When the Solemnization of Marriage in the Church began.

Before the time of Pope Innocent III. there was no Solemnization of Marriage in the Church, and then it was sirst ordained; but before the said Or­dinance Marriage was solemnized in such form, viz. The Man came to the House where the Wo­man inhabits, and in the presence of her Friends and Relations, took the Woman to his own House; and this was all the Ceremony; and for this reason the Man is said ducere uxorem, and then the Wife was said nupta viro, by reason she is quasi cooperta nube (this Man) to whom she hath subjected her self by Agreement of Marriage. Now to read the several Forms of Marriage in the several Countries of the World is very delightful, but is not to the purpose of my present design, Moor 170.

Now by our Law Marriage being once lawfully solemnized, and without impediment,By whom and at what time. Sid. 64. Tarry and Brown. all the World cannot dissolve it if it be done by one in Holy Or­ders, let it be at what time and place it will be; as the Case was in Siderfin's Reports, the Party was married at twelve of the Clock at Night in an Ale-house.

And in Car. 2.Sid. 432. Maddox ver­sus the Chan­cellor of Pe­terburrough. a Libel was brought against J. S. Parson, in the Spiritual Court for marrying without Licence in a Church. J. S. moves for a Prohibition in the King's-Bench, suggesting that the Church is donative, and that the Donor ought ex jure, to appoint Commissioners to inspect and visit this, and that the Ordinary cannot intermeddle with it. The Suggestion is good by Twisden: But the other Justices, because J. S. had another Living Presentative, would not grant a Prohibition.

The Nature of a Feme Covert.

COverture is tegere in Latin,1 Inst. 112. and is so called for that the Wife is sub potestate viri. The Law of Nature hath put her under the Obedience of her Husband, and hath submitted her Will to his, which the Law follows, cui ipsa in vita sua con­tradicere [Page 4] non potuit, and therefore will not bind her by her Acts joyining with her Husband, be­cause they are judged his Acts, and not hers; she wants Free Will as Minors want Judgment, and yet the Law of the Land for necessity sake makes bold with this Law of Nature in a special kind, and therefore allows a Fine levied by the Husband and his Wife, because she is examined of her free will judicially by an authentical person trusted by the Law, and by the King's Writ, and so taken in a sort as a sole Woman; as also when she comes in by Receipt, Hob. 225.

A Feme Covert in our Books is often compared to an Infant,Wherein a Feme Covert and an Infant differ. both being persons disabled in the Law, but they differ much; an Infant is capable of doing any Act for his own advantage, so is not a Feme Covert. A Lease made by an Infant without Rent is not void, but voidable; but its void in the case of a Feme Covert. If a Feme Covert enter into Bond, Non est factum may be pleaded to it; but if an Infant enter into. Bond he must plead the special matter that he was under Age. An Infant may bind himself for conveniences, as necessaries for himself and Family, and the Law giveth him au­thority so to bind himself; but a Feme Coven cannot do so without the consent actual or implied of the Husband, because thereby she is to bind ano­ther that hath all the property in her Estate, as was the Opinion of the Lord Chief Justice Hales in Scot and Manby's Case. And yet a Feme Co­vert is a Favourite of the Law, and therefore the Law gives her rationabile Estoverium, till Dower as­signed:2 Inst. 18. And its said in some of our Books an Action lies not by the Executors against her for her Pa­raphernalia: But more of this infra.

What Acts the Husband may do to the Wife, and the Wife to the Husband, though they are but one person in Law.

Baron and Feme are commonly said to be one person in Law; the consequents of which are, that a Man cannot grant Lands and Tenements to his Wife; and also if a joint Estate be made of Lands to Baron and Feme and to a third person,1 Inst. 112. in this Case the Husband and Wife shall have but a moie­ty, and for this reason also, if the Husband discon­tinues the Land of his Wife and takes back an Estate to him and his Wife, the Wife is remitted, and so is the Husband, though he cannot say so; for she cannot be remitted but the Husband also must be remitted, for they are one person in Law,Cro. Eliz. 129. Vide plus sub Titulo Moyeties.

Though Baron and Feme be but one person in Law so as neither of them can give any Estate or Interest to the other, yet if a Charter of Feoff­ment be made to the Wife, the Husband, as Attor­ney to the Feoffor, may make Livery to the Wife; so a Feme Covert that hath power to sell Land by Will may sell the same to her Husband, because they are but Instruments to others, and the Estate passeth from the Feoffor or Devisor, 1 Inst. 188.

Though our Law makes the Woman subject to the Husband, yet he may not kill her but it is Mur­der; he may not beat her, but she may pray the peace, 1 Ed. 4.1. So he may not starve her, but must provide Maintenance for her. Nay, so near is this oneness of Husband and Wife respected in the Law,Siderfin 123. that if the Husband enter into Obligation for the Duress of his Wife the Bond shall be void.

A Wife by the Law of God is sub potestate viri, Change of her Name. and her Name of Dignity is changed. It was a pretty Case of Sherwood, Hill. 2 Car. 1. B. R. In [Page 6] Trespass the Defendant justifies the taking by the command of J. Pots Armiger' and Dame Ursula his Wife, and Exception was taken to it, because a Gentleman may not have a Lady to his Wife; and held a good Exception to the Writ. A Writ of Partition was brought against the Duke of Suf­folk and his Wife by Ranulph Haward Esquire and Dominam Annam Powes uxorem ejus, and Excep­tion was taken because she was not named by the Name of her Husband,Dyer 29. b. and held a good Exception; but it was amended and made Ad respondend. R.H. & Annae uxori suae nuper uxor' Dom' Powes de­funct.

Vide infra, of the Name of Nobility being lost or not by the Marriage.

A Writ de Ventre inspiciendo.

THis is a Writ for the searching of a Woman that saith she is with Child, and thereby with­holds Lands from him that is next Heir at Law, Regist. 227. 1 Inst. f. 8.

A Feme supposed to be enseint at her Husband's Death.

Nota, saith the Register, Quod si quis habens hae­reditatem, duxerit aliquam in uxorem, & posteae moriatur sine haerede de corpore suo exeunte, per quod haereditas illa fratri ipsius defuncti discende­re debeat, & uxor illa dicit se esse praegnantem de ipso defuncto cum non sit, habet frater & haeres ejus breve de Ventre inspiciendo.

The Form of the Petition for such a Writ.

The Lord Keeper ever grants a Day to the Wife to shew Cause why such Writ may not issue.

The Form of the Writ Vide Fitz. N. B.

Bracton saith, If the Feme hath not an Infant within 40 Weeks after her Husband's Death, or if she be not found enseint, she shall be punished by Imprisonment and Fine.

But if the Feme hath a Child within the 40 weeks then such Infant shall have the Heritage, if the other Heir cannot prove the Infant to be another's, and not the Husbands.

The exact time for the Birth of an Infant.

It is held amongst Physitians, that by the Rules of Nature and their Observations in Physick, that the exact time for the Birth of an Infant is 280 Days from the Conception, scil. 9 Months and 10 Days, accounting it per menses solares, that is, 30 Days to every Month; but it is natural also if the Birth be at any time within 10 Months (that is to say, 40 Weeks) for 10 Months and 40 Weeks are all one.

And it hath been observed in respect of the many Infirmities of Women, that no Woman since the Virgin Mary went her just time, Sed hoc restat probandum.

An Infant was born 40 weeks and 10 days after the death of the Husband, and was held to be legi­timate; so it was adjudged in the Case of Dr. An­drews, [Page 10] who died of the Plague, 2 Jac. B. R. A Man dies 23 March 8 Jac. his Wife priviment en­seint, which was born 5 January after, which was by computation 40 weeks and 10 days after the death of the Husband; and the Physicians up­on conference held that 20 days backwards and 20 days forward doth not take away Legitimetion, tho 40 weeks is the Tempus constitutum, Palm. 9. Lit. Rep. 178. and the Jury found the Issue legitimate.

But by accident an Infant may be born after the 40 weeks, or before; and in the Case of Dr. An­drews, he dyed of the Plague, so that he was sick but one day before his death, and the Woman's Fa­ther-in-Law used her with great Inhumanity, and caused her to lie in the Streets several nights; and she was in Travel six weeks before she was deliver­ed, and that she was delivered within 24 hours after she was taken into the House and well used, which was a good Proof of Legitimation; though it was proved on the other side that she was a lewd wo­man of her Body: And at the Trial of Dr. An­drews's Heir Dr. Chamberlain, a Man Midwife, in­formed the Court upon his Oath, that he had known a woman to be delivered of one Child, and two weeks after to be delivered of anothet. And Dr. Paddy and Dr. Momford then affirmed that the Birth is sooner or later according to the Nutriment the Mother had for it.

So in Alsop's Case; The Wife after 40 weeks and 8 days was delivered of a Daughter; by the Doctors it way be legitimate; for as well Antenatus might be Heir in a Chlid born at the end of 7 months, so a Postnatus actually born after 40 weeks; and they held a Child may be legitimate, though it be born the last day of the 10th month after the Conception, accounting the months per menses Solares not Luna­res, Godb. 281. 1 Rolls 356. 2 Cro. 571. Alsop and Stacy.

I shall only cite two Cases more on this Writ of Ventre inspiciendo, one was in the Case of a Widow, and the other in the Case of a Feme Covert.

One was in the time of Queen Elizabeth: Ventre inspicien­do in case of a Widow. Sir Francis Willoughby died seised of a great Estate of Inheritance, having five Daughters, leaving Dorothy his Wife, who at the time of his death pretended her self to be with Child by Sir Francis, which if it were a Son all the five Sisters would lose the In­heritance descended to them. They prayed a Writ de Ventre inspiciendo out of Chancery, directed to the Sheriff of London, that he should cause the said Dorothy to be viewed by twelve Knights, and to be searched by twelve women in the presence of the twelve Knights, and ad tractand. per ubera & ad ventrem inspiciend', whether she was with Child, and to certifie the same into the Common Bench; and if she were with Child, to certifie for how long time in their Judgments, & quando sit paritu­ra. Whereupon the Sheriff accordingly caused her to be searched, and returned that she was twenty weeks gone with Child, and that within twenty weeks fuit paritura. Whereupon another Writ issued out of the Common Bench commanding the Sheriff safely to keep her in such an House, and that every day he would cause her to be viewed by some of the women named in the writ (ten being named thereon) and some to be present at the Delivery, and to view the Birth whether it were Male or Female; and the Sheriff returned, that such a day she was delivered of a Daughter.

The other was in the time of King James the First, and it was one Thecar's Case,In case of a Wife. and the like Circumstances and Proceedings were in this Case Pasch. 22 Jac. 1. with this difference. The Lady Willoughby's Case was in the Case of a Widow, but this was in the Case of a Feme Covert, who was married within a week after the death of her [Page 12] first Husband, who is supposed to get the Child, for here she was a Feme Covert, and ought to cohabite with her Husband. They did not take such a course as in the Lady Willoughbies Case, of taking her into the Sheriffs Custody, but left her with her Husband, he entring into a Recognizance that she should not remove from the House where­in they inhabited, and that one or two of the wo­men might see her every day, and two or three be present at her Travel; for it was said that this Issue might well be said to be the Child of the first Husband, and should inherit the Land. And after this course observed she was delivered of a Female Child, who was afterwards by Inquisition on Office found to be the Daughter and Heir of the first Husband, Cro. Jac. 685. and Litt. Rep. 177. Thecar's Case, Winch p. 71.

In what case the Child may a choose his own Father. Note, It is said in 1 Inst. f. 8. a. If a Man hath a Wife and dieth, and in a very short time after the Wife marrieth again, and within nine months hath a Child, so that it may be the Child of the one or the other, that in this case the Child may choose his Father, Quaere, hoc Casu Filiatio non potest probari.

Who shall be said to be a Bastard or not.

In respect of the months or weeks after the de­cease of the Husband, Vide sub Titulo de Ventre inspiciendo more fully.

By our Common Law we term them all Ba­stards, which are born out of lawful Marriage.

If the Husband be within the four Seas (viz.) within the Jurisdiction of the King of England, if the Wife hath Issue, no proof is to be admitted to prove that Child a Bastard (for in that Case Filia­tio non potest probari) unless the Husband hath an [Page 13] apparent impossibility of Procreation, as if the Hus­band be but eight years old, &c. But if the Issue be born within a month or day after Marriage be­tween parties of lawful age the Child is legiti­mate.

If the Husband be castrate,Where Issue shall-be a Br­stard though born within Marriage. so that it is apparent that he cannot in any possibility get Issue, if his Wife hath Issue divers years after, this shall be a Bastard although it be begotten within Marriage, because its apparent that it is not legitimate: In the Starr-Chamber 14 Jac. Done and Egerton ver­sus Hinton and Starkey, by the Lord Chancellor and Montague, but Hobart contra.

If a Woman be big with Child by A. and after A. marries her, and the Issue is born within the Espousals, this is a Mulier and not a Bastard. (Mu­lier in our Law signifies Uxor, & sic filius natus vel filia nata ex justa uxore appellatur in legibus An­gliae filius mulieratus vel filia mulierata.)

So if a Wife be big with Child by one, and after another marries her, and after the Issue is born (though but three days after) this is a Mu­lier and no Bastard, because born within the Espou­sals.

If a Feme Covert hath Issue in Advoutry, yet if the Husband be able to beget a Child, and he is within the four Seas, it is not a Bastard. Egerton's Case. So it is if a Woman elope and live in Ad­voutry with another, but then the Husband must be within the four Seas, so as by intendment he may come to his Wife.

Bastardy. In what Court to be proved.

If a Suit to prove a Bastardy and Legitimacy be first commenced in the Ecclesiastical Court before [Page 14] any Question be moved of such Matter in the Tem­poral Court of the King a Prohibition lies to re­strain such Suit; and if it accompanied with Pra­ctice and Fraud this is a Misdemeanour punishable in the Chancery. And the reason why the Ecclesiasti­cal Judge cannot enquire of Legitimacy or Bastardy before he hath received direction or commandment out of the Temporal Court of the King is, because the Court Christian never had power to intermedle with Temporal Inheritances directe or indirecte.

It hath been resolved, that where the Question of Bastardy or Legitimacy hath been moved in the King's Temporal Court, and Issue upon it be joyn­ed there; then it may be transmitted to the Eccle­siastical Court by the King's Writ to be examined and tried there; and upon this the Bishop ought to make a Certificate to the King's Court, which Cer­tificate being made in due manner the Law gives such Credit to it, that all the World shall be estop­ped and bound by it.

But in an Action on the Case for calling one Bastard, the Defendant justified that he was a Ba­stard, and it was awarded that this should be tried per pais, and not by the Ordinary, Hob. 179.

General Ba­stardy where tryable. Special where.General Bastardy ought to be tryed by the Bishop, and not per Pais, 18 Ed. 4. 3. a. Special Bastar­dy per Pais. When the Issue is joyned upon Ba­stardy before it shall be awarded to the Ordinary to be tryed, Proclamation shall be made of it in the same Court, and after the Issue shall be certified into Chancery where Proclamation shall be made once a month for three month, and after the Chancellor shall certifie this to the Court where the Plea is depending, and after it shall be proclaimed again in the same Court, that all those whom this Plea doth concern shall go to the Ordinary to make their Allegations, 10 H. 6. c. 11.

If the Wife of a Man who hath been beyond Sea by so long time before the Birth of the Issue, which the Wife hath in his absence, that the Issue cannot be his Issue, this is a Bastard, Hill. 14 Jac. 2. in Ca­mera Stellata, Done & Egerton.

In respect of Marriage unlawful.

If a Man having a Wife takes another Wife, and hath Issue by her, living the first Wife, this Issue is Bastard, for the Second Mariage is void, 7 Co. 44. Kenn's Case.

If a Man marry his Cousin within the degrees, the Issue between them is no Bastard until a Di­vorce, for the Marriage is not void, 18 H. 6. 34. b. So it is if the Brother marry his Sister.

If a Man hath Issue by A. and afterwards inter­marry with her, yet the Issue is a Bastard by our Law, but a Mulier by the Civil Law.

An Ideot a nativitate may consent to Marriage, and his Issue shall be legitimate, Trin. 3 Jac. Stile and West, B. R.

Bastard by our Law, and Mulier by the Civil Law.

If A. hath Issue by B. and after they intermarry, yet the Issue is a Bastard by our Law, but a Mulier by the Civil Law, 11 H. 4. 84.

By the Constitutions of the Pope a Bastard born before the Espousals of the same Parents, who after intermarry, is legitimate; yet it appears by the Statute of Merton cap. 9. the King refused to accept such Law in this Realm, and answered to the Motion of it in Parliament, Nolumus Leges Angliae mutari.

If the Parents are divorced causa Consanguinitatis, they not having notice of this at the Marriage, the Issues had before are Bastards by our Law, and Mu­liers by the Civil Law.

If a Man had Issue by a Woman, and after mar­ry the same Woman, the Issue by our Law is a Bastard, and by the Spiritual Law a Mulier.

Bastard by the Spiritual Law, and Mulier by our Law.

If a Man marry a Woman big with Child by another, and within three days after she is delivered, in our Law this is a Mulier, and in the Spiritual Law a Bastard.

If a Woman elope and hath Issue in Avowtry, the Issue is a Mulier in our Law, and by the Spiri­tual Law a Bastard, 43 E. 3. 19, 20.

But if a Man who hath one Wife takes another, and hath Issue by her, this Issue is a Bastard by both Laws, for the second Marriage is void.

Divorce.

What Divorce shall bastardize the Issue, Vide Tit. Divorce.

At what time the Divorce being made shall bastar­dize the Issue, Vide Tit. Divorce.

Jeo oye que il fuit agreed que si un ad issue bastard eign per un feme & puis la feme mar­rie un auter, & le Baron morust depuis la dit Feme marry a luy per que el ad le bastard & ad issue auter fitz per luy & le Baron morust que si en ceo case le bastard enter en les terres de queux son pere morust seise & ad Issue & morust, que ceo nest tiel descent que barrera le Mulier a claymer les dits terres, car le maxime tient lieu ou le marriage est prosecut & nemy ou un marriage mean ovesque un estranger. Ex Manuscrip. Mri. Brownloe.

Bastardy where tryable.

General Bastardy or un (que) accouple en Loyal Ma­trimony is tryable by the Bishop's Certificate; but special Bastardy, as whether one was born or begot­ten before the Espousals, or whether a woman be a man's wife or not; or whether she were married to another before: These matters being specially al­ledged and put in issue it shall be tried per Pais, Hard. 2. 63. Ashfield's Case.

If Bastardy be pleaded in one, for that he was born of a second wife, living the first, this shall be rryed per pais, for the Marriage is void, 38 Ass. 24. adjudged.

If Issue be, whether a Bastard or a Mulier, it shall be tryed by the Ordinary.

But if the Issue be, whether a Bastard or born within the Espousals, it shall be tryed per Pais, 7 H. 4. 8.

So if the Issue be whether born before Marriage, it shall be tryed per Pais, for this lies well in the Conisance of the Country, 11 H. 4. 84.

In an Issue against an Infant, if Bastardy be plead­ed in the Infant, this shall not be tryed by the Or­dinary, but per Pais; because the Infant is not compellable to take Issue upon it, for then he should lose the advantage of the inquiry of Circumstances, and so no Issue shall be joyned upon this; and if Issue be not joyned between the Parties the Ordi­nary shall not trye it, 30 Ass. 45.

If Bastardy be pleaded in Abatement of the Writ, and the other saith he is a Mulier, this shall be tryed per Pais, because it is not peremptory, 49 Ass. 45.

Who only may write to the Bishop to certifie Ba­stardy.

Note, None but the King's Courts of Record, as the Court of King's-Bench, Common-Bench, Justices of Gaol-delivery, and such like may write to the Bishop to certifie Bastardy, Mulierty, Loyalty of Matrimony, and such like Ecclesiastical matter; for it is a Rule in Law, That none but the King can write to a Bishop to certifie; and therefore no inferior Court, as London, Norwick, York can write to the Bishop; therefore in such Cases the Plea ought to be removed in Banco, and this Court ought to write to the Bishop, and after to remand it again, 1 Inst. 134.

In Assize, if the Tenant saith that A. the Father of the Plaintiff took B. to Wife, and had Issue the Plaintiff, and after they were divorced, and so the Plaintiff a Bastard. To which the Plaintiff faith, that he is a Mulier; upon which a Writ is directed to the Bishop, who certifies that the Plaintiff was born en loyal Matrimony without fully certifying that he is fully a Mulier; and although the Tenant had acknowledged in his Plea that there was a Marriage and that the Plaintiff was born in it; yet because if there were a Divorce then this was not a lawful Marriage, the Certificate aforesaid is good which certifies that he was born in lawful Marriage, 43 Ass. 43.

Upon Issue of Bastard or not, if the Ordinary certifie that the Plaintiff was a Mulier pro­ut per Inquisitionem invenit, this is good with­out certifying generally Legitimus, 3 H. 6. Bastardy 2.

If a Writ issues to the Bishop to certifie if J. S. be a Bastard, if he make a Certificate, yet if he does not remand the writ which comes to him [Page 19] to warrant the Certificate, it is not good, 41 Ass. 29. adiudged.

If a writ issue to the Archbishop Gardein of the Spiritualties sede vacante of the Bishoprick of Co­ventry and Lichfield, to certifie whether A. was ever accouple en loyal, &c. and he returns that Dr. Babington his Commissary of Coventry and Lichfield had enquired, &c. this is not a good Re­turn, because delegata potestas non potest delegari; but the Return ought to have been in the name of the Archbishop himself, Trin. 7 Jac. Foliam's Case.

If between Strangers another be tried a Bastard per Pais, this shall not bind him that is so tryed, be­cause he is a Stranger to the Tryal, and cannot have an Attaint, Doct. and Stud. 68. b.

If a man be certified a Bastard by the Ordinary in an Action personal, he shall be bound perpetually, as well as in Actions real, 19 H. 6. 18. b.

If the Defendant be certified a Bastard by the Or­dinary, yet the Certificate after shall lose its force, if the Plaintiff be afterwards nonsuited, for then the Certificate is not of Record, 18 Ed. 3. 34.

Of Bastard eigne and Mulier puisne in case of Descents.

A man seized of Lands in Fee, and hath Issue Ba­stard eigne and Mulier puisne, and dies: if the Bastard enters, and the Mulier dies, his wife privi­ment enseint with a Son, and the Bastard hath Is­sue and dies seised, the Son is born, his Right is bound for ever; but if the Bastard dies seised, his wife enseint with a Son, the Mulier enters, the Son is born, the Issue of the Bastard is barred; for there must be not only a dying seised, but a descent to his Issue.

Note, That the Case of Bastard eigne and Mulier puisne differ from the common Cases of Descents and Barr; for Descents do only toll the Entry of him that Right hath, but leaveth him to his Action; but now if a man seised of Lands in Fee hath Issue two Sons, Bastard eigne and Mulier puisne, and the Father dies, the Bastard enters claim­ing as Heir to his Father and occupieth the Land all his Life without any Entry made upon him by the Mulier, and the Bastard hath Issue and dies seised, and the Land descends to his Issue, who en­treth; in this Case the Mulier is barred for ever, both of his Entry and of his Action; for the Issue of the Bastard is become in Judgment of Law as lawful Heir: For its the ancient Law, Justum no [...] est aliquem post mortem facere Bastardum, qui tot [...] tempore vitae suae pro legitimo habebatur, 1 Inst. 224. 8 Co. Lechford's Case.

How Estates may be limited to a Bastard by reputed Name, or not.

If a Remainder is limited to J. S. Son of W. S. although he be a meer Bastard, and no Mulie [...] by the Spiritual Law, yet if he be reputed for hi [...] Son, its a good Remainder: But if an Estate fo [...] Life be made, the Remainder to the Issue of th [...] Body of J. S. or of him begotten on the Bod [...] of A. S. if he hath afterwards an illegitimate Issu [...] yet this Issue shall never take this Remainder, becaus [...] he cannot have the Reputation of Issue before hi [...] Birth, 1 Inst. 3. b.

If A. makes a Feoffment in Fee to the use o [...] himself for Life, the Remainder to the Issue Mak [...] of one Mary Lloyd of her Body begotten by A. th [...] Feoffor; whether he be lawfully begotten or not so that he be the reputed Son of A. it is sufficien [...] [Page 21] for him to intitle himself to say, that he is the Son of the said A. begotten on the Body of the said Mary Lloyd, and that he is so reputed in the com­mon Reputation of the Country, although he was not born nor in esse, at the time of the Remain­der granted; and although there are lawful Issues between them which are puisne to the Bastard; for the person who is to take is certainly described; for the Bastard of a woman is certainly known to be her Issue, and this is limited to the eldest Issue, Mich. 38 and 39 Eliz. Blodwel and Edwards.

But though a Bastard be a reputed Son, yet he is not such a Son in consideration whereof an Use can be raised, because in Judgment of Law he is nullius Filius, 1 Inst. 123. a.

By a Devise of all his Goods to his Children a Bastard eigne shall take a Portion, Moor f. 10.

Note, An English Merchant living beyond Seas hath Issue a Son by a woman of that Country, who is an Alien, although by the Civil Law Partus sequitur ventrem; yet it is not so in our Law, for the Child shall be of the Fathers condition, for the woman was sub potestate viri, quasi under the Al­legiance of our King.

What Conditions in Law shall bind a Feme Covert or not.

If Conditions in Law founded upon Skill and Confidence, as Offices of Parkship or Stewardship in Fee, &c. descend to a Feme Covert, if the Con­dition in Law annexed to them be broken, this shall bar her for ever: But if Feme Covert be Les­see pur vie, or Tenant in Dower, and her Husband makes a Feoffment in Fee, and the Lessor enters for the Forfeiture, as he may, yet the Feme after her Husband's death may enter, for this is a Condition in Law without any Skill or Confidence annexed to the Estate, 8 Co. 44 Whittingham's Case.

Women in Prison by reason of their Pregnancy have been released upon Bail, Cro. Jac. 356.

She is punishable upon a Malefactoribus in Parcis, Hob. 95, 97.

She is imprisonable for force, Hob. 97.

She is punishable within the Statute of 10 Eliz. for hearing Mass, and within 23 Eliz. for not coming to Church.

A Woman (though the Custom be to elect by Houses) may not be a Constable, Cro. Car. 388. Prouse's Case.

But Lapss shall incurr against a Feme Covert if she doth not present within six Months.

Regularly no Lachess shall be accounted to In­fants or Feme Coverts for not Entry or Claim to avoid descents; yet Lachess shall be accounted to them for Non-performance of a Condition annexed [Page 26] to the Estate of the Land; for if a Feme be en­feoffed either before or after marriage, reserving a Rent, and for default of Payment a Re-entry, in this case the Lachess of the Husband shall disherit the Wife for ever, 1 Inst. 246. b.

Privileges in Suits.

If the Husband have Privilege in Chancery it shall not serve for his Wife. P. C. Clark of the Crown in Chancery and his Wife, as Executrix to her first Husband, were impleaded in Banco he brought a Writ of Priviledge for himself and his wife, & non allocatur, because the is not implead­able there, nor her attendance requisite.

What Priviledges the Wife shall have by reason of her Husbands Priviledge in Actions.

L. brought Debt against Sir Simon Fanshaw and his wife, as Executrix of another, and sued to the Exigent, and at the return of the Exigent the De­fendant, Sir Simon, came into the Court voluntarily and prayed his Priviledge, because he was an Officer of the Exchequer, & per Curiam the Defendant shall not have his Priviledge, because the Action was brought against him and his wife en auter droit. Rolls in his Argument of this Case took these dif­ferences.

Diversities.1. Where the Defendants are coming to make their appearance and are arrested, as in 22 H. 6. 20. and where they are sued in one Court and the Hus­band demands his Priviledge because he is an Officer in another, as in this Case.

2. Where he is Defendant, and where he is Plain­tiff.

[Page 27]3. Where he is sued in his own right, and where in the right of another, as in this Case. In the first of these differences he shall have his Priviledge, in the later not. Quaere, If the Defendant had not surceased his time in this Case, because he demands his Privilege at the Exigent, and not before, March. Rep. 149. Levet and Sir Simon Fanshaw's Case.

T. P. a Clerk in Chancery, marryed a Feme, who was Executrix to her Husband, Debt was brought against them in C. B. T. P. brings a writ of Privilege to have the Action removed into Chan­cery; the writ was disallowed by the Court, and the Defendant ruled to answer over, because the Wife was joyned in the Action with the Husband; aliter, where the Wife comes in aid of her Hus­band to follow the Suit, Godb. p. 10. Dyer 377. Pole's Case.

If the Husband be solely impleaded in Banco, and he comes with his Wife to the Court to de­fend the Suit, and both are arrested, there they shall have Privilege.

The time of the Agreement or Disagreement to the Marriage, when they marry infra annos nubiles.

The time of Agreement or Disagreement for the Woman is at twelve, or after; and for the Man at fourteen or after, and there needs be no new Mar­riage if they so agree; but disagree they cannot before the said Ages; but then they may disagree and marry themselves to others without any Di­vorce, and if once they give consent they can never disagree after, 1 Inst. 79. 2 Co. 16.

If a Man at fourteen marry a Woman at the Age of ten, at her Age of twelve he may disagree, as well as she may, though he were of the Age of Consent; because in Contracts of Matrimony both must be bound, or equal election of Disagreement given to both: So it is e converso, if the Woman be of the Age of Consent, and the Man under.

If a Man marry a Woman, who is within the Age of twelve years, and after the Wife disagrees to the Marriage within the Age of twelve years also, and after the Age of twelve years marry with ano­ther; now the first Marriage is absolutely defeated so that he may take another Wife;What a­mounts to a Disagreement. for although the disagreement within the Age of Consent was not sufficient, yet the taking another Husband after the [Page 30] Age of Consent affirms the Disagreement, and so the Marriage is void ab initio, as it was adjudged in Babington's Case. But if a man marry a wo­man within the Age of twelve years, and after the wife at eleven years of age disagrees to the mar­riage, and after the Husband takes another Wife and had Issue by her, this is a Bastard; for the first con­tinues notwithstanding the disagreement of the wo­man; for she may not disagree within the age of twelve years, and so her disagreement was void, 1 Roll. Abr. 341.

A Feme marries with J.S. and within the age of twelve years disagrees and marries with another, the second marriage resolved to be good; for the Church providing against the change of Lust pro­hibits Divorces, but here under the age of twelve years is not any such mischief, Per Noy, Banister's Case cited Dyer 13. in Margine. And by him mar­riage by Duress is good, against the Opinion of Frowick, Palmer 52. otherwise by such Allegati­ons Divorces would by frequent to satistie the Lusts of men.

If a man within the age of fourteen takes a wife of twelve, or more, this is a marriage, and they are Baron and Feme de facto; so that the husband may have Trespass de muliere abducta cum bonis vi­ri, Trin. 12 Jac. B. R. Bradshaw and Fletcher. And if the man come to fourteen, and make any continuance of the Action, this shall be a good agreement to the marriage, so as it afterwards shall not be defeated.

If disagreement be before the Ordinary, then they can never after agree to make it a good marriage, though within the age of Consent. Quaere.

Debt on Obligation by Baron and Feme; the Defendant pleads the Wife had another Husband in full life. The Plaintiff replies, that the Feme ad annos nubiles disagreed. The Defendant demurs. [Page 31] The Question was, If he ought to agree or disagree before annos nubiles? Per Popham, If she marry another Husband infra annos nubiles this shall be a disagreement. But it was adjudged pro Quer. be­cause Cohabitation was with the second Husband all the time after the years of Consent, More 575. Warner & sa Feme against Babington.

It was a Question, If the death of the Baron be­fore the years of Consent of the Wife doth defeat the marriage ab initio, as disagreement shall do, or had dissolved it without disaffirmance; and per Cu­riam it hath dissolved and disaffirmed it; for the Baron dying there is not any marriage, and Spon­salia may be before the years of Assent, but not Matrimony, More 742. Sir Arthur Gorge.

What Marriages are within Levitical Degrees or not.

IN the Statutes of 25 H. 8. c. 22. and 28 H. 8. c. 7. the Degrees prohibited in the 18th of Le­viticus are truly set down, and not only Degrees of Kindred and Consanguinity, but Degrees of Af­finity and Alliance are set down, and may be best il­lustrated and viewed in this Scheme.

• Degrees of Consanguinity prohibited, or a Man may not marry
  • his Father's Sister.
  • his Mother.
    • his Sister.
    • his Daughter.
    • the Daughter of his Son or Daughter.
  • his Mother's Sister

[Page 32]

• Degrees of Consanguinity, or a Woman may not marry
  • her Father's Brother.
  • her Father.
    • her Brother.
    • her Son.
    • the Son of her Daughter.
  • her Mother's Brother.

• Degrees of Affinity prohibited, or a Man may not marry
  • his Uncle's Wife.
    • his Brother's Wife.
  • Father's Wife.
    • his Son's Wife, or Wife's Daughter.
    • the Daughter of his Wife's Son or Daughter.
  • Father's Wife's Daughter.
    • his Sister's Wife.

• Degrees of Alliance prohibited, or a Woman may not marry
  • her Aunt's Husband.
    • her Sister's Husband.
  • her Mother's Husband.
    • her Husband's Brother.
  • her Daughter's Husband.
    • the Son of her Husband's Son or Daughter.

