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 Curâesie 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 âéesimple 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 diâi poterit de secundo siue de primo viro haeredes apparentes extiterunt siue non plenae aetatis vel minoris But hee addeth Quod iniuriosum est secundum Sâephanum de Segraue qui dicebat quod lex illâ male âuit intellecta male vsâtata 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 Eâa E. or A. all crye that from Eue come Though they be borne both deafe and dumbe Non sufficit igitur tantum baptizatus scpultura yât 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 Câo est cleere lei Brooke out of the Doctor and Student vide Brooke
matter but the other conclusion puts it to the Law and Courts consideration Yee sée now of what possession of Law a woman is dowable per Brian 4. H. 7. âo 17. if the Kings ward die vnder age and the neât heyre being married die before ââuânârunt sued his wife shall not haue Dower But by Dâuers 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 paâts but for a third of all that whereof her husband dyes seised she shall not haâe 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 iâfeoffed 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 ââ 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 heyrâs 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 âasting the terme And if a Lease be to the Husband for life with a remainder to a stranger for âeares the remainder to the Husband in âée the inheritance and Franke Tenement are sufficiently connexed to giue the wife Dower bât 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 aâets to him in a Formedone in Descender but the wife gets here no Dower aâd 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 Courââsiâ 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 aâânt que il eât 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 plââ 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 sâirâ 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
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 aliânation in fee the Lessour may enter for a forfeiture and maintaine an assise if he be ousted but the Wife surâiâing 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
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 âne 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 â0 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 âaint 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 fainânes 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 arâeare 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
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 taââe 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 inconueâiencie 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 inâumbrance 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 refeoffemeÌt 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 âeinfeoffe 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 Drâits 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 caâteth 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
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 perâel Nât 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 demisââ 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 Entrieâd 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 eodemâââe 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 quaerântes in proximo Parliamento scribantur vsus in quibus concordare non possunt c. referant eos ad proximum Parliamentum fiat breue de consensu Iurisperitorâm ne contingâtdâ 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. deââsit ad eusdem teâmânum c. If a man make a lease for life and dye and his heire grant the reuersion to B. and the Tenant attâânes 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 âessée Saith Fiâzherbert 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 faât and mee séemeth this Iudgement was not well giuen saith Fitzherbert And
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 aliââ in fée and dye he in the reuersion if he be heire in fée simple may sue this Writ or his Assise of Moââ 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. câi 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 Pâaecipe 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 leasâe 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 reddât 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 teâme 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 francketânement 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
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 tenaÌt 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 Maâd 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
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 quâere saith Parkins car il est incounter le conscience de diuers homes And making
of the Obligée And if I bee bound to C. that A. shall marry B. before Easter If I marry B. and our Espousals continue till Easter my bond is forfeited Similiter If C. marry B. or if A. and B. cannot marrie because one of them dieth or wareth mad before the day I finde none other cause in our Yéere-bookes alleaged why things may not passe by gift betwéene Baron and feme saue only vnitie of person But vndoubtedly the restraint springeth from a politique consideration rather to bréed cherish and maintaine the vnity then in iudging of an impossibility because of the vnitie But the Ciuill Law vir non potest dare vxori ne foeminae amorem coniugalcm in quaestu habeant prohibenter inter coniuges donationes quia silicerct coniugibus inuicem donare matrimonia fierint venalia saepe distraherentur c. And because it would amount to arguing inter coniuges there is a restraint by that law Ne priuignus dare queat nouercae vel nouerca priuigno What if the Matrimonie be inualidum legibus non consistens yet non valet inter coniuges putatiuos facta donatio ne melioris sint conditionis quam illi qui recte faciont But a gift to a plaine Concubine is good enough vnlesse the giuer be a Soldier By old Iohn Bracton lib. 2. ca 5. Non valent donationes inter virum vxorem non enim poterit vir dare vxori nec e conuerso constante Matrimonio quia huiusmodi donationes prohibitae sunt inter tales personas nec infraudem facere possint constitutioni veluti si Maritus donet extraneae personae ea mente vt redonet in vita viri vel post mortem hee maketh his reason in the 14. Chapter Si tales donationes fieri possint ob amorem inter virum foeminam posset alter eorum egestare inopia premi But at this day though lands cannot passe betwixt Baron and Feme right out by plaine liuery or bargaine yet in the obliquitie of fines recoueries and vses there is an Expedite transporting of Inheritance betwixt them to the vndoing perhaps of the partie whose Lands are transferred and auferred with not so much as coniugall loue alwayes in recompence SECT IIII. In what sort things may passe betwixt Baron and Feme LAnds cannot passe from the Baron by feoffement to put the state from him immediately to the wife though he were infeoffed to that intent and vpon such a condition But one man may infeoffe another vpon condition to infeoffe the wife of the Feoffor whatsoeuer Bracton say and the condition good Also a feoffement fine or recouery may be made knowledged or suffered to the vse of her and her heyres which is wife to the Feoffor Conusor or sufferer c. And as I may make another man the instrument to conuey lands to my wife so may I be the meanes to conuey Lands to my wife from another man for by Letters of Atturney-ship I may deliuer seisen of Lands to my Wife for another and the feoffement shall be good by Parkins 41. And a man may deuise in his last Will and Testament either by the custome or by the Statute 32. H. 8. Lands to his Wife in fée fée-taile for life or for yeares because this taketh none effect till the Couerture be dissolued It is said in Scolasticus case If I deuise that he shall haue greene acre after the death of my wife my wife shall haue estate for life by the intent c. And although a wife by the generall rule hath no will but her Husbands and all Testaments of a feme-couert to deuise any Mannors Lands Tenements and Hereditaments are ineffectuall by expresse declaration of 34. Henrici 8. capite 5. soeuer be the courtesie among Dames of honor a womans name of dignitie changeth with the degree of her husband and of such women as haue not their honor by birth but acquire that by Marriage the rule of Law taketh order Si mulier nobilis nupserit ignoblem desinet esse nobilis when she taketh a second husband But what though the scrupulositie of the Common pleas were obserued throughout the Realme that Esquires Ladies should be no Ladies in Court and Country wherevnto I will neuer giue voyce what inequality were in this depressing shall not likewise a Knights widdow marrying with a Baron or Earle as be much exalted verament yet you see the dignitie hangeth meerely on the male side carrying the scepter of Wedlocke SECT VI. Touching seruitude NOw touching the state of fréedome or bondage Littleton saith that if a free-man marry a bond-woman the Lord cannot seise her but there is remedie by action for taking her sans gree or licence Fitzherbert in his liberâare probanda agreeth 78. G. that she should be fréed perpetually But the Law seemeth to be otherwise And so you may find the opinion of Doct. Stud. fo 139 b. And that indeed it is no more but a Temporarie priuiledge and exemption from seisure of her Lord during time of couerture for if the Seigniour of a Mannor marrie his Niefe regardant the best authority that I can finde is that this Niefe is no more but shrined in the honour of her Lord if he die she shall haue no Dower but remaine still in her niefitie regardant to the Mannor And to say truth I perceiue not how a womans being married can in any sort be an infranchisement no not for a time it is no more but a sconsing or hiding of the seruitude Bracton saith elegantly manumission is a detection or laying open of the freedome which is a natura A womans liberty is free licence to doe what she list vnlesse shee be letted by force or by Law it is not restored to Niefe when she marrieth Marriage rather pulleth it from her which before was free When a Seignieur therefore marrieth with his bond-woman she must not turne her bumme to him and say heretofore my Lord I lay in your bed and now I lye in mine owne as the French Concubine said being married newly to her French Lord but let her bee burome and mindfull of her subiection for if this louing Seignior of hers die she may right well be an apparant Niefe againe to her owne sonne for ought that I know why not as well as causes may happen that the father to sonne or one sonne to another may be a villeine the case did happen 3. Ed. 3. that the villaine married his Lords mother and so the father in Law and the brother de demisank were villeines If a free woman marry a villeine her naturall freedome is not otherwise infringed then by subiection to her husband If the villeine purchase Lands and die before seisure made by the Lord the wife shall haue Dower But if a frée-woman seised in fee or fee-tails take a husband which is a villeine and die the Lord may enter vpon the husbands possession per le Courtesie or vpon the Issue being Tenants
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
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 âure 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. ââ 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 âffirmance 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 ââowry 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 âmitated But like enough it is that Tenant per le courtesie or in Dower or in right of his owne or in
shall be deemed and construed to be the act of both of them as if the Baron seised in right of his Wife or ioyntly with his wife assigne Dower to another woman it bindeth and so granting of a rent for equality of partition and atturnement by the Baron alone bindes the Wife SECT XXX of Iointures I Will enter no further into the streame of Fines and recouerie they require a cunning swimmer And a short Discourse cannot possibly make any plaine discouery of them otherwise this place would haue borne the Doctrine fitly about making of ioyntures for all husbands are not so vnkinde or vntrusty as to endamage their Wiues by alienation of their Lands but contrariwise the greatest part of honest wise and sober men are of themselues carefull to purchase somewhat for their Wiues if they be not yet they stand sometimes bound by the womans parents to make their Wiues some Ioynture If husband Father Mother and all would be vnmindfull of prouision in this point yet very many of our English women haue with their singular vertue so much wisedome of their owne as to foresee for themselues and discerne the difference betwéene that which wee call Dower and Ioynture Ioyntures saith Dyer 4. M. fo 148 are made for the most part to Baron and Feme ioyntly or to the Feme onely this also is comprehended vnder the terme Ioynture before Marriage or after for sustentation of the charge and necessities of Espousalls and they are made causa matrimonââ gratis without the consideration of money bargaine or any thing sauing for loue and affection of the Baron or his ancessors and these Iointures are a present possession But Dower must be tarried for till the Husband be dead It must be demanded sometime sued for sometime neither with suit or demand obtained Againe Dower was subiect to forfeiture in times past by felony done and proued in the Baron by the Barons treason by the Wiues elopement and euery question in the validitie of Marriage maketh a scruple of Dower all which inconueniences being wisely foreséene women did learne to become ioynt purchasors with their husbands of such estates as would auoid all weathers and a good while they did enioy Ioyntures and Dowers after their Husbands were dead against which the Statute of 27. H. 8. of vses ordeineth as followeth SECT XXXI A part of 27. H. 8. ca. 10. IT is prouided c. that where any persons haue purchased or haue estate of lands c. made to them and their Wiues and to the heyres of the Husband or to the Husband and wife and the heyres of their two bodies or to the heyres of one of their bodies or to the husband and wife for terme of their liues or for the life of the wife or where any such estate hath béene or shall be made to any husband and his wife or to other persons their heyres and assignes to the vse and behoofe of the said husband and wife or to the vse of the wife for the ioynture of the wife that in euery such case the woman hauing such a Ioynture c. shall not claime any Dower of the residue of any Hereditaments that were her Husbands by whom she had such a Ioynture or make any demand thereof against the Tenants of the said lands c. prouided that if any woman be lawfully expulsed or euicted from her said Ioynture or from any part thereof without fraud or Couen by lawfull entry action or discontinuance of her Husband that euery such woman shall be endowed of as much of the residue of her Husbands hereditaments as the Lands or Teneâents so euicted shall amount or extend vnto Prouided that nothing in this act extend to hurt or preiudice any woman heretofore married concerning her right title vse interest or possession which she may claime or pretend to haue for her Ioynture or Dower in any Lands c. of her late Husband being now disseised Prouided also that if any Wife haue or hereafter shall haue any Lands Tenements or Hereditaments vnto her giuen or assured after Marriage for terme of her life or otherwise in Ioynture except the assurance be made to her by act of Parliament and the Wife after that fortune to out-liue her husband in whose time the Ioynture was made that the Wife so ouer-liuing shall and may at her pleasure refuse the Lands appointed or assured in Ioynture and thereupon haue demand and take her Dower by Writt or otherwise according to the Common Law SECT XXXII The Exposition THe first obseruance is that no estate gained by matter of conclusion shall be déemed a purchasement within this Statute or bee auerred to bee made pro iunctura But the Statute must be intended of true and substantiall estates Therefore if an owner or tenant of certaine land make answer to Baron and Feme in an action of waste or if he pray ayde of them as if they were seised of the reuersion or if he bring a quod ei deforceat against them as if he had none other then a particular estate though these things were purposed for Ioynture yet they seclude not a Woman from right or demand of Dower Releases such as inure to make estates as where a ioynt-tenant releaseth to his Companion or such as goe to inlarge an estate as where he in reuersion releaseth to his particular Tenant may well make and accomplish a Ioynture but such Releases as worke no more but vn mitter le droit as where he that is disseised by Baron and Feme releaseth to the woman the disseiseresse c. are no purchase intended within this Statute for it is meant onely of such purchases as the wife hath by gift either of her husband or of some other body and not of such estates as shee hath gained by her owne wrong likewise is it of releases that goe by way of extinguishment as where a Disseisor infeoffeth Baron and Feme and the Disseisée releaseth to one of them this is alike auaileable to both but this release can make no Ioynture for there is no estate conueyed by it Per iusticiarios 6. Ed. 6. Brooke titles Dower a deuise of Land by the Husband to his Wife in his last will and testament is no barre of Dower for it is but a beneuolence and no Ioynture Yet in M. Brograues reading it was holden contrary 5. Eliz. Dyer 220. the case is that a man seised of Lands in taile and of some other in fée-simple holden in socage deuiseth the third part of all his Lands to his wife for her life in full recompence of all such Ioynture and Dower as she shall haue or may claime c. the Wife without any assignement or vser of Action of Dower entreth after his death into that which was holden in Fée-simple to a value of a third part of all and the opinion was she had determined her election and barred her selfe of Dower But this Case maketh nothing to the variance or question because the
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 âetter 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
companion diuorced for lands wherein shee claimeth inheritance or estate for life so if he haue aliened in sée âée tayle âr for life the lands which he had in fée simple âée âa le or for terme of life to a stranger she may as soone as she iâ diuorced bring a Writ called a ââi ante diuorâââm against the Alâenee And this Writ may be in the per cuâ post If shee dye before action commenced or before recouery her heire may haue a Writ called a surâuranâe diuortium and the Aunt and Néece may joyne in iâ But for her estate tayle her heire shal be put to a formidone But note Reader that it séemeth both the woman and her heire may enter after the Statute of 32. Hen. 8. and neuer bring Cui in vita nor sur cuim viâa c. for the opinion in Grenlies Case Sir Edw. Cokes 8. Rep. fol. 73. is that if the baron alien and after the wife is diuorced causa praecontract which dissolue the marriage à vinculoma rimonii the wife during the life of the husband or after his death may enter for the words of the Aâtare nâ fine feâffeinent c. during the Couerture betwéene them and although the Statutâ saith But that the same wife c. that is to be intended of her which was his wife at the time of the alienation c. Note that whereas West 2. cap. â giueth a cui in vita vpon recouery by default against the husband c. shée shall haue a cuââhâe diuortium vpon the like âeâouery by equity extension of the Statute and the processe is summons grand cape peâiâ cape I wil here set the bounds and limits of my third booke not because this sequell and consequence âiuorte I meane whereby the issue had is basâââââzed and the wââan restored to her goods and lands conforteth with the marriage so perfectly begun as I meant it for this is not the vntying of true wedlocke but rather a dissipation of marriage tainted at the beginning and in Christian Court adiudged to a ââllity as if it had neuer béene the Baron and Fâme that I hâââ spoken of all this while if they were not married in their infant loue and very first flowing age yet were they not ârostbitten or so blasted either of them when they were young but they might well haue frââtified neither was either of them a common Law breaker intangled with promise or praecontract and as for consanguinity or affinity there was no more betwixt them than is betweene Iack Flecher and his bolt You may imagine some matter by onely imagination perhaps more visible than it could haue béene being true whereupon a publike sentence of seperation being published a Thoro mensa but then there was a monition of chast liuing and prohibition to both the parties that neither of them should flââ to other marriage so long as both of them were liuing And the Author of seperation that is the party suing diuorce did put in sufficient caution to doe nothing contrary to this prohibition So that the holy liues of matrimony were not cleane broken and pulled asunder but within a yéere or two they were reconciled voluntarily of their âwne accord And soone after so I will make it hauing the Distaffe Spindle and Shéeres all in mine owne hand the husbands life was suddenly cut off or else the wiâe had béene sole executrix THE WOMANS LAWYER The fourth BOOKE PAle death equo pulsans pede pauperum tabernas regnumque âurres Death I say to whom the Poet did attribute so much power in this his verse Omnia sub leges mors vocat aââa suas hath called the husband hence left the house full of mourning and specially the wife cannot chuse but sorrow and lament If my âoure legged beast should fall into halues the one halfe starke dead without motion or spirit and the other halfe standing still vpright senting séeing féeling gazing must it not thinke you be wonderfully astonished If an Elephant in whom as some dâe write is vnderstanding of his countries spéech a wonderfull memorie and recenting of things past a great delight in loue and glorie besides prudence equitie and religion should haue his head cut off his body remaining still for all that vegetable and sensitiue would he not trow yée be excéeding sorrowfull for the forgoing such an ornament I dare be bold to giue a woman as much as Pliny gaue the Elephant She hath vnderstanding and spéech firme memorie loue naturall and kindnesse desire of glorie and reputation with the accomplishment of many meritorions vertues But alas when she hath lost her husband her head is cut off her intellectuall part ãâ¦ã gone the verie faculties of her soule are I will not s ãâ¦ã cleane taken away but they are all be ãâ¦ã ned di ãâ¦ã ed and dazled so that she cannot thinke or remember when to take rest or refâction for her weake body And though her spirits and naturall moysture being inwardly exhausted with sorrow and extreme griefe she be called and inforced to seeke restauration by such aliments as life is prolonged by yet is she nothing desirous of life hauing lost a moytie of herselfe yea the principall maytie now best prised and estéemed but neuer best loued Time must play the Physitian and I will helpe him a little Why mourne you so you that be widowes Consider how long you haue beene in subiection vnder the predeminance of parents of your husbands now you be frée in libertie frée propriiâuris at yoâr owne Law you may see num cap. â0 That maidens and wiues vowes made vpon their soules to the Lord himselfe of heauen and earth were all disauowable and infringible by their parents or husbands vnlesse they ratified and allowed them either expresse or by silence at the day when such vowes came first to their notice and knowledge But the vow of a widow or of a woman diuorced no man had power to disallow of for her estate was free from controlment Must a woman néeds wéepe thus for the losse of her Buckler Shield and defence in the person of him with whom she held daily commutation of all offices proceeding from loue and superlatiue kindnesse Let her learne to cast her whole loue and deuotion on him that is better able to loue and defend her than all the men in the world Him I meane that hath forbiddân to afflict widdowes or orphans with promise to heare their cries and vindicate their wrongs by killing them by the sword and making the wiues widdowes and their children fatherlesse of them which breake this Commandement Exod. cap. 22. Then because a sober carefulnesse and moderate sedulitie in businesse of profit or disprofit doth mitigate greatly the sorrowing for such actions as opinion or fancie makes thus grieuous let her looke to her affaires as cause and need requireth SECT I. Of Executorship and Administration SHe is not made an Executor because the office is troublesome let her take
