SECT. I.

ALl Law, saith Iustinian in his Imperiall in­stitutions, belongeth to persons, to things, or to actions: which division I acknowledge to bee good: and so in his method of the Civil Law, doth a Doctor and very learned man, Conradus Lagus, yet the same Lagus saith, it is too strait for his purpose, and therefore not féeling himselfe at ease in so narrow a distribution, to drive the formes of Civill Law to certaine heads, according to their materiall varie­ties, hée confesseth hée i [...] compelled to constitute a plurali­tie of Law members more then the very Law setteth down as appeareth in the 2. Part of his Method the 2. Chapter, yet a curious Caviler (I perceive) might find in Iustinians partition a very great red [...]dance rather then any de­fect, for Res is a transcendente, comprehending actions, persons, and what not. And actions in the widest significa­tion [Page 2] séeme alone to bée the theame and right subject mat­ter of Lawes and all Humane Constitutions: as for per­sons they are so many, and so differing, that I thinke there is no use, Custome, Injunction or decrée, but it appertai­neth to some person, and that in some peculiarity of diffe­rence, either in state, age, sex, function, profession, merit, or some other like severall regard, so that in mine opini­on, Law might bée dispersed into apt titles of this personall difference, in such sort as both Students, might come to the easier knowledge: the one of their learning generall, and the other of their particular duty. I though I bée farre un­able to produce a perfect method of the Lawes of England, as Lagus following his owne artificial project hath fra­med an excellent Deliniation of the Lawes of Rome, and though I bée unworthy to have the Marshalling of the titles of Lawe to bring all matter cohering under them, yet I will make a little assay what I am able to doe if I were put to it in a popular kind of instruction: following a frame by distinction of persons, chasing the primary distribu­tion of them made before the World was seven daies old, Masculum & Foeminam fecit eo [...], of which division because the part that wée say hath least judgement and discretion to bée a Law unto it selfe, (Women onely▪ Women) they have nothing to do in constituting Lawes, or consenting to them, in interpreting of Lawes, or in hearing them interpreted at lectures, leets or charges, and yet they stand strictly tyed to mens establishments; little or nothing excused by igno­rance, mée thinkes it were pitty and impiety any longer to hold from them such Customes, Lawes, and Statutes, as are in a maner, proper, or principally belonging unto them: Laying aside therefore these titles which include onely the masculine, as Bishop, Abbot, Prior, Monke, Deane and Chapter, Viscount, Coroner, together with those which bée common to both kinds, as Hereticke, Traitour, Homicide, Felon, Laron, Paricide, Cutpurse, Rogue, with Feoffor, Feoffée, Donor, Donée, Vendor, Vendée, Recognisor, [Page 3] Recognisée, &c. I will in this Treaty with as little tedious­nesse as I can, handle that part of the English Lawe, which containeth the immunities, advantages, interests, and duties of women, not regarding so much to satisfie the déep learned or searchers for subtility, as woman kind, to whom I am a thankfull debter by nature.

SECT. II. The Creation of Man and Woman.

GOd the first day when hée created the World made the matter of it, separating light from darkenesse: the second day hée placed the Firmament which hée called Heaven, betwixt the waters above the Firmament and the waters under the Firmament: the third day hée segregated the waters under the Firmament into one place, calling the waters Seas, and the dry land Earth, which hée com­manded to bring forth [...]ructifying herbes, plants and trees: the fourth day hée made the Sun, the Moone and the Stares in the Firmament, to bée for Signes, Seasons, Daies and Yeres, and to give light upon the earth: the fift day he made by his Word the Fishes of the Sea, Whales and every fethered foule of the ayre, commanding them to increase: the sixt day he made Cattle, créeping things, the beasts of the Earth: and now having made all things that should be néed­full for them, hée created Man, Male and Female made he them, Bidding them multiply and replenish the Earth, & take the joynt soveraigntie over the Fishes of the Sea, the Foules of the Ayre, and over all Beasts moving upon the Earth, Genesis 1.

[Page 4]In the second Chapter Moses declareth and expresseth the Creation of Women, which word in good sense, signifieth not the woe of Man as some affirme, but with Man: For so in our hasty pronouncing wée turne the preposition with to woe, or wée, oftentimes: and so shée was ordained to bée with man as a helpe, & a companion, because God saw it was not good that Man should bée alone. Then when God brought Woman to Man to bée named by him, hée found straight way that shée was bone of his bones, flesh of his flesh, giving her a name, testifying shée was taken out of Man, and he pronounced that for her sake man should leave Father and Mother and adhere to his Wife which should be with him one.

SECT. III. The punishment of Adams sinne.

REturne a little to Genesis, in the 3. Chap. whereof is declared our first parents transgression in eating the forbidden fruit: for which Adam, Eve, the serpent first, and lastly, the earth it selfe is cursed: and besides, the participa­tion of Adams punishment, which was subjection to morta­lity, exiled from the garden of Eden, injoyned to labor, Eve because shée had helped to seduce her husband hath inflicted on her, an especiall bane. In sorrow shalt thou bring forth thy children, thy desires shall bee subject to thy husband, and he shall rule over thee.

Sée here the reason of that which I touched before, that Women have no voyse in Parliament, They make no Lawes, they consent to none, they abrogate none. All of them are understood either married or to bée married and their desires or subject to their husband, I know no reme­dy though some women can shift it well enough. The common Law here shaketh hand with Divinitie, but because I am come too soone to the title of Baron and feme, and Adam and Eve were the first and last that were ma­ried so young, it is best that I runne backe againe to consi­der of the things (which I might seeme to have lost by the way) that are fit to be knowne concerning women before they be fit for marriage.

SECT. IV. The Ages of a Woman.

THe learning is 35. Hen. 6. fol. 40. that a Woman hath divers speciall ages, at the 7. yeare of her age, her father shall have aide of his tenants to marry her. At 9. yeares age, shee is able to deserve and have dowre. At 12. yeares to consent to marriage. At 14. to bee hors du guard: at 16. to be past the Lords tender of a husband. At 21. to be able to make a feoffement: And per Ingelton there in the end of the case, a woman married at 12. cannot dis­agrée afterward, but if she be married younger, shee may dissent till shee be 14.

The age of 7. yeares, when Bracton wrote this aide, for making the sonne a Knight, or marrying the daughter, was due de gratia & non de Iure, and pro necessitate & indigen­tia domini capitalis: measured by the indigence of the Lord, and opulence of the tenants: But West. 1. Cap. 35. in the third yeare of Edward 1. the Law was made certaine, the Lord shall have aide of his tenants, as soone as his daughter accomplished 7. yeares age-for the marriage of her. Viz. xx. s. of a whole knights fée, and xx. s. of xx. I. [...]and in soccage, and so forth, according to the rate more or lesse.

The King shall have this aide according to this propor­tion, by a Statute made 25. Ed. 3. and for this aide every Lord may either distraine or bring his writ de auxilio ha­bendo at his election, but tenant by grand serjeanty, or petit, shall not pay this aide. Mich. 21. He. 4. fol. 32. no more shall coppy-holders, as séemeth by the writ, both in Fitzherbert and Bracton, for it is, Precipimus ut habere fa­cias rationabile auxilium de Militibus, et liberetenentibus. Now if the Kings writ runne for it before the Statute, how is it that Bracton saith it was due, but de gratis, That per­haps [Page 8] he meant but for the quantity, ipse videri [...], if the father dye, the daughter being unmarried, shee shall recover so much as was gathered and not paied her at the hands of the executor or heire, but this aide is onely for the marriage of the eldest daughter, and not for no daughter, where many make but one heire: But sée Bracton fol. 36. b. Where he saith, primae genitae filiae non dabitur auxilium tale, quia istud auxilium pertinet ad Cap. dom. sicut pertineret si non esset nisi unus haeres cum omnes sunt quasi unus h [...]eres.

SECT. V. A Woman compellable to serve.

THe next age of a Woman is 9. yeares when shee is dowable, but wee will stay a while with the virgins, concerning whom, if they be in the power and governance of parents, masters, or prochein amies, or if they bee poore, the Law differeth little or not much from the common forme apperteyning unto males, unlesse it been in cases of rape, which I reserve to the end of my discourse, where the poore have least need of subsidie, onely this I observe here, By a Statute made 5. Eliz. ca. 4. Two Iustices of peace in the Countrie, or the head offi­cer and 2. Burgesses in Cities, &c. may appoint any wo­man of the age of twelue yeares, and under 40. being un­maried, and out of service, to serve and bee retained by yeare, weeke, or day, in such sort and for such wages as they shall thinke méet, and if she refuse, they may commit her to prison, till she shall be bound to serve.

SECT. VI. Of Heires.

BVt leaving this sort to the title of day laborers, come we to women wards in the custody of their lords. And [Page 9] take for the foundation here the Statute it selfe West. 1. Cap. 22. This Statute expresly reciting the materiall point of the Statute of Merton, willeth it in every of them to be observed, Merton Cap. 6. and the Statute of Merton is this, Whosoever lay person shall bee convicted bee hee parent or other, to have detained, abduced or married pue­rum aliquem, he shall yéeld the value of the marriage and be imprisoned untill yee have both made amends to the partie damnified, if the ward bee married, and satisfaction to the King for the transgression hoc de haerede infra 14. &c. but if any heire of 14. yeares age, or upward till 21. shall marry himselfe without gréeing with his Lord to defraud him of the marriage, where the Lord offered him a conve­nient marriage, and without disparagement, there it shall be lawfull to hold the inheritance untill and after the full age of 21. yeares, by so long time as shall suffice to reape and receive the double value of the marriage, secundum est inationem legalium hominum et secundum quod p [...]oeodem maritagio prius fuerit oblatum, sine fraude & malitia, et secundum quod probare poterit in Curia Dm. Regis. Let us speake of heires, and see a litle in what cases a woman shall inherit, It is knowne to all, that because women lose the name of their ancestors, and by marriage usually they are transferred in alienam familiam, they participate sel­dome in heireship with males, and therefore Bracton is bold to say, Nunquam ad successionem vocatur femina quā ­diu haeres superfuerit ex masculis, but to this rule he subjoy­neth exception and examples, the very same which are in Littleton, To wit exception of right line, right bloud and maner of giving.

SECT. VII. Of the right Line.

A Female may be preferred in succession before a male by the time wherein she commeth: as a daughter or [Page 10] daughters daughter in the right line is preferred before a brother in the transversall line, and that aswell in the com­mon generall taile, as in fee simple, for example, land is given to a man, and to the heires of his body, who dyeth ha­ving issue two sonnes, of which the eldest dieth, leaving issue a daughter, this daughter shall inherit by the right of blood, also a woman shall bee preferred propter jus sanguinis: Example, a man hath issue a sonne and a daughter by one venter, and a sonne by another venter, the first sonne pur­chaseth in fee, and dieth without issue, the sister shall inherit. So it is where a man seised in fee hath issue, ut supra, and dieth, his eldest sonne entereth and dieth without issue, &c. Bracton who hath both these cases, disputeth here as if he were seeking a knot in a bulrush, and he findeth a difference where the inheritance is Discendens and Perquisita. But Littleton is plaine though the second sonne bee heire to the father in the last case, and therfore should have had the land, had the eldest sonne neuer entered, yet the case being as it is: possessio fratris de feodo simplici facit sororem de integro sanguine esse heredem. & whether the fee was descended, or perquisit what skils it, here it must needs be, if the brother was heire of the blood of the first purchasor, that the sister of the whole blood is so too, yet there is a great difference be­tweene land purchased by him that died seised, and land dis­cended unto him, for the first may goe to the heire on the fathers side, & for default of such to the heire of the mothers side, but land discended must alwaies goe to heires of the blood of the first purchaser, and the case may bee such that a female shall cary away inheritance from a male, though there be no difference of right line, or in the integrity of blood, which Bracton calleth jus sanguinis duplicatum: as where Iohn Stile purchaseth in fee, & dieth without issue, an ant or ants, or uncles daughter on the father side, shal in­herite before an uncle, or uncles sonne on the mothers side, where they be both collaterall and the integrity or neernes of blood is alike. Put case, that the purchasor died leaving [Page 11] issue only Iohn the younger, and this Iohn married or un­married dieth without issue, now cannot the land goe to the heires on the part only of the mother of young Iohn, and therefore ye must ascend a step higher to the marriage of the father and mother of the first purchasor, if ye will finde who shall inherit, where if there be neither brother nor sister to the purchasor, a daughter to the eldest uncle on the fathers side may inherite before any of the mothers side, yea and before a sonne of the second uncle on the part of the father, and this by the worthinesse of blood. I will not examine the crainkes of discent, but turne to the case, where possession of the brother excludeth a brother and taketh in a sister: If a man hath issue a sonne and daughter by one venter, and a sonne by another, and give land to the eldest sonne in taile, now if the father die and the reversion in fée discend to the eldest sonne, who likewise dies without issue of his body, the second sonne shall have this land: For here was no possession, but an expectance of fée simple in the eldest. Per omnes Iusticiarios de Communi Banco. 24▪ E. 3. fol. 13. For it is possessio fratris & non reversio fratris, &c. Yet Thorpe Iustice of the Kings Bench thought the land should goe to the daughter, Brooke con. Brooke discent. 13. A­gaine, afine was levied to I. and A. his wife in taile, the remainder in fée to A. they had issue a sonne, and the hus­band died, the wife tooke another husband, by whom shee had issue another sonne and died: the eldest sonne entered and died without issue, the collaterall heire to him entered as into the remainder in fée, and the youngest sonne of the halfe blood, to execute the fée, brought a Scire facias, which was holden good, for though the eldest might have charged, for [...]ited or given the fée simple by atteinder, yet it was not actually in him, and therefore the demi sanke none impedi­ment but the younger sonne might have it, as heire to his mother, 24. E. 3. fol. 30. Which cases prove, that the pos­session of a brother to convey the fee to a collaterall heire, if it be not apprehendeth actively, the generall heire to the [Page 12] common ancestor may enter, Therefore where there is a son or daughter by one venter, and a puisne sonne by an o­ther venter, if the father die seised of an advouson or a rent, and the eldest son died before he present or receive the rent, the daughter shall not inherit, and if the father die seised of an use in fee, possessio fratris facit sororem esse haeredem: by taking the profits of the ground. 5. E. 4. 7. Where it is said that if the father by testamēt bequeath the profits for tearme of yeares, this letteth not the possession of the eldest brother: otherwise it is, if it had beene for tearme of life, and the like difference is (by this booke) if a lease be made for yeares or for life of lands not in use, &c.

SECT. VIII. Where the manner of gift altereth the discent.

BRactons first exception to his general rule, that a Wo­man shall not inherit, when there is an heire male, is, Nisi contrarium faciat modus donationis. His example is, A man giveth land to one in mariage with his daughter, to them two and to the heires of their bodies, they have issue a daughter, and the husband dying, the wife taking another husband, hath by him a sonne and dieth, the daughter shall inherit per modum donationis, the case is plaine.

But Littleton hath a limitation, where modus donati­onis, doth cleane exclude Women from inheriting, That is, where lands are given to a man & the heires male of his body: now if he die having issue a sonne and a daughter by one wife, and a second sonne by a second wife, the daughter can never inherit, nay, if he die having issue a daughter onely, which daughter hath a sonne, neither daughter nor son shall inherit, for whosoeuer shall inherit by force of an in­taile made to heires males, must (per modum donationis) be males & cōvey his discēt to it per heirs males, which because [Page 13] the sonne cannot doe here, the donor may reenter. But Littleton saith also (lest women should take the matter un­kindly at his hand) that where land is given to a man, & to the heires females of his body, his issue female shal inherit per formā doni & not the issue male: for the will of the giver must be observed. He hath another case which I may not o­mit: When lands are given a man, & to the heires males of his body, which have issue 2. sonnes, & the eldest dyes having issue a daughter, if hée lease the land for tearme of yeares, the reversion descendeth to the sonne: but if the lease bée for tearme of life of the lessée, the reversion and the fée simple descendeth to the daughter, the discontinuance is the cause, & here the daughter is in not in the per, but contra modum do­nationis by violating the will of the giver.

SECT. IX. Where a woman comming to lands shall retaine them, &c.

NOw I will shew you where a female having gotten inheritance: per modum donationis, or otherwise, shall retaine it, and where not. Marke well this case, Iohn died seised of fée, leaving issue Robert the eldest sonne, and Richard the puisne: Robert entred, tooke a wife and had issue Alice, which Alice died, hée tooke another, and leaving her great with childe hée died, the Lord seized the land and ward of Alice, and granted the custody to one which indowed the wife of Robert, she was delivered of a sonne William, The Lord seized William his ward which lived ten yeares, and died without issue, Henry the sonne of Richard the se­cond sonne of Iohn entereth, Alice entereth upon Henry, and hée brings an assise: now because the possession of the Lord was seisin and possession of William, to whom Alice was but [Page 14] of the halfe blood, it was awarded that Henry should recover. But by the opinion of the Court, the land which the wife held in dowre should goe to Alice: for therein William had Broke dis­pent. pl. 19. no more but a reversion 8. Assisa pl. 6. Againe, Henry sei­sed of tenements deviseable in Winchester (where the Cu­stome is, that hée which is seised by devise may not with warranty or without warranty make alienation to barre the reversion or remainder (deviseth them to his wife Alice for tearme of life, the remainder to Th. his sonne for life, so that Th. should make no alienation: quo minus tenementa devenirent propinquioribus haeredibus de sanguine puero­rum post mortem predicti Thom. Henry died having is­sue Steven an elder sonne, and Maud a daughter, which had issue Eliz. Steven died without issue Alice, the wife entered and died seised, Tho. entereth and alieneth in fée with war­ranty: Ma [...]d dieth, Elizabeth maketh claime by taking the haspe of the doore in her hand: Tho. dieth without issue, Eliz. entereth upon the alienee, he puteth her out shée, bringeth an assise.

It was holden that the heires of Henry had nothing in the fée simple by the limitation, which went not to his chil­dren, but to the next of blood to his children, excluding ses infants demesne, And by Wilby, if B. make a lease to Alice for life, the remainder to the néerest of blood, if he die having issue 2. sonnes, and the eldest dye having issue a sonne (though this issue be heire to B,) the other sonne after the death of Alice shall have the land as néerest of blood, and (by Greene and Seaton) if there had béene severall issues, of divers sonnes and daughters to the devisor, when the re­mainder vested it should have gone to them all. But here because the daughter of him had issue a daughter when the tenant for life died, and there was not issue of any sonne, at the instant to take from her, or with her, this Daughters Daughter shall have all, and though there came an after borne sonne of any of the brethren, she may detaine all, &c. for a remainder vested is not like to fée simple discended [Page 15] 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 tenāt 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 Ma [...]d in Eliz. viz. which recovered by award, 30. Assi. p. 47. But where there is father and sonne, which sonne purchaseth and dieth without issue, and an uncle entereth, if two yeares after the father hath a sonne by the mother of the purchasor, this sonne may enter and put out the uncle, and the reason of Law is that hée that comes in by purchase must be capax, at the time when the purchase vest in him, but in case of discent it is not so requisite. Perk. in his Chapter of devises saith, that if a devise bée made to a colledge, which is not a colledge at the time of the devise it is a void devise, although afterward it be made a colledge: & upon the same reason, is Dier 13: Eliz. 303. of a devise to an infant in ventre sa mere: And where a man dieth seised and his daughter entereth, &c. a son borne afterward may enter, but it is not so in case of purchase, &c. for if a woman consent to a ravishor, & her daughter and heire enter by the statute, 6. R. 2. ca. 6. the son Posthumus shall not put her out, no more shall he, where a daughter and heire entereth for condition broken, and where a daughter hath a villain by discent, which purchaseth & she entereth into the perquisits an after borne sonne her brother shall have that which discended, viz. the villien but not the land: these cases hath Brook Discents, 58. out of the Doct. and Student, 5. Ed. 4. fo. 58. in the case of Elizabeth Venor, agreeth concerning entry made by 6. Ri. 2. And so doth Hales and Mountague, in the case of Wimbish and Talbois, yet Mountague Chiefe Iustice taketh there a [Page 16] 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.

SECT. X. How the law came to a certainty in the point of a womans being out of ward.

CHoose now whether ye will learne of Glanvil and Bracton, what the law was in their time, or of Mr. Littleton, that wrote many score yeares after the making of Westm. 1. In mine opinion, neither did this law bring any advantage to Lords, neither doth it shew that heires females, oftenants in Chivalry, might en­ter at 14. yeares, neither is there any cléere proofe that the law was cléerely so taken. The letter of the Statute doth [Page 20] not expresly give 2. yeares to tender mariage, but rest rai­neth covetous Lords, that they shall not hold the land a­bove 2. yeres after the 14. which séemech plainly to import, as it is reasonably taken both by Needh. & Billing 35. H. 6 that before the making of this law, the age of male and fe­male in this point, tooke no difference. I may be asked, how it commeth then to passe, that the law is so cléere in that which Littleton concludeth withall, viꝪt. That the Lord shall not have two yeres to tender his woman ward marri­age, save onely where she is under 14. and unmaried at the death of her ancestor: before the Statute, it was either out of doubt, that a daughter and heire, should not be cleane out of ward. at 14. or at the least it was doubted, whether she should or no: and the words of the Statute whatsoever Mr. Littleton saith, maketh not the matter plaine enough. But we have the helpe of Reverend Prisot, in the Booke a­bove mentioned. 3. 5. Henrici 6. Westm. 1. (saith he) was made in the time of Edward the first, who purpo­sing to put all the law into certainty, and in writing, be­gun to makes Bookes thereof, by helpe of the most sage men of the law in this Realme, Iudges and others. And he made a Booke two yeares after the making of this Statute in which all the Statute is rehersed, which booke goeth on, and saith by expresse words: that no woman shalbe said to be vn­der age, thereby to be in ward after she is past the age of 14. Thus saith Prisot. By him therefore and by other Iustices in the Eschequer chamber it was ruled cleere, that where the Kings tenant in Chivalry died leaving his daughter and heire of the age of 15. yeare, she should not be in ward. And Billing saith for law, that if betwéene the 14. and 16. yere, when an heire female is in ward another ward falleth which holdeth in Chivalry of the first, the Lord shall not have gard, per cause de garde, for the first ward is out of his power to all intents excepting onely tender of mariage. And another Iustice saith, if a tenant hold ofone lord bypriority, & of another by posteriority, the daughter heir vnder. 14. shal [Page 21] be in custody of the anteriour Lord till she be 16. but shée may enter vpon the land by posteriority, as soone as shee commeth to 14. likewise if the Lord hath once maried this woman-ward, after the age of 14. she may presently, enter into her land: for now the Lord hath had all that, which to him belongeth, the marriage. And the course of the Chan­cery is to make livery, before: 14. cum exitibus, but after 14. livery tantum: vid. 4. Eliz. 213. Dyer. & Dyer. 20. Eliz. 362. 1. Hen. 720. on livery for then such an heire is to have the profits by the law. To come to an end of this mat­ter, I will not forget, that even in M ^r. Littletons daies very néere two hundred yeares after the making of West. 1. by the last Statute, that ever Hen. 6. made in the yeare of his reigne. 39. ca. 2. it was established by Parliament that women being of the age of 14: yeares at the death of their ancestors, without question or difficulty shall have delivery of their lands and tenements discended to them: for so the Law of the land wils.

SECT. XI. A search for the true reason, why a woman is hors du garde, at the age of 14. yeares.

THe principall reason that mooved our law foun­ders, so soone to set women out of ward is none o­ther then hath béene already declared, she is quickly able domui preesse, viro subesse, and her husband for her shall doe Knights service, or some other for him, and in his stead, the cases are therefore 26: H. 8. fo. 2: If the Kings tenant in chiefe, having feoffees to his use, marry his daughter, vnder age, to a man of full age, and dye, this daughter, being heire, is out of ward for her body though not for her land: for that shalbe in ward in this case, an [Page 22] the Kings possession must bee voided by suite and livery. But had she béene of full age of 14. yeares at her fathers death, no such thing had néeded, neither should she have bin in ward, nor the King have any primer seisin: For that was not as yet seene into by the Statutes of H. 7. which had given ward, reliefe and herriots upon the death of him, which died intestate and seised of onely a bare use: againe, if the King have a woman ward which he marrieth before she be 14, she shalbe be to all intents out of ward at 14. and may im­mediatly sue her livery. 28. H. 8. for as a ward masculine, married by his Lord vnder 21. shalbe sui luris at 21. so shall a ward feminine being maried before 14. bee out of ward at 14. altogether. In the old Natura brevium in the writ de electione custodiae. it is said, that where the tenant marieth his daughter being under age, to a man of ful age, & dieth, the daughter shalbe out of ward. But if he mary his daughter, being of full age, to a man under age, and die, she shall be in ward. This Mr. Brooke taketh to be no law: even so doe I: his reason is, that no Lord can have the marriage of her that is already married, or compell any heire to be twice married. For if a tenant marry his son and die, and then the sonnes wife dieth holden, the Lord shall not have his body in ward to marry him. Which is cleare: specially if the sonne were infra annos nubiles at the time of his fathers death. But certainely, if the Lord couple his ward to a wife which dieth, the ward is at full liberty for his body, and shall not be married by his Lord.

The reason why an heire female of full age married by her father to a man under age, should not be out of ward, must be because the supposition of law faileth: her husband is not able arma portare & officiis fungi militaribus, vel pro iisdem faciendis cum alio pacisci. But this notwith­standing, me thinketh a woman married, should bee out of ward for all her husbands nonage, thought the woman bee but twelve yeares old a boy knight shall be out of ward for his body: shall a woman innupta & matura viro be in kéep­ing [Page 23] of any but her husband, shall shee at 14. yeares age bee ward because she hath a husband but 19. yeare olds, who should not have béene in ward had she had no husband at al? non videtur. The husbands ability to doe souldiers service, is neither the onely nor the principall cause in mine opini­on, why a woman is by law out of ward at 14. yeares age. But law going with the trace or tide of nature, that hath made women (as Bracton saith) fit to carry cey and key cloge betimes, suffereth them to mary very early: And it should be a mischievous, inconvenient, unjust, and unnatural law, that should hold a woman from her husband, or from her inheritance, which is without offence of law maried, & fully able to bring forth children, because her husband is not fully fit for all mannor of horsemanship. Be not there­fore good woman absterred from a young husband, by old natura brevium.

SECT. XII. How a woman that hath beene in ward, shall come by her land.

A Woman past 14. yeares of age at her ancestors death shall not be in ward: And where she is in ward till 16. she may have action at 16. against her Lord for her inheritance, according to the Statute. By Littleton, she may enter which standeth with reason, for the Statute gi­ving action to her affirmatiuely, doth not disaffirme the en­trie which she might have had, by the auncient catholicke Common law: if shee cannot or dare not enter, she may have alone (if she be alone) or with her fellowes (if she be a coheire) a writ of mortdancester, as well against her Lord as against any other abator. Marlbridg ca. 16.

But if shee be ward to the King, against whom a mort­dancestor, [Page 24] writ of Aile, Besaile or Cosinage then it melts into petition, and she must sue for livery. And where the King hath a woman in ward with some lands holden of o­ther Lords in socage, such a ward shall not so soone as shee is 14. yeare old have livery of that socage lands, but she must arry unlesse she be married, in the meane while till she be 16. because livery must be at once parcell, & not by percels. Yet if 3. copartners be in ward to the King, she which first commeth to age, shall sue her livery, and have partition vp­on it.

SECT. XIII. Of Parceners.

FOr, it must not be omitted there where a man dieth sei­sed of any manner of inheritance, having issue none but daughters, to whom such inheritance descendeth, when they have entered by Litt. they are parceners, one heire to their common ancestor, & so are the heires of females parceners and they ought to come in by descent, for if by purchase they are jointenants: & they are called partners (saith he) because they are compellable by a writ de partitione facienda, to divide the inheritance amongst them. Like, or the same law is, where a man dying seised having no issue, his land goeth to his sisters, or aunts, that are partners, if one of them dye before partition made, her part shall descend to her issue, and for want of issue to her coheires, which shalbe déemed and adjudged in, by discent and not by survivour.

SECT. XIII. Difference betweene partners and jointenants.

FOr although partners have a conjoyned estate, yet law maketh a great diversity betwixt them and jointenants: Partners by the cōmon law, are onely females or the heirs of females, which also must be in, by descents, for if sisters makeajoint purchase they are jointnants, and not partners. Betwixt whom observe here the germaine & apparent dif­ference: If two coparceners be of lands in fee simple, wher­of one before partition made chargeth her part with a rent & dieth without issue, her coparcener taking as heire and by discent, shall hold the land charged. But it is otherwise be­twixt jointenants.

Also partners may devise and give away their part by testament, so cannot jointenants.

SECT. XV. Difference betweene partners and tenants in common.

ANd as in the cases precedent, parteners are like tenants in 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 [Page 26] 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 tenemēt of this moitie no possession. But partners whose right is from one roote have a more co [...]ect possession then tenants in common, and may release one unto another.

To conclude this point, partners differ from both jointe­nants and tenants in common in this, that partners are and alwaies were compellable to make partition, so was ney­ther [Page 27] 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, shalbe 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 cōpellable 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 [Page 28] 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 sequendū 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 lād, 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 [Page 29] 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 alien [...].

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 whō 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, Precipimu [...] to the Lord, ut sine dilatione plenum rectum teneas A. de decem acris cum pertinentii [...], quas clamat esse rationabilem partē 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 par [...]e of this ap­pendant or appertenent which shall say, quod clamat tenere ad liberum tenementum.

[Page 27]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, terre­tenants (for so it must bée) and the heire of an heire may sue for part of the seisin of the cōmon ancestor, there battail, or grand assise, voucher or view lie not, neither is nōtenure 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.

[Page 32]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 lāds, & 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 shalbe 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 [Page 33] receiued for equality of partition, Fitzherb. fol. 252. & Plow. 134.

Partition of lands, that one partner and her heires shall haue and hold them from Easter to the gule of August, a­lone and by her selfe; and the other and her heyres from August till Easter in the like manner, was awarded a good partition in the time of Ed. 2. and by similitude of reason (saith Fitzherbert) it is a good partition, where two Mannors descend to two Copartners: that the one shall haue one Mannor by name, and the other the other for a yeare, to change possession the next yeare, and so forth from yeare to yeare commutatiuely, betwixt them and their heyres for euer, No. na. br. 62. l. & m. Et auxi. partie. que lun▪ auera le ter [...]. in ta. & laut. le ter. in fee simple est bone par­tic. And partners may make partition for terme of life or for terme of yeares, and if one Co-partner lease her part to another Co-partner for terme of yeares, yet shée may sue a Writ of partition against her partner the Lessée, though the terme be vnexpired. 33. Hen. 8. Dyer 52. is a quaere. If the one of two Co-partners lease for terme of yeares, that which to her belongeth, and after the other bringeth a Writ of partition against the Lessor, to whom in this partition there is alotted a lesse portion then the due, some thinke (saith he) that the Lessée without re­medie must hold himselfe contented, aswell as the part­ner which leased; But if the partition had beene without writ, quaere.

SECT. XIX. Of partition by Writt.

VVHen Copartners cannot all agree to make par­tition amongst themselues, the aptest meane to compell them, is a Writ of partition. And if there be foure [Page 34] Copartners, one may haue this writ against three, or two against two, or thrée against one.

The gist of it by the old Na. bre. is where the one ente­reth kéeping out the other, and refusing to make partition, but l [...]t. layeth it where they be all in possession, and so soundeth the Writt it selfe; for it is a commandement to the Sheriffe, Si A. fec [...]it te securum, &c. summoneas B. that she come and shew why she refuseth or permitteth not partition of a Mannor, or a wood, or such like, the which with the appurtenances, the said A. and B. doe hold to­gether, vndiuided of the inheritance of [...]. their father, Mo­ther, or, &c. Fitzherbert in his Writt of partition, setteth downe the forme as a Carpenter should set vp a frame of a Cottage, being both to shew on what soile it should stand, for he sheweth not the generall gist of his Writ, and that his President might make plaine, which is not doubtfull, that when Partners are in possession, one or more may haue a partitione faciunda, yet he toucheth not the question, whether a Partner ousted, or not suffered to enter, may haue it.

40. Hen. 7. fo. 9. in a Writ of partition, Keble plea­deth for his Clyent, that the defendant was sole seised, sans ceo, that he held pro indiuiso, with the Plaintiffe: by Vauisour that is no good plea, for admit that shee bee sole seised, yet partition lieth well enough, but by Brian Chiefe Iustice, it is & hath been adiudged a good plea, in our books, for one shall not come to diuide that with another wherein he hath no part. And (saith Keble) in a Writ of waste betwéene tenants in Common it is a good trauerse, Non tenet insimul & pro indiuiso, likewise is it here where we haue trauersed the point, and supposall of your Writ, and the partie by nuper ob [...]jt, may recouer in seueraltie, and partition shall be made, and it was said that the seisin of one parcener, is the seisin of both, and so the reporter think­eth, if one enter, &c. Where she which entereth clai­meth in the name of her selfe, and of her partner I can [Page 35] well agrée, or if she enter not denying the right of her fel­low: And if after the death of the common Ancestor, A. which is one Coheyre enter silent into the whole inheri­tance, B the other Coheyre may now perhaps (without o­ther entry) in the name of her selfe and her Companion maintaine a possessorie action, against a stranger, but when a Sister entereth vindicating all to her selfe by pur­chase, or obiecting against her Sister, Bastardie, or At­tainder, and keeping her out of possession, this I trow is no entry of both, but such a deforcing as the Writs de ratio­nabili parte, and the nuper obijt, were made to redresse: If euery seisin of a partner must néeds be the seisin of all those that can claime as coheyres, then there is no deforcing or néed at all of the forenamed writs.

But séeing that law hath appointed them for lands in see-simple, and a formedone for land in taile against de­forcers of their coparceners, I say, that seisin of one of them is not seisin to all of them, and hauing a chiefe Iu­stice on my side, I dare hold, that non tenet pro indiuiso is a good plea in a Writt of partition, which if it be brought by her that is deforced and out of possession, it com­meth preposterously out of kind and season, and out of the order that our Law-founders at the first ordained, See Brooke Coparceners per totum, ou entrie de vn est le entrie del auter vers estrange pur lour advantage, mes nemie pur disaduantage 43. Ed. 3. 19. & lentrie d'un nest l'entrie de ambideux entre eux mesmes. 40. E. 3. 8.

SECT. XX. of Hotch pott, according to Littleton.

FOr putting of lands in Hotch-pot, there is no where so full, and plaine learning, as in M. Littl. third booke c. z. If (saith he) a man seised in fée-simple lands, hauing issue two daughters, of which the eldest is married, giue parcell of those lands to his daughter and her husband in franke­marriage, and die seised of other lands, excéeding in value those which are giuen, &c. the husband and wife shall haue no part of this remnant vnlesse they will put the land giuen vnto them in Hotch-pot: for example, If the father had 30. acres, and gaue 10. now after his decease if the donées re­fuse to make commixtion, the other daughter may enter and occupie the whole 20. and hold it to her selfe: But putting all in Hotch-pott, to finde the intire value, (for it is but an estimation or valuation) finding the acres to bee of like goodnesse, the Donées in franke-marriage shall haue an n [...]reasement of 5. acres to hold all 15. in seueraltie, so that [Page 42] alwayes, the land giuen in frank marriage, must remaine to the donées and their heyres, for else (saith Littleton) should follow a thing vnreasonable and inconuenient, which al­wayes the Law detesteth, there is the same Lawes betwixt the heyres of Donées in frank marriage, and the other partners, if the Donées themselues die, before their an­cestor, or before partition.

This putting of Land in hotchpot is where the other lands descend from the Donor onely, and not from any o­ther auncestor, for if they descend from the father or bro­ther of the donour, from the mother of the Donée, that which is equallie so discended, shall be without Commix­tion equally diuided: Also (by Littleton) if the land descen­ded be of equall valew with the land giuen in franke Mar­riage, Hotchpot should be then in vaine and to no purpose, and sée Littl. Chapter of parceners more concerning such Hotchpot.

SECT. XXI. How Partition shall bee auoided when it is by Iudgement.

MUch of that which Littl. hath taught for the auoyding of partition (as I collect) must bee vnderstood of partition in pais, and by agréement, for when it is made by Iudgement in a Writ of rationabile parte, nuper obijt, or assise to hold in seueralty, or by liuery in the Chancery, or else by Writt, de partitione, in which cases there is commission or authority deriued from the Prince to extend and to make partes by the Oath of 12. men, &c. there is now no reason, that a matter of this substance, circum­stance and solemnity, should be all layd on the ground, by a bare entrie, yet that silly poore women altogether igno­rant of the law, might not feare that that Partition which is made by the Law, that by law there were no meanes to reuerse it, but that still it must stand impugnable, whatso­euer iniquitie or inequality it had, Old Breton saith in the end of his 17. Chapter, Si ascum [...]ercener soit que se tient nient paie de cel partison si ferres nous vener le process, & le record deuant nostre iustices de banke, &c. illonques soient les errors redresse, &c. He concludeth somewhat like Bracton. Et apres le Assignement des purparties fuit per sort ou per election: foit le seisin per iudgement de nostre court: But to the matter. There is occurring in many of the yeare bookes, remedies against partitions, as if iudgement be giuen in a nuper obijt, of purpartie, and sei­sin granted to hold seuerally, yet the partition may be a­noyded by error in the first iudgement. If partition bee made in Chancerie, and a lesse value then is due alot­ted to a puisne Sister, which remaineth still in ward, she may haue remedy by scire facias when shee commeth to full age: So whether partition be of it selfe altogether [Page 45] vniust, or in part inequall, through malice, ignorance, or negligence of the Sheriffe or extenders, there is re­medie alwayes, so the parties be not hurtfull to them­selues.

And although partners of estate in fée, being all of full age, making purpart by agréement, bind & conclude them­selues and their heyres for euer, yet when partition is com­pulsatorie, and the parts are deliuered by the Sheriffe, who with his extenders maketh diuision (which may be without the presence of the heyres) I sée no great reason here, why acceptance should be a barre in the issue perpetuall, or to the parceners for terme of life, yet Littletons bien for garde is good counsell, vide Dyer 33. H. 8. 52.

SECT. XXII. Of the coherence betweene Partners after diuision.

BUt admit now that partition is so made that there re­maineth neither cause nor intention to vndoe it, yet the partners are in a kinde of confederacie and combina­tion amongst themselues, by the very Law and custome of this Realme, Et lou [...] droit est cy connex nul de eux ne doit respondre sans le autre: pur le contribution. Etsi ascun se face ceo ne serroit in preiudi [...] des auters partners. Britton cap. 73. so that if any of them will sue for any inheritance that was their Common Ancestors, the suit must be in all their names still, and if any of them be sued, for any such Land or inheritance, she may pray ayde of the other coheires, which may come with her to pleade a feoffment, fine or release, or deraigne warrantie, and if in this sort she lose some or all her part, she shall recouer that which her partners hold her equall portion. But if a parcener put her selfe in de­fence, and will not pray ayde of her fellowes, which may [Page 46] strengthen and assist her, she shall then recouer nothing a­gainst her coheyres, though she lose all her purpart and liue­lihood: They continue therefore still in a sort one heyre ty­ed together like bundles of rods, for their mutuall strength, and by Bracton and Britton, if one of them die without issue after partition, her part shall goe to the rest, per ius accres­cendi, But is crossed by Littleton aboue, which telleth you that their title shall be in this case by discent, though the dying be before partition, therefore if partition be betwixt two Sisters of the halfe bloud, and one of them dyeth with­out issue, hauing an vncle of the whole blood to the Father, that Vncle by Bractons partition shall haue her Inhe­ritance, &c.

SECT. XXIII. By what manner of acquisition the ouer-liuer taketh the part of a Co-heire when she dyeth.

FOr your better instruction in this point, marke this Case, a man hath issue thrée daughters, by one venter, and one daughter by another venter, and dyeth soised, &c. they all enter, and two of the daughters by the first venter die, the third daughter by the same venter shall be heyre a­lone to their two parts, and the fourth daughter of the halfe blood getteth therein nothing, 10. Assi. p. 27. yet 4. Assi. p. 10. if a man die seised hauing issue two daughters by diuers venters, both vnder age, and a stranger abateth, and one of these daughters in their infancie, releaseth all her right, and dyeth without issue, the other may haue a mortdancestor, and recouer the whole Inheritance, as heire to her Father, though she can by no meanes be heyre to her Sister: But if she which released, had beene of full age when shée re­leased, she had giuen away her moitie. And if shée had en­tered [Page 47] at full age, or vnder age, nothing had accrewed to her Sister: But not entring, the mortdancestor to which they were both intituled, goeth for all to the suruiuor. And this I thinke to be a good case, making nothing on Bractons side, and not plaine any thing on Littletons.

SECT. XXIIII. Of Contribution

THat which Britton toucheth aboue, of Contribution, I vnderstand to be in case, where one partner prayeth ayde of another, the sequell whereof I haue shortly told you: There is another Contribution by Statute, Marle­bridge, c. 9. which willeth, S [...] haereditas al [...]qua de qua vnica tantum secta debeatur, ad plures par [...]icipes eiusdem haeredit. devoluatur, ille qui habet eineciam partem vnicam sacier sectam, & participes pro portione sua contribuant. The writ for this Contribution, when the young copartners will not performe the ordinance, hath cum de communi consilio prouiso, &c. reciting the Statute.

This Statute reacheth not to the King; at whose Court all the copartners shall giue their seuerall attendance, suite; and seruice. And if any of the lands partable be holden in Capite euery Coheyre shall and must haue a part of that in her alotment, for the Kings profit, The statute of Ireland which is a receipt of H [...]n. 3; 14 of his reigne to Gerrard Fi [...]zmorrice Iustice, sheweth that by those dayes, the first borne partner did alwayes homage for her selfe and her fellowes to euery common Lord of the fée who tooke all his seruice, per man [...]s primogeni [...]ae, which primogenita, had in recompence; (saith the Statute) no homage, ward-ship, or subiection of Copartners, nor any thing but the Capitall Messuage, ratione eineciae: Glanuil (which writ before the Statute) saith, that homage and all other seruices, were done to the chiefe Lord by the hand of the eldest parcener for all the rest, without guerdon from them or their heyres, [Page 48] in the first or second degrée: But (by him) their heyres in the third degrée were bound to doe homage, and pay reliefe to the heyres of the eldest daughter, &c. Because forsooth (as Bracton maketh the reason) issue being had and con­tinued to the third and fourth degrée, the heyre of the eldest, might now take homage without feare of being excluded from inheriting that which was altogether vnlike to de­scend vnto them: But by Bracton the youngest Sister should presently doe fealtie to the eldest, and by Britton (who wrote after Marlbridge) the matter rested méerely in the Lords election, (for thus saith he) Election le Seignior aprendre tiels seruices per vn mayne ou per les mains de toutes les parceners, Car autrement per droit les gardes & marriages des auters parceners pur les parols in le briefe de gard o [...] le plaintiffe dit que launcester, l'infant soit son te­nant & lui fist seruice de chiualer. eac. 68. fo. 175.

Now séeing that Glanuile, the Statute of Ireland, Bract. Britton, and al do agrée, that euery Lord might take his ser­uices by the hands of the eldest partner, (the reason whereof was a desire which the Law had to conserue Seignories in their intierties, & that Lords should not take or diuide them into mynnomes, and Crotchets) what was it that caused the making of this ninth Chapter of Marlebridge? It should séeme that Lords in those dayes played vpon the aduantage, And though they were scrupulous in taking of homage, by which they were shut from succession, and yet willing e­nough to take intirely all other emoluments incident or annext to the tenure, from one paire of hands: yet suite of Court, which is burdenous or inconuenient to none but to the tenants, they would be and were content to dissipate, and it should séeme also that in puisne Sisters and Co­heyres, though they were easily intreated, that the eldest should do all suit and seruice, yet they could be well content to giue them nothing for their paines, and therefore a Statute was needfull, for other things I will not accuse old writers of error, they erred not perhaps if they take it [Page 49] as it was taken by Lawyers then, though that taking stag­gered from Lawes conformitie.

This I say, (to me) the statute of Ireland is sufficient to proue that the eldest Sister shall haue no gard, marriage, or subiection of the yongest, and neither homage nor fealty (by Littl.) can be taken otherwise, then a seruice incident to a te­nure, for which it is lawfull to distraine. As therefore when a Mannor descendeth to two partners, each one may haue parcell of the demesne, and parcell of the seruices, and so of one there may step vp two Mannors: And if the diuision be that one shall haue the demesnes, and another the seruices, the suite is now in a very haut suspention, and the Mannor for a time broken in pieces: but it shal be a Mannor againe, if she which had the seruices die without Issue, (per Thiru. 12. H. 4. fo. 34. 35) So I doubt not but when a tenement, holden by seruice military, descendeth vnto two coparce­ners, and division is euenly made, each of them may pay rents and do seruice for her part to the Lord, who may take fealty and homage of either of them, if he will: And may be compellable to take homage of one of them at the least, which for the warrantie shall be auailable to both.

SECT. XXV. What seruice belongeth only to the eldest par­cener to doe.

