lease bée made to baron and feme during the Couerture and the baron soweth the land and after there is a diuorce causa praecontract the baron shall haâ—e the Corne and not the lessor for although the baron prefecuted the suit yet the sentence which dissolues the marriage is the iudgment-in Law and Iudicium redditur in â—â—ultum And as by diuorce that which was intire may bée conuerted or diuided into moeties so by it inheritance may bee made francktenement And if baron and feme donées in taile haue issue and be diuorced now they haue but francktenement and the issue shall not inherit for it is not like here as where lands are giuen to two men or â—o a man and his mother or to a man and his daughter and to the heires of their bodies where seuerall heires shall seuerally inherit for it was neuer lawfull for them to marry 7. Hen. 4. 16. Brooâ— 9. in titulo Taile sée also 13. Edw. 3. titulo Deraignment If land be giuen to baron and feme in taile which be diuorced causa praecontract c. they shall hold ioyntly for terme of their liues and the land goe to the Suruiuor But by the Reporter if the gift were in franckmarriage the party which did not cause the diuorce shall haue all and agreeing to that difference is Perk. Chap. feoffement Sect. 238. and also agréeing is Sir Edw. Cokes 9. Rep. in Beamonts case 12. Assisar p. 22. Dorees in franckmarriage were diuorced at the womans suit the baron continued possession till he died and afterward the womandied the possession was adiudged to haue remained alwayes to the woman because shee neuer made any debate for it so that the man neuer had it by disseisin and agréeing to that is Plowden Wymbysses case fol. 58. Dyet 3. M. fol. 126. 19. Assisar plac 2. The Doâ—â—e in franckmarriage wedded infra annus nubiâ—es sued diuorce by the barons motiue and the wiues agréement at their full age and the woman recouered all the land against her quondam husband by assise And Titulo Assise in Fitzh pla 413. 44â— is this case A man of certaine tenements infeoffed his feoffor his wife in tayle the remainder to the right heires of the baron they were diuorced at the suit of her husband which kept the woman out of the lands and she brought an Assise whereby she recouered a moyty of the tenemen's by iudgement presently And propter difficultatem it was adiâ—rned for the other mâ—ity to the Commonpleas where shee had â—udgement of that also because diuorce was at the husbands sâ—â—t As a woman may haue an Assise against her
That the Charters ought to concerne the land whereof Dower is demanded and not other lands descended to the heire 2. He that pleads that plea ought to shew the certainty whereof a certaine issue may be ioyned or that they are in a chest or box sealed which import sufficient certainty whereof certaine issue may be taken and in both cases action of detinue may be brought by the heire 3. No stranger although that he bée Tenant of the land and hath the euidences conueyed vnto him may plead in a Writ of Dower deteiner of Charters but that plea is only in prinity for the heire of the husband Also the heire shall be in the degrée of a stranger in fiue cases First if the heire hath the land by purchase Secondly if the heire hath deliâ—eâ—ed the Charters to the wife Thirdly so the heire be not immediate vouchee namely by the Tenant in the Writ of Dower but by his vouchée Fourthly if the heire comes in as vouchée hauing no lands in the County where the land is demanded Fifthly if he comes in as Tenant by receit And Gardian in Chiualry may not plead deteinement of Charters for hée may not conclude his plea if the Demandant will deliuer to him the Charters c. for the Charters which concerne the heritage of the heire shall not be deliuered to the Gardian as it is adiudged in 10. Edw. 3. 