mothers side yea and before a sonne of the second uncle on the part of the father and this by the worthinesse of blood I will not examine the crainkes of discent but turne to the case where possession of the brother excludeth a brother and taketh in a sister If a man hath issue a sonne and daughter by one venter and a sonne by another and give land to the eldest sonne in taile now if the father die and the reversion in fée discend to the eldest sonne who likewise dies without issue of his body the second sonne shall have this land For here was no possession but an expectance of fée simple in the eldest Per omnes Iusticiarios de Communi Banco 24 E. 3. fol. 13. For it is possessio fratris non reversio fratris c. Yet Thorpe Iustice of the Kings Bench thought the land should goe to the daughter Brooke con Brooke discent 13. Againe afine was levied to I. and A. his wife in taile the remainder in fée to A. they had issue a sonne and the husband died the wife tooke another husband by whom shee had issue another sonne and died the eldest sonne entered and died without issue the collaterall heire to him entered as into the remainder in fée and the youngest sonne of the halfe blood to execute the fée brought a Scire facias which was holden good for though the eldest might have charged forâ—ited or given the fée simple by atteinder yet it was not actually in him and therefore the demi sanke none impediment but the younger sonne might have it as heire to his mother 24. E. 3. fol. 30. Which cases prove that the possession of a brother to convey the fee to a collaterall heire if it be not apprehendeth actively the generall heire to the common ancestor may enter Therefore where there is a son or daughter by one venter and a puisne sonne by an other venter if the father die seised of an advouson or a rent and the eldest son died before he present or receive the rent the daughter shall not inherit and if the father die seised of an use in fee possessio fratris facit sororem esse haeredem by taking the profits of the ground 5. E. 4. 7. Where it is said that if the father by testameÌ„t bequeath the profits for tearme of yeares this letteth not the possession of the eldest brother otherwise it is if it had beene for tearme of life and the like difference is by this booke if a lease be made for yeares or for life of lands not in use c. SECT VIII Where the manner of gift altereth the discent BRactons first exception to his general rule that a Woman shall not inherit when there is an heire male is Nisi contrarium faciat modus donationis His example is A man giveth land to one in mariage with his daughter to them two and to the heires of their bodies they have issue a daughter and the husband dying the wife taking another husband hath by him a sonne and dieth the daughter shall inherit per modum donationis the case is plaine But Littleton hath a limitation where modus donationis doth cleane exclude Women from inheriting That is where lands are given to a man the heires male of his body now if he die having issue a sonne and a daughter by one wife and a second sonne by a second wife the daughter can never inherit nay if he die having issue a daughter onely which daughter hath a sonne neither daughter nor son shall inherit for whosoeuer shall inherit by force of an intaile made to heires males must per modum donationis be males coÌ„vey his disceÌ„t to it per heirs males which because the sonne cannot doe here the donor may reenter But Littleton saith also lest women should take the matter unkindly at his hand that where land is given to a man to the heires females of his body his issue female shal inherit per formaÌ„ doni not the issue male for the will of the giver must be observed He hath another case which I may not omit When lands are given a man to the heires males of his body which have issue 2. sonnes the eldest dyes having issue a daughter if hée lease the land for tearme of yeares the reversion descendeth to the sonne but if the lease bée for tearme of life of the lessée the reversion and the fée simple descendeth to the daughter the discontinuance is the cause here the daughter is in not in the per but contra modum donationis by violating the will of the giver SECT IX Where a woman comming to lands shall retaine them c. NOw I will shew you where a female having gotten inheritance per modum donationis or otherwise shall retaine it and where not Marke well this case Iohn died seised of fée leaving issue Robert the eldest sonne and Richard the puisne Robert entred tooke a wife and had issue Alice which Alice died hée tooke another and leaving her great with childe hée died the Lord seized the land and ward of Alice and granted the custody to one which indowed the wife of Robert she was delivered of a sonne William The Lord seized William his ward which lived ten yeares and died without issue Henry the sonne of Richard the second sonne of Iohn entereth Alice entereth upon Henry and hée brings an assise now because the possession of the Lord was seisin and possession of William to whom Alice was but of the halfe blood it was awarded that Henry should recover But by the opinion of the Court the land which the wife held in dowre should goe to Alice for therein William had Broke dispent pl. 19. no more but a reversion 8. Assisa pl. 6. Againe Henry seised of tenements deviseable in Winchester where the Custome is that hée which is seised by devise may not with warranty or without warranty make alienation to barre the reversion or remainder deviseth them to his wife Alice for tearme of life the remainder to Th. his sonne for life so that Th. should make no alienation quo minus tenementa devenirent propinquioribus haeredibus de sanguine puerorum post mortem predicti Thom. Henry died having issue Steven an elder sonne and Maud a daughter which had issue Eliz. Steven died without issue Alice the wife entered and died seised Tho. entereth and alieneth in fée with warranty Maâ—d dieth Elizabeth maketh claime by taking the haspe of the doore in her hand Tho. dieth without issue Eliz. entereth upon the alienee he puteth her out shée bringeth an assise It was holden that the heires of Henry had nothing in the fée simple by the limitation which went not to his children but to the next of blood to his children excluding ses infants demesne And by Wilby if B. make a lease to Alice for life the remainder to the néerest of blood if he die having issue 2. sonnes and the
eldest dye having issue a sonne though this issue be heire to B the other sonne after the death of Alice shall have the land as néerest of blood and by Greene and Seaton if there had béene severall issues of divers sonnes and daughters to the devisor when the remainder vested it should have gone to them all But here because the daughter of him had issue a daughter when the tenant for life died and there was not issue of any sonne at the instant to take from her or with her this Daughters Daughter shall have all and though there came an after borne sonne of any of the brethren she may detaine all c. for a remainder vested is not like to fée simple discended to a daughter where a sonne Posthumus may enter And if lands be letten for life the remainder to the right heires of I. if I. dye having issue a son which entereth after the death of the tenaÌ„t for life then dieth his son shal have nothing because he was not capax at the fal of the remainder likewise where there is a brother sister lands are let for life to an estranger the remainder to the right heires of the brother if he and the tenant for life die the sister may enter and retaine the possession and fée though the brothers wife bee afterward delivered of a sonne in like sort did the remainder rest in the child of Maâ—d in Eliz. viz. which recovered by award 30. Assi p. 47. But where there is father and sonne which sonne purchaseth and dieth without issue and an uncle entereth if two yeares after the father hath a sonne by the mother of the purchasor this sonne may enter and put out the uncle and the reason of Law is that hée that comes in by purchase must be capax at the time when the purchase vest in him but in case of discent it is not so requisite Perk. in his Chapter of devises saith that if a devise bée made to a colledge which is not a colledge at the time of the devise it is a void devise although afterward it be made a colledge upon the same reason is Dier 13 Eliz. 303. of a devise to an infant in ventre sa mere And where a man dieth seised and his daughter entereth c. a son borne afterward may enter but it is not so in case of purchase c. for if a woman consent to a ravishor her daughter and heire enter by the statute 6. R. 2. ca. 6. the son Posthumus shall not put her out no more shall he where a daughter and heire entereth for condition broken and where a daughter hath a villain by discent which purchaseth she entereth into the perquisits an after borne sonne her brother shall have that which discended viz. the villien but not the land these cases hath Brook Discents 58. out of the Doct. and Student 5. Ed. 4. fo 58. in the case of Elizabeth Venor agreeth concerning entry made by 6. Ri. 2. And so doth Hales and Mountague in the case of Wimbish and Talbois yet Mountague Chiefe Iustice taketh there a learned difference if a man devise land for life the remainder to the right heire male of the devisor the heires of his body c. now if the devisée for life die and a woman which is heire generall to the devisor entereth and hath afterward a sonne the sonne shall never out the mother in whom is vested the inheritance for want of other persons to take the falling remainder per le melior opinion 9. H. 6 yet he saith the cases of ravishment possession of a brother abatement of a bastard c are all to bee understood of fée simple for where the entry gaineth but estate taile one may beate the bush and another take the bird so if a man seised by discent from his mother make a feofment with condition c. and die without issue if a woman heire on the father side enter for condition broken an heire male or female on the mothers side may oust her Plow c. fo 56. a. b. 57. a. West 1. ca. 22. THen West goeth on with heire females that so soone as they come to the age of fourtéene yeares if the Lord for covetousnes will not marry them yet he shall not kéepe their land above two yeares after they have accomplished 14 within which two yeares if they be not married by their Lord they may take action against him for their inheritance to recover it without paying any thing for the custody or for marriage If so be that of their proper malice or through the mischievous counsell of others such women refuse convenable marriage offered by their Lord he may in this case retaine their land untill they be of 21. yeares and longer untill he shall receive the value of their marriage Littletons words upon this statute in his 2. booke cap. 4. BY Littleton if tennant by service of Chivalry die his here female being 14. yeares old or more the Lord shall have custody neither of the land nor body for at that age a woman may have a husband able to doe knights service but if such an heire be under 14. and unmaried at the time of her auncestors death the Lord shall have ward in her land untill she be of 16. yeares age West 1. cap. 22. which getteth the Lord 2. yeares to tender marriage without disparagement and if during these two yeares the Lord tender no such marriage shee may enter and oust the Lord. If such an heire female be married under the age of 14. in the life of her ancestor which ancestor dieth before she accomplisheth 14. yeares the Lord shall have no more but the wardship of her land till shee be 14. yeares old and then her husband with her may enter into her land and put the Lord out for this is out of the Statute because the Lord may not tender marriage to her that is already married for before the Statute of West such an heire female that was under the age of 14. at the death of her ancestor and had atteined afterward to the age of 14. yeares without any tender of marriage by her Lord made unto her might well enter into her land and put out the Lord as appeareth by the rehearsall and very words of the Statute which as it séemeth so saith Littleton was made altogether for the advantage of the Lord. A suspition of Littletons error NOw saving Mr. Littletons inspiration I am greatly afraid that ye shal not finde by the text of the Statute That an heire female being under 14. at the death of her ancestor might by the common law before this Statute enter and oust her Lord as soone as she had accomplished 14. yeare of age without tender of marriage The law perhaps was so but this Statute proves it not Againe I doubt Littleton was deceived in taking this Statute to be all for the advantage of Lords yet it is
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