THere is some thing besides suite of Court that shall lie only vpon the part, which by an Alcumized tearme we call einitia: Fitzherbert titulo partition. 18. hath this note, If the Earledome of Chester descend vnto two parce­ners, it shall be diuided betwixt them, As other lands vse to be, and the eldest shall not haue the Seigniory or Earle­dome whole to her selfe, quod nota: adiudged, percotam curiam. 23. H. 3. But this notwithstanding if law should haue the course, which she had in her state of innocencie, I thinke the capitall Messuage of a Knights fee, and the head [Page 50] of an Earldome or Baronie in partition ought euer to goe to the eldest. And if because there is not else perhaps wherewith to make purparte to the youngest coheyre, or not any other thing, holden in Capite, to be distributed for the Kings aduantage and so for necessity, (quae nullis vin­culis legum contine [...]ur) the head of a Barony be diuided, yet the indiuisible seruice by which it is holden, is scutage and grand-serjeantie, I meane the very actuall seruice, falleth by right vpon the eldest parcener. Et vbi est com­modum, ibi debet esse onus, and so vbi est onus debet esse commodum: whether the case following proue mine as­sertion or no, I will set it downe out of my Lord Dyer, and then prepare me to speake of another partnership: Hum­frey Bohune, sometime Earle of Hereford and Essex, held the Mannors of Harefield, Newman and Whitenhurst by seruice of Constableship of England (which is grand­serjantie) and dyed seised, hauing issue onely two daugh­ters, they entred, tooke husbands, and the husband of the youngest became King, then partition was made, in which the King and his wife did choose Whitenhurst and Harefield, and Newman fell to the other partner: By the opinion of all the Iustices of England, the reseruation of the tenure at the first was good, the two daughters before marriage erercise this office by sufficient deputie, and after marriage the husband of the eldest might execute alone, And per omnes iusticiarios, as when there are two daugh­ters, and the Father dyeth seised of lands holden of one of them, the whole seruice, if it be entire, (as homage) is re­viued after partition: so here vnitie of parcell of the tenan­sie in the King, did not determine the office, but it continu­ed in the other parcener, so that the King might exact the seruice, or refuse it at his pleasure, as euery Lord may re­fuse the homage of his tenant, if it be not ancestrell. Me [...] pur ceo que le office fuit haut & dangerous, & auxi ver [...] chargeable al Roy in fees, le Roy voile declaimer de auer le seruice execute Dier 11. Eliz. fo. 285.

SECT. I. Of Marriage, according to the Ciuill and Common Law.

MArriage is defined to be a Coniunction of Man and Woman, containing an inseparable connexion, and [Page 52] vnion of life. But as there is nothing that is begotten and finished at once, so this Contract of coupling man and woman together, hath an inception first, and then an order­ly procéeding. The first beginning of Marriage (as in re­spect of Contract, and that which Law taketh hold on) is when Wedlocke by words in the future tence is promised and vow [...]d, and this is but sponsio▪ or sponsalia. The full Contract of Matrimonie, is when it is made by words, de praesenti, in a lawfull consent, and thus two be made man and wife existing without lying together, yet Matrimo­nie is not accounted consummate, vntill there goe with the consent of mind and will Coniunction of body.

SECT. II. Of Sponsion or first promising.

THe first promising and inception of Marriage [...]s in two parts, either it is plaine, simple and naked, or confirmed and borne by giuing of something: the first is, when a man and woman binde themselues simply by their word only to Contract Matrimonie hereafter: the second, when there is an oath made, or somewhat taken as an ear­nest or pledge betwixt them on both parts, or on one part, to be married hereafter. There is not here to be stood vp­on, the age definitiuely set downe for making of marriage irreuocable, but all that are seuen yéeres old (betwixt whom Matrimony may consist) may make sponsion and promise. But if any that is vnder the age of seuen, begin this vow and betrothing, it is estéemed as a mist, and vanisheth to nothing.

SECT. III. Of publike Sponsion.

THis Sponsion (in which as it stands, is no full Con­tract of Matrimony, nor any more, saue onely an ob­ligation, or being bound in a sort to marry hereafter) may be publique or secret: publique, either by the parties them­selues, present together, or by message or Letters when they be distant one from another: Neither is there herein any curious forme of paction or stipulation required, but onely by words, howsoeuer expressed, a plaine consent and agrée­ment of the parties, and by the Ciuill Law, (with which the ancient Canons concorded) of their parents▪ if the Con­tractors were sub potestate parentum: the like reason sée­meth to be for consent of tutors, &c. But it is now receiued a generall opinion that the good-will of parents is requi­red, in regard of honestie, not of necessitie, according to the Canons which exact necessarily, none other consent but on­ly of the parties themselues, whose Coniunction is in hand, without which the conclusion of parents is of none effect: note further, that sponsalia may be made pure or conditio­nall, and whatsoeuer is else adjected (as earnest, pledge, or such like) is but accidentall.

SECT. IIII. Of secret Sponsion.

THose Spousals which are made when a man is with­out witnesse, Solus cum sola, are called secret promi­sing or desponsation, which though it be tolerated, when by liquid & plaine probation it may appeare to the Iudge, and there is not any lawfull impediment to hinder the Contract, yet it is so little estéemed of, (vnlesse it be very [Page 54] manifest) that another promise publique made after it, shall be preferred and preuaile against it. The cause why it is mistiked, is the difficultie of proofe for auoyding of it, when for offence her iust cause of refusall, the one or other partie might séeke to goe loose, and perhaps cannot, but must stand haltered from any other Marriage, and the Iudge in suspence what to determine.

SECT. V. The validity of the Desponsation.

THough this Sponsalia be alwaies made with intent that Matrimony should insue, yet the Contracter can­not therunto be compelled, vnlesse there were another thing ioyned to the Contract of Spousals, neither are they com­pellable to marry, though an oath accompanied the pro­mise, vnlesse it were made pure and without Condition, for in conditionall sponsion of Marriage, the bond of per­formance is suspended in the Condition, till that be per­formed, vnlesse there follow a relinquishment of the Con­dition, by copulation of bodies, or a new consent by word [...] of the present.

SECT. VI. The nature of the Condition.

ANd here in the quality of Conditions it is obserued, that if the Condition annexed to the promise be repug­nant against the right of Matrimony, the disposition of the whole Spousals are void: As if a man promise a woman to marry her, if she poison the child which she conceiued, the promise is of none effect, as towards Marriage. But a [Page 55] Condition, though it be otherwise vnhonest or impossible, corrupteth not promise of Marriage if it be not aduersant, and against the Law of wedlocke.

SECT. VII. How long the performance of promise is to bee excepted.

NOw it may bee demanded what time must be tarried and expected by the Law Ciuill and Common, for per­implishing of promises made of future Wedlocke: It is answered, that if the limits of time prefixed when the spon­sion was first made, be once passed and expired: if the vow were made without limitation of time, then (where there appeareth not any weighty cause of stay) if both the par­ties be residing in one Prouince, the woman quae non vult [...]ua vo [...]a diutius delud [...], may after two yeares marry to whom she listeth, But if her Spouse be commorant in ano­ther Prouince, then she must tarry thrée yeares, Though indéede these times of expectance, may be prolonged and lengthened, by a Iudge, as he shall finde cause iust and reasonable.

SECT. VIII. In what case the betrothed may refuse one another.

IF after the Sponsion or first betrothing, and before Matrimony contracted, some euill disease (as leprosie, or some violent cause or casualty) make one of the parties vn­fit for generation, the other may repudiate and abandon him or her, which shall be so diseased or vnabled. Spousals are also dissolued for fornication, specially if it be committed [Page 56] by either of the parties with their kindred: likewise Spou­sals which are made a pupillis may be dissolued by a bare renuntiation, but by no meanes they are rightlier auoided, then by a dissention of both the Contractors, from their first consent, for by such dissent also society is or may be broken in sunder. There are other causes for which the bond of desponsation may be taken away, as devulgation of kindred vnknowne, and opportunity of nuptialls sought by detesta­ble meanes, for which cause not only Spousals, but Mar­riage it selfe, when it is contracted, may be dissolued.

SECT. IX. By what authoritie Spousals are to bee vndone.

TO all these causes of vndoing the first vowes of marri­age, there must be added the authority of the Bish which hath power to absolue, yet the Canons doe without the au­thority of any Bishops make frée from the Obligation of onely promised marriage, all those which abdicate them­selues to Religion. And Hostiensis contendeth that with­out authority of any Iudge, Spousals are vndone ipso iure, by a post-marriage, made by words of the present time, sed nemo sibi ipsi ius dicere debet, no man may bee his owne Iudge: And it is certaine, that espousals ought neuer to be vndone, but by publike authority, vnlesse the cause for which wee will haue them vndone be so well knowne, that it néedeth neither proofe nor sentence, such as is fornication when it is notorious, and publike to all the world.

SECT. X. Of Matrimony contracted in the present time, and who may contract.

THose which the Latines call puberes, that is, they which are come once to such state, habit and disposition of body that they may be deemed able to procreate, may contract Matrimony by words of the time present, for in contract of Wedlocke, pubertas, is not strictly estéemed by number of yeares, as it is in wardship, but rather by the maturity, ripenesse, and disposition of body: There is fur­ther required in them which contract Matrimonie, a sound and whole minde to consent, for hee that is mad, without intermission of [...]ury, cannot marry: But hee that is deafe and dumbe, may contract Matrimony, quia non verbis tantum sed nutu & signis sensa mentis exprimuntur, and as they which are impuberes, cannot for infirmity of age, make any firme knot of Wedlocke, so likewise they which by coldnesse of nature, or by inchantment, are impotent, be forbidden to contract.

The impediments Ecclesiasticall, as vowes, Compa­ternitie and spirituall kindred, I will not meddle with: But come to kindred of bloud, which containeth a princi­pall let and prohibition of Marriage.

SECT. XI. Impediment of Marriage by Kindred and Consanguinitie.

IN the worlds infancie men were inforced by necessity to marry with owne kindred, propter hominum pauci [...]a­tem, But that necessity is taken away and long since by the very voice of God, they which are in certaine degrées of [Page 58] bloud are forbidden to marry, Leuiticus 18. And because Marriage is an aboundant seminarie of charitie and loue, it is wisely and profitably ordeyned that it should be disper­sed into many families.

Therefore by Naturall, Ciuill, and Common Law, Mar­riage is cleane forbidden betwixt all those, which are as Parents or Children one towards another in infinitum; and betwixt those persons, which are of kindred in the transuerse line, Marriage is forbidden till the fourth degrée bee past.

SECT. XII. The impediment of Marriage by Affinitie.

THere is further a certaine nigh alliance called affini­ty, quasi fines duarum cognationum coniungens▪ this riseth betwixt them which are married, and the kindred of one of them, as betwixt the husband and the kindred of his wife: now affinity prohibiteth Marriage onely to the persons contracted, &c. for the Cosins or Consanguinity to my wife, are of affinitie onely to me, and not to my bro­thers or children by a former Wife; and my bloud and con­sanguinity are kindred of affinitie onely to my Wife, and not to her brothers or former children: here is it that the Father and the Sonne may marry the Mother and the Daughter, and two Brethren may marry two Sisters in another Family: for the Consanguinity, of which one is of bloud to the husband, and another to the wife, are be­twixt themselues in no bond of affinity: And obserue that in what degree a man or woman is to one of them that are married, by Consanguinity, they are accompted in the same degree to the other in affinity: As the wiues bro­ther, who is in primo gradu to his Sister, is in the same degree to her husband, and their children in the second, &c. [Page 59] And so forth their Childrens Children, which after the fourth degrée, are againe by all lawes permitted to marrie, contrahi [...] & affinitas per illicitum co [...]um.

SECT. XIII. Diuersitie of Religion.

AMongst the hinderances of marriage, note this also, that by Constitution of holy Church, marriage is forbidden betwixt persons of divers Religions, as Iewes and Christians.

SECT. XIV. Of feare and constraint.

ALso Matrimonie holdeth not when it is extorted by force, or by such a feare as may cadere in constan­tem virum; quia matrimonia debent esse libera.

SECT. XV. Of Marriage detestable made.

ALso Marriage holdeth not, when it is sought or made with wickednes: And if a man promise to a woman which he hath adulterously polluted that he will marry her when his wife dyeth, &c. Or if a man haue sought to a­bridge the dayes of his lawfull wife to marry another: These villanies are such perpetuall cankers in marriage, that they doe not onely hinder it to be made, but also rend it in sunder when it is made.

[Page 60]There are other crimes, quae distrahunt Matrimonia contracta, as Incest cum cognata, and rauishment, yet if any man rauish a Maide, or other vnmarried Wo­man, the Canons doe admit him to marry with her if she consent: But otherwise shee shall be rendered to her Fa­ther, vpon whose suite and accusation, the rauisher is put to Capitall punishment.

There are by the Ciuill and Common Lawes ma­ny other impediments of Marriage, as susceptio pro­priae sobolis, publica poenitentia, caedes Sacerdotis, inter­dictum Ecclesiasticum, &c. which I will not trouble Women withall.

SECT. XVI. Marriage forbidden by publique Constitution.

BY Ciuill ordinance also Marriage is sometime re­strained and forbidden, as betwixt him which adop­teth, and her which is adopted: for séeing that they which are adopted are in the place and stead of Children, there resteth a League, as of kindred betwixt them and the bloud of him which adopteth, by the Ciuill Law and Canons both.

But this Ciuill kindred lasteth no longer then the adopted are in potestate adoptantis, Neither is it any obstacle to a Marriage, saue onely betwixt the adop­ted and adoptant, and those which are in his power. And as adoption hindereth Marriage by the Ciuill Law: so by the same lawe, a man may not marry her whom hee tooke exposed, as a cast-away or a foundling, and brought her vp as a Daughter. Marriage is also forbidden, some­time ratione publicae honestatis, as if a Man be diuorced [Page 61] from his wife, and afterwards shée hath a Daughter by another man, this is no Daughter in Law to the husband, yet hée should doe impudently to marry her, Those prohibitions of Marriage that were sometime be­twixt a Tutor and Pupill, betwixt a President and a Wo­man in his subiection, betwixt a Senator and a fréed bond­woman, betwixt a Senators Daughter and a fréed bond­man, betwixt a woman Comedian or one whose parents vsed some lasciuious or light Art, and a Senator: lastly, betwixt frée and seruile, are all either by long publike Cu­stome or by Common Law taken away.

SECT. XVII. Of Polygamie.

THere are examples in Scripture of Poligamy (viz.) where men had more wiues then one at once, as Abra­ham, Iacob, Dauid, and Salomon had: And it seemeth 21. of Deuteromie 15. that it was sufferable by Moyses his law, But it was said at the first, man and wife shall be one flesh, and the examples were rather permitted then law­full. The Ciuill Law Canons, and all Christian Com­mon wealths doe vtterly condemne Polygamie, and so much did the wise Emperors of Rome detest all petulan­cie of Marriage, that they made and ordained Lawes, that Women which within the yeare of mourning for their hus­bands betake them to wedlocke againe, should be reputed infamous and defamed. But this also the Canons haue ta­ken away, Contracts of Matrimony ought to be publike. Nuptials de presen [...]i ought alwaies to be made publike at the Church, or at the least, in presence & Congregation, del bon g [...]n [...]s, yet is it not of necessity, that they which marry stipulate by thēselues, or be present in person at the contract [Page 62] making, but it may be well enough by Proctor, so that the Contractors themselues be willing and witting, or that they ratifie it when it is done.

SECT. XVIII. What words are requisite.

THere néeds no stipulation or curious forme of Con­tract in Wedlocke making, but such words as proue a mutuall consent are sufficient, and it may be made by Letters. If question rise about words, recurrendum est ad communem intellectum, & vsum loquendi, & indubio pro matrimonio iudicandum, for there is more doubtfulnesse in construing of words, vt res magis valeat quam pe­reat, &c.

SECT. XIX. The Accidents of Marriage.

THose things which are of solemnitie or beneuolence, as prouision of Dower, earnest, giuing pledges, nuptiall benediction, &c. are not of the essence of Matrimony which is made by consent: for though Dower cannot consist with­out Marriage, yet Marriage may very well stand with­out dower: And so it is of all Donations propter nuptias: In onely one case written instruments are required in ma­king of Marriage, and that is where a man marrieth her whom he hath holden a long time as Concubine, here in­strumenta dotalia are behouefull, that the children had be­fore Marriage, may be estéemed Legitimate: But this holdeth not in England.

SECT. XX. Wherefore Marriage ought to be made.

THe causes of Matrimony principally are two: The first is susceptio sobolis, increase of Children, for euen by Plato euery good man ought to desire that he may leaue behind him worshippers of God, and propagators of piety: The second cause is the euiting of fornication and vnclean­nesse 1. ad Corinth. ca. 7 Saint Paul biddeth, that to auoid fornication euery man haue his owne wife, and euery wo­man her own husband, and whosoeuer marryeth for beau­tie, age, order, splendour of birth, or for riches, rather then for these two causes, doth very peruersly, though it be not expressly disallowed, but Marriage may be for the o­ther things also, and the Consent may be giuen for them.

SECT. XXI. The Consummation and indiuiduitie of Marriage.

WHen to the Consent of minde, there is added Copu­lation of body, Matrimonie is consummate, the principall end whereof is propagation or procreation: But where the course after going is not obserued, there riseth no lawfull Off-spring, the Children which are had, are not in power and commandement of them which beget or beare them, neither are they taken by Law for any other, then vulgo que [...]i [...]i. Otherwise it is in lawfull Wedlocke, the knot whereof is so straight and indissoluble, that they which are yoked therein, cannot the one without the con­sent of the other, (neither was it euer permitted) abdicate themselues, or enter into Religion, for Saint Paul in the aboue titled Epistle and Chapter, saith plainely, that the [Page 64] husband hath not power of his owne body, &c. And there cannot chance any fedity or vncleannesse of body so great, as that for it a man and wife ought perpetually to be segre­gated, yea so vnpartible be they, that law saith, they may not vtterly leaue coniugalem consuetudinem, though one of them haue the very leprosie it selfe.

And here is moued a question not impertinent, That is, whether a woman be bound to follow her husband wher­soeuer he goeth, if he require it, wherevnto it is answered by Bartall and by some other, That if the wife before shee married knew the negotiations and occasions of her hus­band, would be such, that he must of necessity euer be trauel­ling, she is bounden, and i [...] the Contract seemeth to haue consented to go with him at commandement, but if after the bargaine made he take vp a new tricke of circum [...]gar [...], she may let him goe when he list, and tarry at home when shée will.

SECT. XXII. Of Diuorce.

PActis poenarum cogi potest nemo ad Matrimonium contrahendum: And as no man can be compelled by a­ny conuention of paine or penaltie to contract Matrimony, so is it impossible, when it is once lawfully and euidently contracted, to distract it by any partition, couenant, or hu­mane traction, Quos Deus coniunxit, homo non separet, yet there are Causes, for which diuers are permitted: But Diuorce, that onely separateth a consuetudine coniugali, taketh not away the bond of Matrimony, and therefore Di­uorces are sometimes perpetuall, as long as the parties liue, sometimes for a season limited, and sometime, till re­concilement be had, and he that maketh Diuorce with his wife being only separated a Toro, is forbidden to take a­nother wife.

SECT. XXIII. Causes of Diuorce.

THe Ciuill Law hath many causes of Diuorce, but by Diuine and Common Law, the onely sufficient cause is adultery and fornication, which by the Canons is car­nall and spirituall: the spirituall is heresie and Idolatry: They dissolue Matrimony for spirituall fornication onely, where one of the parties is conuerted to Christian faith, and the other for hatred of his religion will not cohabit, &c. And this is taken also from Saint Paul 1. ad Corinth. 7. where he saith, If the vnbeléeuing depart, let him depart, a Brother or Sister is not in subiection.

SECT. XXIV. Impotencie or Disabilitie of Procreation.

THere is admitted also, in dissolution of Marriage, the complaint of impotencie: And Iustinian very dis­créetly, willed that in that exploration or proofe of the de­fect there should be expected thrée yeares: but the Canons or­deine that Matrimony is dissolued by probation of impo­tencie, without mention or limits of time. And this is more then a bare diuorce or separation, a Toro, for it dissolueth Marriage, auoyding it as it had neuer béene: so that he or shee whose fellow is conuicted of impotencie, may choose a new friend, and presently marry againe.

But this is to be vnderstood of impotencie which was be­fore the Marriage made: for indéede where the impedi­ment was so precedent, there could not any Matrimony ex­ist or haue being, &c.

Otherwise it is, when this disability betideth after Mar­riage perfected and consummate, for in that case, he or she [Page 66] which remaineth potent, shall not leaue and depart from the impotent, but be compelled to beare the discommodity, aswell as any other ill fortune. And that which is here taught of Coniugall impotencie, stretcheth to all impedi­ments of Marriage which are perpetuall, vt per ea Matri­monium nunquam extitisle iudicetur.

SECT. XXV. Marriages inter ascendentes & descendentes.

THose Marriages that are made betweene ascendentes and descendentes, are so detestable, that by the Ciuill law they deserue exile and confiscation of goods. And there is a glosse that would extend this to all vnlawfull Marria­ges: but by Bartell and others, it is to be inflicted only vp­on those, which are contra iura sanguinis.

SECT. XXVI. Captiuitie or long absence of one which is married.

IT falleth out not seldome, the one of them which are married to be taken captiue, or otherwise so deteined, that it is vncertaine if he liue or no.

Therefore because it is in some sort dangerous to expect long the incertaine returne of an absent yoake-fellow, here the Ciuill Law did ordaine, that after a husband had béene gone fiue yeares, and nothing knowne whether he liued or no, the wife might marry againe, and so might the hus­band, that had expected his wife, &c. But the Common Law commandeth simply to forbeare Marriage till the death of him or her that is missing be certainely knowne.

SECT. XXVII. That no crime dissolueth marriage.

OF old time, some Crimes were numbred amongst the Causes of Dissoluing marriage: but Iustinian changed the Law here in part, and the Canons vpon the saying of Christ, Quos Deus coniunxit, &c. will not by a­ny meanes that Matrimony rightly made and consum­mate, can bee dissolued, quoad ad vinculum Matrimonij. though for fornication they suffer a parting, quoad Torum. So that nodus legitimi Matrimonij, is neuer dissolued but by death, and the wife as long as she liueth is subiect to the law of her husband by Saint Paul.

Yet saith Lagus, séeing that in Contracts of Wedlock we regard as well what is decent and conuenient, as what is lawfull, I cannot tell why we be not bound in dissoluing of it to follow the like equitie: and for example, if a Wife cannot dwell with her husband without manifest danger of death, because he is cruell and bloudy, why may not shee be separated iudicis ordinarij cognitione precedente.

SECT. XXVIII. The Authoritie of the ordinarie Iudge, &c.

FOr if Spousals of future Marriage cannot be dissolued without publike authority, it must néedes follow, that without like authoritie, there can bee no repudiation when Matrimony is fully contracted and consummate: But in pursuing of diuorce the strict order of Iudiciall procee­dings is not alwayes seuerely kept: for regularly producti­on of witnesses before contestation of suite, non adiuuat producentem, yet if Cornelia sue a Diuorce against Sem­pronius, causa consanguinitatis, and Sempronius being [Page 68] cited will not appeare, if now Cornelia bring her witnes­ses, the Iudge may receiue them.

Marry this religious obseruation the Canons giue him euer, when he commeth to point of Iudgement, That the danger is lesse, in leauing men contrary to the Statutes of men, then in separating (contrary to the Statutes of God) those which are lawfully conioyned.

Thus farre haue I run my selfe in debt to Doctor▪ Con­radus Lagus, of whom in the third part of his Method, ca. 22. may be further learned the difference betwixt Scortum, pellex and Concubina, Our English comprehendeth them all in one word, and I would they dwelt all in one House, beyond Seas, Concubinatus speciem conjugij—habet; Et ex Concubinae natis conceditur beneficium legitimati­onis. If maid, wife or widow, aske what I meane to tell them so much of Ciuill and Canon Law, séeing they be none of those Country women, I pray them not to looke for the Regions in mappa mundi, but for their owne Regi­ment in Christian dutie: The spirituall Law is here an Oracle to the temporall, which euermore sendeth to the Ecclesiasticall Iudge, viz. the Bishop, for certification of lawfulnes or vnlawfulnes of Wedlocks when Accouple­ments come in question.

SECT. XXIX. Statutes concerning Marriage.

FOr it is true that Newdigat [...] saith, 12. He. 8. fo. 6. that marriage and Diuorcements with the circumstances of them be properly no parcell of Common-Lawes lear­ning.

Yet it is very néedfull here that I shew you here what the Lawes of England haue néedfully concerning Marriage established, 32. H. 8. ca. 38. declareth all persons lawfully to [Page 69] marry, which are not prohibited by Gods Law. And it was ordeyned, that all Marriages contracted and solemnized in face of the Church, and consummate with bodily know­ledge, should remaine indefeasable, notwithstanding any pre-contract, &c. Further, that neither dispensation, pre­scription, law, reseruation, prohibition, or any thing (Gods law excepted) shall trouble or impeach any Marriage made without the Leuiticall degrées, nor any man bee re­ceiued in spirituall Court to processe, plea, or obligation, contrary to this Act. This Statute, though it seemed to be made vpon good and great considerations, (because pre­contracts too too slenderly proued, and sometime but onely surmized, helped the Romish oppression, and separated those which were at quiet in an honest coniunction) yet many did after the making of it, very dissolutely come from their first vowes, and, as it were in spight of consci­ence and Ecclesiasticall censure, coupled themselues bodily with such as they newly fancied, slipperily leauing their former Contracts: it is repealed 2. & 3. Ed. 6. ca. 3. only in the points of pre-contracts: And they are left in the vali­dity which they were of, by the Kings Ecclesiastical lawes, immediately before the making of 32. with prouiso that all the rest of the said Act standeth whole and in strength. So is it now againe by 1. Eliz. cap. 1. See also 5. & 6. Ed. 6. ca. 12. that the Marriage of Priests and Ecclesia­sticall persons is lawfull, their Children legitimate, a Priest may be tenant by the courtesie, and his Wife haue Dower.

It is a sport to behold how some of the Canonists & Glos­sographers refreshed themselues in their disputes about Nuptiall questions, how cleare they make it, that, If Adam our first Father were now aliue and a Widdower, he could not take a Wife, quia, all Women are his Chil­dren, and that in the right line: Then what a question it is, whether vnlawfull copulation cause any affinitie or no.

[Page 70] In hoc articulo, (saith one of them) non parcam in fo­ro verecundiae, that is to say, hee will handle the quiddick without shame or honestie, and then in the plainest that may be, he findeth a difference betwixt a dogges necke in [...]he Collar, and his nose in the King, betwixt knocking at the Barrels head, and 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, & dirimend [...] 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 [...] 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 welcomm [...] 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 Roman [...]: 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 w [...]oed, then all the other sinnes that euer she com­mitted. It were good reason we speake a little of wooing, but to handle that matter, per genus & species, would take vp as much roome, as the Indian figge-tree, euery thrid [Page 72] 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 sponsaliorū 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, [Page 74] not cousin to the Donor, there passeth but estate for life, for it is by a maxime or ground, that Franke Marriage ma­keth inheritance, and this case is out of the principall: By Bracton fo. 28. & 29. Si terra detur in maritagium viro cum vxore, & eorum haeredibus pro homagio & seruitio viri, licet detur in liberum maritagium (qua▪ sunt sibi ad in­uicem aduersantia, &c.) tunc prefe [...]um & erit ac si donatio fieret tai [...] viro quam vxori, he deliuereth the like learning before, fo. 22. and this rule withall [...]x tacita con­ditione & pacta incontinenti opposita insunt contractibus, & legem dant eis & illos infirmant.

SECT. XXXII. The gift must be to a Woman, &c.

IT was deliuered for a Law in tempore H. 8. that Lands cannot be giuen to a man in Frank Marriage, though he be Cousin to the Donor.

SECT. XXXVI. It may be tempore Matrimonij, an­te, vel post.

WHat if after the gift made, the man refuse to mar­ry, the Cousin of the Donor marry else-where?

If two Donées in taile after the Common forme be di­uorced vpon a pre-contract made by the woman, they shal▪ remaine ioyn-tenants of the Franke Tenement▪ and the Inheritance is gone Tail [...] 9. But per Dyer fo. 147. and 12. assi. p. 22. and 19. assi. p. 2. If Tenants in Franke Marriage be diuorced, the Woman shall haue all the Land, for the Land was giuen for the womans sake, and [Page 75] for her aduancement, and by Iohn Bracton, her husband hath no more in it but Custodiam, as he is the wiues tutor and Guardian: By the same reason therefore that the wife shall haue the land, if she be diuorced, by the same, I should thinke, she should haue it, if her Sponsus refuse to marry her: But where I giue Land to one to marry my Daughter, or, if hee marry my Daughter, there, if hee marry another woman, I may enter.

SECT. XXXVI. The word Franke Marriage maketh Inheritance.

IF a man giue lands with his Sister to I. S. in Franke Marriage, habendum [...]is & haeredibus suis in perpetu­um. By Kniue [...], Mowbray and Finchden, 45. Ed. 3. fo. 19. this maketh neither Frank Marriage nor estate taile, with an expectance of fée, (as in Case where Lands are gi­uen expresly in taile, habendum eis & haeredibus, but the fee-simple passeth presently by the gift, for Frank Mar­riage must be holden of the Donor▪ which here hath nothing left in him, but all is holden of the Lord Parainount, and the words doe not make any other estate taile: yet 13. Ed. 1. lands were giuen to one, with the Cousin of the Donor in Franke Marriage, habendum eis & haeredibus, and it was taken for good Frank Marriage: This, saith Brooke, was in the yeare, that estates taile were made in. But for all that, if yee look the case in Fitzherbert, Formedone 63. whither Brooke sendeth you, you shall perceiue that at the time of the gift, it was Franke Marriage in fée-simple, for by those dayes the Donee had potestatem alienandi post prolem suscitat [...]m: But in a gift made after the Statute of quia emptore [...], on such a fashion, I take it the Law will be, as before in the case 45. Ed. 3. According as it was al­so [Page 76] holden in the yeares of H. 8. that if a gift bee made in Franke Marriage, the remainder to I. S. in fée: this is no good Franke Marriage, for warrantie and acquitall that are incident, &c. bee only in regard of the reuersion to the Donor, and they cannot be had when the fée-simple is pre­sently conueyed to a stranger.

SECT. XXXVIII. The Accompt of the Degrees.

LIttl. accounts the Degrees from the Donor to the Do­nees, the first Degrée; from the Donées to their Issue, the second; from the Donées Issue to his Issue, the third, &c. and the Issue in the fift Degrée shall doe seruice. And this (saith he) because the Issue of the Donor and the Issue of the Donée after the fourth Degrée past, may inter-marrie by holy Churches Law. Bracton accompts thus, donata­rius facit primum gradum; haeres suus facit secundum; hae­res haeredis facit tertium; haeres secundi haeredis facit quar­tum, qui tenebitur ad seruitium, yea, hee maketh it an ex­presse rule, that onely the Donée and two heyres succéeding lineally, shall enioy the immunitie of being acquitted. And hee seemeth to vnderstand no other reason of the ac­quitall so long, but onely an abstenancie from homage, lest the taking of it should hinder a reuerting, if it betided the Donée, or the Issue to die without Issue. Fitzherbert titulo droit 55. and 60. citeth 6 H. 3. and 15. H. 3. in warrant of Bractons Computation, which I thinke he fetched not any further then out of the Author himselfe, in whom fo. 21. I find it. And fo. 22. hee answereth a doubt of his owne as­king, that is, Whether all other seruice shall follow and continue, if homage be done ante ter [...]ium haeredem, where­in he concludeth, that the seruice euer followeth homage, quamuis ad damnum soluentium: And I conclude, whether [Page 77] it be the third heyre, or the fourth, that shall doe seruice, he may still vouch, haue a Writ of me ne, as if the fourth Degrée were not past, and if he bring a Formedone, the Writt shall be Dedit in liberum Maritagium.

SECT. XXXIX. A Woman giues Lands to one to marry her.

AS Franke Marriage maketh Inheritance without the words Heyres, and is alwayes made to a woman, and for her sake: so there is another Donatio prop [...]er nup­tias, that is conditionall without words of Condition made euer by a woman to a man. That is, where a woman giues Land to a man in fee-simple, or for tearme of his life, to the intent that hee marry her, who if hee afterwards when hee is thereto within conuenient time required, re­fuse, &c. there is now an ordinary Writt for remedy granted in this case, to reduce the Land, which Writt may be sued in the per cui, or post, after one or more alie­nations, either by the woman sole, or by her and her hus­band married, against such a one as should haue married her, after the refusall, or after her death by her Heyre, whe­ther it bee Sonne or Daughter, or Daughters with the child of another, and there needs no scripture or writing to proue that the feoffement was for intent of Marriage: nay, if a woman infeoffe a stranger, to the intent to infeoffe her, and one which she intendeth to marrie, if now the e­spousals take not effect, she may haue Writt causa Ma­trimonij prelocuti, against the stranger, though the déed of feoffement were simple and sans Condition, an. 34. Ed. 3. li. assi. and 40. Ed. 3. li. assi. a woman enfeoffed one which had a wife, and entred for non-performance of the Condi­tion, [Page 80] [...]heritance of woman, and in this part because it resembleth the Donations, that are propter nuptias, the Doctrine of it being something like that of Dower.

SECT. XLI. Marriage.

THis Courtesie is in the Inheritance of a Wife, there­fore a consequent of lawfull Marriage, and exceptions of Concubinage, or such like, which are impediments of Dower, must needs be good exceptions here.

SECT. XLII. Seisin.

THere must be in the wife a seisin and possession; for if she were but heyre in appearance, & die before her An­cestor, this auaileth her husband nothing. Similie, If the Father (being seised of Lands) dye, and soone after his Daughter and Heyre dyeth before actuall seisin had by en­trie either by the husband, wife, or other person for them, so that no possession and a naked possession in law here is all one: yea, the law is taken, that if a man dwell in Essex with his wife, and lands descend to her in Yorke­shire, if she die the next day after, before entrie, the hus­band shall not bee Tenant by the Courtesie, for euen in this case is found a default in him, that he did not consti­tute one to make entrie for him maintenant after the Aun­cestors death, & yet if rent descend to a woman Couert, &c. which dieth before day of payment, or after the day, and no demand made of the rent by her husband, hee shall haue Courtesie in the rent notwithstanding. So it is if an Ad­vouson [Page 81] 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, endol [...] [Page 84] [...]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 Cur [...]esie of the Seignorie: But if a feme sole haue a rent or common in or out of certaine Lands, and the Tenant leasseth the Land to a stranger, during the life of I. S. and the woman intermarrieth with the Lessée, hath Issue, and I. S. dyeth, now if the wife die, the Ba­ron shall haue Courtesie in the rent or Common. And if the Tenant leased his ground for 20. yeares, and a wo­man hauing in the ground a rent charge in fée, intermar­rieth with the Lessée▪ &c. dieth during the terme, it is a que­stion in Parkins, whether the husband shall haue Cour­tesie in the rent after the terme determine, see Parkins, cap. By the Courtesie.

SECT. XLVII. No Courtesie of a bare vse.

IF a Woman sole seised, &c. make a feoffement to the vse of her selfe & her heyres, and then she marrieth, hath Issue, and dieth before any estate in the same lands be againe by entry or otherwise executed to her, her husband shall not be Tenant by the Courtesie, and this aswell after the Sta­tute of 27. H. 8. as before, if the Feoffement were since the Statute.

SECT. XLVIII. What Husband may be Tenant by the Courtesie, and of what estate.

WHere the Wise is actually seised of Lands in [...]ée­simple, see-taile generall, or as Heyre of sée-taile [Page 85] 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, di [...]i poterit de secundo, siue de primo viro haeredes apparentes extiterunt siue non plenae aetatis vel minoris. But hee addeth, Quod iniuriosum est secundum S [...]e­phanum de Segraue, qui dicebat quod lex ill [...] male [...]uit intellecta, & male vs [...]tata: Nam quod dicitur de lege Angliae, intelligi debet de primo vir [...], & 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. [Page 88] [...]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 E [...]a:

E. or A. all crye that from Eue come,

Though they be borne both deafe and dumbe.

Non sufficit igitur tantum baptizatus & scpultura: y [...]t 28. H. 8. Dyer fol. 25. sets downe Fitzherberts opinion, that a man may be Tenant by the Courtesie though the Childe neuer crie, car paraduenture lissue soit nee dumbe, And so saith Parkins 9. 4. 7. viz. that if the issue bee borne aliue, though it die before it be heard crie, or before it be baptized, for that is a matter also with Bracton, if there were no lachesse, contumacie or contempt in the Baron, he may be Tenant by the Courtesie: But by negligence or by con­tempt he shall preiudice himselfe ascuns diont.

SECT. LI. A Childe borne beginneth the title of Courtesie.

NOw this hauing a Childe, is such a matter (as it sée­meth) that maine tenant thereupon the title of Cour­tesie beginneth: for example, if a bond woman purchase Land and marrie, if the Lord enter before Issue be had, no Childe borne afterwards shall make the husband tenant by the Courtesie: But if the Baron haue Issue by his wife, before the Lords entrie, he shall be tenant by the Courtesie, and the auourie from that time forward shall rest vpon him solement, And the possession in Law if the wife die, [Page 89] shall not light vpon the Heyre, but vpon the Baron, which shall be tenant to euery praecipe. C [...]o est cleere lei, Brooke out of the Doctor and Student, vide Brooke villenage; 35.

And if a woman Heyre haue issue by her husband, com­mit felonie and be attainted, it hath béen mostly holden, that the husband shall be Tenant by the Courtesie, notwithstan­ding, and that after Issue had, the Lord may auow for ho­mage vpon the husband without the wife 21. Ed. 3. 49. By Parkins, 91. 475. Likewise if the Wiues Inheritance be recouered against Baron and feme, by false oath, or erroni­ous Processe, and execution is had and sued of this recoue­rie, if they haue Issue afterwards and then the wife dieth, the Baron now reducing the Land by attaint or error, shall hold per le Courtesie.

SECT. LII. What if the Childe die.

IF a man haue Issue by his wife, that is here in posses­sion, the death of the Issue is no losse of Courtesie, and by Parkins, if a Daughter and Heyre apparant take a Husband, haue Issue by him, and the Issue dieth, if now the Father die, and the Baron and feme enter, he may be Te­nant by the Courtesie without hauing other Issue, Brooke makes it questionable.

Also by Brooke, if a man die, his wife being priuement enseient, a Daughter entreth as heyre, taketh a Husband, and hath Issue, if a Sonne post-humus enter vpon the Baron and feme, and the Issue of the Daughter dieth, and the posthumus dieth without Issue, the Baron cléerely shall not be Tenant by the Courtesie, vnlesse hee re-enter▪ in his wiues time, and he doubteth, though the Baron en­ter sans other Issue. [Page 92] [...]bility his wife may beare him, may by possibilitie be heyre of that estate Si le possession le Baron ne soit loy­alment anient) As addeth Parkins the Wife shall be en­dowed.

SECT. LVI. The Husband must be seised.

DOwer is of the possession of a Husband, the ground of it therefore is Marriage, a Concubine then shall haue no Dower, no more shall shee which is but onely con­tracted, and it was holden by some, 10. H. 3. that she which was married in a Parlor or Chamber should haue no Do­wer but it is now taken otherwise.

Also where Marriage is cleerely voyde and vnlawfull, there groweth no title of Dower: But if a woman first contracted to E. I. intermarry afterwards with T. K. this Marriage is voydable, but not cléerely voyde, and if it be not frustrated, otherwise then by death of T. K. the Wife shall haue Dower of his Land. Here yee may perceiue that which destroyeth an absolute true Marriage, de­stroyeth Dower also: for though by Bracton there may be by speciall Constitution a Dower appointed, that shall stand good against the tempest of diuers assaults, yet by ground of the Common Law Matrimonium est fulcimen­tum do [...]is. And Bracton saith in his second booke and 39. Chapter, Vbi nullum omnino Matrimonium, ibi nulla dost igitur, vbi Matrimonium, ibi dos, quod verum est si Matri­monium in facie ecclesiae contrahatur.

SECT. LVII. Matrimony may be, and yet no Dower.

THough Matrimony doe alwayes precede Dower, yet doth not Dower alwayes follow Matrimony: for first where the husband had no Land, the Wife can haue no Dower by the Common Law, Bracton and Breton which giue a woman Dower in a certaine somme of mo­ney or in other Chattels, speake rather as Ciuill Lawyers then méere English: Also Dower is not granted, vnlesse the Husband is aboue 7. yeers old, and the wife aboue nine, 13. Ed. 1. Fitzherbert Feme perdera Dower, si son Baron morust deuant 9. ans d'age Dyer 14. Eliz. fo. 313. Also if a man marry his bond-woman in grosse and die, she shall not recouer Dower against the Heyre, for shee is his bond­woman, but against the Feoffée of her husband she shall recouer Dower, vnlesse she be regardant to the Mannor whereof the Feoffement was made.

SECT. LVIII. What Seisin is requisite in a Husband.

WHere the Huband hath neither possession in fact, nor possession in Law, during the Couerture, nor any thing saue onely a right or title, the wife shall not haue Dower, as also if the Baron suffer a Disseisin, an abate­ment, a Condition broken, an alienation in Mortmaine, or cesser of his rent or seruices by two yeares space, &c. and then he take a wife, dieth before reduction of his Land, or if iudgement be giuen for him in a plea of Lands, and hee marryeth afterward, and die before entry or suing of exe­cution, the wife shall not haue Dower of these Lands: So is it if I. S. exchange Lands with T. K. and I. S. entreth, but T. K. taketh a wife, and dieth before entrie, his wife shall not haue Dower in any of the Lands exchanged, but [Page 94] where a husband is once actually seised, the wife shall bee endowed notwithstanding any disseisin afterward done to him, or feoffement made by him either absolute or conditi­onall: And if before or after Marriage celebrated and not dissolued a possession in Law be cast vpon a Husband by descent, escheate, or fall of some remainder, the wife shall be endowed though the Baron die before entrie, as if the Kings Tenant die seised, and his Heyre being married dieth before office or entrie, the wife of the heyre is dowa­ble: so if rent des [...]end to a husband which dyeth before day of payment, &c. for there is not requisite in the husband such a seis [...]n as whereof an assise lyeth: but if a precipe quod reddat might lie against him, it sufficeth 4. He. 7. fo. 1. Brooke 66. in Dower.

A husband may haue possession in law by descent of a villaine in gros, or possession in law of a rent charge, by excepting the déede of grant, and hereof the wife shall be en­dowed, although the Baron doe afterwards refuse receit and seisin of the rent. But iudgement in a Writ of an­nuity for the Baron taketh away Dower of a rent charge from the wife, and a woman may haue Dower of an estate that was suspended, as if the Lord married with his Te­nant, now is the Seignorie suspended, but if he die, the wife shall haue Dower, a third part of the rent per ret [...]igne [...] ▪ for the Seigniorie, though it slept, yet there was still a pos­session in Law of it in the husband: Here it must not be forgotten that it [...]éemeth doubtfull whether an abate­ment of a stranger which is a possession in fact destroye [...]h a Possession in Law, it appeares by Park. [...]o. 72. sect. 371. & 372▪ & 4. H. 7. 1. per meux that it doth not.

But 21. Ed. 4. [...]o. 60. which is accorded for good Law, 4. H. 7. fo. 1. where in a Writt of Dower the Tenant plea­deth ne vnques seisie in dower, &c. the demandament shew­eth that Lands descended to her husband, she being then his wife, and that he dyed before entry made either by him, or by other person, & issuit &▪ est donable per le l [...]y, and shee [Page 95] was inforced by the Court to plead that none entred: for if a stranger had entred, she had not béene dowable: And if she had pleaded [...] que Dow [...]e la Poet this had wayned the speciall 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. [...]o. 17. if the Kings ward die vnder age, and the ne [...]t heyre being married, die before [...]u [...]n [...]runt sued, his wife shall not haue Dower, But by D [...]uers and Hussey, if the Kings Tenants Heyre haue a wife, and after office found, the Heyre doth not enter, but dieth, the wife shall be endow­ed of the possession in Law before office, for the Statute of prerogatiue cap. 13▪ is intended onely where the Heyre ta­keth a wife after office, and intrudeth.

SECT. LIX. There must be in the Husband an Inheritance not cut from the Franke Tenant.

A Woman shalll haue no Dower in Lands, whereof the Frankement and Inheritance was neuer conioy­ned in her husband, during Couerture, therefore where the Husband had but a reuersion after estate for life, the wife is not dowable: vnder this rule commeth one other, dos de dote peti non debet: And if a man seised, &c. take a wife, and alien with warrantie, and then both the feoffor and feoffée die, if the wife of the feoffée bring a Writt of Dower against the heyre of the feoffor, which voucheth to warrant the heyre of the feoffor, and hanging the vou­cher, the wife of the feoffée demands▪ Dower against the heyre of the feoffée, if shée bring her Writt, not for a third of two pa [...]ts, but for a third of all that whereof her hus­band dyes seised, she shall not ha [...]e iudgement fill the first plea be determined: Littleton. If there be father and sonne [Page 96] 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 i [...]feoffed the Sonne, &c. the sonnes wife might well haue Dower after the Grandmothers death, of that very Land which the Grandmother held.

And if the sonnes sonne voluntarily or compulsarily [...] 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 heyr [...]s of the husband, and the fine is executed, if now the Baron die, liuing I. S. or any of his Issue, the wife of the Cognusée is not dowable: But if a Lease be made for yeares, the remainder to I. S▪ for life, the remainder to his right heyres, &c. the wife of I. S. shall haue Dower of this estate, though erecution of Dower cannot be [...]asting the terme; And if a Lease be to the Husband for life, with a remainder to a stranger for [...]eares, the remainder to the Husband in [...]ée, the inheri­tance [Page 97] and Franke Tenement are sufficiently connexed to giue the wife Dower, b [...]t execution shall cease during the terme: for when an estate for yeares is more ancient, or as ancient as the Inheritance, which the Husband had du­ring Couerture, there the execution of Dower to the Wife must néeds tarrie the termes expiration: And so it is if a man grant me a rent in fée by Indenture, with Condition that the rent shall cease during the non-age of mine heyres, my Wife shall not bee endowed during mine heyres mi­noritie.