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 wiâe dowable Yet marke this case âbid a man seised c. in fée simple dies his sonne entreth and he dies the sons sonne enters and endowes his Aylâsâe she dies a stranger abateth In this case it is cleere the sons wiâe 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 betwiât this casâ and the other they say is great oddes for here the Grandmother endowed was in from her husââââ and she sonnes possession and estate howsoeuer to his ââire in whom the fée rested it were not destroyed but hee might bring a Mordancester yet to his wiâe it was cleane adnihilate whereas in the first case the Fée and Francktenâment not a whit impeached by the life of her which surrendred were perfectly conâââned in the Baron to whom the Surrender was made And if a râuersion be granted to I. S. of certaine lands per faiâ in pais in which lands I. T. and his wiâe haue âstate 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 wiâe suruiue and will vndââ the Surrendâr whereas in our first case the Surrender is no way auoydable but the heires wife shall pay rent according to her portion per Finch âbââ 14. Ed. 4. fol. 6. Tenant by the courtesâe 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 curteââe re-entred hee in the reuersion died his wife waââarred of Dower for the Surrânder 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 âut by ãâã 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 ãâã of theâr 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 ãâã 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 âe 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 diâd 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 doubtâulnesse a layes gentes But where a lease was made to Baron for life the reuersâon to the Lessor or remainder to a stranger there in action of Dower ne vnques âeiââ âec 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 âoyntly with â N. who is yet aliue âudgement si Dower c. and he was not compelled to shew whether he pleaded as âertenant or as Pernor of the rent the Demandant replyed that I. N. had released all his right in the rent ââ her husband But becauss she shewed not the Déed of âââease shee pleaded by aduisement of the Câurt seisie que Dower la puit Quaere of the generall âssue against the ââeciall matter 11. H. 4. 88. A woman shall haue Dower of rent ãâã chased by her husband in fée though hee die before dââ of payment And if it be pleaded against her Ne vnques fââââ que Dower c. she shall not shew the speciall matter but say seisi que Dower la puit and shew the matter iââââdence 22. H. 6. 4â per Newton In action of Dower the âânant plead Ioynt estate to the Baron and I. N. in plein vy whose estate he hath the demandant shall not say âââââ que dower c. vnlesse shee shew how or trauerse that I. N. tooke nothing by she Feoâment â9 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 sâns câo 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 gâââ all should be entred 10. H. 6. 17. It is not a good plea against Dower âo say the Baron had nothing but for terme of his life for this amounts to the generall ãâã Ne vnques seisi que Dower la puit But to say the Baron had nothing but ãâã ment with A. in fée and that A. suruiued c. This by âââ Fée simple confessed makes a good plea. 14. H. 6. 5 6. In action of Dower the tenant said âe 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 issâât seisi c. and she prââââ to be endowed per Martiâ the replication is not good âââ this might âe before the Disseisin and before couerture too and if so then the Baron Ne vnques seisi que Dower la puââ That yée may yet perceiue further how ãâã a point it is to take or relinquish this plea rightly marââ well the case 30. H. 8. Dyer fol. 41. In a Writ of Dower the issue was Ne vnques
the husbands Ancestors that they should doe nothing preiudiciall to the heires But in this case there came no Ioynture from the husband but contrariwise the wife had made a Ioynture to her husband and after his decease to bridle the woman to doe what shée listed with her owne inheritance were against all reason and as farre from any affinitie with 11. H. 7. as it should be when a woman seised in Fée simple giues lands to the father of him whom she intends to marrie to the intent that he regrant this land to his sonne and her after marriage with a remainder in taile c. to restraine her when after marriage regranting and death of the husband she should leuie a fine to other vses or suffer a recouerie which case though it be cleane out of the Statute yet it is within the words for the âoynture was made by the Barons Ancestor though not originally c. And so note those two cases of Plowd one is taken to be within the intent though out of the letter and the other though within the letter yet out of the intent and yet both constructions most reasonable and iust And see Sir George Brownes case Sir Edw. Cokes â Râp that a lease made by a woinaâ tânant in taâle of the gift of her husband c. make a lease for thrée liâsâ that is not warranted by the Statute of 32. H. 8 and although the lease be without clause of Warrantie yet it is within the Statute of 11. H. 7. for those words in the act with warrantie refer to releases and confirmations which makes no discontinuance without warrantie for the inteât of the Act is to proâibit not onely euerie barre but âueriâ manner of discontinuance which puts the heire to his reall action And in that case it was resolued that if the issue in taile had before the womans for feiture granted his remainder onely in that case hee by the exâresse letter of the Act shall enter vpon the discontinuance of the woman for his act doth not biâde his estate But when the issue in taile leuie a fine with praclamation in the life of the woman tenant in taile c. that shall binde the taile and therefore there the Conusée shall enter for hée which hath the immediate title interest or inheritance at the time of the for feiture shall enter by that Statute And it was said by Anderson Chiefe Iustice of the Common Pleas that where it was inâented for to makâ euaâââne out of the Statute that if such a woman tenant in taile accepts a fine sur conusans de droit come câo c. and by grant and renders the land for a thâusand yeares that is an alienâtion within the intention of the Act although the words of the Act are discontinuance aliânation c. and of that opinion was Wâay Chiefe Iustice and Dyer and all the Court of Commoâ Pleas was of the same opinion 18. Eliz. And in Sir Edw. âokes 3. Rep. Lincolne College case It was resolued that if the heire in taile conuey the lands to others and the woman tenant in taile release or maks conâârânation with waârantie which is not but to perfect and corroborate the estate which the heire in taile hath made such a warrantie is not restrained by the said Act for that which the woman hath done is for the benefit of the heire and not for his preiudice and by his aââent And she and the heirâââight haue iâyned a fine and so barre the estate taile not with standing the Statute of 11. H. 7. therefore such Acts by the woman shall not be void to grant the hâire or any else any aduantage by the Statute of 11. H. 7. And note the opinion of Sir Edw. Coke in the said case of Lincolne College that the sonne borne after shall by this Statute out the daughter who entred for forfeiture and ââewââ other opinions concurring yââ in Dyer 21. Eliz. 362. the heire in such a case is said to be in by purchass And note Reader that it hath âââne adiudged that although the Déed of conueyance and assurance of the womans Ioynture or estate dâtherpresse her marriage portion as well as her marriage to âe the cause and consideration of such Ioynâurâ or âstatâ yet if the estate prââéds from the husband or his Ancestors she is within the said âtatute of 11. H. 7. and sâe Villers and Beauâââritâ case 4. Mar. 146. But âââuârâ if the portion money appeare to be the full price of the land if that differ not the case Sée Sir Edw. Cokes Comment vpon Littleton 365. These âases put a man seised in Fee leuie a fine to the vse of himselfe for life and after to the vse of his wife and of the heires males of her body by him begotten and had issue male and after he and his wife leuied a fine and suffered a common recouerie the husband and the wife died and the issue male entred by the Statute of 11. H. 7. and the entrie was âolden lawfull and yet this caâe is out of the letter of the Statute for she neither leuied the fine c. being sale or with any other saue her husband who made the Ioââture Sed qui âaeret iâ littera âaeret in cortice and therefore this case being within the ãâã of the Statute is within the remedy But ãâã ãâã that this case was deâyed for Law by the Rââârder oâ London in his argument in the case hereunder ãâã betweene Copland and Pyat Another case in Sir ãâã Cokes Commentaries vpon Littleton which agrée with Eiston and Studs case in Plowd is A man seised of land âure vâoris and they two leuie a fine and the ãâã grant and render the land to the hâsband and wife in speciall taile the remainder to the right heires of the wiââ they haue issue the husband dieth the wife taketh another husband and they two leuie a ââne in Fée the issue entreth this is within the letter of the Statute and yet is out of the meaning because the state of the land ãâã from the wife so as it was the purchase of the husband in letter and not in meaning But where the woman in âânant for life by the gift or conueyance of any other âââ alienation with Warrantie shall binde the heire at this day The case of Copland and Pyaâ adiudged Hillar 7. Car. in Banââ Regis in effect was thus I. S. his sonne was to marrie to the daughter ââ I. N. And the Deed ãâã that I. N. for thâ consideration of foure hundred ãâã paid by I. S. and of a marriage c and for the ãâã of the bloââ of I. N. coâenants to stand seised to the vse of the sonne ââ I. S. and his daughter whom the ãâã of I. S. should marrie ââtaile the remainder to another ãâã of I. N. thâ remainder to the hâires of I. N. ãâã dieth hauing issue and the wife alieneth by ãâã ãâã ãâã was resolued that it was not within
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 desâowred 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 famlâar 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 kinsâolke 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 Soâage 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 âustody ând 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 conââted 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 Quââe 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 tâe Common law haue authority to heare and determine the offen âs Moreouer if any woman child or maidân 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 enâoy all such lands tenements and her editaments as shee had in possession reuersion or reââânder at the time of assent during the lâte of such peâson so contracting matrimâny and after her ââcease so contracting c. then the said lands shalldescen reâeââ remaine and âome 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 beenâmâdeâ But thâs At extenâeth not âo diâââsh any libeâty 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 verdiât was thus in effect that William Wilcokes married the daughter and heâre 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 âee 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 Marâha abiding with Raph Râtclâffe and his wife being aboue fourtéene and vnder sixtéene yéeres of age with Raph Râtâlâffe his consent and of her owne accord departs eight miles off from them where six houres after shee was married to Edward Raâcliffâ who enters and made the Plaintisâe his lease And the issue being whether Elizabeth Ratcliffe the wife of Raph Ratcliffe had the custody of Martha the wife of Edward Râtcliffe the lessor at the time of their contract and marriage all the Iudges and Coârt of Kings Bench resolued that Elizâbeth 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
common so in that which followeth they are like jointenants If two sisters enter into their deceased fathers lands and every of them having issue a sonne dieth before partition so that one moitie descendeth to one sonne and one moitie to another which sons enter and occupy the lands in common if they bee now disfeised they shall have but one assise and not severall assises Because although they come in here by divers discents yet still they are partners and that not onely in regard of the seisin possession which their mothers had but rather in respect of the estate which descended to their mothers from the common ancestors the grandfather to whom they are but one heire so that of a disseisin before partition they shal have but one assise SECT XVI Difference of partners from both jointenants and tenants in Common BY Bryan 10. Ed. 4 fo 3. one copartner may in feoffe another copartner for though their possession bee joint yet their right and interest is severed so that if one sister die the other shall claime a moitie by discent from her and not the intire inheritance from the Common auncestors Partners in this therefore are like tenants in Common whose title and right are separated and therefore they may infeoffe one another But it is otherwise with jointenants whose right is intire and goeth with the possession by survivour Againe partners may release the one unto the other and in this they are like jointenants only for if one tenant in Common release to his fellow his moitie passeth not because that hee to whom the release is made hath in the franck tenemeÌt of this moitie no possession But partners whose right is from one roote have a more co ãâ¦ã ect possession then tenants in common and may release one unto another To conclude this point partners differ from both jointenants and tenants in common in this that partners are and alwaies were compellable to make partition so was neyther of the other two before the Statute 31. H. 8. cap. 1. which ordaineth that jointenants tenants in common of inheritance which in England or Wales in the right of themselves or their wives shal be compellable by writ de participatione to be devised in Chancery to make partition And that after partition they and their heires shall have mutuall aid one of another for the deraigning of a warranty peramount to recover pro rata as is used betwixt partners at the common law Afterward 32. H. 8. cap. 32 it is ordeined that if any have equal estate with others or in common jointly for tearme of life or for yeares or unequal estate with such as have an adhering inheritance they shall likewise be coÌpellable to make partition Provided that this shall not bee prejudiciall to any person other then the parties to it their executors or assignes SECT XVII Of the Nuper obiit BVt ere wee goe any further in partition let us sée what actions may lie betwixt partners for their inheritance before they have divided it And first of the Nuper obiit This is a writ and commandement of the King to the sheriffe to summon a coheir to be before the Kings iustices at a day certaine to shew why she or he for it lieth betwixt parcenersin Gavell kind also deforceth the plaintiffe coheire from her reasonable part belonging to her of the inheritance of I. S. their grandfather father uncle brother grandmother aunt sister or cousin as the case requireth whose heires they be qui Nuper obiit ut dicitur This writ lieth for lands holden in fée simple onely betwixt coheires where one or more of them deforceth or holdeth out his or their fellow coheire or coheire c. It must be brought in the name of all those which be deforced though in verity there be but one that sueth And this 1. may haue a writ of summoneas ad sequenduÌ against her negligent copartners who if they appeare not the sole plaintiffe shall be receiued to sue for her portion against the deforcer If after the ancestors death a kinsman enter claiming by descent the Nuper obiit lieth not against him but after entry and ouster an assise of novell disseisin or a writ of right for though coheires may haue Amordancester against a stranger yet can they not haue it against one of their owne parenteale priuy in blood and claiming by the same descent and where a writ of right sometimes is betwéene sisters as where one is infeoffed by déed and another claimeth by discent battaile lieth not nor the grand assise but an inquest in licu thereof Thus far V. N. B. The New Na. Bre. not disagréeing saith further That if one sister deforce another of the land whereof her ancestor died seised in estate of fée taile the remedy must bee by forme done and not by Nuper obiit a Nuper obiit may bée brought of the seisin of the aile besaile or the tresaile and if it be brought of the seisin of the grandfather Darreigne seisin in the father is no good plea without shewing that hée died seised This writ may be brought by the aunt against her sister and niece or by the aunt and niece against another sister niece or by one sister against another that is but of the halfe blood But if the father giue part of his land in francke mariage to one daughter and dye seized c. the donée in francke mariage shall not haue a Nuper obiit against her sister for her part in residue of her fathers fée simple laÌd unles she put her land in hotch pot which was given in francke mariage A nuper obiit must be brought by a coheire deforced against all the other coparceners though some of them haue nothing to doe in the demand A villein and his wife shal not haue a Nuper obiit against the coparceners of his wife for hee is not infranchised by marriage with one of those seignioresses to whom hee was bound If a coparcener be deforced by a coparcener and by astranger the deforced may haue a Nuper obiit against her coparcener and iointenancie abateth not the writ no more shall non-tenure of parcell of the thing demanded by rule of the register If two coparceners enter after the ancestors death and deforcing a third parcener doe afterward make partition and then one of them alieneth her portion in fée the deforced partner may by a Nuper obiit against her two coheires notwithstanding the alination recouer a third part of that which is not aliened and a third part of that which is aliened by a mortdancester or writ of Aile as the case lieth and in her owne name and in the name of her two coparceners against the alienââ If one coparcener infeoffe a stranger in fee and take backe an estate in fee or for life it seemeth a Nuper obiit is maintenable still against her so long as she disclaime not in the blood c. But 21. Ed. 3. and
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 parâe 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 coÌmon ancestor there battail or grand assise voucher or view lie not neither is noÌtenure 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 laÌds 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.