Lessor running to smoke rightly to smoke which is something more then nothing for if after all this the Lessor bring an action of waste against the Baron and Feme the Baron cannot barre her by shewing her reprisall and remitter but hee is stopped from speaking against his owne Feoffement and receipt So that here may bee an estoppell or conclusion by a matter not witnessed with specialty or any manner Scripture But if in the action of waste the Baron will make default at the grand distresse the wife vpon her prayer receiued to shew her matter shall barre the Lessor of his action right well For in euery case where a woman is receiued to plead in her husbands absence she shall haue aduantage as if shee were a Feme sole And the reason why rendring backe the land by the Alien to Baron and Feme worketh a remitter though it were by â—ne is because a Feme Couert that taketh any thing by fine is neuer examined by the Iustices But where somewhat is to bee conueyed from a Feme Couert by a fine as if Baron and Feme make cognizance to another c. or a grant or render or a release by fine in all or such like cases because the right of a Wife is passing and she shall be eternally concluded she must bee examined before the fine can be receiued and if shee confesse that her husband menaced her if shee would not leuie the fine c. it shall not be receiued 15. E 4 â—0 1. But where nothing is moued in fines saue onely a wiues purchase and gaining there is vsed none examination of her and therefore such fines doe not conclude her If Tenant in taile discontinueth it and dieth and the discontinuee makes a Lease to the Daughter and heyre of the Tenant in taile being of full age and to her husband for their two liues the daughter is remitted If Baron and Feme Tenants in speciall taile be and the Baron alieneth in fée and takes backe an estate to him and his wife for their liueâ— because they are but one person and the estate is likewise one and intire without moities and the Feme cannot be remitted here without the Husband be also remitted they are adiudged both in their remitter But the Baron himselfe is stopped from claiming so much contrary to his owne alienation If Lands he giuen to a Woman in taile remainder to another in taile remainder to a third in taile with remainder ouer in Fee if the woman take a husband that discontinueth in fee all the remainders are discontinued and if the Wife dyeth without Issue there is no remedie but a Formedon by turne if the first second or third Donée die without Issue But if after the discontinuance an estate be made to the Baron and Feme for their owne life or another mans life or any other estate the Wife is remitted and so are all they in remainder If the Feme die the next in remainder may enter and so is it for them in the reuersion after the caile is ended A Lease of a house is made to a Feme sole for terme of her life and in a â—aint or false action a stranger recouereth this house against her by default so that she may haue a quod ei deforcear by West 2. ca. 4. now is the reuersion of the Lessor discontinued and hee cannot haue an action of waste But if the woman marries and the recouerer lease this house to the Baron and Feme for life the wife is remitted to her first estate by the Lease the first Lessor to his reuersion and he may haue action of waste if there because Yet here if the other which recouered in the false action bring an action of waste the Baron hath no other remedie but to make default at the grand distresse and then the wife receiued may bar him by shewing the fainâ—nes or falshood of his action whereby he recouered If after discontinuance c. the Baron take backe estate to himselfe and his Wife and to a third person this is a remitter for a moity and for the other moity the Feme must sue her cui in vita after the death of her Husband If after discontinuance of the Wiues estate the Baron goe beyond the Seas and the discontinued lease the Land to the Wife for life and deliuer seisin if the Baron agree thereunto at his returne this is a remitter for the Feme shall be adiudged as an Infant and not as a Feme sole in this Case Quaere saith Littleton if the Baron at his returne disagree c. whether this oust the Feme of her remitter If the Baron discontinue the discontinuée be diseised and the disseisor lease the tenements to the Baron and feme for life this is a remitter to the Wife though the Baron were consenting to the disseisin But if the Baron and Feme were both of Conen and Consent to the disseisin the wife shall be a disseiseresse and not remitted If the discontinuée make backe estate to Baron and Feme by indenture vpon condition viz. rendring rent and for fault of payment re-entry and because the rent is arâ—eare the discontinuée doth re-enter vpon this entry the woman may haue an assise of nouell disseisin after the husbands decease for the condition by the remitter was cleane extinct in truth though during couerture the Baron was estopped c. so that he and his Wife could not haue an assise together If the Baron discontinue take backe estate to himselfe for life the remainder after his decease to his wife for her life here is no remitter till the husband be dead but the Wife suruiuing Franke Tenement is cast vpon her maine Tenant will she nill she by act of Law and shee is remittted for though shee enter not yet shee can haue none action against any body for this land but any man that hath cause may haue action of it against her because a recipe quod reddat is maintainable against tenant in ley and that is the widdow here But Tenant of Franke Tenement in fair is one which hath an actuall seisin and vpon disseisin thereof may maintaine an assise The Statute of Glocester perceiued how by common Law a man may play fast and loose with his Wiues Inheritance by feoffement to discontinue her estate and to continue it againe by resumption and so to make it Inheritance or not to his wiues at his pleasure But a feoffement doth onely barre the Wiues entry what if to his feoffement the Baron aimes warrantie what if to his warrantie assets what if he leuie a fine Glocester ca. 3. anno 6. Ed. 1. is If Tenant by the Courtesie alion c. his sonne shall not be barred in a Writt of Mortdancester by the deed of his Father from whom none heritage is descended to demand and recouer the mothers land although his Fathers Charter be with warrantie for him and his heyres But if land descend to him de part son
impedit the Plaintiffe may haue one writ to the Bishop and another to the Sheriffe to enquire of dammages Likewise 14. H. 8. fol. 25. in a plea of dower vpon confession the demandant recouered Iudgement and after Iudgement auerring that her husband died seised shee prayed a writ to enquire of dammages habuit for if the demandant in dower will recouer dammages shee must euer surmize that her husband died seised though the Tenant confesse the Action or plead but onely to the Writ and in the end of her Demise shee may maintaine the Writ for sur plee briefe the dying seised appeares not without surmise c. 22. H. 6. fol. 44. SECT X. Deteiner of Euidence BY Perkins none may deteine Dower for deteining of euidence but only the heire to whom the euidence belongeth and the heire when he pleads must shew what the euidence is c. And they must concerne the lands discended vnto him whereof Dower is demanded for hée may not deteine Dower of land which the Charters concerne not or for Charters concerning his purchased lands or those whereof he hath no seisin Aliter if they concerne some reuersion descended But if the heire come in vouched to warranty by the Barons feofée hée cannot plead this Deteiner of Euidence because in verity the land is another mans to whom most rightly the Charters belong But one copercener may haue this plea after partition against her mother or other Demandant in Dower though the euidence concerne the other parceners and her all alike see 41. Titulo Dower in Brooke If a widdow that is with child deteine euidence against her husbands daughter and heire or other heire collaterall it shall bée no sufficient plea to delay Dower 1. Perkins 70. 71. 18. Hen. 8. fol. 1. The heire said the Demandant deteined a bagge ensealed with the euidence concerning the land which if hée would deliuer hee was ready to render Dower bone plee per Curiam 33. Hen. 6. fol. 51. The Tenant pleaded for part of the land whereof Dower was demanded non tenure for another part detinue of Charters for another part Ioyntenancie which his father for a fourth part demanded view but it might not be granted because he tooke notice to himselfe of that part by pleading to the rest And the Plaintiffe to his plea of suruiuor pleaded his release made to the father her husband in his life time Issiâ—â— seisi que Dowre c. The plea of Euidence detained as Littleton said went to the whole action quod fuit negatum vâ—de Brooke â—y Dower 4 but he was forced to shew what euidence he deteineth viz. a speciall Charter 4â— Ed. 3. The Tenant pleaded a withholding of Euidence certaine conceâ—ning his inheritance and shewes what Et qâ—e il aâ— estre toures temps prist si c. the woman made title to two deeds by gift to her husband and her selfe and for the other Euidence shee said whereas the Defendant claimed as brother and heire to her husband shee kept it to the vse of her child si ouâ—sqÌ„ soit inseint qÌ„ serra â—eure si dien luy done nostre and issue was taken whether she were insâ—int die obitus mariti not whether shee were inseint per son baron die obitâ—s And that booke of 41. Edw. â— is cited for law in Sir Edw. Cokes 7. Rep. fol. 9 that a woman may deteine Charters for the heire in ventre â—a mere And 22. Hen. 6. fol. 16. It was agréed that deteiner of Euidence is no plea in an Action of Dower vnlesse it concerne Inheritance discended Et siâ— videtur ibidem saith Brooke that if it concerne inheritance though it be not the very land whereof Dower is demanded the plea is good 9. Edw. 4. to plea of Charters deteined the Demandant answered veies cyâ—le fait prâ—â— dower the Court reading and perceiuing it to bee the déed c. gaue iudgement for Dower 14. Hen. 6. fol. 4 The Tenant pleaded detinue of a chest with two fines and other Charters ê‘ Martin Iustice if the Chest were open he ought to declare euery déed specially by it selfe and so it is likewise in action of detinue for a Chest open with euidence quod curia concessit 2. Hen. 7. fol. 6. Is set downe the reason why the certainty of euidence deteined must bee showne viz. That the Iury may be more able to make their verdict and the Court to iugde to whom they appertaine for if they belong to the Defendants purchase he is put to a Writ of detinue And 6. Eliz. Dyer 230. sée a man seised of foure acres soccage land and of one déed or Charter concerning those lands by his last will in writing deuised thrée of his acres to his youngest sonne in fée the fourth acre to his wife for life the remainder to a stranger in fee hâ— died his wife got the déed entred into her acre and the sonne into the three acres deuised to him the woman brings a Writ of Dower for a third of these thrée acres The sonne pleads detinue of the Charter which if she would deâ—â—uer he is and alwayes had beene ready to render Dower shee shewed the whole cause by way of replication vpon that the other side demurred It seemeth saith Dyer that this plea serueth for none saue only the Barons heire and for no land but that which is descended And not for the heire himselfe if he come in by voucher or â—s Tenant by receipt in default of Tenant for life Where hee is no more but tenant per admittance for such a one cannot say that he hath béene toutes temps prist a render Dower si c. Neither can gardian in chiualry haue this plea for he cannot haue a writ of detinue of the heires euidence And this plea is a bar for no lands but those which the Charters deteined do concerne 22. H. 6. Where Newton saith the reason of this barre is because the euidence being séene and looked into may yéeld matter to barre the Demandant of her Dower for such lands therefore as the Charters doe not touch Dower shall be granted of them this plea notwithstanding Also certainty must euer bee alleaged in this case if the euidence bee not in some bag boâ— or chest sealed or locked vp And note the Defendant supra was not named heire by the demandant neither had he inabled himselfe to this plea as heire therefore the Court might take it indifferently As in a quare impedit if the incumbent bee named Clericus the Court takes him for a Disturber if hee inable not himselfe as incumbent or person impersonée Another fault was found in this Tenants conclusion of his plea because hee said vncoâ—e prist a render Dower but in very déed hee relied not againe on the condition if the Demandant would deliuer the Charter according to the ancient booke of entries And at the last iudgement was giuen pro dote Sée Sir Edw. Cokes 9. Rep. in Anna Beddingfelds case 1.
vnques seisi que Dower c. THere are other pleas that goe to the action and verie right of Dower as Ne vnques seisi que Dower c. id est The husband had neuer any seisin or state of Inheritance where of the wife can claime Dower sée 45. E. 3. fol. 13. The tenant in Dower leased her whole estate to the heire rendring rent for terme of her life the heire died and this was adiudged a seisin whereof the heires wife might demand Dower though the first tenant in Dower were still aliue for the lease was a Surrender and if a stranger had entred immediately after the heires death his heire must haue had a Mordancester Ergo said one the wiâ—e dowable Yet marke this case â—bid a man seised c. in fée simple dies his sonne entreth and he dies the sons sonne enters and endowes his Aylâ—sâ—e she dies a stranger abateth In this case it is cleere the sons wiâ—e shall haue no Dower of the portion assigned to the Aylesse though the sonnes sonne may haue a Mordancester per Kirton Finch and Mowbray But betwiâ—t this casâ— and the other they say is great oddes for here the Grandmother endowed was in from her husâ—â—â—â— and she sonnes possession and estate howsoeuer to his â—â—ire in whom the fée rested it were not destroyed but hee might bring a Mordancester yet to his wiâ—e it was cleane adnihilate whereas in the first case the Fée and Francktenâ—ment not a whit impeached by the life of her which surrendred were perfectly conâ—â—â—ned in the Baron to whom the Surrender was made And if a râ—uersion be granted to I. S. of certaine lands per faiâ— in pais in which lands I. T. and his wiâ—e haue â—state for life which doe atturne and afterward surrender there is no doubt but I S. his wife if hee die shall hauâ— Dower though it bee indéed defeasible after death of T. K. if his wiâ—e suruiue and will vndâ—â— the Surrendâ—r whereas in our first case the Surrender is no way auoydable but the heires wife shall pay rent according to her portion per Finch â—bâ—â— 14. Ed. 4. fol. 6. Tenant by the courtesâ—e granted his estate to him in reuersion rendring rent with clause of re-entrie for non payment the Grantée married the rent was arréere tenant per le curteâ—â—e re-entred hee in the reuersion died his wife waâ—â—arred of Dower for the Surrâ—nder might well bee vpon candition 2. H. 4. fol. 22. In action of Dower it was pleaded that the Demandants husband had nothing in the land â—ut by 〈◊〉 done to the tenant Iudgement si action c. The woman shewed how her husbands father hauing two sonnes leased his land to the eldest sonne and to hiâ— wife for 〈◊〉 of theâ—r liues and that shee her selfe married with the youngest sonne the eldest died and his wife married with the tenant the father died the reuersion descended to the second sonne being her husband the tonants wife died and he kept possession the Demandants husband did put him out he re-entred she prayed seifin c. Brooke thinketh she ought to haue trauersed the Disseisin And if the Baron had not entred after the death of the eldest sonnes wife she should not haue béene endowed yet saith he 〈◊〉 if without entrie there had not beene a seising in Law and whether the Francktenement which the tenant had once in right of his wife â—e determined in puncto by her death 11. H. 4. 73. In action of Dower the Tenant saith That N. gaue the land to the Baron and his first wife for terme of their liues the remainder in taile to the tenant remainder in Fée to the right heires of the Baron his first wife diâ—d he married this demandant and then hée died and the tenant entred c. he demands Iudgement if of this estate she shall haue Dower This amounted plaine to ne vnques seisi que Dower la puit but per Hanke Thirn that plea might not serue by reason of the Fée simple in remainder which might ingender doubtâ—ulnesse a layes gentes But where a lease was made to Baron for life the reuersâ—on to the Lessor or remainder to a stranger there in action of Dower ne vnques â—eiâ—â— â—ec iâ— good for no manner of Inheritance was in the husband 11. H. 4. 