What if a man that is seised in Fée-simple make a lease for life rendring rent, &c. and then taking a Wife he dieth, the heyre shall haue this rent incident to the reuersion, and it shall be a [...]ets to him in a Formedone in Descender: but the wife gets here no Dower; a [...]d saith Parkins, a wo­man shall not be endowed of a rent reserued by her Hus­band to himselfe and his Heyres vpon a Lease for yeares, 1. Ed. 6. titulo Dower in Brooke accordeth. If the Law be so, Dower hath lesse fauour in this case then the estate per Cour [...]si [...] 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 terti [...] remnant, les deux par­ties: que demorent de terre iesques a [...]nt que il e [...]t receiue al value de le tierr [...] partie que il auera perdu [...], &c. But if she recouer all the Land leased from the termer, he shall haue recouerie per pl [...] 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 s [...]ir [...] 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 [Page 98] by bringing her Writ of Dower: Like Law sée­meth to be, where the purchase is to the Baron and feme during the life of the Baron, the remainder to his right heyres.

SECT. LX. Of what things Dower is granted.

LIttletons ground is of Lands or tenements, But a woman is Dowable also of all manner of rents which are rents of Inheritance, Also of Offices, as for example, of a Bayly-wicke in fée, a woman may haue the third part of the profit in Dower, and be contributary to the charge: Also at this day where the Baron hath but an vse in fée-simple or fée-taile generall, vnlesse it be in case where the Husband may and doth disagrée, the wife shall haue Dow­er, and if a bargaine and sale be made of Lands to the Hus­band which dieth before inrolement, the wife notwithstan­ding shall haue Dower, and by the inrolement einsement, it shall be indefeisable against the Vendor and the Heyre of the Vendée: Also a woman is Dowable of Villaines regardant to a Mannor, and if a villanie in gros, a wo­man may haue Dower by taking his seruice euery third day, and if a mill by taking the third part of the profit, and shee shall grinde tole-frée, and if a House, a woman is Dowable by a Chamber or rent assigned out of the house. Note that if such a rent be assigned out of the Land where­in Dower is claimed, the woman may haue Assise with­out Déed, contra, if it be assigned out of other Land, 33. H. 6. fo. 2.

Also a woman may hold an Aduousan appendent, in Dower of the third part of an Aduousan in gros, by presen­ting at euery third auoydance, or the third part of the moi­tie of an Aduousan, by presenting at euery sixt auoydance: [Page 99] And of a Common in gr [...]s which is certaine a woman is Dowable. Likewise if any grant to I. S. that hee and his heyres shall take yearely in his Meadow thrée load of Hay, &c. For Common appendant, Parkins saith, If a wo­man accept two acres parcell of a Mannor in allowance of Dower, she shall haue no Common appendant: aliter, if a moitie bee assigned her. E [...] 5. lacobile Countelle of Ox­fords case cited in Harpers case, Coke 11. Rep. fo. 256. Dower shall be of prediall Tythes, &c.

SECT. LXI. Of what things Dower is not granted.

OF naked seruices, as homage and fealtie, there is none endowment, nor of a bare annuity granted in fée, nor of things vncertaine as of Common without number. And if it be granted to I. S. that hee and his heyres shall take so many Estouers in Methold wood as they will burne, in &c. this will yéeld no Dower, no more then a Li­cense or grant de coylor bois in auter bois: By the old wri­ters, if in the first establishment of Dower speciall menti­on be not made or Aduousons or third presentments, the wife cannot haue Dower of any Aduouson pur ceo que ad­uouson d [...] [...]sgly sevest mi departible: But when a Man­nor with the appurtenances is ordained for Dower, if an Aduouson be appendant to the Mannor, and the Church become voide, after the Husbands death the Wife may present.

Also by them a woman cannot challenge a Castle, chiefe Mease, or head of any Baronie or Countie, or any thing within the close or Circuit of the chiefe Mease, to be assig­ned her in Dower: But for her habitation she may choose aliquod honestum Messuagium de villenagijs, that is, some bond Tenements within the Mannor-house.

[Page 100]And where there is none such to choose, shee shall haue one clapped vp for her in aliqua platea competenti de com­mum bosco: as long and broad as the third part of her hus­bands chiefe house: A cottage of clay and splints set close in a corner of a cold Common, which is but a rewmaticke Lodge to welcome Suitors to. But how if the Common and all things bee so inclosed that there is not roome to swing a Cat in, women are not put in Rogum with their Husbands any where but in the Indies, and I thinke that custome is left there also by this time: If there be neither base tenement, nor wood, nor ground wherewith & where­on to build a Widowes habitacle, she may bee endowed (for necessity) of the principall▪ Messuage, and without necessity alwayes if the heyre be so contented: The reasons which Breton and Bracton doe expresly alleadge, for nice­nesse of Law, making dainty in their time to endow Wid­dowes in Aduousons and great Messuages, is onely the in­diuiduity or impartablenes of the things. Of an Aduou­son because it is but ius quoddam, and not corporall, and great houses, &c. for the dignity and strength which the Realme was thought to haue by their conseruation: But considering that the end of Dower is chiefly the maintenance of a Wife, Si vir premoriatur: it may further bee colourably said, that Law at first did neuer meane to trouble Widdowes with presenting of Clarkes, for that either is not, or ought not to bee a matter lucratiue or of gaine, though indeede Bracton prize a Benefice of an hundred Markes at one hundred Shillings valew.

SECT. LXII. Of what estate of Inheritance the Husband must bee seised.

THe Learning here is not discrepant from that which went before in title of Courtesie: Of fée or fée-taile generall a Woman shall haue Dower, so shall she of fée­farme or of a base fée-simple, but not of Coppy-hold vnlesse the Custome serue for it: And if Tenant for life make a feoffement in fée, the wife can haue no Dower, 3. H. 4. fo. 6.

The which Littl. inserteth in this Chapter of Dower, viz. where the Husband is seised, as heyre of speciall taile, &c. is no interdiction of Dower in all cases to her which is married to the Donée of speciall taile. Littletons own example is, That if Lands be giuen to a man, and the heyres which he shall ingender of his wife Alice, if he dies, Alice shall be endowed of this estate; for no Issue of a se­cond wife could be heyre of speciall taile, and that makes the difference.

The case 41. E. 3 fo. 30. is this, A man seised in generall taile by fine made a feoffement and tooke backe an estate in speciall Taile to himselfe and his first Wife, and died, the King seise by Tenure in capite, and endowed the second wife, the Issue of the first Wife came, shewing the speci­all taile, and by scire facias against the Wife recouered for default: she tooke a second Husband, who with his wife brought a quod ei deforceat against the Heyre, and hee pleaded the speciall taile, the woman by remitting the heyre to the ancient taile, would haue concluded him to say, that her husband was seised of any other estate. Et non allo­catur.

Parkins makes this case somewhat more austere against Dower, for as he putteth it fo. 60. the Issue is sonne to the [Page 102] Woman which claimeth Dower, yet the mother by him not Dowable, because the sonne though hee be Heyre is in of another estate then that which was in the Baron during Couerture, so likewise 44. Ed. 3. fo. 26. in a Writ of Dower against the Heyre Tenant, hee sheweth that the band was giuen by fine to his father and mother in speciall taile, and that afterwards his father & mother discontinu­ed the taile by fine to a stranger, and taking backe an e­state in generall taile, they had Issue this heyre, then his mother dyed, and the father taking the demandant to wife, he died, so the sonne was now in per lun taile & per lauter, and being adiudged in his eigne right by remitter, the wife was barred of dower, this Case in my conceit fringeth the generality of Littletons rule, for the Issue which by possibi­lity the second wife might haue had, might by possibility haue inherited, though not indefeisably in such estate as was in the Husband during Couerture.

To conclude, where Lands are giuen to the Baron and feme in speciall taile, the remainder to the Heyres of the body of the Baron, and the Wife dies without Issue, there a 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 non­payment, [Page 103] 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 [Page 106] [...]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 ont 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 [Page 107] 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 [Page 110] [...]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; qu [...]ere saith Parkins, car il est incounter le conscience de diuers homes, And making the acres to be of equall value, it must needs bee against law also, for one acre of three e­qually vallued, or of euery acre one third part is a iust Dower. But if the acre vnsold were inferior in value, there is both conscience and law for the woman to claime Dower of the two acres, or of the rent, for a woman must be endowed of the best possession, and not according to the number of acres, but according to the value of the Inhe­ritance whilst it was the Husbands. Therefore if I make a feoffement of my lands, and dye, and the feoffée builds a house vpon it, or otherwise improoues it, my wife shall be endowed no otherwise then according to the value of my possession; yet if a disseisor or a feoffée sur condition, doe edifie, the disseisie or feoffor re-entring, shall haue the buil­ding. If being married I make a feoffement, and the fe­offee ruinateth a house which was vpon the Lands before the feoffement, and that was worth foure or fiue pound an­nually, my wife shall be endowed according to the value that the land was of, at time of my death, because a wo­man hath no right to possession of Dower before the death of her husband: But Parkins dares not let this Case goe without a quaere.

SECT. LXIX. Of Dower at the Church doore.

THe old kind of endowment at the Church Doore com­meth now a dayes seldome in vse: But for all that I would haue women better learned then to be ignorant of it, it is when a man seised in fee-simple, being of full age, comming to the Church doore to be married, doth there af­firme affiance and endowe his spouse of all his lands, or of part, as of halfe or a lesse quantity openly and with cer­tainty, the woman thus endowed may enter into her Dow­er, after the husbands death without assignement, and this Dower may be at the Church doore in one County of Lands in another County and without déed, Parkins, sect. 217. Vide Plowd. in Sharington, ca. fo. 304. b. it is good without liuery of seisin, Et per Shelly 28. H. 8 Dyer fo. it may be done within view, and the puisne sonne of Land in borow English may not make such a Dower.

Also a sonne and heyre apparant when he is espoused by consent of his father, may endow his wife at the Church doore in part of such lands and tenements as are the Fa­thers in fee-simple, and the sonnes wife after his death (the father liuing) may enter presently without further as­signement into the parcels, thus certainly appointed: But if shee enter after her husbands death and agrée to any of these endowments ad ostium ecclesiae, she is concluded from claiming any other Dower. Thus farre Littleton. By Bracton none can endowe his wife in this manner, vn­lesse hee bee Liber homo; for in his time if I bee not much deceiued, the greatest number of bond-men held in manurance Lands of their Lords, which they occu­pied to the Lords vse and profit, in pure villeinage. These hauing none other lands, could not endow, &c. Also by Bracton, Quis posset dotem constituere, & sciendum quod tam minor quam maior masculus. Cui vxori, tam [Page 114] [...]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 [Page 115] 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.

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.

[Page 120]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 Ioynt­tenant 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 [Page 121] 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 g [...]wnes, Her­tles. &c.

And the meaning must bee taken and obserued: in the booke of 4. H. 7. fo. 4. is another memorable Cause, A man was bound to I. S. by obligation to make a sure estate to a woman in certaine tenements within three moneths after his fathers death: The Obligor marrieth the wo­man in his fathers life time, and the Matrimony continu­eth, till the three moneths be expired; the obligation is for­feited, Vauisor said, the husband might well haue per­formed the condition by fine leuied, vpon a writt of Coue­nant brought by a stranger, against the Baron and feme. Fisher said he might haue performed it by making a Lease vnto a stranger, the remainder to the wife, quaere of that. Vauisors performance had beene good I thinke, if there had beene in the beginning a full purpose and intent of inter­marriage betwixt the woman and the Obligor: But that appeares not, and therefore being that hee hath brought himselfe to an impossibility of performance either of words or meaning, the Obligée must néeds be allowed the aduantage. If the obligation had béene to the woman her selfe, the condition by inter-marriage had béene dispensed with; for where the Obligee is a cause that the condition cannot be performed, the not performing is without pe­nalitie to the Obligor, as if in the old dayes, I had béene bound to an Abbot that A. should infeoffe him, &c. before Christmas, if A. had presently entred into Religion, my [Page 122] bond had presently beene forfeited: not so, If A. had béene professed, vnder the obedience 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 [Page 123] 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. [Page 126] [...]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 liber [...]are probanda agreeth 78. G. that she should be fréed perpetually: But the Law seemeth to be otherwise. And so you may find the opinion of Doct. & Stud. fo 139 b. And that indeed it is no more but a Tem­porarie priuiledge and exemption from seisure of her Lord, during time of couerture, for if the Seigniour of a Mannor marrie his Niefe regardant, the best authority that I can finde is, that this Niefe is no more but shrined in the ho­nour of her Lord, if he die she shall haue no Dower, but re­maine still in her niefitie regardant to the Mannor. And to say truth, I perceiue not how a womans being married can in any sort be an infranchisement, no not for a time: it is no more but a sconsing or hiding of the seruitude. Bra­cton [Page 127] 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 in fee-simple or fee-taile: Sée the Booke 22. H. 6. fo. 18. &. 19.

But may the Lord enter vpon the Land during Couer­ture, quaere. If a villeine be possessed of certaine goods, and the Lord make seisure of them by poll, this is sufficient without seisen in fait: But if the villeine die before any seisin, and ordaine Executors, these Executors shall haue his goods, 3. H, 4. 15. 16.

And a Villeine shall retaine goods which hee hath as Executor against his Lord, yea hee may bring Action of debt against him as an Executor, all to the v [...] of the Te­stator. Also if a Feme gardian in soccage marrie with a [Page 128] villeine, I take it the Lord shall haue nothing to doe in this gardianship: If a Seignioresse of a Mannor marry her bond-man, he is made free, and where before hee was her footstoole, he is now her head and her Seignior, here is part of the particularitie.

SECT. VII. The Baron may beate his Wife.

THe rest followeth, Iustice Brooke 12. H. 8. fo. 4. af­firmeth plainly, that if a man beat an out-law, a trai­tor, a Pagan, his villein, or his wife it is dispunishable, be­cause by the Law Common these persons can haue no acti­on: God send Gentle-women better sport, or better com­panie.

But it seemeth to be very true, that there is some kind of castigation which Law permits a Husband to vse▪ for if a woman be threatned by her husband to bee beaten, mis­chieued or slaine, Fitzherbert sets downe a Writ which she may sue out of Chancery to compell him to finde surety of honest behauiour toward her, and that he shall neither doe nor procure to be done to her (marke I pray you) any bo­dily damage, otherwise then appertaines to the office of a Husband for lawfull and reasonable correc [...]ion. See for this, the new Nat. bre. fo. 80. f. & fo. 238. f.

How farre that extendeth I cannot tell, but herein the sere feminine is at no very great disaduantage: for first for the lawfulnesse; If it be in none other regard lawfull to beat a mans wife, then because the poore wench can sue no other action for it, I pray why may not the Wife beat the Husband againe, what action can he haue if she doe? where two tenants in Common be on a horse, and one of them will trauell and vse this horse, hee may keepe it from his Companion a yeare two or three and so be euen with him; [Page 129] so the actionlesse woman beaten by her Husband, hath re­taliation left to beate him againe, if she dare. If he come to the Chancery or Iustices in the Country of the peace a­gainst her, because her recognizance alone will hardly bee taken, he were best be bound for her, and then if he be bea­ten the second time, let him know the price of it on Gods name.

SECT. VIII. That which the Husband hath is his owne.

BUt the prerogatiue of the Husband is best discerned in his dominion ouer all externe things in which the wife by combination deuesteth her selfe of proprietie in some sort, and casteth it vpon her gouernour, for here pra­ctice euery where agrees with the Theoricke of Law, and forcing necessity submits women to the affection thereof, whatsoeuer the Husband, had before Couerture either in goods or lands, it is absolutely his owne, the wife hath therein no seisin at all. If any thing when hee is married bee giuen him, hee taketh it by himselfe distinctly to himselfe.

If a man haue right and title to enter into Lands, and the Tenant enfeoffe the Baron and Feme, the wife taketh nothing. Dyer fol. 10. The very goods which a man giueth to his wife, are still his owne, her Chaine, her Bracelets, her Apparell, are all the Good-mans goods.

If a Woman taketh more Apparell when her husband dyeth then is necessarily for her degree, it makes her Executrix de son tort demesne, 33. H. 6. A wife how gal­lant soeuer she be, glistereth but in the riches of her hus­band, [Page 132] [...] Executors; if such chattels bee giuen to the wife and to a stranger, the husband alone is tenant in Common of them with the stranger. Secondly, the Court did hold cleerely, that in Brackbridges Case, and such like, the immediate in­heritance in the Baron, did not drowne the interest of the Feme, for the one he had in his owne right, and the other in his wiues: But by an expresse act, as by feoffement or grant of a new lease, he might haue giuen away the inte­rest of his wife.

But leauing all to Law, the Law shall saue that inte­rest distinct, and preserue it: And it was holden in this Case, that Baron & feme might not ioyne in an eiectione firmae with Anticle, but he alone might bring his action and the Baron chased to more higher and more reall Writt.

Also it was holden the Baron might distraine or haue action of debt for a moity of the rent, and as I com­prehend the end of Brackbridges case, a feoffement by Thomas Brackbridge made of the Mannor whereof the Land seised was parcell, and might well drowne all interest Executory which his wife had, but not a Lease executed except liuery had beene made in the very Lands seised, for a Lease in possession of thrée acres maketh them to bee no parcell of a Mannor during the Lease, but a rent charge, or a lease executory which is but an interest, leaueth the possession entire, and no reuersion in the Baron, there is further in the Commentaries the Case of Dame Hales, viz. Sir Iames Hales Lessée for yeares, in his owne right taking a new Lease for twelue yeares ouer in remainder to himselfe and his Wife, died felo de se, the whol [...] interest was iudged for­feit [...], for the felonye had relation from the act done, id est, from entrance into the water, &c. At which time the Baron had power to grant, and consequently to for­feit it.

[Page 131]If the Wife haue a ward by reason of her Seigni­ory, this likewise is a Chattell reall, and the Hus­bands interest in it shall be as in a terme or lease for yeers: But if the wife be gardian in socage, no lease of the infants land, though it be made by Baron and feme, per Indenture shall binde the wife, but she may enter after the husbands death, and if she die, the husband shall not haue the Gardianship.

For in this Case, the wife hath nothing to her owne vse, but she is an officer appointed, vpon confidence in her natu­rall loue, and this office is not grantable nor forfeitable. vide nat. bre. 145. I haue hitherto, but shewed what is wrought as it were ipso facto, vpon marriages consumma­tion while it is gréene, not past a day or a wéeke old, and I thought it methodicall to insert the learning of battery, be­cause in my poore opinion it were better to combat for hou­shold mastry in the beginning, then to bring a Writt of right for it, when it hath gone too long, by title of rusty pre­scription.

SECT. XI. Of the Wiues interest of affaires be­fore Marriage.

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 [Page 133] 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 [Page 136] [...] 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 [Page 137] 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 obligation or other déed of grant, as an escrow with condition, &c. vt supra; that it should haue no relation at all saue onely to the last deliuery; for if hée to whom an obligation is so made, release all action to the Feme sole, before perfor­mance of the condition, and before deliuery of the déed by the baylée, he may notwithstanding sue vpon the obligati­on, when it is deliuered, which proues that it takes none ef­fect till the last deliuery; and then it must néeds bee void if the Woman be married at time of this deliuery, if all [Page 138] were not countermanded presently by taking a husband. But Parkins will not yéeld to these reasons, for the Feme sole was a person able to oblige her selfe in any manner of Contract, and her couenants and agréements made vp­on consideration, she could not countermaund though she would.

If a Feme sole seised of Land, infeoffe a stranger by déede indented reseruing rent to her and her heyres, to be paid annually at Easter, with a conditionall clause of en­try for non-payment, and then they two inter-marry, &c. héere can be no failing in performance of payment during couerture, for all this while the rent and condition are sus­pended.

If the condition had béen to pay ten or an hundred pound, it had béene drunke vp by the inter-marriage, for if a feme sole make a feoffement to a stranger vpon condition to pay her ten pound, and then she marrieth with I. S. I. S. before the day of payment may release all manner of conditions, duties and demands, and the condition shall be determined. But such a release comming after the day wherein the condition should haue beene performed at what time the wife hath a title of entrie will not binde her or her heyres, after the husbands death. Par. fo. 148.

There followeth a question, if a Feme sole infeoffeth a man of blacke acre by indenture with Condition, that hee shall infeoffe her of green acre before Easter, and they two marry and continue married till after Easter, whether the husband be maine-tenant seised of blacke acre in-the right of his wife, There followeth in Par. fo. 149. a case ayding towards solution of this doubt. If I be bound by obligati­on to a Feme sole to marry her by munday next, if shee marry a stranger and the espousals continue till tewsday, I néed not tender my selfe to her.

A Feme sole makes cognizance of her right to leuie a fine before Commissioners per dedimus potestatem, ha­uing the Writt of Couenant (vt oportet) and at the [Page 141] day giuen in banke, when the Concord should be recorded, the woman is married, but notwithstanding the fine was recorded and ingrossed, as leuied by a Feme sole: the questi­on was whether it should binde the Husband, or not, it was said, death of a partie, &c. which as the act of God dissolues the whole busines, by abatement of the Writ, but marry­ing after the teste of the Writ of Couenant, and dedimus potestatem, and Cognizance made, doth not so: The woman therefore and her heyres are bound for euer; and the Hus­bands release of all his right to the Conusée, makes all cléere 7. & 8. Eliz Dyer 246. the Lord Keeper of the great seale of England his case.

SECT. XIII. Of Acts done by a Feme Couert.

EUery Feme Couertis quodammodo an infant, for sée her power, euen in that which is most her owne: A wife may be seised in her owne right with her husband in estate of Inheritance: but if she make liuery and seisin to ano­ther in any parcell of this Inheritance by her selfe alone without grée of her Husband it is voyd, yea her Husband and shee together may maintaine an assise vpon the entry: but where onely the Baron is seised, and the Feme maketh liuery, the assise must bee onely by the Baron in his owne name: Par. 38. Likewise fo. 2. he telleth vs, where a man is seised in the right of his wife, and the wife grants a rent charge out of her owne Land, the Husband not knowing it, or the Husband knowing, but not consenting; but the déed is onely in the name of the wife, this grant is voyd. Admit the Husband be vagrant out of the Countrey, and the Wife (ignorant of his life or death) grants a rent Charge by deede reciting that▪ shee is sole; yet [Page 142] if the Grantée enter and distraine for the rent, the hus­band may maintaine an Action of Trespasse for this entrie.

Admit that this vna caro Baron and Feme through false loue or iealousie, bee set at nine miles asunder vari­ance, and certaine Lands are assigned to the Wife by the Baron for her maintenance, if the Wife grant a rent Charge out of this Land, it is meerely void.

If a Feme Couert grant a rent Charge out of her land by fine, as though she were sole, this bindeth not the Hus­band; but if he die before hee and his Feme haue reuer­sed their fine by error, the Feme shall be bound.

And if to a Feme Couert there be a feoffement made (a feoffement and liuery is of great celebritie) yet a naked disagréement of the Baron auoydeth it 1. H. 7. fo. 16. If a Feme Couert (her Husband being beyond the Seas) bee enfeoffed of an acre of Land, and the Husband comming home refuseth, and causeth the Wife likewise to relinquish all manner of seisin or taking any profits of the Land, this in a Writt of entry, sur disseisin in le per brought against the Baron and Feme will discharge the Husband of da­mages from the time of the refusall, but not for the occupa­tion before refusall, tamen quaere, Par. fo. 10. yet (saith he) they remaine Tenants (for all the refusals) of the Franke Tenement to vse any action so long as none other person entereth: but if a Tenant when his Seignior is beyond the Seas, doe infeoffe his Lords wife ioyntly with a stran­ger of the Tenancie, and the Lord comming home di­straines the cattle of the stranger for his rent, this distresse is a compleat disagréement, and puts the Wife out of sei­sin, so that now the possession remaines intirely to the stranger the ioynt feoffée; otherwise the husband should be at a shrewd mischiefe viz. without remedie for his rent, for all the time incurred before the distresse, Par. 10. Note that in these Cases it is no plea, for the grauntor to say that [Page 143] the Baron did not agrée, but hee must shew the disa­gréement.

A Feme Couert may be a disseiseresse without assent of the Baron, and hee shall be charged with damages, in as­sise against him and his wife: But if the Baron doe a dis­seisin to the vse of his wife and she agrées to it, the Franke Tenant for all this setleth not in her, for the entry of a hus­band gaineth nothing to his wife, but where she hath either right of entry (as vpon disseisin) or title of entry as vpon a Condition, &c. A Feme Couert makes a Testament of the goods of her husband, she dieth, the Executors proue the testament, if the Baron now will deliuer the goods to the Executors, this maketh the Testament good; for how­soeuer it might be accounted voyd, being made without the husbands consent, yet being once proued, it gathereth spirit (as it were) and the deliuery of the goods, shall imploy an assent before the will was made, note that licence or as­sent here, is sufficient per paroll, Par. 97.

A Feme Couert may take an assumption from any man for her Husband, shee may take an obligation or feoffement to her selfe, she may commit a disseisin, and her husband by his assent shall be a disseisor, ab initio: Shee may giue, sell, or charge her husbands Chattels, by his as­sent, as a horse or such like, and she is not so like a Monke that all her acts should haue an impossibility of taking any strength, but her husbands agréement comming after them, shall make them good whether they be to his aduantage or disaduantage, 27. H. 8. fo. 24. But the acts of a Monke can­not be made good by agréement of the Soueraigne.

And in the end of the case, Fitzherbert affirmes, that when a Woman makes a gift of her husbands goods, the Husbands post-assent is a new gift. One thing I will adde, That though a gift made by a wife of things which are quickly gotten, and quickly gone, (chattels I meane which require no solemne conueyance) and the Wife hath [Page 144] a med [...]ng with them may bee made good by agréement, yet a feoffement made by the Feme, cannot be made good by the Husbands bare consent succéeding.

Now for Executorship of a Feme Couert note that per Brian, 2. H. 7. fo. 15. b. she cannot be an Executor without the agréement of her Husband, and per mesme le reason, she cannot giue goods of the Testator without his consent▪ for vpon returne of deuastauerint, the Husbands goods shall be put in execution: The case in the booke, is of an Exe­cutorship, before Couerture. And remember that Fitzher­bert saith, 28. H. 8. Dyer fo. 7. If the wife haue a Lease by Executorship, the husband connot sell it, sed tota curia con­ [...]ra eum: But a Feme Executrix to her first husband may retaine goods against the Executors of her second Hus­band, if hee neue [...] did alienate them. 21. H. 7. per Fineux.

SECT. XIV. Of Elopement.

AMongst the acts of a Feme Couert, I must not for­get to admonish her that she take héed of Elopements, A woman shall not forfeit Dower by not suing appeale of her Husbands death, or by not visiting her husband, or not comming to comfort him when he is wounded or excéeding sicke in a forraigne shire; but i [...] he be in his home Coun­tie where he dwelleth, quaere: A woman in her frenzy may cut her husbands throat, and it is no forfeiture of Dower; but if she make an Elopement (which is a mad tricke) Dower is forfeited. Elopement by the sound and quality of the offence might séeme to be deriued from alopex a foxe, for it is when a woman seekes her prey farre from home, which is the foxes qualitie. But the word seemeth to bee [Page 145] French, there is a faire Statute against Elopement, West. 2. ca. 34. Si vxor sponte reliquerit virum & abierit & m [...] ­retur cum adultero suo, amittat in perpetuum actionem p [...] ­tendi dotem, quae [...]i competere posset de tenementis viri sui, si super hoc conuincatur, nisi vir suus sponte & abs (que) co­hertione Ecclesiastica cam reconciliet & secum habitare permit [...]at, in quo casu restituatur [...]i actio. A Woman that leaues her husband, goeth away and abides with her adul­terer, if she be conuicted thereof, loseth for euer her com­mand of Dower, &c. vnlesse the Husband of his owne frée accord without ecclesiallicall compulsion suffer her to be re­conciled and to cohabite with him, in which case her action is restored for Dower.

It is commonly holden (saith Parkins) that a Woman shall lose her Dower by voluntary Elopement, though her abiding be inuoluntary, and though she make none abode at all with her Adulterer: But if she be rauished, and demurre with the Rauishor, against her will, she loseth no Dower. If when the husband is commorant at one mannor, his wife depart to another of his mannors, and there liue in adultery, this is none Elopement, for it cannot but be intended, she cannot abide there without grée and goodwill of her Baron; ye shall haue a case for your erudition out of my Lord Dy­er concerning this matter: of Dower was demanded of a Mannor, ex dotatione Domini Powes by R. H. and Anne his Wife, it was pleaded that the said Anne in vi­ta Domini Powes.

To the parish of Saint Clements Danes, where she liued in adultery, all the life long of Lord Powes, abs [...] ▪ hoc that euer she was reconciled, the demandants pleade [...] a recon­ciliaui [...] [Page 146] & cohabitare permisit, the reioynder is non re­conciliauit modo & forma.

To proue the reconciliation, a lying together diuers nights at diuers places was giuen in euidence▪ with demeanure, as Baron and Feme; against this it was obiected that they neuer were resient or abiding in one house together, but alwayes in sunder, and that the woman continued in a­dultery with one or other continually, as long as her hus­band liued. Et non allocatur, for there may be many E­lopements with many reconciliations, and the Defendant at his perill must take issue vpon one, 1. & 2. Phi. & Ma­riae, Dyer, fo. 107. But me thinkes here wanteth equality in the Law, women goe downe stile, and many graines a [...] lowance will not make the ballance hang euen: A poore Woman shall haue but the third foote of her Husband▪ lands when he is dead, for all the seruice she did him during the accouplement (perhaps a long time and a tedious) an [...] if she be extrauagant with a friend vt supra, this is an Elopement and a forfeiture, &c. But as the saying is, men are happy by the masse, they may goe where they list I warrant yée, and because they are enforced to trauell in the world, they will pay deare abroad for that which they▪ stéeme of no value at home. Their adulterous soi [...]rning [...] is not discerned, they may lope ouer ditch and Dale, a thou­sand out-ridings and out-biddings is no forfeiture, but as soone as the good wife is gone, the badman will haue her Land, not the third, but euery foote of it.

Haue patience (my Schollers) take not your opportunitie of reuenge, rather moue for redresse by Parliament, and in the meane season be perswaded that liberty or impunity in doing euill by immodest life and lasciuious gallops, is no freedome or happines: no, but rather act thus farre your Husbands duty of instruction, namely, to learne him to leaue his incontinencie abroad, by your modest and chast life at home. And if this will not produce you, the comfort of your Husband, yet a farre greater comfort the [Page 147] 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 he [...] 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 ali [...]nation in fee, the Lessour may enter for a forfeiture, and maintaine an assise, if he be ousted: but the Wife sur [...]i [...]ing, may haue a cui in vira post mortem [Page 150] [...]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 [Page 151] 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 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, [Page 153] 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▪ [Page 154] 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 fée­taile, 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 [Page 155] 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 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.

[Page 157]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 [...]ne, is because a Feme Couert that taketh any thing by fine is neuer examined by the Iu­stices.

But where somewhat is to bee conueyed, from a Feme Couert, by a fine, as if Baron and Feme make cog­nizance to another, &c. or a grant or render, or a release by fine, in all or such like cases, because the right of a Wife is passing, and she shall be eternally concluded, she must bee examined before the fine can be receiued: and if shee con­fesse that her husband menaced her if shee would not leuie the fine, &c. it shall not be receiued 15. E▪ 4▪ [...]0. 1. But where nothing is moued in fines, saue onely a wiues purchase and gaining, there is vsed none examination of her, and there­fore such fines doe not conclude her.

If Tenant in taile discontinueth it and dieth, and the discontinuee makes a Lease to the Daughter and heyre of the Tenant in taile being of full age, and to her husband for their two liues, the daughter is remitted: If Baron and Feme Tenants in speciall taile be, and the Baron alieneth in fée, and takes backe an estate to him and his wife, for their liue [...], 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.

[Page 168]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 [...]aint or false action a stranger recoue­reth this house against her by default, so that she may haue a quod ei deforcear by West. 2. ca. 4. now is the reuersion of the Lessor discontinued, and hee cannot haue an action of waste. But if the woman marries, and the recouerer lease this house to the Baron and Feme for life, the wife is re­mitted to her first estate by the Lease, the first Lessor to his reuersion, and he may haue action of waste if there because.

Yet here if the other which recouered in the false action bring an action of waste, the Baron hath no other remedie but to make default at the grand distresse, and then the wife receiued, may bar him by shewing the fain [...]nes or falshood of his action whereby he recouered.

If after discontinuance, &c. the Baron take backe estate to himselfe and his Wife, and to a third person, this is a remitter for a moity, and for the other moity the Feme must sue her cui in vita after the death of her Husband.

If after discontinuance of the Wiues estate, the Baron goe beyond the Seas, and the discontinued lease the Land to the Wife for life, and deliuer seisin; if the Baron agree thereunto at his returne, this is a remitter, for the Feme [Page 169] 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 ar­ [...]eare, the discontinuée doth re-enter, vpon this entry the woman may haue an assise of nouell disseisin after the hus­bands decease, for the condition by the remitter, was cleane extinct in truth, though during couerture the Baron was estopped, &c. so that he and his Wife could not haue an as­sise together.

If the Baron discontinue, take backe estate to himselfe for life, the remainder after his decease to his wife for her life, here is no remitter till the husband be dead: but the Wife suruiuing, Franke Tenement is cast vpon her maine Tenant will she nill she by act of Law, and shee is remittted, for though shee enter not, yet shee can haue none action against any body for this land; but any man that hath cause may haue action of it against her, because a recipe quod reddat is maintainable against tenant in ley, and that is the widdow here: But Tenant of Franke Tenement in fair, is one which hath an actuall seisin, and vpon disseisin thereof may maintaine an assise.

The Statute of Glocester perceiued how by common Law a man may play fast and loose with his Wiues In­heritance by feoffement to discontinue her estate, and to continue it againe by resumption▪ and so to make it Inheri­tance or not to his wiues at his pleasure. [Page 160] 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 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 [...]iens a luy de­scen [...]r [...] 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 [Page 161] 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: [Page 162] 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 [Page 163] 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 [Page 164] 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 such Lease there shall be reserued yearly to the Lessors, their heyres and successors to whom the Lands should haue come after the Lessers death, if such Lease had not béene made, or to whom the reuersion shall appertaine so much or more, annuall ferme or rent as hath béene most accusto­mably yéelded, &c. within twenty yeares next before such Leases were made. And euery person to whom the reuer­sion shal appertaine after the death of such Lessors or their heyres, shal haue such remedies a aduantages to all intents, against the Lessées, their executors or assignes, as the Les­sor might haue had: So that if the Lessor were seised in in speciall taile, &c. the issue or heyre of that speciall estate, shall haue the reuersion, rent and seruices, &c.

Prouiso, that the wife bee made party to euery Lease made by her Husband of any Mannors, Lands, Tene­ments or Hereditaments, being the wiues Inheritance, and that euery such Lease be by Indenture in the name of the Husband and the Wife, and she to seale the same: And that the ferme be reserued to the Husband and wife, and to the heyres of the Wife according to her estate of Inhe­ritance: And that the Husband shall not in any wise alien, discharge, grant or giue any the rent, or any part therof, longer then during Couerture, without it be by fine leuied by the Husband and wife, but the rent shall remaine, de­scend, reuert, or come, &c in such sort and manner as the land should haue done if no such Lease had béene made pro­uided that this act extend not to giue liberty of taking more fermes, &c. then before was lawfull, &c. nor inable Vicar, or Parson to make or grant their Lease of Messuages, Lands, Tenements, Tythes, &c. or Hereditaments belong­ing [Page 165] to their Church or Uicarage: And it is further ena­cted that all Leases made within thrée yeares before the twel [...]th of Aprill in the 31 yeare of H. 8. made by Inden­ture sealed by person or persons of full age, of whole me­mory, not vnlawfully coacted, nor vnder Couert Baron, for terme of yeares, of any Mannors, Lands, tenements, or Hereditaments, whereof the Lessor or Lessors were sei­ [...]ed in any estate of Inheritance, to their onely vse at the time of their Lease-making, and whereof the Lessées, their executors or assignes at time of this act Making, were in possession by vertue of the Lease, no cause of re-entry or for­feiture being had or made, shall be good and effectuall in law against the Lessors, their heyres and successors accor­ding to the couenants and agréements specified in the In­denture, &c. so that there be reserued to the Lessors their heyres, successors, &c. as much yearely rent as was at any time yéelded within 20. yeares before making of any such lease, or else the Leases to be of none other effect then they were of before this act.

And moreouer it is ordained that no fine, feoffement, act or acts to be made, suffered, or done by the husband onely of any Mannors, Lands, &c. being the Inheritance or frée­hold of the wife during Couerture betweene them, shall in any wise be, or make any discontinuance or be preiudiciall to the said wife or her heyres, or to such as shall claime right, title or interest by her death: But that shée or her heyres, or they to whom such right or title shall appertaine, after her decease shall and may lawfully enter into such Mannors, Lands, &c. any such fine, feoffement or other act notwithstanding, except fines onely leuied by Baron and Feme, wherunto the wife is priuie and a partie. Prouided that this clause extend not to giue any liberty to any Wife or her heyres to auoid any Lease hereafter to bee made of any her Inheritance by her husband and her selfe for 21. yeares or vnder, or for thrée liues at the most, whereupon yearely rent shall be reserued vt supra: Prouided also that [Page 166] this act extend not to any Lease heretofore made by Eccle­siasticall or other person by Co [...]e [...]t or Common-seale, which Lease is made voyd by act of Parliament, nor to make good any Lease of any Ecclesiasticall person made by c [...]uent, seale or otherwise, or of any other person attain­ted of [...]reason▪ &c.

SECT. XXIII. The Exposition.

THis Law in the first part is affirmatiue, or I may say leasatiue, a leasing Law or Statute, Tenant in fée-simple, iure mero suo nothing restrained by it: No more is Tenant iure vxoris, but he may make a Lease for yeares, to continue till the last hower of Platoes great yeare, or till King Arthur come againe (for all this Sta­tute) for no greater rent then thrée bundle of bulrushes, as well as he might before although her land were neuer lea­sed before, since Noa [...]s floud, and such a Lease shall bind him during Couerture.

But if the Husband make a Lease by paroll or by poll déede, or by Indenture, and the wife not partie; or if the Land were not informer times demised, or if the ancient rent or more be not reserued, then as the earth stayeth in the worlds center vpon nothing but Gods prouidence and permission▪ the Demisée leaneth vpon no Statute, but hangeth at the wiues courtesie, ponderibus librata suis, as at Common Law.

SECT. XXIV. Law before the Statute.

HOw that was, yée shall perceiue by the cases follow­ing; If before the Statute of quia emptores▪ tenant in fée, iure vxoris infeoffed a stranger expressing no te­nure, the feoffés was to hold of the Baron by such seruices as he and the Wife held by of the Lord Paramount. If the Baron and Feme had ioyned in a Feoffement to hold of the Baron, &c. th expressed tenure had béene voyd, and the Feoffee must haue held of them both by such seruices as they held ouer, &c.

If the Baron in this case had died, and the Wife accep­ted the rent in her viduity, this acceptance here barred her for euer from auoyding the Feoffement by Writt of cui in vita. If Tenant iure vxoris and his Wife, had made a Feoffement to hold of the Wife, the Feoffor should haue held of them both, and if the Wife had died, the Feoffor was to hold of the Baron till the feoffement were auoyded by sur cui v [...]a, Par. 126.

Againe, if before this Statute of 32. H. 8. Tenant in fée iuro vxoris, and his wife had ioyned in exchange for other lands in fée, and the exchange being executed, the Husband had dyed; now the Feme by entring in vpon the Land gi­uen her vpon the exchange, should be barred for euer from defeating the exchange. But if it had béene made by the Baron alone, she might haue defeated it notwithstanding her entrie▪ for that could giue noseisin by force of the ex­change to her that was neither partie nor priuie to it, Par. fo. 8.

And if a man seised in right of his Wife, &c. make a Lease for life rendring rent with a letter of Atturney to his Wife to make liuery, the Wife deliuers seisin, the Baron dieth, she accepts the rent, the may haue a cui in vita by the [Page 168] 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 [...]ure vxoris▪ make a lease for life of the land, and die, the wife can haue no action of waste, for she was not par­tie to the lease, & ex hoc sequitur, that a woman vpon ac­ceptance of rent of lease for yeares made by her husband without being her selfe a partie, is not bound, but shee may enter: And albeit the lease were for life, yet acceptance barreth not a cui in vita, if she were not partie, &c. 26. H. 8. [...]. 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 [...]. 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 [...]ffirmance of the lease, for acceptance can neither make good a lease determined by entry, or a lease already void without entry by the lessors death.

And he that leaseth to hold at will endeth that will when [Page 169] 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 [...]owry lyeth for the Husband, because he hath no reuersi­on. And an action of trespasse vi & armis may be against him, but he cannot haue action of debt for the rent.

But to come home to the very brinke of the Statute, no­ta (saith Dyer) That the common opinion amongst all Iustices at this day is, If Baron and Feme make a Lease for terme of yeares, before the Statute of 32. Hen. 8. by Paroll reseruing rent to them both, if the wife when shee is become sole, accept the rent at the Fermors hands, this binds her not from anoyding the Lease, if it were not by Indenture, for her assent was requisite at the begin­ning, and that ought to haue appeared by déed Dyer, 1. Mar. fo. 91. The same Learning is, 4. Mar. fol. 146.

[Page 170]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 [Page 171] 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 [...]mitated.

But like enough it is that Tenant per le courtesie, or in Dower, or in right of his owne or in another mans Seig­nory, may Lease away their estate, for a proud fine and a little rent: Nay yée may be sure, that if they might set the example, they should be gotten to make Leases for esper­uiers annuall, and small yearely income in hope that my young Master at his full age, should be content with the old rent, and a kennell of [...]ds: King Henries and the Par­liaments meaning was not therefore, that their Leases should be any patternes for reseruation of rent by Tenant in Taile, or as I suppose in the right of his Wife. If Baron and Feme make a Lease by Indenture for twenty yeares to commence at Michaelmas it might séeme doubt­full by the booke 7. & 8. Eliz. Dyer, 246. whether it be a good Lease, by this Statute.

If Baron and Feme by their Indenture make a Lease to commence after the Wiues death▪ I thinke this no good Lease, according to the Statute, for twenty one years ought to be from the making of the Lease, &c. If the Ba­ron and Feme die, the Heyre is not bound to accept the rent or allow the Lease. And though he doe accept it, if the [Page 172] Land were tailed, he may enter notwithstanding: vide 10. Eliz. Dyer, 279.

If Baron and Feme make a Lease by Indenture, &c. for 31. yeares, quaere, the Baron dying, whether this be a good Lease, for 21. yeares or no, I thinke it is not, but standeth méerely at Common Law. For the first Prouiso of this act is that it shall not haue respect or extend to Lea­ses made for aboue 21. yeares.

When King Henry the eight in 31. of his Reigne by Parliament had made voyd all Leases to bee made of Lands, which should afterward come to him, if any Leases former were in esse, or being, with prouiso viz if he which had an old vnexpired lease, tooke a new that he should hold for 21. yeares, from making of the new Lease, so that it excéeded not twenty one yeares, it was admitted in Falme­stones Case, that such a Lease made for fifty yeares, was good for 21. Plo. 110.

And when Thomas Vmpton after ( 32. Henry the 8.) ca. 1. which gaue power to Tenant per Chiualrie to deuise two parts of his land, had deuised a whole mannor in fée, before 34. Ed. 3. 5. Hen. 8. of explanation, which will by the said Statute of explanation, was referred to the Law, the deuice was adiudged good for two parts, contra Kelwais o­pinion, as you may sée 4. & 5. Phil. & Mar. Dyer, 150. But these cases differ farre from the former as yee may finde by the comparing the Statutes: If after a Demise by Baron and Feme for twenty shillings of vsuall rent▪ the husband release all his right, except twelue pence, &c. or grant that the Lessée shall hold dispunishable for waste, the Wife accepting twelue-pence post mortem viri, may di­straine for the rest notwithstanding, and haue an action of waste, Dyer 304.

Note, before this Statute was made the Count Bridge water being tenant in taile, the remainder to Basset in taile, he bound himselfe in recognizance to the said Basset to make no alienation, grant, sale, conueyance or exchange, [Page 173] otherwise then for his owne life, it was a question after the statute, whereunto Basset and all men were parties, whether the Earle might now make a lease for xxi. yeares without forfeiture of his Recognizance, resolved by Brome­ly, Portman and Harris serjeants that he could not, but if hee did make such a lease, they thought that neither hee in re­mainder or the donour should euer auoid it by any dying sans issue, 33 H. 8. f. 49. in Dyer, who, concludeth and so shall the statute be expounded, for so was the intent, a meaning of the makers, yet the text hath no word of donours, or of them in remainder, I heare that law is taken now to bee cleane contrary in the last point viz, that remainders and reuer­sions are freed from this act, and I beleeue it the rather because 34. H 8. ca. 20. that frustrateth fained recoueries a­gainst tenant in tayle, where the King is in reuersion or re­mainder, in the prouision for strength of leases, made ac­cording to the Statute, is only against the Heyre or heyres of tenant in taile, &c.

The last part of the Statute. SECT. XXVI.

