common so in that which followeth they are like jointenants If two sisters enter into their deceased fathers lands and every of them having issue a sonne dieth before partition so that one moitie descendeth to one sonne and one moitie to another which sons enter and occupy the lands in common if they bee now disfeised they shall have but one assise and not severall assises Because although they come in here by divers discents yet still they are partners and that not onely in regard of the seisin possession which their mothers had but rather in respect of the estate which descended to their mothers from the common ancestors the grandfather to whom they are but one heire so that of a disseisin before partition they shal have but one assise SECT XVI Difference of partners from both jointenants and tenants in Common BY Bryan 10. Ed. 4 fo 3. one copartner may in feoffe another copartner for though their possession bee joint yet their right and interest is severed so that if one sister die the other shall claime a moitie by discent from her and not the intire inheritance from the Common auncestors Partners in this therefore are like tenants in Common whose title and right are separated and therefore they may infeoffe one another But it is otherwise with jointenants whose right is intire and goeth with the possession by survivour Againe partners may release the one unto the other and in this they are like jointenants only for if one tenant in Common release to his fellow his moitie passeth not because that hee to whom the release is made hath in the franck tenemeÌ„t of this moitie no possession But partners whose right is from one roote have a more co 〈…〉 ect possession then tenants in common and may release one unto another To conclude this point partners differ from both jointenants and tenants in common in this that partners are and alwaies were compellable to make partition so was neyther of the other two before the Statute 31. H. 8. cap. 1. which ordaineth that jointenants tenants in common of inheritance which in England or Wales in the right of themselves or their wives shal be compellable by writ de participatione to be devised in Chancery to make partition And that after partition they and their heires shall have mutuall aid one of another for the deraigning of a warranty peramount to recover pro rata as is used betwixt partners at the common law Afterward 32. H. 8. cap. 32 it is ordeined that if any have equal estate with others or in common jointly for tearme of life or for yeares or unequal estate with such as have an adhering inheritance they shall likewise be coÌ„pellable to make partition Provided that this shall not bee prejudiciall to any person other then the parties to it their executors or assignes SECT XVII Of the Nuper obiit BVt ere wee goe any further in partition let us sée what actions may lie betwixt partners for their inheritance before they have divided it And first of the Nuper obiit This is a writ and commandement of the King to the sheriffe to summon a coheir to be before the Kings iustices at a day certaine to shew why she or he for it lieth betwixt parcenersin Gavell kind also deforceth the plaintiffe coheire from her reasonable part belonging to her of the inheritance of I. S. their grandfather father uncle brother grandmother aunt sister or cousin as the case requireth whose heires they be qui Nuper obiit ut dicitur This writ lieth for lands holden in fée simple onely betwixt coheires where one or more of them deforceth or holdeth out his or their fellow coheire or coheire c. It must be brought in the name of all those which be deforced though in verity there be but one that sueth And this 1. may haue a writ of summoneas ad sequenduÌ„ against her negligent copartners who if they appeare not the sole plaintiffe shall be receiued to sue for her portion against the deforcer If after the ancestors death a kinsman enter claiming by descent the Nuper obiit lieth not against him but after entry and ouster an assise of novell disseisin or a writ of right for though coheires may haue Amordancester against a stranger yet can they not haue it against one of their owne parenteale priuy in blood and claiming by the same descent and where a writ of right sometimes is betwéene sisters as where one is infeoffed by déed and another claimeth by discent battaile lieth not nor the grand assise but an inquest in licu thereof Thus far V. N. B. The New Na. Bre. not disagréeing saith further That if one sister deforce another of the land whereof her ancestor died seised in estate of fée taile the remedy must bee by forme done and not by Nuper obiit a Nuper obiit may bée brought of the seisin of the aile besaile or the tresaile and if it be brought of the seisin of the grandfather Darreigne seisin in the father is no good plea without shewing that hée died seised This writ may be brought by the aunt against her sister and niece or by the aunt and niece against another sister niece or by one sister against another that is but of the halfe blood But if the father giue part of his land in francke mariage to one daughter and dye seized c. the donée in francke mariage shall not haue a Nuper obiit against her sister for her part in residue of her fathers fée simple laÌ„d unles she put her land in hotch pot which was given in francke mariage A nuper obiit must be brought by a coheire deforced against all the other coparceners though some of them haue nothing to doe in the demand A villein and his wife shal not haue a Nuper obiit against the coparceners of his wife for hee is not infranchised by marriage with one of those seignioresses to whom hee was bound If a coparcener be deforced by a coparcener and by astranger the deforced may haue a Nuper obiit against her coparcener and iointenancie abateth not the writ no more shall non-tenure of parcell of the thing demanded by rule of the register If two coparceners enter after the ancestors death and deforcing a third parcener doe afterward make partition and then one of them alieneth her portion in fée the deforced partner may by a Nuper obiit against her two coheires notwithstanding the alination recouer a third part of that which is not aliened and a third part of that which is aliened by a mortdancester or writ of Aile as the case lieth and in her owne name and in the name of her two coparceners against the alienâ—â— If one coparcener infeoffe a stranger in fee and take backe an estate in fee or for life it seemeth a Nuper obiit is maintenable still against her so long as she disclaime not in the blood c. But 21. Ed. 3. and
the woman they shal remaine ioyn-tenants of the Franke Tenement and the Inheritance is gone Tailâ— 9. But per Dyer fo 147. and 12. assi p. 22. and 19. assi p. 2. If Tenants in Franke Marriage be diuorced the Woman shall haue all the Land for the Land was giuen for the womans sake and for her aduancement and by Iohn Bracton her husband hath no more in it but Custodiam as he is the wiues tutor and Guardian By the same reason therefore that the wife shall haue the land if she be diuorced by the same I should thinke she should haue it if her Sponsus refuse to marry her But where I giue Land to one to marry my Daughter or if hee marry my Daughter there if hee marry another woman I may enter SECT XXXVI The word Franke Marriage maketh Inheritance IF a man giue lands with his Sister to I. S. in Franke Marriage habendum â—is haeredibus suis in perpetuum By Kniueâ— Mowbray and Finchden 45. Ed. 3. fo 19. this maketh neither Frank Marriage nor estate taile with an expectance of fée as in Case where Lands are giuen expresly in taile habendum eis haeredibus but the fee-simple passeth presently by the gift for Frank Marriage must be holden of the Donor which here hath nothing left in him but all is holden of the Lord Parainount and the words doe not make any other estate taile yet 13. Ed. 1. lands were giuen to one with the Cousin of the Donor in Franke Marriage habendum eis haeredibus and it was taken for good Frank Marriage This saith Brooke was in the yeare that estates taile were made in But for all that if yee look the case in Fitzherbert Formedone 63. whither Brooke sendeth you you shall perceiue that at the time of the gift it was Franke Marriage in fée-simple for by those dayes the Donee had potestatem alienandi post prolem suscitatâ—m But in a gift made after the Statute of quia emptoreâ— on such a fashion I take it the Law will be as before in the case 45. Ed. 3. According as it was also holden in the yeares of H. 8. that if a gift bee made in Franke Marriage the remainder to I. S. in fée this is no good Franke Marriage for warrantie and acquitall that are incident c. bee only in regard of the reuersion to the Donor and they cannot be had when the fée-simple is presently conueyed to a stranger SECT XXXVIII The Accompt of the Degrees LIttl accounts the Degrees from the Donor to the Donees the first Degrée from the Donées to their Issue the second from the Donées Issue to his Issue the third c. and the Issue in the fift Degrée shall doe seruice And this saith he because the Issue of the Donor and the Issue of the Donée after the fourth Degrée past may inter-marrie by holy Churches Law Bracton accompts thus donatarius facit primum gradum haeres suus facit secundum haeres haeredis facit tertium haeres secundi haeredis facit quartum qui tenebitur ad seruitium yea hee maketh it an expresse rule that onely the Donée and two heyres succéeding lineally shall enioy the immunitie of being acquitted And hee seemeth to vnderstand no other reason of the acquitall so long but onely an abstenancie from homage lest the taking of it should hinder a reuerting if it betided the Donée or the Issue to die without Issue Fitzherbert titulo droit 55. and 60. citeth 6 H. 3. and 15. H. 3. in warrant of Bractons Computation which I thinke he fetched not any further then out of the Author himselfe in whom fo 21. I find it And fo 22. hee answereth a doubt of his owne asking that is Whether all other seruice shall follow and continue if homage be done ante terâ—ium haeredem wherein he concludeth that the seruice euer followeth homage quamuis ad damnum soluentium And I conclude whether it be the third heyre or the fourth that shall doe seruice he may still vouch haue a Writ of me ne as if the fourth Degrée were not past and if he bring a Formedone the Writt shall be Dedit in liberum Maritagium SECT XXXIX A Woman giues Lands to one to marry her AS Franke Marriage maketh Inheritance without the words Heyres and is alwayes made to a woman and for her sake so there is another Donatio propâ—er nuptias that is conditionall without words of Condition made euer by a woman to a man That is where a woman giues Land to a man in fee-simple or for tearme of his life to the intent that hee marry her who if hee afterwards when hee is thereto within conuenient time required refuse c. there is now an ordinary Writt for remedy granted in this case to reduce the Land which Writt may be sued in the per cui or post after one or more alienations either by the woman sole or by her and her husband married against such a one as should haue married her after the refusall or after her death by her Heyre whether it bee Sonne or Daughter or Daughters with the child of another and there needs no scripture or writing to proue that the feoffement was for intent of Marriage nay if a woman infeoffe a stranger to the intent to infeoffe her and one which she intendeth to marrie if now the espousals take not effect she may haue Writt causa Matrimonij prelocuti against the stranger though the déed of feoffement were simple and sans Condition an 34. Ed. 3. li. assi and 40. Ed. 3. li. assi a woman enfeoffed one which had a wife and entred for non-performance of the Condition heritance of woman and in this part because it resembleth the Donations that are propter nuptias the Doctrine of it being something like that of Dower SECT XLI Marriage THis Courtesie is in the Inheritance of a Wife therefore a consequent of lawfull Marriage and exceptions of Concubinage or such like which are impediments of Dower must needs be good exceptions here SECT XLII Seisin THere must be in the wife a seisin and possession for if she were but heyre in appearance die before her Ancestor this auaileth her husband nothing Similie If the Father being seised of Lands dye and soone after his Daughter and Heyre dyeth before actuall seisin had by entrie either by the husband wife or other person for them so that no possession and a naked possession in law here is all one yea the law is taken that if a man dwell in Essex with his wife and lands descend to her in Yorkeshire if she die the next day after before entrie the husband shall not bee Tenant by the Courtesie for euen in this case is found a default in him that he did not constitute one to make entrie for him maintenant after the Auncestors death yet if rent descend to a woman Couert c. which dieth before day of payment or after the day and no
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
matter but the other conclusion puts it to the Law and Courts consideration Yee sée now of what possession of Law a woman is dowable per Brian 4. H. 7. â—o 17. if the Kings ward die vnder age and the neâ—t heyre being married die before â—â—uâ—nâ—runt sued his wife shall not haue Dower But by Dâ—uers and Hussey if the Kings Tenants Heyre haue a wife and after office found the Heyre doth not enter but dieth the wife shall be endowed of the possession in Law before office for the Statute of prerogatiue cap. 13 is intended onely where the Heyre taketh a wife after office and intrudeth SECT LIX There must be in the Husband an Inheritance not cut from the Franke Tenant A Woman shalll haue no Dower in Lands whereof the Frankement and Inheritance was neuer conioyned in her husband during Couerture therefore where the Husband had but a reuersion after estate for life the wife is not dowable vnder this rule commeth one other dos de dote peti non debet And if a man seised c. take a wife and alien with warrantie and then both the feoffor and feoffée die if the wife of the feoffée bring a Writt of Dower against the heyre of the feoffor which voucheth to warrant the heyre of the feoffor and hanging the voucher the wife of the feoffée demands Dower against the heyre of the feoffée if shée bring her Writt not for a third of two paâ—ts but for a third of all that whereof her husband dyes seised she shall not haâ—e iudgement fill the first plea be determined Littleton If there be father and sonne both married and the Father seised of one acre c. dieth and the sonne entreth and dieth if now the sonnes sonne enter and endow his Grandmother which dieth his mother is not Dowable of that which the Grandmother held in Dower for of that his Father had no more in méere right but a reuersion vpon or after a Franke tenement and the Grandmother endowed was in of her Husbands possession yet if the father had in his life time iâ—feoffed the Sonne c. the sonnes wife might well haue Dower after the Grandmothers death of that very Land which the Grandmother held And if the sonnes sonne voluntarily or compulsarily â—â— Writ of Dower had endowed his mother against whom the Grandmother had then receiued her Dower and died after execution the mother might well haue entred into the land which the ailesse recouered against her Parkins 63. The Franke tenement and Inheritance may be both in a sort in the Husband and yet not sufficiently knit and vnited together to giue Dower for example the Lands bee giuen to two and to the heyres of the body of one of them if hee which hath the inheritance die first his Wife is not dowable no not after the death of the suruiuor for the state taile was not executed in her husband to all intents though the Issue in a Formedone against an abater might alleage seisin and esplees as we call them in his father Likewise if by fine sur graunt render estate be made to a husband for terme of life the remainder to I. S. his sonne in taile the reuersion to the right heyrâ—s of the husband and the fine is executed if now the Baron die liuing I. S. or any of his Issue the wife of the Cognusée is not dowable But if a Lease be made for yeares the remainder to I. S for life the remainder to his right heyres c. the wife of I. S. shall haue Dower of this estate though erecution of Dower cannot be â—asting the terme And if a Lease be to the Husband for life with a remainder to a stranger for â—eares the remainder to the Husband in â—ée the inheritance and Franke Tenement are sufficiently connexed to giue the wife Dower bâ—t execution shall cease during the terme for when an estate for yeares is more ancient or as ancient as the Inheritance which the Husband had during Couerture there the execution of Dower to the Wife must néeds tarrie the termes expiration And so it is if a man grant me a rent in fée by Indenture with Condition that the rent shall cease during the non-age of mine heyres my Wife shall not bee endowed during mine heyres minoritie What if a man that is seised in Fée-simple make a lease for life rendring rent c. and then taking a Wife he dieth the heyre shall haue this rent incident to the reuersion and it shall be aâ—ets to him in a Formedone in Descender but the wife gets here no Dower aâ—d saith Parkins a woman shall not be endowed of a rent reserued by her Husband to himselfe and his Heyres vpon a Lease for yeares 1. Ed. 6. titulo Dower in Brooke accordeth If the Law be so Dower hath lesse fauour in this case then the estate per Courâ—â—siâ— d'Angleterre But Cléere if a man take a wife first lease his Lands for yeares or for life and die now the Wife may recouer Dower of the Land it selfe and by Breton if the woman recouer the third part of Lands leased for yeares de office de iustice il serra a gard que el tertiâ— remnant les deux parties que demorent de terre iesques aâ—â—nt que il eâ—t receiue al value de le tierrâ— partie que il auera perduâ— c. But if she recouer all the Land leased from the termer he shall haue recouerie per plâ—â— de garranti either of such other Lands as the Lessor had or if he had no other of the Lands seised when the widdow is dead by sâ—irâ— facias out of the Court where the Iudgement was inrolled Note That though the Law be as is abouesaid where Lands are giuen to two and to the Heyres of one of them yet if the Husband purchase to himselfe and his wife and to the heyres of the Husband the wife may relinquish the purchase and disagree by bringing her Writ of Dower Like Law séemeth to be where the purchase is to the Baron and feme during the life of the Baron the remainder to his right heyres SECT LX. Of what things Dower is granted LIttletons ground is of Lands or tenements But a woman is Dowable also of all manner of rents which are rents of Inheritance Also of Offices as for example of a Bayly-wicke in fée a woman may haue the third part of the profit in Dower and be contributary to the charge Also at this day where the Baron hath but an vse in fée-simple or fée-taile generall vnlesse it be in case where the Husband may and doth disagrée the wife shall haue Dower and if a bargaine and sale be made of Lands to the Husband which dieth before inrolement the wife notwithstanding shall haue Dower and by the inrolement einsement it shall be indefeisable against the Vendor and the Heyre of the Vendée Also a woman is Dowable of Villaines regardant to a Mannor and if a villanie in gros a
woman may haue Dower by taking his seruice euery third day and if a mill by taking the third part of the profit and shee shall grinde tole-frée and if a House a woman is Dowable by a Chamber or rent assigned out of the house Note that if such a rent be assigned out of the Land wherein Dower is claimed the woman may haue Assise without Déed contra if it be assigned out of other Land 33. H. 6. fo 2. Also a woman may hold an Aduousan appendent in Dower of the third part of an Aduousan in gros by presenting at euery third auoydance or the third part of the moitie of an Aduousan by presenting at euery sixt auoydance And of a Common in grâ—s which is certaine a woman is Dowable Likewise if any grant to I. S. that hee and his heyres shall take yearely in his Meadow thrée load of Hay c. For Common appendant Parkins saith If a woman accept two acres parcell of a Mannor in allowance of Dower she shall haue no Common appendant aliter if a moitie bee assigned her Eâ— 5. lacobile Countelle of Oxfords case cited in Harpers case Coke 11. Rep. fo 256. Dower shall be of prediall Tythes c. SECT LXI Of what things Dower is not granted OF naked seruices as homage and fealtie there is none endowment nor of a bare annuity granted in fée nor of things vncertaine as of Common without number And if it be granted to I. S. that hee and his heyres shall take so many Estouers in Methold wood as they will burne in c. this will yéeld no Dower no more then a License or grant de coylor bois in auter bois By the old writers if in the first establishment of Dower speciall mention be not made or Aduousons or third presentments the wife cannot haue Dower of any Aduouson pur ceo que aduouson dâ—â—sgly sevest mi departible But when a Mannor with the appurtenances is ordained for Dower if an Aduouson be appendant to the Mannor and the Church become voide after the Husbands death the Wife may present Also by them a woman cannot challenge a Castle chiefe Mease or head of any Baronie or Countie or any thing within the close or Circuit of the chiefe Mease to be assigned her in Dower But for her habitation she may choose aliquod honestum Messuagium de villenagijs that is some bond Tenements within the Mannor-house And where there is none such to choose shee shall haue one clapped vp for her in aliqua platea competenti de commum bosco as long and broad as the third part of her husbands chiefe house A cottage of clay and splints set close in a corner of a cold Common which is but a rewmaticke Lodge to welcome Suitors to But how if the Common and all things bee so inclosed that there is not roome to swing a Cat in women are not put in Rogum with their Husbands any where but in the Indies and I thinke that custome is left there also by this time If there be neither base tenement nor wood nor ground wherewith whereon to build a Widowes habitacle she may bee endowed for necessity of the principall Messuage and without necessity alwayes if the heyre be so contented The reasons which Breton and Bracton doe expresly alleadge for nicenesse of Law making dainty in their time to endow Widdowes in Aduousons and great Messuages is onely the indiuiduity or impartablenes of the things Of an Aduouson because it is but ius quoddam and not corporall and great houses c. for the dignity and strength which the Realme was thought to haue by their conseruation But considering that the end of Dower is chiefly the maintenance of a Wife Si vir premoriatur it may further bee colourably said that Law at first did neuer meane to trouble Widdowes with presenting of Clarkes for that either is not or ought not to bee a matter lucratiue or of gaine though indeede Bracton prize a Benefice of an hundred Markes at one hundred Shillings valew SECT LXII Of what estate of Inheritance the Husband must bee seised THe Learning here is not discrepant from that which went before in title of Courtesie Of fée or fée-taile generall a Woman shall haue Dower so shall she of fée-farme or of a base fée-simple but not of Coppy-hold vnlesse the Custome serue for it And if Tenant for life make a feoffement in fée the wife can haue no Dower 3. H. 4. fo 6. The which Littl. inserteth in this Chapter of Dower viz. where the Husband is seised as heyre of speciall taile c. is no interdiction of Dower in all cases to her which is married to the Donée of speciall taile Littletons own example is That if Lands be giuen to a man and the heyres which he shall ingender of his wife Alice if he dies Alice shall be endowed of this estate for no Issue of a second wife could be heyre of speciall taile and that makes the difference The case 41. E. 3 fo 30. is this A man seised in generall taile by fine made a feoffement and tooke backe an estate in speciall Taile to himselfe and his first Wife and died the King seise by Tenure in capite and endowed the second wife the Issue of the first Wife came shewing the speciall taile and by scire facias against the Wife recouered for default she tooke a second Husband who with his wife brought a quod ei deforceat against the Heyre and hee pleaded the speciall taile the woman by remitting the heyre to the ancient taile would haue concluded him to say that her husband was seised of any other estate Et non allocatur Parkins makes this case somewhat more austere against Dower for as he putteth it fo 60. the Issue is sonne to the Woman which claimeth Dower yet the mother by him not Dowable because the sonne though hee be Heyre is in of another estate then that which was in the Baron during Couerture so likewise 44. Ed. 3. fo 26. in a Writ of Dower against the Heyre Tenant hee sheweth that the band was giuen by fine to his father and mother in speciall taile and that afterwards his father mother discontinued the taile by fine to a stranger and taking backe an estate in generall taile they had Issue this heyre then his mother dyed and the father taking the demandant to wife he died so the sonne was now in per lun taile per lauter and being adiudged in his eigne right by remitter the wife was barred of dower this Case in my conceit fringeth the generality of Littletons rule for the Issue which by possibility the second wife might haue had might by possibility haue inherited though not indefeisably in such estate as was in the Husband during Couerture To conclude where Lands are giuen to the Baron and feme in speciall taile the remainder to the Heyres of the body of the Baron and the Wife dies without Issue there a
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
hath not the force of a negatiue implying in nul auter manner then is therein described Amy is therefore a ioynt purchaser with her husband in estate for life and not in or by descent of estate taâ—â—e Now to say that her right and estate should change by silent operation of the Law after shee was repossessed that cannot be for the whole entry is tolled and if she be not remitted by her first possession and reprisall she is neuer remitted If a Disseisour make feoffement to the vse of the Disfeisée and after the Disseisor enter he shall be remitted but before his entry he shall not be remitted for he shall be adiudged in possession by vertue of the Statute but so soone as hee entreth he is remitted for his entry was neuer tolled But Amy Townesends entry was cleane taken away by the discontinuance c. further if she should be remitted by the Statute of 27. the remainders should be all destroyed contrary to the text of the same Statute And to the inconueâ—iencie alleadged if she shall not be remitted shee shall hold incombred with the charges of her Husband that is none at all for Amy after her husbands death might haue disagréed and relinquished the vse with possession annexed to it by bringing a cui in vita against him next in remainder for in him by such disagréement or vser of action had the remainder vested as though the woman had beene a Monke or dead person in Law or neuer named in the limitation If the vse had béene to Amy Townsend in fée she might haue brought her cui in vita against the Feoffor or his heyre by which they shall be Tenants to her action and so might the inâ—umbrance haue béene auoyded for when a feoffement is to the vse of one which refuseth the vse it shall be in effect as if the vse had beene limited to Paules stéeple or to Charing-Crosse all falling or reflecting because the Feoffor hath no recompence or consideration to his vse and hee shall be Tenant to euery Precipe It was further agreed that as the Cause fell out Amy Townesend could not be remitted though her possession had returned by refeoffemeÌ„t at the Common Law because Sir Roger Townesend her Husband outliued her for 21. Ed. 3. the Case is Baron made a Feoffement the Feoffée â—einfeoffe the Baron and Feme and heyres of the wife she woman dyed the Heyre entred the Baron brought an Assise which was iudged maintainable for whilest the Baron liued he was tenant to the heyres action And the thâ— Iudgement was that Amy Townsend was neuer remitted the reason was indéed because there is nothing in the Statute of 27. to make a remitter for the clause of sauing of Drâ—its Titles and Actions is of such right c. as was before the Statute and not of any right title or action risen since or after it Now note that as a Lease made for twenty yeares by Baron and feme Tenants for life binds not any remainder by the Statute which speaketh onely that Leases made by Tenants of Inheritance shall binde heyres and Successors so I would inferre that if the Leassors inheritance be determined whether it were iure vxoris in taile or otherwise in taile the remainder must be frée from the Statute But note that the point which made me choose this case for illustration of the Statute is this Amy Townesend was iudged not remitted because she had no title of entry but onely by the 27 c. of vses and therefore she must néeds claime her possession according to the vse But put Case the Feoffement had béene since the Statute of 32 the Law would then haue iudged a remitter for by Littleton where any persons entry is congeable which taketh estate for life or in fée it is a remitter if the reprisall be not by Indenture or record or some matter of estoppell for alwayes where there is a double right or title the Law must iudge for the best as well in the entry as in the possession and an Indenture made by Baron and Feme is none estoppell to the Wife by the Common Law Concerning the Case 21. Ed. 3. Wilby which gaue iudgement thought the Barons aduantage a hinderance to the Remitter yet if he died the wife should be remitted But if you looke Brooke remitter 21. and 41. ye shall finde that the Feme was maintenant remitted though to saue the husbands aduantage of warranty they would not so iudge it quod mirum saith Brooke and quaere quia contrarium a ceo iour SECT XXVII Whether acceptance or taciturnity may not take away an entry at this day NO fine feoffement or other act done by the husband onely shall make any discontinuance or be preiudiciall to the wife but that she may enter c. what if Baron and Feme make a feoffement or Lease for life by solemne Indentures with Liuery and seisin cleere this takes not away at this day the wiues entry after Couerture ended But admit when shee is a widdow shee refuseth to enter and accept payment of rent or performance of couenants is not now both her entry and her action gone also euen as in case of an Infant which makes such a feoffement or Lease and accepts the rent when he is of full age The question must be answered out of the Statute and in mine opinion there is nothing in it to ayde a woman after such ratification by acceptance volenti non fit iniuria nec inuitis confirmantur beneficia A Lease by Baron Feme per Indenture is not voyd presently by the Barons death But whereas before she was driuen to suit and action shee may now enter by the Statute yet it compels her not to enter neither caâ—teth any frée-hold vpon her In like manner if the Baron alone alien his Wiues Land by fine with proclamation the Wife may enter by force of this Statute but per opinionem totius curiae Ed. 6. Dyer fo 72. If she suffer fiue yeares to passe and expire without entry or vser of action she and her heyres shall be barred for euer for this Statute of 32. though it limit no time for the womans entry yet it speaketh nothing of fines with proclamation and therefore it takes not the generall Law made 4. Hen. 7. cap. 24. of fines with proclamation And sée Sir Ed. Cokes 8. Rep. fo 72. in Grenlies case SECT XXVIII Of Fines SEe further the case 18. Eliz. Dyer 351. Land holden in socage was giuen to a man and his wife in taile the remainder in sée to the Barons right heyres the Baron alone leuied a fine with proclamation to his owne vse and afterward by his last will and Testament in writing deuised the Land to his wife for life the remainder ouer to a Stranger vpon condition to pay certaine rent annually out of the land with Clause of distresse c. the Baron died the wife entering and claiming estate onely for life paid rent