83. Dower was demanded of twentie pounds rent respondetur the Baron had nothing but â—oyntly with â— N. who is yet aliue â—udgement si Dower c. and he was not compelled to shew whether he pleaded as â—ertenant or as Pernor of the rent the Demandant replyed that I. N. had released all his right in the rent â—â— her husband But becauss she shewed not the Déed of â—â—â—ease shee pleaded by aduisement of the Câ—urt seisie que Dower la puit Quaere of the generall â—ssue against the â—â—eciall matter 11. H. 4. 88. A woman shall haue Dower of rent 〈◊〉 chased by her husband in fée though hee die before dâ—â— of payment And if it be pleaded against her Ne vnques fâ—â—â—â— que Dower c. she shall not shew the speciall matter but say seisi que Dower la puit and shew the matter iâ—â—â—â—dence 22. H. 6. 4â— per Newton In action of Dower the â—â—nant plead Ioynt estate to the Baron and I. N. in plein vy whose estate he hath the demandant shall not say â—â—â—â—â— que dower c. vnlesse shee shew how or trauerse that I. N. tooke nothing by she Feoâ—ment â—9 H. 6. fol. 9. Against Dower the Tenant pleadeâ— that I. S. seised in Fée infeoffed him and hee leased to the Baron to hold at will which estate hee continued all his life time sâ—ns câ—o that he was seised of any such estate que Dower la puit the Iudges orderad that for the long continuance of the possession and dought deslais gâ—â—â— all should be entred 10. H. 6. 17. It is not a good plea against Dower â—o say the Baron had nothing but for terme of his life for this amounts to the generall 〈◊〉 Ne vnques seisi que Dower la puit But to say the Baron had nothing but 〈◊〉 ment with A. in fée and that A. suruiued c. This by â—â—â— Fée simple confessed makes a good plea. 14. H. 6. 5 6. In action of Dower the tenant said â—e was seised till by the Baron disseised vpon whom he re-entred Iudgement c. the Demandant said that before this tenant had any thing in the land W. being seised in Fée infeoffed her husband issâ—â—t seisi c. and she prâ—â—â—â— to be endowed per Martiâ— the replication is not good â—â—â— this might â—e before the Disseisin and before couerture too and if so then the Baron Ne vnques seisi que Dower la puâ—â— That yée may yet perceiue further how 〈◊〉 a point it is to take or relinquish this plea rightly marâ—â— well the case 30. H. 8. Dyer fol. 41. In a Writ of Dower the issue was Ne vnques
husband till his death then by his death the widdow is made sole Tenant of them so little needing either assignation or other circumstance that without new entry claime or challenge shee may haue action of her owne possession against any other that shall enter If the husband aliened intirely any lease for yéeres of his wiues it is gone irreuocable and if hee make no sale and the wife dyes hee shall haue the leafe except shee bee ioyntly possest with another and the seruing ioyntenant shall haue Commentar vpon Fitzherbert 185. If he aliened part of the estate as for ten yéeres next ensuing where the terme was for twenty the widdow may enter when ten yéeres expired But sée in that Case that if the husband rested a rent and dyes the Executors of the husband shall haue the rent for it was not incident to the reuersion yet the wife shall haue the resioue of the terme Sir Edw. Cokes Commentar vpon Fitzherbert fol. 57. b. if he aliened for the ten last yéeres shee may continue possession till those ten yéeres be commenced If the husband deuise away by his last Testament a terme for yéeres which he hath by right of his wife I suppose the deuise is â—â—id as well as if it were made of some higher estate as it appeares by Perkins chap. Dâ—â—â—ses and Plowd 419 in Bra 〈…〉 gâ—â— case And the Law is all one in all respects where the Baron and Feme are possessed of lease for yeares by intâ—eâ—ties that if the estate be made to them during their couerture or by moyties that is to them ioyntly before marriage or where the Baron is possessed of a lease iure vxoris Sée Dame Haâ—â— case Plowd 260. And if the Baron possest of a lease for yeares in the right of his wife charge the land with a rent and die the rent is gone Plowd 4â—8 in Bracebridges case for shee is remitted And if Feine Gardian in Socrage be and her Baron alienateth it and die the wife may enter And sée Dyer 8. Eliz. 25 the same is of Coppy holds per 〈…〉 der to the vse of a Feme for yeares the wife die the estate rests in the husband without a custome be to the contrary If an husband be possest of a terme for yeares in the right of his wife and Iudgement is had against him and the terme is extended and the husband dieth it shall be good against the wife as appeares by Sir Edw. Cokes 8 Rep. 96. in Maâ—â—ing case And see the 9. case of 50 E. 3. lib. Ass note Sir Edw. Cokes Rep. in â—ulwoods case and Plowd 26â— in Damè Hales casâ— where a lease made to Baron and Feme is extended for the debt of the King after the wiues drath If a man possest of a te me deuiseth it to one for his life the remainder to a woman for her life who takes an husband the husband may release that to the particular tenant although it be but a possibilitie Sir Edw. Cokes 10. Rep. 47. Lampeâ—â—s case And if a woman hath a lease for yeares as Executâ—iâ— and takes an husband hée may sell it per â—oâ— curi 〈…〉 pr 〈…〉 r Fitzherbert Dyer â—8 H. 8. 7. A woman hath a terme 〈…〉 trir the husband s 〈…〉 wits to 〈…〉 vâ—â—n which a moytie is awarded to the pretendor of the title the wife is bound thereby but because the defendant in detinue brought by the wife for the Indenture of lease plead non dâ—tinet and not the speciall matter Iudgement was against him Dyer 2. E 〈…〉 183. 21. H. 7. 6. agrees If the husband discontinue the Franck tenement of his wife the apt instrument whereby to recouer it when she is a widdow is a Cu 〈…〉 vita Which though it be not so necessarie and néedfull perhaps since the Statute of 32. which disableth husbands to discontinue as it was before yet I. perceiue not by what reason the vse of it is forbidden euen in those cases where the entrie is â—ongeable for the vertue of the Writ is not decayed by lawfulnesse of the entrie neither doth free libertie to take possession prohibit the resort to Iustice and action at Law when perhaps a woman cannot or dares not enter By Common Law therefore if the Baron alien in fée the heritage of his wife or her Francktenement by Feoffment or by Demise for terme of life or in taile she may haue remedy after his decease by this Writ Of which the generall forme is Praecipe A. quod â—â—d â—â—â— Bâ—quae fuit vxor Câ—â—â—um messuagium 〈…〉 quod clamat esse ius hereditat suam Et in quod A. noâ— habet ingressum nisi per C. quondam virum c qui illud â—â— de 〈…〉 isit cui in vita contradicere non pot 〈…〉 Th 〈…〉 may be in the per â—ui and post and some varietie it hath according to title of the Demandant as Quâ—â—â— clamat 〈…〉 ius haereditatem or Vt ius maritagium or Vt ius exâ—onâ— I. qui ipsaâ— B. C. virum suum feofavit in quo c. or Quam clamat tenere sibi haeredibusde corpore suo de 〈◊〉 C. quondam viri sui exâ—untibus â—â— d 〈…〉 ne I. or Quam clamat essâ— dotem suam ex dono E. pri 〈…〉 vel secundi c. If Baron and Feme lose the wiues landâ— by de 〈…〉 shée may haue this Writ when shee is a widdow But if the wiues lands be recouered in a Cessauit perâ—de 〈…〉 â—â— Baron and Feme vpon a C 〈…〉 during esp 〈…〉 shall neuer haue a Cuâ—â—â— vita 4. Ed. 2. If Baron and Feme and a third person being Ioyntenants in Fée the Baron alien the intiertie and die his widdow shall haue a Cui in vita of a inoytie during the life of the third person for it séemed the alienation was a seuerance of Ioynture saith Fitzherbert But hée sends vs to 36. Ed. 3. in his Abridgement titulo Cui in vita By which booke the wife in this case cannot haue a Cui in vita for any part so long as the third person suruiueth because they two may ioyne in a Writ of right and if hee die she may haue a Cui in vita of all Vide Librum Of lands which a man and woman purchase ioyntly before couerture the Cui in vita shall be but of a inoytie but of lands purchased ioyntly during coâ—eâ—â—ure the Cui in vita is of the in 〈…〉 e and being brought of a inoytie the Writ is not good 39. H. 6. 45. for in the one case they are seised by inoyties in the other by intireties A woman by excepting lands which she and her late husband tooke in exchange or by excepting rent reserued out of it shall be bâ—â—â—ed in a Cui in vita or any other action Fitzherbert and â—6 Ed. 4. 8. Idem ius if shée accept parcell â—â— her owne land in Dower but 17. Assisarum pl. 3. Brooke 24. Cui in
giue away in fée or for life the tenement which shée holdeth in Dower the heire or he which is in reuersion may maintenant haue his recouerie by Writ of Entrie and this is termed a writ of Entrie in Casu prouiso There is no doubt but Fée in this Statute signifieth both Fée simple and Fée taile And he which hath Fée simple Fée taile or Estate for life in the reuersion may haue this Writ against the Alienée or against him which is tenant of the Francktenement And this during the life of the tenant in Dower which aliened for when she is dead it lieth not perâ—el Nâ—t Breu. The Statute expresseth not the writ but the forme is Praecipe A. quod reddat B. vnum tonemen um quod clamat in quod non habet ingressum nisi per C. quae suit vxo D. qui illud ei demisâ—â— illud tenuit in dotem de dono praedicti D. quondum viri sunt cuius haeres c. quod post eemisionem per istud C. praefat ' A. contra formam Statuti Glocest c. ad praefatum â— reuerti debet performameiusdem Statuti And it may be in the Per Cui or Post If a woman recouer Dower against the heire and then alien in Fée the recouerie must be mentioned by the heire in his writ of Entrie in Casu prouiso In like manner as it must be in a writ of Entrieâ—d Communem Legem vpon an alienation by tenant in Dower and though this alienation be but in taile or for life yet the forme of the writ varieth not If he which hath the reuersion in Fée grant it to another and the Tenant in Dower after Atturnment alieneth in Fee the Grantée of the reuersion shall haue Writ specifying the grant Likewise if the heire grant his reuersion with Atturnment and the Grantée grants it ouer with Atturnment the third Grantée may haue a writ specifying that the woman held of the first second and third ex assignatione c. The Aunt and Néece hauing the reuersion by discent may ioyne in this writ and the processe is summons grand and petit cape SECT XXX The Writ if Enirie in Casa coasimili THis Writ is in nature like the other and it lyeth when Tenant by the courtesie or Tenant for his owne life or another mans alieneth in fée or in taile or for terme of life he in the reuersion which hath it for life or in taile or in fée may haue this Writ of Entrie in Casu consimili during the life of him which aliened and this is formed and granted vpon West 2. cap. 24. which willeth That as often as there is a Writ found in Chancerie for one case and another case falling sub eodemâ—â—â—e and requiring like remedy there is none in the registrie of the Chancerie for that the Clerks of the Chancerie shall concord in framing a writ Vel atterminent quaerâ—ntes in proximo Parliamento scribantur vsus in quibus concordare non possunt c. referant eos ad proximum Parliamentum fiat breue de consensu Iurisperitorâ—m ne contingâ—tdâ— caetero quod curia Domini Regis deficiat conquerentibus in Iustitia perquirenda The Writ is Reuerti debet performam statuti in consimili casu prouisi And it supposeth alwayes altenation in feodo although the Tenant leased or dem sed it but for terme of another mans life or in taile And so the writ of in Casu prouiso And that of Entrie ad Communem Legem This writ may be in the per cui and post And without title made in the writ if if so be that the Demandant himselfe made the particular estate of him which aliened But if the father or other Ancestor make a lease for terme of life and die and then the Tenant for life alieneth in fée now the heire in reuersion shall haue a writ comprising his title in it selfe And if this writ be brought vpon alienation made by Baron and Feme the writ supposeth that the wife aliened with her husband but yet shée may haue a Cui in vita after her husbands death the alienation not letting it If Tenant for life grant his estate to another and the grantee alieneth in fée the Writ shall be in quod non habet ingressum nisi per C. cuâ— D. qui illud tenuit ad vitam ex demissione B. deâ—â—sit ad eusdem teâ—mâ—num c. If a man make a lease for life and dye and his heire grant the reuersion to B. and the Tenant attâ—â—nes If now the lessée grant his estate to another which alieneth in fee to A. B. shall haue a Writ comprehending the assignation and grant of all the estates If lands bee giuen to two men and to the heires of one of them and he which hath the fée simple dies and then the Tenant for life alieneth in fée now the heire of him in remainder may haue this Writ for it lyeth as well for him as for Tenant in reuersion If any Abbot or Prior make a lease for life the lessée alien the Prior dye c the successor may haue this Writ Also tenant in taile may haue it if hee make a lease for life and his lessee alien in fée And it séemes if Tenant in taile make a lease for life of the lessee and dye the issue in taile may choose to bring a Formdon or Writ of Entrie in Consimili casu against the alienée whilst the lessée for life is yet liuing for the alienée which is Tenant in the Action cannot plead in Abatement of the Writ that the Demandant hath title to a Formedone But if Tenant in taile make a lease for terme of his owne life which is no discontinuance if now the lessee alien in fee and the lessor dye his heire cannot haue a Writ de consimili casu but he is driuen to his Formedone for in this case he hath no title to other Actions by colour of any demise But in the former case he had title by reason of the discontinuance made for life to claime by right of the new reuersion discended so that hee had a double title the reuersion reserued sur le seas and the title in taile consequently election of Action Quaere P. 17. Ed. 3. A lease made for life the remainder to another in fée the lesses aliened in fée and a writ de consimili casu brought by him in the remainder and it abated for the Court said that hee in remainder was not possessed in fait till the remainder did fall after the death of the â—essée Saith Fiâ—zherbert the Law is not so taken at this day but that hee in remainder hath the remainder vested in him as well as hath hee in the reuersion for hee may haue an action of waste and enter for alienation of his tenement as well as hee in the reuersion may Ergo hee hath his remainder in faâ—t and mee séemeth this Iudgement was not well giuen saith Fitzherbert And
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.
