infeofed with warranty hee shall not pray that she 〈…〉 ow her selfe for he may vouch the heire which Gardin 〈…〉 Chiualry cannot doe It is no good plea for Gardine in Chiualry to say the Demandant was gardian in soccage c. but hee must shew that she is gardian in soccage â—our del brief purchase and this is good till shée haue shewed by replication the land deuested from her possession If a widdow gardian in facto of some lands that were her husbands and holden in Chiualry purchase her Writ of Dower against another Gardian in Chiualry hée shall not plead the speciall matter and plead vt supra for the wardship is here to the widdowes owne vse and profit SECT VII Assignement of Dower by the King Statutum prerogatiue ca 4 fact 17. Ed. 2. THe Statute is that after the deathes of husbands which held of the King in Cap 〈…〉 the King shall assigne Dower yea although the heire be of full age Vidue si voluâ—runt And such widdowes before assignation of Dower whether the heire bee of full age or vnder shall sweare not to marry without the Kings licence If they doe marry â—aâ—â— licence the King shall take into his hands as a 〈…〉 esse all the Lâ—â—â—s and Tenements holden of him in Dower so that the woman shall take no profit of it till shee or her husband haue satisfied the Kings will by fine which was wont to be tempore regis Henrici patris regis Ed. â— â—aith the Statute at full yéerely value of the whole Dower nisi vberiorem gâ—â—â—iam habuâ—â—â—nt â—ulieres And women which bee themselues Tenants in Capite of inheritance what age soeuer they be of shall sweare likewise not to marry without the Kings licence Si fecerint terrae capâ—â—â—tur eodem modo in manus Regis c. This Statute is proued to bee but confirmation of the common Law â—4 H. 3. Prâ—rogatiue 27. iâ— Fitzheâ—â—â—rt and by â—â— Char c. 7. ul a vidua distringatur ad se â—â—â—â—tandum dummodo voluerit viuere â—â—â—e marito Ita tamen quod secuâ—itatem faciat quod se non maritabit â—ine assensu nostro si de nobis tenuerit vel sine assensu domini sui si de alio â—â—nnerit Fitzb. in natu br 263. shewes the manner of indowment by the King The widdow must come into Chancery and make oath not to marry sans licence whereupon the King may make the Assignement in the Chancery and direct his Writ to the Escheator certifying him that hee hath assigned a third part of such lands with a third part of the liberty of Court view of franckpledge c. commanding him to make liuery of the same to haue in Dower or the woman may after she hath sworne haue a writ reciting her oath and commanding the Escheator to make assignement But the most vsuall course is vt antea And the King though hee hath committed custody of lands to another person may assigne Dower to the widdow in Chancery notwithstanding and shee shall haue a Writ to the Escheator yâ—â— and the King may grant a Writ to the Escheator commanding him to take surety of the widdow not to marry sans licence and then to assigne her Dower as praecipiâ—us tibi â—â— capâ—o sacramento c. assignari libâ—â—i â—â—ciaâ— c. If the Tenant which is dead held by Chiâ—â—â—ry of some Bishopricke or such like which is in the Kings hands by vacancie the widdow must demand her Dower in Chancery and she shall haue a Writ for her Assignement to the Escheator but in this case shee sweares not to marry sans licence So is it also when Dower is demanded of laâ—â—â— holden of a common person in Chiâ—â—â—ry where the heire is in the Kings ward pâ—r â—â—nage And the King may assigne Dower in Chancery rendring rent to him because the lands assigned doe excéed a iust third part of the Tenements whereof Dower is assignable If the widdow be so weake â—â— impotent that shée cannot trauell to the Chancery to take her oath and demand Dower she may sue a speciall Writ to some person both to take her oath and to receiue Attâ—rney whom she will constitute to sue in her stead If liuery bee made to the heire being of full age with a reseruation of Dower to be assigned to the King and then the widdow commeth into the Chancery for Dower as shee must doe there shall goe a speciall Writ to the Escheator to warne the heire that he be in Chancery at a certaine day and the widdow shall bée appointed the same day to receiue her Assignement But if the Writ of Liuery directed to the Escheator bée generall without clause of salua doâ—a per nos assigâ—anda the widdow must now â—â—â— for her Dower by Writ of Dower against the heire If the King when he makes liuery reserues Assignement of Dower to himselfe in his Writ to the Escheator now whether the widdow come and demand dower in Chancery or demand no dower yet the reuersion is in the heire after assignement for after the death of Tenant in Dower the heire shall not 〈◊〉 any neâ— liuery Because the first writ commandâ— all the landâ— to be deliuered and so the Escheator doth deliuer all nothing being reserued to the King but onely Assignement of Dower If after this Assignement iâ—â—e â—â—râ—isâ—â— by the heire or other body that the land which the woman hath is of far greater value than it was made by the extent c. if the excesse â—e 〈◊〉 and returned â— sâ—iâ—e facias shall goe forth â—â— cause the woman to come and shew cause why she should not take a nâ—w Indowment If she appeare and cannot gaineâ—ay the matter or if she were warned and make default it séemeth in both cases she shall be endowed a new So that parcell of the lands which she hath shall be taken from her â—â— the King may if hee will make assignment altogether new by a new Writ to the Viscount If the widow after she is sworne and indowed doe marrie sans licence the King sends to the Escheator to seise those lands which she holdeth in Dower by a Writ reciting the oath the indowment and marriage with this in it Nos contemptum huâ—â—â—modi nolentes transiâ—â— impunituÌ„ necnon indeâ—â—â—â—tati nostrae volentes prospleere tibi praecipimus si ita est â—nc omnia terrâ—â— â—â—â—â—ment quae tenâ—t in Dote c. capias in man nosâ—â— Ita quod de 〈◊〉 prouenientibus nobis respondâ—â—â— ad scaccarâ—â—◠〈◊〉 quousque nobis dâ— Forisfacâ—uâ—â— ad nos inde pertinenâ— satisfactur â—uâ—rit Thus far 〈◊〉 Stamford argueth whether Fitzherbert deliuer the Law rightly or no in this that he saith the King may assigne Dower in Chancerie though hee haue committed oâ—â—â— the wardship of land to some other body for many writs are in the yeare bookes brought against the Committée in such a case And in some bookes the woman recouers Dower the King neuer being made priuie As titulo â—â—â—
del roy 23. 〈◊〉 is the case 4. H. 7. fol. â— Action of Dower was against the Kings Committée during the heires â—onage the Defendant shewed how it was foâ—â—d by office that the husbands father tenant to the King died seised hauing issue the husband which entred sans office and died leauing his heire vnder age all which matter was 〈◊〉 by office whereupon the King seised committed the lanâ— to the Defendant c. Iudgement â—â— actione And the widdow was adiudged dowable Bryâ—â— who at the first was in minde to proceed no further without â—â—d of the King when hee had considered the Statute de Bigamis cap. 3. awarded presently that the woman should recouer Dower The Statute is Vbi custodes hereditatis mariâ—orum suoâ— cuiâ—â—dias habent ex dono vel concessâ—â—ne regis â—â—ue custodes â—â—â—um petitarum â—eneaâ—â— â—iue heredes dictorum â—â—â—â—menâ—orum vocentur ad warrantiam si excipiant quod sine regâ— respondere non possuâ—â— non ideo â—â—persedâ—â—tur quâ—â— in loâ—â—elâ—â—dicta proâ—â— iustus fuerit procedaturâ— Stamford noteth some bookes wherein is â—ound that heâ—reâ— in costodie of Committâ—â—s vouched to Warrantie haue come in and had aid of the King directly contrarie to this third Chapter de Bigaâ—is But whether the Kings grant in those cases were Durante 〈◊〉 or Durante bene placito it appeares not in the â—ookes and that makes a great difference Likewise if the Writ of Dower â—e 〈◊〉 〈◊〉 Committée of a Committee And if Wardship â—â— committed to the widdow without exception or foreprize of Dower she is concluded to claime any Dower during the Wardship In Stamfords opinion the new 〈◊〉 〈◊〉 and the case supra 4. H. 7. doe not agrée Howbeit for â—hy part â— finde not the repugnanâ—ie for as the King may assigne Dower to his widdowes though the heirâ— be of full â—ge Vidâ—a si voluerit so Fitzhorbeâ—â— saith hee may assigne Dower if he will though he haue committed the laâ—â—â—â— And this doth not denie but rather affirme that â—â— some case the Committée may assigne Dower If the Committée as Stamford himselfe confesseth assigne Dower to one that is not dowable or if his assignation excéed iust measure the King may reforme it And if a womâ—n â—â—dowed by the Kings Committée will marrie 〈◊〉 〈◊〉 because she stands vnâ—worâ—e for in the Câ—mmâ—â— plaâ—e is no â—wearing in this point her â—â—nds are neuer â— whitlesse subiect to â—eizure for the contempt therefore in the end he conclâ—deth that where â—â—ard is omitted ouer the woman hath election whether 〈◊〉 〈◊〉 â—â—â— to â—he King in Chanâ—erie or at Common Law against the Committée vnlesse it be where the grant of a Ward is but Duâ—anâ—e bene placito for in that case of necessitie the suit must be to the King Sâ—â— Sir 〈◊〉 〈◊〉 〈◊〉 fol. â—8 the reason why a Writ of Dower is maintenable against the Committee of the King Stamford thâ—â—â—teth Fitzherbert also in that that hée saith a widdow must demand Dower against the heire which hath Liueâ—â—â— without clauâ—â—â—◠〈◊〉 dote pâ—â—â—â—â— assigâ—andâ— for when Liueâ—â—â— is before Assignement of Dower there is commonly a sauing in the Writs of Liuerie if so be the woman were found to be wise c. by the office And if she be not found by the Inquisition then there is a leauing out of Salâ—a Dote c. in suing of generall Liuerie Indeed if she were not found to be the Kings Tenants wise in the office the heire may safely sâ—e Liuerie within 〈…〉 such saying But 〈…〉 agrees with Oâ—slow P 〈…〉 32. in the case of Mynes that for Assignation of Dower if the King haue not expressely relinquâ—shed it though the Liuerie be sâ—mâ—â—lâ—â—se of salua Dote c. yet this makes no such waiâ—ing of the prerogatiue but that the King may assigne Dower to a widdow that by an office is found to haue beene wife to the Kings Tenant at the time of his death for without so much it seemes she can neither demand it in Chancerie of the King nor of the Committee nor of the heire in the Common place quere vide fol. 109. Prerogatiue of not assigning The King hath a prerogatiue aswell of not assigning as of assigning Dower As if the husbands Feoffee in a writ of Dower against him call to Warrantie the heire in the wardship of the King c. the woman shall recouer against the Tenant and no recouerie shall be as yet against the heire But neither any common person nor yet the Kings Committee of wardship shall haue this prerogatiue But for the King himselfe if in the case Iudgement to recouer is value be giuen for the Tenant he must stay for execution till the Kings hands be amoued c. If a woman be endowed by her husbands Feoffee of such lands as the husband did not die seised of whereof also for this reason the King can haue no wardship Stamfords opinion is that she cannot marrie sâ—ns licence For by â—6 Assisarum Pl. 57. it appeareth that where a woman was endowed by Gardian in Chiualrie who was afterward attainted of treason and his Seigniorie forfeited to the King she must hold now of the King and not of the heire which was in reuersion of the land Hee accords with Fitzherbert that the Statute of Prerogatiue is vnderstood onely of lands holden in capite and therefore she must demand Dower of lands holden of a Bishoprick or of Tenant in capite when the temporalities or the heire are in Custodia regis she must be indowed in Chancery but she may marrie when she list and shall take no oath to the contrarie Also if a widdow will relinquish her Dower of lands holden in capite she may marrie â—ans licence And see Dyer 3. M. 123. b. affirmeth that the wife of Tenant parauaile shall not be sworne as widdow of the King in the Chancery when her Dower is assigned to her The reason per Stamford is the copulatiue connexion of Et si se maritauerit to the former words of the Statute of demanding Dower and swearing not to marrie The words si viduae voluerint he takes to imply no more but election of refusall or taking of Dower and that is manifest by the last clause of the Statute But by Fitzherberts writ which hee sets downe for forme of seisure when a widdow is married sans licence it appeares that the King may grant to another the marriage of his widdow or widdowes and for marriage before agreement with such a Grantee the King may seize and composition with such a Grantee by Baron or Feme before or after marriage is as good as if it were with the King himselfe But now by the Statute 32. H. 8. cap. 46. This composition is giuen to the Master of the Wards and Liueries with three of the Councell of that Court who haue also authoritie to tax according to the Statute of Prerogatiue a reasonable fine for marriage sans licence How much it ought to be is plaine by
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
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