The Act of 13 H. 8. provides for two things: The first was against the dissolution of Marriages con­summate with bodily knowledge upon pretence of Precontracts; the other by reason of other Prohibiti­ons to marry than God's Law requireth: But that Clause about Precontracts is repealed, 2 E. 6. c. 23. 1 Eliz. c. 1. Stat. 15 H. 8. c. 22. 18 H. 8. c. 7. cap. 16. 32 H. 8. cap. 38. are the Statutes which concern Marriage within Levitical degrees.

Marriages between Cousin-Germans and all Mar­riages onwards between Cosin-Germans are by the Statute of 32 H. 8. cap. 38. made lawful.

All Marriages are lawful which are not prohibited within the Levitical degrees.

Harrison married his Grandfather's Brother's Wife by the Mother's side, this was held lawful by the Judges, Vaughan's Rep. &c. Harrison and Nunwel, where you may read excellent Learning about the Common Law's cognisance as to Marriages, and of the Construction of the Levitical degrees.

Quae eandem habent rationem propinquitatis cum eis quae nominatim prohibentur: Regula. And therefore though the Marriage of the Nephew cum amita & matertera is forbidden by the said 18th Chapter of Leviticus, and yet the Marriage of the Uncle with the Neece is not by express words prohibited, yet the same is prohibited.

So Cro. Eliz. 298. Mann's Case. Mann had married his Wife's Sister's Daughter, for which he was sued before the High Commissioners; for tho' this was not expresly forbidden by the Levitical degrees, yet because degrees more remote are for­bidden, they gave Sentence of Divorce; and he grounded his Prohibition on the Statute of 32 H. 8. cap. 38. and a Consultation was granted, because the Prohibition is not to be, if it be within the Le­vitical degrees, and here it was, general and there­fore not good.

In Siderfin p. 434. Mich. 21 Car. 2. B. R. Hes­ward and his Wife against Horn.

It was moved for a Prohibition to the Spiritual Court, and the Suggestion was, that they proceeded there to excommunicate the Plaintiffs, because the Plaintiff H. had espoused the other Plaintiff, who was his last Wife's Sister's Daughter, and it was grant­ed, Vid. More 907. 2 Kelw. 551.

Grotius de Jure Belli lib. 2. f. 137. sect. 12, 13. distinguisheth well that Lineal Parents are only prohibited, not Collateral ascending or descending; and to this the Court inclined.

The Plaintiff sued one in the Ecclesiastical Court for marrying his Sister's Daughter, and the Defen­dant prayed a Prohibition, because out of the Levi­tical degrees; but it was denied, because it is a Cause of Ecclesiastical Cognizance, Raym. 464.

If a man marry his Mother or Sister they are Hus­band and Wife until a Divorce.

But if a Wife take a second Husband, living the first Husband, this Marriage is void by our Law, as by the Spiritual Law, contra 9 H. 6. 14.

Whether Mar­riage be with­in the Leviti­cal Degrees, determinable by the Com­mon Law.One had married the Widow of his Brother's Son and the High Commissioners adjudged it Incest▪ But per Curiam this Marriage is lawful, per Stat. 32 H. 8. and 28 H. 8. And this Marriage bein [...] within the Levitical degrees shall be determine [...] by the Common Law; and so the Judges have taken upon them the Exposition of the Levitic [...] degrees by force of the Statute of 32 H. 8. as appears by Person's Case remembred in Coke's Ne [...] Entries, Litt. Rep. 356. Williams's Case.

Prohibition was denied to the Ecclesiastical Cou [...] in Suit there to dissolve an incestuous Marriage of his Brother's Daughter, Sir Thomas Jones 191. Margatrides Case. Though the Suggestion was, that Land settled on the said Marriage should be drawn into Question in the Spiritual Court, but [Page 35] no Prohibition was granted in Collet's Case; for up­on such pretence incestuous Marriage may be sheltred, and this matter lies properly in the Spiritual Juris­diction. The Case was. Collet's Wife was the Si­ster of his former Wife now dead; but upon Infor­mation to the Court, that the Suit in the Spiritual Court was only a Contrivance of Collet to gain him Power to dispose of the Estate, and Collet, the Fa­ther at first instance had confessed the prior Marri­age, and the Spiritual Court was ready to give Sen­tence for the Divorce upon his Confession without farther Evidence; The Court proposed there should be a Tryal at Common Law upon a feigned Acti­on, wherein the Issue should be, whether ever Col­let was married to the Sister of his Wife, which be­ing refused, day was given to shew Cause why the Prohibition should not be granted, and Proceedings to be stayed in the Interim, and so from Term to Term, Sir Thomas Jone's Rep. 213. Collet's Case.

As to Divorce declaring the Marriage to be void, Vide infra Tit. Divorce.

As to Profession, that is, when one is regular and profest under certain Rules, as to become one of the four Orders of Fryars, or a Monk, Canon or Nun; it was held in our Books, that if a Deacon or Priest take a Wife, the Marriage was not void, but voida­ble by Divorce: But if a Man marries a Nun, or a Monk marrieth another woman, the Marriage is void, and the Issues are Bastards, because they were dead persons in Law, and are under a Vow of Chastity, 1 Inst. 138. 12 Co. 8.

If an Ideot contract Matrimony, this is good and shall bind him, as was judged in Styles and Wech's Case, 3 Jac. 1. cited in Siderf. Scot and Manbies Case 112.

Precontract.

Matrimonial Causes are of Spiritual Cog­nisance, and how.In Construction of the Civil Law the Wife is Uxor before the Espousals by Contract; for if they have Carnal Copulation after Contract, they shall not be punished for Adultery or Fornication, only for Contempt against an Edict of the Church, which hath prohibited carnal Copulation before the E­spousals solemnized in facie Ecclesiae. If a Legacy be given to a woman cum uxor fuerit, and she con­tract her self, she shall demand the Legacy in the Spiritual Court before the Espousals celebrated, Mo [...] 170. in Bunting's Case.

Where and in what Cases Tryal shall be by the Bi­shop's Certificate, or in Pais, or not.

The Right of Espousals is evermore triable by the Bishop's Certificate, as if the Issue be accouple en loyal matrimony or not; this is tryable by the Bishop, and not per Pais, 7 H. 4. 25. 19 H. 6. 18. So if such Issue be in a Writ of Dower it shall be tried by the Bishop; so in an Appeal: But whe­ther a woman be a Feme Covert or Sole is always triable per Pais: So if the Issue be Wife or not Wife, married or not married, it is tryable per Pais, 7 H. 4. 25.

If a Feme and her Husband bring Trespass, Nient son feme shall be tryed per Pais: So if Feme Co­vert bring Assize, as a Feme sole, if the Tenant saith, she is a Feme Covert, it shall be tryed by the Assize. In Assize by Baron and Feme the Tenant saith, that the Wife is the Wife of a Stranger. The Demandant saith, that the Marriage between them was within the Age of Consent, and after at twen­ty years of Age she took him to Husband, & issint sa Feme, and not the Wife of a Stranger; this shall be tryed per Pais, 49 Ed. 3. 17. b. Isabel Good­cheap's Case.

In a Cui in vita, if the Issue be whether the Alienor were her Husband it shall be tryed per Pais, for the Action lies if he were her Husband in facto.

In a Writ by W. C. and M. his Wife; if the Issue be whether she were the wife of W. C. in A­batement of the Writ, this shall be tryed per Pais, 39 E. 3. 16.

Whether a Marriage be solemnized shall be tryed per Pais.In a Writ of Covenant to assure certain Lands within twenty days after the Marriage solemnised between A. and B. If the Issue be whether there were any such Marriage solemnized or not, this shall be tryed per Pais, and not by the Ordinary, Mich. 4 Jac. B. R. Fletcher and Muffet.

If A. covenant with B. that if B. marry with the Daughter of A. rite & legittime secundum Leges Ecclesiasticas he will assure to B. a Copyhold Estate. B. brought his Action of Covenant, and alledgeth that he rite & legittime espoused the Daughter of A. upon which Issue was joyned, and found for the Plaintiff. Exception was taken, be­cause it ought to be tryed by Certificate and not per Pais: Sed non allocatur; for the Marriage is only in Issue, and that is the substance, and not whether he were lawfully espoused; for the Legitimation doth not come in Question; and it was held sufficient for the Plaintiff to alledge a licet saepius requisitus without giving notice of the Marriage, for he ought to take notice at his peril, Cro. Jac. 102. Fletcher and Pynset.

If the Issue be whether the Church is void or not void,Whether Co­verture or sole shall be tryed per Pais, but encouple en loyal matrimony by the Bishop, and the reason of the diversity. this shall be tryed per Pais; but whether a Church be full or not shall be tryed by Certificate; so if the Issue be whether such a Woman be covert or sole, this shall be tryed per Pais, though the Is­sue whether such a woman was accouple en loyal matrimony shall be tryed by Certificate; and the reason of the diversity in both Cases, is this; Voi­dance [Page 39] or not Voidance, a Coverture or Sole are things noturious to the Country, and distinguishable by them; but Plenarty and loyal Matrimony are not things within their Cognisance: For though a wo­man lie with a man as her Husband, yet the Coun­try cannot judge whether they are lawfully marryed or not, Sid. p. 39. in Watson and Baker's Case.

So is Ventris 77. If Issue be, whether she is the wife of such a man, it is to be tryed per Pais; and if she be wife de facto, shall be tryed by that Issue; but Loyalty of Matrimony is to be tryed by the Bi­shop by Certificate.

Trin. 13 Car. 2. B. R. In Debt on a Bond to pay Mony at Marriage, unques accouple does not draw the Right of Marriage in question. Exception was taken; it is not alledged that the party was married at the time of the Bill, but Issue being joyned upon married or not married, after Verdict this shall be aided, there being a good Negation and Affirma­tion, 1 Glascock and Morgan.

Now the difference between a Marriage in Right and a Marriage in Possession is much to be regarded and ought to be carefully attended to in Pleadings.Diversity be­tween a Mar­riage in Right and a Marria­age in Posses­sion, and the consequence thereof in Pleading.

Marriage in Possession is sufficient always in per­sonal things and causes, especially where the Possession of the Wife is in question: But where the Posses­sion of the Husband is in question there Marriage in Right ought to be; and where Marriage in Posses­sion falls in Averment, there it shall not be tryed by the Bishop, as in the Case of Marriage in Right where nunq' accouple is pleaded, but in Pais. For in case of a Wife in possession nunq' accouple is no Plea, but not his Wife: So is the Case 12 Ed. 3. Br. 481. A. brought an Action of Trespass against B. and C. B. pleaded that C. is Wife of the Plain­tiff, and demanded Judgment of the Writ; the Plaintiff in his Replication said, nunq' accouple, and this Replication was not allowed, but he was driven [Page 40] to say, Not his Wife; for if C. were the Wife of the Plaintiff in Possession or by Reputation it is suf­ficient to abate the Writ.

Upon Marriage de jure infra annos nubiles, if the Husband be murdred before his Agreement, the Wife shall have an Appeal of Murder, or a Writ of Dower.

Of the Certificate of the Bishop, and the Return.

E. and his Wife demanded her Dower of the Lands of W. S. her former Husband. The Defen­dant pleads nunq' accouple en loyal Matrimony. The Issue was, Quod fuit accouple en loyal matrimony; thereupon a Writ was awarded to the Bishop, who certified that she was accoupled in vero matrimonio cum praed. W. sed clandestino, & quod W. & E. thori & mensae participatione nondum cohabitave­runt usque ad mortem praed. W. Upon this Certi­ficate Judgment was given for the Demandant. Er­ror assigned was, because there was neither day nor place of the Marriage mentioned in the Bishop's Cer­tificate. Sed non allocatur. For the day or place of the Marriage is not material, for it is not issuable, because the Certificate from the Bishop is concluding 2. It was assigned, that this Certificate is not good, because it doth not answer to the words of the Issue, which was n'un (que) accouple en loyal matrimony; he ought to have answered, Quod fuit copulatus in legiti­mo matrimonio, but he saith, Quod vero matrimonio, sed clandestino, which is but argumentative that they were lawfully marryed, their cohabiting at Bed and Board: Sed non allocatur; for vero matrimonio is as good as legitimo, and though it be clandestino it doth not vitiate the Marriage, and the other words prove they continued as Baron and Feme, Cro. Car. 351.

In a Writ of Dower, upon an Issue n'un (que) ac­couple, &c. if a Writ issue to the Bishop to certifie, &c. and he certifies that the Husband being of 11 years, 10 months and 20 days of age, and the Wife of 16 years of age intermarried in facie Ecclesiae, and so they were accouple en loyal matrimony; this is not a good Certificate, because it doth not give a full answer to the Writ, whether they were accouple en loyal matrimony, Dyer 313.

But if upon such Writ and Issue the Bishop cer­tifie that he had made diligent inquisition of the matter, by which he had found by lawful proofs that the Woman at such a place in certain was ac­coupled in loyal Matrimony to the said Husband mentioned in the Writ; this is a good Certificate although it was objected that he should have certi­fied his proper opinion, and not only the Inquisition, for he had not certified so much as the Writ requires in effect, Dyer 368.

The Plaintiff brought a Writ of rationabili parte bonorum against the Executors of the Husband, and demands her part of divers Goods in certain. The Defendant pleads, n'un (que) accouple en loyal matrimo­ny; Upon which a Writ was awarded to the Bishop of Chester, in whose Diocess the Wife pleads the Marriage: The Plaintiff, who had the Carriage, de­livers it to the Bishop, and prays him to examine it; upon which, and notice given to the Defendant, he did examine divers Witnesses; afterwards the Plaintiff seeing the Bishop inclinable against him, took away the Writ from the Bishop's Secretary. The De­fendant takes another Writ without motion in the Court, Teste the same Term: Upon which the Bishop, without other Examination and without notice of this Writ to the Plaintiff, returns under his Seal Episcopal Nun (que) loyal accouple; and the De­fendant thereupon prayed Judgment. Per Curiam. The Writ taken out by the Defendant without mo­tion [Page 42] was irregular, but by the Preignotaries the Ir­regularity was in defect of notice to the Plaintiff. In this Case the Plaintiff had two Children by the supposed Husband, which were by this Certificate made Bastards, although reputed legitimate before, Sir Thomas Jones p. 38.

A Certificate of Marriage by the Bishop is per­emptory, the Marriage being at Utrecht beyond Sea, and certified under the Seal of the Minister there, and of the said Town, and that they cohabited two years together as Man and Wife, was held a suffici­ent proof that that they were married, Cro. Jac. 542. in Alsop's Case.

What Alterations are made by Intermarriage.

IF a Woman that is noble by descent marry one that is under the degree of Nobility,As to Names of Dignity. yet she re­maineth noble still; but if she gain her Nobility by Marriage, she loseth it, if she marry under the de­gree of Nobility; and so is the Rule to be under­stood, Si mulier nobilis nupserit ignobili desinit esse nobilis. But if a Dutchess by Marriage marry a Baron of the Realm she remains a Dutchess, and loseth not her Name, because her Husband is noble. Et sic de caeteris.

As to Devi­sees having changed their Name by Marriage.A Man had Issue a Son and a Daughter, and de­vises his Land to his Sons in Tayl, and if he died without Issue, that it should remain to the next of his Name, and died; the Son died without Issue; the Daughter being then married, and the Question was, Whether she should have this Land. Per Curiam, she shall not; for she had lost her Name by her Marriage; but it shall go to the next Heir Male of the Name. Aliter, If she had not been maried; for then she should have had it, for she then was the next of the Name, Cro. Eliz. 532. Bon and Smith, and so was Jobson's Case, Cro. Eliz. 576. Jobson devised Lands in Tail, the Remainder to the next of his Kin of his Name; and at the time of the Devise the next of his Kin was his Brother's Daughter then married to J. S. The Devisor dies, the Tenant in Tail dyed after­wards sans Issue, this Daughter shall not have the Land, for she is of her Husband's Name; but if she had been unmarried at the time of the Devise and death of the Donor, though she had been mar­ried at the time of the death of the Tenant in Tail without Issue, yet she should have had the Land.

As to alrcration of Estates, Vide Tit. Moyeties.

As to the Goods and Leases of the Feme, Vide infra.

As to the Alteration of Actions, Vide Tit. Abate­ment.

I shall only at present consider

Where and in what Cases Intermarriage shall amount to a Countermand, Revocation, Release, Suspen­sion or Extinguishment.

Livery within the View not revoked by Marriage.Two Women were Jointenants in Fee, one of them made a Charter of Feoffment to J. S. and Livery within the view, and afterwards before it was executed, marries. Per Curiam, This Livery [Page 54] was well executed after the Marriage, for an Inte­rest passeth by the Livery within the view which cannot be countermanded; the effectual part of it, Go and enter and take possession, was before the Marriage; though the Estate be in the Wife till En­try, she hath put it in the Feoffor's power, and when he enters it hath a strong Retrospect to the Livery,Pleading. and shall be pleaded as a Feoffment when she was sole, 1 Ventr. 186. Parsons and Perat.

But a Livery by Letter of Attorney is revoked by Marriage; but Livery within the View is a present Livery.

If A. a Feme sole lease for Life or Years,Attornment. and after grants the Reversion to B. and afterwards takes C. to Husband, this is a Revocation of the Grant; so that nothing shall pass to B. by the At­tornment of the Lessee afterwards, because by the Intermarriage C. is seised in the Right of his Wife, and had a possibility to be Tenant by the Courtesie, 2 R. 2. Attornment 8. Vid. 4 Co. 60. Force and Hembling's Case. But if A. the Feme, after the Grant of the Reversion to B. had taken B. to Hus­band, this had not been any Revocation of the Grant, but that the Lessee might have setled the Reversion by Attornment afterwards, because the Husband may not have a better Estate by the In­termarriage than he shall have by the Grant, Ibid.

A Woman deviseth Lands to A. and his Heirs,Devise. if he survive her, and after she intermarries with the said A. It was argued per Curiam that by the taking him to Husband and Coverture at the time of her death the Writ is countermanded, it being her own Act, 4 Co. 61. Force and Hembling.

If two Women exchange Lands,Exchange. and one mar­ries before Entry, this shall not defeat the Ex­change.

If A. of the one part and B. and C. a Feme sole of the other part,Arbitrament. submit themselves to the Arbi­trament [Page 46] of J. L. and afterwards C. takes J. S. to Husband, and after the Arbitrator before any notice of the Marriage makes an Award, that B. and C. shall pay 30 l. to A. yet this shall not bind J. S. and C. his Wife, nor B. for for the Submission by the Marriage of C. is revoked as to B. also, and this also without notice, 1 Roll. Abr. 331. White and Gifford. So is Saccum's Case, 2 Keb. 865. In Debt on Bond to submit to an Award; the Plaintiff on Oyer pleads the Intermarriage of the Wife with the Plaintiff before the Award; to which the De­fendant demurred. Per Curiam: Marriage is her own Act, and was a Revocation of the power given to the Arbitrators.

A Widow binds her self in a Bond conditioned that if the said Obligor from time to time and at all times upon request do such Act and Acts for the conveying of such Mesuage, &c. and for such E­states, &c. The Obligee tenders an Assurance, which was not according to the Condition, but differed in the Limitation of the Estate, and the Obligor re­fused to accept it. She afterwards married, and the Question was,If Marriage be a breach of the Condition as to disability. if the Marriage were a breach of the Condition, she having disabled her self to make a Conveyance, and the Baron is entitled to be Tenant by the Courtesie, and yet it is but a Possibility; and the Court advised the Defendant to make a good Conveyance, Hardr. p. 463. Edwards and Owen.

Copyhold sus­pended.A Feme sole seised of a Mannor wherein there were Copyholds, one of the Copyholders marries with the Feme, the Copyhold is suspended by her Intermarriage, Godb. 11. Cr. Eliz. p. 7.

What Agreements between the Husband and Wife, stand good or be extinguished by the Marriage.

It is commonly held in our Law-Books, that Agree­ment between Husband and Wife before Marriage is extinguished by the Marriage, Hob. 216. Smith and Stafford, but with this diversity, as was the Case of the Lady Pridgeon in Chancery. She being a Widow, upon her Marriage with Sir Francis Prid­geon suggests an Agreement precedent to the Mar­riage between him and her, and others on her be­half, that notwithstanding her Marriage, the Rents and Profits of all her own Estate, and what perso­nal Estate and Goods she had should be at her own disposal, but the Executors of Sir Francis claimed them: And the Chief Baron Hales, who assisted at the Hearing, declared, That though where an Agreement is between Baron and Feme before Mar­riage, that the Wife may by her Will dispose of part of her Estate, or for a thing which is future to the Marriage, such an Agreement was not dis­solved by the Marriage, yet where an Agreement is to have Execution during the Coverture, as was in the Case of the said Lady Pridgeon, there the Marriage extinguisheth such an Agreement; and they concluded that the Plaintiff had no ground of Suit, Cases in Chanc. 117, 118. Smith and Stafford's Case was upon Speech of Marriage between A. and S. he promised, that if she would marry him, and he dyed before her, he would leave her worth 100 l. she married him: Now whether the Promise in Law was released by this Marriage was the Question. And it was adjudged contrary to the Opinion of Ho­bert, that it was not released, not being to be per­formed till after the death of him that made the Promise.

The Lady Darcy being a Widow and seised of a Jointure of 700 l. per annum, agreed to marry Mr. C. and he before the Marriage agreed with her by Writing, that it should be lawful for her, or such as she should appoint, during the Coverture to receive and dispose of the Rent of her Joynture as she plea­sed, and the Deed was put into the Hands of H. her Agent. They married, and for ten years H. received the Rents, and with the approbation of the Lady paid the same to Mr. C. He dyed, the Lady exhi­bits her Bill to have Account from H. and made Title to the same by the Agreement. Per Curiam. The Agreement was extinct by the Intermarriage, Cases in Chancery 21.

So if Baron and Feme lease at Will the Land of the Wife rendring Rent, and the Husband dies, ye [...] the Lease shall continue, 1 Inst. 55. b.

Release in Law.If Feme Obligee take the Obligor to Husban [...] this is a Release in Law; so it is if two Feme Obligees, and one takes the Debtor to Husband but if the Feme Executrix take the Debtor t [...] Husband, this is no Release in Law, for that wo [...] be wrong to the Deed, and in Law work a Dev [...] stavit, which an Act in Law shall never wo [...] 1 Inst. 264. b.

As to Marriage being a Release in Law of Assumpsit, Vide Hob. 216. Smith and Stafford, as 2 Sid. 58. & postea.

Intermarriage repeals her Submission to Arbit [...] ment dum sola, 3 Keb. 9.

Escape. Plat's Case Plowd. 17. a. If a Woman be W [...] den of the Fleet, and one that is in prison the [...] marry her he is thereby out of Prison, and the La [...] adjudgeth him thereby to be enlarged, because it i [...] repugnant that he as her Husband should have th [...] Custody of her, and she as a Jaylor the Custody [...] him, cited 2 Veutr. 10.

Where a Term is extinguished or not. Where it comes to Husband or Wife, who had the Inhe­ritance.

Lease for years, the Reversion for Life to A. a Feme Covert, and the Lessee grants his Estate to the Husband, and after the Wife dies; the Term is not extinct, because the Husband had the Estate in several Rights, for the Freehold was in the Wife, and the Husband only seized in her Right, 1 Rol. Abr. Lechden and Winsmore. So it is adjudged in the Lady Plat and Sleep's Case. The Husband has a Term for years in his own Right, and the In­heritance after descends to his Wife, that coming to her en auter droit shall not drown and ex­tinguish the Term for years, which he had in his own Right; and so he may assign and dispose of this Term at his own pleasure, notwithstanding the descent of the Inheritance to the Wife, Cro. Jac. 275. Godb. 20.

A Lease made to Baron and Feme for years, who enters; the Lessor afterwards enfeoffs the Husband, who died seised; the Feme survives and claims the Term, and the Question was between the Wife and the Heir of the Husband, whether this Term was extinguished. Et per totam Curiam, By the acceptance of the Feoffment the Husband had sur­rendred the Term, and it is extinguished: But if the Conveyance had been by Bargain and Sale en­rolled, or by Fine, it had been otherwise, Cro. Eliz. 912. Downing and Syemor.

If a Feme lease at Will rendring Rent, and af­ter take Husband, this doth not determine the Lease, but the Baron and Feme shall have an Action for the Rent, 1 Inst. 55. b.

So if a Lease be made to a Feme rendring Rent, who takes Husband, this Both not determine the Lease, but an Action lies against them for the Rent or Distress, 1 Inst. 55. b.

A Debt on Bond against Baron and Feme being made in her Viduity, with Condition that she, her Heirs and Assigns perform all Contracts in a Lease made by her Husband of a Warren to the Plaintiff She takes another Husband, who entreth on the Plaintiff. The Agreement found by the Jury. Now there was no Estate alledged its the former Husband in the Right of the Wife, whereby though the second Husband be Assignee in Law, yet he enter as on his own wrong not claiming under her.The Husband an Assignee of Contract. B [...] per Curiam it is not requisite that the Husban [...] should be Assignee of the Estate, but her Assigne of Contract; She is bound for some intended Interest, though no certain. Estate appear, which th [...] Husband hath by Marriage and doth act in her Righ [...] 1 Keb. 348, 512. Hall versus Creswel & Uxor'.

Chattels Real.

As for what Interest the husband hath by the In­termarriage in a Term of years of the wife, and how he may or may not dispose of it, Vide supra Tit. Disposition of the Wife's Term.

Chattels Mixt.

Chattels Real being of a mixt Nature (viz.) partly in Possession and partly in Action, which happen during the Coverture, the Husband shall have by the Intermarriage, if he survive his wife, albeit he reduceth them not into possession in her life time; but if the wife surviveth she shall have [Page 53] them.Rent. As if the Husband be seised of a Rent Ser­vice charge or seck in the right of his wife, the Rent becomes due during the Coverture; the wife dieth, the husband shall have the Arrearages; but if the wife survive the husband she shall have them, and not the Executors of the husband. So it is of an Advowson, if the Church become void du­ring the Coverture he may have a Quare Impedit in his own Name;Quare Impedit. but the wife shall have it if she survive him: But if the Arrearages had become due, or the Church had fallen void before the Mar­riage, there they were meerly in Action before the Marriage, and therefore he should not have them by the Common Law although he had survived her. So of Reliefs. But now by the Statute of 32 H. 8. cap. 37. If the Husband survive the wife, he shall have the Arrearages as well incurred before the Mar­riage as after, 1 Inst. 351. a.

B. and his wife brought a Quare Impedit against H. and made Title to present in the Right of his wife, and after Issue joyned the wife dyed. Per Winch. The Writ is not abated, because this was a Chattel vested in the husband during the Life of the wife, Winch. p. 73. Blunt's Case.

Chattels Personals.

Marriage is an absolute gift of Chattels Personal in Possession in her own Right whether the hus­band survive the wife or not: But of personal Goods en auter droit, as Executrix or Administratrix, &c. the Marriage is no gift of them to the husband, al­though he survives the wife, 1 Inst. 351. b.

But there is a diversity between Property in per­sonal Goods (as is aforesaid) and a bare Possession, for if personal Goods be bailed to a Feme, or if she finds Goods, or if Goods come to her hands as Executrix to a Bayliff, and she takes husband, this [Page 54] bare Possession is not given to the Husband, but the Action of Detinue must be brought against the Baron and Feme, 1 Inst. 351. b.

Custom of London.By the Custom of London the wife shall have the Moiety of the Goods whereof her husband died possessed, yet the husband in his Life time may give all the Goods, but by his Will he cannot prejudice her concerning her part, Cro. Car. 345.

Glanvil in his Lecture on the Statute of 1 Jac. Of Monopolies 16 Febr. 1629.Monopoly. put this Case. If a Feme sole hath a Patent for the sole using of a Trade invented by her, and after takes husband, yet the husband shall have the advantage of this within the Statute, because he is Assignee in Law.

Chose en Action.

Things in Action, as Debts by Obligation, Con­tract or otherwise the husband shall not have them, unless he and his wife recover them. If a Feme Covert be seised of an Advowson, and the Church becomes void, and the wife dies, the Husband shall present; Aliter, if a Bond made to the wife, which is meerly a Chose en Action, 1 Inst. 120.

Estray.If any Estray happen within the Mannor of the wife, if the Husband die before seizure the wife shall have it, for that property was not in the wife be­fore seizure.

Statute.If a Statute be acknowledged to Baron and Feme they are Joyntenants of it, and the wife shall have all by survivor; so if a Bond be made to Baron and Feme, 4 E. 3. 12. b.

Damages.If Baron and Feme recover Land and Damages the Feme shall have the Execution of the Damages and not the Executors of the husband, 4 E. 3. 13.

If Feme sole Obligee takes husband, and the hus­band makes a Letter of Attorny to J. S. to receive the Monies, who receives it accordingly, and after [Page 55] the Wife dies, the Husband shall have Action of Ac­count for the Monies, for by this Receipt it becomes a thing in Possession, Trin. 13 Eliz. B. R. Hunt­ley and Griffith, More 452.

If a Legacy be devised to a woman who takes an husband, and the husband makes a Letter of At­torny to J. S. to receive the Legacy, and he re­ceives it accordingly, by this Receipt it ceaseth to be a thing in Action and becomes a thing in pos­session, and the husband or his Executors after the death of the wife shall have accompt upon this Re­ceipt, Ibid. More 452.

A Baron possest of an Obligation in the Right of the wife may give it to a Stranger,Bond. and the Donee may justifie the determining of it after the death of the husband, Mich. 38 & 39 El. B. R.

If the wife have Goods and take an Husband,Executor of the Husband to have the Wife's Goods. the husband dies, the Executors of the husband shall have the Goods. If the wife lose Goods and take Baron, and the Baron dies, the Executors of the husband shall have these Goods, because the proper­ty is in him by the Intermarriage notwithstanding the losing. If the Goods of a woman are taken, which woman takes an husband, the Husband alone shall have the Replevin, Siderf. 174. Powes and Marshal.

Land is devised to a Feme Executrix during the Minority of A. to hold to her own use without ac­count,Term. provided that she keep and educate the said A. at School, &c. This such a Term in the Exe­cutrix as is given to the husband upon the Inter­marriage, and the Education and keeping of the Child is not such a particular Privity, but it may be per­formed effectually by another, Hob. 285. Balder and Blackburn.

An husband submits to an Arbitrament concern­ing the wife's Term it shall bind the wife,Arbitrament. for if the Baron had granted over the Term it should have [Page 56] bound the wife, and by consequence the Submission being for the Interest and Title, of the Term, is as much in effect as if he had granted over the Term, Dyer 183. in Margine.

But though the husband doth gain these things by the Intermarriage, yet if he be bound in an Ob­ligation, and the Condition is, that he shall not sell the Apparrel of his wife, this is good; as if a man bind himself to a Stranger to pay 20 l. per annum to his wife, this is good without doubt by Coke, Smith and Watson's Case, 1 Rol. Rep 334.

What the Husband may release or discharge or not.

Covenant.The Covenant was, that a Stranger should pay 8 l. yearly to one of the Covenantees, and to one F. I. a Stranger; F. I. took husband one B. who did release the Payment. Per Curiam. B. is a Strange [...] to whose wife the Payment is to be made; now he cannot release this, he having no Right at all there­in, nor yet any Remedy to come by it: And Judg­ment was pro Quer. 3 Bulstr. 29. Quick and Har­ris versus Ludborrow.

Annuity.A widow brought an Annuity against A. for 30 l. Annuity granted by the Defendant to the Plain­tiff by Indenture. To which the Defendant pleads a Release by express words reciting the Annuity made by the husband of the Plaintiff during the Coverture. The Plaintiff demurs; and per Curiam the Bar is not good, because the Release of the husband may not extinct the Annuity of the wife, being an Annuity for Life; but that she, if she sur­vive the husband, shall have an Action for it, More 523. Thomson and Butler.

After DivorceIf husband and wife are divorced causa adulterii, yet the husband may after release a Legacy due to the wife, for the Divorce does not divorce Vinculum Matrimonii, but a Mensa & Thoro, 43 El. Stephen [Page 57] and Tott: Roll. Rep. But if after such Divorce the wife sues without the husband, as she may for a defamation in the Spiritual Court, and recover, and Pennance enjoyned, expensa Litis taxed, the husband may not discharge this, 14 Jac. Newton's Case.Promise.

If A. promise B. a Feme sole, that in considera­tion she will marry C. his Brother, that he will give B. 10 l. if she survie C. And after B. takes C. to husband accordingly; C. cannot after discharge A. of this Promise by his Release to bind B. after his decease, because the Promise rests in Contingency du­ring the Life of C. the husband, Hill 6 El. B. R. Belcher and Hudson. Hob. Smith and Stafford's Case. But express words of Promise had released it.

A Legacy of 10 l. was bequeathed to a Feme Co­vert to be paid eighteen Months after the death of the Devisor. The Testator dies,Legacy. and after the wife within the eighteen Months dyes, and the Daughter of the wife took Administration. But the Legacy be­longs not to the daughter but to the husband, for the husband had an Interest in it before the time of Payment accrued, and he might have released it, 2 Rolls Rep. 136.