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
NOw let vs looke backe a little and see what shall become of the dealings which Mistris Titus had whilest shee was Sempronia an agent in the world widdow or maide sola and vncouert SECT XII Of Infancie TO debate matters of infancie would aske a whole volume perse But breefly know that all deeds gifts grants c. made by an Infant which take not effect by deliuery of the infant be absolutely void By matters in fait or writing which take effect by hand and deliuery are onely voydable by the infant or by them which haue the infants estate Out of his rule are excepted acts apparently of necessity or profit to the infant or which can be no disprofit to him for manger boire necessarie apparell and schooling the obligation or couenant of an Infant is good Also an Infants presentation to a Church is good enough for danger of lapse and because it is no matter of emolument and things done by vertue of office as giuing of goods or payment of debts by an infant Executrix are good so are acts which concerne the infants proper purchace As if estate be made to an Infant of two acres to haue and to hold the one for life the other in fee a feoffement of one acre made by the Infant is a good election And it is said fo 104. in Dyer that an Infant is bound by all Statute Lawes if there be not an expresse exemption Now whatsoeuer a Feme sole might auoyd by infancie she and her husband may auoid it by entry or action after Marriage if they take the time else not For example An infant feme sole hath title to enter for Mortmaine within a yeare after alienation or title to enter into the purchase of her villeine before his alienation if by lachesse she let slip her aduantage as she may doe notwithstanding her infancie no wise husband that she taketh afterward can mend it for here was but a title to that which neither she nor her auncestor euer had But if an infant Feme sole haue a right as vpon disseisin done to her or her auncestor she may alwayes enter whilst she is sole notwithstanding any descent during infancie And so may her husband which marrieth her after the descent Littl. teacheth vs fo 95. Chap. Descents that lachesse of a husband which suffers descent shall not toll the entry of a Feme couert or her heyres after Marriage dissolued But there is an addition to Littleton that it is otherwise where a title is already giuen to a Feme sole which taketh a husband and suffers descent c. for it shall now be accounted the Womans folly that shee would take such a husband Howsoeuer it be Law or howsoeuer it be vnderstood the Case before must néeds be good Law for an infant Feme hath as much fauor as an infant Male And taking of an husband cannot toll an entry which was saued to a Feme sole by infancie neither doe I perceiue how the husbands lachesse at the time of descent can toll the Wiues Infancie to make any imputation of folly where infancie might excuse it By Parkins If a man lease two acres to me for life the remainder of one of these acres to a Feme sole which afterwards takes a husband and then the Lessée dying the Baron entreth into one acre and thereof enfeoffes a stranger by mets and bonds the wife shall not after his death enter and if Baron and Feme make a gift in taile or lease for life of the wiues Land rendring rent so soone as the Baron dies the reuersion is onely in the wife who by accepting the rent shall bind her selfe and her heyres But if shée will refuse the rent because she was vnder age at time of the feoffement it séemes she may be receiued to a dum fuit Infra etatem wherby she affirmes the feoffement to be her owne If this be infallible Law I doubt not then if a Feme infant disseised doe marry and during her infancie the husband suffereth a descent but her entry is saued and she may enter after Couerture dissolued if not before But Fitzherbert concludeth with a quaere and so must I. SECT XIII Acts c. of a Feme sole being full Age. VNderstand now by a Feme sole a Woman of sull age If a Feme sole become indebted and marry the Baron and Feme may be sued for this debt during life of the Feme If the Creditor sue the recouer the Baron shall be charged with it after the wiues death aliter non A Feme sole Lessée for life rendring rent takes a husband the rent is arrere the wife dieth though here be no recouery in the wiues life time yet because the Baron tooke the profit he is still chargeable in a Writt of debt for the rent for quisentit commodum sentire debet onus If a Feme endowed of rent take a husband and die the husband shall haue action of debt for the rent arere for it was a duty accrued during couerture But if a man be bound to a Feme sole and she takes a husband and the day of payment comes during Couerture now if she die her husband cannot haue an action of debt vpon the obligation for this was a thing in action before marriage Nat. bre fol. 120. 121. And agréeing to that is 39. H. 6. 27. Br. Testaments 10. but by that booke the Wife may make the Baron her Executor and so saith the Booke of 12. Hen. 7. 22. If a Feme sole being made Executrix take a husband she remaine still a disposer of the Testators goods to his vse and after payment of his debts she may deliuer Legacies and after all that giue the rest for Gods sake maugre le test sa Baron But vpon such a giuing of goods or deliuering of Legacies before payment of debts the husband may haue an action of trespasse for gift before payment is not a right administration but a deuastation of the Testators goods Par. fo 2. and 18. H. 6. A feme sole seised of a carue of land grants out of it a rent Charge by déed and deliuers this deed to a stranger with Condition to deliuer it to the grantée as her déed if he goe to Rome and returne before Easter the Woman takes a husband the grantée performes the Condition the déed is deliuered to him he hath a good rent Charge yet the Baron was seised of the land before the grant tooke effect what though if the Feme had infeoffed a stranger of the land he should haue held it charged for to some intent the grant hath relation from deliuery of the deed as an escrow though for the rent the grantée cannot haue that but for the dayes incurring after the darraine deliuery and if the Feme at the deliuery of the escrow had béene marryed all had béene voyd Par. fo 2. 3. and fo 29. some hath maintained he saith where a Feme sole deliuers an
these reasons grounded vpon the Law of nature and giuen by Iustice Stamford in his booke fo 194. saith he to this effect men will now eschew those Capitall crimes when they shall sée those persons who in nature and affection are néerest and dearest vnto them and most to bee beloued shall be punished with themselues so that if themselues will not refraine such crimes for themselues yet they should the rather refraine for the loue of their wife children vpon whom they bring so perpetuall losse and punishment and staine of so infamous a note as that their stocke blood and Lineage shall be corrupted and attainted their children disinherited and the wiues of their bosomes because the wiues of such impious and foolish Husbands by their defaults depriued of all their meanes and liuelihood And Breton fo 258. makes another reason why a wife of a man attainted c. shall lose her Dower est pur ceo que est a supposer que el scauoit del felony son mary and by him a woman lost no Dower in case the felony were committed before Couerture King Edward the sixt in the first yeare of his Reigne abrogating some Statutes concerning treasons or felonie for their austerity and making some new decrees concerning treason preserued Dower against all perpetrations of an euill husband But 5. 6. eiusdem regis ca. 11. by the last prouiso It was againe enacted that no Wife of any person attainted of treason should bee receiued to demand or haue Dower c. Yet for felonie 1. Ed. 6. is still in force And treasons by Act 5. Eliz. ca. 1. for assurance of her Maiesties royall power or by the Act eodem anno cap. 11. against clipping washing rounding or filing of Coynes or by the Act 18. Eliz. ca. 1. against diminishing or impayring the Quéenes Coyne or other coyne currant here doe none of them make any corruption of blood or forfeiture of Dower Note if after attainder the Baron purchase his pardon this is so farre forth a new birth vnto him that his Wife shall haue Dower of the Lands which come to him after pardon if his Issue by her may per possibilitie inherite Par. 75. And remember this Case 3. 4. Phi. Marie Dyer 140. b. Marie the wife of Sir Iohn Gate attainted of treason brought a Writt of Dower against Wiseman the attainder of Sir Iohn was certainly pleaded in barre she replyed that long time before the attainder and before the treason committed after the Espousals the said Sir Iohn Gate was seised in fee of the Land whererof she demands Dower and thereof enfeoffed A. B. whose estate the tenant hath vpon a demurrer without argument at barre or bench the Councell of the parties being heard in Iustice Brookes Chamber the demandant was barred of Dower by opinion of all the Iustices because the Statute is The Wife of a man attainted of any manner of treason whatsoeuer shall in no wise bee receiued to aske challenge demand or haue dower of any her Husbands Lands during the force of that attainder And by Stamford 195. this extendeth to petty treason But nota saith Dyer the Lands here sold and gone before treason committed were neuer subiect to forfeiture or escheate vt in causa Vauisor M. Littleton in the Chapter of Dower And therefore Antho Browne Serieant was angrie at the heart for this Iudgement See Littleton fo 11. per Vauisor If a man commit felonie aliene his land and then be attainted the Wife shall haue action of Dower against the Feoffée but not against the King or Lord if it be escheated SECT XVIII The Husbands power in his wiues inheritance and of discontinuance A Womans Inheritance is Lands of Inheritance which she hath by descent or purchase and her Marriage such as was giuen her in Franke Marriage by learned M. Littleton But take heere all fée-simple or fée-taile which she hath sole by her selfe or ioyntly with some other to be her Inheritance Then know that at Common Law a man seised in the right of his Wife of greene acre may make a feoffement of it to a stranger and this is such an interruption called a discontinuance of the wiues estate that not onely the Baron is bound whilest he liueth but the Wife also when he is dead is by common Law forbidden entry into her owne land and put to her action of cui in vita but if a man seised in the right of his wife be disseised and release to the disseisor though it bee with warrantie this is no Discontinuance If a man seised in fée in the right of his Wife haue Issue by her a sonne and die and then a second Husband makes a Lease of the Land for terme of his life and the Wife dyeth if now the Lessée surrender to the second Baron it is a question whether the sonne can enter during the life of lease for life But cleere saith Littleton when he is dead the son may enter for the discontinuance which was but forthe life was determined If Tenant in the right of his Wife make a Lease for his owne life the reuersion in fée is in the Baron If hee die in the life time of his Wife and of the Lessee and his heyre grant the reuersion with atturnament now though the grantee enter after the death of the Lessee yet the wife may re-enter for as an estate taile cannot be discontinued but by one which is seised by force of the intaile so the estate of a Wife is not discontinuable but by him which is seised in the wiues right SECT XIX Of a Remitter YOu must vnderstand somewhat also of a Remitter And because women learne faster by example then by precept I will not stay to define a Remitter Baron and Feme seised together in speciall taile haue Issue a daughter the wife dyeth the Baron catcheth another wife hath Issue by her another daughter discontinueth the taile disseiseth the discontinuee and dieth now is the Land descended to the two daughters the eldest daughter is remitted that is remaunded and setled in the ancient estate for a moitie and driuen to a Formedone against her Sister for the other moity for here the Sisters are by seuerall titles tenants in common not parceners If Tenant in taile infeoffe a Feme sole and die and then his sonne being vnder age intermarrieth with the Feme Feoffée this is a remitter to the Sonne and his wife which before had fée-simple hath now nothing at all in the land But if the sonne had beene of full age at the time of espousals hee had not regained the ancient estate but stood seised onely in droit sa feme If a Woman seised c. take a husband which alieneth in fee and then takes backe an estate to him and his wife for life this reprisall though it were by Indenture or by fine is meerely the act of the Husband and the woman sans folly is adiudged in her Remitter the reuersion of the