according to the will and died Now the question is whâ— the Issue in taile or Deuisée of the remainder should haue this Land Et per iudicium curiae Partly because his mother had waued the estate taile and although shee had not done so yet because he could not conuey his title and discent but aswell as heyre to his father as to his mother the fine with proclamations leuied onely by his father barres him So farre goeth the Booke And you may obserue that it barres the wife if she will See also 5. Eliz. 224 in Dyer the husband leuied a fine with proclamations of his owne land and after fiue yeares died his widdow continuing sole of full age whole memory out of prison within compasse of the foure Seas and doth not make any demand or claime of dower within 5. yeers after her husbands death quaere if he which pleadeth in barre of Dower ought expresly to auerre this The question was if she were barred of Dower Dyer telleth vs termino Hillarij 4. H. 8. rotulo 344. such a barre pleaded was admitted good for the ground of Dower was the Husbands seisin and the action giuen by his death So that it is within the second sauing of 4. H 7. which preserueth to all which are not parties pursuit of right growne after the fine by or vpon cause before the fine so that they take it within fiue yeares In Plowden fo 373. Iustice Dyer arguing Stowell and the Lord Zouches case affirmes the learning which I haue recited out of his owne booke But Plowden inserts his note that he takes the Law to be otherwise and that a woman is bound to no time of her Dower after such a fine for saith he the ayme of 4. H. 7. as against future droicts is wholly against such rights as either suffered wrong before the fine or by the fine and in this case of Dower the title is all after the fine and standeth well in accord with it not touched by the Statute the woman therefore may demand when she listeth So if there be a cessor begun a yeare before a fine with proclamations continued a yeare after the Lord is not restreyned at the end of 5. or 15. yeares to bring a cessauir so he saith likewise if a morgage be disseised a fine lenied by the Disseisor with Proclamations passed yet the morgager paying his mony to the Morgagee may at any time within 5. years or more after the payment re-enter When Giants fight Pigmées may not part them but howsoeuer some incertainty arise in euery corner of the Law this is here certaine that a fine leuied by the husband onely of his owne land tolleth not the wiues action of Dower if she come in time And a fine so leuied by him of the wiues Land taketh not away her seasonable entry but the gulfe that swalled vp entrie action right and all possibility of reducement by Law is a fine lawfully leuied by baron and feme where forsooth because a woman is examined by a Iustice or one that hath a Dedimus potestatem c. and acknowledgeth her frée consent and agréement what cannot men get wiues to doe if they list she shall be barred and for euer excluded of a great many acres of ground for a few kisses and a gay gowne That is a fine finem litibus imponens for till it be done and dispatcht the poore woman can haue no quiet her husband keepes such a iawling SECT XXIX Of common recoueries AS for trickes of Common recoueries I perceiue not how that can be greatly preiudiciall to women for first if a man will suffer a faigned recouery of his owne Land to defeate his wiues Dower she may falsiâ—â—e it c. sée the Eiectione firmae per Eare against Snow Plowd fo 515. the baron there being tenant in taile his wife hauing nothing in the Land he and his wife suffered a common recouery with voucher to his owne vse c. the opinion of all the Iustices was that though the woman suruiued yet the estate taile shal be barred for it was found precisely by verdict that the wife had no interest in the Inheritance The baron therefore which alone lost estato taile by the recouery might recouer alone estate taile in value But as for the wife no man can say what estate shee had nor whether she should haue a quod ei deforceat or a Writt of right if she had lost the land by default So likewise hauing lost by the recouery nothing or no man can tell what her recompence in value must be She was named said the Iustices vpon intent to barre her of Dower and such is the meaning of husbaÌ„ds which wil haue their wiues named in such recoueries but cleere the estate taile is barred if in this case the wife might sue execution in value against the vouchée by estoppell yet the issue in taile should not be concluded by the act of his Father but he might oust her of that which she had so recouered in value c. see Sir E. Cokes 10. Rep. 43. a. in Mary Portingtons ca. that the vsage hath béen alwayes vpon common recoueries against Baron and Feme to examine the wife and to grant a dedimus potestatem to take vpon her examination her Conusance as in case of a Fine But let the case be Tenant iure vxoris is agréed with Iohn a Stile to suffer a recouery of his wiues Lands to certaine vses comprised in Indentures betwixt them two a Writ of entry in the post is brought against the Baron and Feme which appeare in person or by Atturney calling to warranty the common vouchée a man well worth a couple of new rosted egges which re-enters into warrantie Then after declaration and imparlance at the day of the appearance shall the demandant recouer against Baron and Feme and they in right of the Wife shall recouer against the Vouchee of such lands as he hath or is like to haue when time hath a hairy crowne shall this recouery or possibility of vnlikely recouery in value binde the wife when the Baron is dead whether she will or no by Brooks nouell cases 23. H. 8. pl. 37. it séemes that such a recouery did then bind the wife to but without examination mee thinks it should not bind the wife The Statute of 32. is that none Act of the Barons shall make discontinuance c. except onely a Fine by Baron and Feme Ergo such a recouery notwithstanding though it be executed the wife may enter See 23. Eliz. cap. 3. and there is a sauing to euery Feme couert or her heyres her Writt of error to be sued within 7. yeares after she become sole for reuersing of Fines and recoueries past if they must be reuersed by error it séemes without error they were very dangerous For a rule to conclude withall take this That wheresoeuer the Baron doth any thing out of Court which thing he and his Wife were compellable to doe it
vita If the assignment of this Dower be sans fait it is no barre or conÌ„clusiou but a Remitter otherwise if it be by Deed or Record If a man giue lands to a woman to marrie with him and after espousals he alieneth the same land and dieth she may haue a Cui in vita And note that the gift or demise alleaged in a Cui in vita is trauersable Thus much Fitzherbert 48. Ed. 3. 8. In a Cui in vita claiming to hold sibi 〈…〉 de corpore without shewing of whose donation the 〈◊〉 pleaded to the Writ and it was abated But in a Quod â—â— de 〈…〉 the Demandant needs not shew by whoâ—e gift she claimeth 49. Ed. 3. fol. â—9 The Writ was Qua 〈…〉 sib 〈…〉 W. N. The tenant said she neuer had any â—â—ing of the gift of W. N. per Belknap the answer was not good for were the gift from one or other if the husband aliened she might haue the action and the Writ may be Quâ—m elamaâ— vt ius haereâ—â—aâ—em though she purchased the lands adiorâ—atâ—r The latter point is affirmed 7. H. 4. fol 5 per Littleton accorded but for the first vide 50. Ed. â— fol. 6. in a Cui in viâ—a quam clâ—mat â—enerâ—â—x dimissione per termino viâ—ae â— N. it was admitted vpon argument a good answer per â— uâ—iam for where one maketh title it â—ught to be true And there finde sur release made to Baron and Fâ—me and to the herres of the baron by I. N. was holden no demise for it must be supposed the baron and feme were in possession tempore finis And Persy said it had béene adiudged if a woman claimed in her Writ ad termiâ—um vitae if it were found she had estate taile the Writ should abate So likewise if a woman claime by lease for terme of life per A. and it was sound that A. made no lease shée had now no estate and consequently hath none action Likewise said Kirton if in Assâ—ze of nouell disseism the plaintiffe make his title by fâ—offâ—â—nt of A. and is found that A. infâ—offed him not but B. did hée shall bee barred in the Assize for where a man maketh his title vpon a point which is boâ—nd against him it cannot be intenâ—â—â— that he hath a better title and there he shall not haue aduantage of any other 39. H. 6. fol. 38. In a Cui in vita quod clamat esse ius suâ—â—â— ex dâ—no I. which infeoffed tâ—â— Demandant and her fate husband with declaration that they were seised as of Franktenement and lâ—e les explees as teâ—ants for life c. Priâ—oâ— said That in cases speciall this Writ ought to make mention of whose gift lease or demise the Demandant claimeth as Ad â—erminum vitae ex dono I. S. or Sibi haeredibus ex dono I. S. But in demand of Fée â—â—â—nple it is enough to say Qâ—â—m â—lâ—mâ—t vt â—us haeâ—â—ditatem without shewing by whose gift or feâ—ffment 7. H. 7. fol. 2. If this Writ â—e againsâ—â—aron and feme for lands holden in the wiues right it must bee in quod vxor ingressa est per I. N. non quod vir vâ—or ingressi sunt per I. N. Sâ—CT XXIV west 2. Case 3. 2. Eâ— 4. foâ— 13. IF a man be seisod in right of his wife and recouerie is had against them by default the woman after his death may haue a Cui in vita but not a Quod ei deforceat per Moyle Iustice It séemes that at Common Law this writ of Cui in vita was onely granted vpon actuall discontinuance by the baron for West 2. casâ—â—â— iâ— Qâ—ando vir amiserit per defalcum tenementum quod â—uit in vxoris suae duruâ—â— fuit quod vxor post mortem viri non habuâ—rit aliud recupâ—rare quam per breue de recto propter quod Dâ—minus Rex â—â—atuit vt mulier post morâ—â—in â—iri haâ—eat râ—â—â—pâ—raâ—â— pâ—n breâ—ede ingressu cui â—â—â—a in vita c. But in this case if the tenâ—â—â— can proue that hee had right on his side when hee recouered Muâ—er â—iâ—il capit per â—reueâ— Nâ—tâ— also by the way that this heat wâ—â—s Si vir se absentaveriâ— â—â—luerit â—â—â— vxoris 〈◊〉 defendâ—re vâ—d si in vlta vxoris reddâ—â—◠〈◊〉 â—â— vâ—â—â— anâ—◠〈◊〉 〈◊〉 paraâ—a 〈◊〉 〈◊〉 〈◊〉 deâ—â—â—dete 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to further for recoueries If Iudgement of â—or eiudger be giuen against Baron and Fâ—uie this is not void as soone as the Baâ—on is dead but vâ—ydable by error for the woman cannot haue a Cui in vita 〈◊〉 fol. 2â—â— A 〈◊〉 â—y 〈◊〉 â—◠〈◊〉 alienation â— and therefore vpon suâ—â— a â—â—coverie as soone â—â— the husband is dead the woman may haue a Câ—â—â—â—â—â—â— by the Common Law 4 Ed. 2. â—rook◠〈◊〉 vitâ— 18. If a râ—coâ—eriâ— be â—â—â— by 〈◊〉 Wâ—â—â— of waâ—â—e thâ— wâ—â—e cannot â—â—uâ—â—◠〈◊〉 〈◊〉 either because the recouerie is not méerely by default or else because the 〈◊〉 of waste hath no demand of land quaere if shée shall haue a Quod eâ— deâ—oâ—ceat 9. Ed. 4. 16. If Baron and Feme be impleaded by one which hath good title and the Baron confesse the action the woman hath no remedie Yet the Statute is that vpon rendring by the Baron the wife may be receiued â—â— But if Baron and Feme be receiued vpon default of tenant for life where the reuersiâ—n is in the wife the Baron cannot confesse the action for hée must be 〈◊〉 Ad ius 〈◊〉 defâ—â—â—endum 7. Ed. 4. 17. SECT XXV The Sur â—ui in vita IF she which hath cause to bring a Cui in vita of Fée simple lands die before she hath sued c. her heire shall haue â— Sur â—â—â— in vita But if the wiues lands which the husband aliened were in state of Fee taile and the wife neâ—â—◠〈◊〉 her heire must sue a 〈◊〉 in disâ—onder and not a 〈◊〉 â—â—â—â—â—â— for though both these 〈◊〉 hée the children of the ancient Common Law and were before West 2. Yea and this latter Writ was maintainable for lands giuen to the mother in francke marriage or to the heires of her body which at the first was Féâ—â—â—â—pte yet when 〈◊〉 made 〈◊〉 â— taile it did also expressely set downe â— Writ whereby the heire should recouer such estates The Sur câ—â—â—n vita for it is no â—ore but Praecipe quod 〈◊〉 c. quod 〈◊〉 esse iâ—â— haeâ—â— ditateÌ„ suâ—â— in quod non habuit ingressum nisi per Eâ— and so in the Cui oâ— in the 〈◊〉 And the Aâ—â—t and Néeâ—◠〈◊〉 〈◊〉 in it vpon alienatioâ— made by the husband of their common Ancestor or vpon recouerie had against â—â—â— and her If a second husband alienhis wiues Fée siâ—ple landâ— and she dieth the issue by her first husband 〈◊〉 â—uâ—â— Sur cui in 〈◊〉 〈◊〉 these â—â—nd husband still liuing if hée were neuer intituled to be Tâ—nant by the Curtâ—sie But
Hill 18 E. 2. it was held by Herle Iustice that the Writ lieth well enough for him in remainder And Tri. 31. E 1. the heire in taile maintained a writ of entry in Consimili casu vpon alienation made by tenant le curtesie SECT XXXI The Writ of Entrie ad communem legem THe Writ of Entry at Common law is giuen in Case where Tenant in Dower or per curtesie or for life doth alien in fée or in taile or for life c. now if the Tenant which aliened doe dye hec in the reuersion must take this Writ of Entry ad communem legem which is very like the former Writs and may be in the per cui post If a woman recouer Dower alien and dye the Writ of Entry ad communem legem must make mention of the recouery And if Tenant by the curtesie aliâ—â— in fée and dye he in the reuersion if he be heire in fée simple may sue this Writ or his Assise of Moâ—â— dancester giuen by the Statute of Glocester ca. 3. If Tenant for life alien in fée and dye the Writs for him in reuersion are in diuers formes for if hee haue the reuersion by discent the Writ is in quod idem A. non habet ingressum nisi per C. câ—i D. pator vel antecessor of the Demandant cuius haeres c. demised c. But when the Demandant himselfe made the lease to him which aliened then the Writ is or may be Pâ—aecipe quod recidat c. omitting these words quod clomat vt ius haereditatem and note if Tenant for life alien in fee and dye hee in reuersion may chuse whether he will haue this writ or an ad terminum qui praeteriit If Tenant for life grant his estate and hee in reuersion grant his reuersion with Atturnement if now the Tenant which atturned alien in fée the grantée of the reuersion shall haue a Writ mentioning the grant and assignation c. SECT XXXII More of forfeitures and how a particular Tenant may forfeit his estate without alienation NOte If Tenant for life lease the land to I. S. for terme of life of I. S. which dyeth the first leasâ—e still liuing hee shall not haue the land againe because hee leased more than was in him and therefore hee in the reuersion shall haue it But if two be seised for life the inheritance in fée to one of them and ioyne in a lease for life and the leasee dyeth they shall bee ioynt tenants againe ê‘ Littleton 13. E. 4. fol. 4. Because hée which had the fée was priuy to the lease and so the other gained no new reuersion It is yet further to be vnderstood both that he in reuersion may enter vpon alienations made by particular Tenants vt supia to his disinheritance without suing the aboue mentioned Writs And also that there are sundry other forfeitures to the Reuersioner besides expresse alienations which I would haue widdowes to take héed of 6. Edw. 3. fol. 17. In Action of waste by an Infant against Tenant by his fathers demise he pleades that the father confirmed his estate to haue and to hold to him and his heires in fee by his déed shewed to the Court Iudgement si c. It was said for verity that if the claime were found false the heire might enter Page 64. in Fitzh And if a reuersion bee granted by fine and the conuse brings a quid iuris clamat against the Tenant for life which pleadeth that shee hath estate in taile by deuise in Testament from the Commissors if it bee found by verdict that shee hath but estate for life that estate is forfeited Quod vide Plowd fol. 212. in Saunders in Fremans Case where the entry for the conusée is consideratum est pro seisina reddâ—t praed cum partium versus c. occasionae clam ' placit praedict ' forisfact ' habend ' si voluerit persequatur ac etiam quod finis praed si voluerit ingrossetur Plesingtons Case 6. R. 2. was this A man made a lease for yéeres and granted further by Indenture if he aliened the reuersion or dyed within the teâ—me that the leassée should haue francketenement and liuery was made the fée simple was granted by fine c. and in a quid iuris clamat the leassee claimed francketâ—nement iudgement was giuen that the cognisée might enter for a forfeiture and that the fine should be engrossed si voluerit Sée 3. 4. Eliz. Dier 209. in a like case the iudgement was not quod quaerens recuperet seisinam but quod prosequatur pro seisina si voluerit finis ingrossetur c. SECT XXXIII The Statute of 11. H. 7. cap 20. THe Common Law restrictiue of it selfe and helped something by the Statute of Glocester was sufficient a great while to bridle women from making alienations for any land that they held in Dower or Ioynture as arguments of their owne good deserts and testimonies of their husbands loue But time which made the art of fencing more fine than it was at the first when Combattants fought all at head and shoulders and it was greater shame to strike vnder the girdle than it is now made law also more subtile than in the beginning it was when lands went altogether or for the most part by liuery of seisin And women witty of themselues instructed by crafty men grew cunning at the last that they could alien lands holden for life or in taile to whom they listed in fée And hee which suffereth disinheritance should not easily helpe himselfe by Writ of Entry either ad communem legem or in casu prouiso for remedy whereof was made this seuere statute in effect as followeth 11. H. 7. If any woman which hath had or hereafter shall haue any estate in Dower or for life or in taile ioyntly with her husband or only to her selfe or to her vse in any Manors Lands Tenements or other Hereditaments of the inheritance or purchase of her husband or giuen to the husband and wife in taile or for terme of life by any Ancestors of the husband or by any other person seised to the vse of the husband or of his Ancestors and haue or shall hereafter being sole or with any other after taken to husband discontinued or discontinue aliened released or confirmed alien release or confirme with warranty or by couin suffered or suffer any recouery of the same against them or any of them or any other seised to their vse or to the vse of either of them after the forme aforesaid that all such recoueries discontinuances alienations releases confirmations and warranties so had and made and from henceforth to be had and made be vtterly void c. And that it shall be lawfull to euery person and persons to whom the interest title or inheritance after the decease of the said woman of the said manors lands or tenements or other hereditaments being discontinued aliened or suffored
the husbands Ancestors that they should doe nothing preiudiciall to the heires But in this case there came no Ioynture from the husband but contrariwise the wife had made a Ioynture to her husband and after his decease to bridle the woman to doe what shée listed with her owne inheritance were against all reason and as farre from any affinitie with 11. H. 7. as it should be when a woman seised in Fée simple giues lands to the father of him whom she intends to marrie to the intent that he regrant this land to his sonne and her after marriage with a remainder in taile c. to restraine her when after marriage regranting and death of the husband she should leuie a fine to other vses or suffer a recouerie which case though it be cleane out of the Statute yet it is within the words for the â—oynture was made by the Barons Ancestor though not originally c. And so note those two cases of Plowd one is taken to be within the intent though out of the letter and the other though within the letter yet out of the intent and yet both constructions most reasonable and iust And see Sir George Brownes case Sir Edw. Cokes â— Râ—p that a lease made by a woinaâ— tâ—nant in taâ—le of the gift of her husband c. make a lease for thrée liâ—sâ— that is not warranted by the Statute of 32. H. 8 and although the lease be without clause of Warrantie yet it is within the Statute of 11. H. 7. for those words in the act with warrantie refer to releases and confirmations which makes no discontinuance without warrantie for the inteâ—t of the Act is to proâ—ibit not onely euerie barre but â—ueriâ— manner of discontinuance which puts the heire to his reall action And in that case it was resolued that if the issue in taile had before the womans for feiture granted his remainder onely in that case hee by the exâ—resse letter of the Act shall enter vpon the discontinuance of the woman for his act doth not biâ—de his estate But when the issue in taile leuie a fine with praclamation in the life of the woman tenant in taile c. that shall binde the taile and therefore there the Conusée shall enter for hée which hath the immediate title interest or inheritance at the time of the for feiture shall enter by that Statute And it was said by Anderson Chiefe Iustice of the Common Pleas that where it was inâ—ented for to makâ— euaâ—â—â—ne out of the Statute that if such a woman tenant in taile accepts a fine sur conusans de droit come câ—o c. and by grant and renders the land for a thâ—usand yeares that is an alienâ—tion within the intention of the Act although the words of the Act are discontinuance aliâ—nation c. and of that opinion was Wâ—ay Chiefe Iustice and Dyer and all the Court of Commoâ— Pleas was of the same opinion 18. Eliz. And in Sir Edw. â—okes 3. Rep. Lincolne College case It was resolued that if the heire in taile conuey the lands to others and the woman tenant in taile release or maks conâ—â—râ—nation with waâ—rantie which is not but to perfect and corroborate the estate which the heire in taile hath made such a warrantie is not restrained by the said Act for that which the woman hath done is for the benefit of the heire and not for his preiudice and by his aâ—â—ent And she and the heirâ—â—â—ight haue iâ—yned a fine and so barre the estate taile not with standing the Statute of 11. H. 7. therefore such Acts by the woman shall not be void to grant the hâ—ire or any else any aduantage by the Statute of 11. H. 7. And note the opinion of Sir Edw. Coke in the said case of Lincolne College that the sonne borne after shall by this Statute out the daughter who entred for forfeiture and â—â—ewâ—â— other opinions concurring yâ—â— in Dyer 21. Eliz. 362. the heire in such a case is said to be in by purchass And note Reader that it hath â—â—â—ne adiudged that although the Déed of conueyance and assurance of the womans Ioynture or estate dâ—therpresse her marriage portion as well as her marriage to â—e the cause and consideration of such Ioynâ—urâ— or â—statâ— yet if the estate prâ—â—éds from the husband or his Ancestors she is within the said â—tatute of 11. H. 7. and sâ—e Villers and Beauâ—â—â—ritâ— case 4. Mar. 146. But â—â—â—uâ—râ— if the portion money appeare to be the full price of the land if that differ not the case Sée Sir Edw. Cokes Comment vpon Littleton 365. These â—ases put a man seised in Fee leuie a fine to the vse of himselfe for life and after to the vse of his wife and of the heires males of her body by him begotten and had issue male and after he and his wife leuied a fine and suffered a common recouerie the husband and the wife died and the issue male entred by the Statute of 11. H. 7. and the entrie was â—olden lawfull and yet this caâ—e is out of the letter of the Statute for she neither leuied the fine c. being sale or with any other saue her husband who made the Ioâ—â—ture Sed qui â—aeret iâ— littera â—aeret in cortice and therefore this case being within the 〈◊〉 of the Statute is within the remedy But 〈◊〉 〈◊〉 that this case was deâ—yed for Law by the Râ—â—â—rder oâ— London in his argument in the case hereunder 〈◊〉 betweene Copland and Pyat Another case in Sir 〈◊〉 Cokes Commentaries vpon Littleton which agrée with Eiston and Studs case in Plowd is A man seised of land â—ure vâ—oris and they two leuie a fine and the 〈◊〉 grant and render the land to the hâ—sband and wife in speciall taile the remainder to the right heires of the wiâ—â— they haue issue the husband dieth the wife taketh another husband and they two leuie a â—â—ne in Fée the issue entreth this is within the letter of the Statute and yet is out of the meaning because the state of the land 〈◊〉 from the wife so as it was the purchase of the husband in letter and not in meaning But where the woman in â—â—nant for life by the gift or conueyance of any other â—â—â— alienation with Warrantie shall binde the heire at this day The case of Copland and Pyaâ— adiudged Hillar 7. Car. in Banâ—â— Regis in effect was thus I. S. his sonne was to marrie to the daughter â—â— I. N. And the Deed 〈◊〉 that I. N. for thâ— consideration of foure hundred 〈◊〉 paid by I. S. and of a marriage c and for the 〈◊〉 of the bloâ—â— of I. N. coâ—enants to stand seised to the vse of the sonne â—â— I. S. and his daughter whom the 〈◊〉 of I. S. should marrie â—â—taile the remainder to another 〈◊〉 of I. N. thâ— remainder to the hâ—ires of I. N. 〈◊〉 dieth hauing issue and the wife alieneth by 〈◊〉 〈◊〉 〈◊〉 was resolued that it was not within
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
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
of the Obligée And if I bee bound to C. that A. shall marry B. before Easter If I marry B. and our Espousals continue till Easter my bond is forfeited Similiter If C. marry B. or if A. and B. cannot marrie because one of them dieth or wareth mad before the day I finde none other cause in our Yéere-bookes alleaged why things may not passe by gift betwéene Baron and feme saue only vnitie of person But vndoubtedly the restraint springeth from a politique consideration rather to bréed cherish and maintaine the vnity then in iudging of an impossibility because of the vnitie But the Ciuill Law vir non potest dare vxori ne foeminae amorem coniugalcm in quaestu habeant prohibenter inter coniuges donationes quia silicerct coniugibus inuicem donare matrimonia fierint venalia saepe distraherentur c. And because it would amount to arguing inter coniuges there is a restraint by that law Ne priuignus dare queat nouercae vel nouerca priuigno What if the Matrimonie be inualidum legibus non consistens yet non valet inter coniuges putatiuos facta donatio ne melioris sint conditionis quam illi qui recte faciont But a gift to a plaine Concubine is good enough vnlesse the giuer be a Soldier By old Iohn Bracton lib. 2. ca 5. Non valent donationes inter virum vxorem non enim poterit vir dare vxori nec e conuerso constante Matrimonio quia huiusmodi donationes prohibitae sunt inter tales personas nec infraudem facere possint constitutioni veluti si Maritus donet extraneae personae ea mente vt redonet in vita viri vel post mortem hee maketh his reason in the 14. Chapter Si tales donationes fieri possint ob amorem inter virum foeminam posset alter eorum egestare inopia premi But at this day though lands cannot passe betwixt Baron and Feme right out by plaine liuery or bargaine yet in the obliquitie of fines recoueries and vses there is an Expedite transporting of Inheritance betwixt them to the vndoing perhaps of the partie whose Lands are transferred and auferred with not so much as coniugall loue alwayes in recompence SECT IIII. In what sort things may passe betwixt Baron and Feme LAnds cannot passe from the Baron by feoffement to put the state from him immediately to the wife though he were infeoffed to that intent and vpon such a condition But one man may infeoffe another vpon condition to infeoffe the wife of the Feoffor whatsoeuer Bracton say and the condition good Also a feoffement fine or recouery may be made knowledged or suffered to the vse of her and her heyres which is wife to the Feoffor Conusor or sufferer c. And as I may make another man the instrument to conuey lands to my wife so may I be the meanes to conuey Lands to my wife from another man for by Letters of Atturney-ship I may deliuer seisen of Lands to my Wife for another and the feoffement shall be good by Parkins 41. And a man may deuise in his last Will and Testament either by the custome or by the Statute 32. H. 8. Lands to his Wife in fée fée-taile for life or for yeares because this taketh none effect till the Couerture be dissolued It is said in Scolasticus case If I deuise that he shall haue greene acre after the death of my wife my wife shall haue estate for life by the intent c. And although a wife by the generall rule hath no will but her Husbands and all Testaments of a feme-couert to deuise any Mannors Lands Tenements and Hereditaments are ineffectuall by expresse declaration of 34. Henrici 8. capite 5. soeuer be the courtesie among Dames of honor a womans name of dignitie changeth with the degree of her husband and of such women as haue not their honor by birth but acquire that by Marriage the rule of Law taketh order Si mulier nobilis nupserit ignoblem desinet esse nobilis when she taketh a second husband But what though the scrupulositie of the Common pleas were obserued throughout the Realme that Esquires Ladies should be no Ladies in Court and Country wherevnto I will neuer giue voyce what inequality were in this depressing shall not likewise a Knights widdow marrying with a Baron or Earle as be much exalted verament yet you see the dignitie hangeth meerely on the male side carrying the scepter of Wedlocke SECT VI. Touching seruitude NOw touching the state of fréedome or bondage Littleton saith that if a free-man marry a bond-woman the Lord cannot seise her but there is remedie by action for taking her sans gree or licence Fitzherbert in his liberâ—are probanda agreeth 78. G. that she should be fréed perpetually But the Law seemeth to be otherwise And so you may find the opinion of Doct. Stud. fo 139 b. And that indeed it is no more but a Temporarie priuiledge and exemption from seisure of her Lord during time of couerture for if the Seigniour of a Mannor marrie his Niefe regardant the best authority that I can finde is that this Niefe is no more but shrined in the honour of her Lord if he die she shall haue no Dower but remaine still in her niefitie regardant to the Mannor And to say truth I perceiue not how a womans being married can in any sort be an infranchisement no not for a time it is no more but a sconsing or hiding of the seruitude Bracton saith elegantly manumission is a detection or laying open of the freedome which is a natura A womans liberty is free licence to doe what she list vnlesse shee be letted by force or by Law it is not restored to Niefe when she marrieth Marriage rather pulleth it from her which before was free When a Seignieur therefore marrieth with his bond-woman she must not turne her bumme to him and say heretofore my Lord I lay in your bed and now I lye in mine owne as the French Concubine said being married newly to her French Lord but let her bee burome and mindfull of her subiection for if this louing Seignior of hers die she may right well be an apparant Niefe againe to her owne sonne for ought that I know why not as well as causes may happen that the father to sonne or one sonne to another may be a villeine the case did happen 3. Ed. 3. that the villaine married his Lords mother and so the father in Law and the brother de demisank were villeines If a free woman marry a villeine her naturall freedome is not otherwise infringed then by subiection to her husband If the villeine purchase Lands and die before seisure made by the Lord the wife shall haue Dower But if a frée-woman seised in fee or fee-fee-tails take a husband which is a villeine and die the Lord may enter vpon the husbands possession per le Courtesie or vpon the Issue being Tenants