THe Last part of the Statute is negatiue against [...] continuance, which how farre it preuailed before or af­ter the act, the former instructions, with the act it selfe, doe put in some cleerenesse. But a case or two will make it more plaine, Amy Townsend seised of a Mannor in tayle, take a husband, the husband made a feoffement, 29. of H. 8. to diuers persons in fée, to the vse of himselfe and his wife for life of them two, with remainders of vse ouer. After this Statute made, Amy and her husband made a Lease for 21. yeares of part of this Manuor, according to this act of 32. H 8 Amy died first, then her husband died▪ the questi­on is, whether Amy were remitted to her former estate taile by vertue of 27. H. 8. ca. 10. and so the Lease good, [...] [Page 174] was argued on the one part, that reduction of the possession by the statute 27. &c. was of effect alone with their feoffe­ment, and because this possession was regained without either tort or folly in the wife, whose agréement whether she would or no, was included in her husbands agreement du­ring Couerture, she must néeds when Couerture was dis­solued, till disclaimer, or some act done to the contrarie be [...]diudged in possession, there was then no tenant against whom to bring her cui in vita, if she should not bring her cui in vita to purge the first wrong, she must needs be re­mitted, if she were remitted, this cause must néeds be good. And although the Statute of 27. settle possessions according to qualitie and quantitie of the vse, yet it séemeth not that so it shall continue, but they may change by a former ancient right, for the Act being affirmatiue takes not the Common Lawes operation in remitters: besides that, it hath an expresse sauing of eygne right: further, if that the wife should not be remitted, this inconuenience followeth, the Baron might charge the Wiues inheritance with a rent, to the whole yearly value, or be bound in a Statute merchant, &c. and then making a feoffement to his wiues vse, shee should hold the land charged after his death. To this it was answered on the other part, that the feoffement at the time therof made a discontinuance, which puts Amy to her cui in vita, which because she hath not vsed, but is come to possession onely by force of 27. &c. she must take it onely by the manner, order, and limitation of the same Statute, Couerture, or infancie, being no whit materiall, because the Statute hath none exception. The words are in manner, forme, qualitie and condition of the vse, &c. and because this was a new Constitution of that which was not at the Common Law, it hath not the force of a nega­tiue implying in nul auter manner then is therein descri­bed: Amy is therefore a ioynt purchaser with her hus­band in estate for life, and not in or by descent of estate ta [...]e: Now to say that her right and estate should change [Page 175] 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 incon­ue [...]iencie alleadged, if she shall not be remitted shee shall hold incombred with the charges of her Husband, that is none at all, for Amy after her husbands death might haue disagréed and relinquished the vse with possession annexed to it, by bringing a cui in vita, against him next in remain­der; for in him by such disagréement or vser of action had the remainder vested, as though the woman had beene a Monke or dead person in Law, or neuer named in the limi­tation: If the vse had béene to Amy Townsend in fée, she might haue brought her cui in vita against the Feoffor or his heyre, by which they shall be Tenants to her action, and so might the in [...]umbrance haue béene auoyded▪ for when a feoffement is to the vse of one which refuseth the vse, it shall be in effect as if the vse had beene limited to Paules stéeple or to Charing-Crosse, all falling or reflecting because the Feoffor hath no recompence or consideration to his vse, and hee shall be Tenant to euery Precipe: It was further agreed, that as the Cause fell out, Amy Townesend could not be remitted, though her possession had returned by refeoffemēt 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 [...]einfeoffe the Baron and Feme and heyres of the wife, [Page 176] 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 th [...] 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 Dr [...]its, Titles and Actions, is of such right, &c. as was before the Statute, and not of any right, title, or action, risen since or after it: Now note that as a Lease made for twenty yeares by Baron and feme Tenants for life binds not any remainder by the Statute, which speaketh onely that Leases made by Tenants of Inheritance, shall binde heyres and Successors, so I would inferre that if the Leassors inheritance be determined, whether it were iure vxoris in taile or otherwise in taile, the remainder must be frée from the Statute: But note that the point which made me choose this case for illustration of the Statute, is this, Amy Townesend was iudged not remitted, because she had no title of entry, but onely by the 27, &c. of vses, and there­fore she must néeds claime her possession, according to the vse.

But put Case the Feoffement had béene since the Sta­tute of 32▪ the Law would then haue iudged a remitter; for by Littleton, where any persons entry is congeable, which taketh estate for life or in fée, it is a remitter, if the repri­sall be not by Indenture, or record, or some matter of estop­pell, for alwayes where there is a double right or title, the Law must iudge for the best, as well in the entry as in the possession, and an Indenture made by Baron and Feme is none estoppell to the Wife by the Common Law.

Concerning the Case 21. Ed. 3. Wilby which gaue iudge­ment, thought the Barons aduantage a hinderance to the Remitter, yet if he died the wife should be remitted: But if you looke, Brooke remitter 21. and 41. ye shall finde that [Page 177] 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 ca [...]teth any frée-hold vpon her. In like manner if the Baron alone alien his Wiues Land by fine with pro­clamation, the Wife may enter by force of this Statute, but per opinionem totius curiae Ed. 6. Dyer fo. 72. If she suffer fiue yeares to passe and expire without entry or vser of action she and her heyres shall be barred for euer, for this [Page 178] Statute of 32. though it limit no time for the womans en­try, yet it speaketh nothing of fines with proclamation, and therefore it takes not the generall Law made 4. Hen. 7. cap. 24. of fines, with proclamation. And sée Sir Ed. Cokes 8. Rep. fo. 72. in Grenlies case.

SECT. XXVIII. Of Fines.

SEe further the case 18. Eliz. Dyer 351. Land holden in socage was giuen to a man and his wife in taile, the re­mainder in sée to the Barons right heyres, the Baron a­lone leuied a fine with proclamation to his owne vse, and afterward by his last will and Testament in writing, de­uised the Land to his wife for life, the remainder ouer to a Stranger vpon condition to pay certaine rent annually out of the land with Clause of distresse, &c. the Baron died, the wife entering and claiming estate onely for life paid rent according to the will and died. Now the question is, wh [...] the Issue in taile or Deuisée of the remainder should haue this Land, Et per iudicium curiae. Partly because his mo­ther had waued the estate taile, and although shee had not done so, yet because he could not conuey his title and discent, but aswell as heyre to his father as to his mother, the fine with proclamations leuied onely by his father barres him: So farre goeth the Booke. And you may obserue, that it barres the wife if she will.

See also 5. Eliz. 224 in Dyer, the husband leuied a fine with proclamations of his owne land, and after fiue yeares died, his widdow continuing sole, of full age, whole memory, out of prison, within compasse of the foure Seas, and doth not make any demand or claime of dower, within 5. yeers after her husbands death ( quaere if he which pleadeth in [Page 179] barre of Dower, ought expresly to auerre this:) The questi­on was, if she were barred of Dower, Dyer telleth vs ter­mino Hillarij 4. H. 8. rotulo 344. such a barre pleaded was admitted good, for the ground of Dower was the Hus­bands seisin, and the action giuen by his death. So that it is within the second sauing of 4. H 7. which preserueth to all which are not parties pursuit of right growne after the fine, by or vpon cause before the fine, so that they take it within fiue yeares.

In Plowden fo. 373. Iustice Dyer arguing Stowell and the Lord Zouches case, affirmes the learning which I haue recited out of his owne booke: But Plowden inserts his note, that he takes the Law to be otherwise, and that a woman is bound to no time of her Dower, after such a fine, for (saith he) the ayme of 4. H. 7. as against future droicts is wholly against such rights, as either suffered wrong before the fine, or by the fine, and in this case of Dower, the title is all after the fine, and standeth well in accord with it, not touched by the Statute, the woman therefore may demand when she listeth.

So if there be a cessor begun, a yeare before a fine with proclamations continued a yeare after, the Lord is not re­streyned at the end of 5. or 15. yeares to bring a cessauir. so he saith likewise, if a morgage be disseised, a fine lenied by the Disseisor with Proclamations passed, yet the mor­gager paying his mony to the Morgagee may at any time, within 5. years or more, after the payment re-enter. When Giants fight, Pigmées may not part them: but howsoe­uer some incertainty arise in euery corner of the Law, this is here certaine, that a fine leuied by the husband onely, of his owne land, tolleth not the wiues action of Dower, if she come in time: And a fine so leuied, by him, of the wiues Land, taketh not away her seasonable entry; but the gulfe that swalled vp entrie, action right, and all possibility of re­ducement by Law is a fine lawfully leuied by baron and feme, where (forsooth) because a woman is examined by [Page 180] a Iustice or one that hath a Dedimus potestatem, &c. and acknowledgeth her frée consent and agréement, what can­not men get wiues to doe if they list, she shall be barred and for euer excluded of a great many acres of ground, for a few kisses and a gay gowne. That is a fine finem litibus imponens, for till it be done and dispatcht, the poore wo­man can haue no quiet her husband keepes such a iaw­ling.

SECT. XXIX. Of common recoueries.

AS for trickes of Common recoueries I perceiue not how that can be greatly preiudiciall to women: for first if a man will suffer a faigned recouery of his owne Land to defeate his wiues Dower, she may falsi [...]e it, &c. sée the Eiectione firmae per Eare against Snow, Plowd. fo. 515. the baron there being tenant in taile, his wife hauing nothing in the Land, he and his wife suffered a common recouery with voucher to his owne vse, &c. the opinion of all the Iustices was, that though the woman suruiued, yet the estate taile shal be barred, for it was found precisely by ver­dict that the wife had no interest in the Inheritance: The baron therefore, which alone lost estato taile by the reco­uery, might recouer alone estate taile in value. But as for the wife, no man can say what estate shee had; nor whe­ther she should haue a quod ei deforceat, or a Writt of right, if she had lost the land by default. So likewise ha­uing lost by the recouery, nothing or no man can tell what her recompence in value must be: She was named (said the Iustices) vpon intent to barre her of Dower, and such is the meaning of husbāds which wil haue their wiues named in such recoueries: but cleere the estate taile is barred, if in this case the wife might sue execution in value against the [Page 181] vouchée by estoppell, yet the issue in taile should not be con­cluded by the act of his Father, but he might oust her of that which she had so recouered in value, &c. see Sir E. Cokes 10. Rep. 43. a. in Mary Portingtons ca. that the vsage hath béen alwayes vpon common recoueries against Baron and Feme to examine the wife, and to grant a dedimus potesta­tem, to take vpon her examination her Conusance as in case of a Fine.

But let the case be, Tenant iure vxoris is agréed with Iohn a Stile to suffer a recouery of his wiues Lands to cer­taine vses comprised in Indentures betwixt them two, a Writ of entry in the post is brought against the Baron and Feme, which appeare in person or by Atturney, calling to warranty the common vouchée, a man well worth a cou­ple of new rosted egges, which re-enters into warrantie, Then after declaration and imparlance, at the day of the appearance shall the demandant recouer against Baron and Feme, and they in right of the Wife shall recouer a­gainst the Vouchee of such lands as he hath, or is like to haue when time hath a hairy crowne: shall this recouery or possibility of vnlikely recouery in value binde the wife when the Baron is dead whether she will or no: by Brooks nouell cases, 23. H. 8. pl. 37. it séemes that such a recouery did then bind the wife to: but without examination mee thinks it should not bind the wife: The Statute of 32. is that none Act of the Barons shall make discontinuance, &c. except onely a Fine by Baron and Feme, Ergo such a re­couery notwithstanding though it be executed the wife may enter. See 23. Eliz. cap. 3. and there is a sauing to euery Feme couert or her heyres her Writt of error to be sued within 7. yeares after she become sole, for reuersing of Fines and recoueries past, if they must be reuersed by er­ror, it séemes without error, they were very dangerous. For a rule to conclude withall, take this, That wheresoeuer the Baron doth any thing out of Court, which thing he and his Wife were compellable to doe, it shall be deemed and con­strued [Page 182] 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 matrimon [...] & 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 [Page 183] 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 [Page 184] be endowed of as much of the residue of her Husbands he­reditaments as the Lands or Tene [...]ents so euicted shall a­mount or extend vnto: Prouided that nothing in this act extend to hurt or preiudice any woman heretofore marri­ed, concerning her right, title, vse, interest or possession which she may claime or pretend to haue for her Ioynture or Dower in any Lands, &c. of her late Husband being now disseised: Prouided also, that if any Wife haue or hereafter shall haue any Lands, Tenements, or Heredita­ments vnto her giuen or assured after Marriage for terme of her life, or otherwise in Ioynture (except the assu­rance be made to her by act of Parliament, and the Wife after that fortune to out-liue her husband, in whose time the Ioynture was made, that the Wife so ouer-liuing, shall and may at her pleasure refuse the Lands appointed or as­sured in Ioynture, and thereupon haue, demand and take her Dower by Writt or otherwise, according to the Com­mon Law.

SECT. XXXII. The Exposition.

THe first obseruance is that no estate gained by mat­ter of conclusion, shall be déemed a purchasement with­in this Statute, or bee auerred to bee made pro iunctura: But the Statute must be intended of true and substantiall estates. Therefore if an owner or tenant of certaine land make answer to Baron and Feme in an action of waste, or if he pray ayde of them, as if they were seised of the reuer­sion, or if he bring a quod ei deforceat, against them as if he had none other then a particular estate; though these things were purposed for Ioynture, yet they seclude not a Woman from right or demand of Dower: Releases such as inure to make estates, as where a ioynt-tenant re­leaseth [Page 185] 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 Fée­simple 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 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, [Page 186] 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 D [...]wer, viz. 80. pound: at last by agréement it was ordered and decréed in the Court of Wards, that she should haue the Legacie, vt su­pra, and forty pound ouer for Dower: This Case decideth the question, for it is against the latter opinion expresse, ideo quaere. Brooke noteth also Dower 69. that per Iusti­ciarios, if a man make his Wife ioynt-purchaser with him after Couerture, of any estate of Franke Tenement, vnlesse it be to him and his Wife and their Heyres in fée­simple, 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. H [...]n. 8. Betwixt Sir Maurice Dennis and Elizabeth Statham, that in conside­ration of expected Marriage, and other things reasonable the said Sir Maurice and his heyres, should from thence­forth stand seised of certaine Lands, &c. to the vse of him­selfe and his heyres vntill Marriage were had and solem­nized, and then to the vse and behoofe of the said Maurice and Elizabeth, and their heyres after Marriage, Sir Mau­rice [Page 187] 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. El [...]z▪ he affirmeth for Law, that where Fée-simple is limited ouer to a Wife, or estate made to Baron and Feme in fée, it is auerrable pro iunctura, if the conueyance he not expresly contrary: Sée a question for auerment, Dyer 226.

One that had an vse in Fée of certaine Lands, to the va­lue annuall of 100. pound, tooke a wife, 22. H. 8. and af­ter espousals at request of his wiues friends and Parents, caused the Feoffees to execute estate to him and his wife, and to the heyres of himselfe of parcell of this Land to twenty pound value, &c. He then purchased other Lands, and after 27. dyed seised of all: The wife by taking rents and profits of the twenty pound land agreed to her estate therein, and afterward brought a Writ of Dower, deter­tia par [...]e residui omnium terrarum, &c. because the Statute is expressed of Iointure, and the déed whereby estate was made to the baron and feme hath no mention of Ioynture or Dower, quaere, whether this matter generally alledged without auerment, that it was pro junctura▪ vel pro do [...]e, shall barre or no: See the Institutions of Sir Ed. Coke, [...]o. 36. much matter concerning Ioynture.

[Page 188]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. Fi [...] ­ches reading.

SECT. XXXII. The Words, Land, Tenement or Hereditament.

LAnd is intended as well of pasture, meadow, woods, heath, &c. as of arable, and lands couered with water or surrounded is within the Statute: So is a Towne an Isle, &c. but vestura terrae, or an vpper Chamber cannot make a Ioynture as Land.

Tenements assured in Ioynture, may bee Aduousans, Rectories, Windmils, an vpper Chamber, a Seigniory in Chiualrie, and a reuersion sur estate pur vi [...], all comming within the mea [...]ing of the Statute.

As for a reuersion vpon or after estate for yeares, it is rather in account of law, land, then a tenement: for the Franke Tenement, which is the principall, is as the pre­sent substance of the Land it selfe: And the reuersion of either of these particular estates, if rent be reserued, may well be assigned for a Ioynture.

Yea and whether rent be reserued or no vpon a Lease for yeares, it might be somewhat doubted whether the re­uersion be assignable for a Ioynture, &c. because the Frank Tenement passeth presently, and a woman may haue an assise thereof.

[Page 189]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 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 [...]etter are but as patternes or examples of Ioyntures. And therefore where an estate is limited to Baron and feme, and to the Heyres Males of their bodies, or to them and the heyres Males or Females of the body of one of them, although this be an abridgement or amputation of one sexe, from the examples within the very Statute; yet it is a good Ioynture.

There is a Case in proofe thereof, Dyer, 97. 1▪ Marie the Duchesse of Somerset was ioynt-purchaser with her hus­band of estate to them two, and to the heyres Males of her Husbands body, betweene them begotten, which is none of [Page 190] 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 [Page 191] 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 seisi (que) 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 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 [Page 192] [...] [Page 193] [...] [Page 194] 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 La [...] ­caster his heyre being vnder age, the first question was whether shee might retaine the twenty pound Lands, [...]d haue Dower of the rest, because she was not Richard A [...] ­ [...]ons wife at the time of the Feoffement first made, neither was it made of the barons lands, or by the baron resolued by Councell of the Court, that shée was barred of Dower: And it was so likewise resolued in Vernons Case, Sir Ed. Cokes 4. Report, wherein is much learning touching Ioynture.

The second question in Eliz. Astons ca. was whether she were Dowable from the Quéene, because the feoffement was not found by the Office.

The third question, whether it might be a [...]r [...]ed for the Quéene in stay of petition of Dower, that the Feoffement was made pro iunctura, no such matter being expressed neither in the déed of Feoffement or Indenture of Co [...] ­ [...]ants.

The fourth question, whether the Widdow Elizabeth might be receiued to auerre, and proue by Commissi [...] the Court of Wards, that the Feoffement was not meant for a Ioynture. Here is enough to make Women be w [...]e how they take Ioyntures before Marriage: Take [...] ­ther to admonish you, beware of fines after Marri [...], Ioynture was made to a Feme Couert by her Baron▪ shée and her baron aliened the land by fine sur connusance de [Page 195] 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 [Page 196] 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 vxor [...]m, capit lites, and qui habet terras habet guerras, A Wife brings iarres, and wealth brings warres, quarrels, suits and controuer­sies at Law, sans c [...]o, that it hath any other intendment, it will not be amisse a little to declare how and in what man­ner actions at law must be commenced and pursued by ba­ [...]on and Feme, or against them, or by or against one of [Page 197] 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 [...]éere difference in the Booke of assizes; for in the Writt of prohibition, he tels vs, if a man promise one twenty pounds if he marry his Daughter, after marriage if the promiser will not pay the money, the husband may not sue in Court Christian, if hee doe a prohibition lyeth▪ marry if I promise one twenty pounds with my Daughter in Marriage, &c. now▪ vpon non­payment, he may sue in Court Christian, for this concer­neth Matrimony. The same learning he insisteth vpon his Writt of Consultation, adding that if he die which made the promise, the other may sue in Court Christian against the Executor, or Executors of Executors, 22. ass. pla. 70. is thus, vpon Contract had betwixt two men, that if one of them will marry the others Daughter, hee shall haue ten pound, &c. the ten pound after Marriage must be demanded in the Kings Court, because the promise was not with his Daughter in Marriage, but by Couenant, [Page 198] that he should, &c. But if he had promised the money with his Daughter in Marriage, it must haue béene demanded in Court Christian: And if a man promise vpon his faith to pay ten pound, the Ordinarie cannot compell him to pay it, but he may enioyne corporall penance, vnlesse the pro­miser will voluntarily redéeme it: Thus teacheth Iustice Thorpe in declaration of the Statute of circumspecte aga­tis 45. Ed. 3. fo. 24. The Demandant declares vpon a co­uenant betwixt him and the Defendant, that if he married the Daughter of the defendant, hee should haue an hundred pound, &c. It was moued that this demand of debt vpon a Couenant concerning Matrimony was not good, but the matter concerned the Court Christian per articulos cleri, Notwithstanding because the demand was vpon a déed, and a written déed maketh a lay couenant, the defendant was compelled to answer: But 14. of Ed. 4. fo. 6. in an action of debt the Plaintiffe declares that he had married the De­fendants daughter, vpon agréement of twenty pound to be paid, &c. and all the Iudges of the common pleas (without tarrying the Defendants answer) awarded que le plaint prist rieu person brief, for the demand is, say they, of the same nature with the espousals, viz. ius spirituale, and de­terminable no where but in Court Christian, and yet the Booke of assises was there remembred 15. Ed. 4. fo. 32. the plaintiffe in a Writt of debt demanding fiue markes declares vpon a couenant quod not [...], for fiue pound where he had marryed, &c. and 33. pound fiue shillings foure pence was paid, but the residue being 5. Marks, the defen­dant denyed to pay, yet I care not saith Catesoy though he be discharged: for I know well enough that vpon such a matter, the action lieth not at common Law, quod fui [...] con­cessum per curiam▪ And the cause alledged was that there was not quid for quo 17. Ed. 4. fo. 5. The master of the Rowles asketh the Iustices of the Common pleas, if a man promise money to another to marry his daughter or seruant, which marrieth her accordingly, whether an acti­on [Page 199] of debt will lye at the common Law or no: No saith Townsend, for it is but a nude promise of no more effect then if I promise you 20. pound to build you a new Cham­ber, and ex nudo pacto non oritur actio. But if I promise you sixe shillings euery wéeke for the bording of I. S. here is quid for quo, for law intendeth here, that I haue aduantage and profit by the seruice of I. S. But further in your case, the thing that is to bee done is spirituall which cannot bee sold, neither can the party be compelled to doe it: Rogers and Siliard were contrary to him in opinion, That a pro­mise vpon Marriage is no [...]dum pactum▪ because the daughter cousin or friend is by intendment aduanced. And if I promise a Schoole-master money to teach my childe, he shall haue action of Debt. Likewise if I promise a Sur­geon money to heale a poore mans wound, or a Labourer money to mend a high-way. But in the end Choke & Little­ [...]on agréed with the Master of the Rowles, that in the case by him propounded none action lyeth at common Law▪ be­cause Matrimony whereupon the promise is founded is a thing spirituall, and by no manner of meanes vendable. 19. Ed. 4. fo. 10. in an action of debt, brought vpon such a bar­gaine: Collow saith, it is true, a man must demand a wo­man contracted to him in the spirituall Court, but money is a temporall thing: And when a Parson of a Church is to recouer tythes, he must sue in Court Christian▪ but if he sell his tythes, when they be seuered, hee shall sue for the money in the Kings Court, but then and afterward in the same or like case 20. of Ed. 4. fo. 3. Bryan asketh him then, to what end serueth the Statute, that things touching Ma­trimony and Testaments must be tryed in Courts Chri­stian, cui des vous quam vous purres achate les Sacraments. Sir, saith Neale, dismes are a thing spirituall, but if a Parson of a Church lease his Tythes, hee must sue for the rent in a temporall Court, and Collow stands to it, that per emptionem & venditionem res spirituales efficiuntur temporales, he neuer spake a truer word in his life.

[Page 200]Out of these opinions consorting together like harpe and harrow, may be gathered this sure learning. That hee which will wed shall doe well, (and according to the Sta­tute of circumspecte agatis) to take as much as he can of his wiues marriage money before hand, with faire Indentures or good obligation for the residue. And by the aboue-said Bookes, as also by M. Plowden in that case he may haue action of debt, for euery déed sealed and deliuered carri­eth sufficient consideration, to wit, the will of him that made it.

Concerning the old scruple, though money be a visible signe of inuisible grace Sacramentall and Spirituall, spe­cially if it be in Angels; yet I trust it is not more spiritu­all then the woman her selfe with whom it is promised. And as there is no question made but a man may sue in Court Christian for his lawfull wife vnlawfully taken and witholden, vpon which suite if a prohibition be gran­ted, a consultation may be had for procéedings, quatenus p [...]r restitutione vxoris duntaxat prosequitur, &c. So by Fitzherbert in his Writt of Consultation an Action may be brought at Common Law, de vxore abducta cum bonis viri, or an action of trespasse for taking onely of the Wife. But for a cleare proofe that in these promissions of money vpon Marriage, neither the money is any Ghost, nor the promise any nudum pactum. Sée the case 10. Eliz. Dyer, 272.

An Action of the Case was brought vpon promise of twenty pound made to the Plaintiffe in consideration, that at speciall Instance and request of the Defendant he had married his Cousin: this was a good cause of action in the Queenes Court, although the Marriage were celebrated and perfected before the assumption, be­cause the Nuptialls did ensue the Defendants re­quest.

And as Lands may bee giuen in Franke marriage af­ter the Espousals, and yet the Espousals be cause and con­sideration [Page 102] of the gift: so may money be promised after E­spousals, and yet the Espousals be cause of the promise.

But Reader be not confident of the Law in that Case of Dyer, for I haue séene a report of a Case betwéene Sandill Plaintiffe, and Ienny Defendant, entred in Banco Regis▪ Hillar. 2. Iacobi Rot▪ 571, where the Plaintiffe declared that the Defendant in consideration that the Plaintiffe had formerly married his Daughter at his speciall request, the Defendant promised the Plaintiffe to pay him euery yéere during the life of the Defendant ten pound, &c. and as my report saith, the Plaintiffe vpon non assumpsit pleaded, had verdict and iudgement in the Kings Bench, but vpon a writ of error in Exchequer Chamber, the Iudgement was re­uersed, for that the Marriage was executed before the pro­mise made, and yet the declaration supposed that the De­fendant requested the Plaintiffe to Marriage, &c.

But let me not run so farre from my Tert as neuer to finde the way backe againe: A man may sue for Marri­age money in his owne name onely, and so is it generally where that which is in demand, or to be recouered, com­meth méerely and onely to the Baron. Example, 43. Ed. 3. fo. 8. The Earle of Arundell brought a Writt of Tres­passe against one, for chasing in a free Chace that he held in right of his Wife, and the Writt awarded good, though the Wife were not named in it, because nothing was to be recouered by damages.

Likewise is it if the Baron bring a Writt of Trespasse for strayes taken in Lands holden in right of his Wife. And eod. anno fo. 26. for breaking of a house and carry­ing away of timber, the Husband alone shall haue the acti­on because hee may when hee list pull downe a house or sell timber standing vpon his Wiues Inheritance, or make a release to any body vpon such manner of trespasse, and the Wiues action is gone for euer.

There is also the same yeare fo. 16. another Case, wherein because a decies tantum was brought by Baron [Page 202] and Feme, the Writt abated; for though the first action concerned the Wiues Interest, yet nothing is to be recoue­redin a decies tantum but damages, &c. Sée the Booke of 20. H. 6. fo. 1. a Writt of maintenance wherein nothing is recouerable, but damages, was brought by Baron and Feme vpon maintenance in a bill of fresh force against them, by the better opinion they might ioyne, &c. And the Defendant passeth Ouster, but not by award, 41. Ed. 3. f. 9. a Writ of Champertie brought by the Baron onely vpon an assise which had passed against him and his wife, was allowed good notwithstanding exceptions taken of the wiues Interest, &c. vpon the reasons before expressed. And by Finch, if a man haue a Ward in right of his Wife, Dower shall be demanded against him onely, because the gard is a Chattell vested: But if a Writt of Wardship be to be brought, it shall be against the Baron and feme, &c. because of voucher.

And in trespasse, if the Plaintiffe recouer against Ba­ron and Feme by false verdict, they both must wyne in the attaint▪ for that must be according to the record 46. Ed. 3. fo. 20. a man brought a Writt of rauishment de gard, declaring vpon a possession, iure vxoris, and the Writ held good: yet in this case there is more then damages to be re­couered, for the Plaintiffe shall haue the Infant restored by the very words of his Writt. But there againe it was agréed, that an action to recouer a Ward must be against them both, because of voucher, though in a writt of Dower it be vt supra, because therein there is no voucher, &c. If Baron and Feme sell the Wiues Inheritance by fine for twenty pound, an action of debt for the money shall bee brought by the Baron onely, for the grant was onely the Barons grant, and if he die, the Executors shall haue the action and not the Feme. 48. Ed. 3. fo. 18.

And a reple [...]n must bee brought by the Baron onely, because a Feme Couert cannot haue a propertie in any goods or Chattels: But for such goods as the Wife hath [Page 203] as Executrix, it séemeth the Baron and Feme may ioyne in ar pleuen: so shall they for goods of the Wife taken dum sola fuit, Fitz. in the title reception. In trespasse at Com­mon Law, or vpon the Statute, Anno 5. Rich. 2. the Baron alone shall haue action of trespasse, and so likewise for ta­king away Charters, concerning the Wiues inheritance. So is it if he alone deliuer such Charters, he alone may haue action against the Bayliffe, &c.

But a Writt of Detinue of Charters of the Wiues inheritance must be sued by both, &c. because the Charters themselues are to be recouered. And therefore vpon reco­uery of them the Baron and Feme must ioyne for recoue­ry. A quare impedit was brought 50. of Ed. 3. fo. 13. and the Baron declared of an agréement betwixt thrée Sisters to present by turne to a Church, whereof they had the Ad­uousan, and this was the turne of his Wife, &c. The De­fendant demands Iudgement of the Writt, because the Wife being still aliue was not named, but this Writt al­so was awarded good, because nothing was to be recoue­red here but onely the Presentment and not the Aduousan. And if a Writt should be awarded to the Bishop against the Baron, the Wife thereby should not be out of possession, because she is not partie to the Iudgement▪ besides that, she is ayded by West. 2. cap. 3. And for a generall rule where the Husbands release is good, the action may be brought in his name onely, as vpon cutting of trées, grasse, Corne, &c. And such actions may be brought in the name both of the Husband and the Wife. An assise of [...]arraigne present­ment is a mixt action, and the Aduousan it selfe, shall be re­couered in it, therefore of necessity it must be brought both by Baron and Feme 15. Ed. 4. fo. 9. The Baron Seignior in right of his wife, ioyned in a writt of rescous, and it was argued that he alone ought to haue brought the writt: But it was awarded well brought by them both. Though per Littleton it were good enough in nosme le Baron tantum. And per Pigot, when an obligation is made to Baron and [Page 204] Feme, the Baron alone may haue the action, or they may ioyne [...]adem lex in trespasse, &c. maintenance, &c. for al­wayes▪ where the action may suruiue to the wife, the wife may ioyne in the writt: They which shall read these two last Cases argued 50. Ed. 3. and 15. Ed. 4▪ in the yeares at large, shall not néed to repent it.

SECT. XLII. When a Wife may sue or be sued alone.

IT is seldome, almost neuer that a marryed woman can haue any action to vse her writt onely in her owne name: her husband is her sterne, her primus motor, without whom the cannot doe much at home, and lesse abroad: But if her Huusband commit felonie, take the Church and abiure the Realme, she is now in case as a Widdow inabled to make alienation of her owne land as a Feme sole, or to bring a cui in vita for her Lands aliened by her husband, quod vi­de cui in vita▪ Fitz. 3. Likewise 1. H. 4. fo. 1. The Kings writt of Ward against Sybill Belknap, is awarded good, though it were brought by the King; but iudgement was asked of it, because Sybill was a Feme Couert, iour del briefe purchase, and the husband not named; whereunto was answered, that for offence against the King and his Péeres, Belknap was banished to Gascoigne, there to re­maine till he obtained the Kings Grace, &c. Iustice Gas­coigne by the assent of his fellowes, commands the Defen­dants to answer, and she pleads in barre. Againe 2. H. 4. fo. 7. all the Iustices testifie, that the wife of Sir Robert Belknap who was banished, sued a writt alone without na­ming her husband, and by their common award it was hol­den good, for that as some said, the said Sibyl was the Kings Fer [...]er.

[Page 205]But howsoeuer it were, Markham exclaimes Ecce modo mirum quod foemina fert breue regis, Non nominando virum coniunctum robore legis. Some say it should be con­uictum, &c. It is like a miracle that a wife should com­mence any suit without her husband, 18. Ed. 4. fo. 4. If a feme Couert be impleaded without her husband and out­lawed, the baron and feme may ioyne in a writt of error to reuerse the outlary, for the wife cannot sue without the Husband. If a fine be leuied to a feme Couert, yet she and her husband must ioyne in the quid juris clamat, as the book of 11. H. 4. 7. testifieth: If Baron and Feme be beaten, &c. they must Ioyne in action for battery of the Feme, but for his owne stripes the Baron shall bring his owne action by himselfe, or else his writt abates for that part, 9. Ed. 4. fo. 52. Because a feme Couert hath nothing to doe to partici­pate in the suites of her husband, nor in the priuiledges of her husband: Therefore a suite against the Wife of an at­turney shall not be in the Court where hee serueth by bill, but by originall writt, and none essoine de seruitio Regis▪ or other essoine cast for the Husband, shall serue for the wife, for if in a praecipe quod reddat against baron & feme at the grand Cape the Baron be essoyned de seruitio regis, and the wife make default, shee shall lose her Land. So likewise if the Baron be a seruant of the Chancellor, &c. no writt of priuiledge shall serue for him and his wife, but acti­ons against them both must be sued at the Common Law; But a protection cast by the Baron, dismisseth the plea sans iour for both, because the Feme cannot answer without her husband, 35. H. 6. f. 3 & 4. a feme couert shal not be receiued to disauow the atturney of her husband, but he shal make an atturney for them both 33. H. 6. f. 31. And cod. [...]n. fo. 43. If the wife will come into the Court & offer to plead any other plea then that which her husband hath pleaded, or to confesse the action▪ she shal not be receiued to it, but the husband may not forcher per essoin. And if baron & feme wage the law, &c. If the wife appeare not at the day giuen, the baron shall be condemned: But a wife shal neuer be receiued to disauow the [Page 206] suite of her husband and her selfe, quod vide 39. Assisarum pla. 1. a good Case.

SECT. XLIII. Of Felonies.

IN matters criminall and capitall causes, a Feme co­uert shall answere without her husband, 15. Ed. 4. fo▪ 1. And note, if a Feme Couert steale any thing by coher­sion of her Husband, this is not felonie in her 27. lib. Assisarum 40. It was found that a woman had stollen bread to the worth of two shillings by compulsion of her husband, and awarded that she should goe quite. It seemeth to be all one if a woman steale by commandement of her husband, quaere.

If a man and his wife commit felonie ioyntly, it séemeth the wife is no felon, but it shall be wholly iudged the Hus­bands fact, saith Stamford: Seuen men and a woman were arraigned of felonie, found guilty, and because th [...] woman cryed out she was wife to one of the seuen, the Iud­ges sent to the Bishop to be certified of the Marriage. But a woman by her selfe without the priuitie of her husband may commit felonie to become either principall or acces­sary: As if shee steale goods, or receiue théeues to her house, &c. and if the husband so soone as hee perceiue it waiue and forsake their company, and his owne house, in this case the Womans offence makes not felonie in the baron. But if the baron commit felonie, his wife not igno­rant of it may kéepe his company still notwithstanding, and not be deemed accessary; for a woman cannot bee ac­cessary to her husband, insomuch as shee is forbidden by the Law of God to bewray him: note also that a woman can­not be thiefe of her husbands goods, if shee take and giue them away, the receiuer is no felon, Stanford. lib. 1. cap. 19. Briton allowes that the wife shall keep her husbands coun­sell, [Page 207] but yet so that if she acquit her selfe per pais del fait & consent, for felons wiues hee saith haue often held men whiles the husband killed them, and in that case it is rea­son and Law that they hang together, fo. 47. By Bracton▪ non debet virum accusare vxor, nec de [...]egere [...]ur [...]um suum neque feloniam, con [...]en [...]ire tamen non debet, nec co [...]diu­trix esse, sed feloniam & nequi [...]iam viri quantum potest im­pedire. And by him if goods stollen be found sub cla [...]ibus vxoris, she shal be culpable with her husband of his felonie. Item, si vxor cum viro coniuncta fuerit, vel confessa fuerit quod viro consilium vel auxilium praestiterit, [...]n [...]bun [...] ambo, nam licet obedire debeat vxor viro in a [...]ocioribu [...] tamen, & la [...]o [...]inijs, nec est ei obediendum. Poterit vir ligare & tenere, atque vxor sponte & non coacta occidere, & ita [...]ene [...]ur de maleficio vterque: libro 3. ca. 32. In the end he sheweth how execution of iudgement shall bee defer­red when the woman condemned is with child, siue ante de­lictum conceperi [...], siue post. Hee coteth ciuill Law for it. But Stanford hath it perfecter.

If a woman bee arraigned of felonie, it is no plea to say she is with child, but she must plead to the felonie, and if she bee found guilty, shee may then claime the benefit of her wombe, wherevpon the Marshall or Vicount shall bee commanded to put her in a chamber, and cause some wo­men to examine and try her, whether she be ensoint de vn infant, which if she be not, she shall be hanged maintenant: And though she be quicke with child, yet Iudgement shall not be delayed, but onely execution deferred. If after such respite when she is once deliuered, she become great againe, and obiect to prolong her life, the Iudge ought to command execution presently, for this benefit shall bee claimed but once, If the Iudge inquire further of it, it must be but to set a fine on the Marshall or Sheriffe for looking no better to her. Stanford, lib. 3. ca. vl [...]imo. And by the bookes which he citeth the obiection must be not priuiment ensoint, but en­ [...]int de viue enfant.

SECT. XLIV. Of Treasons.

ANd this obiection of enseintment is aswell to delay execution for treason as for felony. A woman for com­mitting either grand or petty treason shall be burned. The latter part of the Statute 25. of Ed. 3. ca. 2 is, That if any seruant kill his Master, any woman kill her husband, or any man secular or religious person kill his Prelate to whom he owes obedience, this is treason, and euery Lord shall haue the Escheates for such treasons of his owne pro­per fée, the Statute is but declaration of the common law titulo Coronae, in Fitzh. A woman compasseth with her A­dulterer the death of her husband, they assailed him riding on the high way, beating, wounding, leauing him for dead, and then they fled: The husband got vp, leuied hue and cry, came before the Iustices, they sent after the offendors, which were gotten, arraigned, and the matter found by verdict, the adulterer was hanged, the woman burned to death, the husband liuing, voluntas reputabitur per facto, 15. E. 2. A woman seruant conspired to rob her Mistris, and brought a stranger to the bed-side where the Mistris lay asleepe, the stranger killed her, the seruant silent no­thing doing but holding the Candle, the two chiefe Iusti­ces and H [...]re thought the seruant a Traytresse, and a prin­cipall, 2. & 3. Eliz. Dyer, 128. yet Mistris is not verba­tim in the Statute, Stanford was one of them against the chiefe Iustices opinion in this case; yet in his owne booke he teacheth that abettors & procurers, are within the mea­ning and intent of the Law: The seruant and the wife conspire the husbands death, he is killed by the seruant, in absence of the wife, this is petty treason in them both, by o­pinion of diuers Iustices, otherwise it is if the murtherer be no seruant, Dyer 16. Eliz 332. for Saunders wife which [Page 209] procured Browne to kill her husband, but barely hanged as accessarie, because the principall was but a murtherer. 8. Eliz. Dyer 254.

SECT. XLV. Actions by Baron and Feme together.

THe baron and feme may ioyne in a writ of trespasse, quare vi & armis clausū fregit, &c. for trespasse done in the wiues land, either before couerture, or during couer­ture. Sée 21. H. 6. fol. 30. such a Writ brought of tre­spasse in the Close of Baron and Feme, and féeding vp blada sua. Iudgement is asked of the Writ, because a Feme couert hath no propertie in goods and chattels du­ring the couerture. The Declaration, saith Markham, is blada sua dum sola fuit depastus fuit. That, saith New­ton, is not possible, but it ought to be blada ipsius Kathe­rinae, &c. Yeluerton saith, that both the Writ and De­claration ought to haue béene Dum sola fuit, which New­ton denies, and saith, that the Count ought only to be so, and affirmeth, that as the matter is brought forth, there is an intendment of depasturing before couerture, and of breaking the Close after couerture, of which the Baron and Feme may haue a Writ Clausum suum fregit, &c. So the Action seemeth to be by two seuerall titles: But in the end the record was viewed, which was Quod clau­sum ipsius Katherinae fregit & blada eiusdem Katherinae depastus fuit; and the Declaration Dum sola fuit, which made the Writ to be awarded good. And there it is said, that by the Register the Writ is not Dum sola fuit but ge­nerall, and the Declaration speciall. Yet 7. H. 7. fol. 2. vpon the like Writ of Quare clausum fregit & bon [...] & ca­tella sua cepit, which Declaration of trespasse to the Feme Dum sola fuit, iudgement being giuen, was afterwards found erroneous, for fault in the Writ which should haue [Page 210] béene not bona sua, but bona ipsius le Feme, and there­fore a Repleader awarded. The baron & feme may haue a Writ of trespasse of assault made to the Feme, and im­prisonment of her, vntill the Baron compounded and paid a fine, and the briefe and count shall be ad damna ipsorum quod nota. 46. Ed. [...]. 3. Nota per Cu [...]iam, saith Brooke, Baron and Feme may ioyne in appeale De [...]pe le feme, for the husband alone cannot haue it without his wife, 8. H. 4. fol. 21 The case there is, A woman prisoner in the Marshalsey, makes a suggestion to the Court, that the Marshals man had rauished her in prison: G [...]scoigne commanded the Marshall to take his man to his custody, and his staffe from him, and the Court told the woman, that she alone could not bring appeale, sans son Baron, but if her husband would come, and they two together would proue the rape, the rauisher should be hanged. By this case it is plaine, that the wife alone cannot haue the ap­peale, but the Baron and Feme may haue it. But nei­ther by this case, or any other statute, can I finde that the baron may not haue it alone, Whether ne vnque a couple in loyall matrimony be a sufficient plea in this appeale, and whether he which is but Baron in possession only, that is, that husband which is at the time of the rape may haue it, quaere, and see 11. H. 4. 13. Baron and Feme may ioyne in a Writ of Debt, and 16. Edw 4. fol. 8. such a Writ brought for arrerages of account, with Declara­tion that the defendant was the wiues receiuer, Dum sola fuit puraccount render, and that the Baron and Feme after espousals, assigned Auditors, which found the de­fendant in arrerages, &c. Insomuch as the ground of the Action begun by the wise, and the assignment of the Au­ditors was pursuing. And likewise by the wife they might ioyne. So if an Obligation be made to Baron & Feme, they may ioyne in a Writ of Debt, and if the Baron die, his wife and not the Executors shall haue the Action, 3. H. 6. fol. 37. Per curiam Baron and Feme may ioyne in a Writ of Debt vpon an Obligation made to them during [Page 211] couerture. And Babington affirmes that the Baron may haue the Action alone if he will, 43. Ed. 3. fol. 10. such a Writ was brought, and exception taken that it ought to haue been by the husband alone, sed non allocatur, Though for chattels vested, as goods that are giuen to a man and his wife, the Baron alone must pursue his Action for ta­king them out of his possession: Otherwise it is of mat­ters consisting onely in Action, &c. for they suruiue to the Feme, like to a Lease granted to Baron and Feme for yeares. So is it of rauishment, or eiectment of Guard, for these are Chattles reall: But if a man and his wife be bound by Obligation, a Writ against them both vpon that Obligation shall abate car fait del Feme couert est void. See 15 Ed. 4 fol. 10. that if an Obligation bee made to Baron and Feme, and the husband dieth, the wife or husbands Executor, which of them shall hap to haue the Obligation shall sue, &c. as it is said by Bryan. And Detinue of Charters shall bee brought by Baron and Feme for Charters concerning her ioynt possessi­on, 38. H. 6. fol. 25.

If Baron and Feme make a Lease for yeares of the wiues lands, they must ioyne in an action of waste, or else the Writ shall abate, 7. H. 4. 15. yet 3. H. 6. fol. 53. a Writ of waste so brought was doubted of, because for­sooth a Feme couert cannot make any Lease: But at the last the Writ was holden good, for the wife might accept the rent, or distraine for it, and make auowrie after the husbands death, at what time, and not before, shee hath power to agree, or disagree; but during the Couerture, the lease was the Act of them both, baron & feme tenants for yeares, may ioyne in an Action of couenant, against the Lessor that outeth them, for the wife suruiuing shall haue the terme, if the husband doe not aliene, 47. of Ed. 3. fol. 12. And where a remainder is to bee executed to a Feme couert by force and conueyance of a fine, &c. the Baron and Feme may haue a Scire facias, to shew why the land should not remaine to I. S. and to N. his wife, [Page 212] for the land cannot remaine to one of them, but it must remaine to them both: But a Formidon in Discender, or Reuerter. or a Writ of Escheat differeth, 11. H. 4. fol. 15. 44. Ed. [...]. fol. 10. a Writ of Dower was brought by Ba­ron and feme, and the tenant pleaded, that the former ba­ron had neuer any thing in the land during the espousals, which the Demandants did not deny, therefore the Te­nant prayed they might be barred, and their confession re­corded, but it would not be granted, because it should bee preiudiciall to the wife, yet at the request of the Tenant they were receiued to acknowledge their right by fine, and the woman was examined. Quod nota, for she shall not be examined vpon confession of an Action.

SECT. XLVI. Actions against Baron and Feme.

AS Actions are rightly pu [...]sued by Baron and Feme when right is withholden from her, or wrong done to her selfe, her interest or possession, so when the wife is, or is supposed a wrong doer, or her husband doth wrong vnder pretext of her interest, writs must be sued against them both; for as it hath béene shewed already, if a Feme couert bee condemned in any ciuill Action without her husband, she and her husband may haue a Writ of error. Therefore if a woman which is indebted take a husband, an Action of Debt shall be against her and her husband in the Debent, 9. E. 4. fol. 24. 7. H. 7. fol. 2. agréeth, and if any thing were owing to the Feme before marriage, the Writ of such a debt shall bee Quas [...]is debet. If a man baile goods to a Feme sole which marrieth afterward, an Action of Detinue shall be against her and her husband for these goods per curiam, 39. Ed. 3. 17. And 1. H. 4. fol. 31. a Writ of trespasse sur le case, was brought for not re­pairing certaine bankes, vpon lands which the defendant [Page 213] had in Dale, by reason wherof the plaintiffes ground was surrounded, and because the Defendants whole interest in Dale was only jure vxoris, which wife was not named in the Writ, it abated, for they ought to haue béen ioyned. 3. H. 4. fol. 1. Upon a Lease made to Baron and Feme for yeares, rendring rent, the Lessor brings a Writ of Debt, &c. against Baron and Feme, and Iudgement was asked of the Writ, because it was not brought against the Baron onely: Thi [...]ing holdeth the Writ good, aswell as an Action of waste shall bee against both Baron & Feme vpon such a Leafe, and so doth one other Iustice, but some pleaders argued contra. And in Actions against Baron and Feme, the woman must be named wife, 42. Edw. 3. fol. 23. A writ of trespasse is brought against Iohn and Alice with others, Alice saith shee was and is the wife of Iohn, iour del briefe purchase iudgement del briefe, and this is a good plea in abatement of the writ. So if a writ be against Iohn and Alice his wife, Alice if shée be single may plead, not the wife, Iudgement del briefe. But Iohn shall not haue that plea per totam curiam, for none as Brooke maketh the reason; shall plead Misnosmer, but the partie, 7. H. 6. fol. 9. In Assise against Baron and Feme the Uicount returned, that hee had attached the Baron per centum ones matrices, but the wife had nothing to be attached of, within his B [...]liwicke, he [...] e [...] in eádem inuenta, the best opinion is, that the returne is not good, for he was commanded to attach the wife, which the Law would neuer command if the thing were impossible, but it is possible enough for the wife to be attached, by her hus­bands goods, and by him shee must bee brought into the Court. Babington saith, an Attachment must bee by a meere chattle, which shall be forfeited by Default, but not by any Chattell reall, as a Lease for yeares, or a ward, or by appartell, &c.