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
THE LAVVES RESOLVTIONS OF WOMENS RIGHTS OR THE LAVVES PROVISION for WOEMEN A Methodicall Collection of such Statutes and Customes with the Cases Opinions Arguments and points of Learning in the LAVV as doe properly concerne WOMEN Together with a compendious Table whereby the chiefe matters in this BOOKE contained may be the more readily found LONDON Printed by the assignes of IOHN MORE Esq and are to be sold by IOHN GROVE at his Shop neere the Rowles in Chancery-Lane over against the Sixe-Clerkes Office 1632. A PREFACE TO THE READER VArious are the Conceipts and Judgements of Men Nature teacheth each to preferre his Owne Hence it is that the number of Bookes multiply insomuch that according to the Wise-man Thereof is no end To expect new Matter were to give the old Proverb the Lie Nihil jam dictum c. It 's enough if what was before be now so changed by Method and Application that it shewes as new and becomes more ready for Vse Habit and Apparell alter the Shape sometimes the Conditions of Men. An old Theame in a new dresse ingenuously contrived makes the Composer an Author Why then should this Booke blush to shew it selfe or doubt to bee servant to the Printer whose Master neverthelesse it is To give it as absolute or free from faults were to make it more then the Worke of Man whose incident is Error Such as it hath are rather accidentall then originall and may bee fairly excused Not to insist That the Author's dead That it was long since collected Alteration of some Cases by Moderne Statutes Or this the first Impression Goodnesse is the Parent of Confidence The Act is crowned by the End which was this A publique Advantage and peculiar Service to that Sexe generally beloved and by the Author had in venerable estimation To implore their Patronage and prevaile were to guard this Booke beyond Opposition The strong neither needs nor desires a Champion Meeknes protects it selfe What here you finde reall and perfect therefore accept It will subsist Remit the rest the rather for that nor the Tract nor This is peremptory But onely proposed for your favorable sense and Approbation I. L. TO THE READER BY whom this following DISCOVRSE was Composed I certainly know not neither by what inducement the Authors paines therein was procured But if for no other consideration then to make this scattered part of Learning in the great Volumes of the Common-Law-Bookes and there darkly described to be one entyre body and more ready and clearer to the view of the Reader his love deserves thanks and his endeavours kinde acceptance The VVorke hath beene carefully and with much labour and diligence collected The Theame as the subject is The Lawes Resolutions of Womens Rights which comprehends all our Lawes concerning VVomen either Children in government or nurture of their Parents or Gardians Mayds VVives and VVidowes and their goods inheritances and other estates It is profitable and usefull Learning to be well knowne I am sure it will please all them whose actions are guided virtutis amore and offend none but those ill manners who can have no other antidote made them then formidine poenae for it sets forth Law and Iustice things honest and things convenient I had such a good conceit of the matter and frame of the whole VVorke that having a Copie there of lying by me somtimes within the Compasse of a Lent vacation I pluckt my intentions from my own course of Studies and cast them upon this And those vitia Scriptoris and Authoris which I found I amended and haue added many reasons opinions Cases and resolutions of Cases to the Authors store wherfore those oversights or neglects that thou maist impose upon the Printer or mee which I suppose wil be some if not many thou shalt have thanks to supply or amend which is all I expected and more then the Author as I beleeve had or now being dead can receive and perhaps thou maist have a better reward for the old Adage is true pretium non vile laboris Vale T. E. THE TABLE ACceptance pag. 177 Accidents of Marriage pag. 62. Actions by the Husband Wife how brought 196. 197. Acts done by the Wife when good 141. Age of a Woman at 7. her father shall have ayde at 9. shee 's Dowable at 12. she may consent to Marriage at 14. out of Wardship at 21. shee may make a feoffement 7. Appeale of the husbands death 332. How it shall be sued 338. within what time it shall be brought 141. before whom it shall be sued 343. Pleas in Appeale 353. 355. Attainder of the Husband loseth the Wives Dower 152. Chattells reall of the Wife what interest the Husband hath in them 130. Contribution of Parceners 47. Curtesie of England what 79. there must be Marriage 80. and seisin ibid. and issue 81. 87. shall not be of a reversion ibid. nor of a right 82. nor after the Husbands discontinuance 83. nor of an estate suspended ibid. nor of a bare use 84. A second Husband shall bee tenant 85. when the title thereof begins 88. How the Husband shall lose it 9. It shall be though the child die 89. Clergie in appeale 364. Damages in an appeale 365. Declaration in an appeale 348. Degrees how they shall bee accounted 76. Descent how altred 12. Discontinuance 155. Divorce what 64. 122. Causes thererof as Impotencie 65. Affinity 66. long absence 66. Dower 90. what it is 91. when to be recovered 93. what seisin is requisite 93. the husband must have both Frank-tenement and Inheritance 95. Of what things it is granted 98. of what not 99. Of what inheritance the husband must be â—eised 101. When given of an estate determined and when not 103. How much it shall be and how held 106. 107. It shall be of the Husbands best possession 108. when the wife may elect 109. when of Land and rent issuing out of that Land 109. At the Church-doore 111. Lost by elopement 144. How the Husband may hinder it 148. lost by his attainder 152. who may assigne it 243. 244 c. what things shall be assigned 281. Election of Lands Dowable by the wife 109. of Dower or loynture made during the coverture 184. Elopement a woman thereby loseth Dower 144. Executor of his own wrong 129. Executorship 233. Exposition of the words Lands Tenements Hereditaments 188. of the Stat. of Westminster 1. cap. 4. 17. of the Stat. of 32. H. 8. cap. 28. 166. 170. 173. of the Stat. 27. of H. 8. cap. 10. 183. Evidences detained 261. Felonie 206. Fines 176. Fourcher what 218. Forfeiture of Estates 313. Frank-Marriage what 73. whether it may bee to a man 74. It may be given at before or after Marriage 74. That word maketh inheritance 75. Heyre what and how 8. 9. Hermaphrodite what 5. Hotchpot what 40. 41. when used 42. Husband and Wife are one person 116. 119. where one and where severall persons 4. they cannot enfeoffe one another 120. How Lands
likewise said by Davers 13. H. 7. 11. that this Statute was made for advantage of the Lords Glanvill ibro 7. cap. 12. HEare what Glanvill saith women shal be in ward vntill they be of ful age the Lord shal mary them being of ful age euery one of theÌ„ with their reasonable portion thoughthey be of ful age they shal remaine notwithstanding in their Lords custody vntil they bée married by his aduise for by the law of the land no woman heire can be married but by her Lords disposing and assent In so much that whosoever having a daughter or daughters heire or heires shall in his life time without grée of his Lord marry any of them he suffereth by the right and generall custome of the Realme perpetuall disinherison without ever recovering any thing but by the grace méere mercy of his Lord. If it be prooved that any woman holden in ward do forfit with her body she shal be deprived of her heritage her portion shall goe and accrue to her parceners And if they all offend the whole heritage shall fall as escheate to the Lord. But after such heires be once lawfully maried though they become widdow afterwards they shall no more be holden in ward nor then by their incontinency can they forfit any inheritance But yet they may not remarry without their Lords assent Thus far Glanvill Bracton his 2. Booke cap. 37. BRacton who as it may very well be gathered wrote one halfe hundred yeares after Glanvil and but very little before the making of West 1. In his 2. Booke and 37. Chap. finding it a question at what time an heire female should bee out of ward whether at 14. or 15. or at 21. acknowledgeth a greater capacity of deceipt and maturity of desire to be in women then in men And that therefore a woman might be out of ward at 14 and marry because at that age she is able disponere domui suae et habere cone et key et virum sustinere that is to order and dispose a to have the key clog at her girdle and to be a jolly stay vnto a man But this early emancipation of women heires he taketh to be onely of such as inherit laÌ„d of socage tenure for drawing toward the end of the Chapter he falleth in with Glanvil And saith of heires coparceners in Chivalry si ab initio omnes maiores extiterunt nihil ominus in custodia dominorum â—rint donec per consilium et dispositionem eorum maritentur quia sine ipsorum coÌ„silio et assensu mulier haereditateÌ„ habens maritari non potest non etiam in vita antecessorum quod si olim fecissent hereditatem amitterent sine spe recuperanâ—i nisi solum per gratiam Hodie tamen aliam paenam incurrent And presently hee sheweth the reason why they might not marry without their Lords assent viz. lest the Lord might be constrained to take homage of his capitall enemy or of a man altogether vnfit or vnworthy SECT X. How the law came to a certainty in the point of a womans being out of ward CHoose now whether ye will learne of Glanvil and Bracton what the law was in their time or of Mr. Littleton that wrote many score yeares after the making of Westm 1. In mine opinion neither did this law bring any advantage to Lords neither doth it shew that heires females oftenants in Chivalry might enter at 14. yeares neither is there any cléere proofe that the law was cléerely so taken The letter of the Statute doth not expresly give 2. yeares to tender mariage but rest raineth covetous Lords that they shall not hold the land above 2. yeres after the 14. which séemech plainly to import as it is reasonably taken both by Needh Billing 35. H. 6 that before the making of this law the age of male and female in this point tooke no difference I may be asked how it commeth then to passe that the law is so cléere in that which Littleton concludeth withall viêªt That the Lord shall not have two yeres to tender his woman ward marriage save onely where she is under 14. and unmaried at the death of her ancestor before the Statute it was either out of doubt that a daughter and heire should not be cleane out of ward at 14. or at the least it was doubted whether she should or no and the words of the Statute whatsoever Mr. Littleton saith maketh not the matter plaine enough But we have the helpe of Reverend Prisot in the Booke above mentioned 3. 5. Henrici 6. Westm 1. saith he was made in the time of Edward the first who purposing to put all the law into certainty and in writing begun to makes Bookes thereof by helpe of the most sage men of the law in this Realme Iudges and others And he made a Booke two yeares after the making of this Statute in which all the Statute is rehersed which booke goeth on and saith by expresse words that no woman shal be said to be vnder age thereby to be in ward after she is past the age of 14. Thus saith Prisot By him therefore and by other Iustices in the Eschequer chamber it was ruled cleere that where the Kings tenant in Chivalry died leaving his daughter and heire of the age of 15. yeare she should not be in ward And Billing saith for law that if betwéene the 14. and 16. yere when an heire female is in ward another ward falleth which holdeth in Chivalry of the first the Lord shall not have gard per cause de garde for the first ward is out of his power to all intents excepting onely tender of mariage And another Iustice saith if a tenant hold ofone lord bypriority of another by posteriority the daughter heir vnder 14. shal be in custody of the anteriour Lord till she be 16. but shée may enter vpon the land by posteriority as soone as shee commeth to 14. likewise if the Lord hath once maried this woman-ward after the age of 14. she may presently enter into her land for now the Lord hath had all that which to him belongeth the marriage And the course of the Chancery is to make livery before 14. cum exitibus but after 14. livery tantum vid. 4. Eliz. 213. Dyer Dyer 20. Eliz. 362. 1. Hen. 720. on livery for then such an heire is to have the profits by the law To come to an end of this matter I will not forget that even in Mr. Littletons daies very néere two hundred yeares after the making of West 1. by the last Statute that ever Hen. 6. made in the yeare of his reigne 39. ca. 2. it was established by Parliament that women being of the age of 14 yeares at the death of their ancestors without question or difficulty shall have delivery of their lands and tenements discended to them for so the Law of the land wils SECT XI A search for the true reason why a woman is hors du