by the better opinion 3. Ed. 4. â 9. 10. such a partition is good enough if it be vpon the ground but see the bookes of 2. Eliz. Dyer 179. 18. Eliz. Dyer 350. There is also a prety case of a mill parted betwéen two brethren ioynt-tenants by an award of a third that one should repaire the mill on the one side of a certaine poste and the other on the other side imperpetuum c. which was awarded a good partition without any writing 47. Ed. 3. 24. â9 Assi p. 1. It hath béene also much doubted whether iudgement may be giuen to hold in seuerall when in assise of nouell disseisin brought by one ioynt-tenant or tenant in common against another it is found for the plaintiffe as it is cleare it may be if the action were betwixt partners 7. assi p. 10. Herle would not haue giuen iudgement to hold in seueraltie had the parties beéne ioynt-tenants But 10. Assi p. 17. such a iudgement is giuen and no bones made of it yet 28. assi p. 35. R. Thorp in like case would giue no iudgement but generally to hold a moity per my per tont though he were besought in the Country at the assises at West again and again for Iudgement to hold seuerally 7. H. 6. fo 4. Weston glanceth on such a iudgement and Strange denyeth that it may be for it destroyeth the suruiuor But Chine saith that it may be and hath béen often the reason why the Law was more scrupulous in those points betwéene tenants in Common and ioynt-tenants then betwéen partners was as I guesse because coheyres haue their estate by course of law and the other are in either by the act of some body which made the estate or by their own doing so that though for necessity they may alien that which belongeth to them or charge it yet otherwise the Contract made by consent may not without manifest assent be vndone Bract. saith fo 206. sufficit femel voluisse nec dissoluitur mutua voluntas nisi mutua voluntare contraria It is perceiued how the law was before the Statutes 31. 32. H. 8. a summarie of which is set downe already now that it may the better in part be vnderstood how the law hath béene taken since those Statutes obserue the causes following out of my Lord Dyers Reports The puisne of thrée Coparceners of a reuersion vpon estate for life gauel-kind alieneth by a fine the lessée dieth the eldest parcener entreth into all his Inheritance the middlemost and the Alienée bring a ioynt Writt of partition vpon the Statute the eldest pleadeth the generall issue non tenent insimul pro indiviso the case appearing by the euidence it was holden vpon a demurrer cleere that the action was not maintainable for the one ought to haue her Writt by the Common Law and the other by the statute but ioyne they could not Quaere saith Dier if the entry of the eldest giue seisin to the rest that it should giue it to the stranger were hard 2. 3. Phi. Ma. fol. 12. 8. One of three Coparceners alieneth that which to her belongeth one of the other two bringeth a Writt of partition against her fellow parcener and the alienée vpon the statute because in this case she might haue had a Writ by the Common Law this Writ vpon the statute abated But if the two Coparceners had ioyned against the alienée and the one had beene at non-suite she should haue been summoned and seuered and her part beene diuided as well as the others quaere by the Register when the husband vnto one of thrée partners purchaseth one part c. he and his wife may haue a speciall Writt against the third euen so it séemeth if one of thrée Coparceners purchase a fellowes part the purchaser may haue a speciall writt against the third parcener 7. ct 8. Eliz. 243. in Dyer by Anthony Browne and Dyer ioint-tenants cannot at this day make partition by paroll out of the countie where the land lieth for 31. and 32. c. change not the law in this point But the partition must bee by Writt out of Chancery Humfrey Browne and Weston 2. Eliza. Dier 179. a man deuised socage lands to his two daughters and to the heyres of their two bodies loyally engendred and died the two daughters tooke husbands and at full age c. partition was made by paroll one husband had issue by his Wife and shée dyed By the opinion of the whole Court the other Husband and his wife shall haue the whole Land by suruiuor for partition by word onely betwixt ioint-tenants or tenants in Common of estate of Inheritance is voyd yet of a tearme peraduenture saith Dier such a partition is good enough fo 350. in Dier If ye doubt now of any thing somthing more then you did before yée are the better learned and warned to worke surely The manner of partition by Writ c. THe Iudgment vpon a writ de partit faciend if that diuision be made betwéene the parties and that the Viscount in proper person going to the lands and tenements by the oath of 12. loyall men of his Countie make the partition deliuering one part to the plaintiffe or to one of the plaintiffes and another part to another parcener c. making no mention in the iudgement more of the eldest then the youngest Sister The Sheriffe must giue notice to the Iustices of the partition which he hath made aswell vnder the seale of the 12. men as vnder his owne seale And in this partition there is no primer election giuen to any but the second may haue liuery before the eldest or the younger before either of them euen as it pleaseth the Sheriffe And this difference is betweene partition by Writ here and the other partition which is by agreement In the first the Viscount shall make to euery partner her distinct share but in the other they may agrée that one shall hold in seueraltie and the rest shall occupie that which remaineth in common Thus farre Littleton Bractons partition THere is in Bracton a large discourse of partition which I sée not why for the forme at this day should not be good if not of all other the best And this partition is by commission to men either chosen by the parties or appointed by the King as Iustices or extenders with commandement to the Sheriffe to make them come before those Commissioners or extenders tam milites quam alios legales homines nulla affinitate attingentes per quos negotium melius expedire poterit He hath also a precept to the Coroners where the Sheriffe is negligent Tepidus remissus in executione preceptorum domini Regis with a rule for valuation of an aduowsan viz. that a marke annuall to the parson shall be rated a shilling to the parcener to whom the aduowsan shall be alotted And when the extent and diuision is made euery part being written by
setting it abroach but the curious learning w. is that of spirituall kindred caused either by holy Baptisme or by the blessed Chrisme and this had power impediendi Matrimonium contrahendum dirimendâ matrimonium contractum yea this was such a matter that 39. Ed. 3. fo 32. Bastardie is pleaded against the Plaintiffe in assise and the cause was that the father married a woman before which Marriage he had christned âââ which was his Wiues cousin and for this cause after and of them was dead Diuorce was sued and Iudgement thereof giuen in the spirituall Court though indéed by Iustice Thorpe and the greatest opinion in the temporall Court the Issue could not be bastardized vnlesse the Parents had beene called and the Nuptials destroyed by sentence which was now impossible to doe for death had determined them Out of question therefore if the parties had liued a little or no Kindred had marred great good acquaintance But howsoeuer by those dayes secular Marriage was forbidden in spirituall men and secular men were straightly prohibited by spirituall Spirituall Kindred the Statutes afore-going haue now welcommââ Wedlocke cleane out of the Popes stockes And the 18. of Leuiticus alone doth in a manner sufficiently demonstrate with what persons Women are restricted to marry SECT XXX With what persons Women may not marry SUch are her Grand-father her Father her Sonnes Sonne c. her Brother though it be but the one part her Fathers or Mothers Brother her Brothers or Sisters Sonne or her Sonnes Sonne Brothers or Sisters Children saith Ramus in his Commentaries of Christian Religion lib. 2. ca. 9. are forbiden to inter-marry ed more non lege Diuina vel Romanâ Christians he saith further which haue abrogated the Law 25. of Deuteronomy whereby a Brother might bee challenged to raise vp the house of his deceased brother haue also constituted a prohibition within certaine degrées of affinity and therefore a man may not marry with the widdow of his Grandfather or of his Father or with the widdow of his owne Sonne or of his Sonnes Sonne or with the widdow of his Brother or of his Brothers Son or of his Brothers Sonnes Sonne c. Nor with the Grand-mother Mother Daughter Neece great Aunt Aunt or Sister of his deceased wife SECT XXXII Of Wooing I Am affraid my feminine acquaintance will say I writ as I liue I talke much of Marriage but I came not forward stay a while yet I pray you I know many an honest woman more repenting her hastie Marriage ere she was wâoed then all the other sinnes that euer she committed It were good reason we speake a little of wooing but to handle that matter per genus species would take vp as much roome as the Indian figge-tree euery thrid whereof when it falleth to the ground groweth to a body I will slip by it onely obseruing that the giuing of gloues rings bracelets chains or any thing that is ex sponsalioruÌ largitate as a man would say of loues liberality or as a pledge of future Marriage betwixt them that are promised haue a condition silent for the most part annexed vnto them that if Matrimony doe not insue the things may be demanded backe and recouered yet there is a distinction of like for I haue authoritie in it Si sponsus dedit aliquid aliquo casu impediuntur nuptiae donatio penitus rescinditur nisi osculum intervenerit marry if he had a kisse for his money then the one halfe of that which was giuen is the womans owne good And she hath yet more fauor in the case for whatsoeuer shee gaue were there kissing or no kissing betwixt them she may aske all and haue all againe Quaere of this in the Consistorie SECT XXXII The Condiments of Loue. THere are with vs as wel as with the Ciuilians many kinds of Donations propter nuptias and some ex sponsaliorum largitate Good meats are the better for good sauce venison craueth wine and Wedlocke hath certaine Condiments which come best in season in the wooing time and serue as Breton saith pour doner fees come melier talent d'aymer Matrimonie A husband per se is a desirable thing but Donements or Feoffements c. better the stomacke though of it selfe it be good and eager And because the first Marriage made in Paradice if you marke it well had a Iointure I cannot but allow the circumspection which is had SECT XXXIII Of Franke Marriage IT was as I suppose more frequent in the old time that men gaue Lands with their Daughters in Marriage then it was at this day But now as then if a man liberally and freely without money or other considerations saue onely loue and naturall affection giue Lands of Tenements to another man with a woman which is Daughter Sister or Cousin to the Donor in Franke Marriage whether it bee tempore Matrimonij vel ante vel post this word Franke Marriage maketh an estate of Inheritance viz. to the Donees and the heyres of their two bodies and they shall hold quite of all manner of seruices except the pure fealtie till the fourth degree bee past But the Issue in the fift degree and his Descendant shall hold of the Donor and his Heyres as they hold ouer SECT XXXIV The Gift must bee Franke. PEr Rich. 16. assi p. 66. if a man giue land in Franke Marriage rendring a rent the reseruation is voyde till the fourth degree be past per Martine Iustice 4. H 6. 22. such a reseruation is méerely voyde for it is contrary to the nature of Franke Marriage By the old tenures such a reseruation is good and the Donée shall hold in Common estate taile by Brooke in his Abridgement it cannot be any estate taile for want of the parol heyres And where such a gift is made to a woman not cousin to the Donor there passeth but estate for life for it is by a maxime or ground that Franke Marriage maketh inheritance and this case is out of the principall By Bracton fo 28. 29. Si terra detur in maritagium viro cum vxore eorum haeredibus pro homagio seruitio viri licet detur in liberum maritagium qua sunt sibi ad inuicem aduersantia c. tunc prefe ãâ¦ã um erit ac si donatio fieret taiâ viro quam vxori he deliuereth the like learning before fo 22. and this rule withall âx tacita conditione pacta incontinenti opposita insunt contractibus legem dant eis illos infirmant SECT XXXII The gift must be to a Woman c. IT was deliuered for a Law in tempore H. 8. that Lands cannot be giuen to a man in Frank Marriage though he be Cousin to the Donor SECT XXXVI It may be tempore Matrimonij ante vel post WHat if after the gift made the man refuse to marry the Cousin of the Donor marry else-where If two Donées in taile after the Common forme be diuorced vpon a pre-contract made by
the 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
an issue of ne vnques accople in loyall Matrimonie and that must be tried by the Bishop Therefore for the better direction of Brides take the case verbatim as it is propounded with the solution 22. Eliz. Dyer 369. A woman of full age contracts Matrimonie by words of the present instant with a young man of twelue yeares age and this being solemnized in face of the Church with consummation after a sort the young man being put to bed to her died vnder age quaere if the Ordinarie ought to certifie an accomplement in loyall Matrimonie Solutio doctorum quindecem We be all of opinion that she is to be taken for a loyall wife coupled in loyall Matrimony and in question of Dower that the Bishop ought so to certifie for albeit that in other regards these were but Sponsalia de futuro yet in case of Dower and the priuiledge thereof they are extended to Matrimony consummate Et iudicium datum pro dote heere ye say was the Law as cleere as Christall on your side when supper is done dance a while leaue out the long measures till you be in bed get you there quickly and pay the Minstrels tomorrow SECT II. Baron and Feme one person NOw that Matrimony is celebrated and consummate here is so strait a fellowship or rather identitie of person that if a feoffement bee made to a man and his wife iointly with I. S. the Baron Feme take but a moity and in a feoffement to Baron and Feme and I. S. and T. K. they take but a third part and where a feoffement is made to a man and his wife ioyntly they take not seuerall moities as other ioynt Feoffees doe but the Baron and feme take intirely together and in Law they are said to be seised by intierties and there is no halfing betwixt them For if the Baron charge the whole land or part of it with a rent the wife shall hold it discharged after his death and if he sell all or part and die the wife shall recouer all by Writt of cui in vita See 40. assi pla 7. If a Villeine and his Wife purchase land ioyntly the Lord enter and the Villeine die the Feme or her Heyre shall haue the whole Land Eadem lex videtur where the Husband ioynt-purchaser is an Alien borne or attaint in premunire or of fellonie But the booke of Assises goeth not so farre The videtur is Parliament 43. in Brooke where likewise ye shall see it was holden 5. H 7. fo 31. that if T. infeoffe W. and A. his wife afterward it is by Parliament enacted that all estates made by T. to W. shall bée voyde that the feoffement shall be voyd as well towards the wife as towards the Husband because they are but one person in Law and the Feme taketh nothing but by agréement of the husband And vpon the like reason is the case Dyer 3. Eliz. fo 196. Sir Rob. Catline purchase land held in capite to him and his wife and his heyres without licence and the Queene pardons all offences pro quacunque alienatione sibi facta and doth not speake of the wife in the pardon and yet it was allowed in the Exchequer But if the feoffement had beene to W. and I. S. this I. S. should haue held his moity notwithstanding the Parliaments decrée and this seemeth to bee the better opinion though there were in manner equall number to maintaine That if the feoffement were before couerture the Parliament should voyd it for a moity but if it were after couerture it should voyde for no part against the Feme when shee was discouerte leauing to Parliaments their omnipotencie it is cléere the husband cannot seuer the Ioynture betwixt him and his wife as an other Ioynt-tenant may if the Ioynture were made during Couerture because there is then no moity Otherwise it is if the Ioynture were made before the Marriage And if lands be giuen to a man and his wife habendum one moity to the husband and habendum the other moity to the wife now they bee seised of moities as Tenants in Commom But for this I finde no other authority then the opinion of Knightly in Dyer 28. H. 8. 