Now note, it hath béene said, that in an Action of debt or trespasse, or other personall Actions, if the Baron ap­peare, and the wife make default, or if the wife appeare, [Page 214] and the baron make default, they shall not answer the one without the other, 44. Ed. 3. fol. 1. A writ of debt was brought against Baron and Feme, the wife out­lawed, the Baron rendred himselfe at the Exigent, at re­turne whereof hee appeared in ward, and the Plaintiffe prayed because the Processe was determined against the wife, that the husband might answer sed non alocatur. But sée in the next lease a writ of trespasse pursued against Baron and Feme to the Exigent, the Uicount returned that hee had taken them at the day, the Baron came inward without the wife, &c. The Plaintiffe declared a­gainst him, he was compelled to answer, and pleaded not culpable le Vicont fuit charge de le corps le Feme. & amer­c [...]e, and a writ went out to haue the wife at Westminster at a certaine day, with a Venire facias betwixt the Plain­tiffe and the husband, returnable the same day, sée 34. H. 6. fol. 29. A writ of trespasse against Baron and Feme, and the Baron as seruant to the Chancellor brought a Super­ [...]edeas for himselfe and his wife. Littleton said it was to be allowed for neither of them, no more than where tres­passe is brought against one of the Chancery; and another man, &c. Nay not so much, saith Prisot, for in that case the Plaintiffe may take his bill in Chancery against him which is of the Chancery, and leaue out the other, hut hee cannot doe so here, specially the trespasse being supposed to be done by the wife. The priuilege being dissolued, Lit­tleton praieth that the Defendant may answer: Nay, saith Billing the wife neuer yet appeared, therefore take your Processe against her, and we wil pray an Idem dies for the husband. In an Action of Debt, saith Littleton, against Baron and Feme, it is true that one shall not answer without the other, and in trespasse also the wife shall not answer without her husband, but the husband may answer without the wife, if she make Default. Truth, saith Pri­sot, all is one, in euerie writ of trespasse, whether it be of [...]attery, or otherwise, and in euerie other personall Acti­on one of them shall not plead without the other. But in a [Page 215] Praecipe quod reddat the default of a wife is the default of the husband and wife, aliter in trespasse or debt against baron and feme, for there if the baron appeare by cepi corpus or exigent, and the wife makes default, the baron shall haue an idem dies ꝑ maineprise, and if the wife waiu [...] be, the husband shall goe sine die, for in euery case where the wife is party to the writ it must be intended prima fa­cie, that the cause of action beginneth from the wife. Bryan a Protonotaries Clarke said it had béene holden by the Court before this time, that if the baron came in gratis, he should answer sans sa feme, but if he come by cohersion, &c. then vt supra. But saith Prisor all is one, and there is no diuersity, to whom all the Iustices, and many Ser­ieants agréed, q̄ il ne respondra vnques sans sa feme en nul case: yet afterward 36. H. 6. fo. 1. in an action against ba­ron and feme vpon the Statute [...]. Hen. 6. of forcible en­tries, the Sheriffe returned the plur' capias mandaui bal­liuis, &c. which answered they had taken their bodies, etc. the Bailiffes were demanded to bring in their priso­ners, the Baron appeared, and she wife made default. It is a doubt whether the husband should answer mainte­nant, and a writ goe out to the Sheriffe ad habendum cor­pus vxoris, or whether the baron should haue an idem dies with the wife, and goe in the meane season sans maineprise, for by Wangford he might not answer without his wife, because of the imprisonment, &c. Prisor here asked, what was the supposall of the writ? and when he vnderstood it was of an entry by baron and feme ioyntly, hee affirmed the baron should answer presently without the wife. And so said he in trespasse & battery, when it is supposed by the writ that baron and feme together did beat the Plain­tiffe, the baron appearing, fans le feme, shall answer, other­wise should it be here if the writ had supposed the forcible entry dum sola fuit, for it were vnreasonable when the action riseth and is caused from the wife, that then her de­fault should bee her husbands default. And likewise is it in action of debt if the wife bee waiue, the baron appea­ring [Page 216] at the exigent, shall goe sans maineprise, for it can­not be intended, but that the action riseth onely from the wife. But if an action of trespasse done by baron and feme ioyntly, the baron appeare at the exigent, and the wife be waiue, the husband shall answer, and if the issue bee found against him, and afterward▪ the wife▪ sue her Charter of pardon, it shall not bée allowed, vnlesse shée bring her husband with her. By Prisot also in this [...]se, a man cannot haue a writ in the Chancery against baron and feme, supposing a forcible entry du [...] sola fuit, but the entry must bée supposed ioyntly as in an action of tres­passe▪ And Laycon declares against the baron in the end of the case. And note 40. E. 3▪ that in trespasse if the baron be outlawed, and the wife appeare at the exigent [...]l al [...] ­sans iour, if the baron purchase a pardon, and sue scire fa­cias against the party, he must bring his wife with him, or his pardon shall not bée allowed: But it is other wise▪ i [...] the baron appeare▪ and the wife be waiue, &c. for the ba­ron alone may answer. There is much of this matter in the yéere bookes, 43. Ed. 3. so. 18. in action of detinue against baron and feme, the wife was waiue, the husband appeared at exegent, praying that the Plaintiffe might de­clare against him, which hee did vpon a deliuery to the feme dum sola fuit: Because the processe was determi­ned against the wife, whose acts the baron alone could [...] answer vnto. It was awarded que il▪ [...] quit, for though to losse of issues returned to baron and feme, the wiues default is the barons default, yet it is otherwise vpon a capias▪ or exigent▪ for the corporall punishment. But in a praecipe quod redda [...] a grand Cape shall goe out vpon the wifes default, And sée▪ 41. Ed. 3. so. 24. in a writ of dower against baron and feme vpon the default agr [...]d Cape went out, and at the day the baron only appeared, [...] pleaded that he alone was tenant, &c. sans c [...]o, that his wife had any thing in the land, here the wiues default was so [...]r, a default of baron and feme both, that the [...] seasin, 41. Ed. 3. 24. in libro veter.

[Page 217]But the Barons default is neuer any default of the wife, therefore 16. Assis. p. [...]. In a pr [...]cipe quod redda [...] against Baron and Feme, the Baron made default, any the wife [...] here [...] and [...] issue, which being sound against her, shée and her husband brought an attaine. Though in [...] were challenged, first, [...] the Baron (they said) by default had [...], and then because he was [...] to the [...], 3. [...]. In a writ of debt at the [...] ­ned Cepi corpus for she [...], and the [...] non est [...] ­uentus, the exigent here went out only against the Baron, and an idem dies was giuen to the wife. But it was said if the [...] had returned, the husband taken, and the wife non [...] ▪ exigent should haue gone against them both; for the wife is to be brought by the husband.

For by Cho [...] ▪ & Danble 9. Ed. 4. f. 23. if [...]an action of debt the Baron appeare, and the wife make default, capias shall goe against them both, quod m [...]rum, faith Brooke▪ where corporall punishment shall bée, indéed it séemeth to be no law, for 9. H. 6. f. 8. in an action of debt, at the exigent the Baron and Feme sued a super [...]edeas, but notwithstan­ding they were returned outlawed, and at the same day the Baron appeared alone, and a new exigent went out against the wife only, and an idem dies giuen to the hus­band, car il [...]auer [...] corporall paine, &c. [...]nd if he make de­fault at the returne of the exigent, a di [...]ringas shall goe against him. Againe, 11. H. 4. a [...] [...]api [...]s went a­gainst▪ Baron and Feme, the Baron appeared, and the wife made default, the Plaintiffe could not obtaine exigent against them both, but he had it against the Feme, and an idem dies giuen to the Baron? For though in a praecipe quod redd [...] in [...] of the grand [...] and such like, and for losse of [...] returned vpon Baron and Feme, the wiues default be the husbands default, yet the wiues default onely shall [...]ot [...]ée so [...] to him as to driue him to a corporall punishment▪ as to the capias or exigent. Likewise 39. Ed▪ [...]. 3. fol. 18. [...] against [Page 218] 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 a [...] 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 ow [...] 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 c [...]me, and the Baron made default, therein was awarded that the wife should haue another day of maineprise, and processe went out against the husband. But this, he said, should be no exam­ple in temps a vener.

SECT. XLVII. Of Fourching.

THis interchange or shifting of appearance and de­fault by Baron and Feme is called sourching or four­cher: The terme being of no greater linage than from a hay forke or pitchforke, which in french is fourth: The Logicians call their dilemma a forke: And our Ancients haue giuen a like name to a subtill kinde of delay which parceners, ioyntenants, and married couples had at the common Law when suits were commenced against them called forcher▪ for euen as a cunning fighting bull when he is bayted, offering to the dog first one horne, and then another, might be said to forth, so these conioyned aduer­saries were wont to play with both tynes, when first one should appeare, and his fellow be [...]ssoyned, and at the next [Page 219] day of appearance he should make default, which former­ly appeared and be essoyned by him which first made de­fault. Against this West. 1. ca. 42. complaining that de­mandants were greatly delayed by [...], which might not answer but together and by ioyntenants which knew not their owne seuerall, that vsed to four [...]h by [...]s­soine, till euery one were once essoined▪ Ordeineth that such tenants henceforth shall bée allowed no essoine more than at one day, and as one person. The Statute of Glou­cester made 6. eius [...]em. Regis [...] the first reciteth the former Statute thus: Whereas it is established, that parceners and tenants in common shall not fourth by es­soine, after they haue once appeared in Court; It is or­deined that the same Law shall bée obserued when a man and his wife are impleaded, &c. In the booke 12. H▪ 4. fo. 1. Culpeppe [...] affirmeth, that fourcher which was at the com­mon Law in a writ of debt is not to be re [...]died by this Statute of [...]. And Thi [...] confesseth, that the Statute i [...] l [...]d▪ [...] yet saith he, at the common Law [...] and [...] might neuer fourth by distresses, infinet in a writ of debt, for that they are in a manner one person in law Thus much of sourching.

SECT. XLVIII. The Baron and Feme appeare.

BVt admitting that there is no delay vsed, how shall Baron and Feme plead? I suppose it is hardly com­prehended within rules. Brooke setteth downe that in a quid [...]uris clamat against Baron and Feme they may de­ny the deed, by which the Feme should bee bound, and a quid iuris clamat was brought against a Feme couert, 18. H. 6. fo. 1. Titulo Baron & Feme 83. And where the Ba­ron is estopped from pleading non tenure, the wife is so t [...] ▪ Titulo lou [...]nes accompts Br. 17.

[Page 220] [...]6. assisar. p. 44. An Assise was brought against Baron and Feme, the Baron canus in proper person, and pleaded the Plaintiff [...], the wines Atturney was asked if hée would ass [...]t to the plea, who answered he would be adui­sed, therefore thes d [...] was deliuered ba [...] 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 mist [...]ke it, or I mis­take him; in the title of Baron and Feme, 72. In an action of debt against Baron and Feme executrix, It in a good pleading to say that the wife hath fully administred, and a good replication to say that the wise hath asserts sins pa [...]ler del Baron, [...]. Hen. 6. fo. 4. And there it is said, that a wife [...], may administer and distribute gods without the assent of her husband: And if that she sell the Testator goods and redeme them, yet still they remaine assets. If a Fame tenant for life take a husband, and they sine, being [...], of a stranger, if the Ba­ron die, he in [...] cannot enter, for that is the act of the husband.

If a Feme tenant for life take a husband which alie­neth in Fee, and hee in reuerston entereth, if now the Baron dye, the wife shall haue the land againe, 29. assisar. p. 43. Brooke 86. Titulo Baron and Feme. The case is of an estate made to baron and Feme in the booke of assises, in a writ of entry in nature of assise against Baron and Feme, the Baron pleaded non tenure for his wife, and for himselfe Ioyntenantie with a stranger▪ This was Bolden a good plea per Curian [...] 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 & H [...]ll Iustices, the dam­mages ought to be seuered, the Baron to haue one iudge­ment for himselfe, and he and his wife another iudgement for his wife, for if the husband should dye before execu­tion, [Page 221] the wife ought to haue execution of her da [...]u [...]ages, and not the husbands executors, which could not bee if the recouery were in common, Fitzh. Titulo Iudgement 108.

SECT. XLIX. Outlarie of Baron and Feme or of one of them.

44. Ed. [...]. 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 vpon the first maineprise, or a new scire facias by new maineprise, neither of them might be allowed with­out his wife, yet it was agréed that if two men were out­lawed, one might sue pardon and scire facies without the other, for in that case, the one may plead alone vpon the first originall without his fellow, against whom the pro­cesse is determined: but the Baron cannot plead here without his wife, sée the booke 11. H. 4. fo. 89. Baron and Feme being outlawed, the wife appeared and brought a Charter of pardon, shee was suffered to goe at large, but the pardon might not bee allowed because the baron ap­peared not, and the wife could not plead without him.

14. [...]. 6. fo. 14. Iune said that one kinde of diuorce be­twixt baron and feme is, when an action of trespasse is brought against them, and the baron only appearing, pro­cesse goes out against the wife till she be waiue, &c. Shee can neuer purchase her pardon, vnlesse her husband ap­peare, so that if he will he is diuorced. The like subtil­ty hath M. Littleton 13. Ed. 4. fo. 4. where he affirmes, that if a woman be outlawed by erronious processe, if the husband will not bring a writ of error, hee may so be rid of a shrew; for that counteruailes a diuorce.

[Page 222] 11. H. 4. Sheweth that a woman may be suffered to goe at large, though her pardon bée not allowed till her hus­band appeare with her, &c. And sée Dyer 10. Eliz. 271. In debt against baron and feme, processe was continued till the baron was outlawed, and the wife waiue, after­ward the wife came in ward by processe, brought the queenes pardon for her waiuery: Though the pardon could not bée allowed, because the wife without the husband could not sue scire facias against the platntiffe, to make him declare vpon the first originall, for the pardon had a con­dition in law, ita quod ipsa staret recta in curia, which shée could not doe alone, yet by the opinion of the Court shée was to bee discharged of the imprisonment, I thinke the shrew went home. But that a woman outlawed by her selfe alone for an offence touching her in an action brought against her husband and her, and the husband appeared be­fore outlagary was discharged of her imprisonment vpon sight of her pardon, I find not here nor no where else, and therefore it may be M. Iunes way will serue sometime to bee rid of a shrew, and that by a like manner a woman may be voided of a slouin, or vncumbred of a Churle. An action of trespasse is brought against baron and feme, and the baron outlawed, the wife appearing at the exigent, goeth san [...]iour: if a capias vtlagatum lay hold of the hus­band, I perceiue not well how he can get loose without his dames fauour.

SECT. L. Of Diuorce.

BVt it is time to make an end of marriage since wee are come to matter of diuorcement, of which I reckon this of outlary for none. 47. Ed. 3. in the very end of the yéere setteth downe flue wayes, Causa professionis, Causa pcontractus, Causa consanguinitatis, causa affinitatis, [Page 223] and Causa frigiditatis, with an obseruation, that when di­uorce is Causa profession [...], the wife shall be indowed, and the heire inherit, contra, in al the residue, [...]mmaturi [...]i [...] also, or mi [...]oritie of age at the time of espo [...]sals, may be one cause of diuorce, As [...]9. Ed. 3. fo. 32. Iohn & Alice his wife brought an assise, the Tenant said that Alice had sued di­uorce in the Archbishoprick of Barwicke, because she was vnder age of consent, tempore sponsaliū, neuer consenting afterward, and diuorce was had iudgement del briefe. And Broke titulo garde 124. remembreth that 5. Ph. & Mar. the Doctors of Law declared for diuorces vpon this case, That if an heire, or other body be married infra an­nos nubiles, and doe disassent at the age of discretion, or after (before assent) to marriage it is sufficient, and the party may be wedded to some other body, without either diuorce or testimony of the disagréement, before the or­dinary, who though hee may punish ꝑ arbitrium Iudicis here, yet the second espousals are good, by Law of both Realme and Church: But when diuorce is had, for kin­dred, praecontract, frigiditie, or such like case, the Law is cleane contrary, for tryall of diuorce when it is pleaded in a temporall Court, must bee by certificate of the Bi­shop, and not ꝑ pais. 5. Hen. 4. fol. 2 and sentence of diuorce belongeth to the Bishop in his spirituall Court.

Of which there is authority, 2. Eliz. 179. in Dyer, This yéere he saith, sentence of diuorce was giuen Causa frigi­ditatis naturalis, in the Archbishops Court of Audience, and the woman was actrix & querulans de impotentia pro [...]r [...]andi [...] vi [...]o, who was adiudged impotent by the Physitians: The same yéere, or next yéere, another case and iudgement hapned like, and the woman which com­plained married to a second husband of better stuffe, by whom she had children, and gaue him all her land by fine, &c. her. first husband also was married to another wo­man, and had children by his second wife, ( vt asserebatur) in which case the Doctors held that the parties diuorced were compellable to liue againe together, vt vir & vxor, [Page 224] quia sancta Ecclesia decepta fuit in Iudicio priori, There­fore much adoe was made to stay the ingrossing of the fine, yet the Iustices made it be ingrossed, contra manda [...] dom̄ Custodis, &c. But sée Sir Edw. Cokes 5. Report. fo. 98. in Buryes case, that the Doctors were deceiued, for the parties diuorced causa frigiditatis cannot liue together againe, and the issue by the second wife is legitimate, for a man may bee habilis & inhabilis diuersis temporibus. A­gaine, 13. and 14. of Eliz. Dyer fol. 305. teacheth that right and lawfulnesse of marriage is euer to be iudged, not by the temporall, but by the spirituall Iudge: And there­fore in an issue of ne vnques accouple in loyall matrimo­nie, if the Bishop certifie not the lawfulnesse of wed­locke, but the circumstances. hée shall be amerced, and a melius certiorando awarded. Séeing therefore right of marriage is to be discussed by the spirituall Iudge, they which are married ought in no case to seuer themselues, and remarry without the spirituall Iudge: if they doe, the second marriage is no marriage, the children had in it are illegitimate, and the woman not dowable, except in the case first specified. And generally where espousals are not méerely void but defiesable, if they bee not auoided by diuorcement, the issue which is had without defeiting that shall inherit: as if a man marry his cosin or his sister, saith the booke, and haue issue by her, and die before diuorce had, now nothing can bastardize the issue, for though the Commissary was wont in his visitation to make a kinde of diuorce in such cases after death of one of the parties, it was neuer any more than an Inquisition of office, Ad in­quirendum de peccatis, for the heire could not be bastardi­zed, when the parents both or one of them were dead, and therefore not citable to appeare, &c. And it is holden strongly by Thorpe 39. Edw. 3. and in the Parliament 24. H. 8. see Brooke titulo Bastardie 23. 37. 44. 47. And a diuorce cannot bee had but of a marriage consisting, and not yet by death dissolued, for there cannot wel be a reuer­sing of any diuorce when the parties diuorced be dead, as [Page 225] Brooke vnderstandeth Connings by 12. H. 7. 22. for saith he, it was adiudged in Co [...]bers case, where the baron and feme had issue, and afterward were diuorced, the baron taking another wife, by whom he had issue and died, that when the first issue sued in spirituall Court to reuerse the diuorce and bastardize, the second issue, after his fathers death a prohibition lay: But it was said that the title and discent were comprised in the libell, or else the prohi­bition could not haue beene granted. Thus saith Brooke titulo Deraignment. But titulo Bastardy 47. hee setteth downe the same case, that a man may be bastardized after the espousals, wherein he was begotten and borne, or by death determined. Sée Sir Edw Cokes 7. report Kennes case, that some diuorces dissolue the matrimony, scilicet à vinculo matrimonei, and bastardize the issue, and [...]ar [...] the woman of her Dower, and some à mensa & Thoro, which dissolueth not the marriage, nor barre the wife of her Dower, nor bastardize the issue: And therefore if any action be brought and diuorce pleaded, the cause of diuorce ought to bée shewed: And there it is said that a diuorce may be repealed in the spirituall Court after the death of the parties, but a suit after the death of the parties to di­uorce them, and to bastardize their issue may not be, for that the triall of bastardy, or not belongeth to the tempo­rall Court, originally if sentence doe not hinder. And sée Sir Edw. Cokes Institut. ca. Dower f. 33. & ca. Estates upon condition fol. 181. the deriuation of the word di­uorce à diuertendo or dino [...]ndo, quia vir diuertitur ab vxore, and sée there the seuerall causes of diuorces, and how for any of them respectiuely doe extend in power and effect, and in Littletons tune many diuorces were of force, which the Statute of 32. H. 8▪ cap. 8. take away▪ and there sée that a man may marry the sister of his first wife, since that Statute.

By Na. br. [...]l. 44. in the writ of prohibition, and Na. br. 1 [...]9. and Dyer 28. H. [...]. 1 [...]. agrée, if the woman shall haue the goods not spent, and that detinue lyes for them, [Page 226] If goods be giuen in marriage with a woman, shée shall re­couer them in the spirituall Court after diuorce, and there lyeth no prohibition, [...]6. Hen. 8. fol. 7. is that if the husband before diuorce had, haue giuen or sold without collusion, such goods as were the wiues before marriage, she is with­out remedy for them being diuorced.

But if he aliened them by collusion, and bring a writ of detinue, for so much of them as the property may bée decerned of, and for the residue, money and such like, shee shall sue in spirituall Court. If a man which is bound to a woman by obligation marry her, and they be diuorced, she hath her action againe, which was suspended ibid by Fitzh and Norwich. But see the booke of 11. Hen. 7. 4. p Cur. contrary where the diuorce is causa praecontract', and it is so cited, Dyer 4. Mar. fol. 140.

If the woman diuorced were an Inheritrix, &c. and the husband before diuorcement hath done waste, felled her woods, receiued her rents, granted her wards, presented to her Churches, giuen away her goods, none of these things past in possession executed can be reuersed or recal­led: But if the Inheritance it selfe were discontinued or charged, or a release made of it, or hir villaines manu [...]it­ted, shée shall haue remedy for these things by common Law.

If baron and feme Iointpurchasers de disseised, and the baron release, &c. the wife shall haue a moiety if they bee diuorced, although before there were no moieties be­twixt them, for the diuorce conuert that into moieties, which sée Brooke title Deraignement and diuorce 32. H. 8. In Sir Edward Cokes 5. Rep. in Olands case it was holden, that if a Lease bée made to baron and feme during the Couerture, and the baron soweth the land, and after there is a diuorce causa praecontract, the baron shall ha [...]e the Corne, and not the lessor, for although the baron pre­fecuted the suit, yet the sentence which dissolues the mar­riage is the iudgment-in Law, and Iudicium redditur in [...]ultum.

[Page 227]And as by diuorce, that which was intire may bée con­uerted or diuided into moeties, so by it, inheritance may bee made francktenement. And if baron and feme do­nées in taile, haue issue and be diuorced, now they haue but francktenement, and the issue shall not inherit, for it is not like here as where lands are giuen to two men, or [...]o a man and his mother, or to a man and his daughter, and to the heires of their bodies, where seuerall heires shall seuerally inherit, for it was neuer lawfull for them to marry, 7. Hen. 4. 16. Broo [...] ▪ 9. in titulo Taile, sée also, 13. Edw. 3. titulo Deraignment, If land be giuen to baron and feme in taile which be diuorced causa praecontract, &c. they shall hold ioyntly for terme of their liues, and the land goe to the Suruiuor. But by the Reporter, if the gift were in franckmarriage, the party which did not cause the di­uorce shall haue all: and agreeing to that difference is Perk. Chap. feoffement, Sect. 238. and also agréeing is Sir Edw. Cokes 9. Rep. in Beamonts case.

12. Assisar p. 22. Dorees in franckmarriage were diuor­ced at the womans suit, the baron continued possession till he died, and afterward the womandied, the possession was adiudged to haue remained alwayes to the woman, be­cause shee neuer made any debate for it, so that the man neuer had it by disseisin, and agréeing to that is Plowden Wymbysses case fol. 58. & Dyet 3. M. fol. 126. 19. Assisar. plac. 2. The Do [...]e in franckmarriage wedded infra an­nus nubi [...]es, sued diuorce by the barons motiue and the wiues agréement, at their full age, and the woman reco­uered all the land against her quondam husband by assise. And Titulo Assise in Fitzh. pla. 413. 44 [...]. is this case, A man of certaine tenements, infeoffed his feoffor, & his wife in tayle, the remainder to the right heires of the baron, they were diuorced, at the suit of her husband, which kept the woman out of the lands, and she brought an Assise, where­by she recouered a moyty of the tenemen's by iudgement presently. And propter difficultatem it was adi [...]rned for the other m [...]ity to the Commonpleas, where shee had [Page 228] [...]udgement of that also, because diuorce was at the hus­bands s [...]t. As a woman may haue an Assise against her companion diuorced, for lands wherein shee claimeth in­heritance, or estate for life, so if he haue aliened in sée, [...]ée tayle, [...]r for life, the lands which he had in fée simple, [...]ée [...]a le, or for terme of life, to a stranger, she may as soone as she i [...] diuorced, bring a Writ called a [...]i ante diuor­ [...]m against the Al [...]enee: And this Writ may be in the per, cu [...], & post. If shee dye before action commenced, or before recouery, her heire may haue a Writ called a sur­ [...]uran [...]e diuortium, and the Aunt and Néece may joyne in i [...]. But for her estate tayle her heire shalbe 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 vi [...]a, &c. for the opinion in Grenlies Case, Sir Edw. Cokes 8. Rep. fol. 73. is, that if the baron alien, and after the wife is diuorced causa praecontract. which dissolue the marriage à vinculoma rimonii, the wife during the life of the husband, or af­ter his death, may enter, for the words of the A [...]tare n [...] fine fe [...]ffeinent, &c. during the Couerture betwéene them, and although the Statut [...] 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. [...]. giueth a cui in vita vpon recouery by default against the husband, &c. shée shall haue a cu [...] [...]h [...]e diuortium vpon the like [...]e [...]ouery by equity & extension of the Statute▪ and the processe is sum­mons, grand cape, & pe [...]i [...] cape. I wil here set the bounds and limits of my third booke, not because this sequell and consequence [...]iuorte, I meane, whereby the issue had, is bas [...]zed, and the w [...]an restored to her goods and lands, conforteth with the marriage so perfectly begun as I meant it, for this is not the vntying of true wed­locke, but rather a dissipation of marriage tainted at the beginning, and in Christian Court adiudged to a [...]llity, as if it had neuer béene, the Baron and F [...]me that I h [...] [Page 229] spoken of all this while, if they were not married in their infant loue and very first flowing age, yet were they not [...]rostbitten or so blasted either of them when they were young, but they might well haue fr [...]tified, neither was either of them a common Law breaker, intangled with promise or praecontract, and as for consanguinity, or affi­nity, there was no more betwixt them, than is betweene Iack Flecher and his bolt. You may imagine some mat­ter by onely imagination, perhaps more visible than it could haue béene, being true, whereupon a publike sen­tence of seperation being published a Thoro & mensa, but then there was a monition of chast liuing, and prohi­bition to both the parties, that neither of them should fl [...] 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 [...]wne accord. And soone after (so I will make it) hauing the Distaffe, Spindle and Shéeres all in mine owne hand, the husbands life was suddenly cut off, or else the wi [...]e had béene sole execu­trix.

SECT. I. Of Executorship and Administration.

SHe is not made an Executor, because the office is troublesome, let her take heed she make not hērselfe an Execut' de son [...]o [...]t deme she, by her owne wrong▪ [...]. H. 6. fol. 31. Action of debt was had against [...] woman as Exe­cutrix to her lafe husband. S [...]e [...]pl [...]aded that her husband made B. and C. his Executors, which taking Administra­tion from the Archbishop, did de [...]i [...] to this De [...]c [...]dant three robes, which her husband gaue her by will, [...]; that euer she administred in a [...] ▪ other manner. As [...]on Iustice held this for no good plea▪ because here was no co­lour of any Administration, for that is no Administration to vse her owne goods. But if one administer (quoth he) about funerall [...]pen [...]es and nothing else, hee may in a Writ brought against him, plead the Administration for this onely cause▪ sa [...]ceo that he administ [...]ed in any other manner, for here was a kinde of Administration which shall charge the partie no further than the goods admini­stred will reach. But for a woman to take her owne goods is none Administration at all, [...] [...] ­riam. And there it is said, that the Law allowes a wo­man conuenient apparrell, but not excessiue▪ &c.

Anno primo Eliz. In an Action of debt as against an Executor, vpon a plea of ne vnques execut' ne vnques Ad­ministrater [...]ōe executor. A speciall verdict was found, how the Defendant had recouered 10. l. that was due to the [Page 234] Defunct, and made an acquitance for it, taking also into his hands all the goods and chattels, that were the said Wyrials, so was his name, vsing them as his owne, this was holden a sufficient Administration. And saith Iustice Dyer fol. 166. I take for a rule, that occupation and pos­session of a dead mans goods, giueth sufficient notice of the person which shall bee charged to administer, bee it either ordinary or Executor. 17. Edw. 3. Action of debt was mainteynable against a Deane onely, gardiam̄ spiritua­lium sede vacante ad cuius manus bona deuenerunt, with­out naming the Chapter, and issue was taken vpon the deuenerunt, viz. the possession. And such an action may bée against an Executor alone, which hath possession of the goods, 8. Edw. 3. In a Writ of Dower against one Exe­cutor alone that held the ward in his only custody, hee was named Cu [...]tos and not Executor.

And for this reason it is, that though an Executor brin­ging action must shew how hee is Executor for the most part, yet the like is not needfull in an action against an Executor, for hee may bee an Executor sundry wayes, by Testament, by letter of the Ordinary, or by his volunta­ry Administration, and taking vnto him possession, vse, and occupation of the goods long, 50. Ed. 4. fo. 72.

And if an Administrator bringeth an action, hee shall say in his Count qui obiit intestatus, and not vt dicitur, but where one declares against an Administrator, it is the vsuall forme to say qui obiit intestatus vt dicitur for the Plaintiffe, there is not intended to know certainly whe­ther the Defendant bée Administrator or not. And sée Greysbrooke [...]. Plowd. fo. 276. b. &c. that where letters of Administration are pleaded in Law, they néed not bée shewed to the Court otherwise in the Count, &c.

And a woman taking more apparell than is conuenient for her degrée, without legacy or licence is an Executor de son tor [...] demesne, 33. Hen. 6. yet there is some posses­sion or medling, that the Law tolerateth, and is cullora­ble, and yet it draweth no burthen with it, as expences [Page 235] about funerals, or if one be made Coadintor, or Supervi­sor▪ or if he haue l [...]tters ad collegendum, or if he were Exe­cutor, by a former will disproued by a latter will.

Likewise if a Feme Couert bee made Executrix, not medling with any goods, &c. refuse to administer when she is sole. In all these cases there is a C [...]llor of authori­ty, and the party shall plead the especiall matter, sans ceo, that he administred in any other manner.

But he which claimeth by guift, shall plead absque hoc quod vt Ex [...]cutoris. In the principall Case Dyer conclu­deth, that the Plaintiffe should be without remedy, if he might not haue the action. And if (saith he) a lawfull Exe­cutor by his euill administration, viz. Conuertion of goods to his owne vse shall be charged, it must néeds be thought reasonable, that he should be in better case vndischarged, that executeth but by wrong of his owne carriage: Thus farre Dyer. Sometime the husband dyeth in so good time, that it were madnesse in his widow to refuse administra­tion [...]. Know therefore that by the Statute 21. H [...]n. 8. ca. 5. When the husband dieth intestate, or the Executors named in the Testament doe refuse to proue it the ordinary or persons, which haue authority to take probat of Testa­ments, shall grant administration to the widow of him which is deceased, or to the next of his [...]in, or to both, as by his discretion shall bee thought good, taking suerty of him, or them, to whom such commission shall be made, for true administration of the goods, debts, [...] ▪

And where diuers persons claime Administration as next of kin, which are all in equall degree, or where one claimeth where indeed diuers bée in equality of kindred with h [...], the ordinary shall haue liberty to grant it to one or more of them which require it. [...]d whereone or more, but not all of them w [...]th are in equa [...]it [...] of degrée, d [...]e make request, the Ordinary may admit the widow, and him or them [...]ely making request, or any one of them at his pleasure, taking nothing, &c. vnlesse the goods d [...] amount [...] the [...]l [...] [...] [...] pounds, the penalty is [Page 236] forfeiture of so much money as was receiued contrary to this Act to the party grieued, and ten pound to the King and party grie [...]ed besides.

But by the anci [...]t custome of the Realme: If any man dyed [...] ▪ the Ordinary might dispose of his goods in [...]us▪ vses, he might feife, prese [...]e, giue or grant them, yet was he not chargeable in any action prosecute, by cre­ditors of the intestate▪ because forsooth hee was a Iudge spirituall, and not subiect to temporall fuit, for things committed to him vpon confidence.

But West. 2. [...]. 20. [...]a e A [...]. t [...]. F. [...] is Cum post mostē alienus deceden [...]is intestat [...] & obligati aliquibus in debi­to, & the goods come to the Ordinaries hands, it is ordei­ned that hee answer to action as an Execūtor shall doe, quatenus bona defunct [...]fici [...]t. Then againe, because still the Ordinary might neither meddle nor be meddled with, for things in action as debts, &c. 31. Edw. 3. cap. 11. ordeineth, that in Case of intestate the Ordinary shall de­pute the most trusty and néerest friends of the dead to Ad­minister, and that they shall haue action of debt, or answer in action of debt, and bee accomptable to Ordinaries, &c. as Executors. I will wade no further here in the office of Executor or Administrator, except it bee onely to shew vnto you, how next of kin in the Statute of 21. H. 8. hath béene taken.

A sonne of Charles Duke of Suffolke, by a second ven­ter, hauing certaine goods by his fathers Will, dyed inte­state, and without wife or issue, his mother who was daughter to the Lord Willough by tooke Administration, which was afterward reuoked after great argument in the spirituall Court, as well by common Lawyers, as Ciuilians, in the behalfes of the said mother Dutchesse of Suffolke, and Lady▪ Francis wife to the Marquis Dorset, sister of the halfe [...]loud to Henry the Intestate, which sued to reuerse the Administration, and obteined it her selfe, though shee were but sister de demy sanke, for the mother is not next of kin to her aw [...]e▪ sonne in thi [...] [...]a [...]ter, but [Page 237] must descend and not ascend, either by one Law or the other, and children be [...] sanguine patris & matris, [...] pa­ter & mater non sunt de sa [...]g [...]ine puerorum. Contrary it is of brethren and sisters, 5. Edw. 6. 47 in Brooke titulo Administraton There is also this Case, William Rawli [...]s Clericus died inte [...]ate, administration was committed to Sir Humphrey Browne, who had married Rawlins his sister, William Shelton, and Iohn Shelton, sonnes to the Lady Browne by her first husband, reuersed the admini­stration and obteined [...] for themselues.

But sée in Sir Edward Cokes 3. Rep. in Ratcliffs ca. fol. 40. it is said that the booke of 5. Edw. 6. haue beene often times resolued to bée no Law, and that the goods of the sonne or daughter ought to be granted to the father or mo­ther as the next of bloud, and there is Littleton [...]ited who saith, that although the sonnes lands goe to the vncle, yet the father is next of bloud.

SECT. II. Are [...]son [...]ble part of the goods.

IF there bée a will proued, the widow must take such goods as were bequeathed her by deliuery from the Executors, but whether here were a will or none in some places, she shall haue a third part of all her late husbands goods. For this there is an ordinary writ to the Sheriffe, where she cannot haue a third part of that which remaines after funerals discharged, and legacies payd and perfor­med, to summo [...] the Executors to appeare and make an­swer why she should not haue, as the custome of the Court is, that women ought to haue rationabilem partem de bo­nis & ca [...]al [...]s vir [...]rum. The like writ is for children, whe­ther they be sonnes, or daughter [...], or both. And this writ speaketh of a custome in the County, that children which are not heires nor promoted in the fathers life time, shall [Page 238] haue their reasonable part, 3. Edw. 3. A Writ of debt was brought by a man & Alice his wife against the Execu­tors of his wiues father, & declaration was vpon custome of the Shire, that children not aduanced should haue their reasonable part of their fathers goods, the Executors said, that Alice was married by her father in his life time, iudgement si action, &c. It is no answer said one, to say that she was married by her father, except you say also by, or with her fathers goods, and to her conueniable aduance­ment, and here the husband at time of the marriage, or after had neuer any land. The Executors said still shée was conueniently married by her fathers procurement, &c. And in the end the Baron and Feme offered to auerre, not married by the father, on which point the issue was ioyned, Fi [...]zh. Dett. 156.

40. Edw. 3. In a rationabili parte bonorum, brought by a daughter counting on the custome of the Towne, that euery son and daughter should haue a reasonable part, the defendant pleaded a reuersion discended to her, which she might sell for her aduancement in marriage, iudgement si action, &c. Mowbray said, the Lords in Parliament would not agrée that this action is maintenable by any common custome or Law of the Realme. Doctor and St. fol. 132. a. by the custome of some Country, the children (the d [...]bts and legacies payd) shall haue a reasonable part of the goods of the dead. 39. Edw. 3. fol. 9. 10. One brought a Writ of Detinue for certaine goods, shewing the custome of Sussex: That where the father dyed intestate, his heire should haue a reasonable part of his Chattels, and vpon this custome hee demanded goods come to the Defendants hands; It was argued whether the custome were good or no. Morris, such a custome hath béene allowed in Eyre 21. Hen. 6. fol. 1. & 2. In fine [...]asus a woman brought a Writ of detinew against her husbands Executors for a [...]ity of his goods, as for her reasonable part by custome, and the Defendant was compelled to answer.

7. Edw. 4. fol. 20. & 21. I [...] a ra [...]io [...]abili parte bo [...] ­rum, [Page 239] iudgement was asked of the declaration, because the custome was, that where the Baron dyed sans issue, the wife should haue a moity of his goods, after debts and [...]u­ [...]erals discharged, but if there were issue, shee should haue but a third part, and here the Plaintiffe had a demanded moity without alleaging that the baron died sans issue, &c.

The Plea was amended by permittance of the Iusti­ces, for Da [...]by said, the widow had as good title to the goods as to lands at the common Law. But Cat. by spied another fault in the Count, viz. Continuance of the cu­stome not alleaged.

18. Hen. 6. fo. [...]. in a rationabili parte bonorum one Exe­cutor appearing, confessed the action, and the others made default, whereupon the Plaintiffe recouered presently by equity of the Statute 9 Edw. 3. cap. 3. by which the Exe­cutor comming first must answer. Like, or the same lear­ning is in the former Booke 7. Ed. 4. where Choke said, that alwayes if ne vnques executor, ne vnques admini­strat cōe executor be a good plea (vt hic) the Executor first appearing must answer.

I see that many tunes in stead of this writ de rationabi­li parte bonorum, a writ of debt sometimes, and many times of detinue hath serued, and you may finde further 52. and 56. titulo Detinue in Fitz [...]. And the great variance is in this, that the action is founded on a custome sometime of the Towne, sometime of the County, and sometime of the Realme, for indéed many haue holden that it is ge­nerall like an action of the Case against an Hostler, or an action de [...]igne custodiendo. So teacheth Glanuil, and so Fitzh. who relieth vpon magna Charta▪ cap. 18. which prescribi [...]g how the Kings debts shall bée, leuied of his goods that is dead, willeth the surplussage to remaine for the Executors ad testamentum defuncti pimplend. saluis vxori & pueris eius partibus rationabilibu [...], which being of a reasonable part may be restrained to places where cu­stome yéeldeth it, for ought that I perceiue Bracton in this passage, is like a péece of Romane ancient coyne that time hath rusted and defaced.

[Page 240]If a man (saith he) make a Testament, he ought to re­member his Lord of whom hée holdeth his land with the best thing he hath, and the Church with the next: If the wife dye before the goodman, the Church must haue like­wise the second best beast of all the [...]ocke heard or droue, but hee saith, this is of g [...]a [...]e and permission of the hus­band, and though a man bee not bound to giue any thing to the Church nomine sep [...]lturae, yet if he doe it is a laudable gift, and Dominus papa will not be against it. A woman that is at her owne commandement may make a Will, and dispose the fruits and corne growing on her Dower lands, whether they be seuered from the soile, or not se­uered, quod [...] non po [...]u [...]t sed n [...]c de gratia potest. She that is sub po [...]estate viri, can make no Will without her husbands ratification, though by custome sometimes women [...]o [...] make Wills of that which might haue fallen to their reasonable part, &c. or of things giuen them, [...] or [...]atum [...]cut de robis & [...]ocalibus.

A man may make a Will of all his things moueable, excepting so much as he oweth, for debts are before lega­cies, and the King before all Creditors. It is lawfull for the Viscount or Kings Bayli [...], shewing his letters Pa­tents out of the Exchequor, to attach all the goods and chat­tels of him which is dead found within his lay fée to the value of the debt, &c. and to i [...]bre [...]iat them, by view of lawfull men, so that nothing bee amoued till the debt bée payd, and the remainder of all such chatte [...]s shall bee to the Executors debitum, vero defuncti quod debetur. I [...]d [...]is non vsurabit qu [...]mdiu haere [...]ra aetatem extiterit, neither shall the King when a Iewes d [...] commeth to him take any more than the principall, neither shall a womans Dower [...]e char [...]able with her husbands debt. D [...] debe [...] esse libera, and when a man dieth [...] state, the execution of his goods belongeth to the Church and his friends dedu­ [...]ng first o [...] of them his cléere de [...]s, amongst which must bee reckoned his ser [...]ts wages, certaine and in­certaine, if incertaine they shall be taxed by the [...] [Page 241] friends, & the charges of his buriall, & funerall expen [...]es taken out of the stocke, that which remaineth must be di­uided into thrée parts, whereof one shall goe to the wife, the second to the children, and the Testator hath absolute power to dispose of the third. If there be no children, vna medietas defuncto, alia vxori reseruatur: If there be no wife, vna medietas defuncto, alia liberis tribuitur: And where there is neither wife nor children, tuncid totum re­manebit defuncto: The heire is bound to pay his Prede­cessors debts, so farre forth as the inheritance fallen to him will extend and further as his owne grace and good liking leads him. Ea quae dicta sunt locum habent & te­nent, all this is Law, saith Iohn Bracton, except custome sway otherwise as in Cities, Boroughes and Townes. London he saith hath a custome, that when certaine Dow­ry is appointed to a woman, either in money or other chattels or houses, shee shall demand no ouerplus of her husbands goods, except it be the increment which he giueth by his voluntary bequest. And the reason why shee shall haue not plus quam dotem constitutam, is because ipsa pre­deducet dotem suam ante omnes debitores. His conclusion is that Citizens wiues and children shall haue no more than is bequeathed to them, but be exempted from the ge­nerall custome: vix enim inueniretur aliquis Ciuis qui in vita magnum questum facerit, si in morte sua cogeretur in­uitus bona sua relinquere pueris indoctis & luxuriosis & vxoribus malemeritis, &c. I am sorry that Bracton sée­meth to conceiue no better hope of Citizens wifes, but it may be he was deceiued not onely in his opinion of Bor­rough women, but of Law also, for he makes his diuision of a mans goods into thirds or seconds, shutting it cleane out of Cities and Townes Corporate, to bee generall which Mowbray ere while told you, the Lords would not confesse to be Law, 40. Edw. 3. And many arguments may bee made to the contrary; for indeed it might most properly fit and be conuenient for Citizens, whose estate consisteth very often rather in moueable goods than in [Page 242] lands, and séeing the custome serueth not for heires that haue their fathers inheritance, widowes may most reaso­nably be barred from it that haue ioyntures, or reasona­ble part of Inheritance, which are no [...] the widowes of Citizens, for the most part. But let [...]s end this matter with Sir Thomas Smith De republica A [...]glor. lib. [...]. cap. 6. Though our Law may séeme somewhat rigorous towards wiues, yet for the most part, they can handle their hus­bands so well, and doucely, specially when they bee sicke, that where the Law giues them nothing, their husbands at their death of their good will giue them all, and few there be that be not either made sole, or chiefe Executors of the husbands last Will and Testament, hauing for the most part the gouernment of the children and their por­tions, except it bee in London, where a peculiar order is taken by the City, much after the fashion of the Law ciuill.

SECT. III. Of Quarentine.

ALL this while the widow remaines still in the ho [...] where her husband dwelt, for as Britton saith, [...]n bone Christien, though perhaps not in excellent French, ne a [...]iert mye que [...]ee [...]es solent botes hors oues (que) le con de lour barons. Therefore M [...]gna Ch [...] cap. 7. giue [...] [...] widow qu [...]ntine or forty dayes a [...]o [...]e in the capitall messuage of her husband after his decease, except the house be a Castle. If shee must leaue it because it is a Castle, there must presently a competent habitation bee pro [...]ided for her, in which she may honestly dwell till Dower be as­signed her, and in the meane season shee shall bee allowed reasonable e [...]ouers in the common, &c. The Writ that goeth out to the Sheriffe, or Kings Ba [...]li [...], vpon [...] ­ment is a commission commanding spéedy Iustice, and [Page 243] therefore proces is to be awarded vpon it against the par­ty offending to appeare within a day or two, not tarrying for the County day, and the proceeding is as in a commis­sion Oy [...] and T [...]i [...]er.