49. SECT XI Deteining of the heire AS the heire only may deteine Dower for deteining of euidence so the Gardian in Chiualry onely may deteâ—â—â— Dower for deteining the heire and that he may plead and conclude qÌ„ il ad en touts temps prist for the ward belongeth to him If a widow eloigne the infant or heire of her husband though some other body haue him by her deliuery yet the Gardian in Chiualry may detaine Dower except shee can redeliuer him to the Gardian in as good plight as hée was at the time of the eloigâ—ment that is vnmarried if he were eloigned vnmarried But a woman nourishing her owne Infant the sonne or heire which her husband left her if a stranger clauning as Gardian fake him from her the right Lord shall not detaine dower for this cause But if a woman take and remoue the heire from the place where hee was nourished at time of the Barons death Now if a stranger wrongfully take him from her the true and right Gardian may detaine dower And this matter is pleadable by Gardian in Chiualrie though hée come into Court by reason that the heire is vouched to be in his ward for by right the custodie of the Infant can appertaine to none but to him vnlesse it be by his grant or agréement Certaintie is required in pleading of this detainer aswell as in the other viz. that she which demandeth dower hath eloigned or detained I. S by name son or daughter W. c. 22. H. 6. fol. 16. 2. H. 7. fol. 6. SECT XII Possession in the Demandant 39. Ed. 3. 17. DOwer was demanded a third part of a carue of land the tenant said the demandant her selfe was seised of a third part of it already Iudgement de briefe per Knyuet it was no good plea without shewing who assigned it or that she recouered it For if shee were in by disseisen shee must haue dower of the other two parts remaining neuerthelesse by which the tenant was chased to answer for the two parts 7. oâ— H. 6. 33. 34. In action of dower against tâ—â— one said he had assigned rent out of the land six shillings and eight pence annuall to the demandant for terme of her life which she accepted c. The other pleaded touâ—s tâ—mps prist c. The assignment was holden a good plea c. the demandant said she neuer agreed Now per Strange she was to recouer a moytie maintenant though the other plea were not yet tried for this was a confession of one and pleader in bar of the other 2. H. 4. fol. 7. A Lady sued in Chancerie to be endowed of diuers Mannors which were her husbands where the heire was in gard of the King as was found by the Diem clausit extremum there returned and because it appeared that King Richard had committed wardship of the lands and body of the heire till full age of the said heire to her by patent without foreprise or mention of dower shée was ousted of dower per agard de toutes les Iustices till full age of the heire simile 11. of H. 4. in case of the Lady Arrundell Fitzherbert saith likewise If a woman take a lease for yeares of land whereof she is dowable she shall not sue for Dower during these yeares Nat. br 149. c. Bracton propoundeth to be considered what shall be done when the widdow brings her Writ of Dower vnde nihil habet and yet it is so that she hath part of her Dower already If saith he it be proued or she cannot deny it cadit breue and she shall not recouer the residue but by Writ de recto de dote Therefore let her accept no part of her Dower before she purchase her Writ and let it containe all the Deforcers be they in one Countie or in many When they are so put together if now she accept any thing of her Dower without Iudgement the acceptation of part shall be no exception against her for she may confesse satisfaction for that part If peraduenture shee haue already taken part of her Dower from some one person before the obtaining or purchase of her Writ let his name and the summons for him be in the Writ notwithstanding and then if it be obiected she hath accepted part shee may acknowledge that hee hath satisfied her for his part and whether before or after suit is not greatly to be stood vpon But if he of whom she receiued part be not named in the Writ she cannot against the obiection of acceptance reply that the land which she accepted is not in the same Towne but in another For vnde nihil habet in the Writ non debet referri ad villas sed ad dotem It is nothing worth therefore to say she hath nothing in tali villa if she hath any thing nomine dotis wheresoeuer it be it is not then materiall And when a woman replyeth nihil habet her defence shall not be per legem that is wager of Law but per patriam Likewise if a woman plead that she hath nothing nomine dotis but by some other title as ratione custodiae huiusmodi Inquisition may be in the Countie where it is supposed shee receiued Dower to finde whether shée haue any thing in Dower of the tenements which were her husbands and if shée had and now hath not to enquire what is become of it this was a Norâ—â— case of Holda the late wife of W. in Trinitie Terme 4. H. 4. as Bracton in his fourth Booke 13. Chapter and fol. 312. relates vnto me SECT XIII Ne