comfort of your Husband yet a farre greater comfort the effect of Balaams desires Let me die the death of the righteons and let my end be like his SECT XV. The Husbands power in Lands which the Wife holdeth in Dower or otherwise for life THe Husbands Soueraigntie ouer his wife her goods and chattels personall or reall is no lesse then hath béen declared The dominion likewise ouer all manner of Franke Tenements his owne or his Wiues is supereminent in him during Couerture but so that he standeth well bridled from doing any thing a per luy whereby either the Dower which his wife had by a former marriage or expecteth by the present or any other estate for life or in fée can be taken from her when heâ— is gone If a Widdow tenant in Dower marry and her new husband surrendreth c. this is good during Couerture but if the Feme suruiue or if there be a Diuorce causa praecontractus the Feme may enter and defeate the surrender though he to whom it was made be dead and his Heyre in by descent yea and the Law differeth not heere though the Wife had ioyned with the Husband in the surrender But if Baron and Feme will surrender Lands which the wife holdeth for life by fine this shall bind the wife for the wife which is giuer shall be examined c. for no particular Tenant can surrender by fine without being named in the writt wherevpon the fine is leuied Par. 117. If a lease be made to Baron and Feme for life and the Baron make aliâ—nation in fee the Lessour may enter for a forfeiture and maintaine an assise if he be ousted but the Wife surâ—iâ—ing may haue a cui in vira post mortem is by a husband disseised release all his right to the husband and afterward notwithstanding the release brings a writt of entry in nature of an Assise and recouereth against him by default the wife of the releassée shall bee indowed But if the Heyre of a disseisor being in by descent the disseisée re-enter and take a wife now a recouery against the Baron by default or reddition in a writt of entry in nature of Assise taketh away Dower from the wife for the recoueror had right according to the nature of his action and the possession which the Baron had during Couerture is destroyed But it falleth out otherwise where a man is married and then there is a disseisin descent entry and recouery vt supra If a Precipe be brought against the Baron which pleadeth misnosmer or iointenancy and it is found against him whereby the demandant recouereth this ousteth not Dower vnlesse the Demandant had right In a writt of entry in le post against the Baron hee voucheth himselfe to saue the state taile and sheweth how his father gaue him the land in taile and that the fée simple is descended vnto him and vpon a trauerse of the gift in taile it is found for the demandant which recouereth and the Baron dieth Now if so be that the Baron might well haue pleaded a release of all actions or all right of the demandant the Wife may falsifie this recouery in her writt of Dower Tenant in taile hauing Issue dieth a stranger abateth dieth his heyre entreth and takes a wife the Issue of tenant in taile arraignes an assise of Mortdancestor against the Baron which trauerseth the points of the writt and they are found against him so that the demandant recouereth and the Baron dieth It hath béene holden that the wife shall not recouer Dower heere vntill the heyre haue reuersed the verdict by attaint But it seemes saith Parkins he may falsifie the recouery in a writt of Dower maine tenant for the husband might haue pleaded to the action of the demandants writt and if the Feme which by no meanes might haue attaint must tarry till the Heyre haue defeated the verdict perhaps he will neuer sue attaint or he will release so the wife which once was intituled to dower by her husbands possession neuer defected but by his owne lachesse should lose her Dower maugre sat est which seemeth vnreasonable Yet quaere saith he for the iudgement is upon a verdict comprehending matter repugnant and contrary to that which should hee pleaded against the writt But if the demandants entry had béene congeable then out of doubt the wife had had no power of falsifying for the entry had wrought a remitter The Heyre of a Disseisor entreth taking a wife and the Disseisée in a writ of entry ad terminum qui preterit recouereth against the Baron by default the wife may falsifie this recouery in a writ of Dower But it is seldome that the demandant in Dower shall falsifie a recouery against the husband had by his lachesse in not pleading a plea which went méerely in abatement of the writt And therefore to say that the Baron might haue pleaded misnosmer or ioynt-tenancie will not serue to falsifie a recouery But if she can proue that the demandant had no right nor cause of action but iointly with a stranger which stranger by his deed shewed forth to the Court had released before commencement of suit all his right to her husband being in possession this will serue to falsifie the recouery for a moity Thus hath Parkins in his treatie of Dower at large discouered that a title neuer tryed against the Baron in his life time may be tryed by his wife when he is in his grane And so further 36. H. 6. titulo fauxifier de recouerie in Fitzherbert 15. That a woman may falsifie a recouery had against her husband by action tried but it must be in another point and not in the very same which was tried by the recouery SECT XVII Losse of Dower by the Husbands attainder HEe that hath a notable grudge against his wife and would be sure to delude her hope of Dower hath adirect way though it be somewhat dangerous and I will not be of his Counsell Hee needs doe no more but imagine compasse and conspire some detestable renowned treason of the old stampe and if he be once attainted thereof according to his desire c. But if he doe but pingle as suffer himselfe to bee outlawed in action of trespasse this was neuer any forfeiture of Franke Tenement The Law was in the late dayes of Littleton and Parkins that euery attainder of murther or felonie done by the Baron was an ouster of dower to the wife The first Solons of the English Law be like thought that tender regard of a wiues estate should restraine a husband from all inormious transgression against the sacred Crowne and dignitie Royall would God it might but the true reason why the law was so penall for such offences of the husband toward the wife in whom perhaps was no fault that thereby shee should haue no Dower and towards the children that they should haue no descent of inheritance but the hereditary blood should be corrupt was vpon
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
companion diuorced for lands wherein shee claimeth inheritance or estate for life so if he haue aliened in sée â—ée tayle â—r for life the lands which he had in fée simple â—ée â—a le or for terme of life to a stranger she may as soone as she iâ— diuorced bring a Writ called a â—â—i ante diuorâ—â—â—m against the Alâ—enee And this Writ may be in the per cuâ— post If shee dye before action commenced or before recouery her heire may haue a Writ called a surâ—uranâ—e diuortium and the Aunt and Néece may joyne in iâ— But for her estate tayle her heire shal be put to a formidone But note Reader that it séemeth both the woman and her heire may enter after the Statute of 32. Hen. 8. and neuer bring Cui in vita nor sur cuim viâ—a c. for the opinion in Grenlies Case Sir Edw. Cokes 8. Rep. fol. 73. is that if the baron alien and after the wife is diuorced causa praecontract which dissolue the marriage à vinculoma rimonii the wife during the life of the husband or after his death may enter for the words of the Aâ—tare nâ— fine feâ—ffeinent c. during the Couerture betwéene them and although the Statutâ— saith But that the same wife c. that is to be intended of her which was his wife at the time of the alienation c. Note that whereas West 2. cap. â— giueth a cui in vita vpon recouery by default against the husband c. shée shall haue a cuâ—â—hâ—e diuortium vpon the like â—eâ—ouery by equity extension of the Statute and the processe is summons grand cape peâ—iâ— cape I wil here set the bounds and limits of my third booke not because this sequell and consequence â—iuorte I meane whereby the issue had is basâ—â—â—â—â—zed and the wâ—â—an restored to her goods and lands conforteth with the marriage so perfectly begun as I meant it for this is not the vntying of true wedlocke but rather a dissipation of marriage tainted at the beginning and in Christian Court adiudged to a â—â—llity as if it had neuer béene the Baron and Fâ—me that I hâ—â—â— spoken of all this while if they were not married in their infant loue and very first flowing age yet were they not â—rostbitten or so blasted either of them when they were young but they might well haue frâ—â—tified neither was either of them a common Law breaker intangled with promise or praecontract and as for consanguinity or affinity there was no more betwixt them than is betweene Iack Flecher and his bolt You may imagine some matter by onely imagination perhaps more visible than it could haue béene being true whereupon a publike sentence of seperation being published a Thoro mensa but then there was a monition of chast liuing and prohibition to both the parties that neither of them should flâ—â— to other marriage so long as both of them were liuing And the Author of seperation that is the party suing diuorce did put in sufficient caution to doe nothing contrary to this prohibition So that the holy liues of matrimony were not cleane broken and pulled asunder but within a yéere or two they were reconciled voluntarily of their â—wne accord And soone after so I will make it hauing the Distaffe Spindle and Shéeres all in mine owne hand the husbands life was suddenly cut off or else the wiâ—e had béene sole executrix THE WOMANS LAWYER The fourth BOOKE PAle death equo pulsans pede pauperum tabernas regnumque â—urres Death I say to whom the Poet did attribute so much power in this his verse Omnia sub leges mors vocat aâ—â—a suas hath called the husband hence left the house full of mourning and specially the wife cannot chuse but sorrow and lament If my â—oure legged beast should fall into halues the one halfe starke dead without motion or spirit and the other halfe standing still vpright senting séeing féeling gazing must it not thinke you be wonderfully astonished If an Elephant in whom as some dâ—e write is vnderstanding of his countries spéech a wonderfull memorie and recenting of things past a great delight in loue and glorie besides prudence equitie and religion should haue his head cut off his body remaining still for all that vegetable and sensitiue would he not trow yée be excéeding sorrowfull for the forgoing such an ornament I dare be bold to giue a woman as much as Pliny gaue the Elephant She hath vnderstanding and spéech firme memorie loue naturall and kindnesse desire of glorie and reputation with the accomplishment of many meritorions vertues But alas when she hath lost her husband her head is cut off her intellectuall part 〈…〉 gone the verie faculties of her soule are I will not s 〈…〉 cleane taken away but they are all be 〈…〉 ned di 〈…〉 ed and dazled so that she cannot thinke or remember when to take rest or refâ—ction for her weake body And though her spirits and naturall moysture being inwardly exhausted with sorrow and extreme griefe she be called and inforced to seeke restauration by such aliments as life is prolonged by yet is she nothing desirous of life hauing lost a moytie of herselfe yea the principall maytie now best prised and estéemed but neuer best loued Time must play the Physitian and I will helpe him a little Why mourne you so you that be widowes Consider how long you haue beene in subiection vnder the predeminance of parents of your husbands now you be frée in libertie frée propriiâ—uris at yoâ—r owne Law you may see num cap. â—0 That maidens and wiues vowes made vpon their soules to the Lord himselfe of heauen and earth were all disauowable and infringible by their parents or husbands vnlesse they ratified and allowed them either expresse or by silence at the day when such vowes came first to their notice and knowledge But the vow of a widow or of a woman diuorced no man had power to disallow of for her estate was free from controlment Must a woman néeds wéepe thus for the losse of her Buckler Shield and defence in the person of him with whom she held daily commutation of all offices proceeding from loue and superlatiue kindnesse Let her learne to cast her whole loue and deuotion on him that is better able to loue and defend her than all the men in the world Him I meane that hath forbiddâ—n to afflict widdowes or orphans with promise to heare their cries and vindicate their wrongs by killing them by the sword and making the wiues widdowes and their children fatherlesse of them which breake this Commandement Exod. cap. 22. Then because a sober carefulnesse and moderate sedulitie in businesse of profit or disprofit doth mitigate greatly the sorrowing for such actions as opinion or fancie makes thus grieuous let her looke to her affaires as cause and need requireth SECT I. Of Executorship and Administration SHe is not made an Executor because the office is troublesome let her take
this Warrantor be vnder age yet the Law fauoureth widdowes so much that the plaint shal not attend his full age Therefore if the Tenant shew forth any Charter Déed or speciall cause whereby the Court may perceiue that the Infant is bound to Warrantie by the Ancestors act he shall answer presently what age soeuer he be of And though the Infant in ward be aliened by his Gardian or Gardians from hand to hand this shall not preiudice the Voucher for alwayes he shall vouch to warrantie the Heire and not the Gardian who is bound to present his ward so vouched in Court without difference whether it be one or many parceners Thus saith Britton and 48. Ed. 3. fol. 5. agreeth that he which voucheth an heire vnder age must vouch him in ward de vntiel If he be a ward it is said there also that hee which voucheth an heire at full age must shew a Déed quaere But when the lands are in the Gardians owne possession to his owne profit and vse the writ of Dower must â—ée brought against the Gardian and not against the Infant 46. Ed. 3. fol. 19. Where Mowbray saith where an Infant is vouched in ward of the King the woman shall recouer Dower maintenant 3. H. 6. fol. 17. It was agréed per curiam that in Action of Dower if the tenant vouch the heire in the Kings ward within the same Countie where the writ is brought the Demandant shall not recouer before the warrantie be determined but the Law is contra if the Voucher had prayed summons in another Countie for then the Demandant should recouer maintenant yet by the Register fol. 7. if in a writ of Dower the tenant vouch in Durham the Demandant shall abide triall of the warrantie and not recouer presently But by Fitzherbert for a rule in titulo Voucher if the tenant vouch in a forraine Countie shee shall recouer maintenant and neuer attend triall of the warrantie but when Voucher is in mesme lâ— countie If the heire vouched to warrantie aftâ—r â—hee hath appeared and countâ—â— pleaded the warrantie or before appearance being lawfully summoned do 〈…〉 ke default the Defendant shall haue execution against him maintenant if hee haue lanâ—s within the Countie Brooke Dower 5. And also Dower the 6â— when the heire is vouched in the same Countie the woman shall recouer against the heire Dyer 3. Eliz. â—â—â— In Dower the tenant vouch the heire in the same Countie who co 〈…〉 as one that hath nothing by descent in â—ée and renders Dower the tenant auers that he hath assâ—â—â— by descent qu 〈…〉 if he should not say in fée for by Weston and Browne if the lands be in taile it doth not 〈…〉 the tenants lanâ—s And the opinion of the Court was that the Demandant shall haue Iudgement presently aga 〈…〉 the heire if he hath lands c. and if not against the tenant and that before the issue of the assâ—â—s tried 1 Ed. â— fol. 24 In a writ of Dower against Tenant for life if he vouch his Lessor which is heire to the husband the woman shall recouer against the Tenant and he ouer against the Vouchee But when the heire iâ— vouched by Charter of his Ancestor the Demandant shall 〈…〉 couer against the Vouchee and the Tenant shall hold 〈…〉 peace Yet in a Writ of Dower against Lessée for 〈…〉 e of the Barons demise if the heire bee vouched to Warrantie though here the reuersion which is the cause of the Warrantie were made by the Baron the Demand 〈…〉 shall recouer against the Tenant and he against the heire If the tenant vouch in a writ of Dower and the Vouch 〈…〉 counter plead the Warrantie the woman shall recouer maintenant though in other actions it bée otherwise 46. Ed. 3. fol. 25. and 49. Ed. 3. fol. 23. In a Writ of Dower the Tenant vouched himselfe to sâ—â—e the 〈…〉 taile 2. H. 4. fol. 18. in Dower the Tenant vouched the heire Processe went on to sequatur sub suo periculo sicut alias the Vouchée came not it was awarded the Demandant should recouer against the Vouchée if hee had lands in the same Countie If not that shee shall recouer against the Tenant and hee ouer in value But first it was examined if the Vouchee were heire to the Baron 21. Ed. 3. fol. 30. In Dower the tenant voucheth the Barons heire in ward of the demandant per cause de nurture shewing the Ancestors Déed he was compelled to plead in barre because now the woman might be endowed De la plus beale for Gardeine pur nurture hath alwayes intendment to Soccage tenure Vide Brooke Dower 42. 5. Ed. 3. The fathers wife was endowed the Grandmother brought a writ of Dower against her â—he vouched the heire in reuerston the Demandant recouered against the tenant and shee against the heire a third part of two parts remaining but not in value Sée Brooke Dower 79. If the Grandmother die the mother may enter into the first dower and the heire into the second SECT IX Plees in a writ of Dower ADmitting there were no Voucher let vs run ouer other matters vsually pleaded 14. H. 4. 33. in Dower was demanded a third part of two mils of other lands yâ— tenant asked Iudgement of the plaintiffe for they were during the whole time of couerture but the â—â—te of two mills viz. toâ—ts 38. Ed. 3. fol. 13. In a writ of dower against one as Gardian of land and heire of K. de R. the defendant answered that the Infants father was â— de R. Iudgement del briefe and if the writ were good hee was ready to render dower You cannot said Knyuet plead to the writ render dower both at one day so the demandant praying Iudgement seisen was awarded her And because she auerred that the defendant was not touts temps prist to render dower an Inquest of dammages was awarded and that execution should cease till the Inquest were past 13. Ed. 4. fol. 7. In action of dower the tenant pleaded touts temps prist de render Dower vncore est The demandant said that I. S. her husband died seised and that such a day and yeere she required the tenant to indow her at Dale which refused c. he replyed that at the same day he offered to goe with her to the lands and to assigne her dower but she refused sans ceo that he refused The Court held the Issue well taken by this speciall pleading But if hee had said generally and barely hee refused not some thought it had not beene sufficient insomuch as it denies not the request Bryan said the demandant here might not haue seuerall Iudgements of one thing for note shee was to recouer dower vpon the first plea but all the other Iustices were of opinion cleere that shee should haue Iudgement of Dower maintenant and 18. Ed. 3. In action of Dower Iudgement was to recouer dower with an inquest for dammages As in a Quare
vnques seisi que Dower c. THere are other pleas that goe to the action and verie right of Dower as Ne vnques seisi que Dower c. id est The husband had neuer any seisin or state of Inheritance where of the wife can claime Dower sée 45. E. 3. fol. 13. The tenant in Dower leased her whole estate to the heire rendring rent for terme of her life the heire died and this was adiudged a seisin whereof the heires wife might demand Dower though the first tenant in Dower were still aliue for the lease was a Surrender and if a stranger had entred immediately after the heires death his heire must haue had a Mordancester Ergo said one the wiâ—e dowable Yet marke this case â—bid a man seised c. in fée simple dies his sonne entreth and he dies the sons sonne enters and endowes his Aylâ—sâ—e she dies a stranger abateth In this case it is cleere the sons wiâ—e shall haue no Dower of the portion assigned to the Aylesse though the sonnes sonne may haue a Mordancester per Kirton Finch and Mowbray But betwiâ—t this casâ— and the other they say is great oddes for here the Grandmother endowed was in from her husâ—â—â—â— and she sonnes possession and estate howsoeuer to his â—â—ire in whom the fée rested it were not destroyed but hee might bring a Mordancester yet to his wiâ—e it was cleane adnihilate whereas in the first case the Fée and Francktenâ—ment not a whit impeached by the life of her which surrendred were perfectly conâ—â—â—ned in the Baron to whom the Surrender was made And if a râ—uersion be granted to I. S. of certaine lands per faiâ— in pais in which lands I. T. and his wiâ—e haue â—state for life which doe atturne and afterward surrender there is no doubt but I S. his wife if hee die shall hauâ— Dower though it bee indéed defeasible after death of T. K. if his wiâ—e suruiue and will vndâ—â— the Surrendâ—r whereas in our first case the Surrender is no way auoydable but the heires wife shall pay rent according to her portion per Finch â—bâ—â— 14. Ed. 4. fol. 6. Tenant by the courtesâ—e granted his estate to him in reuersion rendring rent with clause of re-entrie for non payment the Grantée married the rent was arréere tenant per le curteâ—â—e re-entred hee in the reuersion died his wife waâ—â—arred of Dower for the Surrâ—nder might well bee vpon candition 2. H. 4. fol. 22. In action of Dower it was pleaded that the Demandants husband had nothing in the land â—ut by 〈◊〉 done to the tenant Iudgement si action c. The woman shewed how her husbands father hauing two sonnes leased his land to the eldest sonne and to hiâ— wife for 〈◊〉 of theâ—r liues and that shee her selfe married with the youngest sonne the eldest died and his wife married with the tenant the father died the reuersion descended to the second sonne being her husband the tonants wife died and he kept possession the Demandants husband did put him out he re-entred she prayed seifin c. Brooke thinketh she ought to haue trauersed the Disseisin And if the Baron had not entred after the death of the eldest sonnes wife she should not haue béene endowed yet saith he 〈◊〉 if without entrie there had not beene a seising in Law and whether the Francktenement which the tenant had once in right of his wife â—e determined in puncto by her death 11. H. 4. 73. In action of Dower the Tenant saith That N. gaue the land to the Baron and his first wife for terme of their liues the remainder in taile to the tenant remainder in Fée to the right heires of the Baron his first wife diâ—d he married this demandant and then hée died and the tenant entred c. he demands Iudgement if of this estate she shall haue Dower This amounted plaine to ne vnques seisi que Dower la puit but per Hanke Thirn that plea might not serue by reason of the Fée simple in remainder which might ingender doubtâ—ulnesse a layes gentes But where a lease was made to Baron for life the reuersâ—on to the Lessor or remainder to a stranger there in action of Dower ne vnques â—eiâ—â— â—ec iâ— good for no manner of Inheritance was in the husband 11. H. 4. 83. Dower was demanded of twentie pounds rent respondetur the Baron had nothing but â—oyntly with â— N. who is yet aliue â—udgement si Dower c. and he was not compelled to shew whether he pleaded as â—ertenant or as Pernor of the rent the Demandant replyed that I. N. had released all his right in the rent â—â— her husband But becauss she shewed not the Déed of â—â—â—ease shee pleaded by aduisement of the Câ—urt seisie que Dower la puit Quaere of the generall â—ssue against the â—â—eciall matter 11. H. 4. 88. A woman shall haue Dower of rent 〈◊〉 chased by her husband in fée though hee die before dâ—â— of payment And if it be pleaded against her Ne vnques fâ—â—â—â— que Dower c. she shall not shew the speciall matter but say seisi que Dower la puit and shew the matter iâ—â—â—â—dence 22. H. 6. 4â— per Newton In action of Dower the â—â—nant plead Ioynt estate to the Baron and I. N. in plein vy whose estate he hath the demandant shall not say â—â—â—â—â— que dower c. vnlesse shee shew how or trauerse that I. N. tooke nothing by she Feoâ—ment â—9 H. 6. fol. 9. Against Dower the Tenant pleadeâ— that I. S. seised in Fée infeoffed him and hee leased to the Baron to hold at will which estate hee continued all his life time sâ—ns câ—o that he was seised of any such estate que Dower la puit the Iudges orderad that for the long continuance of the possession and dought deslais gâ—â—â— all should be entred 10. H. 6. 17. It is not a good plea against Dower â—o say the Baron had nothing but for terme of his life for this amounts to the generall 〈◊〉 Ne vnques seisi que Dower la puit But to say the Baron had nothing but 〈◊〉 ment with A. in fée and that A. suruiued c. This by â—â—â— Fée simple confessed makes a good plea. 14. H. 6. 5 6. In action of Dower the tenant said â—e was seised till by the Baron disseised vpon whom he re-entred Iudgement c. the Demandant said that before this tenant had any thing in the land W. being seised in Fée infeoffed her husband issâ—â—t seisi c. and she prâ—â—â—â— to be endowed per Martiâ— the replication is not good â—â—â— this might â—e before the Disseisin and before couerture too and if so then the Baron Ne vnques seisi que Dower la puâ—â— That yée may yet perceiue further how 〈◊〉 a point it is to take or relinquish this plea rightly marâ—â— well the case 30. H. 8. Dyer fol. 41. In a Writ of Dower the issue was Ne vnques