hath not the force of a negatiue implying in nul auter manner then is therein described Amy is therefore a ioynt purchaser with her husband in estate for life and not in or by descent of estate taâ—â—e Now to say that her right and estate should change by silent operation of the Law after shee was repossessed that cannot be for the whole entry is tolled and if she be not remitted by her first possession and reprisall she is neuer remitted If a Disseisour make feoffement to the vse of the Disfeisée and after the Disseisor enter he shall be remitted but before his entry he shall not be remitted for he shall be adiudged in possession by vertue of the Statute but so soone as hee entreth he is remitted for his entry was neuer tolled But Amy Townesends entry was cleane taken away by the discontinuance c. further if she should be remitted by the Statute of 27. the remainders should be all destroyed contrary to the text of the same Statute And to the inconueâ—iencie alleadged if she shall not be remitted shee shall hold incombred with the charges of her Husband that is none at all for Amy after her husbands death might haue disagréed and relinquished the vse with possession annexed to it by bringing a cui in vita against him next in remainder for in him by such disagréement or vser of action had the remainder vested as though the woman had beene a Monke or dead person in Law or neuer named in the limitation If the vse had béene to Amy Townsend in fée she might haue brought her cui in vita against the Feoffor or his heyre by which they shall be Tenants to her action and so might the inâ—umbrance haue béene auoyded for when a feoffement is to the vse of one which refuseth the vse it shall be in effect as if the vse had beene limited to Paules stéeple or to Charing-Crosse all falling or reflecting because the Feoffor hath no recompence or consideration to his vse and hee shall be Tenant to euery Precipe It was further agreed that as the Cause fell out Amy Townesend could not be remitted though her possession had returned by refeoffemeÌ„t at the Common Law because Sir Roger Townesend her Husband outliued her for 21. Ed. 3. the Case is Baron made a Feoffement the Feoffée â—einfeoffe the Baron and Feme and heyres of the wife she woman dyed the Heyre entred the Baron brought an Assise which was iudged maintainable for whilest the Baron liued he was tenant to the heyres action And the thâ— Iudgement was that Amy Townsend was neuer remitted the reason was indéed because there is nothing in the Statute of 27. to make a remitter for the clause of sauing of Drâ—its Titles and Actions is of such right c. as was before the Statute and not of any right title or action risen since or after it Now note that as a Lease made for twenty yeares by Baron and feme Tenants for life binds not any remainder by the Statute which speaketh onely that Leases made by Tenants of Inheritance shall binde heyres and Successors so I would inferre that if the Leassors inheritance be determined whether it were iure vxoris in taile or otherwise in taile the remainder must be frée from the Statute But note that the point which made me choose this case for illustration of the Statute is this Amy Townesend was iudged not remitted because she had no title of entry but onely by the 27 c. of vses and therefore she must néeds claime her possession according to the vse But put Case the Feoffement had béene since the Statute of 32 the Law would then haue iudged a remitter for by Littleton where any persons entry is congeable which taketh estate for life or in fée it is a remitter if the reprisall be not by Indenture or record or some matter of estoppell for alwayes where there is a double right or title the Law must iudge for the best as well in the entry as in the possession and an Indenture made by Baron and Feme is none estoppell to the Wife by the Common Law Concerning the Case 21. Ed. 3. Wilby which gaue iudgement thought the Barons aduantage a hinderance to the Remitter yet if he died the wife should be remitted But if you looke Brooke remitter 21. and 41. ye shall finde that the Feme was maintenant remitted though to saue the husbands aduantage of warranty they would not so iudge it quod mirum saith Brooke and quaere quia contrarium a ceo iour SECT XXVII Whether acceptance or taciturnity may not take away an entry at this day NO fine feoffement or other act done by the husband onely shall make any discontinuance or be preiudiciall to the wife but that she may enter c. what if Baron and Feme make a feoffement or Lease for life by solemne Indentures with Liuery and seisin cleere this takes not away at this day the wiues entry after Couerture ended But admit when shee is a widdow shee refuseth to enter and accept payment of rent or performance of couenants is not now both her entry and her action gone also euen as in case of an Infant which makes such a feoffement or Lease and accepts the rent when he is of full age The question must be answered out of the Statute and in mine opinion there is nothing in it to ayde a woman after such ratification by acceptance volenti non fit iniuria nec inuitis confirmantur beneficia A Lease by Baron Feme per Indenture is not voyd presently by the Barons death But whereas before she was driuen to suit and action shee may now enter by the Statute yet it compels her not to enter neither caâ—teth any frée-hold vpon her In like manner if the Baron alone alien his Wiues Land by fine with proclamation the Wife may enter by force of this Statute but per opinionem totius curiae Ed. 6. Dyer fo 72. If she suffer fiue yeares to passe and expire without entry or vser of action she and her heyres shall be barred for euer for this Statute of 32. though it limit no time for the womans entry yet it speaketh nothing of fines with proclamation and therefore it takes not the generall Law made 4. Hen. 7. cap. 24. of fines with proclamation And sée Sir Ed. Cokes 8. Rep. fo 72. in Grenlies case SECT XXVIII Of Fines SEe further the case 18. Eliz. Dyer 351. Land holden in socage was giuen to a man and his wife in taile the remainder in sée to the Barons right heyres the Baron alone leuied a fine with proclamation to his owne vse and afterward by his last will and Testament in writing deuised the Land to his wife for life the remainder ouer to a Stranger vpon condition to pay certaine rent annually out of the land with Clause of distresse c. the Baron died the wife entering and claiming estate onely for life paid rent
Hill 18 E. 2. it was held by Herle Iustice that the Writ lieth well enough for him in remainder And Tri. 31. E 1. the heire in taile maintained a writ of entry in Consimili casu vpon alienation made by tenant le curtesie SECT XXXI The Writ of Entrie ad communem legem THe Writ of Entry at Common law is giuen in Case where Tenant in Dower or per curtesie or for life doth alien in fée or in taile or for life c. now if the Tenant which aliened doe dye hec in the reuersion must take this Writ of Entry ad communem legem which is very like the former Writs and may be in the per cui post If a woman recouer Dower alien and dye the Writ of Entry ad communem legem must make mention of the recouery And if Tenant by the curtesie aliâ—â— in fée and dye he in the reuersion if he be heire in fée simple may sue this Writ or his Assise of Moâ—â— dancester giuen by the Statute of Glocester ca. 3. If Tenant for life alien in fée and dye the Writs for him in reuersion are in diuers formes for if hee haue the reuersion by discent the Writ is in quod idem A. non habet ingressum nisi per C. câ—i D. pator vel antecessor of the Demandant cuius haeres c. demised c. But when the Demandant himselfe made the lease to him which aliened then the Writ is or may be Pâ—aecipe quod recidat c. omitting these words quod clomat vt ius haereditatem and note if Tenant for life alien in fee and dye hee in reuersion may chuse whether he will haue this writ or an ad terminum qui praeteriit If Tenant for life grant his estate and hee in reuersion grant his reuersion with Atturnement if now the Tenant which atturned alien in fée the grantée of the reuersion shall haue a Writ mentioning the grant and assignation c. SECT XXXII More of forfeitures and how a particular Tenant may forfeit his estate without alienation NOte If Tenant for life lease the land to I. S. for terme of life of I. S. which dyeth the first leasâ—e still liuing hee shall not haue the land againe because hee leased more than was in him and therefore hee in the reuersion shall haue it But if two be seised for life the inheritance in fée to one of them and ioyne in a lease for life and the leasee dyeth they shall bee ioynt tenants againe ê‘ Littleton 13. E. 4. fol. 4. Because hée which had the fée was priuy to the lease and so the other gained no new reuersion It is yet further to be vnderstood both that he in reuersion may enter vpon alienations made by particular Tenants vt supia to his disinheritance without suing the aboue mentioned Writs And also that there are sundry other forfeitures to the Reuersioner besides expresse alienations which I would haue widdowes to take héed of 6. Edw. 3. fol. 17. In Action of waste by an Infant against Tenant by his fathers demise he pleades that the father confirmed his estate to haue and to hold to him and his heires in fee by his déed shewed to the Court Iudgement si c. It was said for verity that if the claime were found false the heire might enter Page 64. in Fitzh And if a reuersion bee granted by fine and the conuse brings a quid iuris clamat against the Tenant for life which pleadeth that shee hath estate in taile by deuise in Testament from the Commissors if it bee found by verdict that shee hath but estate for life that estate is forfeited Quod vide Plowd fol. 212. in Saunders in Fremans Case where the entry for the conusée is consideratum est pro seisina reddâ—t praed cum partium versus c. occasionae clam ' placit praedict ' forisfact ' habend ' si voluerit persequatur ac etiam quod finis praed si voluerit ingrossetur Plesingtons Case 6. R. 2. was this A man made a lease for yéeres and granted further by Indenture if he aliened the reuersion or dyed within the teâ—me that the leassée should haue francketenement and liuery was made the fée simple was granted by fine c. and in a quid iuris clamat the leassee claimed francketâ—nement iudgement was giuen that the cognisée might enter for a forfeiture and that the fine should be engrossed si voluerit Sée 3. 4. Eliz. Dier 209. in a like case the iudgement was not quod quaerens recuperet seisinam but quod prosequatur pro seisina si voluerit finis ingrossetur c. SECT XXXIII The Statute of 11. H. 7. cap 20. THe Common Law restrictiue of it selfe and helped something by the Statute of Glocester was sufficient a great while to bridle women from making alienations for any land that they held in Dower or Ioynture as arguments of their owne good deserts and testimonies of their husbands loue But time which made the art of fencing more fine than it was at the first when Combattants fought all at head and shoulders and it was greater shame to strike vnder the girdle than it is now made law also more subtile than in the beginning it was when lands went altogether or for the most part by liuery of seisin And women witty of themselues instructed by crafty men grew cunning at the last that they could alien lands holden for life or in taile to whom they listed in fée And hee which suffereth disinheritance should not easily helpe himselfe by Writ of Entry either ad communem legem or in casu prouiso for remedy whereof was made this seuere statute in effect as followeth 11. H. 7. If any woman which hath had or hereafter shall haue any estate in Dower or for life or in taile ioyntly with her husband or only to her selfe or to her vse in any Manors Lands Tenements or other Hereditaments of the inheritance or purchase of her husband or giuen to the husband and wife in taile or for terme of life by any Ancestors of the husband or by any other person seised to the vse of the husband or of his Ancestors and haue or shall hereafter being sole or with any other after taken to husband discontinued or discontinue aliened released or confirmed alien release or confirme with warranty or by couin suffered or suffer any recouery of the same against them or any of them or any other seised to their vse or to the vse of either of them after the forme aforesaid that all such recoueries discontinuances alienations releases confirmations and warranties so had and made and from henceforth to be had and made be vtterly void c. And that it shall be lawfull to euery person and persons to whom the interest title or inheritance after the decease of the said woman of the said manors lands or tenements or other hereditaments being discontinued aliened or suffored
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
demand made of the rent by her husband hee shall haue Courtesie in the rent notwithstanding So it is if an Advouson in grosse descend to a woman married hauing Issue c. though she die afore auoydance the husband shall present and though the Bishop after the descent present by lapse yet the husband shall haue the second presentment for there cannot in these things possession be taken maintenant and at all times as they be in Lands And take with you here these Cases out of Dier 1. Ma. fo 95. Tenant per Cheualrie in cap. dieth his Daughter and Heyre being vnder age office is found and the King grants the wardship of body and Land to me which marrieth the ward and hath Issue by her and after shee accomplisheth the age of sixetéene yeares and the King is satisfied for the two yeares profit they tender a generall liuerie and before it be past the Wife dieth the Baron shall haue the Courtesie come semble saith the Booke And 6. Eliz. Dier 229. the like descent is to a Daughter and married hauing Issue by her husband and she dieth ten dayes after her Father no Liuery being sued that is found by office the Baron shal be Tenant by the Courtesie and shall sue liuery SECT XLIII No Courtesie of reuersion after estate for life THe seisin must be to the Wife in estate of Inheritance not mangled or cut off from the Frank Tenement and therefore by Parkins where a Woman an Heyre enters after her Fathers death and being seised in fée-simple makes a Lease of her Land to I. S. for terme of his life if she now marry haue Issue and die during the Lease the Husband shall neither be Tenant by the Courtesie of the Land when it reuerts nor of the rents in the meane while Also 8. assi p. 6. If a Daughter and Heyre enter endolâ— den and haue Issue by her and the condition being broken she dyeth if now the Feoffor enter the Feoffée shall not be Tenant per le Curâ—esie of the Seignorie But if a feme sole haue a rent or common in or out of certaine Lands and the Tenant leasseth the Land to a stranger during the life of I. S. and the woman intermarrieth with the Lessée hath Issue and I. S. dyeth now if the wife die the Baron shall haue Courtesie in the rent or Common And if the Tenant leased his ground for 20. yeares and a woman hauing in the ground a rent charge in fée intermarrieth with the Lessée c. dieth during the terme it is a question in Parkins whether the husband shall haue Courtesie in the rent after the terme determine see Parkins cap. By the Courtesie SECT XLVII No Courtesie of a bare vse IF a Woman sole seised c. make a feoffement to the vse of her selfe her heyres and then she marrieth hath Issue and dieth before any estate in the same lands be againe by entry or otherwise executed to her her