seised 20. Hâ—â— â— The Statute oâ— Moâ—â—on cap. 1. ordeineth concernâ—ng widdowes qâ—â— post moâ—tem vâ—â—oâ—â—â— expeâ—luntur de dotibus suis dores sâ—os vel quaâ—â—â—â—enam habere non possâ—nâ—â—iâ—e placito That whosoeuer shall dâ—force them of Dower â—r â—â—arâ—ntino in any tenemâ—nts whereof their husbands dyed seised if they bee conuiâ—ted de iniâ—â—â—o dâ—forciâ—meâ—to they shall râ—nder dammages to the widdowes so much as the Dower should haue bâ—â—ne worth to them from the time of the husbands death till the day where the widdowes recouer seisen of Dower pâ—r â—udicium Curâ—e And the Deâ—orcers shall â—eâ— in â—iseâ—icordia Regâ—s neuer awâ—it the lesse It is plaine now that the Baron dying sâ—ised if the wife be deforced sâ—e shall recouer dammages which are sometime comprised in the iudgement oâ—seisin and sometime awarded 〈◊〉 iudgemâ—nt â—â—â—â—â—uerâ—â—nt or sâ—râ—â—â—se vt sâ—pâ—â— But for all this Statute of Mâ—â—toâ— de iniusâ—â— deforciamento a widdow shall not in all cases recouer dammages by this dying seiâ—â—d for if the Tenant plead touts temps prist c. and it be confessed or found to haue béene so there iâ— now no fault in him â—â—â— Câ—â—yâ— Hill â—â— Hâ—â— 4. fol. 40. 41â— foreuery hâ—â—re hath right to all the parts of hiâ— since storâ— iâ—heritaâ—â—e â—till the widdow will â—â— indowed The case they say obiected viz. that in a Writ of Coâ—sâ—â—â—â—â— touts â—emps prist will not excuse the Tenant of dâ—â—â—ages is no thing â—like for the Oâ—cuâ—iour there hath not iust â—itlâ— c. Doctor and Student tels vs fol. 82. 8â— that though the husband dieth seised if hiâ— widdow â—oth not deâ—â—â—d Dower sâ—â— shall recouer no daâ—â—ages for it is a gâ—â—â— plea in a Writ of Dower â—â—â—â— the Tenants appeare the first day to say touts tempâ— pâ—ist a yeeldâ—â— Dower if it be deâ—â—â—ded and that plea â—â—all â—xcuse him of dâ—mmages but iâ— he had made refusâ—â—â— he shall bée chargeable as well for dammages before the request as after But in Sir Edward Cokes 4. Rep. 30. b. in Shawes Case a woman recouered Dower by plaint in a Court Baron and shee recouered dammages from the death of her husband because he died seised and it doth not appeare that there was any request and refusall I dare not say that it is Idemius whether the heire or his feoffée plead his plea though I cannot findâ— any presâ—â—ent of dammages giuen vpon it being true but often sur plea de touâ—s temps prâ—st the iudgement ended thus niâ—ilde materia quiâ— venit primo edis vide â—â— Ed. 4. fol. 7. I doe referre the Reader for his better instruction touching this matter where hee shall finde variety of store Sir Edward Cokes Comment vpon Litleton fol. â—2 b. The second Chapter of Merton giues power to all widdowes to make wils as well of Corne growing vpon their dowry lands as vpon their inheritance saluis sâ—ruâ—â—s dominorum de â—eodis quae de doâ—ibâ— aliis tenementis suis debentur Britton séemeth to be taken with a Chancâ—â—y spirit vpon â—ight of this Statute cap. 10â— fol. â—â—0 where he saith that in euery iudgement of seisâ—â— awarded of reasonable Dower there ought to be a â—oreprisâ— or exception de bleâ—â— câ—â—ssaunâ—s femes â—auches I will subioyne Bracton as an Adiutor perhaps more orthâ—doâ— Dower saith he lib. 2 cap. 40 shall â—â— assigned by the heire if he â—e of full age or by the Lord in the heires name if he be vnderage And this within forty dayes after the husbands death for otherwise occurâ—iâ— tempus sequantur damna nisi rationâ—bilis causa excuset This assignation must be made of the land as it was by the husband tilled or vntilled with the fruits growing vpon it allowing nothing to the heire or Executor for manuring husbanding or culture of it for of old time it was obserued that in what â—â—sâ— or plight a woman had receiued her Dower whether it â—â—â—â— tilled or vntilled shee must restore in like plight to the heire c. she might not make her Will of any corne groâ—ing or fruit not sâ—parated from the francktenement Sed nouâ— superueniente gratia sicut pâ—â—et de prouisionibus apud Merton A woman may now ordeine her Testament of corne or fruit growing on her dowry or seuered growing all is one If the husband alien all his lands and the Tenants need not yéeld dower to the widdow as soone as shée demandeth it if there