substance of the entrie is no more but conâ—iderâ—tum est vt reâ—upâ—â—â—◠〈◊〉 de 〈◊〉 pâ—rte and then either presently or after ward â—â— the 〈◊〉 of the demandant there is awarded a writ 〈◊〉 〈◊〉 〈◊〉 de tertia parte to the Sheriffe who must make returne how he hath executed the Kings commandement But I finde by Dyer 11. Eliz. fol. 278. that an Alias habere fac shall not be awarded after the Sheriffe hath executed the Formedon the case was that the Sheriffe vpon the Habere fac ' c. profer seism by meanes of a third part and the Demandant refuse yet by Harpur and Dyer her entrie was afterwards lawfull for the certaintie appeared and they that an Alias habere fac ' by no president shal be granted and as images of this course must be the procéedings in all basâ— Courts which hold of Dower So that it is now more than sufficiently perceiued that the third part of euerie mans inheritance is assignable for Dower by the husbands heire or the heires Gardian or by the Feoffée or Feoffées of the husband or heire or by some other tenant or tenants or by the Chancellor Escheator or Viscount But it ought to appeare yet mâ—re fully how these thrée parts shall be assigned and wherein Sée Dyer 2. Eliz. 187. In Dower against eight two confesse the action and the rest plead in â—arre sir had iudgement for a third part of two in eight diuided and afterward vpon verdict against the sir iudgement was of sir partâ— in eight diuided Parcell of any thing whereof a woman may rightly claime Dower is assignable c. But other lands than those whereof she is by title dowable or not assignable Acceptance of a greater or lesse part than the third in name of Dower of all the franktenement which the Baron had bindeth a woman But assignment of all the land which the Baron had is not good But I referre you to Sir Edw. Cokes Commentarie vpon Littleâ—on fol. 346. how Assignment is to be made and what Assignment is good where it is said eight things are obseruable to a perfect Assignment of Dower The heire is not bound to assigne any widdow Dower in his capitall Messuage or in any part thereof But Assignment of such house in allowance of all other lands or of other lands whereof she is dowable for the house is good when it is accepted And Assignment of a chamber in the husbands dwelling house when other lands are not whereof to make assignation is good being accepted But a woman is not bound to accept this kinde of Dower except she list Arent may be assigned her out of the house and this shall be good sans fait Like wise it is of Common of Estouers of Pasture assigned in allowance of lands or other things whereof a woman is dowable And lands in Wales may be assigned for a whole Dower and thereby â— woman may be excluded from her Dower in England If vpon Iudgement of Dower and before execution the tenant assigne a rent per paroll issuing out of the land whereof the Iudgement was giuen and the woman accepts it in stead of Dower thâ—â— iâ— a good barre in a Scire facias and it is distrainable of common right but if the Assignment had béene by pâ—roll of other lanâ—s than of such as wherein the woman might haue claimed Dower it would not haue barred execution because it was not pursuant to the first Iudgement Dyer 1. Mar. fol. 91. It is said in Sir Edw. Cokâ—â— 4. Rep. fol. 1. in Vâ—rnons case that at the Common Law no collaterall satisfaction or recompence made to a woman in satisfaction of her Dower was any barre of her Dower for no title of Franâ—kteâ—â—ment or inheritance may be barred by any collaterall satisfaction When the Writ of 〈◊〉 comes to the Sheriffe he shalâ— deliâ—â—r 〈◊〉 â—â—â—â—â—â— and bounds but this rule cannot stretch to things not boundable Therefore if Dower be demanded or recouered of thrée shillings rent assignation of one shilling is sufficient And when dower of a 〈◊〉 or will is demanded a third part of the proâ—â—t c shall â—â— assigned and it â—â—â— good Indowment without certaintiâ— Et â—l 〈◊〉 〈◊〉 free serra contribâ—â—â—â—iâ— And so dower of a villeinâ— either the third dayes worke or euerie third wéekâ— or moneth And so of the profit of thâ— thirâ— part of Stallage of the third part of the profits of a Faire and so of the third paâ—t of the proâ—â—t of a Parke and of a Doue house and so of the third part of a Piscarie viz. Pertertium piscâ—m veliactum â—erâ—iuâ—â—eâ—is c. SECT XX. New Indowment IF that which a womâ—â— holdeth iâ— dower 〈◊〉 lawfully against her will and without her fault 〈◊〉 and eâ—icted c. she shall be new indowed of the other lands whereof the â—â—ate which her husband had remaines still â—ndefeated for example The Baron seised of thrâ—â— Acres dies the wiâ—dow is indowed of one Acre which he gained by 〈◊〉 if she be â—â—sted she shall be â—â—dowed of the other two Acres Tenant in taile of thrâ—â— Acreâ— discontinueth in fée the Discontinuée marrieth and dieth his wife recouereth dower against his heire the issue in taile brings a Formedon against the widdow shâ—â— voucheth the heire he enters into Warrantie loseth and the demandant hath execution though the â—state which thâ— heire hath in the other two Acres remaining be defeasâ—ble yet the woman shall be newly indowed of them till they be defeated yea though the Discontinuâ—â— his heire haue aliened the widdow shall bée newly indowed notwithstanding Againe a man seised of two Acres in fée within one Countie takes a wife enfeoffeth a stranger of one Acre with Warrantie and dying hauing issue a sonnâ— which entreth into thâ— other Acre the wife brings a writ of Dower against the Feoffâ—â— which â—oucheth the heire and the heire loâ—â—â—h â—â— default so that the Demandant hath Iudgement conditionall and execution against him to recouer of the land which he hath by discent within the same Countie where the Writ was brougâ—t If now the Vouchâ—â—â—â— restored by a Writ of deceipt to the lanâ— which the woman recouered shée shall haue Sciâ—â— facias against the Feoffâ—â— that was tenant in her first Writ to be newly endowed of the other Acre And if he haue therof inâ—eoffâ—d a stranger yet this stranger shall be bound by the first Iudgement in dower that was conditionall If a woman that is dowable take a second husband and be endowed by his assent per metes bounds if now the Baron discontinue in fée and die the wife may haue a Câ—â— in vitâ— and Perkins leaues it not cleane out of doubt whether she may not be new endowed of such other possessiâ—ns as were her husbands during couerture because the endowment was not by Writ This new endowment is when the euiction is loyall mâ—â—gâ—â—â—â— tâ—st del feme for when it iâ— otherwise she must recouer the land againe
be declared with what immunity a woman shall hold her Dower First Bracton saith Si peculia maâ—iti sufficiant ad solutionem tenentur sed vxori dos sua deonerabitur Et heres defendere dotem warrantizare eam mulieri debet pro ea sequi comitatus hundreda curia dominorum vt viduatae domui suae intendat nutritioni suorum si qui fuerint puerorum If the husbands goods bee not sufficient for payment of his debts the heire must discharge Dower of the burden c. for he is the widdâ—wes warrant of her Dower and ought to follow for her County Court Court léet and hundred c. That shée may sée to her house and nurture of her children Fitzherbert in his Writ of Admeasurement first affirmes that a woman shall not be distreined in her Dower in her Inheritance or in the ioynt purchased lands to her or her husband for her husbands debts The Writ which he sets downe for remedy saith almost as much Râ—x Vicicounti c. cum secundum legem consuetudinem regni angliae mulieres in terris tenementis quae tenâ—nt in dotem de dono virorum vel quae sunt de ipsarum haereditate vel quae sibi quesiuerint pro debitis virorum distringi non debent c. And in some Writs is this Clause Dum tamen haeredes vel Executores testamenti ipsius c. ad debiâ—a illa reddenda nobis sufficiant But it séemes reasonable saith Fitzherbert that a woman shall not hee distreined in her Inheritance for the Kings debts neither in her Dower or Ioynt purchased lands which her husband if her title commenced before her husband became debtor and there is a Writ in the register importing no lesse yea hee affoordâ— it to be good reason that lands purchased by Baron and Feme after the Baron is entred in debt to the King should be discharged in the widdowes hands But let widdowes agrée with the King as well as they can the heire is lyable to the debts of his Ancestor before the widdow The heire likewise dischargeth her of suit and seruice and is so farre forth her warrant that by Britton if shee be impleaded and vouch any other to warranty she forfeiteth her Dower pur sa malice and though her husbands feofee be not called her warrant yet if she be indowed by him shee must hold of him And regularly Tenant in Dower must be Attendant to her husbands heire or to the heires Gardian or to the Gardenis Executor or to him in the reuercion according to the rate of rent whereby they hold ouer if Tenent by fealty and xij d. rent bée disseised and dye his wife being indowed by the disseisor shall be an attendant to the same dissessor of iiij d. annuall And now if the heire will bring a Writ of entry in to quibus against the woman thus indowed shee may shew her speciall matter and that shée is ready to attend to whom the Court will award which shall award that she retaine her Dower still and bee attendant to the heire quaere saith Parkins if the heire haue any other remedy for hee cannot enter vpon the Tenant in Dower D.st 82. a. saith That a Feme tenant in Dower leaueth the reuersion in him against whom shee demands her Dower although he be a disseisor and doth not reduce the reuersion by her recouery to him which hath right as other Tenants for life doe And as it is said in Sir Edward Cokes 8. Rep. 35. in Paynes ca. if she recouer against Tenant for life shee leaueth the reuersion in him But by nat br fol. 265. a. if the King assigne Dower in Chancery as Gardian the reuersion reposeth in the heire for which he shall sue liuery If after iudgement the heire grant his reuersion and the woman atturne she shall be Attendant to the grantée If Lord Meane Tenant be the Tenant holding by iij. d. rent and the Meane by 20. d. If the Tenant marry and the Meane release to him all his right in the tenancy the Tenant dieth the wife must bee endowed according to her husbands best possessions and therefore shall bee Attendant to the heire by a penny and not the third part of twenty pence If hee which holdeth by fealty and xij d. hauing a wife sell the tenancie to his Lord and the estate is executed the Tenants wife shall be indowed sans attendancie for the Seignory extinct is not reuiuable If Lord Measne and Tenant be the Tenant holdeth by xij d. which dieth his wife is endowed shee shall bee attendant to the heire by iiij d. now if the Lord release all his right in the tenancy to the heire the meanalty is extinct and the attendance gone for it was but in respect of the charge which the heire was at to his next Lord. But where there is Lord and Tenant by fealty and xij d. rent if the Tenant make a gift in tayle of the land to hold of him and his heires by xx s. rent c. if the donée dye without issue his wife endowed shall be attendant to the donor by v. s. and viij d. although the Lord release to the donor for his attendance is not in respect of the charge ouer but by a speciall reseruation If there be Seignor Meane and Tenant by fealty and iij. s. rent the Meanes wife after he be foreiudged in a Writ of meane and dead shall be endowed without attendance If Tenant by fealty and xij d. make a gift in taile of the land reâ—â—â—â—ing â—ij d. rent c. and the doâ—ce hauing a wife and issue by her â—iscontinueth in fee and dieth now though the wife recouer Dower and haue execution of it against the discontinues yet she shall not be attendant to him for hâ—s is not chargeable as the Baron was because the Dowers â—uowry resteth of â—ereâ—â—â—â—â— vpon the issue to whom for all that the widdow shall not bee attendâ—â—t till hee haue recontinued the 〈◊〉 resayle quaere tamen saith Perkins If the Tenant whilst hee Itâ—â—â— held of his Lord by fealty and a 〈◊〉 of forty shillings price the Tenants widdow when shée is endowed shall bee attendant by xiiâ— â— iiij â—c 〈◊〉 she tenure were by fealty and a nag without expresse value shée shall bée Attendant by a nag euery third yéere Perkins fo 84. â—â— SECT XXIII Of the cui in vita I Have béene long in Dower and I feare mee some women had rather neuer be endowed that is they had rather die with their husbands or soone after them than bée bound to learne this Catechisme yet I must come to it once againe But first let vssée how lands whereunto a woman may haue right by ancient indowment or by discent or gift in franckmarriage or by some other acquisition before or during Couerture in fee fée tayle for life or for yéeres may bee reduced if the husband haue aliened them for it the possession continued alwayes in the
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
giue away in fée or for life the tenement which shée holdeth in Dower the heire or he which is in reuersion may maintenant haue his recouerie by Writ of Entrie and this is termed a writ of Entrie in Casu prouiso There is no doubt but Fée in this Statute signifieth both Fée simple and Fée taile And he which hath Fée simple Fée taile or Estate for life in the reuersion may haue this Writ against the Alienée or against him which is tenant of the Francktenement And this during the life of the tenant in Dower which aliened for when she is dead it lieth not perâ—el Nâ—t Breu. The Statute expresseth not the writ but the forme is Praecipe A. quod reddat B. vnum tonemen um quod clamat in quod non habet ingressum nisi per C. quae suit vxo D. qui illud ei demisâ—â— illud tenuit in dotem de dono praedicti D. quondum viri sunt cuius haeres c. quod post eemisionem per istud C. praefat ' A. contra formam Statuti Glocest c. ad praefatum â— reuerti debet performameiusdem Statuti And it may be in the Per Cui or Post If a woman recouer Dower against the heire and then alien in Fée the recouerie must be mentioned by the heire in his writ of Entrie in Casu prouiso In like manner as it must be in a writ of Entrieâ—d Communem Legem vpon an alienation by tenant in Dower and though this alienation be but in taile or for life yet the forme of the writ varieth not If he which hath the reuersion in Fée grant it to another and the Tenant in Dower after Atturnment alieneth in Fee the Grantée of the reuersion shall haue Writ specifying the grant Likewise if the heire grant his reuersion with Atturnment and the Grantée grants it ouer with Atturnment the third Grantée may haue a writ specifying that the woman held of the first second and third ex assignatione c. The Aunt and Néece hauing the reuersion by discent may ioyne in this writ and the processe is summons grand and petit cape SECT XXX The Writ if Enirie in Casa coasimili THis Writ is in nature like the other and it lyeth when Tenant by the courtesie or Tenant for his owne life or another mans alieneth in fée or in taile or for terme of life he in the reuersion which hath it for life or in taile or in fée may haue this Writ of Entrie in Casu consimili during the life of him which aliened and this is formed and granted vpon West 2. cap. 24. which willeth That as often as there is a Writ found in Chancerie for one case and another case falling sub eodemâ—â—â—e and requiring like remedy there is none in the registrie of the Chancerie for that the Clerks of the Chancerie shall concord in framing a writ Vel atterminent quaerâ—ntes in proximo Parliamento scribantur vsus in quibus concordare non possunt c. referant eos ad proximum Parliamentum fiat breue de consensu Iurisperitorâ—m ne contingâ—tdâ— caetero quod curia Domini Regis deficiat conquerentibus in Iustitia perquirenda The Writ is Reuerti debet performam statuti in consimili casu prouisi And it supposeth alwayes altenation in feodo although the Tenant leased or dem sed it but for terme of another mans life or in taile And so the writ of in Casu prouiso And that of Entrie ad Communem Legem This writ may be in the per cui and post And without title made in the writ if if so be that the Demandant himselfe made the particular estate of him which aliened But if the father or other Ancestor make a lease for terme of life and die and then the Tenant for life alieneth in fée now the heire in reuersion shall haue a writ comprising his title in it selfe And if this writ be brought vpon alienation made by Baron and Feme the writ supposeth that the wife aliened with her husband but yet shée may haue a Cui in vita after her husbands death the alienation not letting it If Tenant for life grant his estate to another and the grantee alieneth in fée the Writ shall be in quod non habet ingressum nisi per C. cuâ— D. qui illud tenuit ad vitam ex demissione B. deâ—â—sit ad eusdem teâ—mâ—num c. If a man make a lease for life and dye and his heire grant the reuersion to B. and the Tenant attâ—â—nes If now the lessée grant his estate to another which alieneth in fee to A. B. shall haue a Writ comprehending the assignation and grant of all the estates If lands bee giuen to two men and to the heires of one of them and he which hath the fée simple dies and then the Tenant for life alieneth in fée now the heire of him in remainder may haue this Writ for it lyeth as well for him as for Tenant in reuersion If any Abbot or Prior make a lease for life the lessée alien the Prior dye c the successor may haue this Writ Also tenant in taile may haue it if hee make a lease for life and his lessee alien in fée And it séemes if Tenant in taile make a lease for life of the lessee and dye the issue in taile may choose to bring a Formdon or Writ of Entrie in Consimili casu against the alienée whilst the lessée for life is yet liuing for the alienée which is Tenant in the Action cannot plead in Abatement of the Writ that the Demandant hath title to a Formedone But if Tenant in taile make a lease for terme of his owne life which is no discontinuance if now the lessee alien in fee and the lessor dye his heire cannot haue a Writ de consimili casu but he is driuen to his Formedone for in this case he hath no title to other Actions by colour of any demise But in the former case he had title by reason of the discontinuance made for life to claime by right of the new reuersion discended so that hee had a double title the reuersion reserued sur le seas and the title in taile consequently election of Action Quaere P. 17. Ed. 3. A lease made for life the remainder to another in fée the lesses aliened in fée and a writ de consimili casu brought by him in the remainder and it abated for the Court said that hee in remainder was not possessed in fait till the remainder did fall after the death of the â—essée Saith Fiâ—zherbert the Law is not so taken at this day but that hee in remainder hath the remainder vested in him as well as hath hee in the reuersion for hee may haue an action of waste and enter for alienation of his tenement as well as hee in the reuersion may Ergo hee hath his remainder in faâ—t and mee séemeth this Iudgement was not well giuen saith Fitzherbert And
to make void the Obligation or Statute if there be cause with a seuere penalty of 300. li to bee forfeited by the Sheriffe if hee did not execute she same Writ duly according to the tenure thereof This Statute was too méeke and gentle something like him that made it H. 6. SECT XXVII 3. H. 7. c. 2. BVt 3. Hen 7. cap. 2. beginning with a better complaint against takers for lucre of maids widdowes or wiues hauing substance of lands or goods or being heires apparant which takers sometimes married them and sometime desâ—owred them to the breach of Gods Law and the Kings the disparagement of such women and vtter heauinesse and discomfort of their friends ordaineth that whosoeuer taketh against her will vnlawfully any maid widdow or wife shall together with the procurors abbetters and receiuers of any such women knowing her to bee so taken against her will bee felous and euery of them béene reputed and iudged as felons principall But this extendeth not to taking where a woman is claimed as a ward or bondwoman And Mr. Lambard noteth that anno 3. 4. Phil. Mar. this Statute was construed to make no felony vnlesse the woman married were either taken or deslowred SECT XXVIII 4. 5. Phi. Mar. cap. 8. THerefore to supply what hitherto was wanting against takers and also intisers rauishing by allurements and flatterers 4. 5. Phil. Mar. cap. 8. saith that for want of sufficient Law it remained still a famlâ—ar and common mischiefe in the Realme That maidens and women children of Noble men Gentlemen and others which were heires apparant or had lands in great substance left by their Ancestors or friends by flattery trifling gifts or faire promises of light persons and also by subtility of such as bought and sold them for reward were many times allured to contract matrimony with vnthrifty persons and thereupon oftentimes with sleight or force were taken from their parents friends or kinsâ—olke to the high displeasure of God the disparagement of the children and perpetuall condolence of their friends Therefore it is ordained that it shall not bee lawfull to conuey any maid or woman child vnmarried or vnder the age of sixteene yéeres out of the possession and against the will of her father or of such person to whom by his will or otherwise in his life time he shall haue appointed the kéeping education and gouernance of her except such taking as shall bee without fraud by the Master or Mistris or Gardian in Soâ—age or in Chiualry of or to such maid or woman child And if any person that is aboue the age of fourtéene yéeres shall conuey or cause to bee conueyed any such maid being within the age of sixtéene yéeres out of the possession and against the will of the father or mother or any other person which then shall haue by lawfull meanes the order keeping education or gouernance of her the offender duly attainted or conuicted other than such of whom shee shall hold by knights seruice shall suffer two yéeres imprisonment without baile or mainprise or par such fine as shall bee assesed by the Quéenes Councell in the Starchamber And if any shall take away and deflowre any such maid or woman child or shall against the will of her father or he not knowing if the father be in life or without the assent or knowledge of the mother hauing â—ustody â—nd gouernance of the child the father being dead by letters messages or otherwise contract matrimony with any such mard except it bee by the consent of the person or persons by interest of wardship intituled to haue the marriage he shall suffer being lawfully conâ—â—ted fiue yéeres imprisonment without baile or maineprise and pay such fine as shall bee assessed in the Starrechamber c. the one moity of all which fines shall bee to the Quâ—â—e and her successors and the other to the grieued And the Councell in Starrechamber by Bill of complaint or information and Instices of assise by inquisition or indictment in which processe shall be awarded as inditements of trespasse at tâ—e Common law haue authority to heare and determine the offen â—s Moreouer if any woman child or maidâ—n being aboue the age of twelue yéeres and vnder sixteene doe at any time consent to such person as shall make contract of matrimony contrary to the forme of this Statute the next of kin to whom the inheritance should come after her death shall from time of such assent haue and enâ—oy all such lands tenements and her editaments as shee had in possession reuersion or reâ—â—â—nder at the time of assent during the lâ—te of such peâ—son so contracting matrimâ—ny and after her â—â—cease so contracting c. then the said lands shalldescen reâ—eâ—â— remaine and â—ome to such person or persons other than tâ— him that shall so contract matrimony as they should haue done in case this Statute had neuer beenâ—mâ—deâ— But thâ—s At extenâ—eth not â—o diâ—â—â—sh any libeâ—ty custome or authorite in London or like corporations as touching Orphancs their lands goods or chattels Sée Ratcliffs Case in Sir Edward Cokes 3. Rep. fol. 38. vpon this Statute of 4. and 5. of Phil. and Mar. In an Eiectione firme vpon speciall pleading a speciall verdiâ—t was thus in effect that William Wilcokes married the daughter and heâ—re apparant of Iohn Edols and Alice his wife and hath issue by her Iohn Elizabeth and Martha William Wilcokes afterwards by his will in wrighting appoints the order custody education and gouernment of his said three children to their said grandfather and grandmother during the grandfather and grandmothers liues and then dyes the widdow of Wilcokeâ— marrieth Raphe Radcliffe Iohn Edois dyes and his widdow being Tenant in â—ee simple of the lands in question holden in soccage by her will deniseth them to her grandchild Iohn Wilcokes in taile the remainder to Elizabeth and Mortha and the heircs of their two bodies equally to bee diuided the remainder in fee to her said daughter and heire apparant the mother of these thrée deuisées and dieth Iohn Wilcoke dieth without issue his sister Elizabeth married one Andrewes and he his wife and her sister Marthâ— enter the lands and were seised accordingly and Marâ—ha abiding with Raph Râ—tclâ—ffe and his wife being aboue fourtéene and vnder sixtéene yéeres of age with Raph Râ—tâ—lâ—ffe his consent and of her owne accord departs eight miles off from them where six houres after shee was married to Edward Raâ—cliffâ— who enters and made the Plaintisâ—e his lease And the issue being whether Elizabeth Ratcliffe the wife of Raph Ratcliffe had the custody of Martha the wife of Edward Râ—tcliffe the lessor at the time of their contract and marriage all the Iudges and Coâ—rt of Kings Bench resolued that Elizâ—beth had the gouernance of her daughter Martha at the time of her contract and marriage within the intent and meaning of the Statute It was resolued in that case that those words father mother within the
multiply and replenish the Earth take the joynt soveraigntie over the Fishes of the Sea the Foules of the Ayre and over all Beasts moving upon the Earth Genesis 1. In the second Chapter Moses declareth and expresseth the Creation of Women which word in good sense signifieth not the woe of Man as some affirme but with Man For so in our hasty pronouncing wée turne the preposition with to woe or wée oftentimes and so shée was ordained to bée with man as a helpe a companion because God saw it was not good that Man should bée alone Then when God brought Woman to Man to bée named by him hée found straight way that shée was bone of his bones flesh of his flesh giving her a name testifying shée was taken out of Man and he pronounced that for her sake man should leave Father and Mother and adhere to his Wife which should be with him one Now Man and Woman are one NOw because Adam hath so pronounced that man and wife shall be but one flesh and our Law is that if a feofment bée made joyntly to Iohn at Stile and to Thom. Noke and his wife of thrée acres of land that Tho and his wife get no more but one acre and a halfe quia una persona and a writ of conspiracy doth not lye against one onely and that is the reason Nat. br â—o 116. a writ of conspiracy doth not lie against baron feme for they are but one person by this a married Woman perhaps may either doubt whether shée bée either none or no more then halfe a person But let her bée of good cheare though for the néere conjunction which is betwéene man and wife and to tye them to a perfect love agreement and adherence they bée by intent and wise fiction of Law one person yet in nature in some other cases by the Law of God and man they remaine divers for as Adams punishment was severall from Eves so in criminall and other speciall causes our Law argues them severall persons you shall finde that persona is an Individuum spoken of any thing which hath reason and therefore of nothing but Vel de Angelo vel de homme fol. 154. in Dyer who citeth no worse authority for it then Callepinus owne selfe séeing therefore I list not to doubt with Plato whether Women bée reasonable or unreasonable creatures I may not doubt but every woman is a temporall person though no woman can be a spirituall Vicar Of Hermaphrodites OF Hermaphrodites I have some kind of doubts not whether they bée persons but what persons they bée If a man die seised leaving 3. children which bee all Hermaphrodites whether the eldest shall have all his land or that it bée partable as among coheires Also if the eldest bée a Hermaphrodite and the other 2. faire young Virgins which way jetteth the discent Bracton in his first Booke Cap. 7. saith Hermaphroditus comparatur masculo tantum vel feminae tantum secundum praevalescentiam sexus iâ—calescentis that is it must bée déemed male or female according to the predominance of the sex most inciting And as I remember I have read the like division Vâ— Britt Cont. sol 1678. Bracton in his first book the 30. Chapter fol. 438. where hee sheweth that a man shall not be tenant by the courtisie Si partus declinaverit ad monstruÌ„ cum clamore emitteret deberet emisit rugituÌ„ saith it is not partus monstrosus licet natura membra mâ—nuerit vel ampliaverit ut si quis habeat digitos aut articulos sex vel plures Now then if these creatures bee no Monsters but are in conjunction to take on theÌ„ the kind which is most ruling in theÌ„ this must néeds be understood in matrimony and consequently they may have heires which being granted why may they not be heires according to the prevalescence which Bracton speaketh of if I were to furnish my selfe a house I would place no picture or Image in any parlour dining or bed-chamber but it should be of good séemely and natural proportion Satyres and Centaures should come no nearer then the post at my doore And at the threshold of this my treatise or as it were a little behind the doore I will leave these deformed Children of Mercury or Venus suffering them to enter no further SECT III. The punishment of Adams sinne REturne a little to Genesis in the 3. Chap. whereof is declared our first parents transgression in eating the forbidden fruit for which Adam Eve the serpent first and lastly the earth it selfe is cursed and besides the participation of Adams punishment which was subjection to mortality exiled from the garden of Eden injoyned to labor Eve because shée had helped to seduce her husband hath inflicted on her an especiall bane In sorrow shalt thou bring forth thy children thy desires shall bee subject to thy husband and he shall rule over thee Sée here the reason of that which I touched before that Women have no voyse in Parliament They make no Lawes they consent to none they abrogate none All of them are understood either married or to bée married and their desires or subject to their husband I know no remedy though some women can shift it well enough The common Law here shaketh hand with Divinitie but because I am come too soone to the title of Baron and feme and Adam and Eve were the first and last that were maried so young it is best that I runne backe againe to consider of the things which I might seeme to have lost by the way that are fit to be knowne concerning women before they be fit for marriage SECT IV. The Ages of a Woman THe learning is 35. Hen. 6. fol. 40. that a Woman hath divers speciall ages at the 7. yeare of her age her father shall have aide of his tenants to marry her At 9. yeares age shee is able to deserve and have dowre At 12. yeares to consent to marriage At 14. to bee hors du guard at 16. to be past the Lords tender of a husband At 21. to be able to make a feoffement And per Ingelton there in the end of the case a woman married at 12. cannot disagrée afterward but if she be married younger shee may dissent till shee be 14. The age of 7. yeares when Bracton wrote this aide for making the sonne a Knight or marrying the daughter was due de gratia non de Iure and pro necessitate indigentia domini capitalis measured by the indigence of the Lord and opulence of the tenants But West 1. Cap. 35. in the third yeare of Edward 1. the Law was made certaine the Lord shall have aide of his tenants as soone as his daughter accomplished 7. yeares age-for the marriage of her Viz. xx s. of a whole knights fée and xx s. of xx I. â—and in soccage and so forth according to the rate more or lesse The King shall have this aide according to