45. Edw. 3. is contra But severall tenancy or non-tenure is no plea in a Nuper obiit for the priuity of blood But a sister may claime by purchase and disclaime in the blood and this is a good plea. If one coparcener die leauing issue a sonne which sonne infeoffeth a woman in all the land c. then marrieth her now cannot the other percener haue a Nuper obiit against the baron feme But she may haue a mordancestor in her owne name and in the name of the seisure which the father had the day of his death for that amounteth to a dying seised see Novel nat br 197. c. SECT XVII Of the writ of right de rationabili parte THere is also another Writ called a writ de recto de rationabili parte that neuer lieth but betwixt priuies in bléed as betwixt brothers in gavell kinde or betwixt sisters nephewes nieces c. It is also for lands in fée simple as where the ancestor leaseth land for tearme of life and dieth having two daughters and after the death of tenant for life one of the daughters entreth into the whole inheritance and deforceth her sister the deforced may haue this Writ it is maintenable by two or thrée sisters against the fourth or by an aunt or niece against a sister that deforceth and this writ lieth as wel where the ancestor dyed seised as where he died not seised It is in nature a writ of droit patent must be directed to the Lord of whom the land is holden from before whoÌ„ it is remoueable by a Tolt as the Haught writ is where the ancestor dieth seised and one coheire deforceth another whether it be in gauell kinde or amongst partners at the common law the deforced hath election of this writ or of the nuper obiit But when he died not seised and a coparcener afterward deforceth the Nuper obiit lieth not The forme of this writ is Precipimuâ— to the Lord ut sine dilatione plenum rectum teneas A. de decem acris cum pertinentiiâ— quas clamat esse rationabilem parteÌ„ de libero tenemento quod fuit I. patris vel c. tenere per liberum servititum tertiae partis c. for it must be séene what rent and seruice the whole land yéeldeth to the Lord according there to shall the plaintiffe be rated in his or her writ If after the death of their ancestor two coparceners enter and the one doe then deforce the other of something appendant or appertenent to that which is holden in coparcenery she may haue a writ de rationabili parâ—e of this appendant or appertenent which shall say quod clamat tenere ad liberum tenementum If a man dying seised of lands intailed haue two daughters whereof the one entereth and deforceth the other the remedy is by formedon and neither by Nuper obiit or Rationabili parte If a sister aunt niece or cousin claime from her ancestor by feofment in fée one which should haue bin coparcener had the feofment not bin deforceth her she may haue a writ of Droit patent and joine the mise by battaile or graund assise come semble saith Fitzherbert because shée claimeth not as heire But where there is no impediment intaile feoffement or such thing all the partners deforced bring a rationabili parte against all the copartners terre-tenants for so it must bée and the heire of an heire may sue for part of the seisin of the coÌ„mon ancestor there battail or grand assise voucher or view lie not neither is noÌ„tenure any plea for the writ lieth only betwéen privies in blood finally the demand in this writ must bée of a portion certaine as of x. acres if xx discend to two sisters and the demandant if she recouer shall haue iudgement of so many to hold in seueralty SECT XVIII Of Partition NOw of Partition it may be made in diuers maners as first for example by agréement amongst two copartners or more which accord to diuide the inheritance into certaine parts of equall valew to bee holden in severalty and alwaies the part which the elder hath is called Ini ia pars though in this kinde of partition there bee no prerogatiue of primer election giuen to the eldest Another manner of partition is where they cause certaine friends to make the parts or diuision here the eldest shall first chuse then the next eldest and so succéedingly If by their whole agréement the eldest make the diuision it is said saith M. Littleton that she shall last make election which is as much to say say I as she shall haue none election at all Littleton hath another maner of alotment wherein after partition made of the lands euery part being written in a seroule and lapped vp in a bale of wax is put into a bonnet which must be holden by some indifferent body and then as wee use to choose Valintines euery partner pulleth out a part the first borne first the rest after her in degrée of ancientry and euery one shal hold her to her chance Also partition may be made in Chancery as when one copartner of full age and another remaineth in ward to the King c. in such case if she which resteth in ward at full age haue not her full part she may sue a writ of partition or Scire facias vpon the record returnable in Chancery to shew why a new partition shall not be made and partition may be of a reversion or of an aduowson Of a reuersion thus that A. shall haue reuersion of such such lands B. the reuersion of such other laÌ„ds of an aduowson that A. shall haue euery 2. 3. or 4. auoidance c. this is good without deed where partition is made of a mannor without mention of the aduowson it remaineth in common sée that case of aduowson and partition of aduowson 2. Hen. 7. 5. a. Partition by agréement of parceners is good in law aswell by paroll as by writing and if vnto two copartners there doe descend two houses whereof the one is worth xx s. and the other x. s. annually the best house may bee allotted to one copartner and she and her heires to pay to the other and her heires for owelty or equalities sake v. s. rent issuing out of her house and all this is good without writing so that the partner that shall haue this rent and her heires may distraine for the same when it shal be arere of common right in whose hands soeuer the house charged shall come and this shall be a rent charge of Common right had and receiued for equality of partition Fitzherb fol. 252. Plow 134. Partition of lands that one partner and her heires shall haue and hold them from Easter to the gule of August alone and by her selfe and the other and her heyres from August till Easter in the like manner was awarded a good partition in the time of Ed. 2.
it selfe should be deliuered to a Lay-man altogether vnlettered which should distribute to euery coheyre her part at aduenture wherwith she should stand contented But this might be otherwise by their agréement amongst themselues to elect according to the prerogatiue of their age Bracton discendeth déeper into examination what things may be parted amongst coheyres exempting neither lands tenements homages villinages seruices seruitudes or anything belonging to lands and tenements from diuision vnlesse it be seriantia quae diuidi non debent ne cogatur-Rex seruitium accipere per particulas or a castle or the head of some Earldome or Barrony quod propter ius gladij diuidinon debet sit illud castrum vel aliud edificium hoc ideo saith he ne sic caput perplures particulas diuidatur plura iura comitatus Baroniarum deueniunt ad per nihilum quod deficiat regnum quod ex comitatibus Baronijs dicitur esse constitutum Therfore Caput comitatus vel Baroniae resteth indiuisible and shall go to the eldest copartner though where there are many chiefe and great Mansion-houses euery one may haue one perhaps and if there be but one euery one may haue part thereof where the frank-tenement is holden by seruice militarie for if a frée soke-man die whose heritage it is ab antiquo partibilis the eldest son by Bracton shall haue his house and the rest shall haue allowance Amongst other things Bracton standeth long vpon the bringing to a common heape which we call Hotchpot Lands giuen in marriage to a coheyre shewing that though lands giuen in marriage whether the Inheritance be discendens or perquisita and whether shee to whom the land is giuen be at the time of the gift a maid or a widow must needs fall into partition when part of the other lands is claimed hoc quamuis homagium interuenerit post tertium haeredem yet for all that she to whom there is giuen in marriage already more then an euen portion may well retaine it and is not compellable to any confusion vnlesse she demand a share in that which remaineth so that she to whom all is giuen may likewise retaine all And where a daughter was infeoffed pro homagio seruitio or where a stranger was infeoffed of part of the inheritance which afterwards married a daughter c. they might be made parcell of the other lands without any Hotch-pott of these things ye may read more in Bract. li. 2. c. 33 and 34 with a Writt of habere facias seisinam for he saith possessio non pertinet ad haeredes nisi naturaliter fuerit apprehensa animo et corpore proprio vel alieno sicut procreatorio prius ad ipsos non pertinebit vnde cum in curia Regis facta fuerit partitio statim habeanâ— breue de seisma sua habenda SECT XX. of Hotch pott according to Littleton FOr putting of lands in Hotch-pot there is no where so full and plaine learning as in M. Littl. third booke c. z. If saith he a man seised in fée-simple lands hauing issue two daughters of which the eldest is married giue parcell of those lands to his daughter and her husband in franke-marriage and die seised of other lands excéeding in value those which are giuen c. the husband and wife shall haue no part of this remnant vnlesse they will put the land giuen vnto them in Hotch-pot for example If the father had 30. acres and gaue 10. now after his decease if the donées refuse to make commixtion the other daughter may enter and occupie the whole 20. and hold it to her selfe But putting all in Hotch-pott to finde the intire value for it is but an estimation or valuation finding the acres to bee of like goodnesse the Donées in franke-marriage shall haue an nâ—reasement of 5. acres to hold all 15. in seueraltie so that alwayes the land giuen in frank marriage must remaine to the donées and their heyres for else saith Littleton should follow a thing vnreasonable and inconuenient which alwayes the Law detesteth there is the same Lawes betwixt the heyres of Donées in frank marriage and the other partners if the Donées themselues die before their ancestor or before partition This putting of Land in hotchpot is where the other lands descend from the Donor onely and not from any other auncestor for if they descend from the father or brother of the donour from the mother of the Donée that which is equallie so discended shall be without Commixtion equally diuided Also by Littleton if the land descended be of equall valew with the land giuen in franke Marriage Hotchpot should be then in vaine and to no purpose and sée Littl. Chapter of parceners more concerning such Hotchpot How partition may be auoyded PArtition made betwixt two Sisters tenants in fée simple they both being of full age is not defesable though there want oweltie and equall valew in their parts But if the land were in fée-taile the parties making the partition should bee bound and concluded onely for their time the issue of her which had the meaner value might enter after her mothers death into her Aunts part and occupie with her in common and she againe with her niece in the part alotted to her Sister If two Coparceners in fée both married together with their husbands make partition it shall stand in force during the coverture but after the death of a husband his wife hauing a meaner part may enter and defeat the partition not so if at the time of the alotment the parts were both of equall annuall valew If two Coparceners whereof the one is vnder 21. yeares age make partition so that a meaner valew is allotted to the puisne partner she may enter and defeat the partition either in her minoritie or when she is of full age but let her take héed when shée commeth once to full age that shée take not the whole profit of that which to her selfe was alotted for that is an agréement to the partition and maketh it indefeasable peraduenture a moietie of the profits she may take Thrée acres of land are giuen to one in taile which hath other thrée in fée and after his death his two daughters make partition so that one hath the land intailed and another the land in fée if shée which hath the fée-simple alien her part and die her issue may enter into the land tailed and hold occupation in Common with her Aunt whose folly was to make such a partition for since shee is without remedie against the alienée of her mother and without recompence for the lands intailed whereunto she is an heyre by descent from the first Donée it is reason she may enter specially considering that the state taile is not discontinued yet 20. Hen. 6. it is holden that she is put to her Formedon A man seised of two carues of land one by iust title another by disseisin of an infant dieth seised hauing issue two daughters they diuide