If the husband be indebted to the King he may assign a Debt due to the wife before Coverture,Assignment of a Debt due to the Wife by the Husband to the King. as B. was indebted by a Statute in 2000 l. to C. who dying intestate Administration was committed to his wife, who married Facone; Facone became bound with another to the King in 600 l. and he and his wife did assign this Statute by Deed inrolled to the King for the Payment of the said 600 l. Per Cu­riam, this Assignment is good notwithstanding the Statute of 7 Jac. Vide Hob. 253. Breadman and Coles.

If a Feme be indebted to J. S. in a certain Sum as Administratrix to J. D. and she takes an husband,Arbitrament. and the husband and J. S. submit all matters be­tween them to the Award of W. M. he may make [Page 58] an Award of this Debt that is due by the Baron and Feme, although it be done in Right of the wife, and as Administratrix, for it is now chargeable by th [...] Intermarriage, 1 Rol. Abr. 246. Cro. Jac. 447. La [...] ley and Hutton. So an Arbitrator may make a Award upon such Submission of a Debt to the wi [...] as Executrix, 21 H. 7. 29. b.

If A. and B. submit to the Arbitrament of J. S of all Suits and Actions depending between the [...] two, the Arbitrator may not make an Award of a Action that B. and his wife have depending again [...] A. for this is out of the Submission, 1 Rob. A [...] 246. Brocas and Scavage.

What Acts, Charges or Forfeitures of the Husband shall bind the Wife after his Death.

As for the disposition of the wife's Term, V [...] infra & supra.

Attornment.If the husband attorn to a Grant in Pai [...] Deed, this shall bind the wife, 9 Co. 85. b. C [...] nies Case.

Legacy re­leased.A Legacy is given to a Feme Covert, and [...] husband releaseth, and after he and his wife fo [...] the Court Christian for the Legacy; the party [...] sued shall not have a Prohibition upon the Re [...] of the husband, because the Temporal Judges [...] not meddle with the Legacy, and by conseque [...] cannot determine it whether the Release will [...] tinguish it or not, Yelv. 173.

Rent for Owelty of Partition.If one Coparcener be married, and for Owelty Partition the husband and wife grant a Ren [...] the other two out of the part of the Feme Cow [...] this Partition being equal shall charge the part the Feme Covert for ever, 1 Inst. 196. b.

Rent.If a Baron seized for Life, or in Fee, in R [...] of his wife grant a Rent and dies, the Feme [...] hold it discharged, for she comes in paramount [...] [Page 59] Charge, so if be be possest for years in the Right of his wife, and grant a Rent, 9 H. 6. 52.

The husband is seised of Land in the Right of his wife in Fee, and makes a Lease for years of it,Conisee of a Fine avoids the Lease by the Husband of the Wifes Land. and after he and his wife levy a Fine come ceo, &c. to J. S. in Fee, and after the husband dies, the Conisee shall hold the Land discharged of the Lease, for the Lease was void by the death of the Husband, for the husband joyned for Conformity and Neces­sity, and all the Estate passed from the wife, 1 Co. 76. Bredon's Case, 2 Co. 77. Cromwel's Case.

So if a Baron seized in the Right of his wife in Fee, acknowledge a Statute,So it is of the Grant of a Rent or Sta­tute. or grant a Rent out the Land, and after he and his wife joyn in a Fee come ceo, &c. to J. S. in Fee, and after the hus­band dies, J. S. shall hold the Land discharged of the Rent, and the Statute for the cause aforesaid, 2 Co. 77. Cromwel's Case. So is Harvy and Tho­mas's Case, Cro. Eliz. 216. Harrison and his wife sold the Land of the wife by Deed indented, but it was not inrolled within the six Months, and after­wards the husband alone makes a Lease by Parol, and then the Baron and Feme levy a Fine to the Bargainee, and dye; the Question was, if the Co­nisee of the Fine shall avoid this Lease. Per Cu­riam. He shall, for being made by the Baron only, it was void as to the wife, and no Acceptance can make it good; and as it shall be void to the wife so to the Conusee: So of a Rent-Charge granted by the husband, or a Recognisance by him.

But if Baron and Feme are Joyntenants in Fee,Aliter, where the Baron and Feme are Joyntenants. or in Tail, upon a Conveyance made during Cover­ture, and the husband acknowledge a Statute, and after he and his wife acknowledge a Fine come ceo, &c. to J. S. and suffer a Recovery to him, and after the husband dies, yet J. S. shall hold this charged with the Statute, for he comes in of the Estate of the husband as well as the wife, and there [Page 60] are no Moieties between them, aliter, if the Co [...] veyance were made to them before Coverture. F [...] if Baron and Feme are Joyntenants in Fee upo [...] a Conveyance to them made before Marriage, a [...] the husband acknowledgeth a Statute, or grants [...] Rent out of the Land, or lease the Land to an [...] ther, and after he and his wife levy a Fine come [...] &c. to J. S. and after the husband dies it see [...] that J. S. shall hold one Moiety discharged by [...] death of the husband, for the husband hath [...] power to charge the Moyety of his wife, but duri [...] his Life.

Lease for years in right of the Wife not to be ex­tended on Judgment a­gainst the Ba­ron. Lands, the years in right of the Wife subject to the King's Debt.If a Baron possessed in the Right of his wife [...] a Term is condemned in a Judgment, or acknow [...] ledgeth a Statute and dies, this shall not be exte [...] ed on the wife, 9 H. 6. 52. b.

But if the husband be indebted to the King a purchase Lands for years to him and his wife [...] dies, this Land shall be put in execution for the [...] Debt, for the husband had power to dispose of [...] said Term, 8 Co. 5, 171. Sir Gerrard Fleetw [...] 2 Rolls Abr. 157.

If the Cognisee of a Statute dyes Intestate, [...] Administation is granted to his wife, who ma [...] J. S. who becomes Debtor to the King, the C [...] tels which J. S. had in Right of his wife as A [...] nistratrix shall not be extended for this Debt of King, for that these Chattels are to pay Debt [...] Rolls Abr. 159. Buckler and Rayes.

Action brought by a Feme Covert.

2 H. 4. Sir Robert Belknap that Reverend [...] Learned Judge was banished out of the Realm ( [...] legatus in Vasconiam) not for any defect or off [...] of his, but by the Might of his potent Ene [...] and the Malice of the Times; but Sybil Belk [...] his Lady, continuing in England, the was wrong [Page 61] and she commenced a Suit in her own Name alone, not naming her husband: Exception being taken a­gainst it, because her husband was living; yet not­withstanding it was adjudged good and she recover'd, which made Markham say,

And yet it was not any such wonder, that the wife should have an Action or Account as as a Feme sole where the husband is banished by Parliament or abjured (Abjuration is called a Divorce between the husband and wise.) Weyland 18 Ed. 1. was exiled, his wife had her Joynture. 10 Ed. 3. The King brought a Quare Impedit against the wise of an exiled man. 14 Jac. Wilmore brought Trespass by the Name of Widow, her husband living at Lis­bon in Portugal.

If Baron and Feme sue a Bond made to the wife in C. B. and the Deed is there denied, for which they remain in the keeping of the Custos Brevium, and the Baron die, the wife may have a Writ out of Chan­cery directed to the Custos Brevium in B. C. that he deliver the Deed of the wife, because the Plea is determined by the death of the husband.

Forfeiture.

A Baron is seized in the right of his wife pur vie, and they make a Feoffment,By Feoffment. this is a Forfeiture during the Coverture.

So if Baron sole makes a Feoffment, this is a For­feiture during the Coverture. But in these Cases it shall not be any Forfeiture against the wife after the death of the husband, 8 Co. 44. Whitting­ham's Case.

Term.But if the husband possest of a Term in the Righ [...] of the wife forfeit the Term, this shall bind the wife for that he might dispose of the Term, 7 H. 6. 2. b. 9 H. 6. 2. b.

By acceptance of a Fine come ceo, &c.If Baron and Feme, Lessees for Life, in Right of the wife accept a Fine come ceo, &c. of a Stranger this shall not be any Forfeiture against the wife after the death of the husband, because she was not ex­mined upon this Fine, Dyer 148.

Copyhold.A Copyholder in Fee takes an husband, who makes a Lease for years without Licence, which by the Custom of the Mannor is a Forfeiture; thi [...] Forfeiture shall not bind the wife and her heirs after the husband's death, the wife after his death shal [...] have it again, Cro. Car. 7. 2 Rolls 244, 345. So­vern and Smith. And Dodderidge took this diffe­rence. Where a Feme sole is a Copyholder, and she takes an husband, who made a Lease for year [...] without License, the same is a Forfeiture, because it is her Folly that she will take such an husband a [...] will forfeit her Land: But where a Copyhold i [...] granted to a Feme Covert, and the husband makes [...] Lease without Licence,Diversity. in such case it is no Forfei­ture; and so in the Case of a Feme, Lessee for Life, at the Common Law against Whittingham, 8 Co. 44. But I find no such difference in Cro. Car.

Lapse of time for cutting of Woods shall bind the Wife.Feoffment in Fee of a Mannor to the use of him­self and his wife for Life, the Remainder to his Heirs; and in the Mannor there are Under-Woods usually to be cut every one and twenty years, and the husband suffered the Woods to grow five and twenty years and dies. The Question was, if the husbands suffering it to grow five and twenty years during the Coverture shall bind the wise so as she should not cut the Woods? Per Curiam. It shall bind her, for that the time is limitted by Law, and if the time be incurred it shall not be felled after­wards, Godb. 5. 1 Brownl. 73. 1 Leon. 61.

If a Man make a Lease for years on Condition that the Lessee his Executors or Assigns shall not alien, there if the wife,Forfeiture for Alienation. Forfeiture for Condition. Executrix and her second husband alien, this shall be a Forfeiture, for the Con­dition follows the Estate and is inherent to it, Dyer 1. But where the Agreement is collateral and per­sonal, as if a Condition be that a woman shall not beat J. S. and she takes an husband who beats him, this shall not be a Forfeiture, for the Condi­tion was annexed to the person of the wife: But the Waste of the husband is the Waste of the wife, for that follows the Estate, and is not personal.

Baron and Feme are possest of a Term in the Right of his wife,Arbitrament. as Executrix to her first hus­band, and a Stranger pretending Title to it, and the husband submit to Arbitrament in writing for the Interest and Title of the Lease; and the Arbi­trators award one part to the Pretender, and the other Moiety to the Baron and Feme. Quaere, If the Award shall bind the wife after the death of her husband.

What Acts done by the Husband and Wife shall be construed as the Act of the Wife or not, so as to bind her after the death of the husband or not.

If Baron and Feme are Patrons in jure uxoris if they confirm by Deed the Lease of the Parson,Confirmation. this is not good against the wife and her heirs, but only during the Coverture, for the Deed of the wife is void, Dyer 131. 1.

Baron and Feme, Tenants for Life,Aid prier. joyn in the praying of aid of a Stranger, this shall be no For­feiture of the Estate of the wife, 15 E. 4. 29. b.

A Statute Merchant was made by Baron and Feme, and they joyn in a Defeazance, this shall not be the Defeasanze of the wife, 48 E. 3. 12.

In Cases of Limitation.In Cases of Limitation of Estates, as if Limita­tion be, if a Ring be tendred by a woman that the Land shall remain to her, and she takes an husband, and after she and the Husband tender the Ring, this shall be a sufficient Tender, and shall be intended the Act of the wife.

[...]claring the [...]es of a Fine.If Baron and Feme joyn in a Fine of the wife's Land, the wife alone without the husband may de­clare the use of it, Bekwith's Case, 2 Co. 27.

Many Acts in Pais made by the Baron and Feme shall be intended the Act of the wife, as Agreement to the use of a Fine, which shall bind the wife after the death of the husband.

Rent by Ow­elty of Parti­tion.Baron and Feme grant a Rent for equality of Par­tion, this shall bind the wife afte the death of the husband, for it is her Act as well as the Act of the husband and shall be intended for her benefit.Condition to reinfeoff. Feoff­ment of a married woman on condition to rein­feoff, and she with her husband makes the Feoff­ment,Attorn. it is good. A woman Lessor pur vie with her husband attorns upon the Grant of a Rever­sion it is good and shall bind the wife after the death of the husband.

Assent of the Wife to a Re­vocation.If an Estate be conveyed with power that the hus­band with the assent of the wife may revoke, the assent of the wife to such Revocation is good. So if the Proviso be that a married woman without the assent of her husband may make a Revocation of Uses and declare new, this is good, 2 Brownl. 139, 140.

Acknowldge­ment of a Deed to be inrolled.Where the wife is examined by Writ she shall be bound, otherwise, not, 10 Co. 43. Baron and Feme acknowledge a Deed to be inrolled, this doth not bind her because she is not examined by Writ.

Payment to a Feme Covert.Debt on an Arbitration Bond. The Defendant pleaded, the Arbitrator had awarded that the De­fendant should pay to the Plaintiff 10 l. and said he had paid it to the Plaintiffs wife, who received it; [Page 65] upon which the Plaintiff did demurr. Judgment pro Quer. For payment to her was not good, 1 Leon. 320. Froud and Batt's Case.

For what Acts or Torts of the Wife the Husband shall be punished. Et e contra. Vide Tit. Action, and Tit. Wast.

If a Lease be made to Baron and Feme,Waste. and the Baron doth waste and dyeth, if the wife agree to the Estate she shall be punished for the waste done by her husband; in like manner as if a Stran­ger had done the waste, after the death of the husband she is in from the Lessor, and if the Action had been brought against the Baron and Feme, the waste should have been quod fecerunt vastum, so as it is as well the waste of the wife, as of the hus­band, 2 Inst. 303.

Paraphernalia.

By our Law the Apparel of the wife is called Bona Paraphernalia. The wife by the Common Law ought to have her necessary Apparel for her Body after the death of the husband, and not the Executors of the husband; but she shall not have excessive Apparel.

If the husband deliver to his wife a Piece of Cloth to make a Garment and dies, albeit it was not made into a Garment in the Life of the husband, yet the wife shall have it and not the Executor, in­asmuch as it was delivered to her to that intent. But against the Debtee of the husband the wife shall have no more Apparel than is convenient, Mich. 40 & 41 Eliz. Harwel's Case.

A Chain of Diamonds and Pearls being worth 370 l. being usually worn by a woman who was the Daughter of an Earl in Ireland, and a Baron [Page 66] of England, and the wife of a Knight and the King's Serjeant at Law, shall be Bona Parapherna­lia; so that the husband cannot devise them from the wife, Cro. Car. 343. the Lord Hastings and Dowglass. Richardson and Crook thought the wife shall not have them as Bona Paraphernalia, be­cause they were not necessary for her, but only con­venient: Jones and Berkly e contra: But all agreed she shall have her necessary Apparel.

What things or Actions the Wife shall have after the death of the Husband.

• What Actions
  • Real.
  • Personal.
• What Things
  • Real.
  • Personal.

The wife shall have Trespass after the death o [...] the husband for Trees cut upon the Land during the Coverture, 18 E. 4. 13. 39 H. 6. 45.

If the husband pull down an House, which he ha [...] in right of his wife, and gives the Timber, the wife shall not have an Action for it, after the death [...] the husband, 43 E. 3. 26. b.

Rose Edmonds brought Trespass against P. [...] putting in his Beasts into her Land 1 May contin [...] ando usque January: On not Guilty, the Plain [...] had Judgment. Error was brought, and Error i [...] fact was, that Rose Edmonds was Covert de Baron th [...] first day of May, and so for a week after, and h [...] husband being dead it is gone with his person, an [...] damages were given entirely: Per Curiam, It i [...] Error.

What thing personal. Vide Acceptance.

Bond.If an Obligation be made to Baron and Feme, t [...] Feme shall have it by Survivor if she will, 4 H. 6. [...] 10 Car. in Cam. Scaccar. Spark and Fairman [...] Case.

So the wife shall have a Recognisance by Survi­vor,Goods. but if Goods are given to Baron and Feme the Feme shall not have them by Survivor, but the Exe­cutors.

A Feme Covert purloyned her husbands Goods or Mony, and put the Mony into other men's hands,Monies pur­loyned. who therewith buy Lands to her use, if the Heir or Executor of the husband do sue in Equity for Re­lief, or to have the Land or Mony restored, yet de­nied Relief; for said Egerton Chancellor, he would not relieve the Heir or Executor (nor the Husband himself if he were alive) for he sat not there to re­lieve Fools or Buzzards, who could not keep their Mony from their wifes.

Things Real. Vide Acceptance. Vide Rent.

If a Lease for years be made to Baron and Feme the Feme shall have it by Survivor.Lease for years.

If a Feme seised of a Rent service, takes husband,Rent. and after the husband dies, the wife shall have the Arrears incurred during the Coverture, 15 E. 4. 10.

If a Feme make a Lease for Life or Years, re­serving Rent, and after takes husband, after the death of the husband the wife shall have the Arrears incurred during the Coverture, and not the Execu­tor of the husband, because this issues out of the Freehold.

If a Rent charge be granted to A. a Feme, and B. for years, and after they intermarry, and after Ar­rearages incurr, and after the husband dies the wife shall have the residue of the Rent, and also the Ar­rearages in the Writ of Annuity, for that they participate of the nature of the principal, and the Executor of the husband shall not have the Arreares, Mich. 22 Jac. B. R. Carew and Burgoigne.

What things the Husband shall have after the death of the Wife.

Arrears of Rent.If a Feme having a Rent for Life takes an hus­band, and dies, the husband shall have the Arreares incurred during the Coverture, 10 H. 6. 11, 12. 4 Co. Ognel's Case; but he shall not have the Ar­rears incurred before the Coverture at Common Law, but by the Statute of 32 H. 8. he shall.

If a Feme make a Lease for years rendring Rent, and afterwards takes husband, and dies, the hus­band shall have the Arrears incurred during the Co­verture, 10 H. 6. 11.

Presentation.If Baron and Feme in the right of the wife are seised of an Advowson, and the Church is void, and after the Feme dies, yet the husband shall present to this Church, for it cannot be granted over, yet it is not meerly in Action, 1 Inst. 120. But otherwise of a Bond to the wife, as if J. S. becomes bound to a Feme Covert, and she dies, her husband shall not have this Obligation without Administration, for that it is a thing in Action.

Lease for years.If the husband be possest of a Lease for years of Land in the right of the wife, and after the wife dies, the interest of the Lease is presently vested in the husband by Law, and he shall have it and not the Administrator of the wife, Dier 151. Plewd. 192. Wrotely and Adams, 1 Inst. 46.

Interest of a Term by the performance of the Condi­tion.A Feme possest of a Lease for years, takes hus­band, and they joyn in the Grant of a Term upon Condition that if they, their Executors or Administra­tors pay 10 l. at such a day it shall be lawful for them to re-enter, and after the wife dies the husband pays the 10 l. and enters, and dies, his Executors shall have the Term, and not the Administrator of the wife; for that the interest of the Term survives to the husband, P. 12 Jac. B. R. Radford and Young.

If a Term for years be granted in Trust the Ba­ron shall not have it,Tem in Trust. Per Coke in Waterhouse's Case.

What things the Wife may make good after the death of her Husband or not.

If a Bond be made to Baron and Feme,Bond. the Feme may refuse this after the death of the Baron, 4 H. 6.6. and by such waver this is made an Obligation to the husband only.

If Baron and Feme joyn in a Lease for Life of the Land of the wife rendring Rent,Lease for Life, or Years. the Feme may make this good by agreement after the death of her Baron, and shall have the Rent, 10 H. 6. 4. So of a Lease for years, Vide Lease for one and twenty years, or three Lives by the Statute, Infra.

Of what Estate a Man shall be Tenant by the Cur­tesie or not.

Regula.It is laid down as a Rule by Littleton sect. 52. That in every case where a Man taketh a wife seised of such an Estate of Tenements, &c. as the Issu [...] which he hath by his wife may by possibility in­herit the same Tenements of such Estate, as the wife hath, as Heir to the wife: In this case afte [...] the decease of the wife he shall have the same Te­nements [Page 71] by the Curtesie of England, otherwise not. If Lands be given to a woman and to the Heirs Males of her Body, she taketh an husband and hath Issue a Daughter and dyeth, he shall not be Tenant by the Curtesie, because the Daughter by no possi­bility could inherit the Mothers Estate in the Land; and therefore, if a woman Tenant in Tail general maketh a Feoffment in Fee, and taketh back an E­state in Fee, and take an husband, and hath Issue and the wife dieth, the Issue in a Formedon may re­cover the Land against his Father, because he is to recover the Land by force of the Estate Tail, as Heir to his Mother, and is not inheritable to his Fa­ther. If a man taketh a wife seised of Lands and Tenements in Fee and hath Issue, and after the wife is attainted of Felony, so as the Issue cannot inhe­rit to her, yet he shall be Tenant by the Curtesie in respect of the Issue which he had before the Felo­ny, and which by possibility might have inherited; But if the wife had been attainted of Felony before the Issue, albeit he hath Issue afterwards, he shall not be Tenant by the Curtesie.

If an Estate of Freehold in Seigniories, Rents,No Tenancy by the Curte­sie of an E­state suspend­ed. Commons or such like be suspended a Man shall not be Tenant by the Curtesie; but if the suspension be but for years, he shall be Tenant by the Curtesie, as if the Tenant make a Lease for Life of the Tenancy to the Seignoress, who taketh an husband and hath Issue, the wife dyeth, he shall not be Tenant by the Curtesie; but if the Lease had been made but for years, he shall be Tenant by the Curtesie.

If a woman Tenant in Tail general taketh an husband and hath Issue, which Issue dyeth, and the wife dyeth without any other Issue, yet the husband shall be Tenant by the Curtesie, albeit the Estate in Tail be determined, because he was intitled to be Tenant per Legem Angliae, before the Estate in Tail was spent, and for that the Land remaineth. But [Page 72] if a woman make a Gift in Tail, and reserve a Rent to her and her Heirs, and the Donor take hus­band and hath Issue, and the Donee dies without Issue, the wife dies, the husband shall not be Te­nant by the Curtesie, because the Rent newly re­served is by Act of God determined, and no E­state thereof remaineth; aliter, if a man seised in Fee of a Rent makes a Gift in Tail general to a woman, &c. 1 Inst. 30.

A woman taketh husband and hath Issue, Lands descend to the wife, the husband enters, and after the wife is found an Ideot by Office, the Lands shall be seised by the King; for the Title of the Te­nancy by the Curtesie and of the King being at one instant the Title of the King shall be preferred.

A man shall be Tenant by Curtesie of a Castle.

A man shall be Tenant by Curtesie of Common sans nombre.

Regula.A man shall not be Tenant by the Curtesie of a bare Right, Title, Use, or of a Reversion or Re­mainder expectant upon any Estate of Freehold, unless the particular Estate be determined or ended during the Coverture.

In what Case the Husband shall be Tenant by the Curtesie where the Wifes Estate is defeasable by Condition.

The Mother being seised of certain Lands had Issue two Daughters, and by Indenture covenanted to stand seised to the use of E. her eldest Daughter in Tail, on Condition that the said E. should pay to her other Daughter within a year after the death of the Mother, or within a year after the other Daughter should come to the Age of eighteen years, 300 l. and if E. should fail in the payment of the said Sum, or shall die without Issue before such pay­ment, [Page 73] then to the use of the said second Daughter in Tail. The Mother dies, E. takes husband, hath Issue, and afterwards dies sans Issue before the day of payment, the husband shall be Tenant by the Curtesie: For as to the Condition of the payment of the said Sums, the same is not determined, for she died sans Issue before the day of payment viz. before the second Daughter came of the Age of eighteen years, and as to that there is no Condi­tion broken: And as to the point of dying without Issue the same is not a Condition but rather a Li­mitation of the Estate, and the same is no more than what the Law saith, and the Estate Tail is spent and determined by dying sans Issue, and doth not cease nor is cut off by any Limitation, 1 Leon. 167. Sams and Pain's Case.

A Man is entituled to be Tenant by the Curtesie, and maketh a Feoffment in Fee upon Condition, and entreth for the Condition broken, and then his wife dieth, he shall not be Tenant by the Curtesie, because albeit the Estate given by the Feoffment be conditional, yet his Title to be Tenant by the Cur­tesie was inclusively absolutely extinct by the Feoff­ment, for the Condition was not annexed to it.

Now four things do belong to an Estate of Te­nant by the Curtesie.

1. Marriage.

The Custom of a Mannor was, That if any man taketh to wife any customary Tenant, and hath Is­sue, and shall over-live his wife, he shall be Tenant by Curtesie, and pleads he took to wife Anne, to whom during the Coverture a customary Tenement did descend and had Issue; by this Custom he shall not be Tenant by Curtesie, for Anne was not a cu­stomary Tenant at the time of the Marriage, 2 Lenn. Sir John Savage's Case.

[Page 74]2. Seisin of the wife.

Now there is a twofold Seisin, a Seisin in

• Deed,
• Law.

And this Seisin of the wife is intended a Seisin in Deed. As if a Man died seised of Lands in Fee-sim­ple or Fee-tail general, and these Lands descend to his Daughter, and she taketh husband and hath Issue, and dies before any Entry, the husband shall not be Tenant by the Curtesie, and yet in this Case she had a Seisin in Law; but if she or her husband had du­ring her Life entred, he should have been Tenant by the Curtesie, 1 Inst. f. 29. Except the wife be actually seised, the Heir shall not make himself Heir to the wife; and that is the reason that a Man shal [...] not be Tenant by the Curtesie of a Seisin in Law.

But in some Cases a Man shall be Tenant by the Curtesie of a Seisin in Law; as if a Man seised o [...] an Advowson, or Rent in Fee, hath Issue a Daugh­ter, who is married and hath Issue, and dies seised, the wife before the Rent become due, or the Church became void, dyeth, she had but a Seisin in Law and yet he shall be Tenant by the Curtesie, because he could by no industry attain to any other Seisin, E [...] impotentia excusat Legem.

The Tenant took the Seignoress to wife, and had Issue, the wife dyed, the husband shall not be Tenant by Curtesie, for although the Seigniory was in her at the time of the Marriage, yet by Priority in Law it ceased, so as no Seisin of the Seignory was during the Coverture, 1 E. 3.6.

Copyhold.A Baron shall not be Tenant by the Curtesie of [...] Copyhold unless there be a Custom to warrant i [...] Cro. Eliz. 361.

3. Issue.

If a Man seised of Lands in Fee hath Issue [...] Daughter, who taketh husband and hath Issue, the [Page 75] Father dies, the husband enters, he shall be Tenant by the Curtesie although the Issue was had before the wife was seised; and so it is, though the Issue had died in the Life time of her Father before any descent of the Land, yet shall he be Tenant by the Curtesie.

If a woman seised of Lands in Fee taketh hus­band, and by him is big with Child, and in her Travel dies, and the Child is ript out of her Body alive, yet shall he not be Tenant by the Curtesie, because the Child was not born during the Marri­age, nor in the Life time of the wife, but in the mean time the Land descended,Pleading. and in Pleading he must alledge that he had Issue during the Mar­riage.

If the Issue be born deaf or dumb, or both,What shall be said lawful Is­sue. or be born an Idiot, yet it is a lawful Issue to make the husband Tenant by the Curtesie, and to inherit the Land.

And if the Issue be born alive it is sufficient, tho' it be not heard cry, 8 Co. 34. Pain's Case. for the crying is but a proof that the Child was born alive, and so is motion, stirring, or the like.

4. Death of the husband.

Yet it is not necessary that these four should con­curr altogether at one time; and therefore if a Man taketh a woman seised of Land in Fee, and is dis­seised, and then have Issue, and the wife dye, he shall enter and hold by the Curtesie; so if he hath Issue which dyeth before the descent.

And though the Estate be not consummate till the death of the wife, yet the Estate hath such a beginning after Issue had in the Life of the wife, as is respected by Law for divers purposes; as after Issue had he shall do homage alone; and if after Issue had the husband makes a Feoffment in Fee, and the wife dyeth, the Feoffee shall hold it during the Life [Page 76] of the husband, and the Heir of the wife shall no [...] during his Life recover it in a sur cui in vita, fo [...] it could not be a Forfeiture, for that the Estate a [...] the time of the Feoffment was an Estate of Te­nancy by the Curtesie initiate and not consum­mate.

By Noy in his Lecture it is said to be adjudge 36 Eliz. Feme Tenant in Tail acknowledgeth [...] Statute and takes husband, and hath Issue and die [...] the Lands may be extended in the hands of Te­nant by the Curtesie, and in the hands of the Iss [...] in Tail, if the Tenant by the Curtesie surrende [...] during the Life of Tenant by the Curtesie, Dy [...] 51. b. in margine.

Tenant by the Curtesie grants his Estate wi [...] Warranty, and comes in as Vouchee, yet shall hav [...] aid of him in the Reversion, Hob. 21.

Pleading.

In Pleading he must alledge he had Issue duri [...] the Marriage, and upon that point the Trial is [...] be had; and upon the Evidence it must be prov [...] that the Issue was alive, for mortuus exitus non [...] exitus: Proofs are crying, motion, stirring, &c.

Et sic seisit' existen' habuer' exitum inter eos qu [...] dam A. & postea & antea &c. ead. M. apud [...] praed. obiit, & praedict. (Baron) ipsam supervi [...] & se tenuit intus in praed. &c. Et fuit inde s [...] seisitus in dominico suo ut de libero tenemento ut ten [...] inde per legem Angliae quousque, &c.

Qualifications of the Wife to enable her to her Dower.

She must be of 9 years of Age at the death of [...] husband, else she shall not be endowed: But if [...] take a wife 100 years old she shall be endowed. S [...] must not be an Alien, nor one that elopes, V [...] infra.

Three things are necessary to the consummation [...] Dower.

• 1. Marriage.
• 2. Seisin.
• 3. Death of the Husband.

1. Marriage. This must continue during the C [...] verture, for if that be dissolved Dower cease [...] and yet this is to be understood when husband [...] wife are divorced a vinculo matrimonii, as in [...] of Precontract, Consanguinity, Affinity, &c. a [...] not a Mensa & Thoro, as for Adultery.

If a Marriage de facto be voidable by Divorc [...] respect of Consanguinity, Precontract, Affinity, [...] yet if the husband dye before Divorce the wife [...] be endowed; but if they are divorced a vin [...] matrimonii in the Life of her husband, she los [...] [Page 79] her Dower; aliter, if they were divorced causa adulterii.

Its to be understood of a wife de facto, Wife de facto and de jure. as well as de jure; and therefore if the wife be past the age of 9 years at the time of the death of the husband, she shall be endowed let the husband be of never so young an age. Though the woman cannot consent before 12. nor the man before 14. yet their imperfect in­cohate Marriage, from the which either of the said parties at the age of Consent may disagree, after the death of the husband shall give Dower to the wife; and therefore after the death of the husband it is in Law accounted legitimum matrimonium quoad dotem.

If a Man take a wife of the age of 7 years, and after aliens his Land, and after Alienation the wife attains the Age of 9 years, she shall be endowed, for she was conditionally dowable at the time of her Marriage (viz.) if she attained the age of 9 years before the death of the husband, 1 Inst. 33.

2. Seisin.

The husband must be seised either in Deed or in Law during the Coverture,Seisin in Law. or else she shall not be endowed, where Lands and Tenements descend to the husband; now before Entry he hath but a Seisin in Law, and yet the wife shall be endowed, albeit it be not reduced to an actual possession, for it lies not in the power of the wife to bring it to an actual Seisin, as the husband may do of the wifes Land when he is to be Tenant by the Curtesie.

Grandfather, Father and Son, and the Grandfather is seised of three Acres of Land in Fee, and taketh wife and dyeth, this Land descendeth to the Father, who dieth either before or after Entry, now is the wife of the Father is dowable: The Father dieth, and the wife of the Grandfather is endowed of one Acre and dyeth, the wife of the Father shall be only [Page 80] endowed of the two Acres residue; for the Dower of the Grandmother is paramount the Title of the wife of the Father, and the Seisin of the Father which descended to him (be it in Law or actual) is defeated, and in that case Dos de dote peti non debet.

It is not necessary that the Seisin should continue during the Coverture, as the Marriage must; for albeit the husband aliens the Lands and Tenements, or extinguisheth the Rent, or aliens, &c. the wife shall be endowed.

Of what Sei­sin the Wife shall not be endowed.And yet of every Seisin the wife shall not be en­dowed, as in these Cases following.

The wife shall not be endowed of the Seisin [...] her husband had by Inter-union on the King's pos­session.

The woman shall not be endowed both of the Land given in Exchange, and of the Land taken i [...] Exchange, and yet the husband was seised of both but she may have her Election to be endowed [...] which she will.

Of a Seisin for an instant a woman shall not [...] endowed. If the Conusee of a Fine doth grant and render the Land to the Conusor, the wife of the Conusor shall not be endowed, 1 Inst. 31. b.

What Seisin it is that entitles the Wife to her Dower.

1. He must be sole seised thereof and not i [...] Jointenancy; if there be two Jonytenants in Fee and one makes a Feoffment in Fee, his wife sha [...] not be endowed.

Regula.2. He must be seised of such an Estate during the Coverture, that the Child that he shall beget o [...] the said wife may by possibility inherit the said Lands.