Sée 6. Edw. [...]. 76. in Dyer, A Writ of Dower was brought, and the Tenant pleaded in abatement of the Writ, that since the darren continuance the Demandant had entred into part, &c. Shewing incertaine which and this was holden a good Plea, and the demand being of francktenement, the demandan [...]s entry hath abated the whole Writ, y [...]t 45. Edw. 3. in a [...]i [...]e facias to haue exe­cution of Dower, such an entry pleaded was not good; The Demandant to maintaine her Writ said, that her husband dyed seised in fée, and that hee and shee the same Demandant, cohabitabunt super eodem manerio vt vir & vxor vsque ad diem obitus sui, with protestation, that it descended to the Defendant which entred, and that shée continued possession cohabiting with him, and shee held the same at the pleasure and will of the heire, & non aliter: This, saith Dyer, is holden no good pleading for the qua­renti [...], but shee should haue shewed the death of her hus­band certaine, and the time of the forty dayes continuing, therefore the opinion of the Court made her w [...]i [...] her plea, and trauers the entry, n [...]ta prolege: If a woman marry within the forty dayes, shee loseth her quarentine Dower. Brooke [...]y. Dower 101. 1. M. But if otherwise she be ou [...]ed by the heire within the forty dayes, shee shall haue a Writ de quarentena habenda no [...] br. 161. b.

SECT. IV. Assignement of Dower.

NOw to assignement of Dower, it is true that when it appeares certaine what it is that a woman shall haue in Dower, shee may enter presently when her hus­band [Page 244] is dead, and tarry for none Assignement, per Little­ton, yet Perkins saith▪ if a man dye seised of iij. s. rent charge in fee, though here the third part bee certaine enough, his widdow shall not distrai [...] for xij. d. before Assignement. Nay further, if she rec [...] this Dower by action, yet shee shall not distraine for it before execution: But if the Lord of a Manor doe marry with a woman te­nant by iij. s. rent and dye, here shée shall haue xij. d. Dower by way of reteiner without any Assignement. And in case where rent is recouered in Dower, the Vis­count may deliuer seisen by grasse, by a bough, by a clod of land, or by the distresse of beasts, taken vpon the land, though the day of payment be not yet come. But the party cannot charge any those beasts, 40. Ed. 3. fo. 22.

SECT. V. who may assigne Dower.

SOmetime Dower is assignable by the husbands heire, as if a man seised of two acres of land in one Coun­ty, make a feoffement of one acre with warranty and dye, the heire may indow the widdow with parcell of the acre remaining in allowance and full satisfaction of the whole Dower, & bene, for if in a writ of Dower brought by her against the feoffée of her husband, hee vouch the heire, &c. shee shall recouer conditionally against the vou­cher. And if the heire make a Lease for life of part of such lands as are to him descended, and indow his mother of the parcell remaining in allowance of all, &c. it is good, yet in this case in a Writ of Dower against the Lessée, if hée vouch his Lessor, the recouery shall not be against the vou­chée, because he is not bound to warranty as the heire of his father. But if he had béene generally vouched, the heire, and had generally entred into warranty, iudgement per­haps should bee conditionally against him. Sometimes [Page 245] the husbands one feofee, or vendée shall assigne Dower for the rest. And if a woman accept Dower from one of her husbands feofées, in parcell of his land, in allowance of her Dower of the rest, it séemeth this shall binde her a­gainst the other [...]fees, yet some haue doubted thereof, because the other feoffees, say they, cannot plead this in an action of Dower against them, neither is there meanes to bring into Court him which made assignement, being a stranger. If diuers Ioyntenants bee of certaine lands as­signement of Dower, by one of them shall bée good against them all. But if one Ioyntenant of land assigne rent in al­lowance of Dower, his followes shal not be distrained for this rent, for there could bee none inforcement to assigne Dower after this manner. Likewise if the Desseisor as­signe a rent charge out of the land, this shall not bind the desseis [...]e, causa qua supra,

Assignement of Dower may be by one which is a Dis­seisor Abator, or Intr [...]dor, &c. if this assignement be with­out fraud in the woman indowed, and sans [...]or [...] to any other person, it is good, though the Assignor be a tortious Possessor, but if there bee any such couine, or tort, the as­signement is voidable, for the most part by entry. 44. Ed. 3. fol. 46. A woman that had title of Dower, with intent of defeating the Tenants warranty made a stranger to enter, and against him she recouered Dower, it was hol­den in an Assize, which shee brought afterwards, that hee recouery would not serue her, but her estate was gained by des [...]isin, because of the couine.

Assignement of Dower by him which hath Franckte­nement is good, and if the wife hath not right of Dower of that which is so assigned by the Tenant of the Franck­tenement, yet that shall stand vntill it bee defeated. And if tenant per elegit, statute staple, or statute merchant as­signe Dower, it is not good. And Assignement of Dower by gardian in soccage séemes not to be good, saith Perkins, for a Writ of Dower lyeth not against such a gardian, sée 29. Assis. p. 68. But Assignement by gardian in Chiual­ry [Page 246] is good till it be defeated▪ and it shall neuer be defeated, if the womans title of Dower be iust.

SECT. VI. Assignement to her selfe, or de la pluis beale.

IF a man seised of forty acres of land, 20. by Chiualry, and 20. by soccage die, &c. and his wife being gardian in soccage, bring her Writ of Dower in the Kings or some others Court, against the Lord which is gardian in Chiualry, he may plead this matter, and pray to haue it adiudged, that the woman indow her selfe of the fa [...]est in her owne possession, and if she cannot deny the case, it shall be iudged for the Lord, to retaine quietly the lands which hee hath during the nonage of the Infant. And after this iudgement the woman may indow her selfe in presence of her neighbours, by limits and bounds de la pluis beale part of the soccage lands, to haue & to hold to her selfe for terme of her life. This manner of indowment is neuer before iudgement bee giuen for it, either in the Kings or some other Court, and it is to saue the state of gardian in Chiualry, Perkins giueth this matter, which Litlton lea­ueth thus raw, a turne or two more. And so doth Keble 14. Hen. 7. 26. If, say they, the land which the woman hath by her gardianship, bee not the whole valew of her iust Dower for the smalnesse of it, or because it is charged with some rent, she may shew the matter in her replica­tion: And if the Lord cannot deny it, or doe trauers it, and it is found against him, then shall the woman haue so much of the lands holden in Chiualry, as together with that shee hath in possession already, may make vp iust a third part of her husbands inheritance. If the inheritance were all of soccage tenure, the widdow being gardian cannot indow her selfe de la pluis beale, but shee shall be allowed a third part in her accompt for so long time, as shee is [Page 247] Gardian, for if she bring her Writ of Dower in this case against the heire he cannot plead her gardinship, and that she may indow her selfe, Sée 45. Edw. [...]. fol. 6. If such a Feme gardian bring a Writ of Dower against one whom her husband infeofed with warranty, hee shall not pray that she [...]ow her selfe, for he may vouch the heire which Gardin [...] Chiualry cannot doe. It is no good plea for Gardine in Chiualry to say the Demandant was gar­dian in soccage, &c. but hee must shew that she is gardian in soccage [...]our del brief purchase, and this is good till shée haue shewed by replication the land deuested from her possession.

If a widdow gardian in facto, of some lands that were her husbands, and holden in Chiualry, purchase her Writ of Dower against another Gardian in Chiualry, hée shall not plead the speciall matter, and plead vt supra, for the wardship is here to the widdowes owne vse and profit.

SECT. VII. Assignement of Dower by the King. Statutum prerogatiue ca 4 fact. 17. Ed. 2.

THe Statute is that after the deathes of husbands which held of the King in Cap [...], the King shall as­signe Dower, yea although the heire be of full age, Vidue si volu [...]runt. And such widdowes before assignation of Dower, whether the heire bee of full age or vnder, shall sweare not to marry without the Kings licence: If they doe marry [...]a [...] licence, the King shall take into his hands as a [...]esse all the L [...]s and Tenements holden of him in Dower so that the woman shall take no profit of it, till shee or her husband haue satisfied the Kings will by fine, which was wont to be tempore regis Henrici patris regis. Ed. [...]. [...]aith the Statute, at full yéerely value of the whole Dower, nisi vberiorem g [...]iam habu [...]nt [...]ulieres. And [Page 248] women which bee themselues Tenants in Capite of inhe­ritance, what age soeuer they be of, shall sweare likewise not to marry without the Kings licence. Si fecerint, terrae cap [...]tur eodem modo in manus Regis, &c. This Sta­tute is proued to bee but confirmation of the common Law, [...]4. H. 3. Pr [...]rogatiue 27. i [...] Fitzhe [...]rt, and by [...]. Char c. 7. ul a vidua distringatur ad se [...]tandum dum­modo voluerit viuere [...]e marito: Ita tamen quod secu [...]i­tatem faciat, quod se non maritabit [...]ine assensu nostro, si de nobis tenuerit vel sine assensu domini sui si de alio [...]n­nerit. Fitzb. in natu. br 263. shewes the manner of indow­ment by the King: The widdow must come into Chance­ry, and make oath not to marry sans licence, whereupon the King may make the Assignement in the Chancery, and direct his Writ to the Escheator, certifying him that hee hath assigned a third part of such lands, with a third part of the liberty of Court view of franckpledge, &c. commanding him to make liuery of the same to haue in Dower, or the woman may after she hath sworne, haue a writ reciting her oath, and commanding the Escheator to make assignement. But the most vsuall course is vt antea.

And the King though hee hath committed custody of lands to another person, may assigne Dower to the wid­dow in Chancery notwithstanding, and shee shall haue a Writ to the Escheator, y [...] and the King may grant a Writ to the Escheator, commanding him to take surety of the widdow not to marry sans licence, and then to as­signe her Dower, as praecipi [...]us tibi [...] cap [...]o sacramento, &c. assignari & lib [...]i [...]cia [...], &c.

If the Tenant which is dead held by Chi [...]ry of some Bishopricke or such like which is in the Kings hands by vacancie, the widdow must demand her Dower in Chan­cery, and she shall haue a Writ for her Assignement to the Escheator, but in this case shee sweares not to marry sans licence. So is it also when Dower is demanded of la [...], holden of a common person in Chi [...]ry, where the heire is in the Kings ward p [...]r [...]nage.

[Page 249]And the King may assigne Dower in Chancery ren­dring rent to him, because the lands assigned doe excéed a iust third part of the Tenements, whereof Dower is as­signable. If the widdow be so weake [...] impotent that shée cannot trauell to the Chancery to take her oath, and de­mand Dower, she may sue a speciall Writ to some per­son, both to take her oath, and to receiue Att [...]rney▪ whom she will constitute to sue in her stead. If liuery bee made to the heire being of full age with a reseruation of Dower, to be assigned to the King, and then the widdow commeth into the Chancery for Dower as shee must doe, there shall goe a speciall Writ to the Escheator, to warne the heire that he be in Chancery at a certaine day, and the widdow shall bée appointed the same day to receiue her Assignement. But if the Writ of Liuery directed to the Escheator bée generall, without clause of salua do [...]a per nos assig [...]anda, the widdow must now [...] for her Dower by Writ of Dower against the heire. If the King when he makes liuery reserues Assignement of Dower to him­selfe in his Writ to the Escheator, now whether the wid­dow come and demand dower in Chancery, or demand no dower, yet the reuersion is in the heire after assignement, for after the death of Tenant in Dower the heire shall not [...] any ne [...] liuery. Because the first writ command [...] all the land [...] to be deliuered, and so the Escheator doth deliuer all, nothing being reserued to the King, but onely Assigne­ment of Dower. If after this Assignement i [...] [...]e [...]r [...]i­s [...] by the heire, or other body, that the land which the woman hath, is of far greater value than it was made by the extent, &c. if the excesse [...]e [...] and returned, [...] s [...]i [...]e facias shall goe▪ forth [...] cause the woman to come and shew cause why she should not take a n [...]w Indowment.

If she appeare and cannot gaine [...]ay the matter, or if she were warned and make default, it séemeth in both cases, she shall be endowed a new. So that parcell of the lands which she hath, shall be taken from her, [...] the King may, if hee will, make assignment altogether new, by a new [Page 250] Writ to the Viscount. If the widow after she is sworne and indowed, doe marrie sans licence, the King sends to the Escheator to seise those lands, which she holdeth in Dower, by a Writ reciting the oath, the indowment and marriage with this in it, Nos contemptum hu [...]modi no­lentes transi [...] impunitū, necnon inde [...]tati nostrae volen­tes prospleere, tibi praecipimus (si ita est) [...]nc omnia terr [...] & [...]ment quae ten [...]t in Dote, &c. capias in man nos [...], Ita quod de [...] prouenientibus nobis respond [...] ad scaccar [...] [...] quousque nobis d [...] Forisfac [...]u [...] ad nos inde pertinen [...] satisfactur [...]u [...]rit. Thus far [...].

Stamford argueth, whether Fitzherbert deliuer the Law rightly or no, in this that he saith, the King may assigne Dower in Chancerie, though hee haue committed o [...] the wardship of land to some other body: for many writs are in the yeare bookes brought against the Committée in such a case. And in some bookes the woman recouers Dower, the King neuer being made priuie: As titulo [...] del roy 23. [...]. is the case 4. H. 7. fol. [...] Action of Dower was against the Kings Committée during the heires [...]o­nage, the Defendant shewed how it was fo [...]d by office, that the husbands father tenant to the King, died seised ha­uing issue, the husband which entred sans office, and died▪ leauing his heire vnder age, all which matter was [...] by office: whereupon the King seised, committed the lan [...] to the Defendant, &c. Iudgement [...] actione.

And the widdow was adiudged dowable. Bry [...], who at the first was in minde to proceed no further without [...]d of the King, when hee had considered the Statute de Bigamis▪ cap. 3. awarded presently that the woman should recouer Dower. The Statute is, Vbi custodes heredita­tis mari [...]orum suo [...] cui [...]dias habent ex dono vel concess [...] ­ne regis, [...]ue custodes [...]um petitarum [...]enea [...], [...]iue here­des dictorum [...]men [...]orum vocentur ad warrantiam si ex­cipiant quod sine reg [...] respondere non possu [...], non ideo [...] ­persed [...]tur, qu [...] in lo [...]el [...]dicta pro [...] iustus fuerit pro­cedatur [...] Stamford noteth some bookes wherein is [...]ound, [Page 251] that he [...]re [...] in costodie of Committ [...]s vouched to War­rantie, haue come in and had aid of the King, directly con­trarie to this third Chapter de Biga [...]is. But whether the Kings grant in those cases were Durante [...], or Durante bene placito▪ it appeares not in the [...]ookes, and that makes a great difference.

Likewise if the Writ of Dower [...]e [...] Com­mittée of a Committee: And if Wardship [...] committed to the widdow without exception or foreprize of Dower, she is concluded to claime any Dower during the Ward­ship. In Stamfords opinion the new [...] and the case supra 4. H. 7. doe not agrée. Howbeit for [...]hy part [...] finde not the repugnan [...]ie; for as the King may assigne Dower to his widdowes, though the heir [...] be of full [...]ge, Vid [...]a si voluerit, so Fitzhorbe [...] saith hee may assigne Dower if he will, though he haue committed the la [...] [...] ▪ And this doth not denie, but rather affirme that [...] some case the Committée may assigne Dower▪ If the Com­mittée (as Stamford himselfe confesseth) assigne. Dower to one that is not dowable, or if his assignation excéed iust measure, the King may reforme it. And if a wom [...]n [...] ­dowed by the Kings Committée will marrie [...] because she stands vn [...]wor [...]e, for in the C [...]mm [...] pla [...]e is no [...]wearing in this point, her [...]nds are neuer [...] whitlesse subiect to [...]eizure for the contempt, therefore in the end he concl [...]deth, that where [...] [...]ard is omitted ouer, the woman hath election, whether [...] ▪ [...] [...] to [...]he King in Chan [...]erie, or at Common Law against the Committée, vnlesse it be where the grant of a Ward is but Du [...]an [...]e bene placito▪ for in that case of necessitie the suit must be to the King. S [...] Sir [...] [...], fol. [...]8▪ the reason why a Writ of Dower is maintenable against the Committee of the King.

Stamford th [...]teth Fitzherbert also in that that hée saith, a widdow must demand Dower against the heire, which hath Liue [...] without clau [...] [...] [...] dote p [...] [...] assig [...]and [...]; for when Liue [...] is before Assignement of [Page 252] Dower, there is commonly a sauing in the Writs of Li­uerie, if so be the woman were found to be wise, &c. by the office. And if she be not found by the Inquisition, then there is a leauing out of Sal [...]a Dote, &c. in suing of gene­rall Liuerie. Indeed if she were not found to be the Kings Tenants wise in the office, the heire may safely s [...]e▪ Liue­rie within [...] such saying: But [...] agrees with O [...]slow P [...] 32. in the case of Mynes, that for Assigna­tion of Dower, if the King haue not expressely relinqu [...] ­shed it, though the Liuerie be s [...]m [...] [...]l [...]se of salua Dote▪ &c. yet this makes no such wai [...]ing of the prerogatiue, but that the King may assigne Dower to a widdow, that by an office is found to haue beene wife to the Kings Tenant at the time of his death, for without so much it seemes she can neither demand it in Chancerie of the King, nor of the Committee, nor of the heire in the Common place, quere vide fol. 109. Prerogatiue of not assigning. The King hath a prerogatiue aswell of not assigning, as of assigning Dower. As if the husbands Feoffee in a writ of Dower against him call to Warrantie the heire in the wardship of the King, &c. the woman shall recouer against the Te­nant, and no recouerie shall be as yet against the heire: But neither any common person, nor yet the Kings Com­mittee of wardship, shall haue this prerogatiue: But for the King himselfe, if in the case Iudgement to recouer is value be giuen for the Tenant, he must stay for execution till the Kings hands be amoued, &c.

If a woman be endowed by her husbands Feoffee, of such lands as the husband did not die seised of, whereof al­so for this reason the King can haue no wardship. Stam­fords opinion is, that she cannot marrie s [...]ns licence.

For by [...]6. Assisarum Pl. 57. it appeareth that where a woman was endowed, by Gardian in Chiualrie, who was afterward attainted of treason, and his Seigniorie forfeited to the King, she must hold now of the King, and not of the heire which was in reuersion of the land: Hee accords with Fitzherbert, that the Statute of Prerogatiue [Page 253] is vnderstood onely of lands holden in capite, and therefore she must demand Dower of lands holden of a Bishoprick, or of Tenant in capite, when the temporalities, or the heire are in Custodia regis, she must be indowed in Chan­cery, but she may marrie when she list, and shall take no oath to the contrarie: Also if a widdow will relinquish her Dower of lands holden in capite, she may marrie [...]ans licence. And see Dyer 3. M. 123. b. affirmeth, that the wife of Tenant parauaile shall not be sworne as widdow of the King in the Chancery, when her Dower is assigned to her. The reason per Stamford is the copulatiue con­nexion of Et si se maritauerit, to the former words of the Statute of demanding Dower, and swearing not to mar­rie: The words si viduae voluerint, he takes to imply no more but election of refusall, or taking of Dower, and that is manifest by the last clause of the Statute.

But by Fitzherberts writ, which hee sets downe for forme of seisure, when a widdow is married sans licence, it appeares that the King may grant to another the mar­riage of his widdow or widdowes, and for marriage be­fore agreement with such a Grantee the King may seize, and composition with such a Grantee by Baron or Feme before or after marriage, is as good as if it were with the King himselfe. But now by the Statute 32. H. 8. cap. 46. This composition is giuen to the Master of the Wards and Liueries, with three of the Councell of that Court, who haue also authoritie to tax according to the Statute of Prerogatiue, a reasonable fine for marriage sans licence.

How much it ought to be is plaine by the Statute, as also what lands are subiect to the Statute, as also what lands are subiect to seisure aswell of the husbands lands as of the wiues. If that were reason, saith Fitzherbert, a womans inheritance might be seised too, Et semble a moy, the King cannot grant marriage of his widdowes as he may of his wards; for a widdow may remaine sole without penalite, or paying for it, by Mag. Chart. cap. 7.

[Page 254]But Stamford includeth, that a widdow endowed o [...] lands holden in capite by the Kings Committee, or hus­bands heire, though vnsworne is not freed from marriage sans licence, for she is presently as soone as she is endow­ed, tenant to the King, and not to the heire which is in re­uersion, yet only the heire is he, which shall haue action of waste against her; but if trespasse bee done vpon the ground, she may haue a writ out of Chancerie, supposing entrie vpon the Kings possession. And Auowrie to bee made by the King resteth onely vpon her, as holdeth Wood, 1. H. 7. fol. 17. and 4. H. 7. 1.

Now note that Endowment in Chancerie is of such strength, that be it by wrong or by right, it cannot be a­uoyded by plea without suit in Chancerie: And if it bee too little, the woman must stand in her owne harmes, that hath once attempted it in Chancerie, bee shee within a [...]e, or of full age, as appeares, 18. Ed. 3. fol. 29.

If any office bee trauersed, because the land is holden not of the King, but of some other Lord, who therefore hath an Ouster le maine vna cum exitibus, yet Dower which is already assigned remaineth vndefeated, till ano­ther suit be made in Chancerie to auoid it.

Yet in this case, because Admeasurement, is no preiu­dice to the King of whom the land is not holden, the Lord that tendreth trauerse, may haue a Writ of Admeasure­ment at y ^• Common Law. And the heire may haue Admea­surement of Dower assigned by his Ancestor: But an Abator cannot haue Admeasurement, neither can Gar­dian in fait haue Admeasurement vpon assignment by Gardian in droit, nor if the heire were at full age at his Ancestors death, and died, his heire being within age can the Gardian haue Admeasurement, but where a woman is endowed in Chancerie, and afterward the heire, or some other for the King surmiseth e [...]cesse of value, it may bée admeasured beginning with Scire facias, as Fitzherbert hath taught supra, and fol. 249. [...]. If the husband had l [...] in diuers Counties, by reason whereof diuers writs of [Page 255] diem clausit extremum were awarded after his death into euerie of those Counties, the widdow cannot be endowed till such time as all the writs be returned into Chancery. If after she is once endowed in Chancerie, her Dower be recouered from her by any title, she hath no remedie but to remoue the record of this recouerie into Chancerie, and then vpon the first record which sheweth that she was endowed, and vpon this other of recouerie she shall haue Scire facias, reciting both the records against him which is tenant of the two parts, to reseise them into the Kings hands, and so to bee newly endowed, but not to recouer any dammages, though dammages were recouered a­gainst her, Lib. 43. Assisar. Pl. 32. for by the latter part of the Statute Prerogatiue, cap. 4. It séemeth the King hath lost his prerogatiue, and that he is bound by, West 1. cap. 22. Note that woman Ioynt purchaser with her hus­band is not within this Law to fine for her marriage, when she becomes a widdow (say I) therefore well fare a Ioynture.

SECT. VIII. Suit for Dower at the Common Law.

THus we haue séene how, and when a widdow mu [...] f [...] for Dower in the Ch [...]er [...], viz. when either her husband died the [...] tenant in cap [...]te, or by [...]nights seruice, his heire vnder age, or otherwise tenant to some other, [...]hole lands are in the Kings hands by vacancie, or nonage of the heire. But if the husband, which held in Socage, or by [...]nights seruice, not of the King, did giue or alien any man [...]r of way his lands, or were disseised of them, or died s [...]is [...] of them. The widdow, if by sim­ple demand she cannot obtaine her Dower to bee assigned her, may haue a w [...]t of Dower Vnde nihil habet at the Common Law against him which is tenant of the Frank­tenement, [Page 256] by the old Nat. breuium this writ is maintaina­ble against him which hath possession of the land, by what manner soeuer, or against the Gardian in Chiualrie; in this or like forme, Rex V [...]cecomiti, &c. command A. to render to B. which was the wise of C. [...]er reasonable Dower, quae ad cam contingit de libero [...]enemento, quo [...] fuit praedict C. sometime her late husband in D. vnde ni­ [...]i [...]abet, & vnde queritur quod A. ei defortiat, &c. & nisi fecerit & B. fecerit t [...] securum de clamore prosequendo, &c. summoneas A. vt sit apud Westm̄ ostensurus. If the Dower were ad ostium Ecclesiae, or ex assensu patris, or otherwise there is mention made of it in the writ. In London there may be a writ from the King to the Maior and Sheriffes in these words, Quod Iusticietis A. quod iuste & [...]ne delatione, & secundum consuetudinem ciuita­tis nostrae London redd' B. quae fuit vxor C. rationabilem dotem, &c. Et Iusticietis D. quod iuste, &c. whereby ap­peares that a widdow in London may haue a writ of Dower against seuerall tenents by seuerall Iusticies, as well as at the Common Law seuerall Precipes against seuerall tenants all in one writ, the Processe in the Com­mon Place, is summons, Grand cape & pettie cape, in the Common Place this writ of Dower, vnde nihil habet, must be returned into the Kings Court, Et per grand rea­son, saith Britton cap. 10. 4. For if two or more women should striue, euerie of them affirming her selfe to be the lawfull wife of him which is dead, not minding to be bu­ried with him, as is the corse in India, but to get a third of his lands: This must be tried by Certificate from the Bishop, vnto whom if any but the King should write for the deciding of debate, it might fall out to be all in vaine, because none hath power but the King to compell the Bi­shop to make Certificate. In the next Chapter Britton sheweth, that if the Tenant vouch to warranty one which appeareth according to summons, the Plea shall proceed betwixt the Plaintiffe, & the Warrantor, or Vouchée, the Tenant keeping seisen till the Warrantie be determined▪ [Page 257] Then if the Garrantie cannot be denied, nor the womans right disproued, if that which she demandeth were cer­tainly assigned to her for Dower from her husband, shee shall recouer against the Tenant, Et le renant le value.

But if the demand bee of no other than reasonable Dower▪ the woman shall recouer in value against the Warrantor, and the Tenant shall hold his land in peace: If so be 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 [...]ée brought against the Gardian, and not against the Infant. 46. Ed. 3. fol. 19. Where Mowbray saith, where an In­fant is vouched in ward of the King, the woman shall re­couer Dower maintenant. 3. H. 6. fol. 17. It was agréed per curiam, that in Action of Dower, if the tenant vouch the heire in the Kings ward within the same Countie where the writ is brought, the Demandant shall not reco­uer before the warrantie be determined: but the Law is contra, if the Voucher had prayed summons in another Countie, for then the Demandant should recouer mainte­nant, yet by the Register fol. 7. if in a writ of Dower the tenant vouch in Durham, the Demandant shall abide [Page 258] 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 l [...] countie. If the heire vouched to warrantie, aft [...]r [...]hee hath appeared and count [...] pleaded the warrantie, or before appearance, being lawfully summoned do [...]ke default, the Defendant shall haue exe­cution against him maintenant, if hee haue lan [...]s within the Countie, Brooke Dower 5. And also Dower the 6 [...]. when the heire is vouched in the same Countie, the wo­man shall recouer against the heire. Dyer 3. Eliz. [...]. In Dower the tenant vouch the heire in the same Coun­tie, who co [...] as one that hath nothing by descent in [...]ée, and renders Dower, the tenant auers, that he hath ass [...] by descent, qu [...] if he should not say in fée, for by Weston and Browne, if the lands be in taile, it doth not [...] the tenants lan [...]s And the opinion of the Court was, that the Demandant shall haue Iudgement presently aga [...] the heire if he hath lands, &c. and if not against the tenant, and that before the issue of the ass [...]s tried.

1 Ed. [...]. 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 i [...] vou­ched by Charter of his Ancestor, the Demandant shall [...] ­couer against the Vouchee, and the Tenant shall hold [...] peace: Yet in a Writ of Dower against Lessée for [...]e of the Barons demise, if the heire bee vouched to War­rantie (though here the reuersion which is the cause of the Warrantie were made by the Baron) the Demand [...] shall recouer against the Tenant, and he against the heire. If the tenant vouch in a writ of Dower, and the Vouch [...] counter plead the Warrantie, the woman shall recouer maintenant, though in other actions it bée otherwise. 46. Ed. 3. fol. 25. and 49. Ed. 3. fol. 23. In a Writ of Dower the Tenant vouched himselfe, to s [...]e the [...] [Page 259] 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, [...]he vouched the heire in reuerston, the Demandant recouered against the tenant, and shee against the heire a third part of two parts remaining, but not in value. Sée Brooke Dower 79. If the Grandmother die, the mother may enter into the first dower, and the heire into the second.

SECT. IX. Plees in a writ of Dower.

ADmitting there were no Voucher, let vs run ouer other matters vsually pleaded. 14. H. 4. 33. in Dower was demanded a third part of two mils & of other lands, y ^• tenant asked Iudgement of the plaintiffe: for they were during the whole time of couerture, but the [...]te of two mills, viz. to [...]ts. 38. Ed. 3. fol. 13. In a writ of dower a­gainst one as Gardian of land, and heire of K. de R. the defendant answered that the Infants father was [...]. 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 [Page 260] 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, Issi [...] seisi que Dowre, &c. The plea of Euidence detained as Lit­tleton [Page 262] said, went to the whole action, quod fuit, negatum, v [...]de Brooke [...]y. Dower 4 but he was forced to shew what euidence he deteineth, viz. a speciall Charter.

4 [...]. Ed. 3. The Tenant pleaded a withholding of Eui­dence certaine, conce [...]ning his inheritance, and shewes what: Et q [...]e il a [...] 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 ou [...]sq̄ soit inseint q̄ serra [...]eure si dien luy done nostre, and issue was taken, whether she were ins [...]int die obitus mariti, not whe­ther shee were inseint per son baron die obit [...]s. And that booke of 41. Edw. [...]. is cited for law, in Sir Edw. Cokes 7. Rep. fol. 9 that a woman may deteine Charters for the heire in ventre [...]a mere. And 22. Hen. 6. fol. 16. It was agréed that deteiner of Euidence is no plea in an Action of Dower, vnlesse it concerne Inheritance discended. Et si [...] 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 cy [...]le fait & pr [...] 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: ꝑ 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 [Page 263] 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, h [...] 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 de [...]uer, he is and alwayes had beene ready to render Dower: shee shewed the whole cause by way of replication, & vpon that the other side demurred. It seemeth (saith Dyer) that this plea serueth for none, saue only the Barons heire, and for no land, but that which is descended: And not for the heire himselfe if he come in by voucher, or [...]s Tenant by receipt in default of Tenant for life: Where hee is no more but tenant per admittance, for such a one cannot say, that he hath béene toutes temps prist a render Dower si &c. Neither can gardian in chiualry haue this plea, for he can­not haue a writ of detinue of the heires euidence: And this plea is a bar for no lands but those which the Charters de­teined do concerne. 22. H. 6. Where Newton saith, the rea­son of this barre is, because the euidence being séene and looked into, may yéeld matter to barre the Demandant of her Dower, for such lands therefore as the Charters doe not touch, Dower shall be granted of them, this plea notwithstanding. Also certainty must euer bee alleaged in this case, if the euidence bee not in some bag, bo [...], 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 vnco [...]e prist a render Dower, but in very déed hee relied not againe on the condition if the Demandant would deliuer the Charter according to the ancient booke of entries. [Page 264] And at the last iudgement was giuen pro dote.

Sée Sir Edw. Cokes 9. Rep. in Anna Beddingfelds case 1. That the Charters ought to concerne the land where­of Dower is demanded, and not other lands descended to the heire. 2. He that pleads that plea ought to shew the certainty whereof a certaine issue may be ioyned, or that they are in a chest or box sealed, which import sufficient certainty, whereof certaine issue may be taken, and in both cases action of detinue may be brought by the heire. 3. No stranger although that he bée Tenant of the land, and hath the euidences conueyed vnto him, may plead in a Writ of Dower deteiner of Charters, but that plea is only in prinity for the heire of the husband. Also the heire shall be in the degrée of a stranger in fiue cases. First, if the heire hath the land by purchase. Secondly, if the heire hath deli [...]e [...]ed the Charters to the wife. Thirdly, so the heire be not immediate vouchee, namely, by the Tenant in the Writ of Dower, but by his vouchée. Fourthly, if the heire comes in as vouchée, hauing no lands in the County where the land is demanded. Fifthly, if he comes in as Tenant by receit. And Gardian in Chiualry may not plead deteinement of Charters, for hée may not con­clude his plea if the Demandant will deliuer to him the Charters, &c. for the Charters which concerne the heri­tage of the heire shall not be deliuered to the Gardian as it is adiudged in 10. Edw. 3. 49.

SECT. XI. Deteining of the heire.

AS the heire only may deteine Dower for deteining of euidence, so the Gardian in Chiualry onely may dete [...] Dower for deteining the heire, and that he may plead and conclude q̄ il ad en touts temps prist, for the ward belongeth to him.

[Page 265]If a widow eloigne the infant or heire of her husband, though some other body haue him by her deliuery, yet the Gardian in Chiualry may detaine Dower, except shee can redeliuer him to the Gardian in as good plight, as hée was at the time of the eloig [...]ment, that is, vnmarried if he were eloigned vnmarried. But a woman nourishing her owne Infant, the sonne or heire which her husband left her, if a stranger clauning as Gardian fake him from her, the right Lord shall not detaine dower for this cause. But if a woman take and remoue the heire from the place where hee was nourished at time of the Barons death; Now if a stranger wrongfully take him from her, the true and right Gardian may detaine dower. And this matter is pleadable by Gardian in Chiualrie, though hée come into Court, by reason that the heire is vouched to be in his ward; for by right the custodie of the Infant can appertaine to none but to him, vnlesse it be by his grant or agréement. Certaintie is required in pleading of this de­tainer, aswell as in the other, viz. that she which deman­deth dower hath eloigned or detained I. S by name, son, or daughter W. &c. 22. H. 6. fol. 16. 2. H. 7. fol. 6.

SECT. XII. Possession in the Demandant.

39. Ed. 3. 17. DOwer was demanded, a third part of a carue of land; the tenant said the de­mandant her selfe was seised of a third part of it already: Iudgement de briefe per Knyuet it was no good plea, with­out shewing who assigned it, or that she recouered it. For if shee were in by disseisen, shee must haue dower of the o­ther two parts remaining: neuerthelesse by which the tenant was chased to answer for the two parts. 7. o [...] H. 6. 33. & 34. In action of dower against t [...], one said he had assigned rent, out of the land six shillings and eight pence [Page 266] annuall to the demandant for terme of her life, which she accepted, &c. The other pleaded tou [...]s t [...]mps prist, &c. The assignment was holden a good plea, &c. the deman­dant said she neuer agreed. Now, per Strange, she was to recouer a moytie maintenant, though the other plea were not yet tried: for this was a confession of one, and plea­der in bar of the other.

2. H. 4. fol. 7. A Lady sued in Chancerie to be endowed of diuers Mannors which were her husbands, where the heire was in gard of the King, as was found by the Diem clausit extremum there returned, and because it appeared that King Richard had committed wardship of the lands and body of the heire till full age of the said heire to her by patent without foreprise, or mention of dower, shée was ousted of dower per agard de toutes les Iustices, till full age of the heire, simile, 11. of H. 4. in case of the Lady Arrundell. Fitzherbert saith likewise, If a woman take a lease for yeares of land, whereof she is dowable, she shall not sue for Dower during these yeares, Nat. br. 149. c. Bracton propoundeth to be considered what shall be done when the widdow brings her Writ of Dower, vnde ni­hil habet, and yet it is so that she hath part of her Dower already: If (saith he) it be proued, or she cannot deny it, cadit breue, and she shall not recouer the residue, but by Writ de recto de dote: Therefore let her accept no part of her Dower, before she purchase her Writ, and let it containe all the Deforcers, be they in one Countie, or in many.

When they are so put together, if now she accept any thing of her Dower without Iudgement, the acceptation of part shall be no exception against her, for she may con­fesse satisfaction for that part: If peraduenture shee haue already taken part of her Dower from some one person before the obtaining or purchase of her Writ, let his name and the summons for him be in the Writ notwith­standing, and then if it be obiected she hath accepted part, shee may acknowledge that hee hath satisfied her for his [Page 267] part, and whether before or after suit is not greatly to be stood vpon. But if he of whom she receiued part be not na­med in the Writ, she cannot against the obiection of ac­ceptance reply, that the land which she accepted is not in the same Towne, but in another. For vnde nihil habet in the Writ non debet referri ad villas sed ad dotem. It is nothing worth therefore, to say she hath nothing in tali villa, if she hath any thing nomine dotis, wheresoeuer it be it is not then materiall. And when a woman replyeth nihil habet, her defence shall not be per legem that is wa­ger of Law, but per patriam. Likewise, if a woman plead that she hath nothing nomine dotis but by some other title, as ratione custodiae & huiusmodi, Inquisition may be in the Countie where it is supposed shee receiued Dower, to finde whether shée haue any thing in Dower of the tene­ments which were her husbands, and if shée had, and now hath not, to enquire what is become of it, this was a Nor [...]. case of Holda the late wife of W. in Trinitie Terme, 4. H. 4. as Bracton in his fourth Booke 13. Chap­ter and fol. 312. relates vnto me.

SECT. XIII. Ne 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 [Page 268] one, the wi [...]e dowable. Yet marke this case [...]bid. a man seised, &c. in fée simple dies, his sonne entreth and he dies, the sons sonne enters and endowes his Ayl [...]s [...]e: she dies, a stranger abateth. In this case it is cleere, the sons wi [...]e shall haue no Dower of the portion assigned to the Ay­lesse: though the sonnes sonne may haue a Mordancester per Kirton, Finch▪ and Mowbray: But betwi [...]t this cas [...] and the other, they say, is great oddes; for here the Grandmother endowed, was in from her hus [...], and she sonnes possession and estate howsoeuer, to his [...]ire in whom the fée rested it were not destroyed, but hee might bring a Mordancester, yet to his wi [...]e it was cleane adnihilate, whereas in the first case, the Fée and Franckten [...]ment not a whit impeached by the life of her which surrendred, were perfectly con [...] ­ned in the Baron to whom the Surrender was made. And if a r [...]uersion be granted to I. S. of certaine lands per fai [...] in pais, in which lands I. T. and his wi [...]e haue [...] ­state for life, which doe atturne and afterward surrender, there is no doubt but I S. his wife, if hee die, shall hau [...] Dower, though it bee indéed defeasible after death of T. K. if his wi [...]e suruiue and will vnd [...] the Surrend [...]r: whereas in our first case the Surrender is no way auoyd­able, but the heires wife shall pay rent according to her portion per Finch, [...]b [...]. 14. Ed. 4. fol. 6. Tenant by the courtes [...]e granted his estate to him in reuersion, rendring rent with clause of re-entrie for non payment, the Gran­tée married, the rent was arréere, tenant per le curte [...]e re-entred, hee in the reuersion died, his wife wa [...] [...]arred of Dower, for the Surr [...]nder might well bee vpon can­dition.

2. H. 4. fol. 22. In action of Dower it was pleaded, that the Demandants husband had nothing in the land▪ [...]ut by [...] done to the tenant, Iudgement si action▪ &c. The woman shewed how her husbands father, hauing two sonnes, leased his land to the eldest sonne, and to hi [...] wife for [...] of the [...]r liues, and that shee her selfe mar­ried [Page 269] with the youngest sonne, the eldest died, and his wife married with the tenant: the father died, the reuersion descended to the second sonne, being her husband, the to­nants wife died, and he kept possession, the Demandants husband did put him out, he re-entred, she prayed seifin, &c. Brooke thinketh she ought to haue trauersed the Dissei­sin. And if the Baron had not entred after the death of the eldest sonnes wife, she should not haue béene endowed: yet saith he, [...] if without entrie there had not beene a seising in Law, and whether▪ the Francktenement which the tenant had once in right of his wife [...]e determined in puncto by her death.

11. H. 4. 73. In action of Dower the Tenant saith, That N. gaue the land to the Baron and his first wife for terme of their liues, the remainder in taile to the tenant, remainder in Fée to the right heires of the Baron, his first wife di [...]d, he married this demandant and then hée died, and the tenant entred, &c. he demands Iudgement if of this estate she shall haue Dower.

This amounted plaine to ne vnques seisi que Dower la puit, but per Hanke & Thirn, that plea might not serue, by reason of the Fée simple in remainder▪ which might in­gender doubt [...]ulnesse a layes gentes. But where a lease was made to Baron for life, the reuers [...]on to the Lessor, or remainder to a stranger, there in action of Dower ne vnques [...]ei [...], [...]ec. i [...] 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 [...]oyntly with [...]. N. who is yet aliue, [...]udgement si Dower, &c. (and he was not compelled to shew whether he pleaded as [...]ertenant, or as Pernor of the rent) the▪ Demandant replyed, that I. N. had released all his right in the rent [...] her husband. But becauss▪ she shewed not the Déed of [...] ­ [...]ease, shee pleaded by aduisement of the C [...]urt seisie que Dower la puit: Quaere of the generall [...]ssue, against the [...]eciall matter.

[Page 270] 11. H. 4. 88. A woman shall haue Dower of rent [...] ­chased by her husband in fée, though hee die before d [...] of payment: And if it be pleaded against her Ne vnques f [...] que Dower, &c. she shall not shew the speciall matter, but say seisi que Dower la puit, and shew the matter i [...] [...] ­dence.

22. H. 6. 4 [...]. per Newton. In action of Dower the [...] ­nant plead Ioynt estate to the Baron, and I. N. in plein vy, whose estate he hath, the demandant shall not say [...] que dower, &c. vnlesse shee shew how, or trauerse that I. N. tooke nothing by she Feo [...]ment.

[...]9. H. 6. fol. 9. Against Dower the Tenant pleade [...] 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, s [...]ns c [...]o, that he was seised of any such estate que Dower la puit, the Iudges orderad that for the long continuance of the possession, and dought deslais g [...] ▪ all should be entred.

10. H. 6. 17. It is not a good plea against Dower [...]o say the Baron had nothing, but for terme of his life: for this amounts to the generall [...] Ne vnques seisi que Dower la puit: But to say the Baron had nothing, but [...] ­ment with A. in fée, and that A. suruiued, &c. This by [...] Fée simple confessed makes a good plea.

14. H. 6. 5, & 6. In action of Dower the tenant said [...]e was seised, till by the Baron disseised, vpon whom he re­entred, Iudgement, &c. the Demandant said, that before this tenant had any thing in the land, W. being seised in Fée, infeoffed her husband iss [...]t seisi, &c. and she pr [...] to be endowed, per Marti [...], the replication is not good, [...] this might [...]e before the Disseisin, and before couerture too, and if so, then the Baron Ne vnques seisi que Dower la pu [...]. That yée may yet perceiue further how [...] a point it is to take or relinquish this plea rightly, mar [...] well the case, 30. H. 8. Dyer, fol. 41. In a Writ of Dower the issue was Ne vnques seisi que Dower la puit: It was giuen in e [...]idence to the Inquest on the Deman­dants [Page 271] [...]ehal [...]e, that a feosment was made to the [...]aron in fee, & y ^• déed of feofment was shewed to the Court, it was answered that long time before the feofment, the Earon was seised to him and his first wife in speciall taile, and how afterward hee discontin [...]ed that, and takes backe an estate in fée simple to himselfe by [...]he [...] aforesaid, of which estate hee died seised so that the heire in speciall taile was remitted, and the second wife being now De­mandant, not dowable.

Mountague would haue demurred and dis [...]ssed the [...]ury, but the Iustices were cleare in opinion that the [...]u­ry ought to [...] for the Demandant, because their charge was only vpon the issue, viz. whether the Baron had euer [...]ei [...]in of such [...]state, that th [...] wife▪ might haue dower. And they were not to [...]g [...]d the Remitter, but onely to looke to the generall issue giuen them in charge. But if the spe­ [...]i [...]ll matter had [...] pleaded, the Demandant must n [...]d [...] haue [...]éene [...]arred; for if he which makes a feoffe­ment, with condition to r [...]nter for the condition broken, and then in a Writ of d [...]er brought by th [...]fe [...]s wi [...], hee will plead ne vnques [...]i [...] qu [...] dower, it shall be found against him, ▪Knigh [...]ly▪ therefore would haue the sp [...]iall matter found by the Iury, and a verdict at large, but the Iust [...]ces would not consent.

Yet [...]empore▪ Edw. 1. There was a case, that the Baron discontinued his wi [...]es [...], and died, his wife recouered against the discontinue, and he died, the disconti­nues wife brought a Writ of Dower against the wo­man Recou [...]rer, and she pleaded the generall issue ne vn­ques [...]eisi que dower la puit. All this matter was found [...]y [...]pe [...]iall ver [...], and [...]udgement gi [...]n vpon the issue, [...] foolishly [...]yn [...]d, that the Demandant should reco [...]er Dower, which shee should neuer haue done, had the [...] [...]éene good: S [...] and marke well this case: and 21. Edw. [...]. fol. 60. and the [...]se 28▪ A [...]s. pl. 4.

SECT. XIV. Recouerie against the husband.

14. H. 4. 33. IN action of Dower the Tenant pleaded a recouery in Assise against the husband, iudgement si action, &c. the Demandant said her husband was seised, &c. and married her, and infeofed the Tenant, and afterward disseised him, against whom the Tenant recouered in Assise, the Baron died, she prayed to bee in­dowed. The Tenant said he was seised, till by the Ba­ron disseised, against whom hee recouered by Assise sans c [...]o, that the Baron was seised before the disseisin, que dower la puit, the Demandant said, seised before the dis­seisen, que dower la puit.

Likewise 47. Edw. 3. 13. the Baron makes a feofment, and ousteth the feofée, the feofée recouers in assize, the ba­ron dieth now in a writ of Dower, if the feoffée plead re­couery in assize, the widdow cannot [...]al [...] the recouery, but she may plead that long time before it, &c. her husband was seised que dower la puit, and the Defendant contra.