setting it abroach but the curious learning w. is that of spirituall kindred caused either by holy Baptisme or by the blessed Chrisme and this had power impediendi Matrimonium contrahendum dirimendâ— matrimonium contractum yea this was such a matter that 39. Ed. 3. fo 32. Bastardie is pleaded against the Plaintiffe in assise and the cause was that the father married a woman before which Marriage he had christned â—â—â— which was his Wiues cousin and for this cause after and of them was dead Diuorce was sued and Iudgement thereof giuen in the spirituall Court though indéed by Iustice Thorpe and the greatest opinion in the temporall Court the Issue could not be bastardized vnlesse the Parents had beene called and the Nuptials destroyed by sentence which was now impossible to doe for death had determined them Out of question therefore if the parties had liued a little or no Kindred had marred great good acquaintance But howsoeuer by those dayes secular Marriage was forbidden in spirituall men and secular men were straightly prohibited by spirituall Spirituall Kindred the Statutes afore-going haue now welcommâ—â— Wedlocke cleane out of the Popes stockes And the 18. of Leuiticus alone doth in a manner sufficiently demonstrate with what persons Women are restricted to marry SECT XXX With what persons Women may not marry SUch are her Grand-father her Father her Sonnes Sonne c. her Brother though it be but the one part her Fathers or Mothers Brother her Brothers or Sisters Sonne or her Sonnes Sonne Brothers or Sisters Children saith Ramus in his Commentaries of Christian Religion lib. 2. ca. 9. are forbiden to inter-marry ed more non lege Diuina vel Romanâ— Christians he saith further which haue abrogated the Law 25. of Deuteronomy whereby a Brother might bee challenged to raise vp the house of his deceased brother haue also constituted a prohibition within certaine degrées of affinity and therefore a man may not marry with the widdow of his Grandfather or of his Father or with the widdow of his owne Sonne or of his Sonnes Sonne or with the widdow of his Brother or of his Brothers Son or of his Brothers Sonnes Sonne c. Nor with the Grand-mother Mother Daughter Neece great Aunt Aunt or Sister of his deceased wife SECT XXXII Of Wooing I Am affraid my feminine acquaintance will say I writ as I liue I talke much of Marriage but I came not forward stay a while yet I pray you I know many an honest woman more repenting her hastie Marriage ere she was wâ—oed then all the other sinnes that euer she committed It were good reason we speake a little of wooing but to handle that matter per genus species would take vp as much roome as the Indian figge-tree euery thrid whereof when it falleth to the ground groweth to a body I will slip by it onely obseruing that the giuing of gloues rings bracelets chains or any thing that is ex sponsalioruÌ„ largitate as a man would say of loues liberality or as a pledge of future Marriage betwixt them that are promised haue a condition silent for the most part annexed vnto them that if Matrimony doe not insue the things may be demanded backe and recouered yet there is a distinction of like for I haue authoritie in it Si sponsus dedit aliquid aliquo casu impediuntur nuptiae donatio penitus rescinditur nisi osculum intervenerit marry if he had a kisse for his money then the one halfe of that which was giuen is the womans owne good And she hath yet more fauor in the case for whatsoeuer shee gaue were there kissing or no kissing betwixt them she may aske all and haue all againe Quaere of this in the Consistorie SECT XXXII The Condiments of Loue. THere are with vs as wel as with the Ciuilians many kinds of Donations propter nuptias and some ex sponsaliorum largitate Good meats are the better for good sauce venison craueth wine and Wedlocke hath certaine Condiments which come best in season in the wooing time and serue as Breton saith pour doner fees come melier talent d'aymer Matrimonie A husband per se is a desirable thing but Donements or Feoffements c. better the stomacke though of it selfe it be good and eager And because the first Marriage made in Paradice if you marke it well had a Iointure I cannot but allow the circumspection which is had SECT XXXIII Of Franke Marriage IT was as I suppose more frequent in the old time that men gaue Lands with their Daughters in Marriage then it was at this day But now as then if a man liberally and freely without money or other considerations saue onely loue and naturall affection giue Lands of Tenements to another man with a woman which is Daughter Sister or Cousin to the Donor in Franke Marriage whether it bee tempore Matrimonij vel ante vel post this word Franke Marriage maketh an estate of Inheritance viz. to the Donees and the heyres of their two bodies and they shall hold quite of all manner of seruices except the pure fealtie till the fourth degree bee past But the Issue in the fift degree and his Descendant shall hold of the Donor and his Heyres as they hold ouer SECT XXXIV The Gift must bee Franke. PEr Rich. 16. assi p. 66. if a man giue land in Franke Marriage rendring a rent the reseruation is voyde till the fourth degree be past per Martine Iustice 4. H 6. 22. such a reseruation is méerely voyde for it is contrary to the nature of Franke Marriage By the old tenures such a reseruation is good and the Donée shall hold in Common estate taile by Brooke in his Abridgement it cannot be any estate taile for want of the parol heyres And where such a gift is made to a woman not cousin to the Donor there passeth but estate for life for it is by a maxime or ground that Franke Marriage maketh inheritance and this case is out of the principall By Bracton fo 28. 29. Si terra detur in maritagium viro cum vxore eorum haeredibus pro homagio seruitio viri licet detur in liberum maritagium qua sunt sibi ad inuicem aduersantia c. tunc prefe 〈…〉 um erit ac si donatio fieret taiâ— viro quam vxori he deliuereth the like learning before fo 22. and this rule withall â—x tacita conditione pacta incontinenti opposita insunt contractibus legem dant eis illos infirmant SECT XXXII The gift must be to a Woman c. IT was deliuered for a Law in tempore H. 8. that Lands cannot be giuen to a man in Frank Marriage though he be Cousin to the Donor SECT XXXVI It may be tempore Matrimonij ante vel post WHat if after the gift made the man refuse to marry the Cousin of the Donor marry else-where If two Donées in taile after the Common forme be diuorced vpon a pre-contract made by
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
matter but the other conclusion puts it to the Law and Courts consideration Yee sée now of what possession of Law a woman is dowable per Brian 4. H. 7. â—o 17. if the Kings ward die vnder age and the neâ—t heyre being married die before â—â—uâ—nâ—runt sued his wife shall not haue Dower But by Dâ—uers and Hussey if the Kings Tenants Heyre haue a wife and after office found the Heyre doth not enter but dieth the wife shall be endowed of the possession in Law before office for the Statute of prerogatiue cap. 13 is intended onely where the Heyre taketh a wife after office and intrudeth SECT LIX There must be in the Husband an Inheritance not cut from the Franke Tenant A Woman shalll haue no Dower in Lands whereof the Frankement and Inheritance was neuer conioyned in her husband during Couerture therefore where the Husband had but a reuersion after estate for life the wife is not dowable vnder this rule commeth one other dos de dote peti non debet And if a man seised c. take a wife and alien with warrantie and then both the feoffor and feoffée die if the wife of the feoffée bring a Writt of Dower against the heyre of the feoffor which voucheth to warrant the heyre of the feoffor and hanging the voucher the wife of the feoffée demands Dower against the heyre of the feoffée if shée bring her Writt not for a third of two paâ—ts but for a third of all that whereof her husband dyes seised she shall not haâ—e iudgement fill the first plea be determined Littleton If there be father and sonne both married and the Father seised of one acre c. dieth and the sonne entreth and dieth if now the sonnes sonne enter and endow his Grandmother which dieth his mother is not Dowable of that which the Grandmother held in Dower for of that his Father had no more in méere right but a reuersion vpon or after a Franke tenement and the Grandmother endowed was in of her Husbands possession yet if the father had in his life time iâ—feoffed the Sonne c. the sonnes wife might well haue Dower after the Grandmothers death of that very Land which the Grandmother held And if the sonnes sonne voluntarily or compulsarily â—â— Writ of Dower had endowed his mother against whom the Grandmother had then receiued her Dower and died after execution the mother might well haue entred into the land which the ailesse recouered against her Parkins 63. The Franke tenement and Inheritance may be both in a sort in the Husband and yet not sufficiently knit and vnited together to giue Dower for example the Lands bee giuen to two and to the heyres of the body of one of them if hee which hath the inheritance die first his Wife is not dowable no not after the death of the suruiuor for the state taile was not executed in her husband to all intents though the Issue in a Formedone against an abater might alleage seisin and esplees as we call them in his father Likewise if by fine sur graunt render estate be made to a husband for terme of life the remainder to I. S. his sonne in taile the reuersion to the right heyrâ—s of the husband and the fine is executed if now the Baron die liuing I. S. or any of his Issue the wife of the Cognusée is not dowable But if a Lease be made for yeares the remainder to I. S for life the remainder to his right heyres c. the wife of I. S. shall haue Dower of this estate though erecution of Dower cannot be â—asting the terme And if a Lease be to the Husband for life with a remainder to a stranger for â—eares the remainder to the Husband in â—ée the inheritance and Franke Tenement are sufficiently connexed to giue the wife Dower bâ—t execution shall cease during the terme for when an estate for yeares is more ancient or as ancient as the Inheritance which the Husband had during Couerture there the execution of Dower to the Wife must néeds tarrie the termes expiration And so it is if a man grant me a rent in fée by Indenture with Condition that the rent shall cease during the non-age of mine heyres my Wife shall not bee endowed during mine heyres minoritie What if a man that is seised in Fée-simple make a lease for life rendring rent c. and then taking a Wife he dieth the heyre shall haue this rent incident to the reuersion and it shall be aâ—ets to him in a Formedone in Descender but the wife gets here no Dower aâ—d saith Parkins a woman shall not be endowed of a rent reserued by her Husband to himselfe and his Heyres vpon a Lease for yeares 1. Ed. 6. titulo Dower in Brooke accordeth If the Law be so Dower hath lesse fauour in this case then the estate per Courâ—â—siâ— d'Angleterre But Cléere if a man take a wife first lease his Lands for yeares or for life and die now the Wife may recouer Dower of the Land it selfe and by Breton if the woman recouer the third part of Lands leased for yeares de office de iustice il serra a gard que el tertiâ— remnant les deux parties que demorent de terre iesques aâ—â—nt que il eâ—t receiue al value de le tierrâ— partie que il auera perduâ— c. But if she recouer all the Land leased from the termer he shall haue recouerie per plâ—â— de garranti either of such other Lands as the Lessor had or if he had no other of the Lands seised when the widdow is dead by sâ—irâ— facias out of the Court where the Iudgement was inrolled Note That though the Law be as is abouesaid where Lands are giuen to two and to the Heyres of one of them yet if the Husband purchase to himselfe and his wife and to the heyres of the Husband the wife may relinquish the purchase and disagree by bringing her Writ of Dower Like Law séemeth to be where the purchase is to the Baron and feme during the life of the Baron the remainder to his right heyres SECT LX. Of what things Dower is granted LIttletons ground is of Lands or tenements But a woman is Dowable also of all manner of rents which are rents of Inheritance Also of Offices as for example of a Bayly-wicke in fée a woman may haue the third part of the profit in Dower and be contributary to the charge Also at this day where the Baron hath but an vse in fée-simple or fée-taile generall vnlesse it be in case where the Husband may and doth disagrée the wife shall haue Dower and if a bargaine and sale be made of Lands to the Husband which dieth before inrolement the wife notwithstanding shall haue Dower and by the inrolement einsement it shall be indefeisable against the Vendor and the Heyre of the Vendée Also a woman is Dowable of Villaines regardant to a Mannor and if a villanie in gros a