And yet this is not a general Rule. If a Man be Tenant in Fee-Tail general, and maketh a Feoff­ment in Fee, and taketh back an Estate to him and his wife, and to the Heirs of their two Bodies, and they have Issue, and the wife dies; the husband taketh another wife and dies, the wife shall not be endowed, for during the Coverture he was seised of an Estate Tail special, and yet the Issue, which the second wife might have, by possibility may inherit. The same Law it is, if she had taken back an Estate in Fee-simple, and after had taken wife, and had Is­sue by her, yet she shall not be endowed, for that the Fee-simple is vanished by the Remitter, and her Issue hath the Land by force of the Entail. But in this Case the Tenant cannot plead that the hus­band was never seised of such an Estate, whereof the Demandant might be endowed, but he must plead the special matter.

3. Death of the husband; it must be a natural not a civil death.

Note, It is not requisite that Marriage, Seisin and Age concur together all at one time, but it is suffi­cient if they happen during Coverture.

If a Man seised of Lands in Fee taketh a wife of eight years old, and alieneth his Land, and after­wards the wife attaineth nine years, and then the husband dies, the wife shall be endowed; for though at the time of the Alienation the wife was not dowable, yet forasmuch as the Marriage and Seisin in Fee was before the Alienation, and the Title of Dower is not consummate till the death of the hus­band, she shall be endowed.

Broughton and Randal's Case was a little odd. The Title of the wife to recover Dower was, that the Father and Son were Jointenants to them and the Heirs of the Son, and they were both hanged in one Cart; but because the Son, as was deposed [Page 82] by Witnesses, survived, as appeared by some tokens viz. the shaking his Legs, his wife thereupon de­manded Dower, and had it upon the Issue unq [...] sesie que Dower, Cro. Eliz. 502.

Of what Estate a Woman shall be endowed.

Of every Estate of Freehold and Inheritance i [...] Fee-simple, Fee-tail general, or as Heir in Tail sp [...] cial whereof her husband was seised during the Coverture either in Deed or Law, except as before.

Of Estate-Tail determined.Of an Estate Tail in Lands determined a woma [...] shall be endowed, in the like manner and form as man shall be Tenant by the Courtesie, mutatis [...] tandis.

Castle.She shall be endowed of a Castle that is o [...] maintained for the private use and habitation of [...] Owner.

Capital Me­suage.She shall be endowed of a principal Mansion [...] Capital Mesuage, Si non sit caput baron. seu [...] tatus.

Inheritances entire.Though by many Inheritances that be entire whereof no division can be made by Meets a [...] Bounds, a woman cannot be endowed of the th [...] it self, yet the woman shall be endowed thereof [...] a special and a certain manner, as,

Mill.Of a Mill a woman shall not be endowed [...] Meets and Bounds, in common with the Heir, [...] either she may be endowed of the third Toll-dish, [...] de integro molendino per quamlibet tertium mense [...]

In Gilpin and Cookson's Case in C. B. was q [...] recuperet tertiam partem molendini, and not of [...] third Toll-dish; and it is well enough, the Writ [...] ing of the Inheritance, and not of the profits; [...] on Recovery of the third part of the Mill she sh [...] have the Toll-dish, and so is 1 Inst. 32. to be i [...] tended, 2 Keb. 8.

A woman shall be endowed of the third part of the profits of Stallage;Stallage. Fair. of the third part of the profits of a Fair; of a third part of the profits of the Office of the Marshalsea; of the third part of the profits of the keeping a Park;Parkership. Dovehouse. and of a third part of the profits of a Dove-house; and of the third part of the profits of a Piscary (viz.) tertium piscem, vel jactum retis tertium. Piscary.

She shall be endowed of the third Presentation to an Advowson.Third Presen­tation.

She shall be endowed of the third part of the Profits of Courts, Fines, Herriots.Courts. Herriots. Fines. Tythes.

She shall be endowed of Tythes, and the surest Endowment of Tythes is of the third Sheaf, for what Land shall be sown is uncertain.

In some Cases of Lands and Tenements which are devisable,Inheritances devisable, what she shall not be endowed of. and which the Heir of the husband shall inherit, yet the wife shall not be endowed. As if the husband makes a Lease for Life of certain Lands, reserving a Rent to him and his Heirs, and he taketh wife and dyeth, the wife shall not be en­dowed; neither of the Reversion, though it be with­in the word Tenements, Seisin. because there was no Seisin in Deed or in Law of the Freehold; nor of the Rent, because the husband had not but a particular Estate therein, and no Fee-simple. But if the husband make a Lease for years, reserving Rent, and takes wife, the husband dies, the wife shall be endowed of the third part of the Reversion by Meets and Bounds together with the third part of the Rent.

If a Man makes a Gift in Tail reserving a Rent to him and his Heirs,Rent. and after the Donor takes wife and dyeth, the wife shall be endowed of this Rent, because it is a Rent in Fee, and by possibility may continue for ever.

A woman shall be endowed of a Common cer­tain; but of a Common sans nombre in gross,Common. she shall not be endowed.

She shall not be endowed of a Common sans nombre, for then the Land should be doubly charged, 11 Co. 45. Godfrey Pasch. 9 Car. B. R. Prewet and Drake. Though in that Case in a Writ of Error Judgment was affirmed, because it shall not be in­tended Common sans nombre, but appendant.

She shall be endowed of a Rent-Service, Rent-Charge, Rent-Seck.

Annuity.Of an Annuity that chargeth only the person, and issueth not out of any Lands or Tenements she shall not be endowed.

Estate suspen­ded.If the Freehold of the Rents, Common, &c. were suspended before the Coverture, and so continue du­ring the Coverture, she shall not be endowed of them. But if after the Coverture the husband do extinguis [...] them by Release or otherwise, yet she shall be endow­ed of them; for as to her Dower in the eye of th [...] Law they are to have Continuance.

Land im­proved.Of improved Lands she shall be endowed; as i [...] the wife be entitled to have Dower of three Ac [...] of Marsh every one of the value of 12 d. and [...] Heir by his Industry and Charge makes it goo [...] Meadow, every Acre of the value of 10 s. the w [...] shall have her Dower according to the improved v [...] lue, and not according to the value, as it was in [...] husband's time; for her Title is to the quantity [...] the Land viz. one third part. So it is if the H [...] improve the Lands by Building.

On the other side, if the value be impaired in th [...] time of the Heir, she shall be endowed according [...] the value at the time of the Assignment, and not a [...] cording to the value as it was in the time of th [...] husband.

Of what Estate the Wife shall be endowed.

[...]Its a Rule: In every case where a woman tak [...] [...]n husband seised of such an Estate in Tenement [...] [Page 85] &c. so as by possibility it may happen that the wife may have Issue by her husband, and that the same Issue may by possibility inherit the same Tenements of such an Estate as the husband hath, as Heir to the husband, of such Tenements she shall have her Dower, otherwise not. As if Tenements are given to a Man and the Heirs, which he shall beget on the Body of his wife, in this case the wife has nothing in the Tenements, and the husband hath but an Estate as Donee in special Tail; yet if the husband die without Issue, the same wife shall be endowed of the said Tenements, because the Issue, which she by possibility might have had by the same husband, might have inherited the same Tenements; but if such wife dyeth, living her husband, and after the Baron takes another wife and dies, his second wife shall not be endowed in this case, for the reason afore­said, Lit. sect. 53. And therefore though a woman be 100 years old, and the husband but four years old, and he dies, she shall be endowed, because the Law faith, If she be above nine she shall be endowed.

The wife shall not be endowed of Lands and Te­nements,Not of Joyn­tenancy. which the husband held joyntly with ano­ther at the time of his death, for the Joyntenant claims all by Survivorship, which is above the Title of Dower; but Tenants in Common have several Freeholds and Inheritances, and their Moieties shall descend to their several Heirs, and therefore their wifes shall be endowed, 1 Inst. 37. b.

A Feme shall be twice endowed, as in case of a Recovery by Eigne Title, 1 Rol. Abr. 684.

If the wife elope she shall be barred of her Dower,Elope. and yet her Issue shall inherit.

If a Man seised in Fee of Land covenant to stand seised of it to the use of himself and his Heirs until C. his younger Son take a wife,Not of an E­state ended by express Limi­tation. and after to the use of C. and his Heirs, and after A. dies, by which the Lands descend to B. his eldest Son, who had a [Page 86] wife, and after dies, and after this C. takes a wife, the Question upon a special Verdict was, if the wife of B. the eldest Son, shall be endowed of the said Estate of her husband; and the Court was divided in Opinion. But it seems she shall not be endowed, because his Estate is ended by an express Limitation, and consequently the Estate of the wife being de­rived out of it shall not continue longer than the original Estate, Pasch. 10 Jac. B. C. Flavel and Ventrice.

Note, If Tenant in Fee takes a wife, and makes a Lease for years, and dyeth, the wife shall be en­dowed, and she shall avoid the Lease, but after her death the Lease shall be in force again, 1 Inst. 46.

Dower by Re­lease.The Bargainee hath a wife and dies, afterwards the Deed is inrolled, the wife shall have Dower, Baron Frevil's Case cited in Flower and Baldwin's Case, Cro. Car. 217. For by relation the Bargaine [...] was seised ab initio, Vide Cro. Jac. 615. Amen's Case.

Not of a Fee gained in an instant.If Tenant in special Tail take a second wife, wh [...] is not dowable of the Tail, and after makes a Feoff­ment in Fee and dies, his wife shall not be endowed, for that he gains the Fee but in an instant, 8 Co. 43.

The husband ought to have a Fee or Tail and Franktenement in possession; otherwise, the w [...] is not dowable.

The husband of the Demandant and Father [...] the Tenant being Tenant in Tail, in consideratio [...] of a Marriage with his Son,Covenant to stand seised by Tenant in Tail. the Tenant in T [...] covenanted that the Land after his death should descend and come to his Son and his Heirs, and after he takes the Demandant to wife, it was adjudged he was seised of such Estate, of which she wa [...] dowable, for that no Estate was altered by her hu [...] band, for he was Tenant in Tail still as before Quaere, If it had been a Covenant to stand seised, Cr [...] Eliz. Blithman's Case, Vide Moor.

J. S. seised in Fee by Indenture inrolled bargains and sells to the husband for 120 l. in consideration he shall redemise it to him and his wife for their Lives under a Pepper Corn;Mortgages. and with Condition that if he paid the 120 l. at the end of 20 years, the Bargain and Sale shall be void; he redemiseth it accordingly and dies; his wife brought Dower. Per Curiam. Resolved in Chancery, that she shall have Dower, and a Court of Equity shall not preclude her of it; and when he redemiseth it upon the for­mer agreement, yet the Lessees are to receive it sub­ject to this Title of Dower, and it was his Folly that he did not joyn another with the Bargainee, as it is the ancient course in Mortgages.

And yet it is held in our Books upon a Mortgage,

Land be redeemed, the wife of the Mortgagee shall not have Dower, Cro. Car. 190. Nash and Pre­ston.

If an husband takes a Fine sur Conisance de droit come ceo, and renders Arrear;Instant. although it was the husbands, yet his wife shall not have Dower, for it is in him and out of him quasi uno flatu, and by one and the same Act, 3 Leon. 11.

A Man sold his Land upon Condition,Condition. and after took a wife, and died, the Heir entred for the Con­dition broken, yet the wife shall not be endowed; and so if the Condition had been broken before the death of the husband, if he had not entred; for he had Title of Entry, 1 Brownl. 59.

A woman shall be dowable of an Estate granted by Tenant in Tail to her husband and his Heirs,Of an Estate descendible for the Life of the Grantor. and discendible only for the Life of the Grantor, 1 Sand. 261. in Tooke and Glass's Case.

If a Man seised in Fee makes a Feoffment to di­vers persons to her use for Life, and to uses which he shall declare by his Will, and after marries, his wife shall not be endowed. Per Curiam, aliter, if [Page 88] Uses exprest in his Will bearing date tali die ante the Feoffment, ex Manuscript. Mri. Brownloe.

Baron is out­lawed of High Treason, and five years passed after his death, yet she shall be en­dowed.One seised of Lands in Fee took a wife, and le­vied a Fine of the said Lands with Proclamations, and afterwards was indicted and outlawed of High-Treason, and dyed, and five years passed after the death of the husband, and the Heir reversed the Attainder; the Question was in Vivian Menvil's Case, whether the wife shall be endowed, 13 Co. 19. And it was resolved that the wife should be en­dowed; for though a Fine levied and Non-claim of five years shall bar a woman of Dower, and her five years is saved, yet in this case the wife is not to be aided by that saving; for in respect of the Attain­der of her husband she had not any right of Dower at the time of his death, nor can she after his death prosecute any Action for it. But the wife is aided by another former saving in the said Act (viz.) And saving to all other persons (viz.) who were [...] parties to the Fine, such Action, Right, Title, Cl [...] and Interest, in or to the said Lands, &c. as shall first grow, remain, descend or come to them after the said Fine ingrossed and Proclamations made, &c. So that they take their Actions and pursue the [...] Rights according to Law within five years ne [...] after such Action, Right, &c. to them accrued &c. and in this Case the Action and Right [...] Dower accrued to the wife after the Reversal of the Attainder.

For or in what respect of Disabilities a Woman shall be endowed or not.

• The wife of an Ideot, non compos mentis.
• The wife of one outlawed.
• The wife of one attainted of Felony or Trespass, Heresie, Praemunire shall be endowed.

So note at this day,Where the Wife shall lose her Dower by the Attainder of her hus­band, and where not. if the husband be attainted of Felony the wife shall be endowed, and yet the Issue shall not inherit the Lands, which the Father had in Fee-simple, 1 Inst. 40. b. But before the Statute of 1 E. 6. the wife should not have been en­dowed, and the Issue should have inherited.

But the wife is not dowable if the husband be at­taint of Treason, for her Title begins by the Inter­marriage, and ought to continue and be consum­mate by the death of the husband, which cannot be in this Case; for the Attainder of the husband hath interrupted it, as in the case of Elopement; and this Attainder is an universal Estoppel and doth not run in Privity between the wife and him to whom the Escheat belongs; but every Stranger may bar her of her Dower by reason thereof, and a Pardon doth not help her: For now suppose the husband obtain­eth a Charter of Pardon and dies, this doth not help the matter, for the same extends but to the Life of the Offender, but doth not take away the Attainder by which she is barred to demand Dower during the Attainder being in force; and so it is though the Lands be aliened before the Treason com­mitted, as it was in Dyer 140. b. Lady Gate's Case, Vide Stat. 5 & 6 Ed. 6. cap. 11. ult. Provis. 1 Leon. 3. Mayney's Case.

If a Man marry an Alien woman she shall be endowed, 1 Rolls Abr. 675.Alien. that is to be under­stood as a Parliamentary Case by Petitioning, and the King's Answer, the Countess of Arundel's Case. For if a Man take an Alien to wife, and after the hus­band aliens the Land, and after she is made a Denizen, and then the husband dies, she shall not be endow­ed, because there was an absolute disability; aliter, if she be naturalized by Act of Parliament.

As to Divorce Vide supra. Divorce. If the wife be divorced causa praecontractus, consanguinei, or impotency, she shall not be endowed.

If the wife elope she is barred of her Dower Vide infra.

What Act of the Wife shall bar her of her Dower.

Elopement.If the wife elope from her husband, viz. if the wife goeth away and leave her husband, and tar­rieth with the Adulterer, she loseth her Dower unt [...] her husband willingly without coersion Ecclesiasti­cal be reconciled to her, and permit her to coha [...] with him.

Though in this Case of Elopement the wife cou [...] not be barred of her Dower by the Common La [...] but by the Statute of W. 2. cap. 34. Si uxor sp [...] reliquerit virum suum, &c. If the woman be tak [...] away not sponte, but against her Will, and a [...] consent and remain with the Adulterer without [...] ­ing reconciled, &c. she shall lose her Dower.

If the wife go away with her husbands Agr [...] ment with A. B. and after A. B. commits Adulte [...] with her, and she remaineth with him without Re­conciliation, she shall be barred of her Dower.

If she commit Adultery with him, though [...] doth not continually remain with him, it is a ta­rying within this Statute, 2 Inst. 436.

If the husband grant his wife with her Goods [...] another, by force of which the wife lives with th [...] Grantee afterwards all the Life of her husband [...] shall lose her Dower, because she lived in Adulter [...] with him, 30 E. 1. lib. Parliament. f. 96. Willi [...] Paynel and Margery his wife. The President [...] this:

Elopement pleaded in Dower, Vide Dyer 106. a. 107. a. Parliament. 30 E. 1. apud Westm. Petitio Wil. Paynel & Margaretae uxoris ejus, &c. quod Domi­nus Rex iis reddere vellet tertiam partem manerii quae ipsam contingit de libero tenemento Johannis Commoys primi viri sui, &c. Et Nic' Warwick pro Rege plead Elopement de dit feme de sa baron ove le dit Will. Paynel & super hoc praefat. Wil­lielmus Paynel & Margareta protulerunt quoddam factum praed. Johannis Commois primi viri in haec verba. Omnibus Christo fidelibus, &c. Sciatis me tradidisse & commisisse de spontanea voluntate mea Dom. Willielm. Paynel Milit. Margaret. de Com­moys uxorem meam, & etiam dedisse & conces­sisse & eidem Will relaxasse & quiete clamasse omnia bona & catalla quae ipsa Margareta habet vel de caetero habere possit, & etiam quicquid est de prae­dict. Margaret. bonis & catallis cum pertinentiis fuit. Ita quod nec ego, nec aliquis alius nomine meo in praed. Margaret. bonis & catallis ipsius Mar­garetae cum pertin. exigere vel vindicare poterimus nec debemus imperpetuum. Volo & concedo & per praesens scriptum confirmo quod praedicta Margareta cum praedicto Domino Willielmo sit & remaneat pro voluntate ipsius Willielmi. In cujus rei testimoni­um & his testibus, &c. Et super hoc petit Judi­cium. Et consideratum est quod praedictus Willi­elmus & Margareta nihil capiant per petitionem suam sed sint in misericordia. Cest petitio fuit commence Westm. 1. 29 Ed. 1. Et Judicium 30 Ed. 1.

If the husbands Friends send him away from his wife, so as the wife knows not what is become of him, and they publish that he is dead, and after­wards they procure the woman to release all Marria­ges and interest in him as an husband; and after­wards by the persuasion of the Friends of the hus­band [Page 92] marries with another, who dies, and she take [...] another husband, the wife having no notice of the first husbands being alive, although the wife live i [...] Adultery, and though the first husband was not out of the Realm; yet inasmuch as she did not leave her husband sponte, as the Statute saith, bu [...] by persuasion of the husbands Friends, that he was dead; and it did not appear that she knew he was alive, this is not any such Elopement as to b [...] her of her Dower, 1 Rolls Abr. 680. Green and Harvey.

Fine.The wife had a Joynture made to her after Mar­riage, and she and her husband levy a Fine sur Ca­nisance de droit, &c. and alien the Joynture, [...] shall not be good after the Coverture for her Dow [...] of the Residue of the Lands of her husband, be­cause her time of Election is not come until she be­come, sole according to the Statute of 27 H. 8. c. 1 [...] Dyer 358 b. 1 Inst. 36. b. 3 Co. 32. a.

The husband being Tenant in Tail, the Remain­der to his wife for Life; the husband makes a Feof­ment to the use of himself and his wife for Li [...] for a Joynture, and dies without Issue; this Joy [...] ­ture was pleaded in Bar of Dower. Per Curi [...] It is no Bar, because the wife is remitted, and [...] her first Estate, and the Joynture avoided, More 8 [...] Wood and Shirley.

If the husband seised in Fee makes a Feoffme [...] reserving an 100 Marks Rent yearly for twe [...] years next ensuing, to him and his wife, and [...] and the wife accept the Rent, yet this shall not [...] any Bar in a Writ of Dower, because she deman [...] a Freehold; and that only of a third part, Temp [...] 1 Ed. 1. 65.

Of the wifes being barred by Fine and Non-ch [...] Vide Tit. Fine, and 13 Co. 20.

If Divorce be causa Consanguitatis, Divorce. Praecon­tractus, Affinitatis, Frigiditatis, the wife shall not have Dower.

As concerning Dower at the Common Law, there must be assignment either by the Sheriff, by the King's Writ, or by the Heir, or other Tenant of the Land by consent and agreement between them.

Assignment of Dower. What persons may assign Dower, or not.

An Infant may assign Dower in Pais, because he is compellable thereto by Writ.

Guardian in Soccage may not assign Dower.

If two or more be Joyntenants of Lands,Joyntenant. the one of them may assign Dower to the Wife of a third part in certainty, and this shall bind his Companion, because they were compellable to do the same by Law; but if one assign a Rent it shall not bind his Companion.

Assignment may be made by a Disseisor, Abator,By Disseisor. Intruder, and be good, if there be no Covin, and if it be not prejudicial to the Disseisee.

It is a general Rule,Regula. No Assignment can be made but by such as have a Freehold, or against whom a Writ of Dower doth lie, and therefore Assignment by a Gurdian in Soccage is void; and so by Tenant by Elegit, Stat', or Tenant for years, 1 Inst. 34, 35.

There needs no Livery of Seisin or Writing to any Assignment of Dower,No Livery and Seisin. because it is due of common Right.

If the husband make several Feoffments of several parcels, and dies,Dower assign­ed by one Fe­offment. and the one Feoffee assigns Dower to the wife of parcel of the Land in satisfaction of all the Dower, which she ought to have in the Lands of the other Feoffees; the other Feoffees shall take [Page 94] no benefit of this Assignment, because they are Stran­gers thereto, and cannot plead the same; but in th [...] case if the husband die seised of other Lands in Fee simple, which descend to his Heir, and the Heir endoweth the wife thereof, this is good, and the se­veral Feoffees shall take advantage of it, and vouc [...] the Heir; so as there is in this case a Privity betwee [...] the Heir and the Feoffees, 1 Inst. 35. a.

What Assignment of Dower is against common Righ [...] or not.

To assign Dower of an Advowson is again [...] common Right, for she ought to have the third Pr [...] sentation of common Right.

So Assignment of Rent out of Lands is aga [...] common Right, 12 Ed. 4. 2.

Assignment of all the Wood or all the Mead [...] in lieu of all the Wood, Meadow, Pasture, a [...] Land is not against common Right. Common Rig [...] is a third part of each.

If she be dowable of three Mannors, and she a [...] cept of the Heir, one Mannor in Dower, in allo [...] ance of all, this is an Endowment against comm [...] Right, 18 H. 6.27.

What things may be assigned in lieu of Dower.

Rent.A Rent of the same Land may be assigned in [...] of a Dower, and this without Deed.

Rent on Con­dition.If a Man assign such Rent on Condition, this not good; for she ought to have it free witho [...] Condition, as she should the Land, 27 El. W [...] worth's Case.

Twenty Acres of Corn out of the same Land.In Dower, the Tenant pleads that he had assig [...] ed to the wife in the name of Recompence of [...] Dower twenty Acres of Corn out of the same Lan [...] and held a good Bar, as well as a Rent or other Pro [...] [Page 95] out of the Land; aliter, if an Horse or Sheep, for this is not of the nature of the Soyl, Moor 59.

It is a Rule.Regula. Assignment of other Lands. Assignment of other Lands where­of she is not dowable, or of a Rent issuing out of it, is no Bar of Dower.

If Dower be assigned on Condition the Condition is void;Assignment with a Condi­tion or Ex­ception. so if Dower be assigned of the Land ex­cepting the Trees growing upon the Land, this is a void Exception, for she comes in by her husband, 44 El. B. R. Bullock and Finch, Plowd. Com. Col­thirst and Bejushen.

If Dower be assigned with a Remainder over,Dower assign­ed with Re­mainder over. this is a void Remainder, because the comes in by her husband, and if it should be a good Remainder, it would be without a particular Estate, Pl. Com. Col­thirst.

Indowment by Meets and Bounds.

Albeit of many Inheritances that be intire, where­of no division can be made by Meets and Bounds, a woman cannot be endowed of the thing it self; yet she shall be endowed thereof in a special manner, Vide supra.

Note, Endowment by Meets and Bounds more beneficial for the Wife. Endowment by Meets and Bounds accor­ding to common Right is more beneficial to the wife, than to be endowed against common Right, for there she shall hold the Land charged in respect of a Charge made after her Title of Dower, 1 Inst. 32. b. As if a Man be seized of three Mannors of equal value in Fee, and taketh Wife, and chargeth one of the Mannors with a Rent-charge, and dieth, she may, by the Provision of the Law, take a third part of all the Mannors, and hold them discharged; [...]ut if she will accept the entire Mannor charged, she [...]hall hold it charged, 1 Inst. 171. a.

Not to be en­dowed by Meets and Bounds, where the Husband is seised in common. Note, The husband must be sole seised; where [...] is seised in common she cannot be endowed [...] Meets and Bounds, as if there be two Joyntenants [...] Fee, and the one alieneth that which to him belo [...] eth to another in Fee, who taketh wife and di [...] the wife for her Dower shall have the third part [...] the Moiety, which her husband purchased, to h [...] in common with the Heir of her husband and [...] other Joyntenant, for here she cannot have Dow [...] assigned by Meets and Bounds; aliter of Joy [...] nants: For the Joyntenant, which surviveth, clai [...] eth the Land by the Feoffment and survivo [...] [...] which is above the Title of Dower, and he [...] plead the Feoffment made to himself without na [...] his Companion which died; but Tenants in Co [...] mon have several Freeholds and Inheritances, [...] their Moieties shall descend to their several Heirs, [...] therefore their wifes shall be endowed.

Assignment of Dower how to be made.

Generally by the Sheriff; sometimes by the [...] by consent; sometimes in Chancery.

By the Sheriff.

Regula.It is laid down for a Rule: Whereever the [...] demands Land, Rent or other thing in certain, [...] Demandant after Judgment may enter or dist [...] before any Seisin delivered to him by the Sh [...] upon a Writ of Habere fac. Seisinam; Demandant cannot enter or distrain till Execution sued. but Dower, where the Writ demands nothing in [...] tain, there the Demandant after Judgment can [...] enter nor distrain until Execution sued; by wh [...] Execution the Sheriff is to deliver the third part certainty to the Demandant, 1 Inst. 34. b. If a [...] man bring a Writ of Dower of 3 s. Rent, altho [...] she ought to be endowed of 1 s. yet she ca [...] [Page 97] after Judgment determine 12 d. before Assignment, because the Demand was uncertain.

In Assignment of Dower the Sheriffs Return need not be of such precise Certainty,The Sheriffs Return in Dower. for it is but the Return of the Sheriff, therefore Quod habere fecit Seisinam de uno Tenemento sive firma, &c. and when he saith in the end, that he delivered them all by Meets and Bounds it is sufficient, Cro. Jac. 612. Sir Charles Howard's Case.

If the wife accept and enter upon the Sheriffs As­signment lesser Land in quantity than the third of the whole, upon Record,Barred to de­mand more than what she accepted upon the Sheriffs Assignment. Assignment of Dower a­mended. she is barred to demand more, Moor 679. in Longvil's Case. The Court ordered Amendment of Assignment of Dower being under value, and on refusal of an equal division pro­fered to him by the Dowager, and committed the Sheriff for taking 60 l. of the Lady to execute his Writ of Execution, and Information against him, 1 Keb. 743.

In Dower the Demandant recovered Dower of the Tenths of Wool and Lamb,How Execu­tion to be made of the Tenths of Wool and Lamb. how Execution shall be made is the Question; and the Justices conceived that the Sheriff might deliver the Tenths of every third Yard Land, and assign the Yard Lands in cer­tain, or deliver the third part of all in general; and this Dower the Sheriff may assign without a Jury, 2 Brownl. 148.

If a woman recover Dower of a Rectory impro­priate where there is not any Glebe,How to be endowed of a Rectory im­propriate where there is no Glebe. Endowment of a Mannor how to be. the Sheriff shall put her in possession of the third part of the Tithes generally, and not of the Tythes of the Land of the Parish in certain, Mich. 9 Jac. in B.R. per Curiam.

If a woman be dowable of a Mannor the Sheriff may assign the third part of the Mannor in com­mon in lieu of Dower without setting out by Meets and Bounds.

By the Heir.

Entry taken away by De­scent revived by Endow­ment.An Entry being taken away by Descent is revi [...] by his Indowment; as a Disseisor dies seised, a [...] the Heir enter, &c. who endows the wife of [...] Disseisor of a third part; now presently after [...] wife entreth and hath the possession of the sa [...] third part, the Disseisee may lawfully enter upon [...] possession of the wife into the same third part, b [...] cause when the wife is endowed she shall not be [...] by the Heir, but immediately by her husband be [...] the Disseisor, who is in for her Life by a Title p [...] amount the dying seised and descent; and the la [...] adjudgeth no mean Seisin between the husband a [...] wife, Lit. sect. 393.

Acceptance waves the En­dowment by Meets and Bounds.If A. seised of Land in Fee takes wife, and a [...] deviseth it for one and twenty years to B. and [...] and after C. his Heir assigns to the widow the th [...] part of the Land for her Dower without setting out by Meets and Bounds, and the wife accepts it [...] satisfaction of her Dower, although she was [...] bound to accept this so in common without set [...] it out by Meets and Bounds, for the prejudice [...] might accrew to them to occupy it in common [...] inasmuch as the third part in common is due by [...] Law, and they both consent to accept this accord [...] to the Law, they may by their consents wave [...] Assignment by Meets and Bounds, which is only their own advantage; and albeit the Lessee for y [...] does not agree to it, yet the Assignment of the [...] nant of the Freehold shall bind him, Trin. 16 Cootes and Lambert.

In Chancery.

Dower may be assigned out of Chancery by a W [...] de dote assignanda; and if it be evicted the Re [...] shall be transmitted into Chancery, and there she [...] be endowed de novo, Cro. Eliz. 364.

Damages.

If a Feme Tenant in Dower sue in a Court of Equity for Damages,Not to be re­lieved in Equi­ty. where her husband died not seised, a Court of Equity ought not to relieve her, for it is against the Law.

If the Baron make a Feoffment to the use of him­self for Life, the Remainder to the Son in Tail. Per Curiam, This is not such a dying seised of the husband for the wife to have damages in Dower, Dame Egerton's Case. But the husband ought to be seised of an Estate Tail or Fee-simple which may de­scend to the heir, Lit. Rep. 341.

Alienation or death of the Heir after Recovery be­fore Seisin prevents not Damages, 1 Keb. 85, 646, 711.

If Tenant in Dower be disseised,Tenant in Dower not within the Statute of Gloc'. and the Dissei­sor makes a Feoffment, the Tenant in Dower shall recover all her Damages against the Feoffee, for she is not deins le Statute of Glocester, c. 1. by which every one shall answer for their time, 2 Brownl. 41.

What Charges made by the Husband the Wife en­dowed shall avoid, or not.

Lord of a Copyhold Mannor in which were many Copyholders for Life takes wife;Copyhold. the Copyholder dies, the Lord grants this to another and dies, ad­ [...]udged that the wife shall not avoid this Grant in a Writ of Dower, for that the Custom is before the Title of Dower, 2 Co. 4. Dyer 8 Eliz. 21. con­ [...]ra.

If the wife accept Dower of the Heir against com­ [...]on Right she shall hold this subject to the Charges [...]f her husband, 8 H. 6. 27. otherwise,Dower against common Right. if she be [...]ndowed against common Right by the Sheriff.

Advowson.If A. seised in Tail of a Mannor, to which an Advowson is appendant, grants the next Presentation to B. and after marries C. and dies, and the wife is endowed of this Mannor with the Appurtenance in lieu of all her Dower, and after the Church [...] void; Quaere, if she may present and avoid th [...] Grant made before Coverture.

Writ and Declaration.

Writ of Right of Dower.

Writ of Dower unde nihil habet.

Tenant for Life, Reversion in Fee of Lands whe [...] of the Demandant had Title of Dower, and [...] brought a Writ of Dower against the Tenant [...] Life, hanging the Writ, he in Reversion levied Fine with Proclamations of the Reversion, the [...] nant for Life dies, five years expire, and the [...] mandant brought a new Writ against the Tenant [...] possession, Hob. 165. Quaere.

In Fulliam and Harris's Case: The Writ [...] Praecipe A. quod reddat E. Fulliam rationabile [...] [...] tem suam des terris, &c. dudum B. Fulliam qu [...] dam viri sui: Per Curiam, The Writ is ill; [...] it ought to be Praecipe A. quod reddat E. Full [...] quae fuit uxor B. Fulliam, &c. For in the begin [...] of the Writ she ought to be named Uxor of [...] husband, for that is the name whereby she claims Dower, Cro. Jac. 217.

In Dower the Demand was de tertia parte d [...] messuagiorum &c. in tres partes dividend': [...] Judgment was to recover Seisinam de tertia [...] tenementorum praedictorum cum pertin' tenend' e [...] separabilitate per metas & bundas. It was ill, cause they are Tenants in Common, and the Ju [...] ment ought to have been Tenendum insimul & communi; but had it been divided, aliter, Ex [...] nuscript. Mri. Brownloe.

Pleading.

If in a Writ of Dower the Tenant would bar the Demandant by a Joynture made during the Cover­ture, he ought to say, Quod intrando agreavit; Bar by Joyn­ture. for if the wife entreth and agreeth, the same is a good Bar of Dower, 3 Leon. 272.

In Dower the Tenant pleads the Release of the Demandant made to such a Tenant in possession te­nementorum praedictorum, Release of the Demandant. and because he doth not say he was tenens liberi tenementi, it was held to be no Plea, Cro. Jac. 151.