this proportion by a Statute made 25. Ed. 3. and for this aide every Lord may either distraine or bring his writ de auxilio habendo at his election but tenant by grand serjeanty or petit shall not pay this aide Mich. 21. He. 4. fol. 32. no more shall coppy-holders as séemeth by the writ both in Fitzherbert and Bracton for it is Precipimus ut habere facias rationabile auxilium de Militibus et liberetenentibus Now if the Kings writ runne for it before the Statute how is it that Bracton saith it was due but de gratis That perhaps he meant but for the quantity ipse videriâ— if the father dye the daughter being unmarried shee shall recover so much as was gathered and not paied her at the hands of the executor or heire but this aide is onely for the marriage of the eldest daughter and not for no daughter where many make but one heire But sée Bracton fol. 36. b. Where he saith primae genitae filiae non dabitur auxilium tale quia istud auxilium pertinet ad Cap. dom sicut pertineret si non esset nisi unus haeres cum omnes sunt quasi unus hâ—eres SECT V. A Woman compellable to serve THe next age of a Woman is 9. yeares when shee is dowable but wee will stay a while with the virgins concerning whom if they be in the power and governance of parents masters or prochein amies or if they bee poore the Law differeth little or not much from the common forme apperteyning unto males unlesse it been in cases of rape which I reserve to the end of my discourse where the poore have least need of subsidie onely this I observe here By a Statute made 5. Eliz. ca. 4. Two Iustices of peace in the Countrie or the head officer and 2. Burgesses in Cities c. may appoint any woman of the age of twelue yeares and under 40. being unmaried and out of service to serve and bee retained by yeare weeke or day in such sort and for such wages as they shall thinke méet and if she refuse they may commit her to prison till she shall be bound to serve SECT VI. Of Heires BVt leaving this sort to the title of day laborers come we to women wards in the custody of their lords And take for the foundation here the Statute it selfe West 1. Cap. 22. This Statute expresly reciting the materiall point of the Statute of Merton willeth it in every of them to be observed Merton Cap. 6. and the Statute of Merton is this Whosoever lay person shall bee convicted bee hee parent or other to have detained abduced or married puerum aliquem he shall yéeld the value of the marriage and be imprisoned untill yee have both made amends to the partie damnified if the ward bee married and satisfaction to the King for the transgression hoc de haerede infra 14. c. but if any heire of 14. yeares age or upward till 21. shall marry himselfe without gréeing with his Lord to defraud him of the marriage where the Lord offered him a convenient marriage and without disparagement there it shall be lawfull to hold the inheritance untill and after the full age of 21. yeares by so long time as shall suffice to reape and receive the double value of the marriage secundum est inationem legalium hominum et secundum quod pâ—oeodem maritagio prius fuerit oblatum sine fraude malitia et secundum quod probare poterit in Curia Dm. Regis Let us speake of heires and see a litle in what cases a woman shall inherit It is knowne to all that because women lose the name of their ancestors and by marriage usually they are transferred in alienam familiam they participate seldome in heireship with males and therefore Bracton is bold to say Nunquam ad successionem vocatur femina quaÌ„diu haeres superfuerit ex masculis but to this rule he subjoyneth exception and examples the very same which are in Littleton To wit exception of right line right bloud and maner of giving SECT VII Of the right Line A Female may be preferred in succession before a male by the time wherein she commeth as a daughter or daughters daughter in the right line is preferred before a brother in the transversall line and that aswell in the common generall taile as in fee simple for example land is given to a man and to the heires of his body who dyeth having issue two sonnes of which the eldest dieth leaving issue a daughter this daughter shall inherit by the right of blood also a woman shall bee preferred propter jus sanguinis Example a man hath issue a sonne and a daughter by one venter and a sonne by another venter the first sonne purchaseth in fee and dieth without issue the sister shall inherit So it is where a man seised in fee hath issue ut supra and dieth his eldest sonne entereth and dieth without issue c. Bracton who hath both these cases disputeth here as if he were seeking a knot in a bulrush and he findeth a difference where the inheritance is Discendens and Perquisita But Littleton is plaine though the second sonne bee heire to the father in the last case and therfore should have had the land had the eldest sonne neuer entered yet the case being as it is possessio fratris de feodo simplici facit sororem de integro sanguine esse heredem whether the fee was descended or perquisit what skils it here it must needs be if the brother was heire of the blood of the first purchasor that the sister of the whole blood is so too yet there is a great difference betweene land purchased by him that died seised and land discended unto him for the first may goe to the heire on the fathers side for default of such to the heire of the mothers side but land discended must alwaies goe to heires of the blood of the first purchaser and the case may bee such that a female shall cary away inheritance from a male though there be no difference of right line or in the integrity of blood which Bracton calleth jus sanguinis duplicatum as where Iohn Stile purchaseth in fee dieth without issue an ant or ants or uncles daughter on the father side shal inherite before an uncle or uncles sonne on the mothers side where they be both collaterall and the integrity or neernes of blood is alike Put case that the purchasor died leaving issue only Iohn the younger and this Iohn married or unmarried dieth without issue now cannot the land goe to the heires on the part only of the mother of young Iohn and therefore ye must ascend a step higher to the marriage of the father and mother of the first purchasor if ye will finde who shall inherit where if there be neither brother nor sister to the purchasor a daughter to the eldest uncle on the fathers side may inherite before any of the
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
45. Edw. 3. is contra But severall tenancy or non-tenure is no plea in a Nuper obiit for the priuity of blood But a sister may claime by purchase and disclaime in the blood and this is a good plea. If one coparcener die leauing issue a sonne which sonne infeoffeth a woman in all the land c. then marrieth her now cannot the other percener haue a Nuper obiit against the baron feme But she may haue a mordancestor in her owne name and in the name of the seisure which the father had the day of his death for that amounteth to a dying seised see Novel nat br 197. c. SECT XVII Of the writ of right de rationabili parte THere is also another Writ called a writ de recto de rationabili parte that neuer lieth but betwixt priuies in bléed as betwixt brothers in gavell kinde or betwixt sisters nephewes nieces c. It is also for lands in fée simple as where the ancestor leaseth land for tearme of life and dieth having two daughters and after the death of tenant for life one of the daughters entreth into the whole inheritance and deforceth her sister the deforced may haue this Writ it is maintenable by two or thrée sisters against the fourth or by an aunt or niece against a sister that deforceth and this writ lieth as wel where the ancestor dyed seised as where he died not seised It is in nature a writ of droit patent must be directed to the Lord of whom the land is holden from before whoÌ„ it is remoueable by a Tolt as the Haught writ is where the ancestor dieth seised and one coheire deforceth another whether it be in gauell kinde or amongst partners at the common law the deforced hath election of this writ or of the nuper obiit But when he died not seised and a coparcener afterward deforceth the Nuper obiit lieth not The forme of this writ is Precipimuâ— to the Lord ut sine dilatione plenum rectum teneas A. de decem acris cum pertinentiiâ— quas clamat esse rationabilem parteÌ„ de libero tenemento quod fuit I. patris vel c. tenere per liberum servititum tertiae partis c. for it must be séene what rent and seruice the whole land yéeldeth to the Lord according there to shall the plaintiffe be rated in his or her writ If after the death of their ancestor two coparceners enter and the one doe then deforce the other of something appendant or appertenent to that which is holden in coparcenery she may haue a writ de rationabili parâ—e of this appendant or appertenent which shall say quod clamat tenere ad liberum tenementum If a man dying seised of lands intailed haue two daughters whereof the one entereth and deforceth the other the remedy is by formedon and neither by Nuper obiit or Rationabili parte If a sister aunt niece or cousin claime from her ancestor by feofment in fée one which should haue bin coparcener had the feofment not bin deforceth her she may haue a writ of Droit patent and joine the mise by battaile or graund assise come semble saith Fitzherbert because shée claimeth not as heire But where there is no impediment intaile feoffement or such thing all the partners deforced bring a rationabili parte against all the copartners terre-tenants for so it must bée and the heire of an heire may sue for part of the seisin of the coÌ„mon ancestor there battail or grand assise voucher or view lie not neither is noÌ„tenure any plea for the writ lieth only betwéen privies in blood finally the demand in this writ must bée of a portion certaine as of x. acres if xx discend to two sisters and the demandant if she recouer shall haue iudgement of so many to hold in seueralty SECT XVIII Of Partition NOw of Partition it may be made in diuers maners as first for example by agréement amongst two copartners or more which accord to diuide the inheritance into certaine parts of equall valew to bee holden in severalty and alwaies the part which the elder hath is called Ini ia pars though in this kinde of partition there bee no prerogatiue of primer election giuen to the eldest Another manner of partition is where they cause certaine friends to make the parts or diuision here the eldest shall first chuse then the next eldest and so succéedingly If by their whole agréement the eldest make the diuision it is said saith M. Littleton that she shall last make election which is as much to say say I as she shall haue none election at all Littleton hath another maner of alotment wherein after partition made of the lands euery part being written in a seroule and lapped vp in a bale of wax is put into a bonnet which must be holden by some indifferent body and then as wee use to choose Valintines euery partner pulleth out a part the first borne first the rest after her in degrée of ancientry and euery one shal hold her to her chance Also partition may be made in Chancery as when one copartner of full age and another remaineth in ward to the King c. in such case if she which resteth in ward at full age haue not her full part she may sue a writ of partition or Scire facias vpon the record returnable in Chancery to shew why a new partition shall not be made and partition may be of a reversion or of an aduowson Of a reuersion thus that A. shall haue reuersion of such such lands B. the reuersion of such other laÌ„ds of an aduowson that A. shall haue euery 2. 3. or 4. auoidance c. this is good without deed where partition is made of a mannor without mention of the aduowson it remaineth in common sée that case of aduowson and partition of aduowson 2. Hen. 7. 5. a. Partition by agréement of parceners is good in law aswell by paroll as by writing and if vnto two copartners there doe descend two houses whereof the one is worth xx s. and the other x. s. annually the best house may bee allotted to one copartner and she and her heires to pay to the other and her heires for owelty or equalities sake v. s. rent issuing out of her house and all this is good without writing so that the partner that shall haue this rent and her heires may distraine for the same when it shal be arere of common right in whose hands soeuer the house charged shall come and this shall be a rent charge of Common right had and receiued for equality of partition Fitzherb fol. 252. Plow 134. Partition of lands that one partner and her heires shall haue and hold them from Easter to the gule of August alone and by her selfe and the other and her heyres from August till Easter in the like manner was awarded a good partition in the time of Ed. 2.
and by similitude of reason saith Fitzherbert it is a good partition where two Mannors descend to two Copartners that the one shall haue one Mannor by name and the other the other for a yeare to change possession the next yeare and so forth from yeare to yeare commutatiuely betwixt them and their heyres for euer No. na br 62. l. m. Et auxi partie que lun auera le terâ— in ta laut le ter in fee simple est bone partic And partners may make partition for terme of life or for terme of yeares and if one Co-partner lease her part to another Co-partner for terme of yeares yet shée may sue a Writ of partition against her partner the Lessée though the terme be vnexpired 33. Hen. 8. Dyer 52. is a quaere If the one of two Co-partners lease for terme of yeares that which to her belongeth and after the other bringeth a Writ of partition against the Lessor to whom in this partition there is alotted a lesse portion then the due some thinke saith he that the Lessée without remedie must hold himselfe contented aswell as the partner which leased But if the partition had beene without writ quaere SECT XIX Of partition by Writt VVHen Copartners cannot all agree to make partition amongst themselues the aptest meane to compell them is a Writ of partition And if there be foure Copartners one may haue this writ against three or two against two or thrée against one The gist of it by the old Na. bre is where the one entereth kéeping out the other and refusing to make partition but lâ—â—t layeth it where they be all in possession and so soundeth the Writt it selfe for it is a commandement to the Sheriffe Si A. fecâ—â—it te securum c. summoneas B. that she come and shew why she refuseth or permitteth not partition of a Mannor or a wood or such like the which with the appurtenances the said A. and B. doe hold together vndiuided of the inheritance of â— their father Mother or c. Fitzherbert in his Writt of partition setteth downe the forme as a Carpenter should set vp a frame of a Cottage being both to shew on what soile it should stand for he sheweth not the generall gist of his Writ and that his President might make plaine which is not doubtfull that when Partners are in possession one or more may haue a partitione faciunda yet he toucheth not the question whether a Partner ousted or not suffered to enter may haue it 40. Hen. 7. fo 9. in a Writ of partition Keble pleadeth for his Clyent that the defendant was sole seised sans ceo that he held pro indiuiso with the Plaintiffe by Vauisour that is no good plea for admit that shee bee sole seised yet partition lieth well enough but by Brian Chiefe Iustice it is hath been adiudged a good plea in our books for one shall not come to diuide that with another wherein he hath no part And saith Keble in a Writ of waste betwéene tenants in Common it is a good trauerse Non tenet insimul pro indiuiso likewise is it here where we haue trauersed the point and supposall of your Writ and the partie by nuper obâ—jt may recouer in seueraltie and partition shall be made and it was said that the seisin of one parcener is the seisin of both and so the reporter thinketh if one enter c. Where she which entereth claimeth in the name of her selfe and of her partner I can well agrée or if she enter not denying the right of her fellow And if after the death of the common Ancestor A. which is one Coheyre enter silent into the whole inheritance B the other Coheyre may now perhaps without other entry in the name of her selfe and her Companion maintaine a possessorie action against a stranger but when a Sister entereth vindicating all to her selfe by purchase or obiecting against her Sister Bastardie or Attainder and keeping her out of possession this I trow is no entry of both but such a deforcing as the Writs de rationabili parte and the nuper obijt were made to redresse If euery seisin of a partner must néeds be the seisin of all those that can claime as coheyres then there is no deforcing or néed at all of the forenamed writs But séeing that law hath appointed them for lands in see-simple and a formedone for land in taile against deforcers of their coparceners I say that seisin of one of them is not seisin to all of them and hauing a chiefe Iustice on my side I dare hold that non tenet pro indiuiso is a good plea in a Writt of partition which if it be brought by her that is deforced and out of possession it commeth preposterously out of kind and season and out of the order that our Law-founders at the first ordained See Brooke Coparceners per totum ou entrie de vn est le entrie del auter vers estrange pur lour advantage mes nemie pur disaduantage 43. Ed. 3. 19. lentrie d'un nest l'entrie de ambideux entre eux mesmes 40. E. 3. 8. By whom and how the Writt of partition must be brought at this day COheyres in Gauell kinde may compell one another to make partition by Writt but then they must mention the custome in their declaration If one Coparcener dye hauing issue c. her husband being tenant by the courtesie is compellable to make partition but he cannot compell c. by the Common Law for the Writt lieth naturally for none but parceners Fitzherbert and the old na bre haue a note out of the Register that in the 12. of King Ed. they tell not which there was sealed a Writ of partition at Barwicke betwéene strange persons and there it was said it might bee granted betweene any Coheyres or fellow tenants without naming de hereditâ—â—e in the Writt where it was likewise affirmed that such a Writt before that time was neuer séene aswell the other bookes of Law as the Statutes of 31. H. 8. make it out of question that this Writt by the Common Law was onely betwixt Coheyres as the two Writts which we haue passed were by custome in some speciall places ioynt-tenants and tenants in Common might haue a Writt of partition as Fitzherbert setteth downe by the Custome of London Writt of partition lyeth against tenant by the curtesie Littleton 264. Dyer 1. M. 98. Brief de partit at this day lye against the Feoffée of one Coparcener but not for a Feoffée mes vide Dyer 3. M. 128. Likewise before the Statutes if a man were both tenant in Common and tenant in Copartnerie as hauing one third part by purchase from one Sister and another in the right of his Wife he and his wife might bring a Writt of partition which see Nat. br fol. 61. It hath béene much doubted whether partition by agréement betwixt tenants in Common or ioynt-tenants were good without déed But
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
ordinance hath cum de communi consilio prouiso c. reciting the Statute This Statute reacheth not to the King at whose Court all the copartners shall giue their seuerall attendance suite and seruice And if any of the lands partable be holden in Capite euery Coheyre shall and must haue a part of that in her alotment for the Kings profit The statute of Ireland which is a receipt of Hâ—n 3 14 of his reigne to Gerrard Fiâ—zmorrice Iustice sheweth that by those dayes the first borne partner did alwayes homage for her selfe and her fellowes to euery common Lord of the fée who tooke all his seruice per manâ—s primogeniâ—ae which primogenita had in recompence saith the Statute no homage ward-ship or subiection of Copartners nor any thing but the Capitall Messuage ratione eineciae Glanuil which writ before the Statute saith that homage and all other seruices were done to the chiefe Lord by the hand of the eldest parcener for all the rest without guerdon from them or their heyres in the first or second degrée But by him their heyres in the third degrée were bound to doe homage and pay reliefe to the heyres of the eldest daughter c. Because forsooth as Bracton maketh the reason issue being had and continued to the third and fourth degrée the heyre of the eldest might now take homage without feare of being excluded from inheriting that which was altogether vnlike to descend vnto them But by Bracton the youngest Sister should presently doe fealtie to the eldest and by Britton who wrote after Marlbridge the matter rested méerely in the Lords election for thus saith he Election le Seignior aprendre tiels seruices per vn mayne ou per les mains de toutes les parceners Car autrement per droit les gardes marriages des auters parceners pur les parols in le briefe de gard oâ— le plaintiffe dit que launcester l'infant soit son tenant lui fist seruice de chiualer eac 68. fo 175. Now séeing that Glanuile the Statute of Ireland Bract. Britton and al do agrée that euery Lord might take his seruices by the hands of the eldest partner the reason whereof was a desire which the Law had to conserue Seignories in their intierties that Lords should not take or diuide them into mynnomes and Crotchets what was it that caused the making of this ninth Chapter of Marlebridge It should séeme that Lords in those dayes played vpon the aduantage And though they were scrupulous in taking of homage by which they were shut from succession and yet willing enough to take intirely all other emoluments incident or annext to the tenure from one paire of hands yet suite of Court which is burdenous or inconuenient to none but to the tenants they would be and were content to dissipate and it should séeme also that in puisne Sisters and Coheyres though they were easily intreated that the eldest should do all suit and seruice yet they could be well content to giue them nothing for their paines and therefore a Statute was needfull for other things I will not accuse old writers of error they erred not perhaps if they take it as it was taken by Lawyers then though that taking staggered from Lawes conformitie This I say to me the statute of Ireland is sufficient to proue that the eldest Sister shall haue no gard marriage or subiection of the yongest and neither homage nor fealty by Littl. can be taken otherwise then a seruice incident to a tenure for which it is lawfull to distraine As therefore when a Mannor descendeth to two partners each one may haue parcell of the demesne and parcell of the seruices and so of one there may step vp two Mannors And if the diuision be that one shall haue the demesnes and another the seruices the suite is now in a very haut suspention and the Mannor for a time broken in pieces but it shal be a Mannor againe if she which had the seruices die without Issue per Thiru 12. H. 4. fo 34. 35 So I doubt not but when a tenement holden by seruice military descendeth vnto two coparceners and division is euenly made each of them may pay rents and do seruice for her part to the Lord who may take fealty and homage of either of them if he will And may be compellable to take homage of one of them at the least which for the warrantie shall be auailable to both SECT XXV What seruice belongeth only to the eldest parcener to doe THere is some thing besides suite of Court that shall lie only vpon the part which by an Alcumized tearme we call einitia Fitzherbert titulo partition 18. hath this note If the Earledome of Chester descend vnto two parceners it shall be diuided betwixt them As other lands vse to be and the eldest shall not haue the Seigniory or Earledome whole to her selfe quod nota adiudged percotam curiam 23. H. 3. But this notwithstanding if law should haue the course which she had in her state of innocencie I thinke the capitall Messuage of a Knights fee and the head of an Earldome or Baronie in partition ought euer to goe to the eldest And if because there is not else perhaps wherewith to make purparte to the youngest coheyre or not any other thing holden in Capite to be distributed for the Kings aduantage and so for necessity quae nullis vinculis legum contineâ—ur the head of a Barony be diuided yet the indiuisible seruice by which it is holden is scutage and grand-serjeantie I meane the very actuall seruice falleth by right vpon the eldest parcener Et vbi est commodum ibi debet esse onus and so vbi est onus debet esse commodum whether the case following proue mine assertion or no I will set it downe out of my Lord Dyer and then prepare me to speake of another partnership Humfrey Bohune sometime Earle of Hereford and Essex held the Mannors of Harefield Newman and Whitenhurst by seruice of Constableship of England which is grandserjantie and dyed seised hauing issue onely two daughters they entred tooke husbands and the husband of the youngest became King then partition was made in which the King and his wife did choose Whitenhurst and Harefield and Newman fell to the other partner By the opinion of all the Iustices of England the reseruation of the tenure at the first was good the two daughters before marriage erercise this office by sufficient deputie and after marriage the husband of the eldest might execute alone And per omnes iusticiarios as when there are two daughters and the Father dyeth seised of lands holden of one of them the whole seruice if it be entire as homage is reviued after partition so here vnitie of parcell of the tenansie in the King did not determine the office but it continued in the other parcener so that the King might exact the seruice or refuse it at his pleasure as euery Lord may
villenage 35. And if a woman Heyre haue issue by her husband commit felonie and be attainted it hath béen mostly holden that the husband shall be Tenant by the Courtesie notwithstanding and that after Issue had the Lord may auow for homage vpon the husband without the wife 21. Ed. 3. 49. By Parkins 91. 475. Likewise if the Wiues Inheritance be recouered against Baron and feme by false oath or erronious Processe and execution is had and sued of this recouerie if they haue Issue afterwards and then the wife dieth the Baron now reducing the Land by attaint or error shall hold per le Courtesie SECT LII What if the Childe die IF a man haue Issue by his wife that is here in possession the death of the Issue is no losse of Courtesie and by Parkins if a Daughter and Heyre apparant take a Husband haue Issue by him and the Issue dieth if now the Father die and the Baron and feme enter he may be Tenant by the Courtesie without hauing other Issue Brooke makes it questionable Also by Brooke if a man die his wife being priuement enseient a Daughter entreth as heyre taketh a Husband and hath Issue if a Sonne post-humus enter vpon the Baron and feme and the Issue of the Daughter dieth and the posthumus dieth without Issue the Baron cléerely shall not be Tenant by the Courtesie vnlesse hee re-enter in his wiues time and he doubteth though the Baron enter sans other Issue bility his wife may beare him may by possibilitie be heyre of that estate Si le possession le Baron ne soit loyalment anient As addeth Parkins the Wife shall be endowed SECT LVI The Husband must be seised DOwer is of the possession of a Husband the ground of it therefore is Marriage a Concubine then shall haue no Dower no more shall shee which is but onely contracted and it was holden by some 10. H. 3. that she which was married in a Parlor or Chamber should haue no Dower but it is now taken otherwise Also where Marriage is cleerely voyde and vnlawfull there groweth no title of Dower But if a woman first contracted to E. I. intermarry afterwards with T. K. this Marriage is voydable but not cléerely voyde and if it be not frustrated otherwise then by death of T. K. the Wife shall haue Dower of his Land Here yee may perceiue that which destroyeth an absolute true Marriage destroyeth Dower also for though by Bracton there may be by speciall Constitution a Dower appointed that shall stand good against the tempest of diuers assaults yet by ground of the Common Law Matrimonium est fulcimentum doâ—is And Bracton saith in his second booke and 39. Chapter Vbi nullum omnino Matrimonium ibi nulla dost igitur vbi Matrimonium ibi dos quod verum est si Matrimonium in facie ecclesiae contrahatur SECT LVII Matrimony may be and yet no Dower THough Matrimony doe alwayes precede Dower yet doth not Dower alwayes follow Matrimony for first where the husband had no Land the Wife can haue no Dower by the Common Law Bracton and Breton which giue a woman Dower in a certaine somme of money or in other Chattels speake rather as Ciuill Lawyers then méere English Also Dower is not granted vnlesse the Husband is aboue 7. yeers old and the wife aboue nine 13. Ed. 1. Fitzherbert Feme perdera Dower si son Baron morust deuant 9. ans d'age Dyer 14. Eliz. fo 313. Also if a man marry his bond-woman in grosse and die she shall not recouer Dower against the Heyre for shee is his bond-woman but against the Feoffée of her husband she shall recouer Dower vnlesse she be regardant to the Mannor whereof the Feoffement was made SECT LVIII What Seisin is requisite in a Husband WHere the Huband hath neither possession in fact nor possession in Law during the Couerture nor any thing saue onely a right or title the wife shall not haue Dower as also if the Baron suffer a Disseisin an abatement a Condition broken an alienation in Mortmaine or cesser of his rent or seruices by two yeares space c. and then he take a wife dieth before reduction of his Land or if iudgement be giuen for him in a plea of Lands and hee marryeth afterward and die before entry or suing of execution the wife shall not haue Dower of these Lands So is it if I. S. exchange Lands with T. K. and I. S. entreth but T. K. taketh a wife and dieth before entrie his wife shall not haue Dower in any of the Lands exchanged but where a husband is once actually seised the wife shall bee endowed notwithstanding any disseisin afterward done to him or feoffement made by him either absolute or conditionall And if before or after Marriage celebrated and not dissolued a possession in Law be cast vpon a Husband by descent escheate or fall of some remainder the wife shall be endowed though the Baron die before entrie as if the Kings Tenant die seised and his Heyre being married dieth before office or entrie the wife of the heyre is dowable so if rent desâ—end to a husband which dyeth before day of payment c. for there is not requisite in the husband such a seisâ—n as whereof an assise lyeth but if a precipe quod reddat might lie against him it sufficeth 4. He. 7. fo 1. Brooke 66. in Dower A husband may haue possession in law by descent of a villaine in gros or possession in law of a rent charge by excepting the déede of grant and hereof the wife shall be endowed although the Baron doe afterwards refuse receit and seisin of the rent But iudgement in a Writ of annuity for the Baron taketh away Dower of a rent charge from the wife and a woman may haue Dower of an estate that was suspended as if the Lord married with his Tenant now is the Seignorie suspended but if he die the wife shall haue Dower a third part of the rent per retâ—igneâ— for the Seigniorie though it slept yet there was still a possession in Law of it in the husband Here it must not be forgotten that it â—éemeth doubtfull whether an abatement of a stranger which is a possession in fact destroyeâ—h a Possession in Law it appeares by Park â—o 72. sect 371. 372 4. H. 7. 1. per meux that it doth not But 21. Ed. 4. â—o 60. which is accorded for good Law 4. H. 7. fo 1. where in a Writt of Dower the Tenant pleadeth ne vnques seisie in dower c. the demandament sheweth that Lands descended to her husband she being then his wife and that he dyed before entry made either by him or by other person issuit est donable per le lâ—y and shee was inforced by the Court to plead that none entred for if a stranger had entred she had not béene dowable And if she had pleaded 〈◊〉 〈◊〉 que Dowâ—e la Poet this had wayned the speciall