second wife may be endowed for after the death of the first wife the remainder in generall taile vesteth maine tenant and is executed 50. Ed. 3. fo 4. Newton saith 7. He. 6. fo 11. if a man make a lease for yeares with Condition if the Lease pay an hundred pound at the end of the terme that then he shall haue fée etsi nemy que il auera que terme that in this Case by paying an hundred pound at the end of the terme the termer shall haue fée from the beginning and his wife is Dowable quere for it seemeth tunc hath relation but ad tempus solutionis If Tenant in Dower lease her estate to the Heyre for her life and the Heyre dieth his wife shall bee endowed notwithstanding the life of the first dowager 45. Ed. 3. fo 13. In action of Dower the tenant shewed that Tenant per Courtesie granted his estate to him in the reuersion rendring rent with clause of re-entry for non-payment he in the reuersion marry the demandant the tenant per le Courtesie re-entreth for the Condition he in the reuersion died his wife was barred Dower for the surrender might well be vpon Condition 14. E. 4. fo 6. SECT LXIII Where Dower is giuen or not giuen of an estate determined VVHere the Husbands estate is loyally enuicted or determined Dower for the most part faileth As thus two men make exchanging of two acres executed in fée one of them dieth his sonne takes a wife and entreth and the otherpartie being impleaded voucheth the sonne which entreth into warrantie so that the Tenant recouereth in value the acre which he deliuered in exchange the sonnes wife shall neuer be endowed of this acre for the title of recouerie in value is from time of the exchange by way of relation and so before the Marriage Likewise if two Copartners in gauell kinde make partition one of them marrieth and the other being impleaded prayeth ayde of his partner which ioyneth c. if the demandant recouer and the Tenant haue pro rata of the partners part which afterward dieth his wife shall not haue Dower of that which is recouered for the title of recouery pro rata is from the death of the common Ancestor saith Parkins As a Villeine takes a wife purchases lands in fée his Lord enters the Villeine dieth his wife shall haue Dower for the Lords title begun by his entrie and the wiues by seisen in the husband the Tenant alieneth in Mortmaine or erecteth a crosse sée thereof W. 2. c. 33. and the Lordentreth the tenants wife shall haue Dower notwithstanding So if the Lord recouer in a Cessauit the tenants wife shall be endowed yet if the tenant had made part and brought a writ of Dower it came to issue ne vnques seisie c. The Iury found the speciall matter and being asked what they thought of it they answered because there was neuer any permanent seisin in the husband that she was not Dowable Your thinking said Iustice Thorpe is contrary to your verdict for here was a possession whereof she is Dowable Et ceo fuit opinion de toutes Littleton also séemeth to be against me in Estate sur condition but it is not ipse dixit but plusiors on t dit Therefore if hee were aliue I might perhaps intreate him to bee on my side SECT LXIV How much and how a woman shall hold in Dower THe Common Law alloweth for Dower the third part of that whereof the Husband during Couerture had such seisin as is before declared to haue and hold if it be in lands by limits and bounds But this Indowment per metes bonds cannot be where the husband is Tenant in Common If one of two Copartners in gauell kinde take a wife and die before partition made the Heyre may assigne his mother a third part of his moity to hold in Common or he may first make partition and then endow her per metes bonds Generally when a woman recouers Dower the Sheriffe shall put her in possession per metes bonds and it hath beene holden that wheresoeuer the heyre assigneth Dower a third part per mi per tout to occupie in Common if the widdow accept it accordingly that this should be a good endowment The Law seemeth to be otherwise By Common right Parkins saith a woman shall haue Dower the third auoydance of euery Aduouson and the third part of euery Mannor that was her husbands for if shee take it in another forme by assignment from the Heyre she may suffer preiudice As if a man seised of thrée Mannors takes a wife and grants a rent charge issuing out of all thrée Mannors and dieth now if the wife by assignment of the heyre accept one Mannor in Dower for all the two parts of this Mannor remaine subiect to the distresse of the granter because the woman for the two parts accepted here her Dower in counter comen droit But had shee vpon recouery of Dower béene assigned this Mannor by the Viscount she should haue held all discharged Yet if a married man seised of thrée Aduousons of thrée seuerall Churches grant to I. S. that he shall present to the Church which next becomes voyde and the granter dying his wife recouers in a Writ of Dower against the heyre before auoydance and the Viscount assigneth to her the Aduouson of one Church for all c. if now the Church thus assigned become voyde ascuns diont saith Parkins the grantée shall present and not the woman for she is endowed incounter common droit and I. S. the grantée which is a stranger to the assignement cannot otherwise take aduantage of his grant But in the first Case after assignment of one Mannor by the Viscount the grantée might distraine in the other two Mannors SECT LXV Lesse or more then a third part THough by the Common Law a woman is to haue no lesse then a third part yet if a widdow will be so foolish as to accept a fourth or fift part or moity of her husbands Inheritance assigned in allowance of all his Franke Tenement it is a good assignement And by custome in some seised of three acres in fée marry and die and a stranger which hath but two of these acres entreth by abatement into the third and after hee hath married the Widdow hee infeoffes a stranger of all thrée acres by indenture resexuing vt supra and dieth the rent goeth out of all the acres but if the heyre of the first husband recouer his acre and assigne it to the woman in Dower shee is Dowable also of the rent for indéed it is entirely issuing out of the two other acres And if a man seised of thrée acres in fée make a feoffement of two reseruing rent out of those two acres vt supra the wife hauing the acre which remained in Dower may haue Dower also of the rent reserued quâ—ere saith Parkins car il est incounter le conscience de diuers homes And making
the acres to be of equall value it must needs bee against law also for one acre of three equally vallued or of euery acre one third part is a iust Dower But if the acre vnsold were inferior in value there is both conscience and law for the woman to claime Dower of the two acres or of the rent for a woman must be endowed of the best possession and not according to the number of acres but according to the value of the Inheritance whilst it was the Husbands Therefore if I make a feoffement of my lands and dye and the feoffée builds a house vpon it or otherwise improoues it my wife shall be endowed no otherwise then according to the value of my possession yet if a disseisor or a feoffée sur condition doe edifie the disseisie or feoffor re-entring shall haue the building If being married I make a feoffement and the feoffee ruinateth a house which was vpon the Lands before the feoffement and that was worth foure or fiue pound annually my wife shall be endowed according to the value that the land was of at time of my death because a woman hath no right to possession of Dower before the death of her husband But Parkins dares not let this Case goe without a quaere SECT LXIX Of Dower at the Church doore THe old kind of endowment at the Church Doore commeth now a dayes seldome in vse But for all that I would haue women better learned then to be ignorant of it it is when a man seised in fee-simple being of full age comming to the Church doore to be married doth there affirme affiance and endowe his spouse of all his lands or of part as of halfe or a lesse quantity openly and with certainty the woman thus endowed may enter into her Dower after the husbands death without assignement and this Dower may be at the Church doore in one County of Lands in another County and without déed Parkins sect 217. Vide Plowd in Sharington ca. fo 304. b. it is good without liuery of seisin Et per Shelly 28. H. 8 Dyer fo it may be done within view and the puisne sonne of Land in borow English may not make such a Dower Also a sonne and heyre apparant when he is espoused by consent of his father may endow his wife at the Church doore in part of such lands and tenements as are the Fathers in fee-simple and the sonnes wife after his death the father liuing may enter presently without further assignement into the parcels thus certainly appointed But if shee enter after her husbands death and agrée to any of these endowments ad ostium ecclesiae she is concluded from claiming any other Dower Thus farre Littleton By Bracton none can endowe his wife in this manner vnlesse hee bee Liber homo for in his time if I bee not much deceiued the greatest number of bond-men held in manurance Lands of their Lords which they occupied to the Lords vse and profit in pure villeinage These hauing none other lands could not endow c. Also by Bracton Quis posset dotem constituere sciendum quod tam minor quam maior masculus Cui vxori tam Church doore to be married deliuer the Deed to her shewing her the lands saying his will is she haue them according to the déede if the Baron neuer claime otherwise then in right of his wife that is a good feoftement But he may endow her of his owne lands ad ostium Ecclesiae without déede though the Land be in a forraigne Countie marry when the Dower is of the fathers Land ex assensu there must bee a deed for assent lieth not in auerment 40. Ed. 3. 43. yet this is contrary to Bracton and in old Bookes the consent hath beene tried by proofes Dowment may be good ex consensu matris but as they say now not ex consensu fratris sororis vel consanguinei The assent ought to be at the Church or Church doore yet 2. H. 3. the sonne married against the will of his parents and eight weekes after indowed his wife of his fathers lands ex assensu patris per curiam it was holden good Fitzherbert 199. Of the head of a Baronie or the Capitall Messuage of a Knights fée Dowmente ad ostium c. is not good but it may be of a moity of all such Lands as the Baron shall hereafter purchace in fee or of all such Lands as the Barons mother holdeth in Dower But if the Father lease his Lands for life and the Sonne and Heyre apparant endow his wife ex assensu c. of the reuersion now if the Lessée die the Lessor enter and the sonne die the wife shall not haue Dower because she was not Dowable of the reuersion at the Common Law though it had beene in her husband during couerture so is it if the Father were seised for life or iointly with another in fee But if the father had beene Tenant in taile the endowment by consent had beene good during his life though no conclusion after his death to his Issue or his wife claiming Dower euen as by Election if tenant in taile being himselfe in actuall seisin endow his wife ad ostium Ecclesiae die if his wife enter the Issue may out her and so may hee in the reuersion if issue faile If the Father at time of endowment ex assensu bee seised none otherwise then in his wiues right Yet Parkins argueth hee shall bee bound during his life quaere I haue held young Maides now indeed somewhat long in the old endowments and I would proceed to instruct them in the dower of the new learning iointures I meane for my desire is that they should be able to haue when they are Widdowes a coach or at the least an ambler and some money in their purses But they are of the minde for themselues I perceiue that Themistocles was in for his daughter He desired a man rather without money then money without a man here is a wise adoe yee say I tell you of Dower of the Widdowes estate and God knowes whether ye shall euer haue the grace to be widdowes or no yee would know what belongeth to wiues on then in a good way I haue brought you to the Church doore if ye be not shortly well married I pray God I may FINIS with her Husbands protection and supereminency Now the Law that giueth Dower to her that is able to deserue it and enableth at so greene yeares knoweth well enough that women are at their Husbands commandement If Titus being dead haue left his wife her maidenhead immunis a culpa a poena immunis erit This I might dilate as in probabilitie or likelinesse of reason at Common Law but it seemeth the matter resteth otherwise determinable For in action of Dower the Tenant shall not plead nunquam carnaliter cognouit nor the demandant be driuen to auerre a knowledge c. But the case may perchance bee drawne to
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