If one plead an Acquittance or Release in Bar of Dower, he ought to shew that this was for the same cause of Action, 5 H. 7. 1.

A Release of all his Right, &c. to him in the Re­version shall bar the wife of Dower, 8 Co. Altham's Case.

N'unque accouple in loyal Matrimony pleaded in London, and Replication to it,N'unque accou­ple en loyal Ma­trimony. and the Record re­moved into the Common Bench, and Writ to the Bishop, Co. Entr. 180.

In a Writ of Dower sued in any Court of Wales, if they are at Issue upon n'unque accouple, &c. the Court there hath not power to make Process to the Bishop, but the King shall write to the Marshal there to amesne the Record here in Banco, and here Pro­cess shall be awarded to the Bishop, 19 H. 6. 12.

In Dower against two, if one acknowledge the Action, and the other plead n'unque accouple, &c. the Demandant shall not have Judgment against him who acknowledged, until Issue tried, for this goes to the whole, 7 H. 6.34. So if one acknow­ledge the Action, and the other plead Assignment of Rent out of the Land, &c. in lieu of Dower, this ought to be tryed before Judgment against the other for the Moiety, for this goes to the whole.

Non-tenure. Non-tenure to part or all is a good Plaa.

Assignment of Rent out of the Land pleaded.In Dower the Defendant pleads Assignment of Rent out of the Land, but because he does not say he was Tertenant at the time of the Rent assigned it was adjudged against him, Dyer 361. and so i [...] Beaumont and Dean's Case, 2 Leon. p. 10. The De­fendant pleaded in Bar that he himself before the Writ brought did assign a Rent of 10 l. per annu [...] to the Demandant in recompence of her Dowe [...] The Demandant demurs, and for cause shews, be­cause the Tenant had not shewed what Estate he ha [...] in the Land at the time of the granting the Re [...] as to say, that he was seised in Fee, and granted [...] said Rent, that it might appear to the Court up [...] the Plea, that the Tenant had power to grant s [...] a Rent; and the Demurrer was held good.

The Demandant after the death of her husband enters into the Land in demand, and continued [...] possession of it five years, and afterwards the [...] entred, upon which she brought Dower, it was agreed that the Tenant needed not to plead [...] temps prist after his Re-entry;Touts temps prist. for the time the D [...] mandant had occupied the same is a sufficient Reco [...] pence for the damages, 3 Leon. 50. Riches's Case

By the Heir.If a woman bring a Writ of Dower against [...] Heir, and the Heir comes into Court upon the Su [...] mons the first day, and pleads that he hath been [...] ways ready, and yet is to render Dower, &c. if [...] wife have not requested Dower she shall lose [...] mean values and her damages; but if she have [...] quested her Dower she may plead it, and Issue th [...] upon may be taken, and a Request in Pais is su [...] cient; And the reason why Touts temps prist [...] good Plea by the Heir in this Case is to bar her of [...] damages, because the Heir holds by Title, and [...] no wrong till demand be made, 1 Inst. 32. 33. a.

Dower was brought against J. S. J. S. pleads, and Judgment given for the Defendant, and after­wards the Judgment was reversed, and she brought a new Writ of Dower; and the Tenant pleaded he always was ready, and yet is: Against which the Demand pleaded the first Record to estop the Te­nant; the Tenant pleads Nul tiel record; Mul tiel Record. Per Cu­riam, the Demandant cannot conclude the Tenant by that Replication to plead Nul tiel Record, for the Judgment is reversed, and so no Record, and it cannot be certified as a Record; but if Issue had been taken upon the Plea if the Tenant, absque hoc that he was ready, the same might have been given in Evidence against the Tenant, 30 Leon. 50. Riches's Case.Judgment of the Reversion and of the Rent.

In Dower. If the Tenant shew before the hus­band had any thing in the Land A. was seised of the same Land in Fee, and let it for years, rendring Rent, and granted the Reversion to the husband of the Plaintiff, who died seised of the said Reversion, and demanded Judgment, if the Demandant shall have Dower, &c. This is no Plea in Bar of Dower, but proves she had Title of Dower; but this saves the Lease for years, and she shall have Judgment only of the Reversion of the Rent, Winch p. 80.N'unque seised.

If Tenant in Fee Tail general makes a Feoffment in Fee, and takes back an Estate in Fee-simple, and after had taken wife and had Issue by her, yet she shall not be endowed, for that the Fee-simple is va­nished by the Remitter, and her Issue hath the Land by force of the Entail; but in this Case the Te­nant can never plead that the husband was never seised of such an Estate whereof the Demandant might be endowed, but he must plead the special matter, 1 Inst. 31. b.

The Issue was, N'unque seise que Dower; and per Curiam the Tenant shall never give in Evidence a Remitter to defeat the Estate of the husband upon [Page 104] this Issue, but ought to plead it and shew the Re­mitter in certain, and that the Issue was of another Estate than the husband had, and then the wife shall be barred; and it is the same Law to say the hus­band's Estate is defeated by Condition, Dyer 41. a.

Sir J. S. and Dorothy his wife, late wife to Sir H. Bowyer, brought Dower against Barbara Wo [...] Widow: The Tenant pleaded that Sir H. Bowye [...] was seised in Fee of the Mannor of W. and made a Feoffment thereof to the use of himself and Dorothy, his wife, for the term of their Lives for h [...] Joynture, the Remainder to one Bowyer, and the [...] dyed, and his wife entred and claimed it for he [...] Joynture. Et hoc paratus, &c. The Plaintiff replies that before the said Feoffment made that the said S [...] H. Bowyer, being seised of the said Mannor, did co­venant to stand seised thereof to the use of himsel [...] in Tail, and for default of such Issue to the use o [...] his wife for Life, and after to Sir Thomas Henly [...] Tail, and afterwards made the Feoffment prout and died sans Issue, and that she entred claiming by the Indenture of Covenant and was remitted. The Tenant rejoyns,Remitter. that the said Feme entred after the death of her husband, claiming her Estate for L [...] as Joynture by the said Feoffment, and demanded Judgment if she shall against her Claim be remitted And to this the Plaintiff demurs. It was adjudg [...] that she was volens nolens remitted for the benef [...] of him in Remainder. But per Curiam, the Te­nants Plea is ill; for the Tenant ought to hav [...] taken a Traverse to the matter alledged in the Re­plication,Plea pleaded out of time. and so ill in substance, as it is in Cro. Jac 488. But by Hobert, a Plea of Claim by force of the Joynture was pleaded out of time and idle, and re­quires no Traverse, Vide Hob. p. 71. Sir John Sherly and Barbara Wood.

Fine with Proclamations,Fine and Non­claim. and that she did not claim within five years after the death of the hus­band, Co. Entr. 171. Vide supra Tit. Fine.

By Attainder of Treason or Petty-Treason the wife shall lose her Dower, and it may be pleaded,Attainder of Treason. 5 Ed. 6. cap. 11. Not so of Murder or Felony.

Elopement by the Demandant is a good Plea in Bar, Vide supra. Elopement.

In Dower to say,General Issue. that the husband had not but an Estate for Life is no Plea, for this is but the ge­neral Issue, 10 H. 6. 17.

If a Divorce be a vinculo matrimonii, Divorce. this is a good Bar.

It is a good Plea that the wife was not 9 years old at the time of the death of the husband.That the Wife was not nine years old at his death. Alien. Joynture.

That the wife is an Alien is a good Plea.

If an Estate be made to the wife before Coverture (or after, if after the death of her husband she enter and agree to it) for term of her own Life, or a greater Estate, this is a Bar, if it be exprest to be for a Joynture, or it may be averred, 4 Co. 1. Vernon's Case. 1 Inst 36. Co. Entr. 171.

In a Scire Fac' to execute a Recovery in Dower,Acceptance of Tenant. it is no Plea to say that the Demandant accepted a Rent after Judgment out of other Land; but the Heir &c. may assign to the wife parcel of the Land, or a Rent by parcel out of the same Land in full satisfaction of her Dower;Heir vouched. and if she bring a Writ of Dower against the other, he may vouch the Heir who shall plead this.

Detainment of Charters pleaded.

Detainment of Charters concerning the same Lands whereof she claims Dower is a good Plea in delay of her Dower, 11 H. 4. 3. b.

If detainment of Charters be pleaded in delay o [...] Dower, he who pleads this ought to alledge wha [...] Charters they are, as certainly as in a Count, or d [...] tinue of them, 14 H. 6. 4.

In Dower against the Feoffee of the husband [...] ­tinue of Charters is no Plea; it is no Plea, but for th [...] Heir, Hob. 113.

Demand of Lands in A. B. against the Heir. T [...] Tenant pleads N'unque seisie que Dower. The Ju [...] found the husband was seised during the Covertu [...] de omnibus tenementis infrascript. praeterquam [...] Tenements in, &c. sicut praed. M. dotari poterit. [...] Curiam. Release Da­mages. The Praeterquam is idle, and Surplusa [...] and the Seisin of Land in A. and B. is confesse and the Jury have assessed damage, and therefore [...] ­ing seised is not found by the Verdict; but the D [...] mandant may pray Judgment of the Land and r [...] ­lease damages; or the Demandant may aver [...] the husband dyed seised, [...]nd have a Writ to enq [...] of the damages, 1 Leon. 37. Butler and Aires.

Return of the Sheriff upon a Recovery by default.In a Writ of Dower, if the Plaintiff recover [...] default, and upon this a Writ is awarded to [...] Sheriff or Bailiff where the Recovery is to delive [...] to the Plaintiff tertiam partem per metas, and [...] enquire of the value by the year, and how ma [...] time is passed after the first demand of the Dow [...] and what damages she has suffered. And up [...] this the Sheriff returns, that he had delivered [...] third part of the Lands, and that two years are pa [...] after the first demand, and damages 50 l. and a [...] cordingly Judgment is given to hold in severalty as to recover damages. Though the Judgment is [...] good as to the damages inasmuch as it is not aven [...] that the husband of the Plaintiff dyed seised, not [...] it so found by the Jury; so as the Judgment is e [...] roneous, yet it shall be reversed only as to this, 1 R [...] Abr. 776. Tye and Atkins.

The Tenant in Dower vouched the Son to War­ranty, as Son and Heir to the husband of the De­mandant, who appeared and entred into the War­ranty gratis, and he pleaded he had nothing by descent from his Father: Upon which Plea the Te­nant and Vouchee were at Issue, and the Deman­dant had Judgment against the Tenant to recover, but cesset Executio till the Voucher is determined; after that, before the day of Nisi Prius, the Vouchee dyed, and at the day the Tenant lost by default, and the Demandant prays to have a Writ of Seisin, Winch p. 88, 89.

In a Writ of Dower brought by a woman of a third part.Gavelkind. The Tenant pleaded that the Lands of which Dower is demanded are in nature of Gavel­kind; and that the Custom of such Land is, that Dower ought to be demanded of a Moiety. The Demandant demurs, and by the Justices she may de­mand Dower of a third part, or by Custom, but Quaere, for it has been adjudged contrary, 1 Leon. 62. The Custom is, that the wife ought to be en­dowed of the Moyety of such Land quamdiu non maritata remanserit & non aliter. Judgment against the Demandant. 1 Leon. 133. Hunt and Gilborn.

Tryal. Evidence. Issue.

If the Tenant plead that the husband is alive,That the hus­band is alive, how to be tryed. this shall be tried by the Justices by Proofs before them for greater Expedition, Vid. Precedent, Rast. Entr. 228. 2 Inst. 80. 8 H. 6. 23.

In Dower,Where the Judgment shall be taken upon the Con­fession, and not upon the Verdict. if the Defendant by his Plea acknow­ledgeth that the Baron was seised Que Dower, &c. And Issue is taken upon an immaterial thing, and this is found pro Quer. and Judgment accordingly; yet in a Writ of Error the Court shall take the Judg­ment to be upon the Confession, and not upon the Verdict, 21 Ed. 4. 46. Per Cur.

M. O. and her second husband brought an Actio [...] of Dower against T. and demanded Dower of [...] Indowment of one P. her first husband: It [...] agreed that this Tryal ought to be by Witnesses, a [...] cording to Dyer 155.Tryable by Witnesses. And it was awarded by [...] Court that the Council of either side should d [...] up Interrogatories, and put their names to the [...] and then they should be delivered, and he shall h [...] the Examination of the Witnesses on both sides, a [...] then seal up the Interrogatories again, and so [...] main until they were delivered over to the Co [...] and then qui melius probat melius habet, Winch [...] Mary Over versus Tucker.

Verdict un­certain.In a Writ of Dower of one Messuage, and [...] Garden; if the Defendant plead N'unque seisie [...] Dower, and the Jury find that the husband of [...] Demandant was seised of the said Messuage [...] Garden, all but so much as J. S. had, &c. this [...] not a good Verdict, because non constat how m [...] of the Land J. S. had, and so meerly uncertain [...] what Judgment should be given, 2 Rol. Abr. 65 Pope and King.

Damages. Judgment.

Request in Pais to assign Dower.It is a needful thing for the wife after the de [...] of her husband, as soon as she can, to demand [...] Dower before good Testimony, otherwise she [...] lose her damages, 1 Inst. 32. b. and a Request [...] Pais is sufficient.

In what Writ of Dower da­mages shall be recovered, and from what time.By the Statute of Merton the wife shall recei [...] damages in her Writ of Dower from the time [...] the death of her husband; it must be in a Writ [...] Dower unde nihil habet, not in a Writ of Right [...] Dower; for in no Writ of Right damages are [...] be recovered, and she shall receive damages only whe [...] the husband died seised of the Freehold and Inhe [...] tance.

It is to be observed that the mean values and da­mages are to be recovered against the Tenant in a Writ of Dower, and the Lord Coke citeth Belfield and Rouse's Case. The Tenant as to parcel pleads Non-tenure, and for the Residue detainment of Charters upon which Pleas they were at Issue, and both Issues by the Jury found against the Tenant, and found further that the husband died seised such a day and year, and had a Son, and that the De­mandant and the Son by six years after the decease of the husband took the profits of the Land, and that after the Son dyed without Issue, after whose decease the Land descended to the Tenant, as Uncle and Heir to him, by force whereof he entred and took the Profits until the purchasing of the original Writ, and found the value of the Land by the year, and as­sessed damages and costs; and the Demandant had Judgment to recover damages for all the time from the death of her husband without any defalcation. Let the Tenant take heed therefore how he pleads false Pleas.False Pleas.

The Statute of Merton extends to Copyholds where women are dowable.

If the wife have Dower assigned to her in Chan­cery she shall have no damages,No damages on Dower as­signed in Chan­cery. Judgment on Nil dicit, and Enquiry and Damages as­sessed. for the words of the Statute be, Et Viduae per Placitum recuperaverint.

W. brought a Writ of Dower against N. and Judgment was given upon Nihil dicit, and because the Baron died seised a Writ of Enquiry of damages was awarded, by which it was found that the third part of the Land, which she ought to have in Dower, was of the value of 8 l. per annum, and that eight years elapserunt a morte viri sui proxi­me ante inquisitionem, & assident damna ad 80 l. And the Demandant had Execution after Judg­ment upon the Habere fac. seisinam. Error as­signed: 1. Because damages are assessed to the time of the Inquisition where they ought to be but to [Page 110] the time of the Judgment, Sed non allocatur. 2. B [...] cause damages are assessed for the whole eight yea [...] after the death of the husband, where it appeare [...] that for part of the said years the Demandants w [...] seised of the Lands by force of the Judgment, [...] Execution in the Writ of Dower, and upon [...] the Writ of Error was allowed, 1 Leon. 56. Wall [...] and Nevil. And it was assigned for Error in [...] Case, that they assessed damages beyond the Revenue: Sed non allocatur. For perhaps the De [...] dants have sustained more damage than the bare Revenue.

If a Feme recover in a Writ of Dower before [...] Writ of Enquiry of damages awarded, and befo [...] the third part assigned by Meets and Bounds; [...] Judgment is perfect as to the Realty,Judgment when perfect. and the [...] ­mages are given by the Statute by way of addition 17 Car. 1. B. Steward and Steward.

If a woman recover Land in a Writ of Dowe [...] and after the Sheriff return damages from the Wit purchased usque diem Judicii, and after the Te­nant brought a Writ of Error in Executione Judi [...] He may upon this assign Error in the Judgmen [...] given for the damages upon the Return of the Sh [...] ­riff:The last Judg­ment but an Inquest of Office. For the last Judgment is not an Executi [...] but an Enquest of Office by the Statute of Mer [...] ▪ And it is the use always to bring but one Writ [...] such Case; and there is not any Writ Quia J [...] dicia reddita, but Judicium, Trin. 11 Car. 1. B [...] Porter and Agar.

Pasch. 5 Jac. Rot. 39. Nihil dicit in Dower. J [...] ­dicium de recover Seisinam versus praefat. R. d [...] tertia parte praedict' cum pertin'. Et idem R. [...] misericordia & averment de dying seised. The De­mand was de tertia parte unius messuagii & se [...] ­decim acrarum terrae cum pertin. per l'inquisitionem compertum fuit quod terrae & tenementa praedict [...] cum pertin. in Brevi praedict. ut in inquisitio [...] [Page 111] annex. specificat. sunt & existunt unum messuagium, quatuordecim acras terrae cum pertin. insimul jacen. in L. praed. ad terram vocat. J. ex Australi parte, &c. sunt tertia pars. Et ulterius found the time of the dying seised, and the damages, and the value, and costs. Ideo consideratum est quod petens recuperet versus praefatum tenentem valorem tertiae partis praedict. cum pertin. a tempore mortis praed M. quon­dam viri, &c. qui quidem valor per tempus praed. in se attingit ad 100 l. Et dampna suae praedict. ultra valorem praed. ad 5 s. 4 d. per inquisitionem praed. superius compert. necnon, &c. quae quidem dampna, &c. ad 9 l. 13 s. Note, The Jurors found the Land in demand to be of less quantity than the Demandant had counted. Ex Manuscript. Mri. Brownloe.

Judgment. Execution.

In a Writ of Dower,Judgment a­gainst the Heir condi­tionally. If the Heir of full age be vouched by the Tenant in the same County, the Judgment shall be conditional, viz. against the Heir if he have Assets, and if he had not Assets, against the Tenant, and the Tenant over against the Heir when he had, 2 Roll. Abr. 751. But if the Heir be vouched in another County, who entreth into the Warranty, and saith, he hath nothing by discent, and the Tenant avers that he had Assets, the Demandant shall recover presently against the Tenant generally, and shall leave him to sue over to have value against the Heir.

If the husband make a Lease for years,How Execu­tion shall be where there is a Lease for years. rendring Rent and dyes, the wife shall recover her Dower and have present Execution of the Land; and thereby she shall have the third part of the Reversion and of the Rent, and the Sheriff shall serve Execution of the Land as if there were no Lease for year [...]; for it may be that the Lease is void, and if the Lease be [Page 112] good, he who claims the Lease may re-enter upon th [...] Land notwithstanding the Recovery and Execution Godb. 165. Foliamb. Cro. Eliz. 564. Winch 80. L [...] Rep. 293.

Dower against eight persons, two confess and six plead to Issue, how the Judgment shall be.One seised of Land in Fee taketh wife, and e [...] feoffed eight persons, a Writ of Dower is brought against eight persons, and two confess the Action and the other six plead to Issue, the Demandant shall have Judgment to recover the third part of the [...] parts of the Land in eight parts to be divided; [...] after the Issue for the six found for the Demanda [...] she shall have Judgment to recover the third part [...] the six parts of the same Lands in eight parts to [...] divided.

A [...]ndment of [...]gnment of Dower.In Longvil's Case Trin. 16 Car. 2. B. R. It [...] moved for amendment of the Assignment of Dow [...] being under value, and on refusal of an equal di [...] sion profered by the Daughter to him, with libe [...] to choose which two parts he would for the H [...] which the Court ordered, and committed the Sh [...] for taking 60 l. of the Lady Longvil to execute [...] Writ of Execution and Information against him.

Rationabili parte bonorum according to the Cust [...] of London.

H. C. sues E. C. Executrix of her husband, [...] declares by Bill original in nature of Debt pro u [...] nabili parte bonorum in the Court of the Ma [...] and Aldermen of London, and alledgeth the Custo [...] of London to be, that quando Civis & liber h [...] de London' dies his Goods over his Debts and F [...] neral ought to be divided in three parts, and th [...] the wife of the Testator ought to have one pa [...] the Executors the second part to discharge Le [...] cies, and to dispose at their discretion, and the C [...] dren of the Testator, which were not sufficien [...] provided for in his Life time, a third part; and th [...] [Page 113] the Custom is that the Plaintiff in this Case ought to bring into Court a true Inventory, and sue before the Mayor and Aldermen, and that she here had brought an Inventory of 18000 l. and demands a third part (6000 l.) of the Executor. And this was removed to the Common Pleas by Writ of Priviledge: And Richardson said, that the Plaintiff might declare in London without alledging the Custom, for that the Custom is well known there; and a Procedendo was granted, Lit. Rep. 324. Honora Cason's Case.

As for the Nature and Reason of Joyntures.

IT was a Rule at Common Law, that a Right or Title which any had to any Lands or Tene­ments of any Estate of Inheritance or Freehold might not be barred by acceptance of any Waver of col­lateral satisfaction or recompence; and this was the reason that no collateral recompence (as a Joyn­ture) made to the wife in satisfaction of her Dower was any Bar of Dower at Common Law. Now [Page 114] before the Statute of 27 H. 8. cap. 10. (of Us [...] the greatest part of the Lands in England was c [...] veyed to divers persons to Uses; and forasmuch [...] wife was not dowable of Uses, her Father or Frie [...] procured the husband to take an Estate of his Feo [...] or others seised to his use to him and his wife [...] fore or after Marriage for their Lives or in Tail, a compleat Provision for the wife after the death the husband. Then comes the Statute of 27 H which transfers the Possession and Estate of the la [...] to the use by which the husbands were seised a [...] cordingly, and by consequence, if other Provi [...] had not been made, the wifes would have t [...] Dowers as well as their Joyntures; and for this Branches concerning Joyntures were added to [...] said Statute of 27 H. 8.

The Act expresseth plainly five Forms of [...] Limitation of Joyntures: As,

1. To the Baron and Feme and to the Heirs of [...] husband.

2. To the Baron and Feme, and to the Heirs their two Bodies.

3. To the Baron and Feme, and to the Hei [...] the Body of one of them.

4. To the husband and wife for their Lives

5. To the husband and wife for the Life of wife.

But there are other Estates which are within [...] said Statute, though not mentioned; and that [...] now under consideration.

What Estates are Jointures within the Stat [...] 27 H. 8. or not; or what is a good Jointure.

1. In respect of the Estate limited.

2. In respect of the manner and frame of the C [...] veyance.

3. In respect of the Consideration.

Besides these five Examples above mentioned, there are other Estates, that are not within the Sta­tute: As,

When an Estate is limited to a Man for Life, the Remainder to the woman for Life; tho' the woman hath no joint Estate with her husband, yet this Estate is as beneficial for her; and so was Ashton's Case, Dyer 228. Ashton in performance of Marriage co­venants between his Son and one A. makes a Feoff­ment to the use of A. for Life for her Jointure, and after they entermarry, the husband dies, this was a Jointure within the intent of the Act, though all the Examples in the Act are of a Joint-Estate.

But the Estate,It must be im­mediate after the Husband's death in Crea­tion. which by force of this Act shall be in lieu and Bar of Dower, ought by the Limita­tion to take effect after the husbands death immedi­ately; and therefore if the husband makes a Feoff­ment in Fee to the use of himself for Life, and after to the use of B. for his Life, and after to the use of his wife for her Jointure, this is not within the Act although B. dies before the husband; for a Jointure must be an immediate Estate after the hus­band's death in Creation; and shall not be aided by any event subsequent, or by matter ex post facto. It was a Case put to my Lord Chief Justice Bridg­man, when he was called up to be Chief Justice: A Man makes a Feoffment in Fee to the use of him­self for Life, Remainder to the use of his second Son for Life, and to the use of such woman as he shall marry, the Remainder to the Heirs of his second Son; the Father dies, the second Son takes wife and dies, it is no good Jointure, and the wife may bring her Dower; for the Estate which was limited to the wife ought to be considered as it was at the time of the Creation of the Use; and at the time of the Creation it cannot be said to be a Jointure with­in the Statute, because the husband by possibility might have dyed before the Father, and then the [Page 116] wife should not have an immediate Estate, Sid. p. 34. 5 Co. 2. Winch 33.

In some Cases though the wife hath immediately Freehold after her husband's decease, yet 'tis not a good Jointure to bar Dower; as if a Man make a Feoffment in Fee to the use of himself for Life, th [...] Remainder to his Executors for years, the Remain­der to his wife for her Jointure, this is no good Join­ture, Winch 33.

The Duke of Somerset purchased Lands to hi [...] and the Dutches, his wife, and to the Heirs Ma [...] of their two Bodies, this is a good Jointure with­in the intent of the Act, Dyer 96.

It must be an Estate for the Life of the Wife.It must be an Estate for Life of the wife; and a [...] Estate to the wife for Life upon a Condition is [...] good Jointure within the Act, if the wife after the death of the husband accept it; for it was a g [...] that a Jointure is a competent Livelyhood of F [...] ­hold for a woman to take effect presently after the death of the husband for the Life of the wife, if [...] her self be not the cause of the determination or for­feiture of it. And therefore if the husband make a Feoffment to the use of his wife pur auter [...] for her Jointure, this is not within the Act, a [...] this may determine during her Life without any d [...] ­fault in her. But if a Man make a Feoffment in F [...] to the use of himself for Life, and after to the use [...] his wife, durante viduitate, this is an Estate [...] Life to her, if she will, and therefore its a goo [...] Jointure within the Act.Acceptance of a conditional Estate for a Jointure, a good Bar of Dower. And if the Conditio [...] bind her to any unreasonable thing, she may wa [...] it, but when after the death of her husband [...] enters and accepts the conditional Estate for her Jo [...] ture she is barred of her Dower, 4 Co. 3.

An Estate in Fee-simple conveyed to the wife [...] her Jointure, and in satisfaction of her Dower is [...] Jointure within the Equity of the Act of 27 H. [...] for this is a competent Livelihood for the wife of [...] [Page 117] Estate of Freehold to take effect presently after the death of the husband for all her Life and more; but it is not a Jointure within 11 H. 7. c. 10. which restrains the Alienation of women, and to restrain an Estate in Fee-simple that it may not be aliened, is against a Rule in Law, and clearly out of the in­tention of the Act, 4 Co. 3. b.

What is a good Jointure within the Statute of 11 H. 7. cap. 10. and what Alienation by the Wife is within that Statute.

W. Bertram seised in Fee having three Daughters, by Indenture between him and R. B. in conside­ration of 400 l. paid by the said R. B. and in con­sideration of a Marriage had between R. B. Son and Heir of the said R. B. and Margaret, eldest Daughter of the said W. Bertram, and the pre­ferment of the Blood of the Bertrams covenanted to stand seized to the use of Robert the Son, and the said Margaret his wife, and the Heirs of her Body; and for default of such Issue to the use of his other Daughters and their Issues, the Remainder to the Heirs of the said W. Bertram; the husband dies having no Issue, and Margaret by Fine conveyed it to the Defendant, on whom he re-entred as a For­feiture within 11 H. 7. and it was resolved she was not a Jointress within that Statute notwithstanding the 400 l. paid by R. B. the Father; for the Land moved from W. B. the wifes Father, and the Pre­ferment of the Blood of the Bertrams shews the intent that the husband's Heirs should not be prefer­red, but the wifes;The meaning of the Act of 11 H. 7. for the meaning of the makers of that Law was only to disenable women, who have any Estate in Dower, or for Life, or in Tail jointly with their husbands, or only to themselves of the Inheritance or purchase of their husbands, or given to them by the Ancestors of their husbands, [Page 118] or other persons seised to the use of such husbands, or their Ancestors, when they became sole, or with any after taken husband from making such Aliena­tions, whereby the Heirs of such husbands might, and before making of that Law, were frequently dis­inherited. But in this Case the Advancement is by the Ancestors of the wife, and is not of the Pur­chase of the husband or his Ancestors, nor assured by the husband or his Ancestors, Cro. Car. 244. C [...] ­land and Pyot, Jones Rep. 254.

Fine and ren­der for 1000 years is with­in the Statute.Feme Tenant in Tail within the Statute of [...] H. 7. accepted a Fine sur Cognisance de droit c [...] ceo, &c. and by the same Fine rendred the Land [...] the Conisor for 1000 years, this is within the St [...] ­tute, 3 Leon. 78. Barker and Taylor.

If a woman hath Title of Dower, if before [...] be endowed she will enter and levy a Fine, the fa [...] is within the said Statute, and yet she is not Tena [...] in Dower, 3 Leon. 78. Barker and Taylor.

The Bishop of Exeter in consideration of faith [...] Service done by N. T. for many years past, gi [...] Lands to N. T. and Sybil his Cosin in Tail, and [...] Marriage was then intended to be solempnized [...] tween the said N. and Sybil, which after was [...] lempnized; they had Issue, N. dies, Sybil ma [...] again, she and her second husband alien the La [...] Per Curiam, Gift by the Husband or any Ancestor of the Hus­band. This was no Jointure within the S [...] tute of 11 H. 7. for it was not a Gift by the h [...] band nor any Ancestor of the husband; and the co [...] sideration of Service is no such Purchase as the L [...] intends, for it is not so valuable, but a volunta [...] Gift of the said Bishop, Cro. Jac. 1.173. Ward [...] Walthew, Yelv. 101. 1 Brownl. 137.

If it be no pre­judice to the Heir of the Husband it is not deins le Statute.Where the Land moves from the husband but [...] the Remainder of the Estate is to a Stranger, so as could be no prejudice to the Heir of the husb [...] the Alienation of the wife is no Forfeiture, as C [...] Eliz. 224.

Mich. 28 & 29 Eliz. in Laughter and Humfries Case it was agreed, that an Estate in Fee made by the husband to the wife is not a Jointure within 11 H. 7. for that any collateral Heir might inherit it, and the Statute was made for the benefit of the Issues between them.

The Case was. A Man and a Woman being Joyntenants in Fee of a Mannor intermarried, and levied a Fine thereof to a Stranger, who rendred it to them in Tail; they have Issue three Daughters, the Baron dies, the Feme takes a second husband, and they levy a Fine, and retake it in special Tail; the Feme dies sans Issue by the second husband, the Daughter enters on Lessee for years of the se­cond husband and distrained a Copyholder for Rent. And it was a Question whether the first Estate Tail was within the Statute of 11 H. 7. Per Curiam, For one Moiety it was, but for the other Moiety it was not.

Covenant to stand seised to the use of my Brother and his wife for their Lives,What Estate shall be said given by the Ancestor. it is a Jointure within the Statute of 11 H. 7. as given by the Ancestor of the husband, and it is within the words of 27 H. 8. which excludes Dower, Plowd. 307. a.

D. R. seised in Fee of 20 l. per annum Lands, having only two Daughters, covenants with J. K. in consideration of a Marriage between the said J. K. and his Daughter M. and in consideration of 115 l. to be paid by J. K. to assure the said Lands to the use of himself for Life, and after to the use of J. K. and M. and the Heirs of their two Bodies, the Remainder to the Heirs of the Body of Margaret, the Remainder to A. in Fee; the Marriage took effect, J. K. dies, M. takes a second husband, and they alien by Fine. Andrew the Heir of the Body of J. K. and M. enters. Per Curiam, This is not a Jointure within the Statute of 11 H. 7. because the Land moved from the wifes Father, [Page 120] and her Advancement in Marriage is intended the Cause of the Gift, and not the Mony, Cro. Jac. 624. Kinaston and Lloid, Jones Rep. p. 13.

Though a consideration of Marriage be joined with a considerati­on of Mony, yet 'tis a Join­ture within the Statute.But a Conveyance by the husband or his Ancestor in consideration of a Marriage, though it be joined with a consideration of Mony, yet is a Jointure within the Statute. R. G. seised in Fee by Inden­ture covenants with R. B. as well in consideration of 200 l. paid by R. B. and in consideration of a Marriage between L. his only Son, and Anne the Daughter of R. B. to convey the Land to the use of the said L. and Anne, and the Heirs of the Body of the said Anne to be begotten, and to his right Heirs. The Marriage takes effect, the Father dies before Assurance, L. makes the Assurance, and after they have Issue R. G. L. and his wife alien by Fine, R. the Son enters as a Forfeiture, this is a Jointure within 11 H. 7. But then the Question was, this being a Jointure within the Statute, whether the A­lienation by the Feme with the first husband, who limited it, be a Forfeiture? Per Curiam. Its no Forfeiture neither within the Words, nor within the Intent of the Statute; not within the Words, for it is, the woman being sole or with any after taken husband; aliter, had it been a Conveyance by the Father: it is not within the Intent because the husband joined in the Alienation, and the Statute did not intend but to provide that disinherison should not be done to the Heirs of the Husband, Cro. Jac. 474. Kinkman and Tompson.