second wife may be endowed for after the death of the first wife the remainder in generall taile vesteth maine tenant and is executed 50. Ed. 3. fo 4. Newton saith 7. He. 6. fo 11. if a man make a lease for yeares with Condition if the Lease pay an hundred pound at the end of the terme that then he shall haue fée etsi nemy que il auera que terme that in this Case by paying an hundred pound at the end of the terme the termer shall haue fée from the beginning and his wife is Dowable quere for it seemeth tunc hath relation but ad tempus solutionis If Tenant in Dower lease her estate to the Heyre for her life and the Heyre dieth his wife shall bee endowed notwithstanding the life of the first dowager 45. Ed. 3. fo 13. In action of Dower the tenant shewed that Tenant per Courtesie granted his estate to him in the reuersion rendring rent with clause of re-entry for non-payment he in the reuersion marry the demandant the tenant per le Courtesie re-entreth for the Condition he in the reuersion died his wife was barred Dower for the surrender might well be vpon Condition 14. E. 4. fo 6. SECT LXIII Where Dower is giuen or not giuen of an estate determined VVHere the Husbands estate is loyally enuicted or determined Dower for the most part faileth As thus two men make exchanging of two acres executed in fée one of them dieth his sonne takes a wife and entreth and the otherpartie being impleaded voucheth the sonne which entreth into warrantie so that the Tenant recouereth in value the acre which he deliuered in exchange the sonnes wife shall neuer be endowed of this acre for the title of recouerie in value is from time of the exchange by way of relation and so before the Marriage Likewise if two Copartners in gauell kinde make partition one of them marrieth and the other being impleaded prayeth ayde of his partner which ioyneth c. if the demandant recouer and the Tenant haue pro rata of the partners part which afterward dieth his wife shall not haue Dower of that which is recouered for the title of recouery pro rata is from the death of the common Ancestor saith Parkins As a Villeine takes a wife purchases lands in fée his Lord enters the Villeine dieth his wife shall haue Dower for the Lords title begun by his entrie and the wiues by seisen in the husband the Tenant alieneth in Mortmaine or erecteth a crosse sée thereof W. 2. c. 33. and the Lordentreth the tenants wife shall haue Dower notwithstanding So if the Lord recouer in a Cessauit the tenants wife shall be endowed yet if the tenant had made part and brought a writ of Dower it came to issue ne vnques seisie c. The Iury found the speciall matter and being asked what they thought of it they answered because there was neuer any permanent seisin in the husband that she was not Dowable Your thinking said Iustice Thorpe is contrary to your verdict for here was a possession whereof she is Dowable Et ceo fuit opinion de toutes Littleton also séemeth to be against me in Estate sur condition but it is not ipse dixit but plusiors on t dit Therefore if hee were aliue I might perhaps intreate him to bee on my side SECT LXIV How much and how a woman shall hold in Dower THe Common Law alloweth for Dower the third part of that whereof the Husband during Couerture had such seisin as is before declared to haue and hold if it be in lands by limits and bounds But this Indowment per metes bonds cannot be where the husband is Tenant in Common If one of two Copartners in gauell kinde take a wife and die before partition made the Heyre may assigne his mother a third part of his moity to hold in Common or he may first make partition and then endow her per metes bonds Generally when a woman recouers Dower the Sheriffe shall put her in possession per metes bonds and it hath beene holden that wheresoeuer the heyre assigneth Dower a third part per mi per tout to occupie in Common if the widdow accept it accordingly that this should be a good endowment The Law seemeth to be otherwise By Common right Parkins saith a woman shall haue Dower the third auoydance of euery Aduouson and the third part of euery Mannor that was her husbands for if shee take it in another forme by assignment from the Heyre she may suffer preiudice As if a man seised of thrée Mannors takes a wife and grants a rent charge issuing out of all thrée Mannors and dieth now if the wife by assignment of the heyre accept one Mannor in Dower for all the two parts of this Mannor remaine subiect to the distresse of the granter because the woman for the two parts accepted here her Dower in counter comen droit But had shee vpon recouery of Dower béene assigned this Mannor by the Viscount she should haue held all discharged Yet if a married man seised of thrée Aduousons of thrée seuerall Churches grant to I. S. that he shall present to the Church which next becomes voyde and the granter dying his wife recouers in a Writ of Dower against the heyre before auoydance and the Viscount assigneth to her the Aduouson of one Church for all c. if now the Church thus assigned become voyde ascuns diont saith Parkins the grantée shall present and not the woman for she is endowed incounter common droit and I. S. the grantée which is a stranger to the assignement cannot otherwise take aduantage of his grant But in the first Case after assignment of one Mannor by the Viscount the grantée might distraine in the other two Mannors SECT LXV Lesse or more then a third part THough by the Common Law a woman is to haue no lesse then a third part yet if a widdow will be so foolish as to accept a fourth or fift part or moity of her husbands Inheritance assigned in allowance of all his Franke Tenement it is a good assignement And by custome in some seised of three acres in fée marry and die and a stranger which hath but two of these acres entreth by abatement into the third and after hee hath married the Widdow hee infeoffes a stranger of all thrée acres by indenture resexuing vt supra and dieth the rent goeth out of all the acres but if the heyre of the first husband recouer his acre and assigne it to the woman in Dower shee is Dowable also of the rent for indéed it is entirely issuing out of the two other acres And if a man seised of thrée acres in fée make a feoffement of two reseruing rent out of those two acres vt supra the wife hauing the acre which remained in Dower may haue Dower also of the rent reserued quâ—ere saith Parkins car il est incounter le conscience de diuers homes And making
an issue of ne vnques accople in loyall Matrimonie and that must be tried by the Bishop Therefore for the better direction of Brides take the case verbatim as it is propounded with the solution 22. Eliz. Dyer 369. A woman of full age contracts Matrimonie by words of the present instant with a young man of twelue yeares age and this being solemnized in face of the Church with consummation after a sort the young man being put to bed to her died vnder age quaere if the Ordinarie ought to certifie an accomplement in loyall Matrimonie Solutio doctorum quindecem We be all of opinion that she is to be taken for a loyall wife coupled in loyall Matrimony and in question of Dower that the Bishop ought so to certifie for albeit that in other regards these were but Sponsalia de futuro yet in case of Dower and the priuiledge thereof they are extended to Matrimony consummate Et iudicium datum pro dote heere ye say was the Law as cleere as Christall on your side when supper is done dance a while leaue out the long measures till you be in bed get you there quickly and pay the Minstrels tomorrow SECT II. Baron and Feme one person NOw that Matrimony is celebrated and consummate here is so strait a fellowship or rather identitie of person that if a feoffement bee made to a man and his wife iointly with I. S. the Baron Feme take but a moity and in a feoffement to Baron and Feme and I. S. and T. K. they take but a third part and where a feoffement is made to a man and his wife ioyntly they take not seuerall moities as other ioynt Feoffees doe but the Baron and feme take intirely together and in Law they are said to be seised by intierties and there is no halfing betwixt them For if the Baron charge the whole land or part of it with a rent the wife shall hold it discharged after his death and if he sell all or part and die the wife shall recouer all by Writt of cui in vita See 40. assi pla 7. If a Villeine and his Wife purchase land ioyntly the Lord enter and the Villeine die the Feme or her Heyre shall haue the whole Land Eadem lex videtur where the Husband ioynt-purchaser is an Alien borne or attaint in premunire or of fellonie But the booke of Assises goeth not so farre The videtur is Parliament 43. in Brooke where likewise ye shall see it was holden 5. H 7. fo 31. that if T. infeoffe W. and A. his wife afterward it is by Parliament enacted that all estates made by T. to W. shall bée voyde that the feoffement shall be voyd as well towards the wife as towards the Husband because they are but one person in Law and the Feme taketh nothing but by agréement of the husband And vpon the like reason is the case Dyer 3. Eliz. fo 196. Sir Rob. Catline purchase land held in capite to him and his wife and his heyres without licence and the Queene pardons all offences pro quacunque alienatione sibi facta and doth not speake of the wife in the pardon and yet it was allowed in the Exchequer But if the feoffement had beene to W. and I. S. this I. S. should haue held his moity notwithstanding the Parliaments decrée and this seemeth to bee the better opinion though there were in manner equall number to maintaine That if the feoffement were before couerture the Parliament should voyd it for a moity but if it were after couerture it should voyde for no part against the Feme when shee was discouerte leauing to Parliaments their omnipotencie it is cléere the husband cannot seuer the Ioynture betwixt him and his wife as an other Ioynt-tenant may if the Ioynture were made during Couerture because there is then no moity Otherwise it is if the Ioynture were made before the Marriage And if lands be giuen to a man and his wife habendum one moity to the husband and habendum the other moity to the wife now they bee seised of moities as Tenants in Commom But for this I finde no other authority then the opinion of Knightly in Dyer 28. H. 8. 10. b. SECT III. Baron feme cannot infeoffe one another MOreouer this Conglutination of persons in Baron and feme forbiddeth all manner of feoffing or giuing by the one vnto the other for a man cannot giue any thing vnto himselfe therefore 27. H. 8. fo 27. In action of debt vpon an obligation to performe couenants where it passed for the Plaintiffe because the Defendant had not paid annually seauen pound to his wife it is alleaged in arest of Iudgement that the Couenant was impossible in it selfe c. But Chomeley Shelley and Fitzherbert moued the husband to agrée with the Plaintiffe Car le exception sert de riens for although in strict intelligence of Law money and Chattels paid deliuered or giuen to the wife by the husband are still his owne yet a man may giue his wife a paire of hose saith the booke as a man is bound by honesty so he may be bound by red waxe and parchment to finde his wife sustenance and to bee bound to giue her money for her securitie is all one from this Lanthorne I thinke he tooke his light which bound a gentleman of mine acquaintance to giue his Wife the Obligée his Daughter yearely such and so many gâ—wnes Hertles c. And the meaning must bee taken and obserued in the booke of 4. H. 7. fo 4. is another memorable Cause A man was bound to I. S. by obligation to make a sure estate to a woman in certaine tenements within three moneths after his fathers death The Obligor marrieth the woman in his fathers life time and the Matrimony continueth till the three moneths be expired the obligation is forfeited Vauisor said the husband might well haue performed the condition by fine leuied vpon a writt of Couenant brought by a stranger against the Baron and feme Fisher said he might haue performed it by making a Lease vnto a stranger the remainder to the wife quaere of that Vauisors performance had beene good I thinke if there had beene in the beginning a full purpose and intent of intermarriage betwixt the woman and the Obligor But that appeares not and therefore being that hee hath brought himselfe to an impossibility of performance either of words or meaning the Obligée must néeds be allowed the aduantage If the obligation had béene to the woman her selfe the condition by inter-marriage had béene dispensed with for where the Obligee is a cause that the condition cannot be performed the not performing is without penalitie to the Obligor as if in the old dayes I had béene bound to an Abbot that A. should infeoffe him c. before Christmas if A. had presently entred into Religion my bond had presently beene forfeited not so If A. had béene professed vnder the obedience
NOw let vs looke backe a little and see what shall become of the dealings which Mistris Titus had whilest shee was Sempronia an agent in the world widdow or maide sola and vncouert SECT XII Of Infancie TO debate matters of infancie would aske a whole volume perse But breefly know that all deeds gifts grants c. made by an Infant which take not effect by deliuery of the infant be absolutely void By matters in fait or writing which take effect by hand and deliuery are onely voydable by the infant or by them which haue the infants estate Out of his rule are excepted acts apparently of necessity or profit to the infant or which can be no disprofit to him for manger boire necessarie apparell and schooling the obligation or couenant of an Infant is good Also an Infants presentation to a Church is good enough for danger of lapse and because it is no matter of emolument and things done by vertue of office as giuing of goods or payment of debts by an infant Executrix are good so are acts which concerne the infants proper purchace As if estate be made to an Infant of two acres to haue and to hold the one for life the other in fee a feoffement of one acre made by the Infant is a good election And it is said fo 104. in Dyer that an Infant is bound by all Statute Lawes if there be not an expresse exemption Now whatsoeuer a Feme sole might auoyd by infancie she and her husband may auoid it by entry or action after Marriage if they take the time else not For example An infant feme sole hath title to enter for Mortmaine within a yeare after alienation or title to enter into the purchase of her villeine before his alienation if by lachesse she let slip her aduantage as she may doe notwithstanding her infancie no wise husband that she taketh afterward can mend it for here was but a title to that which neither she nor her auncestor euer had But if an infant Feme sole haue a right as vpon disseisin done to her or her auncestor she may alwayes enter whilst she is sole notwithstanding any descent during infancie And so may her husband which marrieth her after the descent Littl. teacheth vs fo 95. Chap. Descents that lachesse of a husband which suffers descent shall not toll the entry of a Feme couert or her heyres after Marriage dissolued But there is an addition to Littleton that it is otherwise where a title is already giuen to a Feme sole which taketh a husband and suffers descent c. for it shall now be accounted the Womans folly that shee would take such a husband Howsoeuer it be Law or howsoeuer it be vnderstood the Case before must néeds be good Law for an infant Feme hath as much fauor as an infant Male And taking of an husband cannot toll an entry which was saued to a Feme sole by infancie neither doe I perceiue how the husbands lachesse at the time of descent can toll the Wiues Infancie to make any imputation of folly where infancie might excuse it By Parkins If a man lease two acres to me for life the remainder of one of these acres to a Feme sole which afterwards takes a husband and then the Lessée dying the Baron entreth into one acre and thereof enfeoffes a stranger by mets and bonds the wife shall not after his death enter and if Baron and Feme make a gift in taile or lease for life of the wiues Land rendring rent so soone as the Baron dies the reuersion is onely in the wife who by accepting the rent shall bind her selfe and her heyres But if shée will refuse the rent because she was vnder age at time of the feoffement it séemes she may be receiued to a dum fuit Infra etatem wherby she affirmes the feoffement to be her owne If this be infallible Law I doubt not then if a Feme infant disseised doe marry and during her infancie the husband suffereth a descent but her entry is saued and she may enter after Couerture dissolued if not before But Fitzherbert concludeth with a quaere and so must I. SECT XIII Acts c. of a Feme sole being full Age. VNderstand now by a Feme sole a Woman of sull age If a Feme sole become indebted and marry the Baron and Feme may be sued for this debt during life of the Feme If the Creditor sue the recouer the Baron shall be charged with it after the wiues death aliter non A Feme sole Lessée for life rendring rent takes a husband the rent is arrere the wife dieth though here be no recouery in the wiues life time yet because the Baron tooke the profit he is still chargeable in a Writt of debt for the rent for quisentit commodum sentire debet onus If a Feme endowed of rent take a husband and die the husband shall haue action of debt for the rent arere for it was a duty accrued during couerture But if a man be bound to a Feme sole and she takes a husband and the day of payment comes during Couerture now if she die her husband cannot haue an action of debt vpon the obligation for this was a thing in action before marriage Nat. bre fol. 120. 121. And agréeing to that is 39. H. 6. 27. Br. Testaments 10. but by that booke the Wife may make the Baron her Executor and so saith the Booke of 12. Hen. 7. 22. If a Feme sole being made Executrix take a husband she remaine still a disposer of the Testators goods to his vse and after payment of his debts she may deliuer Legacies and after all that giue the rest for Gods sake maugre le test sa Baron But vpon such a giuing of goods or deliuering of Legacies before payment of debts the husband may haue an action of trespasse for gift before payment is not a right administration but a deuastation of the Testators goods Par. fo 2. and 18. H. 6. A feme sole seised of a carue of land grants out of it a rent Charge by déed and deliuers this deed to a stranger with Condition to deliuer it to the grantée as her déed if he goe to Rome and returne before Easter the Woman takes a husband the grantée performes the Condition the déed is deliuered to him he hath a good rent Charge yet the Baron was seised of the land before the grant tooke effect what though if the Feme had infeoffed a stranger of the land he should haue held it charged for to some intent the grant hath relation from deliuery of the deed as an escrow though for the rent the grantée cannot haue that but for the dayes incurring after the darraine deliuery and if the Feme at the deliuery of the escrow had béene marryed all had béene voyd Par. fo 2. 3. and fo 29. some hath maintained he saith where a Feme sole deliuers an
Lessor running to smoke rightly to smoke which is something more then nothing for if after all this the Lessor bring an action of waste against the Baron and Feme the Baron cannot barre her by shewing her reprisall and remitter but hee is stopped from speaking against his owne Feoffement and receipt So that here may bee an estoppell or conclusion by a matter not witnessed with specialty or any manner Scripture But if in the action of waste the Baron will make default at the grand distresse the wife vpon her prayer receiued to shew her matter shall barre the Lessor of his action right well For in euery case where a woman is receiued to plead in her husbands absence she shall haue aduantage as if shee were a Feme sole And the reason why rendring backe the land by the Alien to Baron and Feme worketh a remitter though it were by â—ne is because a Feme Couert that taketh any thing by fine is neuer examined by the Iustices But where somewhat is to bee conueyed from a Feme Couert by a fine as if Baron and Feme make cognizance to another c. or a grant or render or a release by fine in all or such like cases because the right of a Wife is passing and she shall be eternally concluded she must bee examined before the fine can be receiued and if shee confesse that her husband menaced her if shee would not leuie the fine c. it shall not be receiued 15. E 4 â—0 1. But where nothing is moued in fines saue onely a wiues purchase and gaining there is vsed none examination of her and therefore such fines doe not conclude her If Tenant in taile discontinueth it and dieth and the discontinuee makes a Lease to the Daughter and heyre of the Tenant in taile being of full age and to her husband for their two liues the daughter is remitted If Baron and Feme Tenants in speciall taile be and the Baron alieneth in fée and takes backe an estate to him and his wife for their liueâ— because they are but one person and the estate is likewise one and intire without moities and the Feme cannot be remitted here without the Husband be also remitted they are adiudged both in their remitter But the Baron himselfe is stopped from claiming so much contrary to his owne alienation If Lands he giuen to a Woman in taile remainder to another in taile remainder to a third in taile with remainder ouer in Fee if the woman take a husband that discontinueth in fee all the remainders are discontinued and if the Wife dyeth without Issue there is no remedie but a Formedon by turne if the first second or third Donée die without Issue But if after the discontinuance an estate be made to the Baron and Feme for their owne life or another mans life or any other estate the Wife is remitted and so are all they in remainder If the Feme die the next in remainder may enter and so is it for them in the reuersion after the caile is ended A Lease of a house is made to a Feme sole for terme of her life and in a â—aint or false action a stranger recouereth this house against her by default so that she may haue a quod ei deforcear by West 2. ca. 4. now is the reuersion of the Lessor discontinued and hee cannot haue an action of waste But if the woman marries and the recouerer lease this house to the Baron and Feme for life the wife is remitted to her first estate by the Lease the first Lessor to his reuersion and he may haue action of waste if there because Yet here if the other which recouered in the false action bring an action of waste the Baron hath no other remedie but to make default at the grand distresse and then the wife receiued may bar him by shewing the fainâ—nes or falshood of his action whereby he recouered If after discontinuance c. the Baron take backe estate to himselfe and his Wife and to a third person this is a remitter for a moity and for the other moity the Feme must sue her cui in vita after the death of her Husband If after discontinuance of the Wiues estate the Baron goe beyond the Seas and the discontinued lease the Land to the Wife for life and deliuer seisin if the Baron agree thereunto at his returne this is a remitter for the Feme shall be adiudged as an Infant and not as a Feme sole in this Case Quaere saith Littleton if the Baron at his returne disagree c. whether this oust the Feme of her remitter If the Baron discontinue the discontinuée be diseised and the disseisor lease the tenements to the Baron and feme for life this is a remitter to the Wife though the Baron were consenting to the disseisin But if the Baron and Feme were both of Conen and Consent to the disseisin the wife shall be a disseiseresse and not remitted If the discontinuée make backe estate to Baron and Feme by indenture vpon condition viz. rendring rent and for fault of payment re-entry and because the rent is arâ—eare the discontinuée doth re-enter vpon this entry the woman may haue an assise of nouell disseisin after the husbands decease for the condition by the remitter was cleane extinct in truth though during couerture the Baron was estopped c. so that he and his Wife could not haue an assise together If the Baron discontinue take backe estate to himselfe for life the remainder after his decease to his wife for her life here is no remitter till the husband be dead but the Wife suruiuing Franke Tenement is cast vpon her maine Tenant will she nill she by act of Law and shee is remittted for though shee enter not yet shee can haue none action against any body for this land but any man that hath cause may haue action of it against her because a recipe quod reddat is maintainable against tenant in ley and that is the widdow here But Tenant of Franke Tenement in fair is one which hath an actuall seisin and vpon disseisin thereof may maintaine an assise The Statute of Glocester perceiued how by common Law a man may play fast and loose with his Wiues Inheritance by feoffement to discontinue her estate and to continue it againe by resumption and so to make it Inheritance or not to his wiues at his pleasure But a feoffement doth onely barre the Wiues entry what if to his feoffement the Baron aimes warrantie what if to his warrantie assets what if he leuie a fine Glocester ca. 3. anno 6. Ed. 1. is If Tenant by the Courtesie alion c. his sonne shall not be barred in a Writt of Mortdancester by the deed of his Father from whom none heritage is descended to demand and recouer the mothers land although his Fathers Charter be with warrantie for him and his heyres But if land descend to him de part son
seisin the Baron dieth she accepts the rent the may haue a cui in vita by the common Law for the acceptance here maketh not the Lease good because the liuery which the wife made was as seruant to her Master and onely the act of the Baron Par. 41. we haue concerning acceptances some plentifull Learning 21. H. 6. fo 24. Ascu saith there That if Lessée for yeares bee in arrerage of rent and die his Executors shall pay the arrerages if they occupie the Ferme contra if they waiue possession and so if a Lease for life be made to Baron and Feme the Baron commits waste and dies the wife shall be subiect to an action for waste done by the husband if she occupie the land contra if she waiue the possession and by Paston in the end of the case if Baron seised â—ure vxoris make a lease for life of the land and die the wife can haue no action of waste for she was not partie to the lease ex hoc sequitur that a woman vpon acceptance of rent of lease for yeares made by her husband without being her selfe a partie is not bound but shee may enter And albeit the lease were for life yet acceptance barreth not a cui in vita if she were not partie c. 26. H. 8. â—â— 2. per curiam if Baron and Feme sell the Wiues land make feoffement and the Vendée by the Indenture of sale couenants to pay ten pounds annually to the Baron and Feme during their liues if the Baron die and the feme accept the ten pounds this is no bar in cui in vita no more then acceptance of rent after Marriage dissolued where the Baron a per luy made a feoffement or lease But acceptance of rent c. where they both made a feoffement or lease for life is a barre of all actions I will hunt for no farre fetcht learning of acceptances but this I finde if a man lease his land to â— 8. to hold at will by certaine rent none acceptance of the rent here after the Leassors death can barre the Heyre of entrie or make any â—ffirmance of the lease for acceptance can neither make good a lease determined by entry or a lease already void without entry by the lessors death And he that leaseth to hold at will endeth that will when he endeth his life but a lease for yeares by an Abbot or Tenant in taile is not by their death presently void but voydable and the successour or Issue by acceptance of the rent affirmes the Lease So doth the Feme affirme the Lease made for yeares by her husband of her Land by acceptance when she is become sole and sée Dyer 5. Mar. 159. by the opinion of thrée Iustices Dyer Stamford and Browne if Baron and Feme had made a Lease by Indenture rendring rent and the Baron before rent day die and the Feme before the day take another husband who accepts the rent and dies this acceptance shall bind the Wife but note and take with you this peculiar rule where acceptance binds her that she be a partie to the Lease and that by writing for if a man makes a Lease for yeares without déed of land which he holdeth in right of his wife this was méerly void towards the wife so soone as the Husband is dead and acceptance of the rent is to no purpose Plo. 431. per Bromley Againe 9. H. 6. If tenant in Fée iure vxoris make a Lease for yeares and the wife dieth the Lessée shall pay the rent vntill the Wiues heyre enter for so long there is a continuance of a Fermour by force of the Lease but none â—â—owry lyeth for the Husband because he hath no reuersion And an action of trespasse vi armis may be against him but he cannot haue action of debt for the rent But to come home to the very brinke of the Statute nota saith Dyer That the common opinion amongst all Iustices at this day is If Baron and Feme make a Lease for terme of yeares before the Statute of 32. Hen. 8. by Paroll reseruing rent to them both if the wife when shee is become sole accept the rent at the Fermors hands this binds her not from anoyding the Lease if it were not by Indenture for her assent was requisite at the beginning and that ought to haue appeared by déed Dyer 1. Mar. fo 91. The same Learning is 4. Mar. fol. 146. When a Feme Couert departs from her Land the intent consideration and cause ought to be expressed in scripture to proue her consent to the whole Mannor for it is agréed for Law That if before the Statute Baron and Feme had made a Lease by paroll of the Wiues Land for terme of yeares rendring rent though after the Barons death she had accepted the rent yet she might out the Termer because her priuitie to the Lease appeares not per escript likewise if a feme couert suffer a recouery or fine of her Land it shall be intended by Law to be to her owne vse if there appeare none other intent expresly by Writing And none auerment shall be taken of intent or consideration in such Case other then the Indenture specifieth SECT XXV Obseruations vpon the very Statute I Haue shewed what strength a Demise or Lease for yeares made of the Wiues Land by Baron and Feme or by the Baron onely was of before the Statute and is of being made since the Statute without the appointed circumstance and solemnitie Now a little to the very Statute As I said before the ordinance is that Leases shall bee good c. But not directly that any terme shal be boyd though voyd of strength by this Statute they may be many wayes as appeares by the prouiso Note that the forerunning Lease Demise or occupation by Fermors must bee deriued from one that had Inheritance for if at the end of a primitiue Lease made by the Lord of whom the Tenancie is holden or by the Kings grantée or committée of wardship or by tenant in Dower or by Tenant per le Courtesie some of which may by good possibilitie haue had power to make Leases by space of twice twenty yeares a tenant in tayle makes a Lease this succéeding demise hath no vertue or ingredience of the Statute though it séeme to haue good correspondence with it And it is doubted whether a Ferme continued twenty yeares by the Donors demise be sufficient or no to make roome for a new Lease This for ought I perceiue is by a prudent interpretation of the Constitution rather vpon equitie and intent then vpon the Text tenants in fée simple or tailed which transmit their possession to their déere off-spring will not make Leases to any great disaduantage of any of their owne babes or blood and therefore their Leases may well bee â—mitated But like enough it is that Tenant per le courtesie or in Dower or in right of his owne or in