such Lease there shall be reserued yearly to the Lessors their heyres and successors to whom the Lands should haue come after the Lessers death if such Lease had not béene made or to whom the reuersion shall appertaine so much or more annuall ferme or rent as hath béene most accustomably yéelded c. within twenty yeares next before such Leases were made And euery person to whom the reuersion shal appertaine after the death of such Lessors or their heyres shal haue such remedies a aduantages to all intents against the Lessées their executors or assignes as the Lessor might haue had So that if the Lessor were seised in in speciall taile c. the issue or heyre of that speciall estate shall haue the reuersion rent and seruices c. Prouiso that the wife bee made party to euery Lease made by her Husband of any Mannors Lands Tenements or Hereditaments being the wiues Inheritance and that euery such Lease be by Indenture in the name of the Husband and the Wife and she to seale the same And that the ferme be reserued to the Husband and wife and to the heyres of the Wife according to her estate of Inheritance And that the Husband shall not in any wise alien discharge grant or giue any the rent or any part therof longer then during Couerture without it be by fine leuied by the Husband and wife but the rent shall remaine descend reuert or come c in such sort and manner as the land should haue done if no such Lease had béene made prouided that this act extend not to giue liberty of taking more fermes c. then before was lawfull c. nor inable Vicar or Parson to make or grant their Lease of Messuages Lands Tenements Tythes c. or Hereditaments belonging to their Church or Uicarage And it is further enacted that all Leases made within thrée yeares before the twelâ—th of Aprill in the 31 yeare of H. 8. made by Indenture sealed by person or persons of full age of whole memory not vnlawfully coacted nor vnder Couert Baron for terme of yeares of any Mannors Lands tenements or Hereditaments whereof the Lessor or Lessors were seiâ—ed in any estate of Inheritance to their onely vse at the time of their Lease-making and whereof the Lessées their executors or assignes at time of this act Making were in possession by vertue of the Lease no cause of re-entry or forfeiture being had or made shall be good and effectuall in law against the Lessors their heyres and successors according to the couenants and agréements specified in the Indenture c. so that there be reserued to the Lessors their heyres successors c. as much yearely rent as was at any time yéelded within 20. yeares before making of any such lease or else the Leases to be of none other effect then they were of before this act And moreouer it is ordained that no fine feoffement act or acts to be made suffered or done by the husband onely of any Mannors Lands c. being the Inheritance or fréehold of the wife during Couerture betweene them shall in any wise be or make any discontinuance or be preiudiciall to the said wife or her heyres or to such as shall claime right title or interest by her death But that shée or her heyres or they to whom such right or title shall appertaine after her decease shall and may lawfully enter into such Mannors Lands c. any such fine feoffement or other act notwithstanding except fines onely leuied by Baron and Feme wherunto the wife is priuie and a partie Prouided that this clause extend not to giue any liberty to any Wife or her heyres to auoid any Lease hereafter to bee made of any her Inheritance by her husband and her selfe for 21. yeares or vnder or for thrée liues at the most whereupon yearely rent shall be reserued vt supra Prouided also that this act extend not to any Lease heretofore made by Ecclesiasticall or other person by Coâ—eâ—t or Common-seale which Lease is made voyd by act of Parliament nor to make good any Lease of any Ecclesiasticall person made by câ—uent seale or otherwise or of any other person attainted of â—reason c. SECT XXIII The Exposition THis Law in the first part is affirmatiue or I may say leasatiue a leasing Law or Statute Tenant in fée-simple iure mero suo nothing restrained by it No more is Tenant iure vxoris but he may make a Lease for yeares to continue till the last hower of Platoes great yeare or till King Arthur come againe for all this Statute for no greater rent then thrée bundle of bulrushes as well as he might before although her land were neuer leased before since Noaâ—s floud and such a Lease shall bind him during Couerture But if the Husband make a Lease by paroll or by poll déede or by Indenture and the wife not partie or if the Land were not informer times demised or if the ancient rent or more be not reserued then as the earth stayeth in the worlds center vpon nothing but Gods prouidence and permission the Demisée leaneth vpon no Statute but hangeth at the wiues courtesie ponderibus librata suis as at Common Law SECT XXIV Law before the Statute HOw that was yée shall perceiue by the cases following If before the Statute of quia emptores tenant in fée iure vxoris infeoffed a stranger expressing no tenure the feoffés was to hold of the Baron by such seruices as he and the Wife held by of the Lord Paramount If the Baron and Feme had ioyned in a Feoffement to hold of the Baron c. th expressed tenure had béene voyd and the Feoffee must haue held of them both by such seruices as they held ouer c. If the Baron in this case had died and the Wife accepted the rent in her viduity this acceptance here barred her for euer from auoyding the Feoffement by Writt of cui in vita If Tenant iure vxoris and his Wife had made a Feoffement to hold of the Wife the Feoffor should haue held of them both and if the Wife had died the Feoffor was to hold of the Baron till the feoffement were auoyded by sur cui vâ—a Par. 126. Againe if before this Statute of 32. H. 8. Tenant in fée iuro vxoris and his wife had ioyned in exchange for other lands in fée and the exchange being executed the Husband had dyed now the Feme by entring in vpon the Land giuen her vpon the exchange should be barred for euer from defeating the exchange But if it had béene made by the Baron alone she might haue defeated it notwithstanding her entrie for that could giue noseisin by force of the exchange to her that was neither partie nor priuie to it Par. fo 8. And if a man seised in right of his Wife c. make a Lease for life rendring rent with a letter of Atturney to his Wife to make liuery the Wife deliuers
another mans Seignory may Lease away their estate for a proud fine and a little rent Nay yée may be sure that if they might set the example they should be gotten to make Leases for esperuiers annuall and small yearely income in hope that my young Master at his full age should be content with the old rent and a kennell of 〈…〉 ds King Henries and the Parliaments meaning was not therefore that their Leases should be any patternes for reseruation of rent by Tenant in Taile or as I suppose in the right of his Wife If Baron and Feme make a Lease by Indenture for twenty yeares to commence at Michaelmas it might séeme doubtfull by the booke 7. 8. Eliz. Dyer 246. whether it be a good Lease by this Statute If Baron and Feme by their Indenture make a Lease to commence after the Wiues death I thinke this no good Lease according to the Statute for twenty one years ought to be from the making of the Lease c. If the Baron and Feme die the Heyre is not bound to accept the rent or allow the Lease And though he doe accept it if the Land were tailed he may enter notwithstanding vide 10. Eliz. Dyer 279. If Baron and Feme make a Lease by Indenture c. for 31. yeares quaere the Baron dying whether this be a good Lease for 21. yeares or no I thinke it is not but standeth méerely at Common Law For the first Prouiso of this act is that it shall not haue respect or extend to Leases made for aboue 21. yeares When King Henry the eight in 31. of his Reigne by Parliament had made voyd all Leases to bee made of Lands which should afterward come to him if any Leases former were in esse or being with prouiso viz if he which had an old vnexpired lease tooke a new that he should hold for 21. yeares from making of the new Lease so that it excéeded not twenty one yeares it was admitted in Falmestones Case that such a Lease made for fifty yeares was good for 21. Plo. 110. And when Thomas Vmpton after 32. Henry the 8. ca. 1. which gaue power to Tenant per Chiualrie to deuise two parts of his land had deuised a whole mannor in fée before 34. Ed. 3. 5. Hen. 8. of explanation which will by the said Statute of explanation was referred to the Law the deuice was adiudged good for two parts contra Kelwais opinion as you may sée 4. 5. Phil. Mar. Dyer 150. But these cases differ farre from the former as yee may finde by the comparing the Statutes If after a Demise by Baron and Feme for twenty shillings of vsuall rent the husband release all his right except twelue pence c. or grant that the Lessée shall hold dispunishable for waste the Wife accepting twelue-pence post mortem viri may distraine for the rest notwithstanding and haue an action of waste Dyer 304. Note before this Statute was made the Count Bridge water being tenant in taile the remainder to Basset in taile he bound himselfe in recognizance to the said Basset to make no alienation grant sale conueyance or exchange otherwise then for his owne life it was a question after the statute whereunto Basset and all men were parties whether the Earle might now make a lease for xxi yeares without forfeiture of his Recognizance resolved by Bromely Portman and Harris serjeants that he could not but if hee did make such a lease they thought that neither hee in remainder or the donour should euer auoid it by any dying sans issue 33 H. 8. f. 49. in Dyer who concludeth and so shall the statute be expounded for so was the intent a meaning of the makers yet the text hath no word of donours or of them in remainder I heare that law is taken now to bee cleane contrary in the last point viz that remainders and reuersions are freed from this act and I beleeue it the rather because 34. H 8. ca. 20. that frustrateth fained recoueries against tenant in tayle where the King is in reuersion or remainder in the prouision for strength of leases made according to the Statute is only against the Heyre or heyres of tenant in taile c. The last part of the Statute SECT XXVI THe Last part of the Statute is negatiue against 〈◊〉 continuance which how farre it preuailed before or after the act the former instructions with the act it selfe doe put in some cleerenesse But a case or two will make it more plaine Amy Townsend seised of a Mannor in tayle take a husband the husband made a feoffement 29. of H. 8. to diuers persons in fée to the vse of himselfe and his wife for life of them two with remainders of vse ouer After this Statute made Amy and her husband made a Lease for 21. yeares of part of this Manuor according to this act of 32. H 8 Amy died first then her husband died the question is whether Amy were remitted to her former estate taile by vertue of 27. H. 8. ca. 10. and so the Lease good 〈◊〉 was argued on the one part that reduction of the possession by the statute 27. c. was of effect alone with their feoffement and because this possession was regained without either tort or folly in the wife whose agréement whether she would or no was included in her husbands agreement during Couerture she must néeds when Couerture was dissolued till disclaimer or some act done to the contrarie be â—diudged in possession there was then no tenant against whom to bring her cui in vita if she should not bring her cui in vita to purge the first wrong she must needs be remitted if she were remitted this cause must néeds be good And although the Statute of 27. settle possessions according to qualitie and quantitie of the vse yet it séemeth not that so it shall continue but they may change by a former ancient right for the Act being affirmatiue takes not the Common Lawes operation in remitters besides that it hath an expresse sauing of eygne right further if that the wife should not be remitted this inconuenience followeth the Baron might charge the Wiues inheritance with a rent to the whole yearly value or be bound in a Statute merchant c. and then making a feoffement to his wiues vse shee should hold the land charged after his death To this it was answered on the other part that the feoffement at the time therof made a discontinuance which puts Amy to her cui in vita which because she hath not vsed but is come to possession onely by force of 27. c. she must take it onely by the manner order and limitation of the same Statute Couerture or infancie being no whit materiall because the Statute hath none exception The words are in manner forme qualitie and condition of the vse c. and because this was a new Constitution of that which was not at the Common Law it
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
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