Fine and Ren­der.Baron and Feme seised in Fee Tail in the Right of the wife, they join in a Fine and have it rendred back to them and the Heirs of their Bodies ingendred: The Baron dies, the Feme and her second husband alien; they may, and the Heir of the first husband cannot enter; for though it is within the Letter yet it is not within the Equity of 11 H. 7. Plowd. Eyston and Studd. Jones 253. Jenkins and Young.

B. deviseth Lands to his wife in Tail, Remain­der over and dies, the wife with the second husband aliens by Fine and dies, this is within the Words, but not within the Intent of the Statute;Inheritance must be limit­ted to the Husband and his Heirs. for the Statute intends only of Lands given for the Advance­ment of the wife, and the Remainder of the Lands is limitted to a Stranger, and so shall not be intend­ed to be limitted for a Jointure, where no Inheri­tance is limitted to the husband and his Heirs, so that the Entry of the Heir is not lawful, Cro. Eliz p. 2. Fisher and Pitful, 1 Leon. 261, 262. mesme Case.

The husband seised of Lands in jure uxoris, they levy a Fine,Rent in lieu of the Land. the Conisee grants a Rent to them in Tail, the husband hath Issue and dies, the wife aliens the Rent, its out of the Statute of 11 H. 7. for the Rent comes in lieu of the Land, Cro. Eliz. p. 2. cited in Foster's Case.

Baron and Feme being Tenants in Tail upon the Purchase of the husband, they have Issue two Sons,Feoffment of the Feme, tho' to him who had the Re­version in Fee, is a Forfeiture. the husband makes a Feoffment to the use of him­self for Life, the Remainder to the wife for her Life, the Remainder to the second Son, and his Heirs; the husband dies, the wife enters and makes a Feoff­ment to the Issue of the second Son, the eldest Son may enter, for it is a Forfeiture within the Statute of 11 H. 7. and this Feoffment by the Feme, though it be to him who had the Reversion in Fee, is a Forfeiture within the Statute, Sid. p. 63. Jones and Philpot.

A Man and a Woman being Jointenants in Fee of a Mannor intermarried, and after levyed a Fine thereof to a Stranger, who rendred it to them in Tail; they have Issue a Daughter, the Baron dies, the Feme takes a second husband, and they levy a Fine, the Remainder to them in Tail special. Per Curiam, For the one Moiety it is a Forfeiture with­in the Statute of 11 H. 7. and for the other, not, Cro. Eliz. 524. Laughter and Humfries.

Fine and Ren­der.A woman Tenant in Tail within the Statute of 11 H. 7. accepted a Fine sur Cognisance de droit come ceo, and by the same Fine rendred the Land back to the Cognisor for 1000 years, this is within the Statute; for this is as mischievous as a Disconti­nuance, Godbolt 6. 3 Co. Sir George Brown's Case. Moor 222. 2 Leon. 168. Vide supra Barker and Tay­lor's Case.

Of Estates devised by Will.

Some have been of Opinion, that no Estate de­vised by Will can be a Jointure within 27 H. 8. for every Jointure by that Act is intended to be made before or during the Coverture; but a Devise takes effect after the death of the husband: But in Leak and Randal's Case, Mich. 38 & 39 Eliz. it was adjudged contra, with this difference. Inasmuch as a Devise imports a Consideration in it self, and therefore a Devise may not be averred to be to the use of another than the Devisee, unless it be exprest in the Will, no more may a Devise be averred to be for a Jointure unless it be exprest in the Will. But if a Man devise Lands to his wife for term of her Life, or in Tail, &c. for her Jointure and in satisfaction of her Dower, this is a Jointure within the 27 H. 8. for this is within the Equity of the said Act, 4 Co. Vernon's Case.

In Vernon's Case Lands were setled on J. S. and J. B. and their Heirs to the use of himself for Life, and after his decease to the use of his wife for Life &c. and avers in pleading, that the said Estate li­mitted to the wife was for her Jointure, but it was upon Condition that she should perform his Will, yet it may be averred to be for her Jointure, for one Consideration may well stand with another, and although it be not exprest in the Deed, yet it may be averred.

Of the Feme's waving or agreeing to her Jointure.

If a Jointure be made to the wife before Cover­ture, after the death of the husband; the wife may not wave it and take her Dower, as she may do by a Jointure made during the Coverture: And

If Lands are conveyed to a woman before Marriage for part of her Jointure, and after Marriage more Land is conveyed to her for her full Jointure, and in satisfaction of all her Dower, and after the hus­band dies; in this Case, if the woman waves the Land conveyed to her use after Marriage, she shall have the Land conveyed to her before Coverture, and her Dower also in the residue; for Land convey­ed to the wife for part of her Jointure, or in satis­faction for part of her Dower is no Bar for the in­certainty of any Dower.

If a woman enter and agree to her Jointure made after Marriage, then she cannot wave it: But

If she bring a Writ of Dower and had Judg­ment of a third part, she hath estopt and concluded her self to claim any Estate; for by this she hath affirmed her self to have but a Title of Dower.

Acceptance of Dower by Deed indented shall con­clude the wife of her Right.

By bringing her Writ of Dower of the Residue she hath tacitly affirmed that she had not agreed to any Jointure made to her.

Pleading.

In a Writ of Dower the Tenant pleads, B. be­ing seised in Fee made a Feoffment to the use of himself for Life, and to Dorothy his wife for Life for her Jointure, the Remainder over to a Stranger, and Dorothy held in by Survivor claiming the said Estate. The Demandant replied, That before the [Page 124] said Feoffment, the said B. covenanted to stand seise [...] of the same Lands to the use of himself in Tail, th [...] Remainder to his wife for Life, the Remainder [...] a Stranger in Tail, and afterwards made the Feoff­ment prout, and then died sans Issue, and after­wards she entred by the Indenture and was seise [...] by Remitter: To which the Tenant rejoins tha [...] she held it claiming her Estate by the Feoffment i [...] Jointure, and demands Judgment whether again [...] that Claim she should be remitted. The one Que­stion was, whether the Rejoynder be good without traversing the Intail claimed in the first Estate, alledged in the Replication, or whether the Demandant ought to have taken a Traverse, because the Tenant i [...] Bar pleads an Entry claiming that Estate by the Feoff­ment. Per Curiam. The Tenant ought to have taken a Traverse to the matter alledged in the Re­plication,Traverse. and this is Matter of Substance; and for the Law, per Curiam, she shall be remitted for the benefit of him in Remainder, and nolens volens she is in of her first Estate, and that it is not any Jointure because it was to begin after an Estate Ta [...] Cr. Jac. 489. Hob. 71. Shirley and Wood.

She must plead specially that the Jointure was made du­ring Cover­ture to have her Dower.The Statute of Uses hath a general purview, th [...] Jointures made for wifes without distinguishing be­fore or after Coverture shall bar Dower, and the [...] comes with a Proviso, that if it be made during Coverture she may refuse it and take her Dowe [...] which is a kind of remedy provided for her out o [...] the generalty of the Law, and therefore must b [...] pleaded by her, Hob. 71.

Where the Tenant pleaded a Jointure made to the Demandant and acceptance of it after the husband [...] death, the Demandant may plead a Refusal after the death of the husband without traversing the Accep­tance; for it was not material of her part to plead but that must rise of the part of the Refuser, H [...] ­bart 104.

Fines levied by a Feme Covert, as a Feme sole, and the Operation of them.

THough by the Law of Nature the wife is put under the Obedience of her husband,The Reason why a Feme Covert is bound by her Fine. and Nature hath submitted her Will to his, and therefore will not bind her by her Acts joining with her husband, because they are judged his Acts and not hers, in that she wants a Free-Will; yet the Law of the Land for necessity sake of Com­merce, and the like, by a Law of Policy makes bold with this Law of Nature in a special kind; and [Page 126] therefore allows a Fine levied by the Baron a [...] Feme, because she is examined of her Free-Will j [...] dicially by an authentick Person trusted by the La [...] and the King's Writ, and so taken in a sort as a s [...] woman; so also when she comes in by Receipt.

Fine levied by a Feme Co­vert, as a Feme sole, her Husband shall defeat it.If a woman Covert levy a Fine alone, as a Fe [...] sole, this shall bind her by the reason before give [...] but her husband may defeat it for himself and h [...] too; but she shall not be received to say she w [...] covert, though her husband shall; and he may [...] ter and restore the Land to himself and his wife both Hob. 225. 7 Co. 8. Countess of Bedford's Case.

But she shall not.But if a Feme Covert levy a Fine, as a Feme [...] if her husband die she shall not defeat it, but the hus­band may defeat it during his Life, Stiles 254. [...] Haywood and William's Case. So is 7 H. 4.23. [...] a Feme Covert levy a Fine, as a Feme sole, if [...] husband defeat it not, this shall bind her and h [...] Heirs for ever. If a Feme Covert take a sec [...] husband and they two levy a Fine, this shall bi [...] her and her Heirs for ever, 7 H. 4. 24. 9 H. 4.23. 9 H. 6.34. But in both these Cases the husband may defeat it, and if the husband avoid the F [...] this shall avoid the Fine against the wife and he Heirs perpetually.

If a woman levy a Fine by the name of A. wi [...] of J. S. this Fine is meerly void, Quia constat per [...] Record, that she is Covert, Sid. 122.

One with ano­ther Mans Wife levies a Fine, the Court will not stay it.If J. S. with the wife of another levies a Fi [...] by the name of J. S. and Jane his wife of the [...] heritance of the Feme, and he who is the husba [...] comes into Court and shews the matter, and pra [...] to stay the Fine, yet the Court shall not stay it for the Court shall not determine the Loyalty [...] Matrimony; and if the truth be so, that she is n [...] the wife of J. S. it shall not hurt the husband, Tr [...] 7 Jac. B. Keblethwait and Ward.

The Court would not stop a Fine taken of a Feme Covert when she was dead, 1 Rolls Abr. 114. cited 2 Ventr. 48.

If the husband seised in Tail of Land for valuable Consideration bargain and sell this to another in Fee, and covenant, that he and his wife shall levy a Fine for better assurance; and it is agreed that 30 l. par­cel of the Consideration shall be paid to the hus­band upon the Cognizance of the Fine by the Baron and Feme;Fine acknow­ledged by Ba­ron and Feme before a Judge in the Circuit, and on Bargain and Sale, and Baron died be­fore the Term the Vendee has no remedy in Equity. and after they acknowledge a Fine be­fore the Judge in the Circuit, and the 30 l. is paid and received by the wife, the husband being sick in bed, and the husband dies before the Term, and upon this the wife stays the passing of the Fine, and after brought a Writ of Dower; the Bargainee shall not have any remedy in Equity against the Dower, for that it is against a Maxim in Law, that a Feme Covert shall be bound without a Fine, 1 Rolls Abr. 375. Holy and Lunn. But the Court agreed, if the wife had any personal Estate, as Executrix or Administratrix to her husband, she shall be liable for this; and thereupon a Commission was granted to enquire of Assets.

The Operation of a Fine by Baron and Feme.

When Baron and Feme join in a Fine of Lands, it shall be intended the Inheritance of the wife, if the contrary be not shewed.

Baron and Feme are Tenants in Tail, as Lands are given to J. B. and Eliz. his wife, and to the Heirs of their two Bodies begotten, the Remainder in Fee to the said J. B. J. N. levied a Fine thereof with Proclamations come ceo, &c. J. N. dies; after his death and within five years Eliz. enters enter­claiming her Estate. It was adjudged that the En­try of Elizabeth was lawful by the Act of 32 H. 8.The Statute of 32 H. 8. c. 28. explained. cap. 28. whereby it is enacted, That no Fine, Feoff­ment [Page 128] or other Acts, &c. or done by the husband only of any Lands, &c. being the Freehold or Inheritance of his wife during the Coverture between them shal in any wise be or make any Discontinuance thereof, or be prejudicial or hurtful to the said wife or her Heirs, &c. Though the Words of the Act be, The Freehold or Inheritance of the wife, and the Lands in this Case were the Freehold and Inheritance of the husband as well as the wife, yet because it was in equal mischief it was adjudged to be within the Statute, 2 Inst. 681. So is Hob. 257, 259. If Baron and Feme be Tenants in special Tail the Baron's Fine is a clear Bar to the Issue by 32 H. 8. though the wife may enter, if she survive, and though the wife be remitted, if any Estate be limited to her upo [...] her husband's Fine; and when the wife enters upo [...] the Conisee she is remitted to her own Entail, but it is not to be aliened nor descend; descend it ca [...] not, because the husband's Fine bars; and aliened it cannot be, because it was aliened before, Vide more in Hobart, Duncomb and Wingfield's Case.

Baron and Feme Tenants in special Tail, Baron levies a Fine, quid ope­ratur.If Baron and Feme be Tenants in special Tail and the Baron only levy a Fine, the Femes Esta [...] Tail is only turned to a possibility, and only r [...] ­ducible by Entry, if she survive, Hob. 257, 25 [...] When the Baron dies the Feme by her Entry be­comes Tenant in Tail again, and not Tenant in Ta [...] after possibility of Issue extinct, though the Estate Tail cannot descend.

R. E. seised in Fee levied a Fine to the use [...] himself for Life, and after to the use of such a wi [...] as he shall marry, and shall survive him; he and his wife levy a Fine to a Stranger;Feme by Fine bars her self of a possibi­lity. the Baron di [...] the Feme survives, she by her Fine hath barred h [...] possibility by Estoppel, Moor 557. Wells and Fen [...] contra. Cro. Eliz. mesme Case.

If Baron and Feme acknowledge their Right to another by Fine and Release, and the wife only ob­lige her and her Heirs to warranty, this is good, 44 Ed. 3.36. b.

If Baron and Feme levy a Fine (of Lands where­of they are seised jure uxoris) come ceo, &c.) this shall not be received with Warranty by them and the Heirs of the husband;Warranty. but it shall be received by them and the Heirs of the wife, because it is the Inheritance of the wife, 44 E. 3. 14.

Lessee for Life, and after the Reversion is grant­ed by Fine to Baron and Feme, and to the Heirs of their Bodies, the Remainder in Fee to the Baron, and the Baron and Feme by Fine release all their Right to the Lessee, and after they die sans Issue,Release. this is a good enlargment of the Estate of the Les­see, and this shall bar the collateral Heirs of the Baron, 30 E. 3. 4. b.

A. Feme sole, and B. Jointenants for Life,Fine enure as a Release. A. takes husband, and A. and her husband levy a Fine to B. by which A. and her husband concedunt the Land, & totum, &c. & quicquid, &c. to B. and his Assigns for [...]he Life of A. and this with War­ranty, and after B. dies during the Life of A. in this case he in Reversion may enter, for that this Fine enures as a Release to B. Trin. 22 Jac. B. R. Eustace and Scawen. The Lessor may enter into the whole, and there shall be no Occupant of any part, because this Fine enures as a Release, not by Mitter l'estate but by way of Extinguishment.

Baron and Feme by Fine grant Land to A. for 99 years, if he so long live,Feme Covert by Warran­ty in a Fine sur concessit is bound in an Action of Co­venant. and they by the same Fine warrant the Lands to A. contra omnes homines toto termino praedicto; the Baron dies: Per Curiam in Wotton and Field's Case, a good Action of Co­venant lies against the wife upon her Warranty in the Fine, although she was Covert Baron: For when the Warranty is only annexed to an Estate for years, [Page 130] it is only a Covenant for Damages in the person [...] Lien, which shall bind them and make them respo [...] sible for damages, as well as where such Warranty [...] annexed to the Freehold, they shall be bound to wa [...] rant the Land, and to answer in value of their o [...] proper Lands, 2 Sand. 180. Wotton and Hele, M [...] Rep.

What Fine is no Bar to her Election of Dower.The husband after Marriage assured to the wife [...] Jointure, they both levied a Fine sur conisance [...] droit come ceo & que il ad &c. of the Gift of [...] husband; this is not any Bar to the wife of [...] Dower, for the Election is not given to the [...] to claim her Jointure until the death of the husb [...] Dyer 358.

W. and his wife were seised of Lands to them [...] the Heirs of W. they by Indenture bargain and [...] to P. in Fee, wherein was a Proviso, that if W. [...] his wife, or the Heirs of W. pay 100 l. to P. [...] such a day, that then it should be lawful for th [...] and the Heirs of W. to enter, and to rehave and [...] joy, &c. and that then (after such payment) [...] Indenture and all other Fines and Assurances to [...] passed between the said parties,Construction. should be to [...] use of W. and his Heirs (leaving out the wife) [...] and his wife within seven years levied a Fine to [...] W. died, his wife paid the 100 l. Per Curiam [...] Feme shall have the Estate for her Life; so is [...] first part, and the other Clause is not repugn [...] but may stand together, Cro. Eliz. 744. South [...] and Manors.

Exchange.Baron seised of Lands in the right of his [...] the Baron and Feme both joined in Exchange [...] a Stranger for other Lands, which Exchange [...] executed; the Baron and Feme seised of the L [...] taken in Exchange aliened the same by Fine, [...] the wife after the death of her husband may [...] into her own Land notwithstanding that Fine, 1 L [...] 285.

A. makes an Estate to Friends in Trust to the use of his wife to commence after his death,Fine by the Wife docks a Trust. the wife joins in a Fine with her husband of the Land leased in Trust; this Fine shall dock the Trust, and there being an Extent upon the Land leased, this Trust shall not prevent the Extent by reason of the Fine.

A Fine is levied by Baron and Feme,Baron and Feme levies a Fine, the Feme being within age, the whole Fine shall be reversed, and not only quoad uxorem. the Feme being within Age, and in Error brought the Fine is reversed for the Non-age of his wife. The Question was in Worsley and Charnock's Case, if the Fine should be utterly reversed, or should be reversed only as to the wife, and should stand good against the husband; and two great Presidents were cited, the one contrary to the other; they who argued that the Fine should be reversed for the whole, cited Ely and Ford's Case, H. 8. A Fine was levied between R. Ely Plaintiff, and N. Ford, and Jane his wife, Defendants; the wife being within age, and Judg­ment was given Quod finis praedict. adnulletur & pro nullo penitus habeatur, and that the Baron and Feme should be restored; and thereupon a Writ is­sued to the Custos Brevium to bring into Court the Foot of the Fine, and it was presently cancelled in Court. The other President contrary was 7 Eliz. Baron and Feme levied a Fine, the husband died the wife being within Age; the wife took another husband and they brought a Writ of Error, and the wife by Inspection was adjudged within Age, and the Fine was reversed as to her and her Heirs only. But indeed in this Case the second husband was a Stranger to the Fine, and so it might seem absurd to reverse it as to him; but in the principal Case it was adjudged, that the Fine should be reversed as to both; for the whole Estate moved from the wife and all passed out of her, and Judgment was given Quod Finis praedict. reversetur. And by Gawdy, We cannot by this Reversal make the Conisee to have a particular Estate during the Life of the wife, ideo [Page 132] penitus reversetur, 1 Leon. 114. Worsley and Char­nock. 2 Co. 77. cited in the Lord Cromwel's Case.

Feme Covert Infant levied a Fine, in Error the Court will not permit the Husband to disavow the Guardian.A Feme Covert Infant levied a Fine, and he [...] Friends got a Writ of Error in her and her husbands name, and the Court would not suffer her husband to release. But Hales, I cannot see how that ca [...] be avoided: But he said, he had known in suc [...] Case, that the Court would not permit the husba [...] to disavow the Guardian which they admitted fo [...] his wife, 1 Ventr. 209. 3 Keb. 14. in Marshal an [...] Lady Prettyman's Case.

1 Mar. Dyer 89. b. Verny's Case. A Fine was l [...] ­vied by a Feme Covert,Alledged that the Feme died before the Teste of the Certificate. who died before Certifica [...] and Ingrossment; and the Fine afterwards certif [...] and alledged Error in Fait, that the woman di [...] before the Teste of the Dedimus, whereas th [...] Judge had certified the Concord taken after; a [...] this was not admitted to be questioned after the Cer­tificate.

The Court to judge of the Infancy of a Feme Covert, and not the Jury.Feme Covert levied a Fine within Age; she wa [...] inspected by the Court, and ajudged within Age▪ whereupon a Scire Facias was issued to the Te [...]te­nants, who pleaded she was of full Age at the ti [...] of the Fine levied; upon which Plea Issue was joi [...] ed and a Tryal had at the Assises, and Verdict p [...] Quer. who came into Court and now prayed Jud [...] ment. Per Glyn. The Court is to judge of her [...] fancy, and not the Jury; and though the Procee [...] ings are not duly had, yet they do no hurt, and t [...] Fine was reversed, Stiles 472. Videan and Fletche [...]

Entring the Kings-silver.If Baron and Feme levy a Fine, and the Conisan [...] is taken six days before Term. Pasch. 7 Jac. as the Writ of Covenant is returnable quindena Pasc [...] which was the third day of May, and the husba [...] dies the ninth of May, the Kings-silver not bei [...] entred; yet if upon Examination it appeareth th [...] the Clark had entred the Kings-silver in Paper bef [...] any Exception taken to it, and that now he h [...] [Page 133] entred the Kings-silver on the back of the Writ of Covenant as it ought to be, the Fine shall not be stayed, Pasch. 7 Jac. B. Boothes's Case: For when this is entred it shall have relation to the Writ of Covenant.

Farmer and his wife acknowledged a Note of a Fine 26 March by Dedimus Potestatem, and the wife died the 27th of the same Month; the 28th day Composition was made in the Alienation Office on a Writ of Covenant returnable in Hillary Term before; and the Kings-silver was entred in the Office of the Kings-silver as of the same Hillary-Term, and so the Fine was passed and engrossed, and in Easter-Term the Heir of the wife moved against this Fine; but the Court resolved the Fine must stand, Hob. 330. Farmer's Case.

Baron and Feme and a third person levied a Fine,Writ of Co­venant against Baron and Feme, and in the Summons the Feme was left out, its Error. and the Writ of Covenant was against the Baron and Feme and the third person, and in the Sum­mons the Feme was left out; for this Error the whole Fine shall be reversed; for being ill in part it is ill in all, Cro. Eliz. 290. Baxter and his wife a­gainst Atonating.

If Baron and Feme are bound to levy a Fine upon reasonable Request,What shall be a reasonable Request to levy a Fine. if Request be made when the wife is enseint or sick, it is not reasonable; and the Request to the husband alone is not good, More 124.

Of Commissioners taking a Fine of a Feme Covert.

Herbert Parrot's Case, A Feme Covert (his wife) at twenty years of Age levied a Fine before Commis­sioners in the Country, and the wife dies sans Issue; she had settled the Estate upon her and her husband, and the Heirs of their two Bodies: The Court was moved to set it aside, but they agreed they could not meddle with it; but if the wife had been alive and under Age, they might bring her in by Habeas Cor­pus, [Page 134] and inspect her, and set aside the Fine upon Motion, for perhaps the husband would not suffer the bringing of or proceeding in a Writ of Error. And the Commissioners in this Case were not fined, because they could not discern by the View whe­ther she was of Age, she being twenty years old: But had it been apparent by Inspection, that she was within Age, then they ought to have been fined, 2 Ventr. p. 30. Mod. Rep. 246. But in Cavendishes Case, 1 Rol. Rep. 113. the Commissioners did per­fectly know that the Feme Covert, who levied the Fine, was within Age; and for this cause every of them were fined, but the Fine stood good and no [...] reversed.

Carrel's Case in Dyer 220. b. and 12 Co. 142. was A Feme Covert of nineteen years of Age acknow­ledged a Fine before Commissioners, several Judges being in Town, who might have ex [...]mined her. She died on Friday Easter Week, but the Fine and Kings-silver was entred as of Hillary Term, four days before the wife's death: The original Writ of Covenant bore Date 15 Jan. Ret' Crast. Pur. and the Dedimus Potestatem 18 Jan. Dyer saith thi [...] Fine was stopt the ingrossing, for undue means i [...] gaining it, but in 11 Co. the Fine adjudged good.

Where a Feme Covert shall be examined or not.

A Feme Covert is not to be examined upon a [...] Fine, but when she and her husband pass some E­state or Interest, or make a Grant and Render [...] another, or release her Right by a Fine of Lands o [...] Tenements, 1 Inst. 353.

The Examination of a Feme Covert ought to b [...] secret, and the effect is to examine her whether [...] be content to levy a Fine of such Lands, namin [...] them particularly and distinctly, and the Estate th [...] passeth by the Fine of her own voluntary free Wil [...] [Page 135] not by Threats, Menaces or any compulsory means; but where nothing is moved in the Fine, but only that the husband and wife do take an Estate by the Fine, this shall not conclude the wife, because in such case she shall not be examined.

Against a Fine levied by her self a woman cannot be remitted, because she was thereupon examined.

If a Fine be levyed of Land to Baron and Feme, and the Baron and Feme grant and render the Land, there the wife shall be examined, and the Exami­nation must ever be upon the Writ, and therefore a Baron and Feme upon a Fine levied to them of Land cannot grant and render out of the Land, because the Rent is not contained in the Writ, 2 Inst. 515.

8 H. 4. 8. b. If a Fine sur Grant & Render be made to Baron and Feme, she shall not be examined; this is to be understood as the principal Case there, that there was not any Conisance by Baron and Feme, but only a Grant and Render by the other.

If a Fine sur Conisance de droit be levied to Ba­ron and Feme rendring Rent, the Feme shall be ex­amined, because she is to be charged with the Rent, 46 E. 3. 15. b.

If a Fine upon Release be levied to Baron and Feme, she shall not be examined, because the Fine is not an Estoppel, but for her advantage, 3 H. 6. 42. So if a Fine sur Conisance de droit be levied to Ba­ron and Feme, this shall not estop the wife to claim another Estate.

Now a Fine, which passeth an Estate, ought not to be received if she be not examined; but if the Fine be received and recorded, the Feme Covert or her Heirs shall not be received to aver that she was not examined nor assented; for this should be against the Record of the Court, and tend to weaken the general Assurances of the Realm, 2 Inst. 515.

Where a Feme Covert shall be barred by Fine and Non-Claim.

Fine and Non-Claim of the wifes Land shall h [...] the husband, who suffered five years to pass, and all claiming under him, and the wife her self during the Coverture, but the wife shall have a new five years after the death of the husband, Cro. Car. 200 Holme and Heyfield's Case. 4 H. 7. c. 24.

Tenant for Life, the Remainder in Fee to a Feme Covert; the Tenant for Life levies a Fine, the hus­band dies, the wife takes another husband, the Te­nant dies, the five years pass, the husband dies, th [...] wife is barred and is not remedied by the Statute of 32 H. 8. 28. Dyer 159. in Margine. And this neg­lect of the second husband shall be prejudicial to the wife, Whetstone and Wentworth.

A Man seised of Lands in Fee taketh a wife, and after levies a Fine, and the Proclamations were made, and the five years pass in his Life, and he dies, and after his death other five years pass, and after the wife brought her Writ of Dower, she shall be bar­red, because the wife had Title by the Intermarriag [...]. although it cannot be executed till after the dea [...] of the husband; and because she had Title at the time of the Fine levied she shall be bound by Non-Claim for five years after her Title consummate, More 53.

Declaration of Uses.

Beckwith's Case settles this in these Resolutions 2 Co.

If the husband alone declare the use of the Fin [...] levied by them both of the wifes Land; his Decla­tion shall bind the wife, if her disassent doth not ap­pear: Neither is it always necessary that the nam [...] [Page 137] of the wife should be set to the Indenture, which doth declare the Use.

The wife hath Estate in the Land, and is not sui juris, the husband is sui juris, but he had no Estate in the Land, and therefore they differ in the Limita­tion of the Uses, all is void.

If the husband and wife sell the Land of the wife for Mony by parol, and after levy a Fine to the Ven­dee, this shall bind the wife without other Writing, proving her assent.

If Baron and Feme levy a Fine of the wifes Land, and an Indenture is written in the name of the Ba­ron and Feme, whereby the Land is limited to cer­tain Uses, and the husband only seal and deliver it, and the wife will not, but disagrees to it; this Li­mitation of the Baron shall not bind the wife, al­though the wife had not exprest her disagreement by any Deed or Limitation of other Uses, Mich. 15 Jac. B. R. Webb and Worfield.

Of a Fine levied to Baron and Feme, and the Ope­ration. Vide supra Tit. Examination of Feme Covert.

Feme Covert is Tenant for Life, the Remainder in Fee to the Son, which she shall have, and he in Reversion before the Birth of the Son bargain and sells the Land, and levies a Fine of it to the Baron and Feme, the particular Estate of the wife is drown­ed in the Reversion, and the contingent Remainder is destroyed, 2 Sand. 386, 387, 388.

Recovery.

Common Recovery against Tenant in Tail and his wife having nothing shall bind the Entail, Plowd. 540. Eare and Snow, Hob. 27. And a Voucher [Page 138] may be by the Baron only upon a Release with Wa [...] ranty to him and his wife, if the wife have nothing Hob. 27.

Tenant for Life, the Remainder to Baron a [...] Feme and their Heirs, the Baron and Feme suffer [...] Recovery: The Question was, if the Heirs of th [...] wife are bound by this Recovery, because the Feme being Covert, it was conceived she was not Tena [...] to the Praecipe, because it appears not she was ex­amined. Per Curiam. It is held Br. Abr. Recove­ry in value 27.Feme Covert is barred by a Common Re­covery. Its prudential to examine a Feme Covert upon a Reco­very, but not necessary and why. A Feme Covert is barred by a Common Recovey, and it is the common practice, 10 C [...] 43. And it is not necessary to examine a Feme Co­vert upon a Recovery, though it be prudential [...] do it; though in a Fine it is otherwise, beca [...] there is no Recompence in Value; and the Feme here is Tenant to the Praecipe, and she shall be e­stopped to speak against the Recovery, for she joi [...] in the Recovery with her husband, and here is [...] default made by the Baron; and now the Record is perfect, and a thing contrary to it is not to be aver­red against it; but before the Record was perfect she might have pleaded; and the Recompence i [...] Value here shall go to the Heirs of the wife, and the Tenant for Life is also bound by this Recovery, and the Feme is privy to the Recovery. If a Stranger had been Tenant to the Praecipe, and the Baron and Feme had been vouched, the Feme had been bound and this is a stronger Case, Stiles 319. Locker and Palfryman. But it was the Opinion of Chief Justice Bridgman in B. C. Sid. 11. That a Feme Co­vert ought to be privately examined in a Commo [...] Recovery, but said, the practice was otherwise, bu [...] it was a fault, and ought to be corrected, yet the Recovery passed without Examination: And so is my Lord Coke's Opinion 10 Co. 45. in Portington's Case, That the wife had used to be examin­ed upon a Recovery, and a Dedimus Petestate [...] [Page 139] granted to take her Examination upon the Co­nisance.

Baron and Feme seised to them and the Heirs Males of the Body of the Baron, the Remainder in Tail to B. the Reversion to the right Heirs of the Baron; the Baron levies a Fine; the Conisee suf­fers a Recovery, and voucheth the Baron,The Baron on­ly is vouched, Quid operatur. who voucheth the Common Vouchee: Per Curiam, this Recovery shall bind the Tail, because he comes in in privity of the Tail, 3 Co. 6. Cupledike's Case. The wife who had an Estate for Life with her hus­band was not vouched; and though the Estate of the wife is not recontinued, yet the husband, as Voucher, shall be in Judgment of Law in Privity of the Estate Tail which he once had; and the Estate of the wife by the husband's Fine is put to a Right, so as the husband comes in as sole Tenant in Tail: Aliter, if the Baron and Feme are seised to them and the Heirs of their two Bodies with Remainders over. But

An Estate is made to Baron and Feme, and to the Heirs of the Body of the husband, a Common Re­covery is had against the Baron, who voucheth the common Vouchee; the Baron survives his wife and dies without Issue; this is not good to bar the Re­mainders, because at the time of the Recovery there were no Moieties between him and his wife; and the Baron had not power to sever the Jointure, and he, during the Life of his wife, is not seised by force of the Tail, so that the Praecipe being brought a­gainst him only, the Conveyance cannot for any part enure to the Estate Tail or to the Remainder; to all the Estate it cannot enure, because the wife had a joint Estate with him, who was no party to the Recovery; and for a Moiety it cannot be good, for there are no Moieties between Baron and Feme, 3 Co. 5. Owen and Morgan's Case.

Bargainee a good Tenant to the Praecipe.If Baron seised in the Right of his wife for Life, the Remainder in Tail to B. the Remainder to C. and the husband bargains and sells the Land to ano­ther, against whom a Praecipe is brought, whe [...] voucheth him in Remainder, and so a Commo [...] Recovery passeth; this shall bind the Remainde [...] although not the wife, because the Bargainee was a good Tenant to the Praecipe, 2 Rolls Abr. 394.

Where Baron and Feme are vouched it shall b [...] intended to be in the Right of his wife, 20 H. 7. 1. b. And therefore in Grosvenor and Massye's Case, 1 Leon. 291. n. 318. Four husbands and their wife are vouched in a Recovery, and the Plaintiff brough [...] his Writ of Error as Heir to one of the husbands he ought to have brought it as Heir to one of the wifes.