shall be deemed and construed to be the act of both of them as if the Baron seised in right of his Wife or ioyntly with his wife assigne Dower to another woman it bindeth and so granting of a rent for equality of partition and atturnement by the Baron alone bindes the Wife SECT XXX of Iointures I Will enter no further into the streame of Fines and recouerie they require a cunning swimmer And a short Discourse cannot possibly make any plaine discouery of them otherwise this place would haue borne the Doctrine fitly about making of ioyntures for all husbands are not so vnkinde or vntrusty as to endamage their Wiues by alienation of their Lands but contrariwise the greatest part of honest wise and sober men are of themselues carefull to purchase somewhat for their Wiues if they be not yet they stand sometimes bound by the womans parents to make their Wiues some Ioynture If husband Father Mother and all would be vnmindfull of prouision in this point yet very many of our English women haue with their singular vertue so much wisedome of their owne as to foresee for themselues and discerne the difference betwéene that which wee call Dower and Ioynture Ioyntures saith Dyer 4. M. fo 148 are made for the most part to Baron and Feme ioyntly or to the Feme onely this also is comprehended vnder the terme Ioynture before Marriage or after for sustentation of the charge and necessities of Espousalls and they are made causa matrimonâ—â— gratis without the consideration of money bargaine or any thing sauing for loue and affection of the Baron or his ancessors and these Iointures are a present possession But Dower must be tarried for till the Husband be dead It must be demanded sometime sued for sometime neither with suit or demand obtained Againe Dower was subiect to forfeiture in times past by felony done and proued in the Baron by the Barons treason by the Wiues elopement and euery question in the validitie of Marriage maketh a scruple of Dower all which inconueniences being wisely foreséene women did learne to become ioynt purchasors with their husbands of such estates as would auoid all weathers and a good while they did enioy Ioyntures and Dowers after their Husbands were dead against which the Statute of 27. H. 8. of vses ordeineth as followeth SECT XXXI A part of 27. H. 8. ca. 10. IT is prouided c. that where any persons haue purchased or haue estate of lands c. made to them and their Wiues and to the heyres of the Husband or to the Husband and wife and the heyres of their two bodies or to the heyres of one of their bodies or to the husband and wife for terme of their liues or for the life of the wife or where any such estate hath béene or shall be made to any husband and his wife or to other persons their heyres and assignes to the vse and behoofe of the said husband and wife or to the vse of the wife for the ioynture of the wife that in euery such case the woman hauing such a Ioynture c. shall not claime any Dower of the residue of any Hereditaments that were her Husbands by whom she had such a Ioynture or make any demand thereof against the Tenants of the said lands c. prouided that if any woman be lawfully expulsed or euicted from her said Ioynture or from any part thereof without fraud or Couen by lawfull entry action or discontinuance of her Husband that euery such woman shall be endowed of as much of the residue of her Husbands hereditaments as the Lands or Teneâ—ents so euicted shall amount or extend vnto Prouided that nothing in this act extend to hurt or preiudice any woman heretofore married concerning her right title vse interest or possession which she may claime or pretend to haue for her Ioynture or Dower in any Lands c. of her late Husband being now disseised Prouided also that if any Wife haue or hereafter shall haue any Lands Tenements or Hereditaments vnto her giuen or assured after Marriage for terme of her life or otherwise in Ioynture except the assurance be made to her by act of Parliament and the Wife after that fortune to out-liue her husband in whose time the Ioynture was made that the Wife so ouer-liuing shall and may at her pleasure refuse the Lands appointed or assured in Ioynture and thereupon haue demand and take her Dower by Writt or otherwise according to the Common Law SECT XXXII The Exposition THe first obseruance is that no estate gained by matter of conclusion shall be déemed a purchasement within this Statute or bee auerred to bee made pro iunctura But the Statute must be intended of true and substantiall estates Therefore if an owner or tenant of certaine land make answer to Baron and Feme in an action of waste or if he pray ayde of them as if they were seised of the reuersion or if he bring a quod ei deforceat against them as if he had none other then a particular estate though these things were purposed for Ioynture yet they seclude not a Woman from right or demand of Dower Releases such as inure to make estates as where a ioynt-tenant releaseth to his Companion or such as goe to inlarge an estate as where he in reuersion releaseth to his particular Tenant may well make and accomplish a Ioynture but such Releases as worke no more but vn mitter le droit as where he that is disseised by Baron and Feme releaseth to the woman the disseiseresse c. are no purchase intended within this Statute for it is meant onely of such purchases as the wife hath by gift either of her husband or of some other body and not of such estates as shee hath gained by her owne wrong likewise is it of releases that goe by way of extinguishment as where a Disseisor infeoffeth Baron and Feme and the Disseisée releaseth to one of them this is alike auaileable to both but this release can make no Ioynture for there is no estate conueyed by it Per iusticiarios 6. Ed. 6. Brooke titles Dower a deuise of Land by the Husband to his Wife in his last will and testament is no barre of Dower for it is but a beneuolence and no Ioynture Yet in M. Brograues reading it was holden contrary 5. Eliz. Dyer 220. the case is that a man seised of Lands in taile and of some other in fée-simple holden in socage deuiseth the third part of all his Lands to his wife for her life in full recompence of all such Ioynture and Dower as she shall haue or may claime c. the Wife without any assignement or vser of Action of Dower entreth after his death into that which was holden in Fée-simple to a value of a third part of all and the opinion was she had determined her election and barred her selfe of Dower But this Case maketh nothing to the variance or question because 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
a diâ—â—ringas shall goe against him Againe 11. H. 4. a 〈…〉 â—apiâ—s went against Baron and Feme the Baron appeared and the wife made default the Plaintiffe could not obtaine exigent against them both but he had it against the Feme and an idem dies giuen to the Baron For though in a praecipe quod reddâ—â— in 〈…〉 of the grand 〈…〉 and such like and for losse of 〈…〉 returned vpon Baron and Feme the wiues default be the husbands default yet the wiues default onely shall â—ot â—ée so 〈…〉 to him as to driue him to a corporall punishment as to the capias or exigent Likewise 39. Ed â— 3. fol. 18. 〈…〉 against Baron and Feme at the exigent the Baron appeared the wife made default and because shée was misnamed in the writ a new exigent went out and aâ— idem dies to the husband yet he was compelled here to answer maintenants 8. H. 4. fol. 6. in appeale of Mayhem against Baron and Feme after exigent awarded the Baron alone came and found suerty and had a supersedeas though the wife neuer appeared 12 H. 4. fo 1. in a writ of debt against Baron and Feme processe continued till capias was awarded then the Baron appeared of his owâ—â— accord and the wife made default an idem dies was giuen to the husband and a capias sicut alias went against the wife which came and finding suerties had a supersedeas to the Sheriffe then at the day of appearing the wife câ—me and the Baron made default therein was awarded that the wife should haue another day of maineprise and processe went out against the husband But this he said should be no example in temps a vener SECT XLVII Of Fourching THis interchange or shifting of appearance and default by Baron and Feme is called sourching or fourcher The terme being of no greater linage than from a hay forke or pitchforke which in french is fourth The Logicians call their dilemma a forke And our Ancients haue giuen a like name to a subtill kinde of delay which parceners ioyntenants and married couples had at the common Law when suits were commenced against them called forcher for euen as a cunning fighting bull when he is bayted offering to the dog first one horne and then another might be said to forth so these conioyned aduersaries were wont to play with both tynes when first one should appeare and his fellow be â—ssoyned and at the next day of appearance he should make default which formerly appeared and be essoyned by him which first made default Against this West 1. ca. 42. complaining that demandants were greatly delayed by 〈…〉 which might not answer but together and by ioyntenants which knew not their owne seuerall that vsed to fourâ—h by â—ssoine till euery one were once essoined Ordeineth that such tenants henceforth shall bée allowed no essoine more than at one day and as one person The Statute of Gloucester made 6. eiusâ—em Regis 〈…〉 the first reciteth the former Statute thus Whereas it is established that parceners and tenants in common shall not fourth by essoine after they haue once appeared in Court It is ordeined that the same Law shall bée obserued when a man and his wife are impleaded c. In the booke 12. H 4. fo 1. Culpeppeâ— affirmeth that fourcher which was at the common Law in a writ of debt is not to be re 〈…〉 died by this Statute of 〈…〉 And Thi 〈…〉 confesseth that the Statute i 〈…〉 lâ—â—d 〈…〉 yet saith he at the common Law 〈…〉 and 〈…〉 might neuer fourth by distresses infinet in a writ of debt for that they are in a manner one person in law Thus much of sourching SECT XLVIII The Baron and Feme appeare BVt admitting that there is no delay vsed how shall Baron and Feme plead I suppose it is hardly comprehended within rules Brooke setteth downe that in a quid â—uris clamat against Baron and Feme they may deny the deed by which the Feme should bee bound and a quid iuris clamat was brought against a Feme couert 18. H. 6. fo 1. Titulo Baron Feme 83. And where the Baron is estopped from pleading non tenure the wife is so tâ—â— Titulo louâ—nes accompts Br. 17. â—6 assisar p. 44. An Assise was brought against Baron and Feme the Baron canus in proper person and pleaded the Plaintiff 〈…〉 the wines Atturney was asked if hée would assâ—â—t to the plea who answered he would be aduised therefore thes dâ—â—â— was deliuered baâ—â— againe to the husband to the intent that it should not bée allowed vnlesse the wines Atturney consented who alterward agreed Thus doth Fitzh titulo Assise abridge the case 243. very néere the originall for Brooke mistâ—ke it or I mistake him in the title of Baron and Feme 72. In an action of debt against Baron and Feme executrix It in a good pleading to say that the wife hath fully administred and a good replication to say that the wise hath asserts sins paâ—ler del Baron â—â— Hen. 6. fo 4. And there it is said that a wife 〈…〉 may administer and distribute gods without the assent of her husband And if that she sell the Testator goods and redeme them yet still they remaine assets If a Fame tenant for life take a husband and they sine being 〈…〉 of a stranger if the Baron die he in 〈…〉 cannot enter for that is the act of the husband If a Feme tenant for life take a husband which alieneth in Fee and hee in reuerston entereth if now the Baron dye the wife shall haue the land againe 29. assisar p. 43. Brooke 86. Titulo Baron and Feme The case is of an estate made to baron and Feme in the booke of assises in a writ of entry in nature of assise against Baron and Feme the Baron pleaded non tenure for his wife and for himselfe Ioyntenantie with a stranger This was Bolden a good plea per Curianâ— and not double for he must answer for both 16. H. 6. fo 22. 12. Rich. 2. Baron and Feme were acquit in appeale it was found by verdict that they had béene imprisoned to damnages C. l. By Thinne Hâ—ll Iustices the dammages ought to be seuered the Baron to haue one iudgement for himselfe and he and his wife another iudgement for his wife for if the husband should dye before execution the wife ought to haue execution of her daâ—uâ—ages and not the husbands executors which could not bee if the recouery were in common Fitzh Titulo Iudgement 108. SECT XLIX Outlarie of Baron and Feme or of one of them 44. Ed. â— fo 3. The Baron and Feme being outlawed in an action of debt got each of them a seuerall Charter of pardon sued scire facias against the Plaintiffe and found maineprise ioyntly the Viscount returned that the scire facias came tardy at which returne the Baron appeared without his wife and praying to haue scire facias sicut alias
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
the Statute of 21. H. 8. hath béene taken A sonne of Charles Duke of Suffolke by a second venter hauing certaine goods by his fathers Will dyed intestate and without wife or issue his mother who was daughter to the Lord Willough by tooke Administration which was afterward reuoked after great argument in the spirituall Court as well by common Lawyers as Ciuilians in the behalfes of the said mother Dutchesse of Suffolke and Lady Francis wife to the Marquis Dorset sister of the halfe â—loud to Henry the Intestate which sued to reuerse the Administration and obteined it her selfe though shee were but sister de demy sanke for the mother is not next of kin to her awâ—e sonne in thiâ—â—aâ—ter but must descend and not ascend either by one Law or the other and children be â—â— sanguine patris matris â—â—â— pater mater non sunt de saâ—gâ—ine puerorum Contrary it is of brethren and sisters 5. Edw. 6. 47 in Brooke titulo Administraton There is also this Case William Rawliâ—s Clericus died inteâ—â—ate administration was committed to Sir Humphrey Browne who had married Rawlins his sister William Shelton and Iohn Shelton sonnes to the Lady Browne by her first husband reuersed the administration and obteined â— for themselues But sée in Sir Edward Cokes 3. Rep. in Ratcliffs ca. fol. 40. it is said that the booke of 5. Edw. 6. haue beene often times resolued to bée no Law and that the goods of the sonne or daughter ought to be granted to the father or mother as the next of bloud and there is Littleton â—ited who saith that although the sonnes lands goe to the vncle yet the father is next of bloud SECT II. Areâ—sonâ—ble part of the goods IF there bée a will proued the widow must take such goods as were bequeathed her by deliuery from the Executors but whether here were a will or none in some places she shall haue a third part of all her late husbands goods For this there is an ordinary writ to the Sheriffe where she cannot haue a third part of that which remaines after funerals discharged and legacies payd and performed to summoâ— the Executors to appeare and make answer why she should not haue as the custome of the Court is that women ought to haue rationabilem partem de bonis caâ—alâ—â—s virâ—rum The like writ is for children whether they be sonnes or daughterâ— or both And this writ speaketh of a custome in the County that children which are not heires nor promoted in the fathers life time shall haue their reasonable part 3. Edw. 3. A Writ of debt was brought by a man Alice his wife against the Executors of his wiues father declaration was vpon custome of the Shire that children not aduanced should haue their reasonable part of their fathers goods the Executors said that Alice was married by her father in his life time iudgement si action c. It is no answer said one to say that she was married by her father except you say also by or with her fathers goods and to her conueniable aduancement and here the husband at time of the marriage or after had neuer any land The Executors said still shée was conueniently married by her fathers procurement c. And in the end the Baron and Feme offered to auerre not married by the father on which point the issue was ioyned Fiâ—zh Dett 156. 40. Edw. 3. In a rationabili parte bonorum brought by a daughter counting on the custome of the Towne that euery son and daughter should haue a reasonable part the defendant pleaded a reuersion discended to her which she might sell for her aduancement in marriage iudgement si action c. Mowbray said the Lords in Parliament would not agrée that this action is maintenable by any common custome or Law of the Realme Doctor and St. fol. 132. a. by the custome of some Country the children the dâ—bts and legacies payd shall haue a reasonable part of the goods of the dead 39. Edw. 3. fol. 9. 10. One brought a Writ of Detinue for certaine goods shewing the custome of Sussex That where the father dyed intestate his heire should haue a reasonable part of his Chattels and vpon this custome hee demanded goods come to the Defendants hands It was argued whether the custome were good or no. Morris such a custome hath béene allowed in Eyre 21. Hen. 6. fol. 1. 2. In fine â—asus a woman brought a Writ of detinew against her husbands Executors for a â—â—ity of his goods as for her reasonable part by custome and the Defendant was compelled to answer 7. Edw. 4. fol. 20. 21. Iâ— a raâ—ioâ—abili parte boâ—â—rum iudgement was asked of the declaration because the custome was that where the Baron dyed sans issue the wife should haue a moity of his goods after debts and â—uâ—erals discharged but if there were issue shee should haue but a third part and here the Plaintiffe had a demanded moity without alleaging that the baron died sans issue c. The Plea was amended by permittance of the Iustices for Daâ—by said the widow had as good title to the goods as to lands at the common Law But Cat. by spied another fault in the Count viz. Continuance of the custome not alleaged 18. Hen. 6. fo â— in a rationabili parte bonorum one Executor appearing confessed the action and the others made default whereupon the Plaintiffe recouered presently by equity of the Statute 9 Edw. 3. cap. 3. by which the Executor comming first must answer Like or the same learning is in the former Booke 7. Ed. 4. where Choke said that alwayes if ne vnques executor ne vnques administrat coÌ„e executor be a good plea vt hic the Executor first appearing must answer I see that many tunes in stead of this writ de rationabili parte bonorum a writ of debt sometimes and many times of detinue hath serued and you may finde further 52. and 56. titulo Detinue in Fitzâ— And the great variance is in this that the action is founded on a custome sometime of the Towne sometime of the County and sometime of the Realme for indéed many haue holden that it is generall like an action of the Case against an Hostler or an action deâ—igne custodiendo So teacheth Glanuil and so Fitzh who relieth vpon magna Charta cap. 18. which prescribiâ—g how the Kings debts shall bée leuied of his goods that is dead willeth the surplussage to remaine for the Executors ad testamentum defuncti pimplend saluis vxori pueris eius partibus rationabilibuâ— which being of a reasonable part may be restrained to places where custome yéeldeth it for ought that I perceiue Bracton in this passage is like a péece of Romane ancient coyne that time hath rusted and defaced If a man saith he make a Testament he ought to remember his Lord of whom hée holdeth his land with the best thing he hath and the Church with the next
of the heire non aliter This saith Dyer is holden no good pleading for the quarentiâ—â— but shee should haue shewed the death of her husband certaine and the time of the forty dayes continuing therefore the opinion of the Court made her wâ—iâ—â— her plea and trauers the entry nâ—ta prolege If a woman marry within the forty dayes shee loseth her quarentine Dower Brooke â—y Dower 101. 1. M. But if otherwise she be ouâ—â—ed by the heire within the forty dayes shee shall haue a Writ de quarentena habenda no â—â— br 161. b. SECT IV. Assignement of Dower NOw to assignement of Dower it is true that when it appeares certaine what it is that a woman shall haue in Dower shee may enter presently when her husband is dead and tarry for none Assignement per Littleton yet Perkins saith if a man dye seised of iij. s. rent charge in fee though here the third part bee certaine enough his widdow shall not distraiâ—â—â— for xij d. before Assignement Nay further if she recâ—â—â—â— this Dower by action yet shee shall not distraine for it before execution But if the Lord of a Manor doe marry with a woman tenant by iij. s. rent and dye here shée shall haue xij d. Dower by way of reteiner without any Assignement And in case where rent is recouered in Dower the Viscount may deliuer seisen by grasse by a bough by a clod of land or by the distresse of beasts taken vpon the land though the day of payment be not yet come But the party cannot charge any those beasts 40. Ed. 3. fo 22. SECT V. who may assigne Dower SOmetime Dower is assignable by the husbands heire as if a man seised of two acres of land in one County make a feoffement of one acre with warranty and dye the heire may indow the widdow with parcell of the acre remaining in allowance and full satisfaction of the whole Dower bene for if in a writ of Dower brought by her against the feoffée of her husband hee vouch the heire c. shee shall recouer conditionally against the voucher And if the heire make a Lease for life of part of such lands as are to him descended and indow his mother of the parcell remaining in allowance of all c. it is good yet in this case in a Writ of Dower against the Lessée if hée vouch his Lessor the recouery shall not be against the vouchée because he is not bound to warranty as the heire of his father But if he had béene generally vouched the heire and had generally entred into warranty iudgement perhaps should bee conditionally against him Sometimes the husbands one feofee or vendée shall assigne Dower for the rest And if a woman accept Dower from one of her husbands feofées in parcell of his land in allowance of her Dower of the rest it séemeth this shall binde her against the other 〈…〉 fees yet some haue doubted thereof because the other feoffees say they cannot plead this in an action of Dower against them neither is there meanes to bring into Court him which made assignement being a stranger If diuers Ioyntenants bee of certaine lands assignement of Dower by one of them shall bée good against them all But if one Ioyntenant of land assigne rent in allowance of Dower his followes shal not be distrained for this rent for there could bee none inforcement to assigne Dower after this manner Likewise if the Desseisor assigne a rent charge out of the land this shall not bind the desseisâ—e causa qua supra Assignement of Dower may be by one which is a Disseisor Abator or Intrâ—dor c. if this assignement be without fraud in the woman indowed and sans â—orâ— to any other person it is good though the Assignor be a tortious Possessor but if there bee any such couine or tort the assignement is voidable for the most part by entry 44. Ed. 3. fol. 46. A woman that had title of Dower with intent of defeating the Tenants warranty made a stranger to enter and against him she recouered Dower it was holden in an Assize which shee brought afterwards that hee recouery would not serue her but her estate was gained by desâ—isin because of the couine Assignement of Dower by him which hath Francktenement is good and if the wife hath not right of Dower of that which is so assigned by the Tenant of the Francktenement yet that shall stand vntill it bee defeated And if tenant per elegit statute staple or statute merchant assigne Dower it is not good And Assignement of Dower by gardian in soccage séemes not to be good saith Perkins for a Writ of Dower lyeth not against such a gardian sée 29. Assis p. 68. But Assignement by gardian in Chiualry is good till it be defeated and it shall neuer be defeated if the womans title of Dower be iust SECT VI. Assignement to her selfe or de la pluis beale IF a man seised of forty acres of land 20. by Chiualry and 20. by soccage die c. and his wife being gardian in soccage bring her Writ of Dower in the Kings or some others Court against the Lord which is gardian in Chiualry he may plead this matter and pray to haue it adiudged that the woman indow her selfe of the faâ—â—est in her owne possession and if she cannot deny the case it shall be iudged for the Lord to retaine quietly the lands which hee hath during the nonage of the Infant And after this iudgement the woman may indow her selfe in presence of her neighbours by limits and bounds de la pluis beale part of the soccage lands to haue to hold to her selfe for terme of her life This manner of indowment is neuer before iudgement bee giuen for it either in the Kings or some other Court and it is to saue the state of gardian in Chiualry Perkins giueth this matter which Litlton leaueth thus raw a turne or two more And so doth Keble 14. Hen. 7. 26. If say they the land which the woman hath by her gardianship bee not the whole valew of her iust Dower for the smalnesse of it or because it is charged with some rent she may shew the matter in her replication And if the Lord cannot deny it or doe trauers it and it is found against him then shall the woman haue so much of the lands holden in Chiualry as together with that shee hath in possession already may make vp iust a third part of her husbands inheritance If the inheritance were all of soccage tenure the widdow being gardian cannot indow her selfe de la pluis beale but shee shall be allowed a third part in her accompt for so long time as shee is Gardian for if she bring her Writ of Dower in this case against the heire he cannot plead her gardinship and that she may indow her selfe Sée 45. Edw. â— fol. 6. If such a Feme gardian bring a Writ of Dower against one whom her husband
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