Ienny Defendant entred in Banco Regis Hillar 2. Iacobi Rot 571 where the Plaintiffe declared that the Defendant in consideration that the Plaintiffe had formerly married his Daughter at his speciall request the Defendant promised the Plaintiffe to pay him euery yéere during the life of the Defendant ten pound c. and as my report saith the Plaintiffe vpon non assumpsit pleaded had verdict and iudgement in the Kings Bench but vpon a writ of error in Exchequer Chamber the Iudgement was reuersed for that the Marriage was executed before the promise made and yet the declaration supposed that the Defendant requested the Plaintiffe to Marriage c. But let me not run so farre from my Tert as neuer to finde the way backe againe A man may sue for Marriage money in his owne name onely and so is it generally where that which is in demand or to be recouered commeth méerely and onely to the Baron Example 43. Ed. 3. fo 8. The Earle of Arundell brought a Writt of Trespasse against one for chasing in a free Chace that he held in right of his Wife and the Writt awarded good though the Wife were not named in it because nothing was to be recouered by damages Likewise is it if the Baron bring a Writt of Trespasse for strayes taken in Lands holden in right of his Wife And eod anno fo 26. for breaking of a house and carrying away of timber the Husband alone shall haue the action because hee may when hee list pull downe a house or sell timber standing vpon his Wiues Inheritance or make a release to any body vpon such manner of trespasse and the Wiues action is gone for euer There is also the same yeare fo 16. another Case wherein because a decies tantum was brought by Baron and Feme the Writt abated for though the first action concerned the Wiues Interest yet nothing is to be recoueredin a decies tantum but damages c. Sée the Booke of 20. H. 6. fo 1. a Writt of maintenance wherein nothing is recouerable but damages was brought by Baron and Feme vpon maintenance in a bill of fresh force against them by the better opinion they might ioyne c. And the Defendant passeth Ouster but not by award 41. Ed. 3. f. 9. a Writ of Champertie brought by the Baron onely vpon an assise which had passed against him and his wife was allowed good notwithstanding exceptions taken of the wiues Interest c. vpon the reasons before expressed And by Finch if a man haue a Ward in right of his Wife Dower shall be demanded against him onely because the gard is a Chattell vested But if a Writt of Wardship be to be brought it shall be against the Baron and feme c. because of voucher And in trespasse if the Plaintiffe recouer against Baron and Feme by false verdict they both must wyne in the attaint for that must be according to the record 46. Ed. 3. fo 20. a man brought a Writt of rauishment de gard declaring vpon a possession iure vxoris and the Writ held good yet in this case there is more then damages to be recouered for the Plaintiffe shall haue the Infant restored by the very words of his Writt But there againe it was agréed that an action to recouer a Ward must be against them both because of voucher though in a writt of Dower it be vt supra because therein there is no voucher c. If Baron and Feme sell the Wiues Inheritance by fine for twenty pound an action of debt for the money shall bee brought by the Baron onely for the grant was onely the Barons grant and if he die the Executors shall haue the action and not the Feme 48. Ed. 3. fo 18. And a repleâ—â—n must bee brought by the Baron onely because a Feme Couert cannot haue a propertie in any goods or Chattels But for such goods as the Wife hath as Executrix it séemeth the Baron and Feme may ioyne in ar pleuen so shall they for goods of the Wife taken dum sola fuit Fitz. in the title reception In trespasse at Common Law or vpon the Statute Anno 5. Rich. 2. the Baron alone shall haue action of trespasse and so likewise for taking away Charters concerning the Wiues inheritance So is it if he alone deliuer such Charters he alone may haue action against the Bayliffe c. But a Writt of Detinue of Charters of the Wiues inheritance must be sued by both c. because the Charters themselues are to be recouered And therefore vpon recouery of them the Baron and Feme must ioyne for recouery A quare impedit was brought 50. of Ed. 3. fo 13. and the Baron declared of an agréement betwixt thrée Sisters to present by turne to a Church whereof they had the Aduousan and this was the turne of his Wife c. The Defendant demands Iudgement of the Writt because the Wife being still aliue was not named but this Writt also was awarded good because nothing was to be recouered here but onely the Presentment and not the Aduousan And if a Writt should be awarded to the Bishop against the Baron the Wife thereby should not be out of possession because she is not partie to the Iudgement besides that she is ayded by West 2. cap. 3. And for a generall rule where the Husbands release is good the action may be brought in his name onely as vpon cutting of trées grasse Corne c. And such actions may be brought in the name both of the Husband and the Wife An assise of â—arraigne presentment is a mixt action and the Aduousan it selfe shall be recouered in it therefore of necessity it must be brought both by Baron and Feme 15. Ed. 4. fo 9. The Baron Seignior in right of his wife ioyned in a writt of rescous and it was argued that he alone ought to haue brought the writt But it was awarded well brought by them both Though per Littleton it were good enough in nosme le Baron tantum And per Pigot when an obligation is made to Baron and Feme the Baron alone may haue the action or they may ioyne â—adem lex in trespasse c. maintenance c. for alwayes where the action may suruiue to the wife the wife may ioyne in the writt They which shall read these two last Cases argued 50. Ed. 3. and 15. Ed. 4 in the yeares at large shall not néed to repent it SECT XLII When a Wife may sue or be sued alone IT is seldome almost neuer that a marryed woman can haue any action to vse her writt onely in her owne name her husband is her sterne her primus motor without whom the cannot doe much at home and lesse abroad But if her Huusband commit felonie take the Church and abiure the Realme she is now in case as a Widdow inabled to make alienation of her owne land as a Feme sole or to bring a cui in vita for
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
habet in the other Writ for hee â—aith where a woman that hath recouered part of her dower of one Tenant already demands the reâ—nant against the same Tenant in the same Towne because the words vnde nihil habet will not seâ—ue this Writ de recto de doâ—â— is vsed of necessity and is directed to the heires Gardian if he be in ward or to the heire himselfe or to a deforcour And some say that a woman losing her dower by default in a praecipe quod reddat she shall recouer by this Writ de recto de dote by the opinion of some But it séemes shée may haue a quod ei deforceat by equity the Statute W. 2. cap. 4. Whereas before shee had no â—â—â—edy but by this Writ or by action of deceipt if shée were not summoned Fitzherbert holdeth also if a woman lose her dower by assise or other action tryed sheâ— may haue an attainte but not this Writ de recto for the land was assigned her once to hold in dower and by that title she had possession so that that title est execute and so she ought to sue an action of her owne possession if shee bee deforced and not demand dower againe quaere The forme is Praecipimus tibi vt plenum rectum â—â—neas B. quae fuit vxor C. de tertia parte decem acrâ—rum cum pertinentiis in D. quam claâ—at tenere de te in dote ê‘ liberum seruitium tertiae partis vnius denarii per annum c. And this Writ may bee of the moity of land according to the custome c. or of the profitâ— of an office Fitzherbert sets downe one for example Rex Andreae salutem we command you that you yéeld vnto B. which was wife of â— her full right and third part of the profits issuing of the Custody of Westm Abbay goale with a third part of thrée Acres aâ—rable of one rood of meadow of bread meat and bottles of ale weekly c. which shee claimeth as belonging to the francktenement which shee holds of you in dower c. by frée seruice and bearing a third part of cost and charge towards the kéeping the goale and gate of the Abbey aforesaid c. whereof you your selfe deforce her hereby appeareth plaine that a woman deforced from any thing appendant or appertenant to dower assigned her may haue remedy by Writ de recto de dote The old na bre notes that of a Bailiwicke or any such office in fée which a woman may execute her selfe or make substistute or deputy of it she shall haue dower but not of Stewardship or Marshalship of England And of a common of beasts without number a woman is not dowable 9. H. 7. 4. Park Sect. 341. And of an vse before the Statute of 27. Hen. 8. of vses shee was not dowable as it is said in Vernons ca. Sir Edward Cokes 4. Rep. fol. 1. And of an annuity shall bee no dower but of prediall tithes dower shal be as appeares by the Countesse of Oxfords Case cited in Harpurs Case in Sir Edw. Cokes 11. Rep. fo 256. The paroll or plea is sometimes remoued in this Action As if the Writ be to the husbands heire which heire being himselfe Tenant of the Land will not doâ— right the Demandant may haue out a pone to remoue the matter straightway from the heires Court into the Common place but a tolt to remoue it first into the County for the originall is nisi feceâ—â—s vicecomes faciet and from thence it may bée remoued by the Plaintiffe to the Common place by a pone without any cause mentioned in the Writ But the Tenant in a droit patent cannot remoue the Plea out of the County without shewing case in the pone yet as well in a Writ de recto de dote as in a Writ of droit patent the tenant may remoue the plea shewing cause and that immediatly out of the Lords Court into the Common place by recordare and so cut of the heires Court quaere If a man seâ—l all his land and dye so that the â—eire hath nothing by discent now this Writ must be directed to the feoâ—ee of whom the widdow when shee is indowed musâ— hold as of her Lord by â—ealty But if before the Statute of quia Emptores terrarum â— if the husband â—â—â— infeofed a stranger of part of his Lands to hold of the husband c. a Writ of right of Dower must haue béene â—o the heire in whose Court the matter was to bée purâ—ueâ— by reason of the remaining Seignory So â—â— it if at thiâ— day the Baron giuâ— part of his Manor to hold in tayle But if a man giue away all his â—and to bee holden of him in tayle and dye now the Writ de recto de dotâ— must bee against the donée directed to the Sheriffe retournable in the Common place for the heire hauing only a Sâ—gniory in grosse can kéepe no Court. Anâ— in the Writ shall bee inserted quia B. capitalis dominus feodi remisit nobis curiam suam If the Baron hauing leased all his landâ— for terme of life dâ—â— c. And though there be not in Chancerie or any where elsâ— any matter wherby to proue the Lords remission of the Court yet if the Lord haue not any demesâ—â—â— whereupon to hold a Court he can haue none action against the Demandant for the â—alse suppâ—sall or â—urmise nor let nor hinder the procéedings in Common place But if he had a Court to hold plâ—a in and did not remit his Court to the King he may haâ—â— prohibition to the Iustices commanding theâ— not to proâ—éed any further But saith Nat. Breu. quaere of that matter And sâ—e Plowd fol. 74. â— where the Lord hath a Court and he will remit his Court his Certificate must bée to the King in his Chanceriâ— and thereupon a Writ of right shall be returnable in the Court of Common Pâ—eaâ— In the Common Place when the plea is remoued thither your processe is Grand câ—pe and Petit cape In the Lords or heires Court is vsed firâ—â— a precept in nature of sâ—mmâ—â—â— and of a Grand cape and Petit cape And note that in this writ if â—â—◠〈◊〉 appeare they neuer procéed to grand 〈◊〉 or trâ—â—ll by battaile from which the 〈◊〉 is exâ—â—pâ—ed and so â—â—â—â—â—quently here is neuer per Brâ—cton any Eâ—soine de malâ— lecti But the tenant may â—â—â—â—h his 〈◊〉 if â—â— haue any And after the woman hath maâ—â— hâ—◠〈◊〉 or demâ—â—â— pursuing hâ—r writ the tenant may in 〈…〉 say that â—â—ee rendred she land to hiâ— of hâ—r owne accord Or if she said he disseised her of her Dower he may pleaâ—â—â—â— Relege saith Bracton Et poâ—â—riâ—â—â—ritas per patriam dâ—clarari SECT XIX What thingâ— shall be assigned in Doâ—â—â— c. WHen Iudgement is giuen in curia regis against the tenant either vpon his default at the Grand cape returned or vpon confession or issue tried the chiefe
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
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