10. b. SECT III. Baron feme cannot infeoffe one another MOreouer this Conglutination of persons in Baron and feme forbiddeth all manner of feoffing or giuing by the one vnto the other for a man cannot giue any thing vnto himselfe therefore 27. H. 8. fo 27. In action of debt vpon an obligation to performe couenants where it passed for the Plaintiffe because the Defendant had not paid annually seauen pound to his wife it is alleaged in arest of Iudgement that the Couenant was impossible in it selfe c. But Chomeley Shelley and Fitzherbert moued the husband to agrée with the Plaintiffe Car le exception sert de riens for although in strict intelligence of Law money and Chattels paid deliuered or giuen to the wife by the husband are still his owne yet a man may giue his wife a paire of hose saith the booke as a man is bound by honesty so he may be bound by red waxe and parchment to finde his wife sustenance and to bee bound to giue her money for her securitie is all one from this Lanthorne I thinke he tooke his light which bound a gentleman of mine acquaintance to giue his Wife the Obligée his Daughter yearely such and so many gâwnes Hertles c. And the meaning must bee taken and obserued in the booke of 4. H. 7. fo 4. is another memorable Cause A man was bound to I. S. by obligation to make a sure estate to a woman in certaine tenements within three moneths after his fathers death The Obligor marrieth the woman in his fathers life time and the Matrimony continueth till the three moneths be expired the obligation is forfeited Vauisor said the husband might well haue performed the condition by fine leuied vpon a writt of Couenant brought by a stranger against the Baron and feme Fisher said he might haue performed it by making a Lease vnto a stranger the remainder to the wife quaere of that Vauisors performance had beene good I thinke if there had beene in the beginning a full purpose and intent of intermarriage betwixt the woman and the Obligor But that appeares not and therefore being that hee hath brought himselfe to an impossibility of performance either of words or meaning the Obligée must néeds be allowed the aduantage If the obligation had béene to the woman her selfe the condition by inter-marriage had béene dispensed with for where the Obligee is a cause that the condition cannot be performed the not performing is without penalitie to the Obligor as if in the old dayes I had béene bound to an Abbot that A. should infeoffe him c. before Christmas if A. had presently entred into Religion my bond had presently beene forfeited not so If A. had béene professed vnder the obedience
NOw let vs looke backe a little and see what shall become of the dealings which Mistris Titus had whilest shee was Sempronia an agent in the world widdow or maide sola and vncouert SECT XII Of Infancie TO debate matters of infancie would aske a whole volume perse But breefly know that all deeds gifts grants c. made by an Infant which take not effect by deliuery of the infant be absolutely void By matters in fait or writing which take effect by hand and deliuery are onely voydable by the infant or by them which haue the infants estate Out of his rule are excepted acts apparently of necessity or profit to the infant or which can be no disprofit to him for manger boire necessarie apparell and schooling the obligation or couenant of an Infant is good Also an Infants presentation to a Church is good enough for danger of lapse and because it is no matter of emolument and things done by vertue of office as giuing of goods or payment of debts by an infant Executrix are good so are acts which concerne the infants proper purchace As if estate be made to an Infant of two acres to haue and to hold the one for life the other in fee a feoffement of one acre made by the Infant is a good election And it is said fo 104. in Dyer that an Infant is bound by all Statute Lawes if there be not an expresse exemption Now whatsoeuer a Feme sole might auoyd by infancie she and her husband may auoid it by entry or action after Marriage if they take the time else not For example An infant feme sole hath title to enter for Mortmaine within a yeare after alienation or title to enter into the purchase of her villeine before his alienation if by lachesse she let slip her aduantage as she may doe notwithstanding her infancie no wise husband that she taketh afterward can mend it for here was but a title to that which neither she nor her auncestor euer had But if an infant Feme sole haue a right as vpon disseisin done to her or her auncestor she may alwayes enter whilst she is sole notwithstanding any descent during infancie And so may her husband which marrieth her after the descent Littl. teacheth vs fo 95. Chap. Descents that lachesse of a husband which suffers descent shall not toll the entry of a Feme couert or her heyres after Marriage dissolued But there is an addition to Littleton that it is otherwise where a title is already giuen to a Feme sole which taketh a husband and suffers descent c. for it shall now be accounted the Womans folly that shee would take such a husband Howsoeuer it be Law or howsoeuer it be vnderstood the Case before must néeds be good Law for an infant Feme hath as much fauor as an infant Male And taking of an husband cannot toll an entry which was saued to a Feme sole by infancie neither doe I perceiue how the husbands lachesse at the time of descent can toll the Wiues Infancie to make any imputation of folly where infancie might excuse it By Parkins If a man lease two acres to me for life the remainder of one of these acres to a Feme sole which afterwards takes a husband and then the Lessée dying the Baron entreth into one acre and thereof enfeoffes a stranger by mets and bonds the wife shall not after his death enter and if Baron and Feme make a gift in taile or lease for life of the wiues Land rendring rent so soone as the Baron dies the reuersion is onely in the wife who by accepting the rent shall bind her selfe and her heyres But if shée will refuse the rent because she was vnder age at time of the feoffement it séemes she may be receiued to a dum fuit Infra etatem wherby she affirmes the feoffement to be her owne If this be infallible Law I doubt not then if a Feme infant disseised doe marry and during her infancie the husband suffereth a descent but her entry is saued and she may enter after Couerture dissolued if not before But Fitzherbert concludeth with a quaere and so must I. SECT XIII Acts c. of a Feme sole being full Age. VNderstand now by a Feme sole a Woman of sull age If a Feme sole become indebted and marry the Baron and Feme may be sued for this debt during life of the Feme If the Creditor sue the recouer the Baron shall be charged with it after the wiues death aliter non A Feme sole Lessée for life rendring rent takes a husband the rent is arrere the wife dieth though here be no recouery in the wiues life time yet because the Baron tooke the profit he is still chargeable in a Writt of debt for the rent for quisentit commodum sentire debet onus If a Feme endowed of rent take a husband and die the husband shall haue action of debt for the rent arere for it was a duty accrued during couerture But if a man be bound to a Feme sole and she takes a husband and the day of payment comes during Couerture now if she die her husband cannot haue an action of debt vpon the obligation for this was a thing in action before marriage Nat. bre fol. 120. 121. And agréeing to that is 39. H. 6. 27. Br. Testaments 10. but by that booke the Wife may make the Baron her Executor and so saith the Booke of 12. Hen. 7. 22. If a Feme sole being made Executrix take a husband she remaine still a disposer of the Testators goods to his vse and after payment of his debts she may deliuer Legacies and after all that giue the rest for Gods sake maugre le test sa Baron But vpon such a giuing of goods or deliuering of Legacies before payment of debts the husband may haue an action of trespasse for gift before payment is not a right administration but a deuastation of the Testators goods Par. fo 2. and 18. H. 6. A feme sole seised of a carue of land grants out of it a rent Charge by déed and deliuers this deed to a stranger with Condition to deliuer it to the grantée as her déed if he goe to Rome and returne before Easter the Woman takes a husband the grantée performes the Condition the déed is deliuered to him he hath a good rent Charge yet the Baron was seised of the land before the grant tooke effect what though if the Feme had infeoffed a stranger of the land he should haue held it charged for to some intent the grant hath relation from deliuery of the deed as an escrow though for the rent the grantée cannot haue that but for the dayes incurring after the darraine deliuery and if the Feme at the deliuery of the escrow had béene marryed all had béene voyd Par. fo 2. 3. and fo 29. some hath maintained he saith where a Feme sole deliuers an
pere he shall be fore-closed for the value of so much as is descended If after the Fathers death any heritage descend from the Father the Tenant shall recouer against him of the mothers seisin by a writt of indgement out of the rolles c. which the Iustices before whom the plea was pleaded shall grant to re-sommon the warrantie as hath béene accustomed in other cases where the voucher pleads âiens a luy descenârâ from him vpon whose deed he is vouched c. And in like sort the Issue of the sonne shall recouer by Writ of Cousinage aile or besaile In like manner the Wiues heyre shall not be barred after the death of his father and mother to demand by Writt of entry his mothers heritage which his father in her life time aliened dont nul fine est le uie in court le roy SECT XVII Mr. Littletons glosse vpon the Statute of Glocester BEfore the Statute saith M. Littleton if Tenant by the Courtesie did alien c. in fee with warrantie onely this after his discease should barre the Heyre for this was a collaterall warrantie before the Statute Since the Statute it is cleere that whether tenant by the Courtesie or tenant in the right of his wife doe alien the wiues heritace or marriage by his deede in pais which warrantie leauing none assets it is no barre to the heyre But what if the Baron alien by fine leuied in the Kings court with warrantie shall this barre the heyre without any thing descended in value Newton Chiefe Iustice of the Common place thought it should by implication of words for hee tooke dont nul fine c. to be a generall exception and therefore this alienation by fine with warrant to remaine a collater all warrantie as it was at Common Law But Littleton giueth his voyce with them of contrary opinion which thought it an obscure exposition to permit irreuocable alienation by Tenant in droit sa feme onely by his warranting concord without assetts when the Statute hath in the beginning taken it expresly from tenant by the Courtesie alienating by Feoffement Nul fine therefore is as much to say nul loyall fine rightfully leuied viz. a fine leuied by Baron and Feme for it is true that before this Statute was made and somewhat after it too there was no estate taile come into England A fine might then well and rightfully haue beene leuied by Baron Feme the Barons heire be bound with warrantie and the wiues heire barred for euer But now since the Statute if Baron and Feme had made a feoffement in fée by deede in the Countrey the womans heyre after decease of them both may haue a Writ of entry sur cui in vita for all the husbands warranty And this Statute of Glocester had left a fine no more force then a feoffement here if the finall exception had not beene for when it comes with insemente in mesme le manner giuing a writt of entry to auoyd the alienation made by the father in the mothers life time this might be extended perhaps to a fine leuied by them both for where the Baron and feme doth alien by fine its true that the Baron doth alien Lest therefore a fine leuied by Baron and Feme should be thought to be inféeblished this exception of a fine was necessary and it is to be intended of a fine loyall For when the Iustices know once that tenant in right of his wife commeth to leuie a fine onely in his owne name they will not receiue it SECT XXI Dyers Exposition LIttleton in this discourse seemeth to speake as if hee tooke a warrant without assets made by tenant per Courtesie or iure vxoris to bee no collaterall warrantie now a dayes whereat I maruell A man may haue a veyne cut vnder his eare that shall disable him from performing a great part of manhood but he shall be a man notwithstanding and a horse may be so foundred that he shall neither well goe or stand and yet a horse still So this kinde of warrantie gelt or foundered by Statute remaines collaterall nomine specie Dyer is so fo 148. at Common Law saith he garrantie by tenant per le courtesie was collaterall vncore est come ieo intend But it it is no barre in Mortdancester aiel or cousinage without assets in fée simple descended ie facto whereas before the Statute it was brought to bee intended and supposed and this Statute is taken strictly for the law at this day is come ieo intend if the heyre doe not enter vpon the aliene of his father in vita patris that he shall be bound and barred of his entry by the warrantie If the Father be disseised and release with warrantie the heyre shall be barred without assets both of entry and action also for this is none alienation by tenant by the Courtesie In the last point of the Statute of Glocester for alienation by the husband in vita vxoris c. if he alien the purchase of his wife with warranty this is out of the Statute for heritage or marriage is not intended purchase by her So much my Lord Dyer note that both he and Littleton stand vpon the word Marriage which indeed is not in the letter of the Statute SECT XXII The Statute of 32. H. 8. ca. 28. WEe haue passed the pillers not of Hercules but of Littleton in the Husbands power ouer his wiues Inheritance now let vs looke plus vltra with Columbus King Henry the eight and the Parliament ordained in the yeare aboue specified That all Leases of Mannors Lands Tenements or Hereditaments hereafter to bee made by Indenture sealed for yeares or for life by any person or persons being of the age of one and twenty yeares and seised in fee-simple or féetaile in the right of themselues their Churches or wiues or iointly with their wiues of any estate of Inheritance made before Couerture or after shall be good c. against the Lessors their wiues heyres and Successors c. according to the estate comprised in such Indenture of lease in like manner and forme as if the Lessors and euery of them at time of the Lease making had beene seised in pure fée-simple to her owne onely vses prouiso that this act extend not to Leases made of Mannors Lands Tenaments or Hereditaments being in the hands of any fermor or fermors by vertue of any old Lease vnlesse the old Lease be expired surrendred or ended within one yeare next after making of the new Lease nor shall extend to any grantée of reuersion c nor to any Lease of any Mannors Lands Tenements c. which hath not beene commonly let to ferme or occupied by fermors by space of 20. yeares next before such Lease nor to any Lease made without impeachment of waste nor to any Lease to be made for aboue 21. yeares or thrée liues at the most from the day of the making thereof And vpon euery