husband shall not be Tenant by the Courtesie and this aswell after the Statute of 27. H. 8. as before if the Feoffement were since the Statute SECT XLVIII What Husband may be Tenant by the Courtesie and of what estate WHere the Wise is actually seised of Lands in â—éesimple see-taile generall or as Heyre of sée-taile speciall the second Baron may bee Tenant by the Courtesie as well as the first for so is the Maxime And Parkins Fitzherbert and Brooke haue all of them the Case 21. H. 3. viz. A woman Inheritour hath Issue by her Husband and he dieth she takes another Husband hath Issue by him and that Issue dieth the woman dieth her second Husband shall be Tenant by the Courtesie Bracton agréeth also who when hee hath shewed this Ciuilitie of England concludeth Quod dicitur de primo diâ—i poterit de secundo siue de primo viro haeredes apparentes extiterunt siue non plenae aetatis vel minoris But hee addeth Quod iniuriosum est secundum Sâ—ephanum de Segraue qui dicebat quod lex illâ— male â—uit intellecta male vsâ—tata Nam quod dicitur de lege Angliae intelligi debet de primo virâ— communibus haeredibus non de secundo maxime cum haeredes apparentes extiterint de primo My mind giues mee that hee said truth and that Law turning a little out of her Channell here before Iustice Segraues time could neuer since bee brought to her course SECT XLIX Of speciall Taile BEfore West 2. cap. 1. all the Estates which wée now call tailed that is curtailed or cut off were sée-simple Conditionall If Lands had béene giuen to a man and a woman in Franke Marriage or to them and to the Heyres of their two bodies which gifts make now a speciall Taile as soone as they had Issue the Condition was thought to be performed And as a woman suruiuing her first Husband in this case might alien the Land so might she by bearing a Childe to her second Husband c. this makes him Tenant by the Courtesie be inforced to proue that the Childe sent forth some voyce or cry arguing life and naturall humanity for if it bellowed bleated brayed grunted rored or howled there accrued no courtesie by getting such an vnciuill vrchin By him therefore there must be a naturall crie heard inter quatuor parietes for he saith though a Child be borne mutus surdus tamen clamorem emittere debet sive masculus sit siue foemina nam Dicunt E. vel A. quotquot nascuntur ab Eâ—a E. or A. all crye that from Eue come Though they be borne both deafe and dumbe Non sufficit igitur tantum baptizatus scpultura yâ—t 28. H. 8. Dyer fol. 25. sets downe Fitzherberts opinion that a man may be Tenant by the Courtesie though the Childe neuer crie car paraduenture lissue soit nee dumbe And so saith Parkins 9. 4. 7. viz. that if the issue bee borne aliue though it die before it be heard crie or before it be baptized for that is a matter also with Bracton if there were no lachesse contumacie or contempt in the Baron he may be Tenant by the Courtesie But by negligence or by contempt he shall preiudice himselfe ascuns diont SECT LI. A Childe borne beginneth the title of Courtesie NOw this hauing a Childe is such a matter as it séemeth that maine tenant thereupon the title of Courtesie beginneth for example if a bond woman purchase Land and marrie if the Lord enter before Issue be had no Childe borne afterwards shall make the husband tenant by the Courtesie But if the Baron haue Issue by his wife before the Lords entrie he shall be tenant by the Courtesie and the auourie from that time forward shall rest vpon him solement And the possession in Law if the wife die shall not light vpon the Heyre but vpon the Baron which shall be tenant to euery praecipe Câ—o est cleere lei Brooke out of the Doctor and Student vide Brooke
the 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
comfort of your Husband yet a farre greater comfort the effect of Balaams desires Let me die the death of the righteons and let my end be like his SECT XV. The Husbands power in Lands which the Wife holdeth in Dower or otherwise for life THe Husbands Soueraigntie ouer his wife her goods and chattels personall or reall is no lesse then hath béen declared The dominion likewise ouer all manner of Franke Tenements his owne or his Wiues is supereminent in him during Couerture but so that he standeth well bridled from doing any thing a per luy whereby either the Dower which his wife had by a former marriage or expecteth by the present or any other estate for life or in fée can be taken from her when heâ— is gone If a Widdow tenant in Dower marry and her new husband surrendreth c. this is good during Couerture but if the Feme suruiue or if there be a Diuorce causa praecontractus the Feme may enter and defeate the surrender though he to whom it was made be dead and his Heyre in by descent yea and the Law differeth not heere though the Wife had ioyned with the Husband in the surrender But if Baron and Feme will surrender Lands which the wife holdeth for life by fine this shall bind the wife for the wife which is giuer shall be examined c. for no particular Tenant can surrender by fine without being named in the writt wherevpon the fine is leuied Par. 117. If a lease be made to Baron and Feme for life and the Baron make aliâ—nation in fee the Lessour may enter for a forfeiture and maintaine an assise if he be ousted but the Wife surâ—iâ—ing may haue a cui in vira post mortem is by a husband disseised release all his right to the husband and afterward notwithstanding the release brings a writt of entry in nature of an Assise and recouereth against him by default the wife of the releassée shall bee indowed But if the Heyre of a disseisor being in by descent the disseisée re-enter and take a wife now a recouery against the Baron by default or reddition in a writt of entry in nature of Assise taketh away Dower from the wife for the recoueror had right according to the nature of his action and the possession which the Baron had during Couerture is destroyed But it falleth out otherwise where a man is married and then there is a disseisin descent entry and recouery vt supra If a Precipe be brought against the Baron which pleadeth misnosmer or iointenancy and it is found against him whereby the demandant recouereth this ousteth not Dower vnlesse the Demandant had right In a writt of entry in le post against the Baron hee voucheth himselfe to saue the state taile and sheweth how his father gaue him the land in taile and that the fée simple is descended vnto him and vpon a trauerse of the gift in taile it is found for the demandant which recouereth and the Baron dieth Now if so be that the Baron might well haue pleaded a release of all actions or all right of the demandant the Wife may falsifie this recouery in her writt of Dower Tenant in taile hauing Issue dieth a stranger abateth dieth his heyre entreth and takes a wife the Issue of tenant in taile arraignes an assise of Mortdancestor against the Baron which trauerseth the points of the writt and they are found against him so that the demandant recouereth and the Baron dieth It hath béene holden that the wife shall not recouer Dower heere vntill the heyre haue reuersed the verdict by attaint But it seemes saith Parkins he may falsifie the recouery in a writt of Dower maine tenant for the husband might haue pleaded to the action of the demandants writt and if the Feme which by no meanes might haue attaint must tarry till the Heyre haue defeated the verdict perhaps he will neuer sue attaint or he will release so the wife which once was intituled to dower by her husbands possession neuer defected but by his owne lachesse should lose her Dower maugre sat est which seemeth vnreasonable Yet quaere saith he for the iudgement is upon a verdict comprehending matter repugnant and contrary to that which should hee pleaded against the writt But if the demandants entry had béene congeable then out of doubt the wife had had no power of falsifying for the entry had wrought a remitter The Heyre of a Disseisor entreth taking a wife and the Disseisée in a writ of entry ad terminum qui preterit recouereth against the Baron by default the wife may falsifie this recouery in a writ of Dower But it is seldome that the demandant in Dower shall falsifie a recouery against the husband had by his lachesse in not pleading a plea which went méerely in abatement of the writt And therefore to say that the Baron might haue pleaded misnosmer or ioynt-tenancie will not serue to falsifie a recouery But if she can proue that the demandant had no right nor cause of action but iointly with a stranger which stranger by his deed shewed forth to the Court had released before commencement of suit all his right to her husband being in possession this will serue to falsifie the recouery for a moity Thus hath Parkins in his treatie of Dower at large discouered that a title neuer tryed against the Baron in his life time may be tryed by his wife when he is in his grane And so further 36. H. 6. titulo fauxifier de recouerie in Fitzherbert 15. That a woman may falsifie a recouery had against her husband by action tried but it must be in another point and not in the very same which was tried by the recouery SECT XVII Losse of Dower by the Husbands attainder HEe that hath a notable grudge against his wife and would be sure to delude her hope of Dower hath adirect way though it be somewhat dangerous and I will not be of his Counsell Hee needs doe no more but imagine compasse and conspire some detestable renowned treason of the old stampe and if he be once attainted thereof according to his desire c. But if he doe but pingle as suffer himselfe to bee outlawed in action of trespasse this was neuer any forfeiture of Franke Tenement The Law was in the late dayes of Littleton and Parkins that euery attainder of murther or felonie done by the Baron was an ouster of dower to the wife The first Solons of the English Law be like thought that tender regard of a wiues estate should restraine a husband from all inormious transgression against the sacred Crowne and dignitie Royall would God it might but the true reason why the law was so penall for such offences of the husband toward the wife in whom perhaps was no fault that thereby shee should haue no Dower and towards the children that they should haue no descent of inheritance but the hereditary blood should be corrupt was vpon
seisin the Baron dieth she accepts the rent the may haue a cui in vita by the common Law for the acceptance here maketh not the Lease good because the liuery which the wife made was as seruant to her Master and onely the act of the Baron Par. 41. we haue concerning acceptances some plentifull Learning 21. H. 6. fo 24. Ascu saith there That if Lessée for yeares bee in arrerage of rent and die his Executors shall pay the arrerages if they occupie the Ferme contra if they waiue possession and so if a Lease for life be made to Baron and Feme the Baron commits waste and dies the wife shall be subiect to an action for waste done by the husband if she occupie the land contra if she waiue the possession and by Paston in the end of the case if Baron seised â—ure vxoris make a lease for life of the land and die the wife can haue no action of waste for she was not partie to the lease ex hoc sequitur that a woman vpon acceptance of rent of lease for yeares made by her husband without being her selfe a partie is not bound but shee may enter And albeit the lease were for life yet acceptance barreth not a cui in vita if she were not partie c. 26. H. 8. â—â— 2. per curiam if Baron and Feme sell the Wiues land make feoffement and the Vendée by the Indenture of sale couenants to pay ten pounds annually to the Baron and Feme during their liues if the Baron die and the feme accept the ten pounds this is no bar in cui in vita no more then acceptance of rent after Marriage dissolued where the Baron a per luy made a feoffement or lease But acceptance of rent c. where they both made a feoffement or lease for life is a barre of all actions I will hunt for no farre fetcht learning of acceptances but this I finde if a man lease his land to â— 8. to hold at will by certaine rent none acceptance of the rent here after the Leassors death can barre the Heyre of entrie or make any â—ffirmance of the lease for acceptance can neither make good a lease determined by entry or a lease already void without entry by the lessors death And he that leaseth to hold at will endeth that will when he endeth his life but a lease for yeares by an Abbot or Tenant in taile is not by their death presently void but voydable and the successour or Issue by acceptance of the rent affirmes the Lease So doth the Feme affirme the Lease made for yeares by her husband of her Land by acceptance when she is become sole and sée Dyer 5. Mar. 159. by the opinion of thrée Iustices Dyer Stamford and Browne if Baron and Feme had made a Lease by Indenture rendring rent and the Baron before rent day die and the Feme before the day take another husband who accepts the rent and dies this acceptance shall bind the Wife but note and take with you this peculiar rule where acceptance binds her that she be a partie to the Lease and that by writing for if a man makes a Lease for yeares without déed of land which he holdeth in right of his wife this was méerly void towards the wife so soone as the Husband is dead and acceptance of the rent is to no purpose Plo. 431. per Bromley Againe 9. H. 6. If tenant in Fée iure vxoris make a Lease for yeares and the wife dieth the Lessée shall pay the rent vntill the Wiues heyre enter for so long there is a continuance of a Fermour by force of the Lease but none â—â—owry lyeth for the Husband because he hath no reuersion And an action of trespasse vi armis may be against him but he cannot haue action of debt for the rent But to come home to the very brinke of the Statute nota saith Dyer That the common opinion amongst all Iustices at this day is If Baron and Feme make a Lease for terme of yeares before the Statute of 32. Hen. 8. by Paroll reseruing rent to them both if the wife when shee is become sole accept the rent at the Fermors hands this binds her not from anoyding the Lease if it were not by Indenture for her assent was requisite at the beginning and that ought to haue appeared by déed Dyer 1. Mar. fo 