the Statute of 〈◊〉 7. notwithstanding the foure hundred pounds paid by â—â—â— husbands father for the â—â—nd â—rst moued from 〈◊〉 〈◊〉 father and the presermenâ— of the bloâ—â—â—â— I. N. 〈◊〉 〈◊〉 intent that the husbands heires should not 〈◊〉 〈◊〉 but the wiues And the Bishop of Exâ—â—tors case 〈◊〉 that case cited which was that in consideraâ—ion 〈◊〉 〈◊〉 to the woman and seruice done by the man 〈◊〉 〈◊〉 gaue the land to them 〈◊〉 â—â—◠〈◊〉 to 〈◊〉 of the Bishop it was â—â—â—â— to be 〈◊〉 that the 〈◊〉 〈◊〉 after her husbandâ—â—â—â—th had no 〈◊〉 within 〈◊〉 said Statute of â—â— H. 7. but that she might self it 〈◊〉 â—â—nger of the Statutâ— SECT XXXV What Actions concerning chattells doe suruiâ—e a widdow I Hâ—ld it good wisdome for a widdow and for all persons to haue greatest care of matters of greatest moment and not to contemne the lesser Now that â—â—â— haue doâ—e with matters of Francktenement we will see a little in what Actions concerning Chattels reaâ—â— or personall duties a widdow may be Plaintiffe or Defendant to make an end of reckonings begin before or whilst she was a wife Iâ— Feme couert deliuer Déed to I. S. she may haue Action of Detinue for the Déed after her husbands decease for though the deliuerie were voyd betwixt I. S. and the Baron yet it is good betwixt I. S. and the wife if the Baron dye 3. H. 6. 50. If a lease be made to Baron and Feme for yeares and the Baron die the wife shall haue the terme and if the Lessor out her she may haue Action of câ—uenant 47. Ed. 3. 12. If a man be bound to Baron and Feme in Statute Merchant the Baron alone may make de 〈◊〉 〈◊〉 e and by some opinion the Auâ—â—â—â— quert la must bée against â—â—â— alone but if he doe not release c. the Statute suruâ—â—â—th to thâ— wife and she may sue execution executor â—â— my And per Finch the Law is all one of an Obligation and a Statute Likewise in a plea of land if Baron and Feme recouer the land with dammages and the Baron â—â—â— his wife shall sâ—e for dammages and not his Executors So likewise by Bâ—lknap If an Obligation be made to Alice the wife of Robert this is a good Obligation and Alice and Robert may ioyne in an action vpon it and if Robert die before he haue released for â—e may 〈◊〉 release it Alice alone shall haue the Action 48. Ed. â— 12. simile 7. H. 6. fo 2. Sée the Commentaries of Sir Coke vpon Littleton fol. 350. It is said that Chattels reals of a mixt nature namely part y in possession and partly in action happening during couerture if the wife haue her husband she shall haue them by the Common Law as if the husband be seised of a rent charge rent seruice or Secke iure vxoris the rent incurreth during couerture if the husband dye the wife shall haue the arrerages and â—â— of an Aduowson of the Church during couerture sic de 〈◊〉 And in those cases the husbands shall gainâ— them by suruiuership but for arrerages or auoydance of the Church before marriage the husband could haue â—â— help by suruiuership and so of releases But now by the Statâ—te of 32. H. 8. cap. 37. By suruiuership the husband shall haue the arrerages as well incurred before the marriage as after If an Estray happen within the Mannor of the wife if the husband dye before seisure the wife shall haue it fâ—r that the propertie was not in the wife before seisure But as to personall goods there is a diuersitie 〈◊〉 a propertie and a bare possession for if personall goods be deliuered to a woman or if she finde goods or if goods come to her hands as Executrix to a Baylâ—ffe and taketh aâ— husband this bare possession is not giuen to the husband but the Action of Dâ—tâ—â—ue must be brought against the husband and the wife If Baron and Feme make a lease for yeares and the Baron die the wife may bring an Action of waste 22. H. 6. 24. If an Obligation be made to Baron and Feme and the Baron die the widdow may haue the Obligation 4. H. 6. 5. Quaere for the booke is not so cleare as Brooke makes it the woman was Obligée with her husband 〈◊〉 sued as Executrix Generally where title or cause of Action is giuen 〈◊〉 woman before marriage or during marriage and the husband releaseth not c. the Action suruiueth when â—â—â— dye But there may be a release in land as well as in fact iâ—plied as well as expressed And therefore the case is 8 Ed. â— Br. Dâ—â—â— 156. and cite Plowâ— 184. in Woodward and Darcy his Case If a man be bound to a woman and to another and the Obligor marry the woman all the obligation is extinct although the wife ouer liue her husband or although shee dyes â—wing the other obligee for either of the obligées hath power to release and that inter marriage is a release And gifts in Law of the chattels of the wife as well reall as personall are outlawry or attainder of the husband If a man marry with a woman executrix and then release to Creditors all manner of Actions generaly this extendeth to his proper accords and to those which his wife hath either in her owne right or as executrix Baron and feâ—e â—0 in Brooke Sée Brooke coueâ—onâ— 6. Action of couenant was brought against Baron and Feme lessées of a Manor for terme of life rendring 20. â—i per annum and they were bound to the Plaintiffe that hée should haue such surety for his rent as his Councell deuised the Counsellers deuised the Assurance and the Defendants refused to make it it was ruled for Law that if the Baron died nothing should bind his widdow saue onely the lease and reseruation if shee agréed to the lease post mortem viri And shée shall bee charged with payment of the rent or double it or pay fine â—◠〈◊〉 paenae or hold it subieâ—t to reentry according as the lease was made But a collaterall couenant as that the lessor shall distraine in other lands for his rent or a couenant to charge the lessées persons in twenty pound for non payment c such like agréements binde not the widdow when the Baron is dead and the Writ abilted Note that widdow is a good Addition to bee put to the Defendants name many originall Writ of Action personall appeale or inditement wherein exigent â—eth c. According to the Statute â— Hen. 5. cap. 5. And 14. Edw. 4. fol. â— Bâ—arkey demanded of the Iustices in the 〈◊〉 chamber if an Action were brought against a 〈◊〉 〈◊〉 was neither maid wife nor widdow what addition should be giuen her some say she should be called single woman and there it is doubted whether seruant â—ee a good addition or not for it was no addition by the Common Law as some said Wée are past the
father of Elizabeth William Venor dyed without issue and Elizabeth being sole seized was afterward rauished by Iohn Worth which after that hâ—â— had married her was indited of rape and tooke â—anctuarie at Westminster Elizabeth his wife being there with him was aduised to disassent and to part from him to saue her inheritance which she refused to doe and was afterward brought before the Councell in the Star-Chamber being there demanded if she assented or not and shée answered that Iohn Worth was her husband and she would not forsake him whereupon the issue of Robert Babbington Robert being dead entred vpon her land by the Statute of 6. R. 2. which willeth saith â—rookâ— if any woman assent to the rauisher that he to whom the land should descend reuert remaine or escheat may enter And though it were contessed that there was another person more neere in bloud to Elizabeth than was this issue of Robert Babbington yet because he was next in remainder his entrie was lawfull But Elizâ—beth did â—ust him and hâ—â— brought an Assise Then to proue the assent it was giâ—en in â—uidence that she had married him assenting to him as well in Sanctuarie as before the Councell And for Elizabeth it was alleaged that the espoâ—saâ— and all the assentings were by dures and force and for feare of the rauisher which might not be called assenting for none consenteth but frankly voluntarily and sans féare Quod videtur Lexibidem But in the end because shée might haue disagréed before the Councell and did not her assent was holden voluntarie and the Assise passed for the Plaintiffe And it was agreed for Law that if title of entrie into lands be giuen to a daughter by force of this Statute and she entreth that she shall retaine and enioy them notwithstanding the birth of any sonne Posthumus comming afterward though he be more néere or worthy of bloud And so it is generally where the entrie is giuen by Statute but if by Common Law adiscent bée cast vpon a daughter which entreth shee must giue place to a sonne borne afterward It was remembred in this case that in former time a woman being rauished after she had continued seuen yéeres with the rauisher and had borne him a childe escaped from him and sued in Parliament in the time of H. 6. against him till he was attainted And being demanded how she could now say that she neuer assented hauing conceiued c. shee answered that her flesh consented to him but her soule and conscience did euer abhorre him 5. E. 4. fol. 58. SECT XXXVIII The Statute 18. Eliz. cap. 7. I Am at the end of my voyage but before I take shore I will â—hew you how our late most excellent Law-giuer renowned Quéene Elizabeth whose vigilant care hath alwayes béene that all her people might liue vnder her in peace and without oppression hath giuen strength and perfection to the former functions of other Princes to make them a firme bulwarke against all manner of iniurers that possibly might oppresse women and I can but maruell that when so daâ—â—ablâ— a crime â—â— rape had giuen so often to the whole Realme such cause of bitter complaint and men in sundry ages had beaten their braines so carefully in finding out remedy against it how it was possible so long space together to leaâ—e such a priuilege to him that could read the blessed Psalmâ— of Miâ—erere c. that though hée had rauished the fairest Lady in the Land hée might almost goe away without touch of breast for it Therfore the eightéenth of Quéene Elizabeth for repressing of felonâ—ous rapes and rauishments of women and of felonious Burglaries it was enacted that they which were found guiltie by verdict or by confession or outlawed of or for such felonious Rapes or Burglarie they should suffer death and forfeit as in cases of Felony had béene vsed by the Lawes of the Realme without allowance of priuilege or beneâ—â—t of Clergie Further that they which were in other cases to haue benefit of Clergie should immediately after burning in the hand according to the Statute in that case prouided be forthwith enlarged by the Iustices and not be deliuered to the Ordinarie But yet that the Iustices before whom the Clergie shall be allowed may detaine such persons in prison for correction as long as they shall think conuenient so it be not aboue a yéere Then because in the fourtéenth yéere of her Maiesties reigne as you may perceiue in Dieâ— fol. 304. in the case of a Scot which had rauished a girlâ— being not past seuen yeeres old the Iustices were in doubt whether rape could be of a childe of such tender yéeres not yet nine yeeres old and therefore they went not to iudgement of the Scot though by euidence of diuers Matrons he seemed guiltie this Statute ordaineth that if any person vnlawfully and carnally know and abuse any woman childe vnder age of ten yeeres euerie such vnlawfull and carnall knowledge shall be felonie and the offender being duly conuicted shall suffer as a Felon without allowance of Clergie And as M. Lambard and M. Crompton doe both of them note it is not materiall whether she consent or no for the Law adâ—udgeth her vnable to consent at so tender age The last prouiso of this Statute is that they which are admitted to their Clergie shall answer to all other manner of felonies whereof they haue not formerly béene acquited conuicted attainted or pardoned as they should haue done if as Clerkes conuicted they had béene deliuered to the Ordinarie and made their purgation SECT XXXIX The Statute 39. Eliz. cap. 9. LAstly because this exemption of Clergie was leuelled onely against Burglaries and felomous rapes by violence and of the antique Faulkoners fashion leauing vnto couetous rautshers by abduction and I might say by insinuation the benefit of their Booke by reason whereof diuers maids widdowes and wiues had of veriâ— laâ—â— dayes béene first carried away and then defiled married c. It was enacted at the first Parliament begun Ann. 39. of the late Quéene Elizabeth That whosâ—euet shall be conuicted or attainted of or for any offence made felony by the Act aboue specified 3. H. 7. or which being indited or arraigned of or for any such offence shall stand mute or make no direct answer or shall challenge peremptorily aboue the number of twelue shall in euerâ—â— such case suffer death without benefit of Clergie prouided that nothing in this Act contained shall extend to take Clergie from any person or persons which â—â—â— not either principals or procurors or accessaries before the offence committed SECT XL. The Conclusion THus haue I sailed betwixt the capes of Magna Charta and Quadragesima of Queene Elizabeth collected the statutes principally belonging to women conioyning customes cases opinions sayings argumeuts iudgements and points of learning of like sort and subiect dispersed in our Law books now comming to take hauen God grant I may fall in at port Grace and good acceptance of all that shall read what I haue gathered they which are lesse learned than my selfe in this studie which I accompt to be those that haue but newly taken acquaintance of Littleton may spend some tâ—me here not without some fruit and profit They that are better learned than I into which company some may crowd that perhaps might bee challenged of intrusion will giue mee no thankes for my paines Rather I must thanke them if they vouchsafe to read them without open scorne and bitter censuring but they to whom my trauels are chiefly addressed are women so many as beare the title of honest women how good and vertuous soeuer they be I sâ—e not how they can scape the taint of ingratitude if they giue not a reasonable fauour and applause to my good intention and labour whereby things behoouefull for thâ—m to know are laid plaine together and in some orderly connexion which heretofore were smoothered or scattered in corners of an vncouth language cleane abstruded from their sex Which concealement because it seemed to me neither iust nor conscionable I haue framed this worke admonishing them not to take it for so strong and substantiall a péeâ—e as London bridge is whereon you may boldly set vp great builâ—ings but I willsay to you as Littleton said in his Tenures to his sonne There â—ée some things in these Bookes which are not Law yet euen those may enable you the better to vnderstand the reasons and arguments of Law and to conferre and enquire what the Law is amongst the sage Masters thereof FINIS