Legacie was with an expresse exclusion of Dower c. But see Sir Ed. Cokes 4. Rep. fo 4. a. in Vernons case resolued that vnlesse it be expressed in the will to bee for her Ioynture it shall be no satisfaction for her Dower See 38. H. 8. Dyer 61. William Whorewhod seised of Land to the value of 360. pound of which 60. pound was by ioynt purchase to him and his Wife during Couerture deuised that his wife should haue the third part of all his land during her life with those Lands which she had in Ioynture the assignement to be made by his executors if it were not contrary to Law this Widdow refused her Iointure of 60. pound and demand a third part of the whole inheritance viz. 120. pound as her Legacie with a third part of that which remained for her Dâwer viz. 80. pound at last by agréement it was ordered and decréed in the Court of Wards that she should haue the Legacie vt supra and forty pound ouer for Dower This Case decideth the question for it is against the latter opinion expresse ideo quaere Brooke noteth also Dower 69. that per Iusticiarios if a man make his Wife ioynt-purchaser with him after Couerture of any estate of Franke Tenement vnlesse it be to him and his Wife and their Heyres in fée-simple it is a barre of Dower if she agrée to the Ioynture post mortem viri otherwise it is of fée-simple for thereof the Statute saith nothing But M. Brograue in his reading did maintaine for all the foresaid opinion that where fee-simple is conueyed to a Feme for Ioynture expresly it is a good Iointure within compasse of this Statute for if estate in taile or for life be a good Iointure and exclude Dower by acceptance c. a fortiore fée-simple shall barre And sée in Vernons case reported by Sir Ed. Coke 4. Rep. fo 3. b. that the case in Brooke is mis-reported and the Lord Dyer is against it and confuteth Brooks reasons of this opinion Hee relied also vpon dame Dennis case 8. Eliz Dyer 248. An Indenture was made 36. Hân 8. Betwixt Sir Maurice Dennis and Elizabeth Statham that in consideration of expected Marriage and other things reasonable the said Sir Maurice and his heyres should from thenceforth stand seised of certaine Lands c. to the vse of himselfe and his heyres vntill Marriage were had and solemnized and then to the vse and behoofe of the said Maurice and Elizabeth and their heyres after Marriage Sir Maurice dyed entred into the Lands and demanded Dower of his other Lands it was a question whether this conueyance and matter vt supra with auerrement that it was for a Ioynture should barre her of Dower Catline Saunders and Dyer were against the Dower by equitie of the Statute which in the third prouiso is of Ioyntures for terme of life or otherwise Against them were Iustice Browne and Whiddon and they resembled this Statute to another of the 11. H. 7. ca. 20. which cannot be extended to fée-simple but is meant and expressed onely of estate for Life or in taile seuerally or ioyntly with the Baron But Iustice Dyer as it séemeth by M. Brograue vpon diligent conference with sage men of Law did strongly adhere to his former opinion that this conueyance with auerment made a good Ioynture Yee shall finde againe 14. 15. Elâz he affirmeth for Law that where Fée-simple is limited ouer to a Wife or estate made to Baron and Feme in fée it is auerrable pro iunctura if the conueyance he not expresly contrary Sée a question for auerment Dyer 226. One that had an vse in Fée of certaine Lands to the value annuall of 100. pound tooke a wife 22. H. 8. and after espousals at request of his wiues friends and Parents caused the Feoffees to execute estate to him and his wife and to the heyres of himselfe of parcell of this Land to twenty pound value c. He then purchased other Lands and after 27. dyed seised of all The wife by taking rents and profits of the twenty pound land agreed to her estate therein and afterward brought a Writ of Dower detertia parâe residui omnium terrarum c. because the Statute is expressed of Iointure and the déed whereby estate was made to the baron and feme hath no mention of Ioynture or Dower quaere whether this matter generally alledged without auerment that it was pro junctura vel pro doâe shall barre or no See the Institutions of Sir Ed. Coke âo 36. much matter concerning Ioynture In all conueyance or purchase for Ioynture vnlesse it be by fine or common recouerie he which makes the estate must be a person able to conuey c. at the time of Ioynture making or else it is not good He must not therefore be non compos mentis attaint of treason an alien borne or vnder age but the non-age of the Wife is not materiall whether the Ioynture be made before Couerture or after if she accept it agréed at M. Fiâches reading SECT XXXII The Words Land Tenement or Hereditament LAnd is intended as well of pasture meadow woods heath c. as of arable and lands couered with water or surrounded is within the Statute So is a Towne an Isle c. but vestura terrae or an vpper Chamber cannot make a Ioynture as Land Tenements assured in Ioynture may bee Aduousans Rectories Windmils an vpper Chamber a Seigniory in Chiualrie and a reuersion sur estate pur viâ all comming within the meaâing of the Statute As for a reuersion vpon or after estate for yeares it is rather in account of law land then a tenement for the Franke Tenement which is the principall is as the present substance of the Land it selfe And the reuersion of either of these particular estates if rent be reserued may well be assigned for a Ioynture Yea and whether rent be reserued or no vpon a Lease for yeares it might be somewhat doubted whether the reuersion be assignable for a Ioynture c. because the Frank Tenement passeth presently and a woman may haue an assise thereof But cleere a nude reuersion sur estate pur vie sans rent because it is no present commoditie cannot make a Ioynture yet if such a reuersion be assigned and it turne to a possession in the Husbands life time it may be a good Ioynture by matter of subsequent Hereditament within the Statute may be a rent charge granted to a woman for life though it were neuer in esse before or a rent reserued vpon a Lease for life But the Hereditament assigned must bee a profit and commodity or else it is not assignable c for homage or fealtie shall not make any Ioynture Rent payable euery fiue yeare may be assigned for Ioynture for is a profit though it be not annuall And an ancient kéepership of a Parke with a fée belonging to it may be appointed or assigned in Dower But so is not a
by Parliament But if the Ioynture were made before Marriage the woman must néeds hold her to her Ioynture sans election And this is by implication vpon the third prouiso as appeareth by the report of Anderson c Sée Commentaries Plowden 390. The Case 6. Eliz. Dyer 228. is That Richard Ashton Esquire in accomplishment of certaine Indentures dentures betwixt him and Sir William Barenport concerning Marriage to be had betwixt Richard Ashton the sonne and Elizabeth the daughter of Sir William which gaue seuen hundred Markes with her in marriage infeoffed certaine persons before Marriage of Land to the annuall rent of twenty pound to the vse of the said Elizabeth for terme of her life The Marriage being consummate first Richard the Father and then Richard the Sonne died then it was found by office that Richard the sonne died seised in Fée if these Lands whereof the Feoffement was made and of other Lands holden by Chiualry as of the Dutchie of Laâcaster his heyre being vnder age the first question was whether shee might retaine the twenty pound Lands ââd haue Dower of the rest because she was not Richard Aâââons wife at the time of the Feoffement first made neither was it made of the barons lands or by the baron resolued by Councell of the Court that shée was barred of Dower And it was so likewise resolued in Vernons Case Sir Ed. Cokes 4. Report wherein is much learning touching Ioynture The second question in Eliz. Astons ca. was whether she were Dowable from the Quéene because the feoffement was not found by the Office The third question whether it might be aâârâed for the Quéene in stay of petition of Dower that the Feoffement was made pro iunctura no such matter being expressed neither in the déed of Feoffement or Indenture of Coâââants The fourth question whether the Widdow Elizabeth might be receiued to auerre and proue by Commissi ãâ¦ã the Court of Wards that the Feoffement was not meant for a Ioynture Here is enough to make Women be wââe how they take Ioyntures before Marriage Take ãâ¦ã ther to admonish you beware of fines after Marriâââ Ioynture was made to a Feme Couert by her Baron shée and her baron aliened the land by fine sur connusance de droit by the opinion of Iustices Wray Bell Manhood and Dyer she shall not demand Dower of the residue of her husbands Land after his death for she aliened her Ioynture before time of election was giuen her by the Statute quaere But if the fine had bene sur connusance de droit come ceo que le connuseead de done le Baron tantum this had béene a better forme for the wife and lesse dangerous 19. Eliz. Dyer 358. SECT XXXIX What is a sufficient refusall or agreement of or to a Iointure made after Couerture See Sir Edw. Cokes 3. Rep. in Butlers and Bakers Case THe refusing or agreement c. because they are peremptory must not bee clouded darke doubtfull or implicatiue but plaine and expresse a bare word or saying by a woman that she will refuse her Ioynture or accept it is not materiall as diuers Iustices doe hold it But if shee come vpon the Land whereof she is Dowable and there refusing her Ioynture pray the heyre to assigne her Dower this is such a refusall that the heyre by this shall be charged in damages from this time forth in a writt of Dower and this refusall must be to the heyre himselfe and not to a Stranger If a Widow waiue the possession of a house or tenement assigned in Ioynture by her husband and get her to another place this is no refusall But if she haue any medling with the land assigned in Ioynture or doe any other act amounting to assent or dissenting as for example If she bring a writt of Dower and declare vpon it this is peremptory although she bee vnder age Couert or not Couert of a second Husband for the Law saith that they which haue discretion to acquire and get things haue sufficient discretion to giue and preserue those things gotten Therefore if an Infant cdme to any thing by purchase hee shall not in that haue any aduantage or bee in better plight then a parson of full age As where estate is made to an Infant of two acres to haue and hold the one for life the other in fée c. a Feoffement made of one whilest he is yet vnder age is a sufficient election And if a rent charge bee granted to an Infant whereupon he bringeth a Writt of annuity he shall neuer auow for it as a vent when he commeth to full age So if an Infant recouer debt and sue execution by elegit c. he shall neuer haue a scire facias And an Infant is subiect to an action of waste or entry for condition broken as well as any other person These collections gathered as I thinke by some well learned and industrious Student out of M. Brograues reading though they want of the fulnesse and perfection which the owne pen of so great a Lawyer might haue giuen them yet are they pertinent and important And I not a little beholding to him from whose hands I obtaine them SECT XL. Of Actions brought by Baron and Feme or by one of them NOw because the common sayings are found by common experience true Qui capit vxorâm capit lites and qui habet terras habet guerras A Wife brings iarres and wealth brings warres quarrels suits and controuersies at Law sans câo that it hath any other intendment it will not be amisse a little to declare how and in what manner actions at law must be commenced and pursued by baâon and Feme or against them or by or against one of them according to prescription of Law and their seuerall and ioynt Interests c. SECT XLI Where the Baron shall sue onely in his owne name A Man shall sue for his Wiues Marriage money onely in his owne name but how or where that is a matter of some obscurity by Bracton lib. 5. ca. 10. 407. money that is promised causa Matrimonij is as a sequell of Marriage and so being annexed to a thing spirituall requires a spirituall suite yet he confesseth that it is otherwise for Land promised or couenanted c. Fitzherbert in his Writ of Debt citeth 31. Ed. 3. that if a man promise one twenty pound to marry his Daughter which marrieth her accordingly he may haue a Writ of debt vpon his promise but he forgets not the âéere difference in the Booke of assizes for in the Writt of prohibition he tels vs if a man promise one twenty pounds if he marry his Daughter after marriage if the promiser will not pay the money the husband may not sue in Court Christian if hee doe a prohibition lyeth marry if I promise one twenty pounds with my Daughter in Marriage c. now vpon non-payment he may sue in Court Christian for this concerneth Matrimony The same
a diââringas shall goe against him Againe 11. H. 4. a ãâ¦ã âapiâs 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 reddââ in ãâ¦ã of the grand ãâ¦ã and such like and for losse of ãâ¦ã returned vpon Baron and Feme the wiues default be the husbands default yet the wiues default onely shall âot âée so ãâ¦ã to him as to driue him to a corporall punishment as to the capias or exigent Likewise 39. Ed â 3. fol. 18. ãâ¦ã 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 owââ 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 câme 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 âssoyned 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 ãâ¦ã which might not answer but together and by ioyntenants which knew not their owne seuerall that vsed to fourâh by âssoine 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. eiusâem Regis ãâ¦ã 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 ãâ¦ã died by this Statute of ãâ¦ã And Thi ãâ¦ã confesseth that the Statute i ãâ¦ã lââd ãâ¦ã yet saith he at the common Law ãâ¦ã and ãâ¦ã 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 âuris 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 tââ Titulo louânes accompts Br. 17. â6 assisar p. 44. An Assise was brought against Baron and Feme the Baron canus in proper person and pleaded the Plaintiff ãâ¦ã the wines Atturney was asked if hée would assâât to the plea who answered he would be aduised therefore thes dâââ was deliuered baââ 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 mistâke 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 paâler del Baron ââ Hen. 6. fo 4. And there it is said that a wife ãâ¦ã 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 ãâ¦ã of a stranger if the Baron die he in ãâ¦ã 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 Hâll 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 daâuâages 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