91. The same Learning is 4. Mar. fol. 146. When a Feme Couert departs from her Land the intent consideration and cause ought to be expressed in scripture to proue her consent to the whole Mannor for it is agréed for Law That if before the Statute Baron and Feme had made a Lease by paroll of the Wiues Land for terme of yeares rendring rent though after the Barons death she had accepted the rent yet she might out the Termer because her priuitie to the Lease appeares not per escript likewise if a feme couert suffer a recouery or fine of her Land it shall be intended by Law to be to her owne vse if there appeare none other intent expresly by Writing And none auerment shall be taken of intent or consideration in such Case other then the Indenture specifieth SECT XXV Obseruations vpon the very Statute I Haue shewed what strength a Demise or Lease for yeares made of the Wiues Land by Baron and Feme or by the Baron onely was of before the Statute and is of being made since the Statute without the appointed circumstance and solemnitie Now a little to the very Statute As I said before the ordinance is that Leases shall bee good c. But not directly that any terme shal be boyd though voyd of strength by this Statute they may be many wayes as appeares by the prouiso Note that the forerunning Lease Demise or occupation by Fermors must bee deriued from one that had Inheritance for if at the end of a primitiue Lease made by the Lord of whom the Tenancie is holden or by the Kings grantée or committée of wardship or by tenant in Dower or by Tenant per le Courtesie some of which may by good possibilitie haue had power to make Leases by space of twice twenty yeares a tenant in tayle makes a Lease this succéeding demise hath no vertue or ingredience of the Statute though it séeme to haue good correspondence with it And it is doubted whether a Ferme continued twenty yeares by the Donors demise be sufficient or no to make roome for a new Lease This for ought I perceiue is by a prudent interpretation of the Constitution rather vpon equitie and intent then vpon the Text tenants in fée simple or tailed which transmit their possession to their déere off-spring will not make Leases to any great disaduantage of any of their owne babes or blood and therefore their Leases may well bee â—mitated But like enough it is that Tenant per le courtesie or in Dower or in right of his owne or in
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
kéepership newly granted and sans fée which is a charge without gaine or vtility SECT XXXIII Estates Taile ALl estates tayle are within the equitie or compasse of this branch of 27. and the formes or species within the â—etter are but as patternes or examples of Ioyntures And therefore where an estate is limited to Baron and feme and to the Heyres Males of their bodies or to them and the heyres Males or Females of the body of one of them although this be an abridgement or amputation of one sexe from the examples within the very Statute yet it is a good Ioynture There is a Case in proofe thereof Dyer 97. 1 Marie the Duchesse of Somerset was ioynt-purchaser with her husband of estate to them two and to the heyres Males of her Husbands body betweene them begotten which is none of the fiue estates expressed in the Statute but the Iustices held cleare vnlesse it were refused it excluded Dower So is it if estate be made to Baron and Feme to them and the heyres Males which the Baron shall haue of the body of his wife vel e conuerso Or if the gift be to Baron and Feme and thrée heyres of their two Bodies which is an estate determinable vpon death of the third Issue or if it be to them and to the heyres de corpore the sonne of both of them or of one of them all these estates limited for Ioynture are good enough SECT XXXV Estate for Life c. THese words Or for life of the Wife are intendable as well for an estate made to the Wife onely during her life as of an estate made ioyntly to Baron and Feme during the life of the Wife Therefore an estate made onely to the Wife for her life or to the Baron for his life with a remainder to the Wife for her life is a good Ioynture within meaning of the Statute yet it seemeth not to agrée with the nature of a Ioynture by the etimology of the word and the Statute speaketh not of any remainder Dyer 14. 15. Eliz. fol. 387. agréeth and saith that Ioyntures may bee conditionall which if the Wife accept after the husbands death she shall be barred of Dower as where the condition is that shee shall kéepe her selfe vnmarried and saith he a Conueyance to a wife during her life in remainder after the immediate death of her Husband vpon condition reasonable may well bee intended pro iunctura yet he himselfe afterwards fo 340. thinketh that such a remainder to the wife for her life after the death of her Husband cannot bee termed a Ioynture because the Etimologie serueth not and 11. H. 7. ca. 20. 27. H. 8. demonstrateth no such Ioynture for women in possession or in vse of any estate in remainder after the Husbands death c. quaere If an estate bee conueyed to a mans Wife and to a stranger for their two liues for the Wiues Ioynture it is good enough yet the Statute mentioneth onely estates betwixt Baron and Feme And although the estate be not conueyed to the Feme by precise termes for her life yet words that amount to as much shall be of as great effect As if Lands be giuen to a wife vntill I. S. hath leuied an hundred pound or till he be promoted to a Benefice This maketh an estate for life within the branch of 27. c. SECT XXXVI Estate to the vse of Baron and Feme IF estate be conueyed to Baron and Feme to the vse of a Stranger this is no Ioynture but if it be to Baron and Feme or to one of them or to a Stranger to the vse of the Feme it is a good Ioynture and in euery limitation of vse to the Baron and Feme it is requisite that he or they that shall take the possession may be seised to an vse for if Lands be giuen to the King or a Corporation or to an alien borne to the vse of Baron and Feme this is no good Ioynture for these persons cannot stand seised to another bodies vse no more can a Rector or Parson of a Church or a Bishop vnlesse it be in respect of their naturall capacitie but a man attainted may take for another bodies vse and therefore a Feoffement to him to the vse of Baron and Feme may be a Ioynture SECT XXXVII How a Woman may haue a Ioynture and Dower and how neither Ioynture nor Dower A Woman may haue Dower notwithstanding her Iointure by the kind ouersight of her Husband or of his heyre As if a Ioynture assigned the Baron himselfe will endow his Wife ad ostium Ecclesiae or ex assensu patris Or if after the husbands death his heyre or Feoffée will assigne other Lands in Dower to her which hath a Ioynture already Or if the heyre plead to her in a Writt of Dower ne vnque seisique Dower c. or nient accouple in loyall matrimonie or any other plea saue Ioynture c. in barre of Dower for in such Case if it be found against him the woman shall recouer Dower and retaine her Iointure neuerthelesse quia volenti non fuit iniuria On the other side a Woman shall haue neither Ioynture nor Dower if by her owne folly or wrong done she haue forfeited her Ioynture As by breach of a condition annexed to her estate or doing of wast or making a Feoffement And if her Ioynture by lawfull title and without any folly in her be euicted from her yet where the heyre is remitted to another estate then that which her husband was seised of during Couerture she getteth no Dower So is it if the estate whereof Dower is demanded were conueyed to the Baron and his heyres during the life of I. S. But if it were to the Baron and his heyres for so long time as I. S. had heyres of his body lawfully begotten this estate may yéeld Dower SECT XXXVII The first Prouiso for Dower vpon euiction of Ioynture THis Prouiso is to be construed fauorably for women as the premises be in fauour of the Heire And therefore as well tayled Lands as Fée-simple are bound to render value and recompence if therefore the Ioynture euicted were to the value of twenty pound per annum and the heyre haue twenty pound per annum of Land tayled to his Father the woman shall recouer euery whit of it in recompence of her lost Ioynture for this latter and new Statute controlleth the ancient Statute de donis conditionalibus SECT XXXVIII In what case a Woman may refuse her Ioynture to demand Dower THe Statute is plaine that a woman may refuse a Ioynture made during Couerture and take her Dower or waiue Dower and rest on her Ioynture vnlesse the Ioynture were by act of Parliament c. And M. Brograues opinion was that if the Ioynture were made by other assurance and afterward confirmed by Parliament that such ratification tooke away a womans election as well as if the originall assurance had béen
a diâ—â—ringas shall goe against him Againe 11. H. 4. a 〈…〉 â—apiâ—s went against Baron and Feme the Baron appeared and the wife made default the Plaintiffe could not obtaine exigent against them both but he had it against the Feme and an idem dies giuen to the Baron For though in a praecipe quod reddâ—â— in 〈…〉 of the grand 〈…〉 and such like and for losse of 〈…〉 returned vpon Baron and Feme the wiues default be the husbands default yet the wiues default onely shall â—ot â—ée so 〈…〉 to him as to driue him to a corporall punishment as to the capias or exigent Likewise 39. Ed â— 3. fol. 18. 〈…〉 against Baron and Feme at the exigent the Baron appeared the wife made default and because shée was misnamed in the writ a new exigent went out and aâ— idem dies to the husband yet he was compelled here to answer maintenants 8. H. 4. fol. 6. in appeale of Mayhem against Baron and Feme after exigent awarded the Baron alone came and found suerty and had a supersedeas though the wife neuer appeared 12 H. 4. fo 1. in a writ of debt against Baron and Feme processe continued till capias was awarded then the Baron appeared of his owâ—â— accord and the wife made default an idem dies was giuen to the husband and a capias sicut alias went against the wife which came and finding suerties had a supersedeas to the Sheriffe then at the day of appearing the wife câ—me and the Baron made default therein was awarded that the wife should haue another day of maineprise and processe went out against the husband But this he said should be no example in temps a vener SECT XLVII Of Fourching THis interchange or shifting of appearance and default by Baron and Feme is called sourching or fourcher The terme being of no greater linage than from a hay forke or pitchforke which in french is fourth The Logicians call their dilemma a forke And our Ancients haue giuen a like name to a subtill kinde of delay which parceners ioyntenants and married couples had at the common Law when suits were commenced against them called forcher for euen as a cunning fighting bull when he is bayted offering to the dog first one horne and then another might be said to forth so these conioyned aduersaries were wont to play with both tynes when first one should appeare and his fellow be â—ssoyned and at the next day of appearance he should make default which formerly appeared and be essoyned by him which first made default Against this West 1. ca. 42. complaining that demandants were greatly delayed by 〈…〉 which might not answer but together and by ioyntenants which knew not their owne seuerall that vsed to fourâ—h by â—ssoine till euery one were once essoined Ordeineth that such tenants henceforth shall bée allowed no essoine more than at one day and as one person The Statute of Gloucester made 6. eiusâ—em Regis 〈…〉 the first reciteth the former Statute thus Whereas it is established that parceners and tenants in common shall not fourth by essoine after they haue once appeared in Court It is ordeined that the same Law shall bée obserued when a man and his wife are impleaded c. In the booke 12. H 4. fo 1. Culpeppeâ— affirmeth that fourcher which was at the common Law in a writ of debt is not to be re 〈…〉 died by this Statute of 〈…〉 And Thi 〈…〉 confesseth that the Statute i 〈…〉 lâ—â—d 〈…〉 yet saith he at the common Law 〈…〉 and 〈…〉 might neuer fourth by distresses infinet in a writ of debt for that they are in a manner one person in law Thus much of sourching SECT XLVIII The Baron and Feme appeare BVt admitting that there is no delay vsed how shall Baron and Feme plead I suppose it is hardly comprehended within rules Brooke setteth downe that in a quid â—uris clamat against Baron and Feme they may deny the deed by which the Feme should bee bound and a quid iuris clamat was brought against a Feme couert 18. H. 6. fo 1. Titulo Baron Feme 83. And where the Baron is estopped from pleading non tenure the wife is so tâ—â— Titulo louâ—nes accompts Br. 17. â—6 assisar p. 44. An Assise was brought against Baron and Feme the Baron canus in proper person and pleaded the Plaintiff 〈…〉 the wines Atturney was asked if hée would assâ—â—t to the plea who answered he would be aduised therefore thes dâ—â—â— was deliuered baâ—â— againe to the husband to the intent that it should not bée allowed vnlesse the wines Atturney consented who alterward agreed Thus doth Fitzh titulo Assise abridge the case 243. very néere the originall for Brooke mistâ—ke it or I mistake him in the title of Baron and Feme 72. In an action of debt against Baron and Feme executrix It in a good pleading to say that the wife hath fully administred and a good replication to say that the wise hath asserts sins paâ—ler del Baron â—â— Hen. 6. fo 4. And there it is said that a wife 〈…〉 may administer and distribute gods without the assent of her husband And if that she sell the Testator goods and redeme them yet still they remaine assets If a Fame tenant for life take a husband and they sine being 〈…〉 of a stranger if the Baron die he in 〈…〉 cannot enter for that is the act of the husband If a Feme tenant for life take a husband which alieneth in Fee and hee in reuerston entereth if now the Baron dye the wife shall haue the land againe 29. assisar p. 43. Brooke 86. Titulo Baron and Feme The case is of an estate made to baron and Feme in the booke of assises in a writ of entry in nature of assise against Baron and Feme the Baron pleaded non tenure for his wife and for himselfe Ioyntenantie with a stranger This was Bolden a good plea per Curianâ— and not double for he must answer for both 16. H. 6. fo 22. 12. Rich. 2. Baron and Feme were acquit in appeale it was found by verdict that they had béene imprisoned to damnages C. l. By Thinne Hâ—ll Iustices the dammages ought to be seuered the Baron to haue one iudgement for himselfe and he and his wife another iudgement for his wife for if the husband should dye before execution the wife ought to haue execution of her daâ—uâ—ages and not the husbands executors which could not bee if the recouery were in common Fitzh Titulo Iudgement 108. SECT XLIX Outlarie of Baron and Feme or of one of them 44. Ed. â— fo 3. The Baron and Feme being outlawed in an action of debt got each of them a seuerall Charter of pardon sued scire facias against the Plaintiffe and found maineprise ioyntly the Viscount returned that the scire facias came tardy at which returne the Baron appeared without his wife and praying to haue scire facias sicut alias