bee iust cause of calling to warranty one or more successiuely till the heire bee vouched And all that time the Tenants are not charged with dammages or cosâ—s But when the heire entreth into warranty if he doe not presently yeeld Dower but stand out â—bstinately hee shall pay dammages as much as dower mâ—ght haue béene worth to the woman from the time of the husbands death to the day wherein shee hath iudgement and the heire shall be amercered In like manner is it if a widdow without any assignation enter into her Dower that was certainly nominated to her ad ostium Ecclesiae and which shee findeth empty at her husbands death if she be eiected or put to suit and delayes she shall recouer dammages So shall shee if shee be eiected the tenement assigned for quarentine during the forty dayes or before dower assigned after the forty dayes So likewise is it if shée haue no place at all assigned to dwell in vbi recliâ—et caput suum c. Thus Bracton and thus long wee haue béene in the Writ de dote nihil vnde habet which though it bee aptliest brought in the common place for the reason aboue declared yet it may bee sued in the County before the Sheriffe per Iusticies as saith Fitzherbert in his na bre 148. But then it séemes it must bée remoued by recordari facias if the Tenant plead ne vnque accouple c. so the booke of Entries 223 224. for in the base Court that issue cannot be tryed SECT XVIII The Writ de recto de dote THere is another Writ called the Writ of right of Dower not because the former Writ hath any â—orciousnesse in it or claimeth vpon wrong title but because this second Writ hath fewest ambages in pleading and the forme of it is vpon pure right Britton saith there are cases wherein a woman is driuen to a Writ of right of dower pleadable in Court One is where a woman hath lost seism of her dower as if shee were disseised and after long peacable seism of the desseisor shee reentred with force if the desseisor recouer against her by assise she hath no remedy but onely by Writ de recto de doâ—e counting of her owne seism Aâ—other is where a woman demands lands or tenements which were her husbands as part of her dower when shee is seised of a surplus or greater part already And the third is when shee demands something as appertenant â—â— hâ—r dower Fitzherbeâ—â— séemes not to allow Bractonâ— relation of vnde nihil
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
Ienny Defendant entred in Banco Regis Hillar 2. Iacobi Rot 571 where the Plaintiffe declared that the Defendant in consideration that the Plaintiffe had formerly married his Daughter at his speciall request the Defendant promised the Plaintiffe to pay him euery yéere during the life of the Defendant ten pound c. and as my report saith the Plaintiffe vpon non assumpsit pleaded had verdict and iudgement in the Kings Bench but vpon a writ of error in Exchequer Chamber the Iudgement was reuersed for that the Marriage was executed before the promise made and yet the declaration supposed that the Defendant requested the Plaintiffe to Marriage c. But let me not run so farre from my Tert as neuer to finde the way backe againe A man may sue for Marriage money in his owne name onely and so is it generally where that which is in demand or to be recouered commeth méerely and onely to the Baron Example 43. Ed. 3. fo 8. The Earle of Arundell brought a Writt of Trespasse against one for chasing in a free Chace that he held in right of his Wife and the Writt awarded good though the Wife were not named in it because nothing was to be recouered by damages Likewise is it if the Baron bring a Writt of Trespasse for strayes taken in Lands holden in right of his Wife And eod anno fo 26. for breaking of a house and carrying away of timber the Husband alone shall haue the action because hee may when hee list pull downe a house or sell timber standing vpon his Wiues Inheritance or make a release to any body vpon such manner of trespasse and the Wiues action is gone for euer There is also the same yeare fo 16. another Case wherein because a decies tantum was brought by Baron and Feme the Writt abated for though the first action concerned the Wiues Interest yet nothing is to be recoueredin a decies tantum but damages c. Sée the Booke of 20. H. 6. fo 1. a Writt of maintenance wherein nothing is recouerable but damages was brought by Baron and Feme vpon maintenance