this Warrantor be vnder age yet the Law fauoureth widdowes so much that the plaint shal not attend his full age Therefore if the Tenant shew forth any Charter Déed or speciall cause whereby the Court may perceiue that the Infant is bound to Warrantie by the Ancestors act he shall answer presently what age soeuer he be of And though the Infant in ward be aliened by his Gardian or Gardians from hand to hand this shall not preiudice the Voucher for alwayes he shall vouch to warrantie the Heire and not the Gardian who is bound to present his ward so vouched in Court without difference whether it be one or many parceners Thus saith Britton and 48. Ed. 3. fol. 5. agreeth that he which voucheth an heire vnder age must vouch him in ward de vntiel If he be a ward it is said there also that hee which voucheth an heire at full age must shew a Déed quaere But when the lands are in the Gardians owne possession to his owne profit and vse the writ of Dower must âée brought against the Gardian and not against the Infant 46. Ed. 3. fol. 19. Where Mowbray saith where an Infant is vouched in ward of the King the woman shall recouer Dower maintenant 3. H. 6. fol. 17. It was agréed per curiam that in Action of Dower if the tenant vouch the heire in the Kings ward within the same Countie where the writ is brought the Demandant shall not recouer before the warrantie be determined but the Law is contra if the Voucher had prayed summons in another Countie for then the Demandant should recouer maintenant yet by the Register fol. 7. if in a writ of Dower the tenant vouch in Durham the Demandant shall abide triall of the warrantie and not recouer presently But by Fitzherbert for a rule in titulo Voucher if the tenant vouch in a forraine Countie shee shall recouer maintenant and neuer attend triall of the warrantie but when Voucher is in mesme lâ countie If the heire vouched to warrantie aftâr âhee hath appeared and countââ pleaded the warrantie or before appearance being lawfully summoned do ãâ¦ã ke default the Defendant shall haue execution against him maintenant if hee haue lanâs within the Countie Brooke Dower 5. And also Dower the 6â when the heire is vouched in the same Countie the woman shall recouer against the heire Dyer 3. Eliz. âââ In Dower the tenant vouch the heire in the same Countie who co ãâ¦ã as one that hath nothing by descent in âée and renders Dower the tenant auers that he hath assâââ by descent qu ãâ¦ã if he should not say in fée for by Weston and Browne if the lands be in taile it doth not ãâ¦ã the tenants lanâs And the opinion of the Court was that the Demandant shall haue Iudgement presently aga ãâ¦ã the heire if he hath lands c. and if not against the tenant and that before the issue of the assââs tried 1 Ed. â fol. 24 In a writ of Dower against Tenant for life if he vouch his Lessor which is heire to the husband the woman shall recouer against the Tenant and he ouer against the Vouchee But when the heire iâ vouched by Charter of his Ancestor the Demandant shall ãâ¦ã couer against the Vouchee and the Tenant shall hold ãâ¦ã peace Yet in a Writ of Dower against Lessée for ãâ¦ã e of the Barons demise if the heire bee vouched to Warrantie though here the reuersion which is the cause of the Warrantie were made by the Baron the Demand ãâ¦ã shall recouer against the Tenant and he against the heire If the tenant vouch in a writ of Dower and the Vouch ãâ¦ã counter plead the Warrantie the woman shall recouer maintenant though in other actions it bée otherwise 46. Ed. 3. fol. 25. and 49. Ed. 3. fol. 23. In a Writ of Dower the Tenant vouched himselfe to sââe the ãâ¦ã taile 2. H. 4. fol. 18. in Dower the Tenant vouched the heire Processe went on to sequatur sub suo periculo sicut alias the Vouchée came not it was awarded the Demandant should recouer against the Vouchée if hee had lands in the same Countie If not that shee shall recouer against the Tenant and hee ouer in value But first it was examined if the Vouchee were heire to the Baron 21. Ed. 3. fol. 30. In Dower the tenant voucheth the Barons heire in ward of the demandant per cause de nurture shewing the Ancestors Déed he was compelled to plead in barre because now the woman might be endowed De la plus beale for Gardeine pur nurture hath alwayes intendment to Soccage tenure Vide Brooke Dower 42. 5. Ed. 3. The fathers wife was endowed the Grandmother brought a writ of Dower against her âhe vouched the heire in reuerston the Demandant recouered against the tenant and shee against the heire a third part of two parts remaining but not in value Sée Brooke Dower 79. If the Grandmother die the mother may enter into the first dower and the heire into the second SECT IX Plees in a writ of Dower ADmitting there were no Voucher let vs run ouer other matters vsually pleaded 14. H. 4. 33. in Dower was demanded a third part of two mils of other lands yâ tenant asked Iudgement of the plaintiffe for they were during the whole time of couerture but the ââte of two mills viz. toâts 38. Ed. 3. fol. 13. In a writ of dower against one as Gardian of land and heire of K. de R. the defendant answered that the Infants father was â de R. Iudgement del briefe and if the writ were good hee was ready to render dower You cannot said Knyuet plead to the writ render dower both at one day so the demandant praying Iudgement seisen was awarded her And because she auerred that the defendant was not touts temps prist to render dower an Inquest of dammages was awarded and that execution should cease till the Inquest were past 13. Ed. 4. fol. 7. In action of dower the tenant pleaded touts temps prist de render Dower vncore est The demandant said that I. S. her husband died seised and that such a day and yeere she required the tenant to indow her at Dale which refused c. he replyed that at the same day he offered to goe with her to the lands and to assigne her dower but she refused sans ceo that he refused The Court held the Issue well taken by this speciall pleading But if hee had said generally and barely hee refused not some thought it had not beene sufficient insomuch as it denies not the request Bryan said the demandant here might not haue seuerall Iudgements of one thing for note shee was to recouer dower vpon the first plea but all the other Iustices were of opinion cleere that shee should haue Iudgement of Dower maintenant and 18. Ed. 3. In action of Dower Iudgement was to recouer dower with an inquest for dammages As in a Quare
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 Issiââ seisi que Dowre c. The plea of Euidence detained as Littleton said went to the whole action quod fuit negatum vâde Brooke ây 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 conceâning his inheritance and shewes what Et qâe 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 ouâsqÌ soit inseint qÌ serra âeure si dien luy done nostre and issue was taken whether she were insâint die obitus mariti not whether shee were inseint per son baron die obitâs 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 âa 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 cyâle fait prââ 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 deââuer 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 âs 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 vncoâe 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.
by such meanes as she may from him which recouered it 50. Ed. 3. fol. 7. loane late wife of L. W. brought her Writ of dower against T. H. demanding the third part of a Mannor It was pleaded Qâââl ne poâânââs demander for ââno 12. huius ââgis a sine was leuied of the said Mannor betwixt I. and E. and the tenant sued Scâââ facias out of the fine against the now demandant which came and pleaded to parcell that shee held it in Dower of indowment from her husband bâ assignment of W. C. ââââââdâ dâ lââ c. for another part she claimed for terme of âer life by lease from W. C of whom likewise shee prayed aid and had it granted C came in by procâsse and ioyning in aid pleaded a Feoffment made to himselfe in fée by L. the baron sonne and heire to I. W. whereunto the tenant pleaded Rââns passâ per lâ fait and the processe cântinued against the Iury till a day certaine at which day C. made default and this demandant maintained the issââ which was found against the now demandant viz. that Rieâs passa per le fait and execution awarded for the plaintiffe in the Scire fac Iudgemeât si ââcountâr ceââ recoueââe a quel el fuit party el poât nens demander and the demandant demurred Her pretence was that by the recoâerie she was remitted to her action paramont because the recouerie affirmes her husbands possession But the better opinion was that whân her Dower once lawfully assâgned was recouered against her she had here no remedy but by exrour or attaint for a writ of right shee might not haue But if in the Scirâ faciâs shée had alleaged to that part which she claimed in Dower that she hâld it in Dower of the Assignment of W. C. Prist daâtenderâ a qâe le coârt voââââ gârder she had saued her estate by protestation and the reuersion might hâue héene iudged to him which had right whereas pleading as she did some thought shââ had forfeited hââ Dower but that was denyed by Tresiliân Belkâap who said that when one is ââ per tort as iâ the Disseâsée or his heirs ânter vpon him which is in by discenâ or if a widdow enter vpon a discontinâââ of her husband and then vpon issue taken sur seisin or disseisiâ it is found for the plaintiffe the tenant is remitted to his Action paramoââ Briefe â ââtriâ in the one case and in the other a Cuâ in vââa But if a recouerie bée against a Tenant that hath rightfull possession the remâdie must be by errours attaint or writ of right And therefore in the last cases if the tenants had pleadedâ release or other matter which might eâtinct the right if it had passed againââ them their reâedy must haue béene by writ of right pââ Clopâon quâââe Wich said if a recouerie be had against the Baron vpon a delatory plea as noâtânure misâosmââ of the town or such like a woman may falsifie such a recouerie in a writ of Dower It seemes to be otherwise saith Brooke if a recouerie be had in that mannâr agaââââ the woman her selfe who is endowed SECT XXI Admeasurement of Dower ADmeasurement is in a kinde a recouerie against a woman not of her whole Dower but of part of it for if the heire whilest hée is vnder age or the Gardian whilest the heire is in ward doe indow a widdow of more land than âhe ought to hold in Dower the heire when hee commeth to full age may haue a writ Dâââmânsurâtione doâis against her and the Surpluâ or excesse shall be restored to the heire but there is in this case onely an amputation without any nouell assignment If the heire being vnder age assigne Dower too largely before his Lord and Gardian enter into the land or seise his Ward the Gardian may haue a writ of Admeasurement by West 2. cap. 7. And if the Gardian pursue the writ faintly against the wâman indowed the heire may haue a writ of Admeasurement bâ the same Statute Custodi de caeâââo concedâtââ breue de admensuratione dotis nec per sectââ custodis si fictae per collusionem sequâtur vââsus mulâââem tenentem in dotâm prââludatââ haeâââ cum ad aeââââm pââuâneriââd ãâã admensuâââdom c. If the plea be in the Coââtie the Plaintiffe may remoue it without cause and the Defendant may remoue it with ââââe âhewed in the writ as in a Repleuin And when the writ is rââââed by Poââ into the Common place the proââââe iâ summons attachment and distrâsse c. according to the Statute Then the Sheriffe cannot make admeasurement but he shall extend the land particularly and returning the Extent âââo the Common place the Iustices shall admeasure Dower Note if the Gardian assigne Dower excessiue and then grant ouer his estate his assigne shall neuer haue a writ of admeasurement Likewise if the heire vnder age assigne Dower which his Gardian may admeasure when he hath entred c. but the Action is not grantable for the Gardian assigned or grantee shall not admeasure But an heire may haue the admeasuring of Dower assigned in his Ancestors tune And if a woman be indowed in Chancery per le Roy c. the heire may haue a Writ of Admeasurement if a woman after shee is indâwed make any improuement of the âand so that it becomes of farre gâeater value than it was of at the time of the Assignement there lieth no admeasuring vpon this improuement And Bracton saith Noâ erit estimânda melioraââo muâââris quaÌ fecit in dore suapost assignationem tempus eâim assignationis dotis erit spectandum But if this improuement bee by casualty iâ some myne of câale or lead which had béene formerly found and occupied in the husbands time the matter is somewhat doubtfull But sée Sir Edward Cokes 5. Rep. fol. 12. a. in Saunders cap. qÌ sc That if the myne appeared at the time of the ad assâgnemânt admeasurement lieth As for new mynes a widdow may not make or dig any that is waste thus farre Fitzherbert Briton cap. 113. and Bracton lib. 4. cap. 17. shew with what circumstance admeasurement shal be made by the vicount surserement de probes homes praesentes per boâe legale extent They say that the amputation is not onely of excesse and superââuity by this Writ of admeasurement but also of that which âught not to bee assigned admensuratio debet esse âam de indebito quam de superflâo And therefore if a Castell or head of a Barrony were assigned in Dower by the Gardâan without any necessity the heire may haue this Writ for enter hee cannot say they They shew also what plea a woman may haue against admeasurement viz. that the Plaintiffe himselfe made the assignation or confirmed or allowed it being of âull age c. SECT XXII The charge of Dower ADmitting the Dower assigned to be both for quality and quantity iust there is yet to
be declared with what immunity a woman shall hold her Dower First Bracton saith Si peculia maâiti sufficiant ad solutionem tenentur sed vxori dos sua deonerabitur Et heres defendere dotem warrantizare eam mulieri debet pro ea sequi comitatus hundreda curia dominorum vt viduatae domui suae intendat nutritioni suorum si qui fuerint puerorum If the husbands goods bee not sufficient for payment of his debts the heire must discharge Dower of the burden c. for he is the widdâwes warrant of her Dower and ought to follow for her County Court Court léet and hundred c. That shée may sée to her house and nurture of her children Fitzherbert in his Writ of Admeasurement first affirmes that a woman shall not be distreined in her Dower in her Inheritance or in the ioynt purchased lands to her or her husband for her husbands debts The Writ which he sets downe for remedy saith almost as much Râx Vicicounti c. cum secundum legem consuetudinem regni angliae mulieres in terris tenementis quae tenânt in dotem de dono virorum vel quae sunt de ipsarum haereditate vel quae sibi quesiuerint pro debitis virorum distringi non debent c. And in some Writs is this Clause Dum tamen haeredes vel Executores testamenti ipsius c. ad debiâa illa reddenda nobis sufficiant But it séemes reasonable saith Fitzherbert that a woman shall not hee distreined in her Inheritance for the Kings debts neither in her Dower or Ioynt purchased lands which her husband if her title commenced before her husband became debtor and there is a Writ in the register importing no lesse yea hee affoordâ it to be good reason that lands purchased by Baron and Feme after the Baron is entred in debt to the King should be discharged in the widdowes hands But let widdowes agrée with the King as well as they can the heire is lyable to the debts of his Ancestor before the widdow The heire likewise dischargeth her of suit and seruice and is so farre forth her warrant that by Britton if shee be impleaded and vouch any other to warranty she forfeiteth her Dower pur sa malice and though her husbands feofee be not called her warrant yet if she be indowed by him shee must hold of him And regularly Tenant in Dower must be Attendant to her husbands heire or to the heires Gardian or to the Gardenis Executor or to him in the reuercion according to the rate of rent whereby they hold ouer if Tenent by fealty and xij d. rent bée disseised and dye his wife being indowed by the disseisor shall be an attendant to the same dissessor of iiij d. annuall And now if the heire will bring a Writ of entry in to quibus against the woman thus indowed shee may shew her speciall matter and that shée is ready to attend to whom the Court will award which shall award that she retaine her Dower still and bee attendant to the heire quaere saith Parkins if the heire haue any other remedy for hee cannot enter vpon the Tenant in Dower D.st 82. a. saith That a Feme tenant in Dower leaueth the reuersion in him against whom shee demands her Dower although he be a disseisor and doth not reduce the reuersion by her recouery to him which hath right as other Tenants for life doe And as it is said in Sir Edward Cokes 8. Rep. 35. in Paynes ca. if she