12. H. 4. 20. 21. The Tenant said he brought a Forme­done against the husband, which Writ hanging, he shew­ed to the husband a d [...]ed of intailment, whereupon present­ly he rendred the land in p [...]is to the Tenant, which entred and▪ now au [...]rreth the entail [...]; Iudgement si action, Thi [...] said the Statute was si vir reddat aduersario suo de plen [...] Iusticiarii adiudicent mulieri dotem, but he and the whole Court agréed, that rendring in pais doth not defeat me [...] estates of them which were neither parties nor priuy to the rendring, and therefore they awarded the wo [...] should recouer Dower. Hanke said, fée simple might not be rendered without liuery and seisin, and where there is Lord and Tenant, the Tenant may not surrender to his Lord: Of falsifying of recoueries I haue spoken already.

Note, If land bee recouered in value against the hus­band, [Page 273] because of warranty made by his Ancestors, the widdow shall haue Dower of those lands notwithstanding: for if the Baron had ali [...]ned the land before voucher, it should not haue beene rendred in value: Consequently▪ therefore the womans title is more ancient than the vou­chers, which beginneth but the day of vouching. By F [...]zh in his Abridgem [...]nt Dower 129. And his [...]at [...]. [...]re. 150. d.

SECT. XV. Ne vnques accouple, &c.

SOmetime the vnlawfulnesse of marriage is pleaded in barre of Dower. As 39. Edw. 3. 15. the Tenant pleaded the Demandant was first married to A, and hée liuing she married B. of who [...]e dow [...]ent she claimeth, A. being still aliue, this was hold [...]n no good pleading, and therefore he added & [...]ss [...]t nient accouple in loyall matri­mony. The entry was only ne vnques accouple, &c. and a Writ awarded to the Bishop to certifie, but for all such pleas deduced at length by old Writers, as stand vpon the inualidity of marriage, I will ref [...]rre widdowes to that which is gone before of marriage and diuorce. The pleas also of vnder 9. yéeres of age of attainder, of non te­nure, ioyntenure, or seuerall tenure, I will not tarry on them. 39. Ed. 1. fol. 4. A woman brought Dower against tw [...] by seuerall precipes, and one of them prayed [...]yd of the other as parceners, so that it appeareth that seuerall tena [...]cie is a good plea in action of Dower▪ Contra in As­sise, Brooke 99.

SECT. XVI. Plea that t [...]e Baron is ye [...] aliue.

THe Writ de dote vnde nihil habet affords another e [...]ception against Dower, because it saith quond [...] viri sui, for though the fundamentall cause of dower be ma­trimony quoad le title, yet as to the possession a woman cannot claime it till matrimony be dissolued, therefore by Fitzherbert, if the Baron take habit of religion, the wife shall not be endowed, till the husband be dead re ve­ra, yet by Britton it is issuable, whether the Baron be en­tred into religion or no, and that issue shall be tried by the Ordinary, and iudged according to his certificat. [...]ut when the deforcer will barre Dower by [...]l [...]a that the hus­band is yet aliue, if the widdow reply he is dead, the proofe regularly belongs to the Plaintiffe. But if the Defen­dant say the husband is in plein vy & ceo & est prist auer­rer, he must proue his a [...]er [...]ent, and sometime [...]oth par­ties shall be heard to make their pr [...]e, which if it [...]e a [...]e strong on either [...]e, the De [...]andant may haue i [...]dg [...] ­ment o [...]eisi [...], finding surety, such as the Court, shall [...] ­ward, to res [...]ort, if h [...]r husband hereafter [...]ee brought into Court, the [...]a [...]d with the issues and pro [...]s ther [...], i [...] t [...]e interim reco [...]d. But if the matter be doubtfull, and the woma [...] [...]a [...]ot [...]e, such surety, the seisen shall r [...]e where i [...] is, and t [...] plea in suspence to be renewed p [...] ­summons as occasion shall serue, Britton fo. 25.

SECT. XVII. Iudgement.

IVdgement in a Writ of Dower is framed according to the substance of the title, and circumstance of the [Page 275] pleading. It is touched aboue when or how a woman shall recouer dammages by s [...]r [...]ise, that the husband dyed seised.

20. H [...]. [...].▪ The Statute o [...] Mo [...]on cap. 1. ordeineth concern [...]ng widdowes, q [...] post mo [...]tem v [...]o [...] expe [...] ­luntur de dotibus suis & dores s [...]os vel qua [...]enam habe­re non poss [...]n [...] [...]i [...]e placito. That whosoeuer shall d [...]force them of Dower [...]r [...]ar [...]ntino in any tenem [...]nts, whereof their husbands dyed seised, if they bee conui [...]ted de ini [...]o d [...]forci [...]me [...]to, they shall r [...]nder dammages to the wid­dowes, so much as the Dower should haue b [...]ne worth to them from the time of the husbands death, till the day where the widdowes recouer seisen of Dower p [...]r [...]udi­cium Cur [...]e. And the De [...]orcers shall [...]e [...] in [...]ise [...]icordia Reg [...]s neuer aw [...]it the lesse.

It is plaine now that the Baron dying s [...]ised, if the wife be deforced s [...]e shall recouer dammages, which are sometime comprised in the iudgement o [...]seisin, and some­time awarded [...] iudgem [...]nt [...]uer [...]nt or s [...]r [...]se vt s [...]p [...] ▪ But for all this Statute of M [...]to [...] de inius [...] deforciamento, a widdow shall not in all cases, recouer dammages by this dying sei [...]d; for if the Tenant plead touts temps prist, &c. and it be confessed or found to haue béene so, there i [...] now no fault in him [...] C [...]y [...] & Hill▪ [...]. H [...] ▪ 4. fol. 40. 41 [...]. foreuery h [...]re hath right to all the parts of hi [...] since stor [...] i [...]herita [...]e, [...]till the widdow will [...] indowed.

The case they say obiected, viz. that in a Writ of Co [...] ­s [...] touts [...]emps prist, will not excuse the Tenant of d [...]ages, is no▪ thing [...]like: for the O [...]cu [...]iour there hath not iust [...]itl [...], &c. Doctor and Student tels vs fol. 82. & 8 [...]. that though the husband dieth seised, if hi [...] widdow [...]oth not de [...]d Dower, s [...] shall recouer no da [...]ages, for it is a g [...] plea in a Writ of Dower [...] the Te­nants appeare the first day, to say touts temp [...] p [...]ist a yeel­d [...] Dower, if it be de [...]ded, and that plea [...]all [...]xcuse him of d [...]mmages, but i [...] he had made refus [...], he shall bée [Page 276] chargeable as well for dammages before the request as after. But in Sir Edward Cokes 4. Rep. 30. b. in Shawes Case, a woman recouered Dower by plaint in a Court Baron, and shee recouered dammages from the death of her husband because he died seised, and it doth not appeare that there was any request and refusall. I dare not say that it is Idemius, whether the heire or his feoffée plead his plea; though I cannot find [...] any pres [...]ent of damma­ges giuen vpon it being true, but often sur plea de tou [...]s temps pr [...]st, the iudgement ended thus, ni [...]ilde materia qui [...] venit primo edis, vide [...]. Ed. 4. fol. 7. I doe referre the Reader for his better instruction touching this matter, where hee shall finde variety of store, Sir Edward Cokes Comment. vpon Litleton fol. [...]2. b. The second Chapter of Merton giues power to all widdowes to make wils, as well of Corne growing vpon their dowry lands, as vpon their inheritance, saluis s [...]ru [...]s dominorum de [...]eodis, quae de do [...]ib [...] & aliis tenementis suis debentur. Britton séemeth to be taken with a Chanc [...]y spirit, vpon [...]ight of this Statute cap. 10 [...]. fol. [...]0. where he saith, that in eue­ry iudgement of seis [...] awarded of reasonable Dower, there ought to be a [...]orepris [...] or exception de ble [...]. c [...]s­saun [...]s & femes [...]auches, I will subioyne Bracton as an Ad­iutor, perhaps more orth [...]do [...], Dower, saith he, lib. 2▪ cap. 40▪ shall [...] assigned by the heire, if he [...]e of full age, or by the Lord in the heires name, if he be vnderage; And this within forty dayes after the husbands death, for otherwise occur [...]i [...] tempus & sequantur damna, nisi ratio­n [...]bilis causa excuset. This assignation must be made of the land, as it was by the husband, tilled or vntilled, with the fruits growing vpon it, allowing nothing to the heire or Executor for manuring, husbanding, or culture of it, for of old time it was obserued, that in what [...]s [...] or plight a woman had receiued her Dower, whether it [...] tilled or vntilled, shee must restore in like plight to the heire, &c. she might not make her Will of any corne gro [...] ­ing, or fruit not s [...]parated, from the francktenement. Sed [Page 277] nou [...] superueniente gratia sicut p [...]et de prouisionibus apud Merton: A woman may now ordeine her Testament of corne or fruit growing on her dowry, or, seuered growing, all is one. If the husband alien all his lands, and the Te­nants need not yéeld dower to the widdow as soone as shée demandeth it, if there bee iust cause of calling to warran­ty, one or more, successiuely till the heire bee vouched; And all that time the Tenants are not charged with dam­mages or cos [...]s. But when the heire entreth into war­ranty, if he doe not presently yeeld Dower, but stand out [...]bstinately, hee shall pay dammages, as much as dower m [...]ght haue béene worth to the woman from the time of the husbands death, to the day wherein shee hath iudge­ment, and the heire shall be amercered. In like manner is it, if a widdow without any assignation enter into her Dower that was certainly nominated to her ad ostium Ecclesiae, and which shee findeth empty at her husbands death, if she be eiected, or put to suit and delayes, she shall recouer dammages: So shall shee if shee be eiected the tenement assigned for quarentine during the forty dayes, or before dower assigned after the forty dayes. So like­wise is it if shée haue no place at all assigned to dwell in, vbi recli [...]et caput suum, &c. Thus Bracton: and thus long wee haue béene in the Writ de dote nihil vnde habet, which though it bee aptliest brought in the common place for the reason aboue declared, yet it may bee sued in the County before the Sheriffe per Iusticies, as saith Fitzher­bert in his na. bre. 148. But then it séemes it must bée re­moued by recordari facias, if the Tenant plead ne vnque accouple, &c. so the booke of Entries 223, 224. for in the base Court that issue cannot be tryed.

SECT. XVIII. The Writ de recto de dote.

THere is another Writ called the Writ of right of Dower, not because the former Writ hath any [...]or­ciousnesse in it, or claimeth vpon wrong title, but because this second Writ hath fewest ambages in pleading, and the forme of it is vpon pure right▪ Britton saith, there are cases wherein a woman is driuen to a Writ of right of dower pleadable in Court.

One is where a woman hath lost seism of her dower, as if shee were disseised, and after long peacable seism of the desseisor shee reentred with force, if the desseisor reco­uer against her by assise, she hath no remedy, but onely by Writ de recto de do [...]e, counting of her owne seism: A [...] ­other is where a woman demands lands or tenements which were her husbands, as part of her dower, when shee is seised of a surplus or greater part already: And the third is when shee demands something as appertenant [...] h [...]r dower. Fitzherbe [...] séemes not to allow Bracton [...] relation of vnde nihil habet in the other Writ, for hee [...]aith, where a woman that hath recouered part of her dower of one Tenant already, demands the re [...]nant against the same Tenant in the same Towne, because the words vnde nihil habet will not se [...]ue, this Writ de recto de do [...] is vsed of necessity, and is directed to the heires Gardian, if he be in ward, or to the heire himselfe, or to a deforcour: And some say, that a woman losing her dower by default in a praecipe quod reddat, she shall reco­uer by this Writ de recto de dote, by the opinion of some. But it séemes shée may haue a quod ei deforceat by equi­ty, the Statute W. 2. cap. 4. Whereas before shee had no [...]edy but by this Writ, or by action of deceipt, if shée were not summoned. Fitzherbert holdeth also, if a wo­man lose her dower by assise or other action tryed, she [...] [Page 279] may haue an attainte, but not this Writ de recto, for the land was assigned her once to hold in dower, and by that title she had possession, so that that title est execute, and so she ought to sue an action of her owne possession if shee bee deforced, and not demand dower againe. quaere.

The forme is: Praecipimus tibi vt plenum rectum [...] ­neas B. quae fuit vxor: C. de tertia parte decem acr [...]rum cum pertinentiis in D. quam cla [...]at tenere de te in dote ꝑ liberum seruitium tertiae partis vnius denarii per annum, &c. And this Writ may bee of the moity of land, accor­ding to the custome, &c. or of the profit [...] of an office. Fitz­herbert sets downe one for example; Rex Andreae salutem, we command you that you yéeld vnto B. which was wife of [...]. her full right and third part of the profits issuing of the Custody of Westm. Abbay goale, with a third part of thrée Acres a [...]rable, of one rood of meadow, of bread, meat, and bottles of ale weekly, &c. which shee claimeth as belonging to the francktenement, which shee holds of you in dower, &c. by frée seruice, and bearing a third part of cost and charge towards the kéeping the goale and gate of the Abbey aforesaid, &c. whereof you your selfe deforce her: hereby appeareth plaine that a woman deforced from any thing appendant, or appertenant to dower assigned her, may haue remedy by Writ de recto de dote. The old na. bre. notes that of a Bailiwicke, or any such office in fée, which a woman may execute her selfe, or make substi­stute or deputy of it, she shall haue dower, but not of Stew­ardship or Marshalship of England.

And of a common of beasts without number a woman is not dowable, 9. H. 7. 4. & Park. Sect. 341. And of an vse before the Statute of 27. Hen. 8. of vses shee was not dowable, as it is said in Vernons ca. Sir Edward Cokes 4. Rep. fol. 1. And of an annuity shall bee no dower, but of prediall tithes dower shalbe, as appeares by the Countesse of Oxfords Case, cited in Harpurs Case in Sir Edw. Cokes 11. Rep. fo. 256.

The paroll or plea is sometimes remoued in this [Page 280] Action; As if the Writ be to the husbands heire, which heire being himselfe Tenant of the Land will not do [...] right: the Demandant may haue out a pone▪ to remoue the matter straightway from the heires Court into the Common place, but a tolt to remoue it first into the County, for the originall is, nisi fece [...]s vicecomes faciet, and from thence it may bée remoued by the Plaintiffe to the Common place by a pone without any cause mentio­ned in the Writ. But the Tenant in a droit patent can­not remoue the Plea out of the County without shewing case in the pone; yet as well in a Writ de recto de dote as in a Writ of droit patent the tenant may remoue the plea, shewing cause, and that immediatly out of the Lords Court, into the Common place by recordare: and so cut of the heires Court, quaere.

If a man se [...]l all his land and dye, so that the [...]eire hath nothing by discent, now this Writ must be directed to the feo [...]ee, of whom the widdow when shee is indowed mus [...] hold, as of her Lord by [...]ealty. But if before the Sta­tute of quia Emptores terrarum, & [...]. if the husband [...] infeofed a stranger of part of his Lands to hold of the hus­band, &c. a Writ of right of Dower must haue béene [...]o the heire, in whose Court the matter was to bée pur [...]ue [...], by reason of the remaining Seignory.

So [...] it if at thi [...] day the Baron giu [...] part of his Ma­nor to hold in tayle: But if a man giue away all his [...]and to bee holden of him in tayle, and dye, now the Writ de recto de dot [...] must bee against the donée directed to the Sheriffe retournable in the Common place, for the heire hauing only a S [...]gniory in grosse can kéepe no Court. An [...] in the Writ shall bee inserted quia B. capitalis dominus feodi remisit nobis curiam suam.

If the Baron hauing leased all his land [...] for terme of life d [...], &c. And though there be not in Chancerie, or any where els [...], any matter wherby to proue the Lords remis­sion of the Court: yet if the Lord haue not any demes [...] whereupon to hold a Court, he can haue none action a­gainst [Page 281] the Demandant for the [...]alse supp [...]sall, or [...]urmise: nor let nor hinder the procéedings in Common place.

But if he had a Court to hold pl [...]a in, and did not remit his Court to the King, he may ha [...] prohibition to the Iu­stices, commanding the [...] not to pro [...]éed any further. But saith Nat. Breu. quaere of that matter. And s [...]e Plowd. fol. 74. [...]. where the Lord hath a Court, and he will remit his Court, his Certificate must bée to the King in his Chanceri [...], and thereupon a Writ of right shall be retur­nable in the Court of Common P [...]ea [...].

In the Common Place, when the plea is remoued thi­ther, your processe is Grand c [...]pe, and Petit cape: In the Lords, or heires Court is vsed fir [...] a precept in nature of s [...]mm [...], and of a Grand cape, and Petit cape. And note that in this writ if [...] [...] appeare, they neuer procéed to grand [...], or tr [...]ll by battaile (from which the [...] is ex [...]p [...]ed) and so [...]quently here is neuer per Br [...]cton any E [...]soine de mal [...] lecti. But the te­nant may [...]h his [...], if [...] haue any. And after the woman hath ma [...] h [...] [...] or dem [...] pursuing h [...]r writ, the tenant may in [...], say that [...]ee rendred she land to hi [...] of h [...]r owne accord: Or if she said he dis­seised her of her Dower: he may plea [...] [...] Relege, saith Bracton, Et po [...]ri [...] [...]ritas per patriam d [...]clarari▪

SECT. XIX. What thing [...] shall be assigned in Do [...], &c.

WHen Iudgement is giuen in curia regis against the tenant, either vpon his default at the Grand cape returned, or vpon confession, or issue tried, the chiefe sub­stance of the entrie is no more but con [...]ider [...]tum est vt re­ [...]up [...] [...] de [...] p [...]rte, and then either presently, or after ward, [...] the [...] of the demandant, there is awarded a writ, [...] de tertia parte, [Page 282] to the Sheriffe, who must make returne, how he hath exe­cuted the Kings commandement. But I finde by Dyer, 11. Eliz. fol. 278. that an Alias habere fac▪ shall not be a­warded after the Sheriffe hath executed the Formedon; the case was that the Sheriffe vpon the Habere fac', &c. profer seism by meanes of a third part, and the Deman­dant refuse, yet by Harpur and Dyer her entrie was after­wards lawfull, for the certaintie appeared, and they that an Alias habere fac' by no president shal be granted, and as images of this course must be the procéedings in all bas [...] Courts which hold of Dower.

So that it is now more than sufficiently perceiued, that the third part of euerie mans inheritance is assignable for Dower, by the husbands heire, or the heires Gardian, or by the Feoffée or Feoffées of the husband, or heire, or by some other tenant, or tenants, or by the Chancellor, Es­cheator, or Viscount. But it ought to appeare yet m [...]re fully, how these thrée parts shall be assigned, and wherein▪ Sée Dyer, 2. Eliz. 187. In Dower against eight, two con­fesse the action, and the rest plead in [...]arre, sir had iudge­ment for a third part of two in eight diuided, and after­ward vpon verdict against the sir, iudgement was of sir part [...] in eight diuided.

Parcell of any thing, whereof a woman may rightly claime Dower, is assignable, &c. But other lands than those whereof she is by title dowable, or not assignable.

Acceptance of a greater or lesse part than the third, in name of Dower of all the franktenement, which the Ba­ron had, bindeth a woman. But assignment of all the land which the Baron had is not good. But I referre you to Sir Edw. Cokes Commentarie vpon Little [...]on, fol. 346. how Assignment is to be made, and what Assignment is good, where it is said eight things are obseruable to a perfect Assignment of Dower.

The heire is not bound to assigne any widdow Dower in his capitall Messuage, or in any part thereof. But As­signment of such house in allowance of all other lands, or [Page 283] of other lands whereof she is dowable, for the house is good when it is accepted, And Assignment of a chamber in the husbands dwelling house, when other lands are not, whereof to make assignation is good, being accepted. But a woman is not bound to accept this kinde of Dower, ex­cept she list: Arent may be assigned her out of the house, and this shall be good sans fait. Like wise it is of Common, of Estouers, of Pasture assigned in allowance of lands, or other things whereof a woman is dowable. And lands in Wales may be assigned for a whole Dower: and thereby [...] woman may be excluded from her Dower in England. If vpon Iudgement of Dower, and before execution, the tenant assigne a rent per paroll, issuing out of the land, whereof the Iudgement was giuen, and the woman ac­cepts it in stead of Dower, th [...] i [...] a good barre in a Scire facias, and it is distrainable of common right▪ but if the Assignment had béene by p [...]roll of other lan [...]s, than of such as wherein the woman might haue claimed Dower, it would not haue barred execution, because it was not pursuant to the first Iudgement, Dyer, 1. Mar. fol. 91. It is said in Sir Edw. Cok [...] 4. Rep. fol. 1. in V [...]rnons case, that at the Common Law no collaterall satisfaction or recompence made to a woman in satisfaction of her Dower, was any barre of her Dower, for no title of Fran [...]kte [...]ment or inheritance may be barred by any collaterall satisfaction.

When the Writ of [...] comes to the Sheriffe, he shal [...] deli [...]r [...] [...] [...] and bounds, but this rule cannot stretch to things not boundable. Therefore if Dower be demanded or recouered of thrée shillings rent, assignation of one shilling is sufficient: And when dower of a [...] or will is demanded, a third part of the pro [...]t, &c, shall [...] assigned, and it [...] [...] good Indowment without certainti [...]. Et [...]l [...] free▪ & serra contri­b [...]i [...]. And so dower of a villein [...], either the third▪ dayes worke, or euerie third wéek [...] ▪ or moneth. And so of the profit of th [...] thir [...] part of Stallage, of the third▪ part of [Page 284] the profits of a Faire, and so of the third pa [...]t of the pro [...]t of a Parke, and of a Doue house, and so of the third part of a Piscarie, viz. Pertertium pisc [...]m, veliactum [...]er [...]iu [...] [...]e [...]is, &c.

SECT. XX. New Indowment.

IF that which a wom [...] holdeth i [...] dower [...] lawfully against her will, and without her fault [...] and e [...]icted, &c. she shall be new indowed of the other lands, whereof the [...]ate which her husband had remaines still [...]ndefeated, for example: The Baron seised of thr [...] Acres dies, the wi [...]dow is indowed of one Acre, which he gained by [...], if she be [...]sted she shall be [...]dowed of the other two Acres. Tenant in taile of thr [...] Acre [...], discontinueth in fée, the Discontinuée marrieth, and dieth, his wife recouereth dower against his heire; the issue in taile brings a Formedon against the widdow, sh [...] vouch­eth the heire, he enters into Warrantie, loseth, and the demandant hath execution, though the [...]state which th [...] heire hath in the other two Acres remaining be defeas [...] ­ble, yet the woman shall be newly indowed of them, till they be defeated: yea, though the Discontinu [...] his heire haue aliened, the widdow shall bée newly indowed not­withstanding. Againe, a man seised of two Acres in fée, within one Countie, takes a wife, enfeoffeth a stranger of one Acre with Warrantie, and dying hauing issue a sonn [...] which entreth into th [...] other Acre, the wife brings a writ of Dower against the Feoff [...], which [...]oucheth the heire, and the heire lo [...]h [...] default, so that the Demandant hath Iudgement conditionall, and execution against him, to recouer of the land which he hath by discent within the same Countie where the Writ was broug [...]t. If now the Vouch [...] [...] restored by a Writ of deceipt to the lan [...] [Page 285] which the woman recouered, shée shall haue Sci [...] facias against the Feoff [...] that was tenant in her first Writ, to be newly endowed of the other Acre. And if he haue ther­of in [...]eoff [...]d a stranger, yet this stranger shall be bound by the first Iudgement in dower that was conditionall.

If a woman that is dowable take a second husband, and be endowed by his assent per metes & bounds, if now the Baron discontinue in fée, and die, the wife may haue a C [...] in vit [...]: and Perkins leaues it not cleane out of doubt, whether she may not be new endowed of such other posses­si [...]ns, as were her husbands during couerture, because the endowment was not by Writ.

This new endowment is when the euiction is loyall, & m [...]g [...] [...] t [...]st del feme; for when it i [...] otherwise, she must recouer the land againe 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, Q [...] [...]l ne po [...]n [...]s deman­der▪ for [...]no 12. huius [...]gis, a sine was leuied of the said Mannor betwixt I. and E. and the tenant sued Sc [...] 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, b [...] assignment of W. C. & [...] [...]d [...] d [...] l [...] ▪ &c. for another part, she claimed for terme of [...]er life, by lease from W. C▪ of whom likewise shee prayed aid, and had it granted. C▪ came in by proc [...]sse, and ioyning in aid, pleaded a Feoffment made to him­selfe in fée, by L. the baron, sonne and heire to I. W. whereunto the tenant pleaded R [...]ns pass [...] per l [...] fait, and the processe c [...]ntinued against the Iury till a day certaine, at which day C. made default, and this demandant main­tained the iss [...] which was found against the now deman­dant, viz. that Rie [...]s passa per le fait, and execution awar­ded for the plaintiffe in the Scire fac. Iudgeme [...]t si [...]count [...]r ce [...] recoue [...]e a quel el fuit party, el po [...]t nens demander, and the demandant demurred.

[Page 286]Her pretence was, that by the reco [...]erie she was re­mitted to her action paramont, because the recouerie af­firmes her husbands possession. But the better opinion was, that wh [...]n her Dower once lawfully ass [...]gned was recouered against her, she had here no remedy, but by ex­rour or attaint, for a writ of right shee might not haue: But if in the Scir [...] faci [...]s shée had alleaged to that part which she claimed in Dower, that she h [...]ld it in Dower of the Assignment of W. C. Prist da [...]tender [...] a q [...]e le co [...]rt vo [...] [...] g [...]rder, she had saued her estate by protestation, and the reuersion might h [...]ue héene iudged to him which had right, whereas pleading as she did, some thought sh [...] had forfeited h [...] Dower, but that was denyed by Tresi­li [...]n. Belk [...]ap, who said, that when one is [...] per tort, as i [...] the Disse [...]sée or his heirs [...]nter vpon him which is in by discen [...], or if a widdow enter vpon a discontin [...] of her husband, and then vpon issue taken sur seisin, or disseisi [...], it is found for the plaintiffe, the tenant is remitted to his Action paramo [...], Briefe [...] ▪ [...]tri [...] in the one case, and in the other a Cu [...] in v [...]a. But if a recouerie bée against a Tenant that hath rightfull possession, the rem [...]die must be by errours, attaint, or writ of right. And therefore in the last cases, if the tenants had pleaded [...] release, or other matter, which might e [...]tinct the right: if it had passed a­gain [...] them▪ their re [...]edy must haue béene by writ of right, p [...] Clop [...]on, qu [...]e.

Wich. said, if a recouerie be had against the Baron vpon a delatory plea, as no [...]t [...]nure mis [...]osm [...] 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 mann [...]r aga [...] 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 [...]he ought to hold in Dower, the heire when hee commeth to full age, may haue a writ D [...] [...]m [...]nsur [...]tione do [...]is against her, and the Surplu [...] 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 w [...] ­man indowed, the heire may haue a writ of Admeasure­ment b [...] the same Statute, Custodi de cae [...]o conced [...]t [...] breue de admensuratione dotis, nec per sect [...] custodis si fictae & per collusionem sequ [...]tur v [...]sus mul [...]em tenentem in dot [...]m, pr [...]ludat [...] hae [...] cum ad ae [...]m p [...]u [...]neri [...] [...]d [...] admensu [...]dom, &c.

If the plea be in the Co [...]tie, the Plaintiffe may re­moue it without cause, and the Defendant may remoue it with [...]e [...]hewed in the writ▪ as in a Repleuin. And when the writ is r [...]ed by Po [...] into the Common place, the pro [...]e i [...] summons, attachment and distr [...]sse, &c. accor­ding to the Statute. Then the Sheriffe cannot make ad­measurement, but he shall extend the land particularly, and returning the Extent [...]o the Common place, the Iustices shall admeasure Dower. Note if the Gardian assigne Dower excessiue, and then grant ouer his estate, his assigne shall neuer haue a writ of admeasurement. Likewise if the heire vnder age assigne Dower, which his Gardian may admeasure when he hath entred, &c. but [Page 288] 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 ind [...]wed make any improuement of the [...]and, so that it becomes of farre g [...]eater value than it was of at the time of the Assignement, there lieth no admea­suring vpon this improuement. And Bracton saith, No [...] erit estim [...]nda meliora [...]o mu [...]ris quā fecit in dore suapost assignationem, tempus e [...]im assignationis dotis erit spectan­dum. But if this improuement bee by casualty i [...] some myne of c [...]ale or lead, which had béene formerly found and occupied in the husbands time, the matter is some­what doubtfull. But sée Sir Edward Cokes 5. Rep. fol. 12. a. in Saunders cap. q̄ sc. That if the myne appeared at the time of the ad ass [...]gnem [...]nt admeasurement lieth.

As for new mynes, a widdow may not make or dig any that is waste, thus farre Fitzherbert. Briton cap. 113. and Bracton lib. 4. cap. 17. shew with what circumstance admeasurement shalbe made by the vicount surserement de probes homes praesentes & per bo [...]e & legale extent. They say, that the amputation is not onely of excesse and super­ [...]uity by this Writ of admeasurement, but also of that which [...]ught not to bee assigned, admensuratio debet esse, [...]am de indebito, quam de superfl [...]o.

And therefore if a Castell or head of a Barrony were assigned in Dower by the Gard [...]an without any necessi­ty: the heire may haue this Writ: for enter hee cannot, say they. They shew also what plea a woman may haue against admeasurement, viz. that the Plaintiffe himselfe made the assignation, or confirmed or allowed it being of [...]ull age, &c.

SECT. XXII. The charge of Dower.

ADmitting the Dower assigned to be both for quali­ty and quantity iust, there is yet to be declared with what immunity a woman shall hold her Dower. First Bracton saith, Si peculia ma [...]iti sufficiant ad solutionem te­nentur, sed vxori dos sua deonerabitur. Et heres defendere dotem & warrantizare eam mulieri debet & pro ea sequi comitatus hundreda & curia dominorum, vt viduatae do­mui suae intendat & nutritioni suorum (si qui fuerint) pue­rorum. If the husbands goods bee not sufficient for pay­ment of his debts, the heire must discharge Dower of the burden, &c. for he is the widd [...]wes warrant of her Dower, and ought to▪ follow for her, County Court, Court léet, and hundred, &c. That shée may sée to her house, and nurture of her children.

Fitzherbert in his Writ of Admeasurement, first affir­mes, that a woman shall not be distreined in her Dower, in her Inheritance, or in the ioynt purchased lands to her or her husband, for her husbands debts. The Writ which he sets downe for remedy, saith almost as much, R [...]x Vi­cicounti, &c. cum secundum legem & consuetudinem regni angliae, mulieres in terris & tenementis quae ten [...]nt in do­tem de dono virorum, vel quae sunt de ipsarum haereditate, vel quae sibi quesiuerint, pro debitis virorum distringi non debent, &c.

And in some Writs is this Clause, Dum tamen haere­des vel Executores testamenti ipsius, &c. ad debi [...]a illa red­denda nobis sufficiant. But it séemes reasonable, saith Fitzherbert, that a woman shall not hee distreined in her Inheritance for the Kings debts, neither in her Dower or Ioynt purchased lands which her husband, if her title commenced before her husband became debtor, and there is a Writ in the register importing no lesse, yea hee af­foord [...] it to be good reason that lands purchased by Baron [Page 290] 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 [Page 291] 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, re [...]ing [...]ij. d. rent, &c. and the do [...]ce hauing a wife and issue by her, [...]iscontinueth in fee, and dieth, now though the wife recouer Dower, and haue exe­cution of it against the discontinues, yet she shall not be at­tendant to him, for h [...]s is not chargeable as the Baron was, because the Dowers [...]uowry resteth of [...]ere [...] vpon the issue, to whom for all that the widdow shall not bee attend [...]t, till hee haue recontinued the [...] resayle, quaere tamen, saith Perkins. If the Tenant whilst hee It­ [...] held of his Lord by fealty, and a [...] of forty shillings price, the Tenants widdow when shée is endowed shall bee attendant by xii [...]. [...]. iiij. [...]c. [...] she tenure were [Page 292] by fealty, and a nag without expresse value, shée shall bée Attendant by a nag euery▪third yéere. Perkins fo. 84. [...].

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, [Page 293] 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 [...]id as well as if it were made of some higher estate, as it appeares by Perkins chap. D [...]ses▪ and Plowd. 419 in Bra [...]g [...] case. And the Law is all one in all respects, where the Baron and Feme are possessed of lease for yeares by int [...]e [...]ties that if the estate be made to them during their couerture, or by moyties that is to them ioyntly before marriage) or where the Baron is possessed of a lease iure vxoris. Sée Dame Ha [...] ▪ 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. 4 [...]8 in Bracebridges case, for shee is re­mitted. And if Feine Gardian in Socrage be, and her Baron alienateth it and die, the wife may enter. And sée Dyer, 8. Eliz. 25▪ the same is of Coppy holds per [...]der, to the vse of a Feme for yeares, & the wife die, the estate rests in the husband without a custome be to the contrary. If an husband be possest of a terme for yeares in the right of his wife, and Iudgement is had against him, and the terme is extended, and the husband dieth, it shall be good against the wife, as appeares by Sir Edw. Cokes 8 Rep. 96. in Ma [...]ing case. And see the 9. case of 50 E. 3. lib. Ass. note Sir Edw. Cokes Rep. in [...]ulwoods case, and Plowd. 26 [...] ▪ in Damè Hales cas [...], 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. Lampe [...]s case. And if a woman hath a lease for yeares as Execut [...]i [...], and takes an husband, hée may sell it per [...]o [...] curi [...] pr [...]r Fitzherbert, Dyer [...]8. H. 8. 7. A woman hath▪ a terme [...]trir, the husband s [...] wits to [...]v [...]n which a moytie is awarded to [Page 294] 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 d [...]tinet, and not the spe­ciall matter, Iudgement was against him, Dyer, 2. E [...]. 183. & 21. H. 7. 6. agrees.

If the husband discontinue the Franck tenement of his wife, the apt instrument whereby to recouer it, when she is a widdow is a Cu [...] vita: Which, though it be not so necessarie and néedfull, perhaps, since the Statute of 32. which disableth husbands to discontinue as it was before, yet I. perceiue not by what reason the vse of it is forbid­den, euen in those cases where the entrie is [...]ongeable, for the vertue of the Writ is not decayed by lawfulnesse of the entrie, neither doth free libertie to take possession, prohibit the resort to Iustice and action at Law, when perhaps a woman cannot, or dares not enter.

By Common Law therefore if the Baron alien in fée, the heritage of his wife or her Francktenement, by Feoffment or by Demise, for terme of life, or in taile, she may haue remedy after his decease by this Writ. Of which the generall forme is, Praecipe A. quod [...]d [...] B [...] quae fuit vxor C [...]um messuagium [...], quod clamat, esse ius, & hereditat▪ suam. Et in▪ quod A. no [...] ha­bet ingressum, nisi per C. quondam virum, &c▪ qui illud [...] de [...]isit, & cui in vita contradicere non pot [...]. Th [...] may be in the per [...]ui and post, and some varietie. it hath according to title of the Demandant, as Qu [...] [...] clamat [...] ius haereditatem, or Vt ius & maritagium, or Vt ius ex [...]on [...] I. qui ipsa [...] B. &C. virum suum feofavit, & in quo, &c. or Quam clamat tenere sibi, & haeredibusde corpore suo, & de [...] C. quondam▪ viri sui ex [...]untibus [...] d [...] ne I. or Quam clamat ess [...] dotem suam ex dono E. pri [...] vel secundi, &c.

If Baron and Feme lose the wiues land [...] by de [...], shée may haue this Writ when shee is a widdow. But if the wiues lands be recouered in a Cessauit, per [...]de [...] [...] Baron▪ and Feme, vpon a C [...] during esp [...] [Page 295] shall neuer haue a Cu [...] 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 co [...]e [...]ure, the Cui in vita is of the in [...]e, and being brought of a inoytie, the Writ is not good, 39. H. 6. 45. for in the one case they are seised by inoyties, in the other by intireties.

A woman by excepting lands, which she and her late husband tooke in exchange, or by excepting rent reserued out of it, shall be b [...]ed in a Cui in vita, or any other acti­on, Fitzherbert, and [...]6. Ed. 4. 8. Idem ius, if shée accept parcell [...] 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 con̄clusiou, but a Re­mitter; otherwise if it be by Deed or Record. If a man giue lands to a woman to marrie with him, and after e­spousals he alieneth the same land and dieth, she may haue a Cui in vita. And note, that the gift or demise alleaged in a Cui in vita is trauersable. Thus much Fitzherbert.

48. Ed. 3. 8. In a Cui in vita, claiming to hold sibi & [...] de corpore, without shewing of whose donati­on▪ the [...] pleaded to the Writ, and it was abated. But in a Quod [...] de [...], the Demandant needs not shew by who [...]e gift she claimeth.

49. Ed. 3. fol. [...]9▪ The Writ was, Qua [...] sib [...] W. N., The tenant said, she neuer had any [...]ing of the gift of W. N. per Bel­knap, [Page 296] 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 Qu [...]m elama [...] vt ius & haere [...]a [...]em: though she purchased the lands, & adior [...]at [...]r. The latter point is affirmed, 7. H. 4. fol 5 & per Littleton accorded: but for the first, vide 50. Ed. [...]. fol. 6. in a Cui in vi [...]a quam cl [...]mat [...]ener [...] [...]x dimissione per termino vi [...]ae [...]. N. it was admitted vpon argument: a good answer per [...] u [...]iam, for where one maketh title it [...]ught to be true.

And there finde sur release made to Baron and F [...]me, and to the herres of the baron by I. N. was holden no de­mise, for it must be supposed the baron and feme were in possession tempore finis: And Persy said it had béene ad­iudged, if a woman claimed in her Writ ad termi [...]um vi­tae, if it were found she had estate taile, the Writ should abate.

So likewise if a woman claime by lease for terme of life per A. and it was sound that A. made no lease: shée had now no estate, and consequently hath none action. Likewise (said Kirton) if in Ass [...]ze of nouell disseism, the plaintiffe make his title by f [...]off [...]nt of A. and is found that A. inf [...]offed him not, but B. did▪ hée shall bee barred in the Assize, for where a man maketh his title vpon a point which is bo [...]nd against him, it cannot be inten [...] 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 su [...] ex d [...]no I. which infeoffed t [...] [...] Demandant and her fate husband, with declaration, that they were seised as of Franktenement, and l [...]e les explees, as te [...]ants for life, &c. Pri [...]o [...] said, That in cases speciall this▪ Writ ought to make mention of whose gift, lease, or demise, the Demandant claimeth, as, Ad [...]erminum vitae ex dono I. S. or, Sibi & haeredibus ex dono I. S. But in demand of Fée [...]nple it is enough to say, Q [...]m [...]l [...]m [...]t vt [...]us & hae­ [...]ditatem, without shewing by whose gift or fe [...]ffment.

7. H. 7. fol. 2. If this Writ [...]e agains [...] [...]aron and feme [Page 297] for lands holden in the wiues right, it must bee in quod vxor ingressa est per I. N. & non quod vir & v [...]or ingressi sunt per I. N.

S [...]CT. XXIV. west 2. Case 3.

2. E [...]. 4. fo [...]. 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. cas [...] [...] i [...], Q [...]ando vir amiserit per defalcum tenementum quod [...]uit in vxoris suae, duru [...] fuit quod vxor post mor­tem viri non habu [...]rit, aliud recup [...]rare, quam per breue de recto propter quod D [...]minus Rex [...]atuit, vt mulier post mor [...]in [...]iri ha [...]eat r [...]p [...]ra [...] p [...]n bre [...]ede ingressu cui [...]a in vita▪ &c. But in this case, if the ten [...] can proue that hee had right on his side when hee recouered: Mu [...]er [...]i [...]il capit per [...]reue [...]. N [...]t [...] also by the way, that this heat w [...]s. Si vir se absentaveri [...], & [...]luerit [...] vxoris [...] defend [...]re v [...]d si in vlta vxoris redd [...] [...] [...] ▪ [...] v [...] an [...] [...] para [...]a [...] de [...] [...]dete▪ [...] to further for recoue­ries If Iudgement of [...]or eiudger be giuen against Baron and F [...]uie, this is not void as soone as the Ba [...]on is dead, but v [...]ydable by error, for the woman cannot haue a Cui in vita, [...] fol. 2 [...]

A [...] [...]y [...] [...] [...] alienation [...] and therefore vpon su [...] a [...]coverie, as soone [...] the husband is dead, the woman may haue a C [...] [...] by the Common▪ Law, 4▪ Ed. 2. [...]rook [...] ▪ [...] vit [...] ▪ 18.

If a r [...]co [...]eri [...] be [...] by [...] W [...] of wa [...]e, th [...] w [...]e cannot [...]u [...] [...] [...] either because the reco­uerie [Page 298] is not méerely by default▪ or else because the [...] of waste hath no demand of land, quaere if shée shall haue a Quod e [...] de [...]o [...]ceat, 9. Ed. 4. 16. If Baron and Feme be impleaded, by one which hath good title, and the Baron confesse the action, the woman hath no remedie. Yet the Statute is that vpon rendring by the Baron, the wife may be receiued, [...]. But if Baron and Feme be recei­ued vpon default of tenant for life, where the reuersi [...]n is in the wife, the Baron cannot confesse the action, for hée must be [...] ▪ Ad ius [...] def [...]endum, 7. Ed. 4. 17.

SECT. XXV. The Sur [...]ui in vita.

IF she which hath cause to bring a Cui in vita, of Fée sim­ple lands, die before she hath sued, &c. her heire shall haue [...] Sur [...] in vita. But if the wiues lands, which the hus­band aliened, were in state of Fee taile, and the wife ne­ [...] [...] her heire must sue a [...] in dis [...]onder, and not a [...] [...] [...], for though both these [...] hée the children of the ancient Common Law, and were before West 2. Yea, and this latter Writ was maintainable for lands giuen to the mother in francke marriage, or to the heires of her body (which at the first was Fé [...] [...]pte) yet when [...] made [...] [...] taile, it did also expressely set downe [...] Writ, whereby the heire should recouer such estates. The Sur c [...]n vita, for it is no [...]ore but Praecipe quod [...] &c. quod [...] esse i [...] & hae [...] ditatē su [...], in quod non habuit ingressum nisi per E [...] and so in the Cui, o [...] in the [...] And the A [...]t and Née [...] [...] in it vpon alienatio [...] made by the husband of their common Ancestor, or vpon recouerie had against [...] and her. If a second husband alienhis wiues Fée si [...]ple land [...] ▪ and she dieth, the issue by her first husband [...] [...]u [...] [...] Sur cui in [...] [...] these [...]nd husband still liuing, if hée were [Page 299] neuer intituled to be T [...]nant by the Curt [...]sie. But if he were intituled by the Curtesie, the A [...]tion is stayed, so leng as he liueth: And this Writ lyeth of a V [...] Mi. 21. Edw. 3.

44. Edw. 3. 4 & 5. A man [...]eised in right of his wife dis­continued, and after diuers alienations, hee repurchased the lands to himselfe, his wife died, the heire brought a [...]ur cui in vita against him: praecipe W. [...]. quod reddar, &c. cui contradicere non potuit: exception against the writ, because it was not by another na [...]e, but it was dis­alowed, and the writ awarded good. If the Baron alien his wiues see simple with warranty▪ and lea [...]ing asse [...] to discend in fée, he and his wife dye, and the h [...]ire alieneth the asse [...]s and dieth, his heire shall be barred in a sur cui in vi [...]a▪ But if an heire intail [...] ▪ alien the asse [...]s and dye, his issue shall not be barred.

SECT. XXIV. The [...] d [...]f [...]rciat.

THe quod ej deforciat, though it be not méerly a wo­mans Writ, yet perhaps it comes not more [...]ptly into consideration any where than in this place, after the cui in vita.