in a bill of fresh force against them by the better opinion they might ioyne c. And the Defendant passeth Ouster but not by award 41. Ed. 3. f. 9. a Writ of Champertie brought by the Baron onely vpon an assise which had passed against him and his wife was allowed good notwithstanding exceptions taken of the wiues Interest c. vpon the reasons before expressed And by Finch if a man haue a Ward in right of his Wife Dower shall be demanded against him onely because the gard is a Chattell vested But if a Writt of Wardship be to be brought it shall be against the Baron and feme c. because of voucher And in trespasse if the Plaintiffe recouer against Baron and Feme by false verdict they both must wyne in the attaint for that must be according to the record 46. Ed. 3. fo 20. a man brought a Writt of rauishment de gard declaring vpon a possession iure vxoris and the Writ held good yet in this case there is more then damages to be recouered for the Plaintiffe shall haue the Infant restored by the very words of his Writt But there againe it was agréed that an action to recouer a Ward must be against them both because of voucher though in a writt of Dower it be vt supra because therein there is no voucher c. If Baron and Feme sell the Wiues Inheritance by fine for twenty pound an action of debt for the money shall bee brought by the Baron onely for the grant was onely the Barons grant and if he die the Executors shall haue the action and not the Feme 48. Ed. 3. fo 18. And a repleâ—â—n must bee brought by the Baron onely because a Feme Couert cannot haue a propertie in any goods or Chattels But for such goods as the Wife hath as Executrix it séemeth the Baron and Feme may ioyne in ar pleuen so shall they for goods of the Wife taken dum sola fuit Fitz. in the title reception In trespasse at Common Law or vpon the Statute Anno 5. Rich. 2. the Baron alone shall haue action of trespasse and so likewise for taking away Charters concerning the Wiues inheritance So is it if he alone deliuer such Charters he alone may haue action against the Bayliffe c. But a Writt of Detinue of Charters of the Wiues inheritance must be sued by both c. because the Charters themselues are to be recouered And therefore vpon recouery of them the Baron and Feme must ioyne for recouery A quare impedit was brought 50. of Ed. 3. fo 13. and the Baron declared of an agréement betwixt thrée Sisters to present by turne to a Church whereof they had the Aduousan and this was the turne of his Wife c. The Defendant demands Iudgement of the Writt because the Wife being still aliue was not named but this Writt also was awarded good because nothing was to be recouered here but onely the Presentment and not the Aduousan And if a Writt should be awarded to the Bishop against the Baron the Wife thereby should not be out of possession because she is not partie to the Iudgement besides that she is ayded by West 2. cap. 3. And for a generall rule where the Husbands release is good the action may be brought in his name onely as vpon cutting of trées grasse Corne c. And such actions may be brought in the name both of the Husband and the Wife An assise of â—arraigne presentment is a mixt action and the Aduousan it selfe shall be recouered in it therefore of necessity it must be brought both by Baron and Feme 15. Ed. 4. fo 9. The Baron Seignior in right of his wife ioyned in a writt of rescous and it was argued that he alone ought to haue brought the writt But it was awarded well brought by them both Though per Littleton it were good enough in nosme le Baron tantum And per Pigot when an obligation is made to Baron and Feme the Baron alone may haue the action or they may ioyne â—adem lex in trespasse c. maintenance c. for alwayes where the action may suruiue to the wife the wife may ioyne in the writt They which shall read these two last Cases argued 50. Ed. 3. and 15. Ed. 4 in the yeares at large shall not néed to repent it SECT XLII When a Wife may sue or be sued alone IT is seldome almost neuer that a marryed woman can haue any action to vse her writt onely in her owne name her husband is her sterne her primus motor without whom the cannot doe much at home and lesse abroad But if her Huusband commit felonie take the Church and abiure the Realme she is now in case as a Widdow inabled to make alienation of her owne land as a Feme sole or to bring a cui in vita for