recouer against Tenant for life shee leaueth the reuersion in him But by nat br fol. 265. a. if the King assigne Dower in Chancery as Gardian the reuersion reposeth in the heire for which he shall sue liuery If after iudgement the heire grant his reuersion and the woman atturne she shall be Attendant to the grantée If Lord Meane Tenant be the Tenant holding by iij. d. rent and the Meane by 20. d. If the Tenant marry and the Meane release to him all his right in the tenancy the Tenant dieth the wife must bee endowed according to her husbands best possessions and therefore shall bee Attendant to the heire by a penny and not the third part of twenty pence If hee which holdeth by fealty and xij d. hauing a wife sell the tenancie to his Lord and the estate is executed the Tenants wife shall be indowed sans attendancie for the Seignory extinct is not reuiuable If Lord Measne and Tenant be the Tenant holdeth by xij d. which dieth his wife is endowed shee shall bee attendant to the heire by iiij d. now if the Lord release all his right in the tenancy to the heire the meanalty is extinct and the attendance gone for it was but in respect of the charge which the heire was at to his next Lord. But where there is Lord and Tenant by fealty and xij d. rent if the Tenant make a gift in tayle of the land to hold of him and his heires by xx s. rent c. if the donée dye without issue his wife endowed shall be attendant to the donor by v. s. and viij d. although the Lord release to the donor for his attendance is not in respect of the charge ouer but by a speciall reseruation If there be Seignor Meane and Tenant by fealty and iij. s. rent the Meanes wife after he be foreiudged in a Writ of meane and dead shall be endowed without attendance If Tenant by fealty and xij d. make a gift in taile of the land reââââing âij d. rent c. and the doâce hauing a wife and issue by her âiscontinueth in fee and dieth now though the wife recouer Dower and haue execution of it against the discontinues yet she shall not be attendant to him for hâs is not chargeable as the Baron was because the Dowers âuowry resteth of âereâââââ vpon the issue to whom for all that the widdow shall not bee attendâât till hee haue recontinued the ãâã resayle quaere tamen saith Perkins If the Tenant whilst hee Itâââ held of his Lord by fealty and a ãâã of forty shillings price the Tenants widdow when shée is endowed shall bee attendant by xiiâ â iiij âc ãâã she tenure were by fealty and a nag without expresse value shée shall bée Attendant by a nag euery third yéere Perkins fo 84. ââ SECT XXIII Of the cui in vita I Have béene long in Dower and I feare mee some women had rather neuer be endowed that is they had rather die with their husbands or soone after them than bée bound to learne this Catechisme yet I must come to it once againe But first let vssée how lands whereunto a woman may haue right by ancient indowment or by discent or gift in franckmarriage or by some other acquisition before or during Couerture in fee fée tayle for life or for yéeres may bee reduced if the husband haue aliened them for it the possession continued alwayes in the
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 ââid as well as if it were made of some higher estate as it appeares by Perkins chap. Dâââses and Plowd 419 in Bra ãâ¦ã gââ case And the Law is all one in all respects where the Baron and Feme are possessed of lease for yeares by intâeâties 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 Haââ 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 4â8 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 ãâ¦ã 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 Maââing case And see the 9. case of 50 E. 3. lib. Ass note Sir Edw. Cokes Rep. in âulwoods 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. Lampeââs case And if a woman hath a lease for yeares as Executâiâ and takes an husband hée may sell it per âoâ curi ãâ¦ã pr ãâ¦ã r Fitzherbert Dyer â8 H. 8. 7. A woman hath a terme ãâ¦ã trir the husband s ãâ¦ã wits to ãâ¦ã vâân 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 dâtinet and not the speciall matter Iudgement was against him Dyer 2. E ãâ¦ã 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 ãâ¦ã 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 âongeable 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 ââd âââ Bâquae fuit vxor Câââum messuagium ãâ¦ã quod clamat esse ius hereditat suam Et in quod A. noâ habet ingressum nisi per C. quondam virum c qui illud ââ de ãâ¦ã isit cui in vita contradicere non pot ãâ¦ã Th ãâ¦ã may be in the per âui and post and some varietie it hath according to title of the Demandant as Quâââ clamat ãâ¦ã ius haereditatem or Vt ius maritagium or Vt ius exâonâ I. qui ipsaâ B. C. virum suum feofavit in quo c. or Quam clamat tenere sibi haeredibusde corpore suo de ãâã C. quondam viri sui exâuntibus ââ d ãâ¦ã ne I. or Quam clamat essâ dotem suam ex dono E. pri ãâ¦ã vel secundi c. If Baron and Feme lose the wiues landâ by de ãâ¦ã shée may haue this Writ when shee is a widdow But if the wiues lands be recouered in a Cessauit perâde ãâ¦ã ââ Baron and Feme vpon a C ãâ¦ã during esp ãâ¦ã shall neuer haue a Cuâââ 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 coâeââure the Cui in vita is of the in ãâ¦ã 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 bâââed in a Cui in vita or any other action Fitzherbert and â6 Ed. 4. 8. Idem ius if shée accept parcell ââ her owne land in Dower but 17. Assisarum pl. 3. Brooke 24. Cui in
vita If the assignment of this Dower be sans fait it is no barre or conÌclusiou but a Remitter otherwise if it be by Deed or Record If a man giue lands to a woman to marrie with him and after espousals he alieneth the same land and dieth she may haue a Cui in vita And note that the gift or demise alleaged in a Cui in vita is trauersable Thus much Fitzherbert 48. Ed. 3. 8. In a Cui in vita claiming to hold sibi ãâ¦ã de corpore without shewing of whose donation the ãâã pleaded to the Writ and it was abated But in a Quod ââ de ãâ¦ã the Demandant needs not shew by whoâe gift she claimeth 49. Ed. 3. fol. â9 The Writ was Qua ãâ¦ã sib ãâ¦ã W. N. The tenant said she neuer had any ââing of the gift of W. N. per Belknap the answer was not good for were the gift from one or other if the husband aliened she might haue the action and the Writ may be Quâm elamaâ vt ius haereââaâem though she purchased the lands adiorâatâr The latter point is affirmed 7. H. 4. fol 5 per Littleton accorded but for the first vide 50. Ed. â fol. 6. in a Cui in viâa quam clâmat âenerââx dimissione per termino viâae â N. it was admitted vpon argument a good answer per â uâiam for where one maketh title it âught to be true And there finde sur release made to Baron and Fâme and to the herres of the baron by I. N. was holden no demise for it must be supposed the baron and feme were in possession tempore finis And Persy said it had béene adiudged if a woman claimed in her Writ ad termiâum vitae if it were found she had estate taile the Writ should abate So likewise if a woman claime by lease for terme of life per A. and it was sound that A. made no lease shée had now no estate and consequently hath none action Likewise said Kirton if in Assâze of nouell disseism the plaintiffe make his title by fâoffâânt of A. and is found that A. infâoffed him not but B. did hée shall bee barred in the Assize for where a man maketh his title vpon a point which is boând against him it cannot be intenâââ that he hath a better title and there he shall not haue aduantage of any other 39. H. 6. fol. 38. In a Cui in vita quod clamat esse ius suâââ ex dâno I. which infeoffed tââ Demandant and her fate husband with declaration that they were seised as of Franktenement and lâe les explees as teâants for life c. Priâoâ said That in cases speciall this Writ ought to make mention of whose gift lease or demise the Demandant claimeth as Ad âerminum vitae ex dono I. S. or Sibi haeredibus ex dono I. S. But in demand of Fée ââânple it is enough to say Qââm âlâmât vt âus haeââditatem without shewing by whose gift or feâffment 7. H. 7. fol. 2. If this Writ âe againsââaron and feme for lands holden in the wiues right it must bee in quod vxor ingressa est per I. N. non quod vir vâor ingressi sunt per I. N. SâCT XXIV west 2. Case 3. 2. Eâ 4. foâ 13. IF a man be seisod in right of his wife and recouerie is had against them by default the woman after his death may haue a Cui in vita but not a Quod ei deforceat per Moyle Iustice It séemes that at Common Law this writ of Cui in vita was onely granted vpon actuall discontinuance by the baron for West 2. casâââ iâ Qâando vir amiserit per defalcum tenementum quod âuit in vxoris suae duruââ fuit quod vxor post mortem viri non habuârit aliud recupârare quam per breue de recto propter quod Dâminus Rex ââatuit vt mulier post morââin âiri haâeat râââpâraââ pân breâede ingressu cui âââa in vita c. But in this case if the tenâââ can proue that hee had right on his side when hee recouered Muâer âiâil capit per âreueâ Nâtâ also by the way that this heat wââs Si vir se absentaveriâ ââluerit âââ vxoris ãâã defendâre vâd si in vlta vxoris reddâââ ãâã ââ vâââ anââ ãâã ãâã paraâa ãâã ãâã ãâã deâââdete ãâã ãâã ãâã ãâã to further for recoueries If Iudgement of âor eiudger be giuen against Baron and Fâuie this is not void as soone as the Baâon is dead but vâydable by error for the woman cannot haue a Cui in vita ãâã fol. 2ââ A ãâã ây ãâã ââ ãâã alienation â and therefore vpon suââ a ââcoverie as soone ââ the husband is dead the woman may haue a Câââââââ by the Common Law 4 Ed. 2. ârookâ ãâã vitâ 18. If a râcoâeriâ be âââ by ãâã Wâââ of waââe thâ wââe cannot ââuâââ ãâã ãâã either because the recouerie is not méerely by default or else because the ãâã of waste hath no demand of land quaere if shée shall haue a Quod eâ deâoâceat 9. Ed. 4. 16. If Baron and Feme be impleaded by one which hath good title and the Baron confesse the action the woman hath no remedie Yet the Statute is that vpon rendring by the Baron the wife may be receiued ââ But if Baron and Feme be receiued vpon default of tenant for life where the reuersiân is in the wife the Baron cannot confesse the action for hée must be ãâã Ad ius ãâã defâââendum 7. Ed. 4. 17. SECT XXV The Sur âui in vita IF she which hath cause to bring a Cui in vita of Fée simple lands die before she hath sued c. her heire shall haue â Sur âââ in vita But if the wiues lands which the husband aliened were in state of Fee taile and the wife neâââ ãâã her heire must sue a ãâã in disâonder and not a ãâã ââââââ for though both these ãâã hée the children of the ancient Common Law and were before West 2. Yea and this latter Writ was maintainable for lands giuen to the mother in francke marriage or to the heires of her body which at the first was Féââââpte yet when ãâã made ãâã â taile it did also expressely set downe â Writ whereby the heire should recouer such estates The Sur cââân vita for it is no âore but Praecipe quod ãâã c. quod ãâã esse iââ haeââ ditateÌ suââ in quod non habuit ingressum nisi per Eâ and so in the Cui oâ in the ãâã And the Aâât and Néeââ ãâã ãâã in it vpon alienatioâ made by the husband of their common Ancestor or vpon recouerie had against âââ and her If a second husband alienhis wiues Fée siâple landâ and she dieth the issue by her first husband ãâã âuââ Sur cui in ãâã ãâã these âând husband still liuing if hée were neuer intituled to be Tânant by the Curtâsie But
if he were intituled by the Curtesie the Aâtion is stayed so leng as he liueth And this Writ lyeth of a Vâ Mi. 21. Edw. 3. 44. Edw. 3. 4 5. A man âeised in right of his wife discontinued and after diuers alienations hee repurchased the lands to himselfe his wife died the heire brought a âur cui in vita against him praecipe W. â quod reddar c. cui contradicere non potuit exception against the writ because it was not by another naâe but it was disalowed and the writ awarded good If the Baron alien his wiues see simple with warranty and leaâing asseâââ to discend in fée he and his wife dye and the hâire alieneth the asseââs and dieth his heire shall be barred in a sur cui in viâa But if an heire intailâ alien the asseââs and dye his issue shall not be barred SECT XXIV The ãâã dâfârciat THe quod ej deforciat though it be not méerly a womans Writ yet perhaps it comes not more âptly into consideration any where than in this place after the cui in vita If Tenant in âaile or Teââââ in Dower or Tânant per Courcesie or Tenant for tââme of life âââe their laââ by default in any ãâã quod reddaâ brought against them they haue no remedy if they were summoned according to Law but by this Writ which is giuen in expresse for me by West ãâã ãâã And ãâã the ãâã vpon ãâã ãâã the Writ lyeth against the ãâã and his heires in which case ãâã particular Tenant was without remedy at the Common law for a writ of right hee could not haue The Statute having âirst appointed ãâã woman shall recouer Dower where the husband ãâã his ãâã by deâault viz. by writ of Dower in which the Tânant must not plead the iudgement alone but he mâst also prââe her right sheweth also how actions run together When a woman already indowed or Tenant by the curtesie or in franck marriage or by other in taile or for life demand the estate which they theââââues lost by default in which cases when it is come to that that the Tenant mâst proâe hâs right the Demandants which cannot anâwer withoât them in the reuersion may vouch them âââiâ flent âeneâtes in priori brâââ And so the Tenant ââit loco actoris and if the Action were â Writ of right they may procéed to the grand aââise or battaile And furtâer Câm mulier ius non habens impeteâââ breâe de dote super custodem custos per faâorem mulieris dotem reddiderit vel defaltam fecerit vel placitum i ãâ¦ã ct peâ collâsionem defenderit vt dos fuerit mulieri adiudicata prouisum est quod cum ad aetatem veâeât haeres habeat actionem petendi seisââam ântecessoris sui c. it a tamen vt salua sit mulieâi exceptio quod ius hâbeât in dote quod si ostenderit recedat quiââa sit haeres in misericordia grauiter amerciâtur secunduÌ discretionem Iustieâ Then to the quod âi deforciat Si haeres vel alius de dore sua implacitaverit muliârâm si dotem suam per defaultam amisserit fiââ ei tale breue praecipe A. quod iuste reddaâ B. qui fuit vxor C. vnum messuagium cum pertinentâs in N. quod clamat âssâ rationabilem dotem vel de rationabilâ dote sua quod idem A. inâuste ei defoâciaâ So is âââzherberâ but by the old ââ bââ it must not be called an iââuââ forâing Ps. car le poll iniâste non habetur in Statâto which is true ad istud breue habeat tenens exceptionem ad osten deâ duâ quod mulieâ iââ non habeat in doââ quod si ââând at reced aâ quietus c. Last of all because vntill this time the Law ãâã no remedy vpon loââe by default âââ only a writ of right which serued not for them that âââld not speake de mero iure viz. Tenants for life in ãâã marriage or in taile âhe ãâã to aâoid that proiudiâe gââes them likewiâe their ãâã writâ of quoâââ defoâââââ ãâã according to their title either quam clamat ad termium vitae vel vt ius maritagium vel sibi haeredibus de corpore Tenant by the curtesie likewise though it be not expressed by the Statute may haue a quod eâ deforciat quam clamat tenere per lâgem Angliae which is by equity saith Fitzherbert If any Tenant of those particular estates lost by default by reason of non summons he may haue a quod ei deforceat or a writ of deceipt at his pleasure If a man lose by default in a writ of waste sued against him hee shall not haue a quod ei deforciat because the waste must be found by verdict nouell na bre Yet 2. Hen. 4. fol. 2. Hanc said if a writ to enquire of waste were awarded the Defendant which lost the land might haue a quod eâ deforciat videtur lex esse contra saith Brooke for it was there agreed by all the Court that attaint lyeth in an Action of waste and the party may challenge the Iury yea the booke at large is that the Viscount may quash the pannell though it be of his owne making so that this kinde of recouery is by verdict and not by default Note that 21. Hen. 6. Challenge is denied but by Newton and Vaston Iustices Markham and Portington Serieants attaint lieth But sée Sir Edw. Cokes Comment vpon Fitzherbert fol. 355. that is resolued that if the Tenant in a Writ of waste in the tenet lose by default a quod ei deforceaâ lieth as well as in assise and it is no reason to say that attaint lyeth against the Iury for so it doth in assise yet it is there said that attaint doth not lye after a Writ of inquirie of waste for it is but an inquest of office But there it is said that if the iudgement be a nihil dicit there a quod ci deforceat lyeth not for that is after appearance and is not a iudgement per defaultam And note there that if Tenant for life make default after default and he in the reuersion is receiued and plead to issue and it is found by verdict for the Demandant the default and the verdict are causes of the indgement and yet the Tenant shall haue a quod âi deforâeât vide Dod. fol. 556. more est quod ei deforceat 33. Hen. 6. 46. Littleton saith that Tenant for life or in taile may haue a quod ei deforciat as well vpon disseisen done to them as vpon recouery against them by default for before West 2. there was a quod ei deforceat at Common And all is one whether it be brought vpon a disseisen or a recouery for neither Writ nor Declaration make any mention of any recouery and the Tenant may choose whether hee will plead the recouery or other matter in barre which if he doe the Demandant cannot vouch