Baron and Feme suffer a Recovery as Vouchees, if it be a For­feiture.In consideration of Marriage the Father enfeo [...] his Son, and a Feme sole in Fee-simple, who inte [...] ­marry, this is not within the Statute 11 H. 7. they after grant the Land by Fine to the Father, who renders to them in special Tail, this is a Conveyance of each one for his Moiety to the Father, which Moyeties they take divided by the Gift before Ma [...] ­riage, and then the Render of all to them in sp [...] cial Tail; as to the Moiety of the Son, which [...]e had by the Fine, the Gift of the Father to the So [...] and his wife is within the Statute of 11 H. 7. But [...] to the Moiety, which the wife gives by the Fine, are which the Father renders in special Tail, this w [...] not within the Statute. The Baron and Feme su [...] a Recovery as Vouchees, this is a Forfeiture with [...] the Statute of 11 H. 7. Moor 715. The Queen ar [...] Savage.

The Wife in a Common Recovery, be­ing within Age, ought to appear by Guardian.If a Common Recovery be suffered, and the Bar [...] and Feme as in Right of the wife (the Feme bein [...] within age) are vouched, and they appear by A [...] ­torney and vouch over, and so a Common Recove [...] is had, this is Error; for though the husband be [...] [Page 141] full Age, yet the wife being within Age, she ought to appear by Guardian, Hill. 17 Jac. B. R. Holland and Lee. But saith Rolls, 1 Abr. 288. dubitatur. Dyer 290. 366. But no doubt is in the Case; for the appearance by a Feme Covert, in a Recovery, within Age by an Attorney, is Error; and though it may be objected, that the husband is of full Age, and therefore he may make Attorney for himself and his wife, the Law is not so; for the Rule is, that the husband cannot give away or lose the Inheritance of the wife; but it must be given or lost by her self or her own Act, and she ought to appear by Guardian notwithstanding the full Age of the husband, who is to be joined for Conformity with her, Sid. 322. Raby and Robinson.

Dyer 290. 363.The Custom of London. A Recovery suffered by Baron and Feme of the Land of the Wife is as strong to bind the Right of the Feme Covert by the Custom of London, as a Fine at Common Law. Vide there such Custom as to Wales.

Recovery by Default.

If the Baron lose by Default the Fee-simple Lands of the wife, the wife had no Remedy but by a Writ of Right; but by the Statute of W. 2. c. 3. she shall have a Cui in vita.

If a Recovery be had against Baron and Feme, Tenants for Life by Default, they may have a Quod ei deforceat, 2 Inst. 350. by Stat. W. 2. c. 4. and after his death she may have a Quod ei deforceat.

Avowry, Vide Rent.

If the husband be seised of a Seigniory in the Right of his wife, Conisance ought not to be made of Rent as Bailiff to the husband alone, but as Bailiff to them both, 12 R. 2. Avowry 88. Contra 14 H. 4. Avowry 198.

If Lessee for years be, rendring Rent, Avowry to be made in the name of Baron and Feme. and the Re­version descend upon a Feme Covert, and after the Rent is arrear, and the Baron distrains, and the Lessee brought Replevin; the husband ought to avow in the name of himself and his wife, and not in the name of himself alone; for the Avowry is to be made according to the Reversion, which is in the wife, 1 Rolls Abr. 318. Wise and Bennet.

In Replevin Def. ut Ballivus H. & A. uxoris ejus cognovit, &c. Quod ante, &c. Willielmus S. fuit seisitus de septem acris pasturae cum pertin. in D. unde locus est parcella in dominico suo ut de feodo & tenuit de praed. H. & A. ut de Manerio suo de D. in Com. praed. per fidelitatem & reddit. 3 d. ad Festum [Page 144] &c. Necnon per servitium fuct. sect. ad Curiam, & [...] de quo quidem Manerio Quidam R. W. fuit seisit [...] in feodo, & sic seisitus per nomen, &c. per q [...] dam scriptum suum indentat. gerent. dat. tali [...] & anno feoffavit quendum R. S. & praed' A. t [...] uxorem ejus de eodem Manerio habend' & tene [...] pro termino vitae naturalis ipsius A. ad quod quide [...] feoffamentum praed' tenens postea & ante, &c. apud [...] praed' se iisdem R. S. attornavit Quorum pra [...]ter [...] idem R. & A. fuer' seisiti de Manerio praed' [...] pertin' in dominico suo &c. pro termino vitae ip [...] A. Ipsisque sic seisit' praed. R. obiit ac prae [...] A. ipsum supervixit, & se tenuit intus ac fuit [...] sola seisita in dominico suo ut de libero teneme [...] pro termino vitae suae. Et sic sesit' percipit vir [...] praed' H. per quod, &c. de quibus servitiis f [...] seisit' per manus & in jure ipsius A. & sic cog [...] ­vit pro redditu. Ex Manuscript. Mri. Brown [...] Trin. 19 Eliz. Rot. 543.

Where and to what purposes a Feme Covert shall be said a Dissesoress without her proper Act or E [...]ry▪ and where and to what not.

Regula.It is regularly true, a Feme Covert cannot be [...] Disseisoress by her Commandment or Procurem [...] precedent, or by her Assent or Agreement subsequ [...] but by her actual Entry or proper Act she may, [...] Inst. 357. b. and yet if she be of Covin and confe [...] with her husband to a Disseisin, she is a Disseisor [...] and consequently shall not be remitted.

But it is universally true, a Feme Covert shall n [...] be a Disseisoress by the Act of the husband, as [...] the husband disseise another to the use of the wi [...] the wife is not a Disseisoress by this Act, 12 E. 4. 9. [...] So it is though she agree during the Coverture, b [...] her Agreement is void; or if both agree, she is n [...] a Disseisoress (unless Covin be in the Case.) But [Page 145] after the death of the husband she agree to the Dis­seisin she shall be a Disseisoress.

If Baron and Feme enter into Land in the right of the wife where she had not Right, the Feme is no Disseisoress, for it shall be taken to be the Act of the husband only.

A Feme Covert cannot make a Disseisin to the use of her husband, 8 H. 6. 14. b. Curia. Feme Covert cannot make a Disseisin to the use of the husband. For although she gain an Estate by her Entry, yet she had not power to dispose of it to another, being Covert, as she ought, if she makes a Disseisin to the use of ano­ther; but contra 21 H. 7. 35. So a Feme Covert cannot disseise a Man to the use of a Stranger.

If a Man take a Distress for Rent issuing out of the Land of a Feme Covert, and the Baron and Feme make Rescous, they both are Disseisors, 21 E. 4. 53.

If the husband discontinue the Land of his wife, the wife being in possession and disagreeing to the Feoffment claiming her first Estate, she is a Dissei­soress.

Note, If the husband disseised one to the use of his wife, no Agreement of the wife shall be laid to the Disseisin, for that the cannot disagree during Co­verture, Ex Manuscript. Mri. Brownloe.

Nota, In Trespas ad novam assignationem Def. placitat liberum Tenementum ipsius Def. & E. uxo­ris ejus in jure, &c. Ad quod Quer. dicit quod ipse fuit seisitus quousque disseisit' per le Baron ad usum uxoris per quod fuer' seisit. per disseisinam, & quod disseisee re-enter & Tresp' null' faciend' mencionem de agreement del feme al disseisinam Quere car aliter d'estranger, Def. maintain son Freehold & Traverse le disseisin, Ex Manuscript. Mri. Brownloe.

Discontinuance. Where and what Act by the Husband was a Discontinuance of the Land of the Wife at the Common Law, and what shall be a Discontinuance, and what not.

If a Man be seised of Lands in the Right [...] the wife in Fee Tail or for Life, and thereof enfeo [...] another, and dieth, the wife may not enter, but m [...] bring her Action, which is called a Cui in vita, or [...] Sur cui in vita, for the Heir; this was at Commo [...] Law before the Statute of 32 H. 8. c. 28.

Stat 32 H. 8. cap. 28.But now by that Statute the wife and her He [...] after the death of her husband may enter into th [...] Lands or Tenements of his wife notwithstanding the Alienation of the husband.In what cases the Wife may enter after the Discontinu­ance of the Action.

So it is where the husband and wife are joy [...] seised to them and their Heirs of an Estate [...]de during the Coverture, and the husband makes a feoff­ment in Fee and dieth, the wife may now enter [...] that Statute, although it was the Inheritance of th [...] both. So it is if the Feoffment be made by [...] Baron and Feme (albeit the Words of the Statute [...] by the Baron only) for in substance this is the Ac [...] of the husband only. If Lands be given to [...]o [...] and Feme, and the Heirs of their two Bodies, [...] the husband makes a Feoffment in Fee, and dies, t [...] wife is holpen by the said Statute.

But note, If the husband levy a Fine with [...] clamations and dies, the wife must enter or avoid [...] Estate of the Conisee within five years, or else [...] is barred for ever by the Statute of 4 H. 7.Stat. 32 H. 8. helps the Dis­continuance, but not the Bar. For t [...] Statute of 32 H. 8. doth help the Discontinuan [...] but not the Bar; and the Statute speaketh of a Fi [...] but not of a Fine with Proclamations, 1 Inst. 326.

Note, Of things that lie in Grant, as, Rents, Commons, &c. there can be no Discontinuance.

J. B. and Jane his wife, being seised of Land to them and the Heirs of the Body of J. B. the Re­mainder to Ed. B. and the Heirs of his Body, the Remainder to W. B. in Tail, the Remainder to G. Edwards in Tail, the Remainder to the right Heirs of J. B. J. B. and his wife, and W. B. the third in Remainder, joyned in a Feoffment with Warranty to M. K. and after the said Baron and Feme levied a Fine to M. K. 1.What is a Dis­continuance. Whether the Feoffment be a Discontinuance of the Estate Tail? Per Curiam, It is a Discontinuance, and the joining of William does not hinder a Discontinuance, because there is an in­termediate Estate Tail in Edward, which is discon­tinued. 2.As to the Re­mainder. This Feoffment and Fine to the same person make but one Assurance; and when the wife is barred and her Estate destroyed by the Fine that she cannot enter, those in Remainder cannot enter but are as at Common Law, Cro. Car. 321. King and Edwards.

If a woman Inheritrix,The Wife may enter after her Husband dies in Nonage. who hath a husband with­in Age, and he being within Age makes a Feoffment in Fee and dies, she may enter, and she shall take benefit of the Non-age of the husband; for the Heir of the Husband cannot enter, for no Right or Title discends to him.

A Baron seised of Land in the Right of his wife makes a Feoffment in Fee upon Condition and dies; if the Heir enter upon the Feoffee for the Condition broken (as he may;) for though no Right descended to the Heir, yet the Title of Entry by force of the Condition descends to him:Discontinu­ance being de­feated by the Entry of the Heir for Con­dition broken. The En­try of the wife is congeable upon the Heir, for by his Entry he hath avoided the Feoffment and so de­feated the Discontinuance, and his Estate vanish­eth, and the Estate vesteth in the wife without En­try or Claim.

Discontinu­ance or not by the Agree­ment of the wife.If Baron and Feme make a Lease for Life by Deed of Lands of the wife, if the Feme after the death of the Baron, agrees, it is no Discontinuance; but if she disagree, it is a Discontinuance, Cro. Car. 406.

If a Man seised in the Right of his wife, letteth the same Land to another for Term of his Life, no [...] the husband hath again the Reversion of the Fee simple; if the husband dyes, living the wife and the Tenant for Life, and the Reversion descend [...] the Heir of the Baron, and he grant the Reversio [...] to another in Fee, and the Tenant attorns, and th [...] the Tenant for Life dies,What is not a Discontinu­ance. and the Grantee of the Reversion enter, this is no Discontinuance to the wife but she may well enter upon the Grantee, becaus [...] the Grantor had nothing at the time of the Grac [...] in the Right of the wife when he made the Gra [...] of the Reversion, Lit. sect. 639. But if the Baro [...] and Feme in such case join in a Lease by Deed, the Reversion is not discontinued, but remains in the wife, and yet it was at Common Law a Disconti­nuance for Life.

If Baron and Feme, Tenants in special Ta [...] and the husband aliens in Fee,What is a Dis­continuance, and of the Husbands be­ing seised by force of the Tail. this is a Disconti­nuance of the Tail, for he is seised of all intirely, 8 Co. 71. Greenloes Case.

But if the husband be seised of Land in the Right of the wife in Tail, and alien in Fee, this is not any Discontinuance of the Tail, for he is not seised b [...] force of the Entail, 1 Inst. 326.

If Lands are given to Baron and Feme, and t [...] the Heirs of the Body of the Baron, and the husban [...] makes a Feoffment in Fee, this is a Discontinuance for the husband is seised by forch of the Tail, an [...] so it shall be pleaded, 9 Car. B. R. King and Edwards. Plead.

If Tenant for Life be, the Remainder in Tail, and he in the Remainder enter upon the Lessee and dis­seiseth [Page 149] him and makes a Feoffment over, this is not any Discontinuance, because he is not seised by force of the Tail, Trin. 2 Jac. B. Morlidge and White.

But if the Lessee for years be, the Remainder in Tail to J. S. and J. S. enter upon the Lessee and makes a Lease for Life, or Feoffment in Fee, this is a Discontinuance, for he was seised by force of the Tail at the time of the Feoffment, Pasch. 11 Jac. B. R. Sir Kenelm Digby and Jordan.

If Baron seised of a Copyhold in the Right of the wife surrender it to the use of another in Fee,Copyhold. who is admitted accordingly, this is not any Discontinu­ance to the wife, 4 Co. 23. Bullock and Dibley.

The husband discontinues, and the wife is attaint­ed, the King shall have the Right of the Entry, Hob. 241, 243.

Descents. Where a Descent cast during the Coverture shall toll the Entry of the Feme, and where not.

If a Feme sole be seised of Lands in Fee,Where a De­scent cast du­ring the Co­verture shall toll the Entry of the wife, and where not. and is disseised, and then taketh husband, in this Case the Baron and Feme as in Right of the Feme, have Right to enter, and yet the dying seised of the Dis­seisor in that Case shall take away the Entry of the wife after the death of the husband, because when she was sole she might have entred and recontinued the Possession; and it shall be accounted her Folly, that she would take such an husband which would not enter before the Descent: But there if the wo­man were within Age at the time of her taking husband, then the dying seised shall not after the death of the Baron take away her Entry, because no Folly can be accounted in her, she being within Age when she took husband, and after Coverture she can­not enter without her husband.

And if the Baron and Feme in droit of the wife have Right and Title to enter into Lands which another hath in Fee or Tail, and such Tenant dies seised, the Entry of the husband is taken away upon the Heir which is in by Descent: But if the husband die the wife may well enter upon the Heir, for that no Latchess of the husband shall turn to the preju­dice of the wife or her Heirs, 1 Inst. 246. a. b. and so is 9 H. 7. 24. Disseisee goes beyond Sea, or marries, where a Descent is cast during the Coverture or ab­sence, this shall bind, because it was a default to go o [...] marry when he was disseised.

Where Entry of Disseisee is congeable up­on the Wife of the Disseisor after Endow­ment notwith­standing the Descent.If a Disseisor die seised, and his Heir enter, wh [...] endows the wife of the Disseisor of a third part o [...] the Land, as to the part assigned in Dower present [...] after the wife entreth thereinto, the Disseisee m [...] lawfully enter upon the Possession of the wife into the said part, because when the wife hath her Dower she shall be adjudged in immediately by husband, and by the Heir; and as to that the Descent is defeated, and she is in by a Title paramount the Descent and dying seised, 1 Inst. 240, 241.

Remitter by Acceptance.

Trin. 15 Jac. Rot. 988. Duncomb's Case, Baron levies a Fine of the Land of his wife and dies, the wife accepts a Lease for years of the same Land, and resolved it was a Remitter, Dyer 171. in Margine.

Where the Wife being remitted during the Coverture may after the death of her Baron wave her Re­mitter, and where not.

The Law shall adjudge the wife in of her better Estate, as by the Cases foregoing may abundantly ap­pear: But if both Estates be waveable, there albeit the wife is prima facie remitted, yet after the de­cease of her husband she may elect which of the Estates she will. As if Lands are given to Baron and Feme and their Heirs; the Baron makes a Feoff­ment in Fee, the Feoffee gives the Land to the Baron and Feme, and the Heirs of their two Bodies, the Baron dies; in this Case the wife may elect which of the Estates she will, 1 Inst. 357.

So is Hobert 71. Sheerly and Wood's Case, which was this:

Dower of Sir H. B. The Tenant pleaded, that Sir H. B. was seised in Fee of the Lands, &c. and made a Feoffment thereof to the use of himself and the Demandant D. for the Term of their Lives for her Jointure, the Remainder over to B. Sir H. B. died, and the Feme entred claiming it for her Jointure. The Plaintiff replied, that the said Sir H. B. before this Feoffment did covenant to stand seised to the use of [Page 156] himself in Tail, the Remainder to his wife for [...] Term of Life, the Remainder to H. in Tail, a [...] after made the Feoffment prout, and then died s [...] Issue, and she entred, and was remitted claiming [...] Estate by Indenture. The Tenant rejoins, That [...] Feme after the death of her Baron entred claimi [...] her Estate for Life by the Feoffment, and demur [...] 1.Possession and Right must meet. Per Curiam, The Remitter to the husband co [...] not work till her husband was dead sans Issue, [...] cause till then the Possession and Right did not [...] in her.

2. Because both the Estates were made to [...] during the Coverture, regularly after the death [...] her husband she might claim which Estate she wo [...] yet in this Case she shall be in her Remitter [...] volens, Where the Feme shall be in her Remit­ter Nolens vo­lens. for the benefit of him in Remainder by [...] first Conveyance, Hob. 71. 255. Wood and S [...] and affirmed in a Writ of Error, Cro. Jac. 489.

If a Feme Covert be Tenant for Life, and [...] Baron and Feme accept of a greater Estate of [...] in the Reversion, yet after the death of her [...] she may wave it, and claim her first Estate for [...] 2 Sand. 386.

A. seised of Land in jure uxoris for her Life [...] a Feoffment in Fee to the use of his wife for [...] the wife is remitted, and is not like Amy Tow [...]se [...] Case, where the Entry of the wife was not [...] for she was Tenant in Tail, which Estate was [...] continued by the Feoffment of the Baron. [...] Sydenyam's Case was: B. seised in jure uxoris [...] Term for the Life of the wife; they both surrend [...] and took back the Lands to them and a third [...] son, it was held that the wife was not presently [...] mitted, but after the death of the Baron she m [...] disgree to the Estate, 3 Leon. 93.

Of Disagreement by the Baron.

No Disagreement of the husband shall devest the Remitter.

1. Because the Estate made to the wife which wrought the Remitter is vanished and defeated.

2. Because she is restored to her ancient and better Right.

3. Remitters tend to the Advancement of anci­ent Rights.

Where a Warranty descending on an Infant or a Feme Covert shall be a Bar, and where not.

Where the Entry of a Feme Covert or Infant is not lawful when the Warranty descendeth on her during the Coverture, the Warranty doth bind them and her; and the reason is, because the Estate where­to the Warranty is annexed continueth, and cannot be avoided but by Action in which the Warranty is a Bar.

The Father Tenant for Life, the Remainder to his Daughter and Heir apparent (a Feme Covert) in Fee; the Father makes a Feoffment to divers Uses with Warranty, and after levies a Fine with War­ranty and dies, the Daughter by consent of her hus­band enters within the year after the Fine claiming the Land as her Inheritance, the Entry by the Feme only by consent of the husband is good, and the Warranty descending upon her during the Cover­ [...]ure, where her Entry is congeable doth not bind [...]er, neither doth it bind the husband, because it [...]escends not upon him, and being void to bind [...]er shall not bind him, Cro. Eliz. p. 72. Ardes and Sympson.

Where the Warranty of the Baron be­ing Tenant by the Courtesie, shall be a Bar to the Issue of the Wife, and where not. Where the Feme shall vouch her Husband.If the husband be seised of Lands in the Right his wife, and makes a Feoffment in Fee with W [...] ranty, the husband dies, this Warranty shall [...] bind the Heir of the wife without Assets, tho [...] the husband be not Tenant by the Courtesie, 1 [...] 366.

If a Man infeoff a Woman with Warranty, th [...] intermarry and are impleaded; upon the defau [...] [...] the husband the wife is received, the shall vouch [...] husband notwithstanding the Warranty was p [...] [...] suspence; and so on the other side, If a Woma [...] i [...] feoff a Man with Warranty, and they interma [...] and are impleaded, the Baron shall vouch hi [...] and his wife by force of the said Warranty, 1 [...] 390. a.

Where Baron and Feme shall take by Intierties; [...] where by Moieties.

Baron and Feme are Jointenants, and after the [...] intermarry, they shall take by Moyeties; but of La [...] given to them after Marriage,Baron and Feme cannot take by Moie­ties during the Coverture. they take by Intie [...] for Baron and Feme cannot take by Moyeties d [...] the Coverture. I let Lands to a Feme sole for [...] Life, who marries, and afterwards I confirm [...] Estate of the Baron and Feme, Habendum for Te [...] of their Lives; the husband doth not hold ju [...] wirh his wife, but holdeth in the Right of his [...] for Term of her Life, causa qua supra: 1. Bec [...] the wife hath the whole for her Life. 2. Jointen [...] must come in by one Title. But if I let Land [...] a Feme sole for Term of years, who taketh husb [...] and after I confirm the Estate of the husband [...] wife, to have and to hold the Land for the Term their two Lives; in this Case they have a joint state of Freehold of the Land, for that the [...] had no Freehold before; so the same Law is of a [...] lease in both Cases, and the Chattle of the Fe [...] [Page 159] Covert is drowned: But if Land is let to a Feme sole for Life, who marries, and a Confirmation is made to the Baron and Feme, they are Jointenants of the Fee-simple, and the husband seised in the Right of his wife for her Life, for the Baron and Feme cannot take by Moieties during the Cover­ture.

If a Man letteth Land to the husband and wife, Habendum the one Moiety to the husband for Term of his Life, and the other Moiety to the wife for the Term of her Life, and the Lessor confirms the Estate of both in the Land; Habendum to them and their Heirs; by this Confirmation as to the Moiety of the husband, it inureth to the husband on­ly and his Heirrs, for the wife had nothing in that Moiety: But as to the Moiety of the wife they are Jointenants, for the husband hath such an Estate in his wifes Moiety in her Right as is capable of a Con­firmation, 1 Inst. 299.

There are no Moieties between Baron and Feme. If Tenants in Tail enfeoff a Woman in Fee and dies, and the Issue within Age taketh the same Wo­man to wife, this is a Remitter to the Infant with­in Age, and the wife then has nothing, for that the husband and wife are one person in Law, and therefore the Land cannot be parted by Moieties. But if an Estate be made to a Man and a Woman and their Heirs before Marriage, and after they mar­ry, the husband and wife have Moieties between them.

If Lands are given to two Men and a Woman in Fee, and afterwards one of them intermarries with [...]he Woman, and alieneth Land and dieth, in this Case the wife hath Right but to a third part; but [...]f the Man and the Woman had been married be­ [...]ore the first Feoffment, then the Woman notwith­ [...]anding the Alienation of her husband had Right to [...] Moiety of the Land.

Baron and Feme and a third Person purchase Lands jointly.Baron a Feme and third person purchase Lan [...] jointly, the Baron aliened the whole, he and his wi [...] died, the third Survivor shall have Assise of all, H [...] p. 3. for all survives to the third person; for [...] Jointenancy was not severed by the Alienation [...] the husband, for the wife and the third person [...] join in a Writ of Right, 31 H. 6. Entry C [...] geable 54.

A Joint Estate is made to Ba­ron and Feme and a third person, or to Baron and Feme and to two other persons.A Joint Estate of Land is made to Baron [...] Feme, and to a third person, in this Case the B [...] ron and Feme have in Law but a Moiety, and t [...] third person shall have the other Moiety, for th [...] are but one person in Law. The same Law is wh [...] an Estate is made to the Baron and Feme and [...] other Men, in this Case the Baron and Feme [...] but a third part, and the other two Men the o [...] two parts.

At Common Law, if Land had been given to [...] Baron and Feme and a third person, and to [...] Heirs, and the Baron had made a Feoffment in Fee this had been a Discontinuance of the one Moiety and a Disseisin of the other Moiety, so as after [...] death of the Baron the wife hath a Right of E [...] for one Moiety, and the other Jointenant a [...] Entry into the other.

A Feoffment is made before the Statute of [...]7 [...] 8. to the use of a Man and a Woman, and [...] Heirs of their two Bodies, and they intermarry, [...] after Marriage the husband sells the entire Land [...] dies sans Issue, and after the Statute of 27 H was made the wife claims the Entry by Survi [...] as Tenant in Tail after Possibility, &c. Per Curi [...] She shall have but a Moiety by reason of the J [...] tenancy before Marriage; but the Issue, if any [...] shall have a Formedon of the whole, Plowd. [...] 1. Co. 102. b. 4 Leon. 198. 10 Co. 68, 102. 2 [...] 66.

Tenant in Tail enfeoffs a Woman in Fee and dies, and his Issue within Age taketh the same Wo­man to wife, this is a Remitter to the Infant; and the wife hath nothing, for that the Baron and Feme are one person in Law, and then if the Heir be in Remitter by force of the Tail, then it follows, that the wife hath nothing because the Land cannot be parted by Moieties, and the Freehold and Inheritance of the wife is vanished clear away, Lit. Sect. 665.

Of Land recovered in value during the Coverture there shall not be Moieties,Of Land re­covered in va­lue during the Coverture no Moieties. although they had Moieties in the Land recovered against them, Plowd. 183.

If a Feoffment be made to a Man and a Woman and to their Heirs with Warranty, and they inter­marry, and after are impleaded, and vouch and re­cover in value, Moieties shall not be between them; for though they were sole when the Warranty was made, yet at the time when they rcovered and had Execution they were Baron and Feme, in which time they cannot take by Moieties.

A Man gives Land by his Will to his wife for Life and dies; his wife marries B. the Heir of the De­visor by Deed inrolled sells the said Lands to Baron and Feme, Habendum to them, their Heirs and As­signs to their own use, and then the wife had Issue,Where they taketh by In­tierties. a Son (who was by the Will to be Christened by such a Name) this by this Conveyance made by the Brother and Heir of the Devisor before the Birth of the Son hath destroyed the contingent Remainder; and the Baron and Feme took by Intierties, and the Estate for Life in the wife in the entire Tenancy was emerged, 2 Sand. 386.

Lands are given to A. B. and C. D. a Feme,Where a Re­covery binds not the Wifes Moiety. and the Heirs of the Body of A. B. A. B. and C. D. en­termarry, the Baron suffers a Common Recovery against himself only without naming his wife, the Re­covery is falsified for one Moiety, because the wife, who was Jointenant with A. B. was not named and [Page 162] party to the Recovery: This Recovery binds not th [...] Moiety of the wife, Lord Norris's Case, 1 Leon. 27 [...] 3 Co.

Copyhold Lands are surrendeed to the use of th [...] wife for Life, the Remainder to the use of the righ [...] Heirs of the husband and wife, the husband entre [...] in the Right of the wife: Per Curiam, The Re­mainder was executed for a Moiety presently in th [...] wife,Where the Heir shall only have a Moiety. and the husband of that was seised in the Righ [...] of his wife, and the wife dying first, her Heir sh [...] have it; but if the husband had died first, his H [...] should have had one Moiety, 3 Leon. p. 4.

Attornment.A Reversion is granted to a Man and a Woman, and their Heirs, and before Attornment they i [...] ­marry,Where Baron and Feme and a Stranger are Jointenants, the sole Alie­nation of the Baron shall bar the Stranger surviving, and where not. and then Attornment is made, in this Case the Baron and Feme have no Moieties. So in the Case of a Letter of Attorney to make Livery.

If a Feoffment were made before the Statute of 27 H. 8. Of Uses, to the use of a Man and a Wo­man, and their Heirs, and they intermarry, and then the Statute is made; if the husband alien it is good for a Moiety, for the Statute executes a Possession according to such quality, manner, form and condi­tion as they had in the Use; so as though it vest d [...] ­ring the Coverture, yet the Act of Parliament ex­cutes several Moieties in them, seeing they had se [...]e­ral Moieties in the Use, 1 Inst. 187 b.

If the Reversion be granted to a Man and a Woman they are to have Moieties in Law,By Attorn­ment they shall have no Moiety. but if th [...] intermarry and then Attornment is had, they sh [...] have no Moieties, because it is by Act of Law, th [...] by the purport of the Grant they were to have Moi [...] ties, 1 Inst. 310. a.

Difference be­tween joint Alienations and several.If two Femes be jointly seised, and they take hus­bands, and the husbands join in an Alienation an [...] dye, the wives are Jointenants of the Right, an [...] may join in a Writ of Right, or they may have s [...] veral Cui in vita's at Election; but when they ha [...] [Page 163] recovered in those several Writs they shall be Jointe­nants again: But if the husband had aliened seve­rally, this had been a Severance of the Jointure for a time.

If a Man make a Feoffment in Fee to the use of himself and of such wife as he should afterwards marry, for Term of their Lives,Where Baron and Feme shall be Joyinte­nants. and afterwards he taketh wife, they are Jointenants, and yet they come to their Estate at several times, 1 Inst. 188. a.

If a Feme Coverr and J. S. are Jointenants for Life of a Copyhold,What is a Se­verance of the Jointure. and J. S. surrenders his Moiety to the husband this is a severance of the Jointure, so that he is Tenant in Common with his wife, 14 Jac. Lane and Pannel.

If a Feme Covert and J. S. are Jointenants for Life,Lease an actu­al Severance. and the Baron and Feme by Indenture let the Moiety of the wife for years rendring Rent, and after the wife dies, the Survivor shall not avoid this Lease, because this was and is the Lease of the wife prima facie till she disagree to it, and only avoidable, and the Survivor is not privy to her to avoid it, for the Lease was an actual Severance during the years, 14 Jac. Rolls Rep. Smalman and Ayborough.

Baron and Feme and a third person purchase Land to them and the Heirs of the husband,Where a Re­lease shall enure to the Husband sole and not to the Wife. and the third person releaseth to the Baron all his Right, &c. with­out the word Heirs, and afterwards the Baron and Feme make a Lease of all for years rendring Rent to them and the Heirs of the Baron; the Baron dies, the Heir shall have the Moiety of the Rent after the death of the Baron, and a Release to the husband only shall enure to him sole and not to the wife, Dyer 263.

Feoffment.

Baron and Feme make a Feoffment of the wifes Jointure, which she had by a former husband, to one and his Heirs to the use of Feoffee for the Life of the wife, this is a Forfeiture, for by the Feoffment the Fee-simple passeth, and that to the use of the Feoffor; and the Estate and the Use are several things, and the Limitation for the Life of the wife cannot extend to both, 1 Leon. p. 126. Pierce and Hoe.

Baron and Feme join in a Feoffment of the wifes Land rendring Rent; the husband dies,By acceptance of the Rent the Feoffment is affirmed. the Feme takes a new husband before any Rent day, the second husband accepteth the Rent, the Feoffment is affirmed for ever.

If a Feme sole make a Feoffment on Condition to re-infeoff her at what time she will,Feme Covert may request a Re-infeoff­ment without her Husband. and after takes husband, she may require the Feoffee to re-infeoff her without her husband, and if the Feoffee refuse to do it, the Condition is broken.

Where Baron and Feme Infants join in a Feoff­ment by Indenture, the Feme after the death of her husband may have a Dum fuit infra aetatem; Dum fuit infra aetatem. secus where her self was of full Age at the time of the Feoffment, for there she shall not have a Dum fuit infra aetatem, for the Nonage of her husband, albeit they be but one person in Law, 1 Inst. 337. a.

Baron seised in Fee makes a Feoffment to the use of himself and his wife,Feoffment of the Husband destroys a Con­tingent Use. and to the Heirs of the Survivor of them, and afterwards makes a Feoff­ment of the same Land, and dies, the Feme enters, [Page 166] in this Case the Feoffment of the Husband hath de­stroyed the Contingent Use of the wife, Cro. Car. 102.

One being enfeoffed to the use of a Feme Sole, she takes an husband who sells the Land to a Stranger, the Feme received the Mony, the husband and wife pray him,Sale of Land in Equity is the Sale of the Husband a­lone, though the Wife re­ceived the Mony. that was enfeoffed to the use of the wife, to make an Estate to a Stranger, this Sale in Equity ought to be construed the Sale of the husband alone, and it shall be not esteemed that the wife did it, for the Deed of the Baron and the Receipt of the Mony by her is not material, because she cannot have the free disposal.

One being possest of a Lease of Tithes in the Right of his wife, as Executrix to her former hus­band, grants totum jus, titulum & interesse suum de & in decimis praedict'. By the Grant of totum jus suum what pas­seth. Verdict was pro Quaer', who claimed under the said Grant. It was moved in arrest of Judgment, that the Declaration was not good, for he hath not set forth any good Title to enable himself to the Tithes: But per Curiam the Grant is good, and the Lease he had in the Tithes in the Right of the wife did pass, for he granted totum jus, &c. suum, and the word suum doth import a propriety in possession, and it is all one as if had especially named them in the Grant, Cro. Car. 318. Arnold and Bidgood.

Where Infant Baron and Feme make a Convey­ance to the King by Bargain and Sale, this is not aided by the Statute of 13 Eliz. cap. 2.Stat. 13 Eliz. cap. 2. expli­cated. for that aids only where there is imperfection in the Conveyance, and not where there is Disability in the person that makes the Conveyance: But where Te­nant in Tail makes a Conveyance by Deed, that is aided by the Statute, for he may make a Convey­ance by Fine, Cro. Jac. 364.