to make void the Obligation or Statute if there be cause with a seuere penalty of 300. li to bee forfeited by the Sheriffe if hee did not execute she same Writ duly according to the tenure thereof This Statute was too méeke and gentle something like him that made it H. 6. SECT XXVII 3. H. 7. c. 2. BVt 3. Hen 7. cap. 2. beginning with a better complaint against takers for lucre of maids widdowes or wiues hauing substance of lands or goods or being heires apparant which takers sometimes married them and sometime desâ—owred them to the breach of Gods Law and the Kings the disparagement of such women and vtter heauinesse and discomfort of their friends ordaineth that whosoeuer taketh against her will vnlawfully any maid widdow or wife shall together with the procurors abbetters and receiuers of any such women knowing her to bee so taken against her will bee felous and euery of them béene reputed and iudged as felons principall But this extendeth not to taking where a woman is claimed as a ward or bondwoman And Mr. Lambard noteth that anno 3. 4. Phil. Mar. this Statute was construed to make no felony vnlesse the woman married were either taken or deslowred SECT XXVIII 4. 5. Phi. Mar. cap. 8. THerefore to supply what hitherto was wanting against takers and also intisers rauishing by allurements and flatterers 4. 5. Phil. Mar. cap. 8. saith that for want of sufficient Law it remained still a famlâ—ar and common mischiefe in the Realme That maidens and women children of Noble men Gentlemen and others which were heires apparant or had lands in great substance left by their Ancestors or friends by flattery trifling gifts or faire promises of light persons and also by subtility of such as bought and sold them for reward were many times allured to contract matrimony with vnthrifty persons and thereupon oftentimes with sleight or force were taken from their parents friends or kinsâ—olke to the high displeasure of God the disparagement of the children and perpetuall condolence of their friends Therefore it is ordained that it shall not bee lawfull to conuey any maid or woman child vnmarried or vnder the age of sixteene yéeres out of the possession and against the will of her father or of such person to whom by his will or otherwise in his life time he shall haue appointed the kéeping education and gouernance of her except such taking as shall bee without fraud by the Master or Mistris or Gardian in Soâ—age or in Chiualry of or to such maid or woman child And if any person that is aboue the age of fourtéene yéeres shall conuey or cause to bee conueyed any such maid being within the age of sixtéene yéeres out of the possession and against the will of the father or mother or any other person which then shall haue by lawfull meanes the order keeping education or gouernance of her the offender duly attainted or conuicted other than such of whom shee shall hold by knights seruice shall suffer two yéeres imprisonment without baile or mainprise or par such fine as shall bee assesed by the Quéenes Councell in the Starchamber And if any shall take away and deflowre any such maid or woman child or shall against the will of her father or he not knowing if the father be in life or without the assent or knowledge of the mother hauing â—ustody â—nd gouernance of the child the father being dead by letters messages or otherwise contract matrimony with any such mard except it bee by the consent of the person or persons by interest of wardship intituled to haue the marriage he shall suffer being lawfully conâ—â—ted fiue yéeres imprisonment without baile or maineprise and pay such fine as shall bee assessed in the Starrechamber c. the one moity of all which fines shall bee to the Quâ—â—e and her successors and the other to the grieued And the Councell in Starrechamber by Bill of complaint or information and Instices of assise by inquisition or indictment in which processe shall be awarded as inditements of trespasse at tâ—e Common law haue authority to heare and determine the offen â—s Moreouer if any woman child or maidâ—n being aboue the age of twelue yéeres and vnder sixteene doe at any time consent to such person as shall make contract of matrimony contrary to the forme of this Statute the next of kin to whom the inheritance should come after her death shall from time of such assent haue and enâ—oy all such lands tenements and her editaments as shee had in possession reuersion or reâ—â—â—nder at the time of assent during the lâ—te of such peâ—son so contracting matrimâ—ny and after her â—â—cease so contracting c. then the said lands shalldescen reâ—eâ—â— remaine and â—ome to such person or persons other than tâ— him that shall so contract matrimony as they should haue done in case this Statute had neuer beenâ—mâ—deâ— But thâ—s At extenâ—eth not â—o diâ—â—â—sh any libeâ—ty custome or authorite in London or like corporations as touching Orphancs their lands goods or chattels Sée Ratcliffs Case in Sir Edward Cokes 3. Rep. fol. 38. vpon this Statute of 4. and 5. of Phil. and Mar. In an Eiectione firme vpon speciall pleading a speciall verdiâ—t was thus in effect that William Wilcokes married the daughter and heâ—re apparant of Iohn Edols and Alice his wife and hath issue by her Iohn Elizabeth and Martha William Wilcokes afterwards by his will in wrighting appoints the order custody education and gouernment of his said three children to their said grandfather and grandmother during the grandfather and grandmothers liues and then dyes the widdow of Wilcokeâ— marrieth Raphe Radcliffe Iohn Edois dyes and his widdow being Tenant in â—ee simple of the lands in question holden in soccage by her will deniseth them to her grandchild Iohn Wilcokes in taile the remainder to Elizabeth and Mortha and the heircs of their two bodies equally to bee diuided the remainder in fee to her said daughter and heire apparant the mother of these thrée deuisées and dieth Iohn Wilcoke dieth without issue his sister Elizabeth married one Andrewes and he his wife and her sister Marthâ— enter the lands and were seised accordingly and Marâ—ha abiding with Raph Râ—tclâ—ffe and his wife being aboue fourtéene and vnder sixtéene yéeres of age with Raph Râ—tâ—lâ—ffe his consent and of her owne accord departs eight miles off from them where six houres after shee was married to Edward Raâ—cliffâ— who enters and made the Plaintisâ—e his lease And the issue being whether Elizabeth Ratcliffe the wife of Raph Ratcliffe had the custody of Martha the wife of Edward Râ—tcliffe the lessor at the time of their contract and marriage all the Iudges and Coâ—rt of Kings Bench resolued that Elizâ—beth had the gouernance of her daughter Martha at the time of her contract and marriage within the intent and meaning of the Statute It was resolued in that case that those words father mother within the
according to the will and died Now the question is whâ— the Issue in taile or Deuisée of the remainder should haue this Land Et per iudicium curiae Partly because his mother had waued the estate taile and although shee had not done so yet because he could not conuey his title and discent but aswell as heyre to his father as to his mother the fine with proclamations leuied onely by his father barres him So farre goeth the Booke And you may obserue that it barres the wife if she will See also 5. Eliz. 224 in Dyer the husband leuied a fine with proclamations of his owne land and after fiue yeares died his widdow continuing sole of full age whole memory out of prison within compasse of the foure Seas and doth not make any demand or claime of dower within 5. yeers after her husbands death quaere if he which pleadeth in barre of Dower ought expresly to auerre this The question was if she were barred of Dower Dyer telleth vs termino Hillarij 4. H. 8. rotulo 344. such a barre pleaded was admitted good for the ground of Dower was the Husbands seisin and the action giuen by his death So that it is within the second sauing of 4. H 7. which preserueth to all which are not parties pursuit of right growne after the fine by or vpon cause before the fine so that they take it within fiue yeares In Plowden fo 373. Iustice Dyer arguing Stowell and the Lord Zouches case affirmes the learning which I haue recited out of his owne booke But Plowden inserts his note that he takes the Law to be otherwise and that a woman is bound to no time of her Dower after such a fine for saith he the ayme of 4. H. 7. as against future droicts is wholly against such rights as either suffered wrong before the fine or by the fine and in this case of Dower the title is all after the fine and standeth well in accord with it not touched by the Statute the woman therefore may demand when she listeth So if there be a cessor begun a yeare before a fine with proclamations continued a yeare after the Lord is not restreyned at the end of 5. or 15. yeares to bring a cessauir so he saith likewise if a morgage be disseised a fine lenied by the Disseisor with Proclamations passed yet the morgager paying his mony to the Morgagee may at any time within 5. years or more after the payment re-enter When Giants fight Pigmées may not part them but howsoeuer some incertainty arise in euery corner of the Law this is here certaine that a fine leuied by the husband onely of his owne land tolleth not the wiues action of Dower if she come in time And a fine so leuied by him of the wiues Land taketh not away her seasonable entry but the gulfe that swalled vp entrie action right and all possibility of reducement by Law is a fine lawfully leuied by baron and feme where forsooth because a woman is examined by a Iustice or one that hath a Dedimus potestatem c. and acknowledgeth her frée consent and agréement what cannot men get wiues to doe if they list she shall be barred and for euer excluded of a great many acres of ground for a few kisses and a gay gowne That is a fine finem litibus imponens for till it be done and dispatcht the poore woman can haue no quiet her husband keepes such a iawling SECT XXIX Of common recoueries AS for trickes of Common recoueries I perceiue not how that can be greatly preiudiciall to women for first if a man will suffer a faigned recouery of his owne Land to defeate his wiues Dower she may falsiâ—â—e it c. sée the Eiectione firmae per Eare against Snow Plowd fo 515. the baron there being tenant in taile his wife hauing nothing in the Land he and his wife suffered a common recouery with voucher to his owne vse c. the opinion of all the Iustices was that though the woman suruiued yet the estate taile shal be barred for it was found precisely by verdict that the wife had no interest in the Inheritance The baron therefore which alone lost estato taile by the recouery might recouer alone estate taile in value But as for the wife no man can say what estate shee had nor whether she should haue a quod ei deforceat or a Writt of right if she had lost the land by default So likewise hauing lost by the recouery nothing or no man can tell what her recompence in value must be She was named said the Iustices vpon intent to barre her of Dower and such is the meaning of husbaÌ„ds which wil haue their wiues named in such recoueries but cleere the estate taile is barred if in this case the wife might sue execution in value against the vouchée by estoppell yet the issue in taile should not be concluded by the act of his Father but he might oust her of that which she had so recouered in value c. see Sir E. Cokes 10. Rep. 43. a. in Mary Portingtons ca. that the vsage hath béen alwayes vpon common recoueries against Baron and Feme to examine the wife and to grant a dedimus potestatem to take vpon her examination her Conusance as in case of a Fine But let the case be Tenant iure vxoris is agréed with Iohn a Stile to suffer a recouery of his wiues Lands to certaine vses comprised in Indentures betwixt them two a Writ of entry in the post is brought against the Baron and Feme which appeare in person or by Atturney calling to warranty the common vouchée a man well worth a couple of new rosted egges which re-enters into warrantie Then after declaration and imparlance at the day of the appearance shall the demandant recouer against Baron and Feme and they in right of the Wife shall recouer against the Vouchee of such lands as he hath or is like to haue when time hath a hairy crowne shall this recouery or possibility of vnlikely recouery in value binde the wife when the Baron is dead whether she will or no by Brooks nouell cases 23. H. 8. pl. 37. it séemes that such a recouery did then bind the wife to but without examination mee thinks it should not bind the wife The Statute of 32. is that none Act of the Barons shall make discontinuance c. except onely a Fine by Baron and Feme Ergo such a recouery notwithstanding though it be executed the wife may enter See 23. Eliz. cap. 3. and there is a sauing to euery Feme couert or her heyres her Writt of error to be sued within 7. yeares after she become sole for reuersing of Fines and recoueries past if they must be reuersed by error it séemes without error they were very dangerous For a rule to conclude withall take this That wheresoeuer the Baron doth any thing out of Court which thing he and his Wife were compellable to doe it