acsi esset tenens Neither is nul tiel recouery a good plea prima facie saue only for the Demandant when the Tenant pleads a recouery by default 2. Edw. 4. fol. 11. Littleton stands to his old opinion that there was a quod ei deforciat at the Common law and hee would haue it maintainable still by one that hath cause to bring a formedone or an assize or writ of entry sur disseism But the Court séemes to wonder at his sayings and also at the first when Billing comes and demands oier del record for the Tenant in a quod ei deforceat the Court askes him quae intendes per ceo so that with questionâ of adâiration they séeme plainly to reiect both opinions that there is any quod ei deforciat at the Common law giuen otherwise than vpon recouery by default and then the Tenant may plead âul tiel record for neither the writ nor the dâclaration makes any mention of the recouery But Liââleton comes once more 10. Edw. 4. fol. 2. and ãâã that once he brought a quod ei deforciat for his mother of lands which shee claimed to hold in Dower the Tenant said there was no record to ãâã that the ãâã were lost by default And Littleton challenged the plea because it might be the ãâã was in a ãâã Baron by default in a Writ of right in which ââââ quod ââ deforcâat lyeth and therein iâ no record ãâã is a record by default âhe Tenant said there waâ neither record nor recouery where any ãâã by default appeared and this was holden a good plea per leâ ãâ¦ã And Littleton relinquished his suit 44. Edw. 3. fol. 42. A quod ei deforciat was brought against the heire of one which recouered in an assize hee prayed the plea might stay for his non age and vouched to warranty W. N. c. the voucher was allowed but not his age because he might not haue had it in his first Action So that it appeares this writ lyes vpon recouery in assize and the Tenant may vouch But by Thorpe if it had béene the party himselfe which recouered he could not haue vouched Et mirum saith Brooke that vpon a recouery in assize which is by iury and not by default this writ should be And if yée looke this booke at large yée shall finde againe that this writ and the procéeding in it is méerly by the Statute vpon a recouery by default therefore a quod ei deforciat lieth and that vpon a recouery by default in a quod ei deforciat As 13. Edw. 1. a woman recouered in a Writ of Dower by default against Tenant for life of rent and afterward the Tenant which lost by default brought a quod ei deforciat against the woman and she lost by default and then sued a quod ei deforciat c. This is the highest Writ which these particular tenants can haue of their owne possession as it were their writ of right and it lieth against him which is Tenant though he be not party to the recouery as against the feofée of him which recouered But it lyeth seldome or neuer for a stranger to the recouery Yet 41. Edw. 3. fol. 30. the Baron and Feme ioyned in a quod ei deforciat of lands lost by the Feme before marriage bene And by Belknap it lyeth vpon a recouery in a sciri facias and it lyeth without shewing the record The Tenant in this Writ whether it be he which recouered or his alienée shall not haue view 41. Ed. 3. 8. If a man lose by default in a writ of right brought in a Court Baron he may remoue the record and haue a quod ei deforciat in the Common place and quaere saith Fitzherbert if he neuer remoue the record if he then may not sue his quod ei deforciat in which Court hée will either the common place or the Court Baron He agréeth if a woman lose by default and then marrie she and her husband may haue this Writ but if Tenant in tailâ lose by default and dye his heire must sue a Formedon for that is his Writ of right If lands be giuen to Baron and Feme in especiall taile the remainder to the Baron in generall taile and the wife die sans issue now if the Baron lose by default in a Praecipe quod reddat his writ of Quod ei deforceat must be Quod clamat tenere sibi haeredibus de corpore suo for so soone as the wife died the state apres possibility drowned in the remainder 50. Ed. 3. fol. 4. If in a Scire facias brought in Chancerie by an heire of full age to auoyd indowment assigned in Chancerie whilest he was ward he recouer by default the woman may haue a Quod ei deforceat in Commune Banco So likewise if a man recouer land by default in Scire facias out of some record in the Kings Bench the Tenant which lost by default may sue a Quod ei deforceat in the Common Place If two coparceners tenants in taile lose by default they may ioyne in a Quod ei deforceat yet the default of one is not the default of the other 46. Ed. 3. in Fitzherbert Nat. Breu. Brooke hath it also A Quod ei deforceat brought by two men heires in taile of Gauill kinde Quam clamaâ sibi tenere haeredibus de corporibus exeuntibus was awarded good though they could haue none issue of their two bodies 46. Ed. 3. 21. If tenant for life or in taile appeare in a Praecipe quod reddat and afterward depart in despite of the Court he shall lose the land but yet he may recouer by Quod ei deforceat for the recouerie is by default for that he doth not appeare when he is demanded But if tenant for life or in taile after the mise ioyned in writ of right depart in despite of the Court they shall lose the land and not haue a Quod ei deforceat for the Iudgement is finall If Baron and Feme seised in droit le feme for her life lose by default in a Praecipe quod reddat they may haue a Quod ei deforceat by Fitzherbert which is denied in the old Nat. Breu. 155. If tenant for life lose by a default in a Câssauit he shall haue a Quod ei deforceat by this Statute of West 2. If âe in reuersion vpon default of tenant for life pray to bée receiued plead and lose by action tried yet the tenant for life may haue a Quod ei deforceat for the Iudgement must be against him by his default If in a Praecipe quod reddat the Tenant vouch and the âouchee will not appeare so that the Tenant loseth by default of the Vouchée Fitzherbert makes it a question whether hee may haue a Quod ei deforceat or no because the Iudgement is not giuen vpon the tenants owne default But cléere it is if the Vouchée appeare enter into Warrantie and lose
by default that now the Tenant shall not haue a Quod ei deforceat but Iudgement to recouer in value against the Vouchée If Baron and Feme tânants for life in the wiues right lose by default and the Baron dye a Quod ei deforceat lieth not but a Cui in vita as vpon a Demise made by the baron In a Quod ei deforceat the Demandant must count that he was seised c. in his Demesne as of Francktenement or in his Demesne as of Fée tailâ laying the Esplees in himselfe but he néeds not shew of whose gift lease or demise though he claime for life or she claimes in Dower or sibi haeredibus de corpore And the Defendant must deny the Demandants right c. and shew how he recouered in a Formedon or in some other Action concluding that he is ready to maintaine his right aâd title aforesaid c. vnde petit iudiciâm Then the Demandant must either trauerse it or shew matter in barre but he shall not make defence and then plead inbarre as he shall doe in a Formedon Fiâzh 10. Ed. 4. fol. 2. Dictum fâât and the tenant may plead a release of all the Demandants right in a Quod ei deforceat But the old Nat. Breu. obserueth that if the Demandant vouchâone that entreth into Warrantie hee which recouered shall not plead the Vouchées release made after recouerie In a Quod ei deforceat the Tenant may vouch and so may the Demandant 50. Ed. 3. 25. But if the Demandant vouch his Vouchée cannot vouch ouer 10. H. 7. 39. The old Nât Bâeu acknowledgeth that in a Scire fâcias there lies no oucher yet if a man recouer by default in a âcâre facias out of a sine against Tenant in taile which bringeth a Qâod ei deâorceat if the Recouerer maintaine the title of his first Writ the Tenant in taile may vouch The Law séemes to be otherwise sée Plow 11â 206. 14. H. 7. 18. The questions arose vpon the Demandants vouching 10. H. 7. fol. 10. The first whether he must shew cause of the Warrantie or no. The second whether hée may vouch one that hath nothing in the reuersion The third whether he shall recouer in value Frowicke answered The Voucher is by Statute and hee néeds not shew any cause for the Statute of W. 2. cap. 3. saith Concedatur ei quod vocet ad warrant ac si esset tenens in priori breue in which case he should shew no Déed Second hée shall not vouch any stranger for the Statute is Ideo concedatur eis quod vocenâur ad warrantum quia non possunt sine his ad quos spectat reuersio respondere Third the Statute giuing voucher meanes that he shall haue the effect of his vouching id est to recouer in value And if a Statute giue action for a thing whereof the action did not lye at Common Law the partie shall haue iudgement processe and execution incident or belonging to that action and a reuersion is a cause of voucher and of recouerie in value Frowicke said fuâther That though he which leased cannot disclaime yet his Grantee may and award his charge and if voucher here should be no more but an aid prayer the Grantée might not disclaime for if Tenant for life pray in aid of him in reuersion hée shall not disclaime And Tenant by the courtesie cannot vouch for he shall neuer recouer in value SECT XXVII Admonition for women to take heed of him in the reuersion THe rest of this fourth booke shall consist most in warnings to widdowes and women tenants in âarticular estates that they doe nothing preiudiciall to their warrant It is true for the most part Ex quibus rebus maxima vtilitas ex iiâdem summa pernicies Water washeth and drowneth fire reasteth and it burneth the Sunne ripeneth and it scortcheth and seareth They that can help can hurt The reuersioner of a widdowes estate of whom she shall haue aid to defend her shall take her estate from her in many cases if she offend him in his reuersion SECT XXVIII Of Waste EVen by the antique Law of England if Bracton say truth fol. 316. The Gardian in Chiualrie committing waste did lose the wardship was auerred Et damna restaurabat But if Tenant in Dower committed waste there was no forfeiture of her land or parcell of it but he in reuersion might stop and let her from doing waste and such hinderance was no Disseisen Also he might haue if néed required a Non permittas to the Sheriffe commanding him not to suffer waste vendiction or exile in lands tenements houses woods garden c. and he might haue attachment against the widdowes or a Pone per vadios saluos plegios to make her come c. shew why shée committed waste If the waste in a wood were found by Inquisition the paine was no more but that from thenceforth shée should take no manner of Estouers either to build burne or inclose but it must be per visum forestariorâm haeredis And Bracton sets forth the Wâââ for placing and appointing of the Fârâeâcor or by the heire ad praedict ' ãâ¦ã custodiendum But now by the Stat. of Gloc. cap. 5. A writ of waste lyeth against Tenant in the courtesie or for life or for yeares or in Dower and the partie attainted in waste shall lose the thing wasted and make grée to trebble value of so much as the value shall be taxed at This Statute made 6. Ed. 1. ordaineth also that the Gardian which loseth his wardship for committing waste shall render dammages if losse of wardship be not equiualent to the harme Peraduenture Bracton wrote after the Statute for in one part of his Booke Ed. 1. is named â 3. But it is said Sir Edw. Câkes 3. Rep. fol. 40. a. that Glanuile wrote temps H. a. Bracton temps H. 3. Britton temps Ed. 1. and in Sir Edw. Cokes 8. Rep. in Iohn Webs case fol. 46. b. he saith that Bracton wrote in fine del Roy H. 3. and Fleta wrote in temps E. 1. But note a woman shall not answer for waste done before her time yea if land bée leased to Baron and Feme for terme of their liues and they commit waste if the Baron die now the widdow is not punishable for this waste For that which the Baron did during couerture was only his act and offence dead and determined with his person Concessum per curiam 2. H. 4. and Br. 59. in his Writ of waste Yet if the lease had beene made to a Feme sole who takes a husband which commits waste otherwise it is by 9. H. 6. 52. women need no further warning to take héed of waste they are of themselues so hauing SECT XXIX The Writ of Entrie in casu prouiso BVtlet eââârie good woman take héed how she maketh any gift or alienation of such lands as she holdeth in Dower For Glocest cap. 3. is if a woman sell or
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 âââuided 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 âe or they that next after âer deatâ should haue estate of inheritance c. ãâã ãâã or agréeing to the reââuerieâ where âhe same assâent and agréement is of record or inrowled Prouided also that it shall bee lawfull to euery woman being âolâ or married after the death of her first husband to giue sâll discontinue c. for terme of her life only after the course of the common Law SECT XXXIV The Expâsition 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 Lââââeton 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 Aât of 11. Hen. 7. all alienations recoueries releases and warranties of Tenant in Dower or âoynture 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 âoyntresse in taile whose warranty is lincall to her heires doe aliân and leaue assets yet the heire may enter Therefore hee is of the minde that this Statute being rigoroâs of it selfe ought to receiue a streât and litterall interpretation fol. 148. But Stamford Browne Brook eâpoââded 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 inâued great Argraments vpon this Statute The first is betwixt Winibishe and Falboâes a man enfâoffed 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 tiâle 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 paâts 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 âaââa matrâmoâiâ proloâââi and the ââi ante diuârtium 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 aââirmeth 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 Faââity to impaire their deceased husbands inheritance and disinhe it their heires to construe this Law for their coââââtion for the Law-makers of the statute were bent extremely against them though it be penall in some sort oâit selâe 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 leâied a fine of lânds of the wiues inheritance taking backe an estate in taâle 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