If Tenant in [...]aile, or Te [...] in Dower, or T [...]nant per Courcesie▪ or Tenant for t [...]me of life, [...]e their la [...] by default in any [...] ▪ quod redda [...] 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 [...] And [...] the [...] vpon [...] the Writ lyeth against the [...] and his heires, in which case [...] particular Tenant was without remedy at the Common law for a writ of right hee could not haue. The Statute having [...]irst appointed [...] wo­man shall recouer Dower, where the husband [...] his [...] [Page 300] by de [...]ault. viz. by writ of Dower (in which the T [...]nant must not plead the iudgement alone, but he m [...]st also pr [...]e 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 the [...]ues lost by default, in which cases when it is come to that, that the Tenant m [...]st pro [...]e h [...]s right, the Demandants, which cannot an [...]wer witho [...]t them in the reuersion, may vouch them [...] [...]i [...] flent [...]ene [...]tes in priori br [...]. And so the Tenant [...]it loco actoris, and if the Action were [...] Writ of right, they may procéed to the grand a [...]ise or battaile; And furt [...]er, C [...]m mulier ius non habens impete [...] bre [...]e de dote super custodem, & cu­stos per fa [...]orem mulieris dotem reddiderit vel defaltam fecerit, vel placitum i [...]ct pe [...] coll [...]sionem defenderit, vt dos fuerit mulieri adiudicata: prouisum est quod cum ad aetatem ve [...]e [...]t haeres habeat actionem petendi seis [...]am [...]ntecessoris sui, &c. it a tamen vt salua sit mulie [...]i exceptio quod ius h [...]be [...]t in dote quod si ostenderit recedat qui [...]a & sit haeres in misericordia & grauiter amerci [...]tur secundū discretionem Iustie [...] ▪ Then to the quod [...]i deforciat. Si haeres vel alius, de dore sua implacitaverit muli [...]r [...]m, & si dotem suam per defaultam amisserit, fi [...] ei tale breue: praecipe A. quod iuste redda [...] B. qui fuit vxor C. vnum messuagium cum pertinent [...]s in N. quod clamat [...]ss [...] ratio­nabilem dotem, vel de rationabil [...] dote sua & quod idem A. in [...]uste ei defo [...]cia [...] ▪ So is [...]zherber [...] ▪ but by the old [...]. b [...]. it must not be called an i [...]u [...] for [...]ing. Ps. car le poll. ini [...]ste non habetur in Stat [...]to, which is true, ad istud bre­ue habeat tenens exceptionem ad osten de [...] du [...] quod mu­lie [...] i [...] non habeat in do [...] quod si [...] [...]nd at, reced a [...] quie­tus▪ &c. Last of all because vntill this time the Law [...] no remedy vpon lo [...]e by default, [...] ▪ only a writ of right, which serued not for them, that [...]ld not speake de mero iure, viz. Tenants for life, in [...] ▪ marriage, or in taile; [...]he [...] to a [...]oid that proiudi [...]e, g [...]es them likewi [...]e their [...] writ [...] of quo [...] [...] defo [...], [...] according [Page 301] 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 e [...] deforciat, quam cla­mat tenere per l [...]gem 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 e [...] 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 deforcea [...] 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 [...]i defor [...]e [...]t, & vide Dod. [Page 302] 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 question [...] of ad [...]iration they séeme plainly to re­iect both opinions, that there is any quod ei deforciat at the Common law, giuen otherwise than vpon recouery by default, and then the Tenant may plead [...]ul tiel record; for neither the writ nor the d [...]claration makes any men­tion of the recouery▪ But Li [...]leton comes once more, 10. Edw. 4. fol. 2. and [...], that once he brought a quod ei deforciat for his mother, of lands which shee claimed to hold in▪ Dower, the Tenant said, there was no record to [...], that the [...] were lost by default. And Littleton challenged the plea, because it might be the [...] was in a [...] Baron by default in a Writ of right, in which [...] [...] quod [...] deforc [...]at lyeth: and therein i [...] no record, [...] is a record by default: [...]he Tenant said, there wa [...] neither record nor recouery where any [...] by default appeared, and this was holden a good plea, per le [...] [...] And Littleton relinquished his suit.

[Page 303] 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 [Page 304] woman lose by default, and then marrie, she and her hus­band may haue this Writ: but if Tenant in tail [...] 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 clama [...] 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.

[Page 305]If tenant for life lose by a default in a C [...]ssauit, he shall haue a Quod ei deforceat▪ by this Statute of West. 2. If [...]e in reuersion vpon default of tenant for life pray to bée receiued, plead, and lose by action tried: yet the tenant for life may haue a Quod ei deforceat, for the Iudgement must be against him by his default. If in a Praecipe quod reddat, the Tenant vouch, and the [...]ouchee will not ap­peare, so that the Tenant loseth by default of the Vou­chée. Fitzherbert makes it a question, whether hee may haue a Quod ei deforceat, or no, because the Iudgement is not giuen vpon the tenants owne default. But cléere it is, if the Vouchée appeare, enter into Warrantie, and lose 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, t [...]nants 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 tail [...], 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 a [...]d title aforesaid, &c. vnde petit iudici [...]m. 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. Fi [...]zh.

10. Ed. 4. fol. 2. Dictum f [...]t, 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 vouch [...]one 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 [Page 308] the Demandant vouch, his Vouchée cannot vouch ouer. 10. H. 7. 39. The old N [...]t. B [...]eu. acknowledgeth, that in a Scire f [...]cias there lies no oucher: yet if a man recouer by default in a [...]c [...]re facias, out of a sine, against Tenant in taile, which bringeth a Q [...]od ei de [...]orceat: if the Reco­uerer maintaine the title of his first Writ, the Tenant in taile may vouch. The Law séemes to be otherwise: sée Plow. 11 [...]. & 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 vocen [...]ur 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 fu [...]ther: 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 [...]articular estates, that they doe nothing preiudiciall to their war­rant. It is true for the most part, Ex quibus rebus maxi­ma vtilitas, ex ii [...]dem 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 [Page 308] build, burne, or inclose, but it must be per visum forestari­or [...]m haeredis. And Bracton sets forth the W [...] for pla­cing and appointing of the F [...]r [...]e [...]cor, or by the heire ad praedict' [...] 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 [...]. 3. But it is said Sir Edw. C [...]kes 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 e [...]rie good woman take héed, how she maketh any gift or alienation of such lands as she holdeth in [Page 309] Dower. For Glocest. cap. 3. is, if a woman sell, or 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 per [...]el N [...]t. Breu. The Statute expresseth not the writ, but the forme is, Praecipe A. quod reddat B. vnum tone­men um quod clamat, in quod non habet ingressum nisi per C. quae suit vxo D. qui illud ei demis [...] & 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 [...] 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 Entrie [...]d Communem Legem vpon an alienation by tenant in Dower, and though this alienation be but in taile, or for life, yet the forme of the writ varieth not: If he which hath the reuer­sion in Fée grant it to another, and the Tenant in Dower after Atturnment, alieneth in Fee, the Grantée of the re­uersion shall haue Writ specifying the grant. Likewise if the heire grant his reuersion with Atturnment, and the Grantée grants it ouer with Atturnment, the third Gran­tée may haue a writ specifying that the woman held of the first, second, and third, ex assignatione, &c. The Aunt and Néece hauing the reuersion by discent, may ioyne in this writ, and the processe is summons, grand and petit cape.

SECT. XXX. The Writ if Enirie in Casa coasimili.

THis Writ is in nature like the other, and it lyeth when Tenant by the courtesie, or Tenant for his owne life, or another mans, alieneth in fée, or in taile, or for terme of life, he in the reuersion which hath it for life, or in taile, or in fée, may haue this Writ of Entrie in Casu consimili, during the life of him which aliened, and this is formed and granted vpon West. 2. cap. 24. which willeth, That as often as there is a Writ found in Chan­cerie for one case, and another case falling sub eodem [...]e, and requiring like remedy, there is none in the registrie of the Chancerie, for that the Clerks of the Chancerie shall concord in framing a writ Vel atterminent quae­r [...]ntes in proximo Parliamento, & scribantur vsus in qui­bus concordare non possunt, &c. & referant eos ad proxi­mum Parliamentum, & fiat breue de consensu Iurisperito­r [...]m: ne conting [...]td [...] 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 [Page 311] 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. cu [...] D. qui illud tenuit ad vitam ex demissione B. de [...]sit ad eusdem te [...]m [...] ­num &c. If a man make a lease for life, and dye, and his heire grant the reuersion to B. and the Tenant att [...]nes, If now the lessée grant his estate to another, which alie­neth in fee to A. B. shall haue a Writ comprehending the assignation and grant of all the estates.

If lands bee giuen to two men, and to the heires of one of them, and he which hath the fée simple dies, and then the Tenant for life alieneth in fée, now the heire of him in remainder may haue this Writ, for it lyeth as well for him as for Tenant in reuersion.

If any Abbot or Prior make a lease for life, the lessée alien, the Prior dye, &c the successor may haue this Writ; Also tenant in taile may haue it, if hee make a lease for life, and his lessee alien in fée. And it séemes if Tenant in taile make a lease for life of the lessee, and dye, the issue in taile may choose to bring a Formdon, or Writ of En­trie in Consimili casu against the alienée, whilst the lessée for life is yet liuing, for the alienée, which is Tenant in the Action, cannot plead in Abatement of the Writ, that the Demandant hath title to a Formedone: But if Te­nant in taile make a lease for terme of his owne life, which is no discontinuance, if now the lessee alien in fee, and the lessor dye, his heire cannot haue a Writ de consi­mili casu; but he is driuen to his Formedone, for in this case, he hath no title to other Actions by colour of any de­mise. But in the former case he had title, by reason of the discontinuance made for life, to claime by right of the new reuersion discended; so that hee had a double title, the reuersion reserued sur le seas and the title in taile, con­sequently election of Action: Quaere.

P. 17. Ed. 3. A lease made for life, the remainder to an­other in fée, the lesses aliened in fée, and a writ de consimi­li casu brought by him in the remainder, and it abated, for [Page 312] the Court said, that hee in remainder, was not possessed in fait, till the remainder did fall after the death of the [...]essée.

Saith Fi [...]zherbert, the Law is not so taken at this day, but that hee in remainder hath the remainder vested in him, as well as hath hee in the reuersion, for hee may haue an action of waste, and enter for alienation of his tene­ment as well as hee in the reuersion may: Ergo hee hath his remainder in fa [...]t, 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 ali [...] in fée, and dye, he in the reuersion if he be heire in fée sim­ple, may sue this Writ, or his Assise of Mo [...] 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. c [...]i D. pator vel antecessor, of the Demandant cuius haeres, &c. demised, &c. But when the Demandant [Page 313] himselfe made the lease to him which aliened, then the Writ is or may be P [...]aecipe quod recidat, &c. omitting these words, quod clomat vt ius & haereditatem; and note, if Tenant for life alien in fee, and dye, hee in reuersion may chuse whether he will haue this writ, or an ad termi­num qui praeteriit. If Tenant for life grant his estate, and hee in reuersion grant his reuersion with Atturne­ment, if now the Tenant which atturned alien in fée, the grantée of the reuersion shall haue a Writ, mentioning the grant and assignation, &c.

SECT. XXXII. More of forfeitures, and how a particular Tenant may forfeit his estate without alienation.

NOte. If Tenant for life, lease the land to. I. S. for terme of life of. I. S. which dyeth, the first leas [...]e still liuing, hee shall not haue the land againe, because hee leased more than was in him, and therefore, hee in the re­uersion shall haue it: But if two be seised for life, the in­heritance in fée to one of them, and ioyne in a lease for life, and the leasee dyeth, they shall bee ioynt tenants againe. ꝑ 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 [Page 314] 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 & redd [...]t praed▪ cum partium versus &c. occasio­nae & clam' & placit praedict' forisfact' habend' (si volue­rit) persequatur ac etiam quod finis praed▪ si voluerit in­grossetur. Plesingtons Case 6. R. 2. was this. A man made a lease for yéeres, and granted further by Indenture, if he aliened the reuersion, or dyed within the te [...]me, that the leassée should haue francketenement, and liuery was made, the fée simple was granted by fine &c. and in a quid iuris clamat, the leassee claimed francket [...]nement, iudge­ment was giuen that the cognisée might enter for a for­feiture, and that the fine should be engrossed, ( si voluerit) Sée 3. & 4. Eliz. Dier. 209. in a like case the iudgement was, not quod quaerens recuperet seisinam, but quod pro­sequatur pro seisina si voluerit, & finis ingrossetur &c.

SECT. XXXIII. The Statute of 11. H. 7. cap 20.

THe Common Law restrictiue of it selfe, and helped something by the Statute of Glocester, was suffi­cient, a great while, to bridle women from making alie­nations for any land that they held in Dower or Ioyn­ture, as arguments of their owne good deserts and testi­monies of their husbands loue; But time, which made [Page 315] the art of fencing more fine than it was at the first, when Combattants fought all at head and shoulders, and it was greater shame to strike vnder the girdle than it is now, made law also more subtile than in the beginning it was, when lands went altogether, or for the most part by liue­ry of seisin.

And women witty of themselues, instructed by crafty men, grew cunning at the last, that they could alien lands, holden for life, or in taile, to whom they listed in fée. And hee which suffereth disinheritance should not easily helpe himselfe by Writ of Entry, either ad communem legem or in casu prouiso: for remedy whereof was made this seuere statute in effect as followeth. 11. H. 7.

If any woman, which hath had or hereafter shall haue any estate in Dower, or for life, or in taile, ioyntly with her husband, or only to her selfe, or to her vse in any Ma­nors, Lands, Tenements, or other Hereditaments of the inheritance, or purchase of her husband, or giuen to the husband and wife in taile, or for terme of life by any An­cestors of the husband, or by any other person seised to the vse of the husband, or of his Ancestors, and haue, or shall hereafter being sole, or with any other after taken to hus­band, discontinued, or discontinue, aliened, released or confirmed, alien, release, or confirme, with warranty, or by couin, suffered, or suffer any recouery of the same, against them, or any of them, or any other seised to their vse, or to the vse of either of them, after the forme afore­said, that all such recoueries, discontinuances, aliena­tions, releases, confirmations, and warranties, so had, and made, and from henceforth to be had, and made, be vt­terly void, &c. And that it shall be lawfull to euery person and persons, to whom the interest, title, or inheritance, after the decease of the said woman, of the said manors, lands, or tenements, or other hereditaments being discon­tinued, aliened, or suffored to be recouered, after the first day of December next comming in the forme aforesaid should appertaine, to enter into all and euery of the Pre­misses, [Page 316] 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 o [...] 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▪ [...]uided, that the said women, after the decease of their said husbands, may reenter and enioy, &c. according to their first estate; And ouer this it is enacted, that if the woman, at the tune of such discontinuance, alienation, recouery, warranty, &c. besole, that then shee shall bee barred and excluded of her title and interest in the same from thenceforth, and the person or persons, to whom the title, interest and pos­session of the same should belong, after the womans de­cease, shall immediately after the discontinuance, aliena­tion, warranty, and recouery, enter, possesse, and enioy, the same Manors, Lands, &c. according to his or their title; Prouided that this Act extend not to auoid▪ any re­couery, discontinuance, or warranty, after the forme a­foresaid, heretofore had, made, or suffered, but only where the husband and wife, or either of them, now being aliue, or any other to their vse, now haue title and Interest to the said Manors, &c. or take the issues and profits to their vse [...] Prouided also, that this Act extend not to any reco­uery [Page 317] or discontinuance, where▪ the heire next inheritable to the woman, or [...]e▪ or they, that next after [...]er deat [...] ▪ should haue estate of inheritance, &c. [...] or agrée­ing to the re [...]uerie [...] ▪ where [...]he same ass [...]ent and agrée­ment is of record or inrowled. Prouided also, that it shall bee lawfull to euery woman being [...]ol [...], or married after the death of her first husband, to giue, s [...]ll, disconti­nue, &c. for terme of her life only, after the course of the common Law.

SECT. XXXIV. The Exp [...]sition.

BEfore this Statute, if Tenant in Dower had alie­ned in fée with warranty, and dyed, the warranty dis­cending vpon him in reuersion, had barred him, for a­gainst collaterall warranty of Tenant in Dower, or for life, the Statute of Gloucester cap. 3. determined nothing. L [...]eton fol. 164. He addeth, that if the heire were vnder age, both at time of alienation, and also when the warran­ty discended, hée should hee at no preiudice by this col­laterall warranty: But if he wore vnder age at time of the alienation, and came afterward to full age, during the womans life, and neuer entered, then perchance hee should be barred; This was Law when Littleton wrote, and had continued so aboue two hundred yéeres, and du­ring the raigne of nine Kings after the making of Gloce­ster cap. 3. which Statute Dyer comparing with the la­ter, he reputes the last cruell against women; for by this A [...]t of 11. Hen. 7. all alienations, recoueries, releases, and warranties of Tenant in Dower, or [...]oynture of the hus­bands lands are of no strength. And where Glocester alloweth Tenant by the curtesie to alien with warranty and assets: this from women is cleane taken away this, he saith, is vn case fort dure. That if a woman [...]oyntresse [Page 318] in taile, whose warranty is lincall to her heires, doe ali [...]n, and leaue assets, yet the heire may enter; Therefore hee is of the minde that this Statute being rigoro [...]s of it selfe, ought to receiue a stre [...]t and litterall interpretation, fol. 148. But Stamford, Browne, & Brook, e [...]po [...]ded these words, (giuen by the Ancestors) to bée intendible of all manner of assurances, for money or otherwise: There are two Cases in Plowden that in [...]ued great Argraments vpon this Statute; The first is betwixt Winibishe and Falbo [...]es a man enf [...]offed diuers persons to the vse of him­selfe and his wise in speciall taile, before the Statute of 27. He [...]. 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 ti [...]le, he to whom the title appertained, after the womans death entred, and the entry wa [...] 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 pa [...]ts, that the case came into consideration, as if the Act of 27. had not béene made) and that seemes to bee di­rectly within the letter of the Lawes; But Montague chiefe Iustice, shewing how greatly the marriage of wo­men, and their aduancement by it, is respected in Law, as appeareth by the Writ of [...]a [...]a matr [...]mo [...]i [...] prolo [...]i, and the [...]i ante diu [...]rtium taken by equity of West. 2. cap. [...]. and also by that, that where donées in frankemarriage are diuorced; the woman shall haue all the lands: a [...]ir­meth it to bee reason against such women thus fauored, and who abuse such fauors as the Law bestowes vpon them, and will be of Couin and Fa [...]ity, to impaire their [Page 319] deceased husbands inheritance, and disinhe: it their heires, to construe this▪ Law for their co [...]tion, for the Law­makers of the statute were bent extremely against them, though it be penall in some sort o [...]it sel [...]e. And so it was agreed, that if the widdow were not within the words, yet she was within the intent and meaning of this Statute.

The other case was this betwixt Eiston and Stud. Ba­ron and Feme le [...]ied a fine of l [...]nds of the wiues▪ inheri­tance, taking backe an estate in ta [...]le the remainder to the right heires of the wife, the question was whether the wo­man after her husbands death, might alien without dan­ger of this Statute, adiudged that she might, because shée was cleare without the intent and meaning of the Act: For whatsoeuer the words import, the matter that this Statute aimed was, and is, to restraine women which haue Ioyntures, procéeding originally from their hus­bands, or the 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 [...]oynture was made by the Barons Ance­stor, though not originally, &c. And so note those two ca­ses of Plowd. one is taken to be within the intent, though out of the letter, and the other though within the letter, yet out of the intent, and yet both constructions most rea­sonable and iust.

And see Sir George Brownes case, Sir Edw. Cokes [...]. [Page 320] R [...]p. that a lease made by a woina [...] t [...]nant in ta [...]le of the gift of her husband, &c. make a lease for thrée li [...]s [...] 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 inte [...]t of the Act is, to pro [...]ibit not onely euerie barre, but [...]ueri [...] 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 ex [...]resse letter of the Act shall enter vpon the discontinuance of the woman, for his act doth not bi [...]de his estate. But when the issue in taile leuie a fine with praclamation, in the life of the woman tenant in taile, &c. that shall binde the taile, and therefore there the Conusée shall enter, for hée which hath the immediate title, interest, or inheritance, at the time of the for feiture, shall enter by that Statute. And it was said by Anderson, Chiefe Iustice of the Common Pleas, that where it was in [...]ented for to mak [...] eua [...]ne out of the Statute, that if such a woman tenant in taile accepts a fine sur conusans de droit come c [...]o, &c. and by grant and renders the land for a th [...]usand yeares, that is an alien [...] ­tion within the intention of the Act, although the words of the Act are discontinuance, ali [...]nation, &c. and of that opi­nion was W [...]ay Chiefe Iustice, and Dyer, and all the Court of Commo [...] Pleas was of the same opinion, 18. Eliz.

And in Sir Edw. [...]okes 3. Rep. Lincolne College case. It was resolued, that if the heire in taile conuey the lands to others, and the woman tenant in taile release, or maks con [...]r [...]nation with wa [...]rantie which is not but to perfect and corroborate the estate which the heire in taile hath made, such a warrantie is not restrained by the said Act, for that which the woman hath done, is for the benefit of the heire, and not for his preiudice, and by his a [...]ent. And [Page 321] she and the heir [...] [...]ight haue i [...]yned a fine, and so barre the estate taile, not with standing the Statute of 11. H. 7. therefore such Acts by the woman shall not be void, to grant the h [...]ire, or any else, any aduantage by the Sta­tute of 11. H. 7. And note the opinion of Sir Edw. Coke in the said case of Lincolne College, that the sonne borne after, shall by this Statute out the daughter, who entred for forfeiture, and [...]ew [...] other opinions concurring, y [...] in Dyer 21. Eliz. 362. the heire in such a case is said to be in by purchass.

And note, Reader, that it hath [...]ne adiudged, that al­though the Déed of conueyance, and assurance of the wo­mans Ioynture or estate, d [...]therpresse her marriage por­tion, as well as her marriage, to [...]e the cause and conside­ration of such Ioyn [...]ur [...] or [...]stat [...] ▪ yet if the estate pr [...]éds from the husband or his Ancestors, she is within the said [...]tatute of 11. H. 7. and s [...]e Villers and Beau [...]rit [...] case, 4. Mar. 146. But [...]u [...]r [...] 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 [...]ases put a man seised in Fee, leuie a fine to the vse of himselfe for life, and after to the vse of his wife, and of the heires males of her body by him begotten, and had is­sue male, and after he and his wife leuied a fine, and suffe­red a common recouerie; the husband and the wife died, and the issue male entred by the Statute of 11. H. 7. and the entrie was [...]olden lawfull, and yet this ca [...]e is out of the letter of the Statute, for she neither leuied the fine, &c. being sale, or with any other saue her husband, who made the Io [...]ture, Sed qui [...]aeret i [...] littera, [...]aeret in cor­tice; and therefore this case being within the [...] of the Statute is within the remedy▪ But [...], [...] ▪ that this case was de [...]yed for Law by the R [...]rder o [...] London, in his argument in the case hereunder [...] ▪ betweene Copland and Pyat. Another case in Sir [...] Cokes Commentaries vpon Littleton, which agrée with Eiston and Studs case in Plowd. is; A man seised of land [Page 322] [...]ure v [...]oris and they two leuie a fine, and the [...] grant and render the land to the h [...]sband and wife in spe­ciall taile, the remainder to the right heires of the wi [...], they haue issue, the husband dieth, the wife taketh another husband, and they two leuie a [...]ne in Fée; the issue en­treth, this is within the letter of the Statute, and yet is out of the meaning, because the state of the land [...] from the wife, so as it was the purchase of the husband in letter, and not in meaning. But where the woman in [...] ­nant for life by the gift, or conueyance of any other, [...] alienation with Warrantie shall binde the heire at this day.

The case of Copland and Pya [...] adiudged Hillar. 7. Car. in Ban [...] Regis, in effect was thus▪ I. S. his sonne was to marrie to the daughter [...] I. N. And the Deed [...] that I. N. for th [...] consideration of foure hundred [...] paid by I. S. and of a marriage, &c▪ and for the [...] of the blo [...] of I. N. co [...]enants to stand seised to the vse of the sonne [...] I. S. and his daughter whom the [...] of I. S. should marrie, [...]taile the remainder to another [...] of I. N. th [...] remainder to the h [...]ires of I. N. [...] dieth hauing issue, and the wife alieneth by [...]. [...] was resolued, that it was not within the Statute of [...] 7. notwithstanding the foure hundred pounds paid by [...] husbands father, for the [...]nd [...]rst moued from [...] father, and the presermen [...] of the blo [...] [...] I. N. [...] intent that the husbands heires should not [...] but the wiues. And the Bishop of Ex [...]tors case [...] that case cited, which was that in considera [...]ion [...] to the woman, and seruice done by the man, [...] gaue the land to them [...], [...] [...] to [...] of the Bishop, it was [...] to be [...], that the [...] after her husband [...] [...]th, had no [...] within [...] said Statute of [...]. H. 7. but that she might self it [...] [...]nger of the Statut [...].

SECT. XXXV. What Actions concerning chattells doe surui [...]e a widdow.

I H [...]ld it good wisdome for a widdow, and for all persons, to haue greatest care of matters of greatest moment, and not to contemne the lesser: Now that [...] haue do [...]e with matters of Francktenement, we will see a little, in what Actions concerning Chattels rea [...], or personall du­ties a widdow may be Plaintiffe, or Defendant, to make an end of reckonings begin before, or whilst she was a wife. I [...] Feme couert deliuer Déed to I. S. she may haue Action of Detinue for the Déed after her husbands de­cease, for though the deliuerie were voyd betwixt I. S. and the Baron, yet it is good betwixt I. S. and the wife, if the Baron dye, 3. H. 6. 50.

If a lease be made to Baron and Feme for yeares, and the Baron die, the wife shall haue the terme, and if the Lessor out her, she may haue Action of c [...]uenant, 47. Ed. 3. 12.

If a man be bound to Baron and Feme in Statute Merchant, the Baron alone may make de [...]e, and by some opinion the Au [...] quert la must bée against [...] a­lone: but if he doe not release, &c. the Statute▪ suru [...]th to th [...] wife, and she may sue execution, & executor [...] my. And, per Finch, the Law is all one of an Obligation and a Statute. Likewise in a plea of land, if Baron and Feme recouer the land with dammages, and the Baron [...], his wife shall s [...]e for dammages, and not his Exe­cutors.

So likewise by B [...]lknap, If an Obligation be made to Alice the wife of Robert, this is a good Obligation, and Alice and Robert may ioyne in an action vpon it, and if Robert die before he haue released, for [...]e may [...] re­lease it, Alice alone shall haue the Action, 48. Ed. [...]. 12. [Page 324] simile 7. H. 6. fo. 2. Sée the Commentaries of Sir Coke vpon Littleton, fol. 350. It is said that Chattels reals of a mixt nature, namely, part y in possession, and partly in action, happening during couerture, if the wife haue her husband, she shall haue them by the Common Law, as if the husband be seised of a rent charge, rent seruice, or Secke, iure vxoris, the rent incurreth during couerture, if the husband▪ dye the wife shall haue the arrerages, and [...] of an Aduowson of the Church during couerture, & sic de [...]. And in those cases the husbands shall gain [...] them by suruiuership: but for arrerages, or auoydance of the Church before marriage, the husband could haue [...] help by suruiuership, and so of releases. But now by the Stat [...]te of 32. H. 8. cap. 37. By suruiuership the husband shall haue the arrerages as well incurred before the mar­riage as after.

If an Estray happen within the Mannor of the wife, if the husband dye before seisure, the wife shall haue it, f [...]r that the propertie was not in the wife before seisure.

But as to personall goods there is a diuersitie [...] a propertie and a bare possession, for if personall goods be deliuered to a woman, or if she finde goods, or if goods come to her hands, as Executrix to a Bayl [...]ffe, and taketh a [...] husband, this bare possession is not giuen to the husband, but the Action of D [...]t [...]ue must be brought against the hus­band and the wife.

If Baron and Feme make a lease for yeares, and the Baron die, the wife may bring an Action of waste, 22. H. 6. 24.

If an Obligation be made to Baron and Feme, and the Baron die, the widdow may haue the Obligation▪ 4. H. 6. 5. Quaere, for the booke is not so cleare, as Brooke makes it, the woman was Obligée with her husband, [...] sued as Executrix.

Generally where title, or cause of Action, is giuen [...] woman before marriage, or during marriage, and the husband releaseth not, &c. the Action suruiueth when [...] [Page 325] dye. But there may be a release in land as well as in fact i [...]plied, as well as expressed. And therefore the case is 8▪ Ed. [...]. Br. D [...]. 156. and cite Plow [...]. 184. in Woodward and Darcy his Case, If a man be bound to a woman, and to another, and the Obligor marry the woman, all the obligation is extinct although the wife ouer▪liue her hus­band, or although shee dyes, [...]wing the other obligee, for ei­ther of the obligées hath power to release, and that inter▪ marriage is a release. And gifts in Law of the chattels of the wife as well reall as personall are outlawry or at­tainder of the husband. If a man marry with a woman executrix, and then release to Creditors, all manner of Actions generaly, this extendeth to his proper accords, and to those which his wife hath, either in her owne right, or as executrix. Baron and fe [...]e [...]0. in Brooke. Sée Brooke coue [...]on [...] 6. Action of couenant was brought a­gainst Baron and Feme, lessées of a Manor for terme of life, rendring 20. [...]i. per annum, and they were bound to the Plaintiffe, that hée should haue such surety for his rent as his Councell deuised; the Counsellers deuised the As­surance, and the Defendants refused to make it, it was ruled for Law, that if the Baron died, nothing should bind his widdow, saue onely the lease and reseruation, if shee agréed to the lease post mortem viri: And shée shall bee charged with payment of the rent, or double it, or pay fine [...] [...] paenae, or hold it subie [...]t to reentry, according as the lease was made: But a collaterall couenant, as that the lessor shall distraine in other lands for his rent, or a couenant, to charge the lessées▪persons in twenty pound for non payment, &c▪ such like agréements binde not the widdow, when the Baron is dead, and the Writ abilted.

Note, that widdow is a good Addition, to bee put to the Defendants name many originall Writ of Action per­sonall, appeale or inditement, wherein exigent [...]eth, &c. According to the Statute, [...]. Hen. 5. cap. 5. And 14. Edw. 4. fol. [...]. B [...]arkey demanded of the Iustices in the [...] chamber, if an Action were brought against a [...] [Page 326] was neither maid, wife, nor widdow, what addition should be giuen her, some say she should be called single woman: and there it is doubted, whether seruant [...]ee a good addition, or not; for it was no addition by the Com­mon Law, as some said.

Wée are past the greatest, and most difficult part of Law, peculiarly belonging to a widdow, and come now to consider, whether she shall marrie againe, or no. If Iohn Boccace de C [...]rtaldo, in his Booke De duris mulieri­bus, may be beleeued, When the sister of couetous King Pigma [...] and widdow of Sycheus, Hercules his Priest, had built the Wals, Temple, Market, Towne house, and priuate dwellings of Carthage, giuing lawes and rules of life to the inhabitants, amongst the rest that were filled with loue of her great vertues and singular beautie, the King of Malaca was one, he grew so vehement in his desires, that he threatned the Citizens of Carthage with warres, and vtter subuersion of their new Citie, vnlesse he might haue the Foundresse of it to be his wife: They knowing how highly their Quéen would remaine displea­sed by any dire [...] sollicitation to a second marriage, & not knowing how otherwise to saue themselues▪ determined to win her assent without asking. The chiefe of them went therefore to Dido, and told her how the King of Malaca required Masters and Instructers of huma [...]tis to be sent him out of Carthage, from whom he and his people might learne to doe off their naturall [...]atous­nesse and inciuilitie, and further▪ how hée had menaced fire, sword, and extreme dissolution, vnlesse his request were accomplished: But they knew not (they said) whom to send, or who would be willing to goe, and leaue his owne habitation, to dwell with a King of such sauage na­ture, and wilde behauiour, as was this King of Malaca. Dido, when she heard them, answered, that she was asha­med there should be found in any Carthaginian, such [...] and cowardly feare, affirming plainly, that men were not borne onely for themselues, and whosoeuer he were that [Page 327] would not aduenture losse, perill, yea, and death, though it were certaine, for safegard of his Countrey, hée was (she said) vnworthy to dwell in Carthage, or that either he or his posteritie should euer be receiued to any honour or reputation amongst them. The Carthaginians thought they had obtained their desire, and vncouered their coun­sell to the Quéene, telling her plainly the Kings demand. Dido not knowing how to reply against her owne r [...]dar­ [...]utions, replenished with sorrow and a [...]xieti [...], was en­forced to yeeld her assent to wedlocke, and craued a day, before which she said she would goe vnto her husband▪ but before th [...] terme was expired, she caused a great fire to be made in the most eminent place of the Citie, and there in view and concourse of all other people, after many cere­monies and offering of sacrifice, as it were to appease the ghost of [...]c [...]us, she suddenly with a knife strake her selfe t [...] the heart, and told her subiects that now she went to her husband, her Sicheus, her deare Sich [...]us. on whose name still inuocating, she sunke to the ground, haning chosen rather to shed her dearest lifes bloud (as she said) than to violate the vowes of chaste widdowhood. Boccace mine Author here may haue some colour of reason, to extoll the resolution of Dido▪ but not to condemne so bitterly (as he doth) all women that marrie a second husband. Some of them are destitute of friends, their parents, brethren, and kindred dwell farre off, sutors c [...]me euerie day, who can obsist them▪ Another widdow hath lands rents, store of goods, some suits at Law, and no body that she can trust, in help to gouerne that which shee hath, or to inherit it when she is gone. Another is tolled to marrie by mightie perswasions of her dearest friends and kindred. Another hath [...] youth on her side▪ [...] Indians leape into the dead mans fire, if they will, she hath learned that it is better to marrie than to burne.

SECT. XXXVI. A [...] to marri [...] so, [...] it be not vncertaine who shall [...] her to the [...] [...] [...] ▪

I For my part, that am like neu [...]r to be feared, vnlesse some widdow be moued with compassion towards mée, will not speake villanie of Bigamie, or Octogamie, let euerie woman marrie when she seeth her time, but [...] a slow speed perhaps will be best, and let her examine well whether the pannier be emptie, or no. If (saith Sir Thom [...]s Smith, in his Treatise De Repub. An­gliae. [...]ol. 104.) I marrie the widdow of one lately dead, which at the time of her husbands death was with childe, and the childe is b [...]ne after marriage solomnized with me, this childe shall be mine [...] and lawfull sonne, so▪ precisely doe we take the letter, Peterest quem [...] de­monstran [...]. Littleton [...]aith, 18. E. 4. fol. 30. If a man mar­rie a woman which is gro [...]ment ens [...]nt by another, and within foure dayes after marriage she is deliuered, this childe shall be his that hath newly married the woman and inherit his land, for it is no bastard. It [...] would haue it vnderstood of a woman enseint by [...]p [...] ­zard, and in such cases it is reason; that hee which takes the Dame should haue the Fole▪ So [...]s it also when [...] [...] ­man elopes with a stranger in [...], and [...] her husband Iohn at Noke being betwéene [...] foure [...], must father the [...]hilde, and it shall be his heire, it he die; for the Law will not [...]ing into triall directly, wh [...] [...] the childe, 44▪ Edw. 3. fol. 10. and [...]. H [...]. 4. [...]. [...] though issue may [...] [...] taken, whether a woman [...] ens [...]m [...] by her [...], [...] [...]h [...] time of his death [...] dea [...]ing out the question by whom, as appeareth by the for [...] Bookes, and 1. H. 6. fol. 3. Then if it may be found by Engu [...]st, that a woman was with childe at her husbands death, the Law which permits not to enquire by whom, [Page 329] affirmes it to be the husbands, and that husbands which might lawfully beg [...]t it. I thinke [...]urely, [...]ir Thomas Smith mistooke the Law: for by Thorpe and Willowby, 24. E. 2. fol. [...]9. If a man dye seised of land in Fee sim­ple, and the wife which is [...] with a so [...]ne, marrie againe, and after is deliuered, [...]is sonne shall bée adi [...]dged sonne and herro to the first Bar [...]n and not to the second▪ Though Iustice Be [...] there were of opinion, that the Infant might [...]hu [...]e his father▪ It were better reason perhaps, that the second husband might [...] whether hée should be his so [...]ne, or no, and by allowance make him hi [...] heire.

Sir Ed. Coke in his Comment vpon Littleton, fol. 8. a. saith, I [...] a man hath a wife, and dieth within a [...]erie short time after, the wife marrieth againe, and within nine moneth [...] hath a childe, so as it may be the childe of the one or the other, some haue said in this case the childe may chuse his father, Quia in ho [...] cas [...] filiatio non potest pro­bari, and so is the Booke to be intended: For auoyding of which question, and other inconcemences, this was the Law before the Conquest, Sit omnis vidua [...]ine marito 12. mensibus, & si marita verit perdat dorem. But if women had all béene of such sobrietie, as many are, many of these questions had neuer risen, and I must confesse it is great p [...]ulancie in any widdow, that slippeth to second wed­locke, w [...]ilst she yet nourisheth in her wombe, the pledge of vn [...]n and loue, betwixt her and her late husband: I thanke God, I cannot say that I haue knowen in my life time any widdow so want [...]n. In old time women vsed now and then to saine themselues left with childe, and to bring forth borrowed brats, to depriue the Deceaseds right heire of his inheritance, sometimes of their owne mischieuous malice and deceitfulnesse, and sometime by consent and combining with the Lords of whom the lands were holden. Bracton in his second Booke, cap. 32. hath a large discourse, De partu supposito: and there is a Writ to the Sheriffe, to call before him, and the Kéeper of Pleas [Page 330] of the Crowne, the woman that pretendeth to be enseint, to haue her examined, by tractation and search of good and lawfull women, per vbera & per ventrem, whether she be pregnant or no, and if the matter he found doubtfull, to commit her to a Castle, and warie custodie, without ac­cesse of any suspected woman, Qu [...]usque de partu suo cor­stare possit. But this is a péece of learning so obsolete and wor [...]e out, that I thinke since I was borne, and a long time before, there neuer was any such Writ put in [...]re▪ I conclude therefore, that our widd [...]wes now adayes are honester than they were in Henry the thirds time, in the fifth yeare of whose reigne, Mariell widdow of William Constable de Mauton in Comitat. N. rff. practised this cousenage: widdowes of this age are nothing so deceitfull, though deceiued some­times by bad husbands.

SECT. I. Appeale of the husbands death.

BY Bracton li. 3. cap. 29. A woman can haue an Ap­peale, but only in two cases; per quod alicui lex de­beat apparens adiudicari. As in case where iniury and force is committed against her person by rauishment, or when her husband is killed imer Brachia iua: This forme of appeale therefore is, A. late wife of B. appeales [...]. that whereas B. her husband was at such a place, such an houre, such a day, and such a yéere. C. came with force, [...]equiter & in felonia contra pacem regis, and killed him betwixt her armes, and that he did this against the Kings [Page 333] peace, and fellonio [...]sly, shee will proue and maintaine as the Court shall thinke good; Againe, the same A. ap­peales E. of this, that at the same place, the same yéere, day and h [...]wer, E. [...]ame with C. felloniously, and against the Kings peace, and held B. till C. killed him, &c. If hée which is appealed, de facto, were taken vpon the fact▪ with his knife or sword all bloudy, and this very [...]ed by Testi­mony of good and lawfull men▪ non erit v [...]terius [...]quiren­ [...]. Thus Bracton.

Now let vs [...] how shee shall be vnderstood, there is no doubt, but a woman may haue other Appeales, besides th [...]se tw [...], of rape▪ or death of her husband.

11. Hen. 4. fol. 9 [...]. An Appeale of Robbery was brought by a woman, the defendant said, the Appealant was his [...], iudgement, si el [...]erra respondue, and to the robbery, non culpa [...]le. So that hee pleaded to the fellonie, and the [...]fty admitted a good plea▪ And a woman may haue an appeale of may hem. 13. Hen. 7. 14. Hussey saith, it was demanded of him for a doubtfull question, where parish Clarke [...]ell out with another man, and threw the Church [...]re key [...]s at him with such force, that they [...]ang out at the Chamber window, and put out a womans eye, whe­ther it were may h [...] or no? And for the euill intent of the Clarke, it was déemed may h [...] ▪ but considerati [...]n ought to be had in a [...]e [...]ng [...]a [...]ages. But true it is a woman shall not haue appeale of any mans death, saue only of her husbands, therefore if a man bee killed that hath neither wi [...], nor sonne, but his next heire is either daughter, sister or female Cos [...], albeit he hath many other [...]red, E [...]si [...]s, or V [...]e [...]es, the pro [...]ity of a female he [...]e, [...]es away the Appeale quite and cleane; for of [...] Ancestors death, if he had no wife, the Appeale be­longs ouer to the heire, who here cannot haue it, because it is a female▪ for Mag. Char. doth directly d [...]ny it. [...]ap. 34. N [...]llus c [...]pictu [...] a [...] imprisonet [...], propter apellum [...]e­minae de mo [...]e a [...]u [...] quam viri sui. And vpon such an Appeale brought by an heire female, the Defendants [Page 334] cannot bee arraigned at the Kings suit, because the Ap­peale was neuer good. Neither shall the Defendants re­couer dammages, because (as Shard maketh the reaso [...]) hee may bee arraigned and condemned otherwise ad Se­ctam regis, for any thing yet done to the Contrary. 27▪ A [...]. p. 25.

A daughter or sister, &c. can haue none Appeales of a fathers or brothers death, no more can a mother haue▪ Ap­peale of the death of her sonne. If a woman haue issue a sonne, which is murdred, and there is no heire to him on the fathers side, by Billing chiefe Iustice, Needham, and Choke, none vncle nor other kinsman which must co [...]y as heire by the mother, can haue the Appeale, because the Statute, before remembred, excludeth her, from wh [...]m they must deriue: Bria [...], Littleton, N [...]ale, and the chiefe Baron are contra. For, said they, the V [...]cle on the [...] ­ther side may haue Appeale of the Nephewes death, which the father from whom the Vncle must conueigh, [...] haue any more than the mother. But Billing tels them▪ the Cases are nothing like, for a father may haue an A [...] peale of his Ancestors death; but so cannot another i [...] any case; the bridge therefore being once broken, [...]d e [...] ▪ the meane of conueyance stopped and disabled, the Ap­peale is altogether, and for euer taken away. [...]7. E [...] ▪ 4▪ fol. 1. And so is it adiudged likewise [...]0. Hen. 6. fol. [...] ▪ where there was grandfather, mother and sonne, the mo­ther died, the grandfather was murthered, the s [...]nn [...] might not haue Appeale, because hee conueyed by a wo­man, scilicet, by his mother, and▪ there it was▪ stood [...] ▪ that an Appeale shall neuer discend, but hee to whom it first falleth, shall haue it, and if he dye, the A [...]tion d [...] ▪ It is a good case well argued in the booke at large. Sée the booke of 11. Hen. 4. 1 [...]. It appeares that in Appeale o [...] Rape by the husband ne vnques accouple, &c. nest p [...] for the husband in Act or possession shall haue that w [...]er [...] the marriage is not void, and yet that plea is good in Ap­peale by the wife of the death of her husband, for there shée [Page 335] shall not r [...]uenge his death to whom she was not lawfully married, and see 50. E. 3. 15. Br [...]on agrées with Bracton qui null [...]ee, puisseare appeller de felonie, de mort [...]orsque de mort son baron, [...]u [...] deins [...] & l [...] [...]our enter ses bra [...]. And it is true, that by the ancient Law neither woman or other person might haue appeale of death, vnlesse the appellant [...] pr [...]s [...]n [...], or did sée the dead man, at the ti [...] when hee was slaine. But the Law is changed by [...]lo [...]. cap. 9. which willeth that no Writ henceforth shall goe out of Cha [...]ry, for the d [...] of man▪ to enquire whether a man killed another, by [...]aduenture, or in his owne defence, or [...]therwi [...]e [...]e [...]niou [...]y, but he shall remaine in prison, till the comming of Iustices errants, or gai [...] de­liuery, and before them, put hims [...]lfe to the country, for triall of good and euill. And if it [...]e [...]ound by the cou [...]try, that, what he did, was [...] his owne defence, or by [...]sad­ [...]enture, the I [...]es [...]ll d [...]e the King to wit, and th [...] King doe the party grace, [...]luy plei [...]. Also it is prouided, that no Appeale shall be [...]ted si le g [...]r men [...] come [...] a [...] [...]e [...] ▪ [...]u [...] if the Appeal ou [...] shew t [...] d [...]d, the y [...]re, the day, and [...]o [...], [...] [...]mps l [...] [...]y, the Towne where, and the weapon wherewith the s [...]aughter was committed, [...]he appeale shall stand go [...]d, and [...]e appeale shall bee abated for want of [...]resh [...]u [...], i [...] it bee per [...]ed within a y [...]re and a day after the [...]t co [...]i [...]d. Before this Statute the Appell [...]nt alwayes [...] o [...] [...]s proper view, [...]ow [...] n [...]ds not. The [...] [...]hat [...]ll [...]ing [...]his appeale, [...] be wi [...]e to th [...] [...]a [...] [...] [...] [...], [...]or [...]en [...] ac­couple in loyall matrimony is a good plea, in barre o [...] her appeale, as before is said. But this plea is not so per­ [...]mptory, but that after the Bishop hath [...] [...] [...]y [...] ­ment [...]cco [...]e, &c. the Defendant may afterward [...]ad non culpable, and this in [...] in vit [...], but he cannot [...]ad on to the fellony immediately vpon the [...]rst plea. There­fore here is requis [...]te two trials, as it séemeth 50. [...]. [...] [...]. Idem 27. [...] p. [...].

Furthermore it is requist [...]e, that she be sole and vn­married, [Page 336] married that made this Appeale for if she marrie again [...] her Appeale is gone, though the new married husband be dead within the yeare and day after his death that was slaine. Yea, and not onely a widdow which hath an Ap­peale▪ hanging abateth her Appeale, and loseth it for euer, by new marriage, but also if after Iudgement and before execution▪ she take an husband, she loseth execution of the Iudgement, 11. H. 4. fol. 48▪ By Brian and Hussey 2 [...] F. 4▪ fol. 72, 72. If a woman pursue her Appeale till the De­fendant be outlawed, and then marrie, she may sue execu­tion. And so did Skr [...]n [...] hold the Law to be in the [...], [...]. [...]. [...]. [...]ut Gaseo [...]g [...]e▪ Chiefe Iustice denyes it. And [...] ▪ or 2. Mariae, Brooke Appeale 100 the Iustice of the Kings Bench did all agrée, that a widdow loseth her Ap­peale, by taking of a second husband. Et idem videtu [...], (saith Brooke) de executione; for the reason wherefo [...] this Action is giuen to a widdow, is not as Glanuell makes it, Quia vna caro est v [...] & vxor. For then the Ba­ron might haue an Appeale D [...] morte v [...]oris, which is ne­uer granted, but her heire shall haue it▪ And if the wi [...] kill the husband, his heire shall haue the Appeale. And I hear [...], saith Stanford, Plee [...] de Coron▪ fol. 5 [...] ▪ it hath been adiudged, If she King pardon the woman all manner of treasons, the heires Appeale is gone. But the true rea­son why a woman hath the Appeale De morte vi [...]i▪ is be­cause by his death, shee is thought lesse able to liue and maintaine her selfe▪ so said the Iudges in Q [...]ne Ma [...]s dayes, and that therefore when she taketh another hus­band, cc [...]ante causa, ce [...]at effectus, and her Appeale is gone, like as a widdowes Quarentine is determined, when she is once remarried. But where a woman conti­nueth sole, she [...]d [...]ne other shall haue this Action, either in her life or after, though she dye within the yeare, and before Appeal [...] commenced, 20. H. 6. 42.