husband till his death then by his death the widdow is made sole Tenant of them so little needing either assignation or other circumstance that without new entry claime or challenge shee may haue action of her owne possession against any other that shall enter If the husband aliened intirely any lease for yéeres of his wiues it is gone irreuocable and if hee make no sale and the wife dyes hee shall haue the leafe except shee bee ioyntly possest with another and the seruing ioyntenant shall haue Commentar vpon Fitzherbert 185. If he aliened part of the estate as for ten yéeres next ensuing where the terme was for twenty the widdow may enter when ten yéeres expired But sée in that Case that if the husband rested a rent and dyes the Executors of the husband shall haue the rent for it was not incident to the reuersion yet the wife shall haue the resioue of the terme Sir Edw. Cokes Commentar vpon Fitzherbert fol. 57. b. if he aliened for the ten last yéeres shee may continue possession till those ten yéeres be commenced If the husband deuise away by his last Testament a terme for yéeres which he hath by right of his wife I suppose the deuise is â—â—id as well as if it were made of some higher estate as it appeares by Perkins chap. Dâ—â—â—ses and Plowd 419 in Bra 〈…〉 gâ—â— case And the Law is all one in all respects where the Baron and Feme are possessed of lease for yeares by intâ—eâ—ties that if the estate be made to them during their couerture or by moyties that is to them ioyntly before marriage or where the Baron is possessed of a lease iure vxoris Sée Dame Haâ—â— case Plowd 260. And if the Baron possest of a lease for yeares in the right of his wife charge the land with a rent and die the rent is gone Plowd 4â—8 in Bracebridges case for shee is remitted And if Feine Gardian in Socrage be and her Baron alienateth it and die the wife may enter And sée Dyer 8. Eliz. 25 the same is of Coppy holds per 〈…〉 der to the vse of a Feme for yeares the wife die the estate rests in the husband without a custome be to the contrary If an husband be possest of a terme for yeares in the right of his wife and Iudgement is had against him and the terme is extended and the husband dieth it shall be good against the wife as appeares by Sir Edw. Cokes 8 Rep. 96. in Maâ—â—ing case And see the 9. case of 50 E. 3. lib. Ass note Sir Edw. Cokes Rep. in â—ulwoods case and Plowd 26â— in Damè Hales casâ— where a lease made to Baron and Feme is extended for the debt of the King after the wiues drath If a man possest of a te me deuiseth it to one for his life the remainder to a woman for her life who takes an husband the husband may release that to the particular tenant although it be but a possibilitie Sir Edw. Cokes 10. Rep. 47. Lampeâ—â—s case And if a woman hath a lease for yeares as Executâ—iâ— and takes an husband hée may sell it per â—oâ— curi 〈…〉 pr 〈…〉 r Fitzherbert Dyer â—8 H. 8. 7. A woman hath a terme 〈…〉 trir the husband s 〈…〉 wits to 〈…〉 vâ—â—n which a moytie is awarded to the pretendor of the title the wife is bound thereby but because the defendant in detinue brought by the wife for the Indenture of lease plead non dâ—tinet and not the speciall matter Iudgement was against him Dyer 2. E 〈…〉 183. 21. H. 7. 6. agrees If the husband discontinue the Franck tenement of his wife the apt instrument whereby to recouer it when she is a widdow is a Cu 〈…〉 vita Which though it be not so necessarie and néedfull perhaps since the Statute of 32. which disableth husbands to discontinue as it was before yet I. perceiue not by what reason the vse of it is forbidden euen in those cases where the entrie is â—ongeable for the vertue of the Writ is not decayed by lawfulnesse of the entrie neither doth free libertie to take possession prohibit the resort to Iustice and action at Law when perhaps a woman cannot or dares not enter By Common Law therefore if the Baron alien in fée the heritage of his wife or her Francktenement by Feoffment or by Demise for terme of life or in taile she may haue remedy after his decease by this Writ Of which the generall forme is Praecipe A. quod â—â—d â—â—â— Bâ—quae fuit vxor Câ—â—â—um messuagium 〈…〉 quod clamat esse ius hereditat suam Et in quod A. noâ— habet ingressum nisi per C. quondam virum c qui illud â—â— de 〈…〉 isit cui in vita contradicere non pot 〈…〉 Th 〈…〉 may be in the per â—ui and post and some varietie it hath according to title of the Demandant as Quâ—â—â— clamat 〈…〉 ius haereditatem or Vt ius maritagium or Vt ius exâ—onâ— I. qui ipsaâ— B. C. virum suum feofavit in quo c. or Quam clamat tenere sibi haeredibusde corpore suo de 〈◊〉 C. quondam viri sui exâ—untibus â—â— d 〈…〉 ne I. or Quam clamat essâ— dotem suam ex dono E. pri 〈…〉 vel secundi c. If Baron and Feme lose the wiues landâ— by de 〈…〉 shée may haue this Writ when shee is a widdow But if the wiues lands be recouered in a Cessauit perâ—de 〈…〉 â—â— Baron and Feme vpon a C 〈…〉 during esp 〈…〉 shall neuer haue a Cuâ—â—â— vita 4. Ed. 2. If Baron and Feme and a third person being Ioyntenants in Fée the Baron alien the intiertie and die his widdow shall haue a Cui in vita of a inoytie during the life of the third person for it séemed the alienation was a seuerance of Ioynture saith Fitzherbert But hée sends vs to 36. Ed. 3. in his Abridgement titulo Cui in vita By which booke the wife in this case cannot haue a Cui in vita for any part so long as the third person suruiueth because they two may ioyne in a Writ of right and if hee die she may haue a Cui in vita of all Vide Librum Of lands which a man and woman purchase ioyntly before couerture the Cui in vita shall be but of a inoytie but of lands purchased ioyntly during coâ—eâ—â—ure the Cui in vita is of the in 〈…〉 e and being brought of a inoytie the Writ is not good 39. H. 6. 45. for in the one case they are seised by inoyties in the other by intireties A woman by excepting lands which she and her late husband tooke in exchange or by excepting rent reserued out of it shall be bâ—â—â—ed in a Cui in vita or any other action Fitzherbert and â—6 Ed. 4. 8. Idem ius if shée accept parcell â—â— her owne land in Dower but 17. Assisarum pl. 3. Brooke 24. Cui in
to be recouered after the first day of December next comming in the forme aforesaid should appertaine to enter into all and euery of the Premisses and peaceably to possesse and enioy the same in such manner and forme as he or they should haue done if no such discontinuance warranty or recouery had beene had or made And if any of the said husbands and women or any other seised or that shall be seised to the vse oâ— them of the estate afore specified after the said first of December doe make or cause to be made or suffer any such discontinuance alienations warranties or recoueries in forme aforesaid that then it shall be lawfull to the person or persons to whom the said manors lands and tenements should or ought to belong after the decease of the woman to enter into the same and to possesse and enioy them according to such title and interest as they should haue had in the same if the woman had béene dead no discontinuance warranty nor recoueries had as against the said husband during his life if the discontinuance alienation warranties and recoueries he hereafter had by or against the same husband and woman during Couerture and espousals betwixt them â—â—â—uided that the said women after the decease of their said husbands may reenter and enioy c. according to their first estate And ouer this it is enacted that if the woman at the tune of such discontinuance alienation recouery warranty c. besole that then shee shall bee barred and excluded of her title and interest in the same from thenceforth and the person or persons to whom the title interest and possession of the same should belong after the womans decease shall immediately after the discontinuance alienation warranty and recouery enter possesse and enioy the same Manors Lands c. according to his or their title Prouided that this Act extend not to auoid any recouery discontinuance or warranty after the forme aforesaid heretofore had made or suffered but only where the husband and wife or either of them now being aliue or any other to their vse now haue title and Interest to the said Manors c. or take the issues and profits to their vseâ— Prouided also that this Act extend not to any recouery or discontinuance where the heire next inheritable to the woman or â—e or they that next after â—er deatâ— should haue estate of inheritance c. 〈◊〉 〈◊〉 or agréeing to the reâ—â—uerieâ— where â—he same assâ—ent and agréement is of record or inrowled Prouided also that it shall bee lawfull to euery woman being â—olâ— or married after the death of her first husband to giue sâ—ll discontinue c. for terme of her life only after the course of the common Law SECT XXXIV The Expâ—sition BEfore this Statute if Tenant in Dower had aliened in fée with warranty and dyed the warranty discending vpon him in reuersion had barred him for against collaterall warranty of Tenant in Dower or for life the Statute of Gloucester cap. 3. determined nothing Lâ—â—â—â—eton fol. 164. He addeth that if the heire were vnder age both at time of alienation and also when the warranty discended hée should hee at no preiudice by this collaterall warranty But if he wore vnder age at time of the alienation and came afterward to full age during the womans life and neuer entered then perchance hee should be barred This was Law when Littleton wrote and had continued so aboue two hundred yéeres and during the raigne of nine Kings after the making of Glocester cap. 3. which Statute Dyer comparing with the later he reputes the last cruell against women for by this Aâ—t of 11. Hen. 7. all alienations recoueries releases and warranties of Tenant in Dower or â—oynture of the husbands lands are of no strength And where Glocester alloweth Tenant by the curtesie to alien with warranty and assets this from women is cleane taken away this he saith is vn case fort dure That if a woman â—oyntresse in taile whose warranty is lincall to her heires doe aliâ—n and leaue assets yet the heire may enter Therefore hee is of the minde that this Statute being rigoroâ—s of it selfe ought to receiue a streâ—t and litterall interpretation fol. 148. But Stamford Browne Brook eâ—poâ—â—ded these words giuen by the Ancestors to bée intendible of all manner of assurances for money or otherwise There are two Cases in Plowden that inâ—ued great Argraments vpon this Statute The first is betwixt Winibishe and Falboâ—es a man enfâ—offed diuers persons to the vse of himselfe and his wise in speciall taile before the Statute of 27. Heâ— 8. of vses and after the Statute the husband died a stranger recouered in a formedone per ment deduc the first day by couin and vpon false tiâ—le he to whom the title appertained after the womans death entred and the entry waâ— adiudged lawfull though hee could not haue Iudgement for a default in the pleading and that was want of certainty in his replication and not shewing how he was heire or the party to whom the entry was giuen by the Statute The greatest matter vpon the Statute obiected to inforce a proofe that the widdow which suffered the recouery was not bound by this Act was that she held not ioyntly with her husband any lands or tenements but only shée was seised of an vse in taile for they tooke it cleare on all paâ—ts that the case came into consideration as if the Act of 27. had not béene made and that seemes to bee directly within the letter of the Lawes But Montague chiefe Iustice shewing how greatly the marriage of women and their aduancement by it is respected in Law as appeareth by the Writ of â—aâ—â—a matrâ—moâ—iâ— proloâ—â—â—i and the â—â—i ante diuâ—rtium taken by equity of West 2. cap. â— and also by that that where donées in frankemarriage are diuorced the woman shall haue all the lands aâ—â—irmeth it to bee reason against such women thus fauored and who abuse such fauors as the Law bestowes vpon them and will be of Couin and Faâ—â—ity to impaire their deceased husbands inheritance and disinhe it their heires to construe this Law for their coâ—â—â—â—tion for the Law-makers of the statute were bent extremely against them though it be penall in some sort oâ—it selâ—e And so it was agreed that if the widdow were not within the words yet she was within the intent and meaning of this Statute The other case was this betwixt Eiston and Stud. Baron and Feme leâ—ied a fine of lâ—nds of the wiues inheritance taking backe an estate in taâ—le the remainder to the right heires of the wife the question was whether the woman after her husbands death might alien without danger of this Statute adiudged that she might because shée was cleare without the intent and meaning of the Act For whatsoeuer the words import the matter that this Statute aimed was and is to restraine women which haue Ioyntures procéeding originally from their husbands or
greatest and most difficult part of Law peculiarly belonging to a widdow and come now to consider whether she shall marrie againe or no. If Iohn Boccace de Câ—rtaldo in his Booke De duris mulieribus may be beleeued When the sister of couetous King Pigma â—â—â— and widdow of Sycheus Hercules his Priest had built the Wals Temple Market Towne house and priuate dwellings of Carthage giuing lawes and rules of life to the inhabitants amongst the rest that were filled with loue of her great vertues and singular beautie the King of Malaca was one he grew so vehement in his desires that he threatned the Citizens of Carthage with warres and vtter subuersion of their new Citie vnlesse he might haue the Foundresse of it to be his wife They knowing how highly their Quéen would remaine displeased by any direâ—â— sollicitation to a second marriage not knowing how otherwise to saue themselues determined to win her assent without asking The chiefe of them went therefore to Dido and told her how the King of Malaca required Masters and Instructers of humaâ—â—tis to be sent him out of Carthage from whom he and his people might learne to doe off their naturall â—â—â—â—atousnesse and inciuilitie and further how hée had menaced fire sword and extreme dissolution vnlesse his request were accomplished But they knew not they said whom to send or who would be willing to goe and leaue his owne habitation to dwell with a King of such sauage nature and wilde behauiour as was this King of Malaca Dido when she heard them answered that she was ashamed there should be found in any Carthaginian such 〈◊〉 and cowardly feare affirming plainly that men were not borne onely for themselues and whosoeuer he were that would not aduenture losse perill yea and death though it were certaine for safegard of his Countrey hée was she said vnworthy to dwell in Carthage or that either he or his posteritie should euer be receiued to any honour or reputation amongst them The Carthaginians thought they had obtained their desire and vncouered their counsell to the Quéene telling her plainly the Kings demand Dido not knowing how to reply against her owne râ—darâ—utions replenished with sorrow and aâ—xietiâ— was enforced to yeeld her assent to wedlocke and craued a day before which she said she would goe vnto her husband but before thâ— terme was expired she caused a great fire to be made in the most eminent place of the Citie and there in view and concourse of all other people after many ceremonies and offering of sacrifice as it were to appease the ghost of â—câ—â—us she suddenly with a knife strake her selfe tâ— the heart and told her subiects that now she went to her husband her Sicheus her deare Sichâ—us on whose name still inuocating she sunke to the ground haning chosen rather to shed her dearest lifes bloud as she said than to violate the vowes of chaste widdowhood Boccace mine Author here may haue some colour of reason to extoll the resolution of Dido but not to condemne so bitterly as he doth all women that marrie a second husband Some of them are destitute of friends their parents brethren and kindred dwell farre off sutors câ—me euerie day who can obsist them Another widdow hath lands rents store of goods some suits at Law and no body that she can trust in help to gouerne that which shee hath or to inherit it when she is gone Another is tolled to marrie by mightie perswasions of her dearest friends and kindred Another hath 〈◊〉 youth on her side 〈◊〉 Indians leape into the dead mans fire if they will she hath learned that it is better to marrie than to burne SECT XXXVI A 〈◊〉 to marriâ— so 〈◊〉 it be not vncertaine who shall 〈◊〉 her to theâ—â—â—◠〈◊〉 I For my part that am like neuâ—r to be feared vnlesse some widdow be moued with compassion towards mée will not speake villanie of Bigamie or Octogamie let euerie woman marrie when she seeth her time but 〈◊〉 〈◊〉 〈◊〉 a slow speed perhaps will be best and let her examine well whether the pannier be emptie or no. If saith Sir Thomâ—s Smith in his Treatise De Repub. Angliae â—ol 104. I marrie the widdow of one lately dead which at the time of her husbands death was with childe and the childe is bâ—â—ne after marriage solomnized with me this childe shall be mine 〈◊〉 and lawfull sonne so precisely doe we take the letter Peterest quem 〈◊〉 demonstranâ— Littleton â—aith 18. E. 4. fol. 30. If a man marrie a woman which is groâ—â—ment ensâ—â—nt by another and within foure dayes after marriage she is deliuered this childe shall be his that hath newly married the woman and inherit his land for it is no bastard It 〈◊〉 〈◊〉 would haue it vnderstood of a woman enseint by â—â—p â—â—zard and in such cases it is reason that hee which takes the Dame should haue the Fole So â—s it also when â—â—â—man elopes with a stranger in 〈◊〉 and 〈◊〉 her husband Iohn at Noke being betwéene 〈◊〉 foure 〈◊〉 must father the â—hilde and it shall be his heire it he die for the Law will not â—â—ing into triall directly wh◠〈◊〉 the childe 44 Edw. 3. fol. 10. and â— Hâ—â— 4. 〈◊〉 â—â—â— though issue may 〈◊〉 â—â— taken whether a woman 〈◊〉 ensâ—mâ— by her 〈◊〉 â—â—â—hâ— time of his deathâ— deaâ—ing out the question by whom as appeareth by the forâ—â—â— Bookes and 1. H. 6. fol. 3. Then if it may be found by Enguâ—st that a woman was with childe at her husbands death the Law which permits not to enquire by whom affirmes it to be the husbands and that husbands which might lawfully begâ—t it I thinke â—urely â—ir Thomas Smith mistooke the Law for by Thorpe and Willowby 24. E. 2. fol. â—9 If a man dye seised of land in Fee simple and the wife which is 〈◊〉 〈◊〉 with a soâ—ne marrie againe and after is deliuered â—â—is sonne shall bée adiâ—dged sonne and herro to the first Barâ—n and not to the second Though Iustice Beâ— there were of opinion that the Infant might â—huâ—e his father It were better reason perhaps that the second husband might 〈◊〉 whether hée should be his soâ—ne or no and by allowance make him hiâ— heire Sir Ed. Coke in his Comment vpon Littleton fol. 8. a. saith Iâ— a man hath a wife and dieth within a â—erie short time after the wife marrieth againe and within nine monethâ— hath a childe so as it may be the childe of the one or the other some haue said in this case the childe may chuse his father Quia in hoâ— casâ— filiatio non potest probari and so is the Booke to be intended For auoyding of which question and other inconcemences this was the Law before the Conquest Sit omnis vidua â—ine marito 12. mensibus si marita verit perdat dorem But if women had all béene of such sobrietie as many are many of these questions had neuer risen and I must confesse
Writ because it was not felonice rapuit but the Defendant durst not stand vpon it but pleaded ouer rien culpable for rapuâ—t implyâ—th felony But in euerie Appeale of rape if the Writ want the word rapuit it shall abate though it haue words amounting to as much as carâ—â—â—â—ter cognovit or any such â—tâ—â—e 9. E. 4. â—ol 26. SECT XXXIV Pleas to the Action THough it bee true that where â—â—â— shall bee charged with rape in Appeals or otherwise it â—ust be by the Word rapâ—it and â—â—t carnaliter cognouit onely yâ—t by Bracton it is a gâ—â—d plea in Appâ—ale of rape to say Non abstullt eâ—â—ucellagiumâ— suum quâ—a aâ—â—uâ—h vâ—â—go est veâ—iâ—â—â— probabâ—â—uâ— pâ—â— aspâ—câ—â—â—â—oâ—poâ—iâ— peâ— quatuoâ— legales femâ—nas iuratâ—s de veâ—itate dicenda quaere Stamford saith it is a good plea for the Defendant though hâ—e lay with the woman yet hée did not carnally know her for the force of the Declaration resteth in that And by â—â—iâ—ton fol. 45. If at the time of rape supposed the womâ—n conceiue childe there is no rape for none can concâ—â—â—e without consent Also by Bracton it is a good plea to say that before the rape supposed he kept the Plaintiffe and vsed her as his Concubine But by the same Bracton it was no plea to say she was another mans Concubine or Harlot Quia licet meretâ—â—x fuerit aâ—ea cerâ—â—â—â—â—c â—emporis non fuit cuâ— nequiâ—iae eius reclamando consentiâ—e noluit And note if she which is rauished assenâ— for feare of death at the time of the rauisâ—â—ent â—t â—s a rape against her will notwithstanding such consent for assent must â—e voluntarie per curiam 5 E. 4. Crompton 44. SECT XXXV A question what is meant by rauishment with force in Wâ—st 2. cap. 34. STamford leaueth it doubtfull and to be learned what the difference is betwixt rauishment with force and without force M. Lambard thinketh the word to be but declaratorie signifying all rauishment to bée forcible And it is true that no woman is rauished in this sort only by parroll or influence of Rhetoricke But in mine opinion the Statute must néeds intend two kinde of rauishments because it maketh one more odious than the other and propoundeth death ineuitable to him which rauisheth with force though the woman forgiue hâ—â— and consâ—â—â— to him A more detestable villany I thinke therefore was meant in this parase of him which being himselfe ouercome with concupisâ—â—nce ouercommeth a woman hand to hand by length of breath and strength of his owne sinewes You shall vnderstand thâ—refore that about those dayes there was an Appeale of â—orâ—e in vse as it were against the rauishers yeomen of the stirrâ—p viâ— against him or them which were holders and assisters to the principall carnall oppressour as appeareth about the end of the 28. Chapter of Bracton Lib. 3. Eadem A. appellat C. quod eadem die eodem anno c. quo praedict B. eadem hora dum idem B. abstulit pucellagium suum fuit idem C. in fortia ita quod tenuit eandem A. dum idem B. absâ—ulit pucellagium suum vel concubuit cum ea postquam c. Such fellowes were termed appellati de fortia and they which take such Coadiutors might verie well be called rauishers with force and aid of all other most hatefull in iudgement of all indifferent honest women SECT XXXVI De muliere abducta cum bonis c. THis Statute toucheth also the most couetous rauishment that is when a mans wife and his goods are rauished together so much against womans minde that she is loth to leaue either money or plate behinde her and because some men vsed in those dayes to let their goods goe lest otherwise they might perhaps call their wiues home againe the suit is giuen to the King if the husband neglect it 44. Assi p. 12. A man brought a Writ of trespasse against a Knight and his Lady and two others in Banke le Roy for taking away the Plaintiâ—â—es wife and his goods and they all came by Capias in custodie of the Viscount and the Plaintiffe counted of rauishment of his wife and his goods carried away c. a protection was shewed forth for the Knight and his wife and allowed and Iudgement was demanded of the Writ because the Plaintiffe and his wife were diuorced Iustice Kniuct said that though the woman were dead the husband might haue the Action of rauishment notwithstanding aâ—d so is it if they were diuorced For he was not to recouer his wife by the Action nor any thing else saue dammages for the trespasse Then it was said the diâ—orce was causa frigiditatis Kniuet said the weather might wax warmer with him Il poet recouerer son nature ouerer come home reauer sa feme and therefore answered to the Writ Then Iudgement was asked againe of the Writ because it was against a man and his wife and one woman cannot rauish another sed non allocatur for a woman may be assenting or aiding to any rauishment therefore the Defendants pleaded non culpable The verie same or verie like case is againe 23. E. 3. 23. Sée 21. H. 7. fol. 13. The opinion of Finâ—ux that it is lawfull for a man to trauell with another mans wife to London at her request and to carrie her behinde him when shee will ride to sue a diuorce or a reuersment of Outlawrie or for a warrant of the peace against her goodman Yaxley was of contrarie opinion And where the partie which taketh another mans wife cum bonis c. is indited at the Kings suit of trespasse onely the Indictment is Quod vi armis Mariam vxorem cuiusdam A. B. apud S. rapuit â—am cum bonis cattallis viz. c. ipsius A. B. cepit abduxit â—a â—idem A. B. adhuc iniuste detinet contra pâ—cem c. contra formam statuti c. So likewise at the husbands â—â—it the Writ is Attachias B. quod sit coram nobis c. ad respondendum prefato A. quare vi armis vxorem prefati A. apud N. rapuit â—am cum bonis cattallis c. ad graue dâ—mnum contra formam statuti c. as appeares by Fitzherbert So that you see the differâ—nce betwixt rapuit in Trespasse and in Appeale or Indictment of felony Presidents whereof are in M. Laâ—â—bards Booke and M. Cromptonâ— SECT XXXVII The case of Elizabeth Venor NOw that women may learne to stand vpon their owne guard partly and not trust altogether to defence or courtesie of Lawes which are not more rigorously penned than sometime put in execution against them let them markâ— this caâ—e Lands were giuen in â—aâ—le to William Veâ—or and to Elizabeth his wife and to the heires of their two bodiâ—s the remainder to the said Elizabeth and the heires of her body the remainder to Robert Babbington in taile the remainder to the right heire of T. S.
in fee-simple or fee-taile Sée the Booke 22. H. 6. fo 18. 19. But may the Lord enter vpon the Land during Couerture quaere If a villeine be possessed of certaine goods and the Lord make seisure of them by poll this is sufficient without seisen in fait But if the villeine die before any seisin and ordaine Executors these Executors shall haue his goods 3. H 4. 15. 16. And a Villeine shall retaine goods which hee hath as Executor against his Lord yea hee may bring Action of debt against him as an Executor all to the vâ—â— of the Testator Also if a Feme gardian in soccage marrie with a villeine I take it the Lord shall haue nothing to doe in this gardianship If a Seignioresse of a Mannor marry her bond-man he is made free and where before hee was her footstoole he is now her head and her Seignior here is part of the particularitie SECT VII The Baron may beate his Wife THe rest followeth Iustice Brooke 12. H. 8. fo 4. affirmeth plainly that if a man beat an out-law a traitor a Pagan his villein or his wife it is dispunishable because by the Law Common these persons can haue no action God send Gentle-women better sport or better companie But it seemeth to be very true that there is some kind of castigation which Law permits a Husband to vse for if a woman be threatned by her husband to bee beaten mischieued or slaine Fitzherbert sets downe a Writ which she may sue out of Chancery to compell him to finde surety of honest behauiour toward her and that he shall neither doe nor procure to be done to her marke I pray you any bodily damage otherwise then appertaines to the office of a Husband for lawfull and reasonable correcâ—ion See for this the new Nat. bre fo 80. f. fo 238. f. How farre that extendeth I cannot tell but herein the sere feminine is at no very great disaduantage for first for the lawfulnesse If it be in none other regard lawfull to beat a mans wife then because the poore wench can sue no other action for it I pray why may not the Wife beat the Husband againe what action can he haue if she doe where two tenants in Common be on a horse and one of them will trauell and vse this horse hee may keepe it from his Companion a yeare two or three and so be euen with him so the actionlesse woman beaten by her Husband hath retaliation left to beate him againe if she dare If he come to the Chancery or Iustices in the Country of the peace against her because her recognizance alone will hardly bee taken he were best be bound for her and then if he be beaten the second time let him know the price of it on Gods name SECT VIII That which the Husband hath is his owne BUt the prerogatiue of the Husband is best discerned in his dominion ouer all externe things in which the wife by combination deuesteth her selfe of proprietie in some sort and casteth it vpon her gouernour for here practice euery where agrees with the Theoricke of Law and forcing necessity submits women to the affection thereof whatsoeuer the Husband had before Couerture either in goods or lands it is absolutely his owne the wife hath therein no seisin at all If any thing when hee is married bee giuen him hee taketh it by himselfe distinctly to himselfe If a man haue right and title to enter into Lands and the Tenant enfeoffe the Baron and Feme the wife taketh nothing Dyer fol. 10. The very goods which a man giueth to his wife are still his owne her Chaine her Bracelets her Apparell are all the Good-mans goods If a Woman taketh more Apparell when her husband dyeth then is necessarily for her degree it makes her Executrix de son tort demesne 33. H. 6. A wife how gallant soeuer she be glistereth but in the riches of her husband Executors if such chattels bee giuen to the wife and to a stranger the husband alone is tenant in Common of them with the stranger Secondly the Court did hold cleerely that in Brackbridges Case and such like the immediate inheritance in the Baron did not drowne the interest of the Feme for the one he had in his owne right and the other in his wiues But by an expresse act as by feoffement or grant of a new lease he might haue giuen away the interest of his wife But leauing all to Law the Law shall saue that interest distinct and preserue it And it was holden in this Case that Baron feme might not ioyne in an eiectione firmae with Anticle but he alone might bring his action and the Baron chased to more higher and more reall Writt Also it was holden the Baron might distraine or haue action of debt for a moity of the rent and as I comprehend the end of Brackbridges case a feoffement by Thomas Brackbridge made of the Mannor whereof the Land seised was parcell and might well drowne all interest Executory which his wife had but not a Lease executed except liuery had beene made in the very Lands seised for a Lease in possession of thrée acres maketh them to bee no parcell of a Mannor during the Lease but a rent charge or a lease executory which is but an interest leaueth the possession entire and no reuersion in the Baron there is further in the Commentaries the Case of Dame Hales viz. Sir Iames Hales Lessée for yeares in his owne right taking a new Lease for twelue yeares ouer in remainder to himselfe and his Wife died felo de se the wholâ— interest was iudged forfeitâ— for the felonye had relation from the act done id est from entrance into the water c. At which time the Baron had power to grant and consequently to forfeit it If the Wife haue a ward by reason of her Seigniory this likewise is a Chattell reall and the Husbands interest in it shall be as in a terme or lease for yeers But if the wife be gardian in socage no lease of the infants land though it be made by Baron and feme per Indenture shall binde the wife but she may enter after the husbands death and if she die the husband shall not haue the Gardianship For in this Case the wife hath nothing to her owne vse but she is an officer appointed vpon confidence in her naturall loue and this office is not grantable nor forfeitable vide nat bre 145. I haue hitherto but shewed what is wrought as it were ipso facto vpon marriages consummation while it is gréene not past a day or a wéeke old and I thought it methodicall to insert the learning of battery because in my poore opinion it were better to combat for houshold mastry in the beginning then to bring a Writt of right for it when it hath gone too long by title of rusty prescription SECT XI Of the Wiues interest of affaires before Marriage