Two husbands and their wives join in a Grant of the Lands of their wives, and covenant that they [Page 167] have Right to convey and covenant to make a farther Assurance within seven years, and one of the wives are within Age at the time of the making the Deed, and the Right of her Lands descended to her Son, an Infant, by which the Moiety of the Estate was devested out of the Plaintiff. Per Curiam. The wife being within Age at the time of the Covenant, as appears by the Verdict, had not power then to con­vey the Estate according to the Covenant, and there was no request to make the Assurance. Per Curiam. The Death of the wife in the Infancy of her Son was the Act of God, and it was the default of the Plaintiff that he did not demand Assurance in the Life of the wife, and after her full Age, Sir Thomas Jones 195. Nash and Ashton.

Bargain and Sale. Grant. Where the Wifes Grant is void when she joins with her Husband or not.

A Bargain and Sale binds not a Feme Covert but by Custom.

A Deed acknowledged by Baron and Feme shall by the Common Law be enrolled only for the hus­band and not for the wife by reason of the Cover­ture, and though it be enrolled for both,Deed enrolled binds not the Wife. it binds not; Aliter by Custom, and no one hath power to examine a Feme Covert but by Writ, 2 Inst. 673. But

A Feme Covert in London may be examined,Custom of London. and then she shall be bound by a Deed inrolled, Hob. 225.

Now if the husband is seised in the Right of his wife,The Freehold passeth during the Coverture. and bargains and sells by Deed enrolled to ano­ther, this is an Estate of Freehold; for this is as an Estate during Coverture, 2 Rolls Abr. 845.

S. and his wife being seised of the Parsonage of, &c. to them and the Heirs of S. did give the same to King Henry the Eighth and his Heirs by their Deed, the King by his Letters Patents granted it over, the wifes Grant is void, Hob. 224. 5. Anne Need­ler's Case.

Surrender.

Baron and Feme Jointenants for Life, the Baron may well surrender to him in Reversion, and this shall bind the husband though not the wife, not shall be any Discontinuance to her, yet this is not a good Surrender during the Life of the Baron, Kelw. 42.

What is a Sur­render or not.If Lessee for Life enfeoff Baron and Feme in Re­version in Right of the wife, this is a Surrender (ad­mitting it not a Forfeiture) but if Lessee for Life grant his Estate to Baron and Feme in Reversion in Right of the wife, this is not any Surrender for the benefit of the Baron, 21 H. 7. 40.

M. and J. his wife take a Lease jointly for their two Lives, and now by new Indenture take a new Lease to them two and the Survivor, the acceptance of the second Lease to commence a die datus is a Sur­render, because they conclude then that the Lessor had power to make a new Lease, which he cannot do unless the former be surrendred, More 636. Mel­low and May's Case.

If Feme Lessee for years take husband, who after accepts a new Lease for their Lives, this is a Sur­render of the first Lease, Plowd. 199. Wroth and Adams.

Baron and Feme they cannot expresly nor by Ac­ceptance of a new Lease surrender the wifes Free­hold so as to bind her surviving, Hobert p. 203, 204.

Baron and Feme are seised in the Right of the wife for Life of the wife, and the King grants this to the wife for Life of the wife with Remainders over by new Letters Patents in consideration of the Surrender of the first Estate, this is a void Grant, for that this Surrender is not absolute inasmuch as the wife after the death of the Baron may claim her first Estate, Hob. Swain and Holman.

Release. Vide Fine.

Baron and Feme are Lessees pur auter vie, the Lessor may enlarge their Estate by Release for their own Lives, 2 Rolls Abr. 401.

Covenant was that a Stranger should pay 8 l. yearly to one of the Covenantees, and to one F. S. a Stranger; F. S. took husband one B. who did release the Payment; the Question was, whether by this Release the Defendant shall be discharged of payment: B. is a Stranger to whose wife the pay­ment is to be made. Now he cannot release this he having no Right at all therein; the Release is made by a Stranger who had nothing in the thing, nor yet any Remedy to come by it: And Judgment was for the Plaintiff, 3 Bulstr. 27. Quick and Har­ris versus Ludborough.

Release by the husband pleaded to an Action brought by the wife after his decease for Mony to be allowed her after his death not good, Brownl. 15. Belcher and Hudson, p. 18. Smith and Stafford.

Exchange.

If Baron and Feme exchange with another this is good during the Coverture, 39 E. 3. 30.

If the husband exchange the Land of the wife for Lands of less value, if the wife after his death once [Page 170] agree to the exchange she shall never avoid it after­wards, 9 H. 6. 52.

The husband and wife were seised of Lands i [...] Right of the wife, they both joined in Exchange of the Lands to a Stranger for other Lands, which Ex­change was executed; the husband and wife seise [...] of the Land taken in Exchange aliened the same by Fine. Per Curiam, The wife after the death of the husband may enter into her own Land notwithstan­ding the Fine, 1 Leon. p. 285.

By the woman's acceptance of Dower out of Lands exchanged she agrees to the Exchange, 3 Leon. 27.

Of a Feme Covert's being a Purchaser, and how [...] shall be good.

A Feme Covert cannot take any thing of the gift of the husband, but is of a capacity to purchase of others without the consent of her husband, but her husband may disagree thereto and devest the whole Estate; but if he neither agree nor disagree, the Purchase is good; but after his death although her husband agreed thereto, yet she may without cause alledged wave the same; so may her Heirs also if after the death of the husband she agreed not thereto, 1 Inst. 3. a.

How a Man may execute an Estate to his Wife.

By no Conveyance at the Common Law a Man could during the Coverture either in Possession, Reversion or Remainder limit an Estate to his wife: But a Man by his Deed may covenant with others to stand seised to the use of his wife, or make a Feoff­ment or other Conveyances to the use of his wife and now the Estate is executed to such uses by the Statute of 27 H. 8. But a Man cannot covenant [Page 171] with his wife to stand seised to her use, because he cannot covenant with her for that they are one per­son in Law: And yet if Cestuy que use had devised his wife should sell his Land and made her Execu­trix and died, and she took another husband, she might sell the Land to her husband, for she did it en auter droit, and the husband shall be in by the Devisor. So if a Charter of Feoffment be made to the wife, the husband as Attorney to the Feoffor may make Livery to the wife, 1 Inst. 112.

Of Christian Names of Women in Grants, whether one or several.

Johan makes a Lease by the Name of Jane, Quaere.

A Grant to T. and Ellen his wife, where her Name is Emmelin, yet it is good, because it is the wife of T. 2 H. 4. 25. For wife Uxor is a good Name of purchase, as uxori J. S. So if a Christian Name be added and mistaken, as Em' pro Emmelin; for utile per inutile non vitiatur, 1 Inst. 3. a.

Agnes and Anne are several Names of Baptism and not one Name, Cro. Jac. 425.

Jane and Joan are but one Name, and not di­stinct several Names, Mich. 15 Jac. B. R. Griffith and Midleton.

Isable and Sybil are distinct Names of Baptism, 1 Ass. 11.

Lease for years made by Baron and Feme, Vide Tit. Rent.
By the Husband of the Wifes Land, and how and wherein it shall bind the Wife or not.
By the Baron sole.

Voidable not void.THE Husband makes a Lease of the wifes Lan [...] and dies, the Lease is not determined nor voi [...] [Page 173] after the death of the husband, but voidable only by the Entry of the wife after his death, Cro. Jac. 332. Jordan and Wikes. But

If Baron seised in Fee in the Right of his wife had Issue by her, and so is Tenant by the Courtesie, and after makes, a Lease for years reserving Rent, and after the wife dies, and after the husband dies before the end of the years, yet this is void and ended in the Law before any Entry of the next Heir of the wife, forasmuch as he cannot make this good by any acceptance of the Rent, the Lease be­ing made only by the husband, 1 Rolls Abr. 380, 381. Cro. Car. 399. Miller and Manwaring.

But the husband makes a Lease of the wifes Land and dies, this Lease is not determined nor void after the death of the husband, but voidable only by the Entry of the wife after his death, Cro. Jac. 332. Jordan and Wikes.

If Baron and Feme lease for years by Indenture rendring Rent,Where a Lease enures by way of Interest, and not by Estoppel. where the husband had all the Estate in the Land, and the wife nothing, after the death of the Baron the Lessee in an Action of Debt for the Rent brought by the wife shall not be estopped to say that at the time of the Lease made the wife had nothing in the Land, for this doth not enure by way of Estoppel, forasmuch as it enures by way of Interest, 1 Rolls Abr. 877. Brierton and Evans, Cro. Eliz. 701. mesme Case.

By Baron and Feme.

What shall be a good Lease warranted by the Sta­tute of 32 H. 8. cap. 28. Or,

What Lease for years made by Baron and Feme shall bind the wife and her Heirs or not, Vid. 1 Inst. 44, 45.

By the Statute of 32 H. 8. any husband and wife seised of any Estate of Inheritance in Fee-simple or [Page 174] Fee-tail in the Right of the wife, or jointly wi [...] his wife before the Coverture or after, this-shall b [...] the wife and her and their Heirs; but such Lease must have these Qualifications.

1. They must be by Deed indented.

2. They must begin from the day of the making thereof, or from the making thereof.

3. There must not be a double Lease in being [...] one time.

4. It must not exceed one and twenty years o [...] three Lives from the making.

5. It must be of Lands, Tenements or Heredita­ments manurable.

6. It must be of Lands or Tenements which have most commonly been letten to Farm or occupied by the Farmers thereof, by the space of twenty years next before the new Lease made.

7. There must be reserved the yearly accustomed Rent, which must be reserved to the Baron and Feme and to the Heirs of the Feme.

8. They must not be made without Impeachment of Waste.

If they are made with these Qualifications they shall bind the wife and her Heirs, but if they are not warranted by this Statute, yet they shall be good against the husband.

The wife must join in the Lease and be made party to it, and seal and deliver the same in per­son; and if it be for Life or Lives there must be Livery and Seisin, Cro. Jac. 563. Greenwood and Tyler.

The husband purchased Lands to him and his wife and their Heirs, he afterwards, his wife not be­ing party, let these Lands to L. and T. for 60 years if they lived so long, rendring Rent, this Lease shal bind the wife by the Statute of 32 H. 8. cap. 28 [Page 175] for it is not within the Proviso, for that it is not the sole Inheritance of the wife, Cro. Car. 22. Smith and Trinder.

If a Man possest of a Mannor for 99 years makes his Will and deviseth it to A. his wife,Construction of the words of a Will im­powring to make a Lease. for her Life to set, let or make Estates out of it, and them in as ample manner as I my self might, if I were living during the said Term; and after the death of A. deviseth it to B. his Daughter, and to the Heirs of her Body begotten and dies, A. being Executrix consents to the Legacy, and after makes a Lease of a Tenement, parcel of the Mannor, to C. for 99 years, if threee Lives shall so long live, and dies, this is a good Lease against B. the Daughter, al­though it was objected, that by this Clause she had only power to dispose of it during her Life, 2 Rolls Abr. 261.

Baron and Feme seised of Lands in the Right of the wife levied a Fine to the use of themselves for their Lives, and afterwards to the use of the Heirs of the wife,Proviso to make Leases. Proviso that it shall and may be lawful to and for the Baron and Feme at any time during their Lives to make Leases for one and twenty years or three Lives; the wife being Covert made a Lease for one and twenty years, and adjudged a good Lease against the husband, though it was made when she was a Feme Covert, and by her alone, and this by reason of the Proviso, Godb. 327. pl. 419. Quaere.

Tenant for Life takes husband,Forfeiture or not. and by Deed indent­ed they make a Lease to him in Reversion for the Life of the husband, reserving Rent, this is no For­feiture; for he in the Reversion was party, and a Surrender it is not, for their whole Estate was not given, and the Reservation is good, 1 Inst. 42.Baron makes a Lease, then Ba­ron and Feme levy a Fine the Conisee shall avoid the Lease. a.

Baron and Feme seised of Land in the Right of the wife, the husband alone makes a Lease for years, afterward Baron and Feme levy a Fine, and they [...]fterwards both die, the Conisee shall avoid the Lease, [...] Leon. 247. Harvey and Thomas.

A Lease is made by Baron and Feme in jure ux [...] ris, and he dies, and she accepts the Rent, it is good against her, Cro. Jac. 563. 2 Anders. 42. For by her own Act she hath affirmed that the Estate con­tinues.

Second Hus­band accepts the Rent it binds the Wife.Baron and Feme make a Lease by Indenture for Term of years, rendring Rent, the Lessee enters, the husband before the day of payment of the Rent dies, and the wife also before the day of payment takes a second husband, who accepts the Rent at the d [...] and dies, the wife may not oust the Termor. She might have avoided the Term before the day at her pleasure; but that Liberty she had assigned to her se­cond husband, Dyer 159.

Vide plus sub Titulo, What shall be a Disposition of the Wife's Term or not.

It was held Pasch. 18 Eliz. in C. B. Que si Ba­ron & Feme sont & font Lease de terres del Feme per fait Indent' pro 21 ans de le date de fait re­servant rent &c. Le Baron & Feme ou l'un de [...] adonque esteant deins age de 21 ans, ceo lease [...] garrant estre bon per Stat. 32 H. 8. Et uncore f [...] tenus que si Jointure soit fait al Feme deins [...]ge avant que el soit Espouse & puis est marry, & s [...] Baron morust que el ne poit wave ceo Joynture & de­mand estre endowed de tierce part de touts les terres de que son Baron morust seise. Mes serra lie per per ceo Jointure fait avant les Espousals per reas [...] de Stat. 27 H. 8. cap. 10. come al temps de feas [...] de Jointure el ad estre de plein age. Ex Ma [...] script. Mri. Brownloe.Wife conceals her Marriage and makes Leases as a Widow, the Husband de­creed in Chan­cery to con­firm the Lease.

If a Feme sole being a Widow be seised of Lan [...] and secretly takes husband, and conceals her Marriage▪ and so continuing under the notion of a Widow▪ makes Leases of divers parcels of Land, and afterwards the time of her Marriage is published, th [...] [Page 177] husband in Equity sought to avoid the Leases, but was denied Relief, and decreed in Chancery to confirm the Leases during the Term.

Lease for years by Baron and Feme without Deed, is void, as to the Feme, Cr. El. 656.

Baron and Feme,Baron and Feme Jointe­nants with an­other; she and her husband make a Lease, and the wife dies, the Lease is good against the Survivor. (in the right of the Feme) and a third person were Jointenants for the Lives of the wife, and of the third person, the Baron and Feme by Indenture let the Moiety for 21 years, the Feme dies, the surviving Joyntenant enters: Lessee brings Trespass, and recovered; for the Lease is good, and is as a Lease made by her, until she after Coverture, or one who claims in privity by her, avoids it by Entry: for it is not void by the Death of the Baron, but void­able, and the Avoidance ought to be by Entry, and this cannot be by the Jointenant's Survivor, for he is paramount the wife, and so the Lease shall bind as long as any Jointenant be alive, Cr. Jac. 417. Smalman & Ayborows, 1 Rol. rep. 441. Mesme case.

If a Man demise Lands to B. his wife for life, the Remainder to C. in Fee,Power to make Leases. and by a Codicil he devi­seth that B. shall have a power six months before his death to Lease this for six years. B. takes a second husband, she and her second husband may Lease this by Deed or without Deed for six years; and if they lease this Habend' a die datus, it is good, 1 Roll's Abr. 329.

Lease by Indenture signed and sealed by Baron and Feme, (of the wife's Land) and a Letter of Attor­ney by Baron and Feme to deliver it on the Land in both their names,Lease of Eject­ment by Baron and Feme. and the Declaration was of a Lease by the Baron only, and not in the name of the wife in Ejectment; the Declaration is good; for the delivery by the Attorney is a void Delivery, and void Warrant as to the wife, and so it is the Lease of the Baron only: but if the Lease had been delivered upon the Land by Baron and Feme, it had been a good Lease for both. But now it is the Lease of the Baron only, and not [Page 162] voidable, but void against the wife, Cr. Jac. 61 [...] ▪ Gardner and Norman; and so in Wilson and Rich [...] case, Yelv. 1. in such case the Declaration was b [...] Baron and Feme, and adjudged the Lease is th [...] Lease of the Baron sole, and doth not maintain the Declaration. But in Cr. Car. 165. Hopkans's case contra, where the Lease was sealed and subscribed by them both, and a Letter of Attorney made by them to deliver it upon the Land. Et per totam Curia [...]. It is a good Letter of Attorney for both, and the Lease well delivered, and it is the Lease of them both during the husband's life.

Leases for years made to Baron and Feme.

There is a diversity between a Lease for life and a Lease for years made to a Feme Covert.Diversity be­tween a Lease for life, and a Lease for years. If I let Land to a Feme sole for years, who taketh husband, and af­ter I confirm the Estate to Baron and Feme, To have and to hold to them for the term of their two Lives, this Confirmation makes them Jointenants for their Lives, because the Chattel of a Feme Covert may be drowned, and the husband hath such a Possession in her Right of a Chattel as is capable of a Confirmation or a Release; but a Feme's Estate of a Freehold can­not be altered by the Confirmation made to the hus­band and her, as a term for years may, whereof the husband may make Disposition at his pleasure, 1 Inst. 300.

Where the Ba­ron shall be As­signee to the Wife.Feme Lessee for years upon condition, that she, he [...] Executors or Assigns, shall not alien without the con­sent of the Lessor, she taketh Baron and dies; [...] husband is within the danger of the Condition, [...] he is Assignee; in Moor and Ferrand's case, 1 L [...] pag. 3.

An Estate made to a Feme Covert, de novo, vests till the husband's dissent, but to a new Lease made to a Feme, who was Lessee before, vests not till his as­sent, Hob. 204.

Lease for life made to Baron and Feme.

I let Land to a Feme sole for term of her life, who taketh an husband, and after I confirm the Estate of the Baron and Feme, Habendum for term of their Lives.Confirmation. In this case the Baron does not hold jointly with his wife, but holdeth in right of his wife for term of her life; but this Confirmation shall enure to the husband by way of Remainder for the term of his life if he survive the wife; he cannot hold jointly with the wife, because the wife hath the whole for her life, and Jointenants must come in by one Title, 1 Inst. 299.

Land is demised to Baron and Feme for their Lives,Land demised to Baron and Feme for their Lives, Remain­der to the Sur­vivor in years. the Remainder to the Survivor of them for years; the husband granted over this term for years and died, the wife shall have it, and not the Grantee, because there was nothing in the one or the other to grant over but the Survivor; so if the wife had died after the Grant, and the Baron survived, yet he shall have the term against his own Grant, Poph. 4, 5. So if a Lease be made to Baron and Feme for their Lives, the Remainder to the Executors of the Survivor of them; and the husband grant the term and dies, this shall not bar the wife, because the wife had but a Pos­sibility and no Interest, Co. Lit. 46. b.

But if a Lease is made to Baron and Feme for their Lives, the Remainder to the Heirs of the Survivor,Remainder to the Heirs of the Survivor. it's a good Remainder notwithstanding the uncertainty; and in that case the husband after the death of the wife, shall have Judgment to recover the Land, God­bolt 139.

Lease to Baron and Feme, and his Son for life, the Son dies; he in pleading shall not say as amongst o­ther Jointenants, fuer' seisit' in dominico suo ut de li­bero Tenemento per termino vitiae ipsorum patris a [...] filii per jus accrescendi, but omitting per jus accres­cendi. Ex Manuscript Mr. Brownloe.

Leases for Life made by Baron and Feme. Ut supra.

Lease by Baron and Feme of the Lands of the wife Habendum from Michaelmas for life,Livery, Diversity. and Li­very is made after Michaelmas, Secundum formam Chartae, it is good enough; and the difference is where the Livery is made by the Lessor in person, and where by Letter of Attorney in the same Charter generally made: But if the Letter of Attorney be to make Livery after Michaelmas, it is good enough in both cases; for there is not any Intention that the Livery should operate in futuro, but that Livery should be made when it should operate, and the E­state should be good presently; and it differs from 2 Rep. 55. Buckler and Harvey, where a Reversion was granted Habendum after Michaelmas for life, although the Attornment be after Michaelmas, yet it being the Act of a Stranger shall not make that good which otherwise would be void: But here when the Lessor makes Livery himself after Michaelmas, it is well enough, Cr. Jac. 563. Greenwood and Tyler. Lease made by Baron and Feme, in right of his wife, to J. S. Habendum from Michaelmas following for term of life, after Michaelmas Baron and Feme make Livery, secundum formam Chartae, it shall be good a­gainst the wife to bind her; for the Livery alone did not make the Lease, but the Livery and Deed, and it took its operation by both. And although if Livery had been made before Michaelmas, it had been void to make it a good Lease; yet it being made after [Page 181] Michaelmas, it is made a good Lease by the Deed and Livery, and not by either of them solely, for the Livery in this case is but the Execution of the Deed, and is a sufficient witness of their Agreement, which is the cause it ought to be by Deed to prove the A­greement of the wife; and all Reservations, Cove­nants and Warranties in the Deed, are good, and the Lessor and Lessee bound by them.

How and in what Cases a Feme Covert may make a Will, and it shall be good or not.

A Feme Covert may make a Testament, if her Husband agree to it after her death, Mich. 8 Jac. B. Grant's Case.

A Feme Covert may not devise things in Action which she hath, without the Assent or Agreement of the husband, and by his assent she may make Exe­cutors, or him to be Executor, 4 H. 6. 3. 39 H 6. 27.

A Feme Covert Executrix may not devise any Goods she hath as Executrix, without the assent of her husband or his Agreement afterwards, although she may make an Executor without his assent Grant's Case, supra.

Regularly a Feme Covert cannot make her Will,Regula. and therefore a Feme Covert made a Will, and devi­seth 30 l. per annum out of some of her own Land to a charitable use; the Heir submits himself to an A­ward, and is bound to perform it; the Arbitrators award payment of it, yet by Decree of Chancery the Heir is discharged of the Payment, and the Devise was void ab initio: The like case of an Infant.

If a Feme sole make a Feoffment to her own use, and after takes husband, and after makes a Will that the Feoffees shall make an Estate to her husband and dies; this Devise shall not be good in Chancery, because that all Acts by a Feme Covert are void, and there Aequitas sequitur Legem.

But though a wife cannot make a Will without her husband's Assent,Declaration in the nature of a Will. yet she may make a Writing or Declaration in the nature of her Will, and it shall be good in many cases, as was Tilley and Peirce's Case, Cro. Car. 376. Debt upon Bond conditioned, Whereas the Defendent was to espouse A. S. a Wi­dow, if the Marriage took effect, and he should sur­vive the said A. S. there were paid to the Obligees 300 l. to and for such Uses and Purposes as she said A. S. by any Writing under her Hand and Seal, sub­scribed and published in the presence of two witnesses, should nominate, declare and appoint then, &c. The Defendent pleads, she did not limit, declare or appoint any Use or Purpose for the imployment of that Money. Plaintiff replies, that she by her Will in writing, sealed and published by her in the presence of two Witnesses, (naming their names) did will and appoint such Sums to be paid, and that the De­fedant had not paid them, and on Arrest, Judgment, pro Quer.

The Condition of a Bond was; Whereas he had taken A. S. a widow, to wife,Condition of a Bond to per­mit a Wife to make a Will. being possessed of di­vers Goods. If he should permit his said wife to make a Will, and dispose in Legacies as much as she [Page 184] would, not exceeding 50 l. and pay and perform what she appointed, so that it exceed not 50 l. that then, &c. The Defendant pleads she made not any Will, and upon issue it was found that she made a Will, and did dispose of divers Legacies, not exceed 50 l. but that she was Covert at the time of making the Will; and Judgment pro Quer. for it is a Will within the Intent of the Condition, and it is but her Appointment which the husband is bound to per­form, Cro. Car. 219. Marriot and Kinsman.

The like Case is Cro. Car. 597. Sherman and Lil­ley. The Condition was to permit his wife to make a Will of her first husband's Goods, to the value of 100 l. to be paid within one year after her decease, That then, &c. Defendant pleads, that he permitted his wife to make a Will, but does not plead that he paid it accordingly, and so the Plea was held to be ill.

It is held in 3 Keb. 624. Articles were made be­fore Marriage, That the wife shall make a Will, and the husband to pay the Legacies devised. Per Cur' Her Will is void, and the husband bound only by the Articles to permit it, vid. Mod. Rep. 211.

In Harris and Hessie's Case, 1 Keb. 347. Autho­rity was given by the wife to devise 300 l. and she disposeth 200 l. by Fifties, and well, per Cur'.

If a Feme Covert make a Will, and devise Goods to another, and the husband after her death deliver the Goods to the Devisee acccordingly, this shall bind him, 26 E. 3. 71.

Of Devises to the Wife by the Baron or others, and the Construction of such Devises.

A Man may devise Lands to the wife, though they be but one person in Law, because the Devise doth not take effect till after his death;Feme cannot devise her Lands to her Husband. but though a last Will doth not take effect till after death, yet if a Feme Covert be seised of Lands in fee, she cannot de­vise [Page 185] the same to her husband, because at the time of the making her Will she had no power, being sub potestate viri; and the Law shall intend it to be done by the Cohersion of her husband, 1 Inst. 112. b.

If a Man devise Lands, whereof he is seised in Fee to his Son and Heir after the death of A. the wife of the Devisor,Devise by Im­plication. this shall raise an Estate for life to A. by Implication, because by this the Divisor shews his Intention that this his Heir shall not have this during the life of his wife; whereas had it not been for the Devise, he ought to have had it presently upon his death, 13 H. 7. 17. b.

But upon a Lease for years on condition, that he should not alien to any besides his Children, the Les­see deviseth part of the Estate to H. his Son, after the death of the wife, and made his Executors. Per Cur'. This Devise to the Son after the death of the wife, is not any Devise to the wife in the mean time, for its plain he did not intend it to his wife, but to his Executors in the mean time, and so no breach or forfeiture. (But in the other Case none other could have it besides the wife, Cro. Jac. 74. Horton and Horton's Case.) And if a Man devise a Term to the Son after the death of the wife of the Devisor, this shall not raise any Estate to the wife, because it does not appear that his intent was so, because the Son was not to have this by the Law after the death of the De­visor w [...]ut a Devise, but the Executor.

If a Man devise a Term to his wife, if she so long live unmarried, and if she marry, then the wife shall have a Rent out of the Land,Consent to a Legacy of a Term. and make his wife Executrix and die, and the wife consent to the Le­gacy of the Term, and enters upon it, and after takes husband, this Consent to the Legacy of the Term is also a Consent to the Rent when the Contingent happens, Mich. 13 Jac. B. R. East and Hayward.

Feme Covert cannot assent to a Legacy.It is setled, that a Feme Covert cannot assent to a Legacy; for if she should have power to assent or dis­assent to a Legacy, then if a Term be devised to a Feme for life, (who is also Executrix) Remainder to J. S. if the Feme takes J. S. to husband, yet it should be in her power to affirm or destroy this Devise, which would be mischievous, Syd. 188. Cook and Bellamy.

One devised a Term to his wife for life, and after to his Children not provided for; and the Term was afterward sold upon Execution for the Debt of the wife, and after the wife died during the Term; it was judged that notwithstanding this Alienation, the Chil­dren of the Devisor should have the Residue of the Term, Woodcock's Case.

Where the wife shall have the Goods, and not the Execu­tors of the husband.The Residue of my Goods I give to F. my wife, whom I make Executrix of this my Will, to dispose for the Health of my Soul, and to pay my Debts; and dies: She pays the Debts, and takes a second husband, who makes his Executor, and dies possess'd of the Residue of the Goods; the wife shall have them, and not the Executor of the husband if he did not makes Gift of them in his Life-time, Dyer 321. 1 Anders. 23. More 98. Plo. 544, 343, 545.

J. S. deviseth to his wife 100 l. to be paid at such a day, and if it is not paid then, that his Executors sh [...] pay her 200 l. at such a day after to come: The w [...]e dies before the first day, the Executors are [...]arged, Hill. 2 Car. Rot. 858. Dier 262. in margine.

Of the Husband's devising the Estate of the Wife.

If a Lease be made to Baron and Feme for years, th [...] Baron cannot devise the Term, because the wife is in by Survivorship before the Devise takes effect.

What shall be good to the Wife or not.

A. Possess'd of a Term for 100 years by Deed in­dented, mentioned to be made between him and B. his wife of the one part; but she never sealed the Deed. A. and B. assigns the Term to C. yielding and paying during the Term to A. and B. and the Survivor of them, and to the Assign of the Survivor of them, 10 l. Rent per annum, upon condition that if the Rent be not paid, it shall be lawful to him and his wife, and the Survivor of them, and the Assigns of the Survivor of them, to re-enter, and after A. dies; neither his Administrator, nor B. the wife, shall have the Rent,Rent not to be reserved to a Stranger. nor enter for the Condition bro­ken: for the wife shall not have the Rent, because she sealed not the Deed, and so the Rent cannot be re­served to her, being a Stranger; and so it's void as to her, and the Administrator of A. shall not have this [Page 188] as Assignee of A. during the life of B. in as much a [...] this was not intended as a Limitation to determine by the death of B. but to be reserved to B. herself, and so the Assignee in Law of the husband cannot claim it, because he did not survive the wife, and the wo [...]d Solvendo cannot enure by way of Grant to the wife,Solvendo. when it is by way of Reservation to the husband. And the Condition in this Case runs with the Rent;Lessee assigns his Term ren­dring Rent to him and his wife, (she seals not the Deed) and dies; the wife shall not have the Rent. and therefore the Rent being gone, the Condition is gone also; and although the Rent be reserved during the Term, yet the other words (to A. and B.) re­strain it, 2 Rolls abr. 450. Cro. Car' 289. Bl [...]d and Inman, Godbolt 448. And so is 2 Sanders 386. where the husband possess'd of a Term by Indenture, to which the wife was party, (but she did not seal [...] it) assigns all his Term to the Assignee, rendring Rent to the said Baron and Feme, and the Survivor of them, and dies; neither the wife nor the Admini­strator may have the Rent.

Debt for Arrears.Rent was granted to Baron and Feme for their Lives, the Rent was Arrear, the husband dies, ano­ther Rent is Arrear, the Feme dies intestate, and her Administrator brought Debt for the Arrears du [...] in the life of the husband and after. Per Curiam, It will lie because the Arrears survived to the wife, as well as the Rent it self, Cro. El. 791. Temple's Case.

Baron grants a Rent out of the Wife's Land.If the husband hath a Term in the Right of his wife, and the husband grants a Rent out of it, and dies, the wife shall hold it discharged, for she comes in paramount the charge, 7 H. 6.1. b. 9 H. 6. 5. She shall not have the Rent, because she comes in para­mount the Reservasion; but the Executor of the hus­band shall have it. Contra Perkins, Sect. 834. 1 Inst. 46. b.

A Man possess'd of a Term for 20 years in the Right of his wife made a Lease for years, rendring Rent to him, his Executors and Assigns, and died, the Rent is gone; but by Mountague, the wife in [Page 189] Chancery may be relieved, for the Rent, Godb. 279.

A Feme sole is seised of a Rent in Fee,Remedy for Arrears. &c. which is behind and unpaid; she taketh husband, the Rent is behind again, the wife dies, the husband by the Common Law should not have the Arrears grown due before the Marriage; but the Statute of 32 H. 8. c. 37. gives the husband the Arrears due before the Marriage, and a double Remedy for the same by Action or Distress, 1 Inst. 162.

Tenant in Dower makes a Lease for years, ren­dring Rent, and takes husband; the Rent was in Arrear, the husband dies, his Executors shall have the Rent.

When a Feme Covert receives from the Lessees the Rents, the Lessees not having notice of the Coverture,Payment of Rent to the wife not good. there being no Countermand of Payment to the wife. Per Curiam, This Payment of Rent to the wife is no payment, but the husband may well demand it and recover it again: The payment to the wife is not material, for by such pretences Femes Coverts should receive their husbands Rents without their Authori­ties, which is not allowable, (but this seems to be durus sermo; and it is an hard case that the Tenants should refuse to pay the Lessor, and so forfeit their Bonds of Covenants, and it is a kind of Impossibility for them to divine whether she be married,) Cro. Jac. 621. Sir Paul Tracy versus John Dutton.

Where the Husband shall be charged with the Arrears.

The Husband or his Executors, 10 H. 6, 7. 4 Co. 49. and Underwood's Case, B. R. 1641. shall be chargeable in Debt for the Arrearages in the time of the Coverture on Lease made to a woman, dum sola fuit, 1 Keb. 22.

Of Avowry for Rent. Vide Avowry.

Where the husband shall be charged in Debt for Rent.Land is demised to a Widow, she marries, the Re [...] incurs during the Coverture, the wife dies, the h [...]s­band shall be charged in Debt for the Rent, R [...] mond 6. Pain and Monshall.

If a Feme, having a Rent for life, takes husb [...] and dies,Arrears. the husband shall have the Arrearages [...] ­curred during the Coverture; but he shall not ha [...] the Arrears during the Coverture by the Comm [...] Law, yet this seems to be aided now by the St [...] of 32 H. 8.

A Man possess'd of a Term for 20 years in right [...] his wife, makes a Lease for 10 years, rendring Re [...] to him, his Executors and Assigns, and died: T [...] wife shall not have it,Where the wife shall not have the Rent. for she comes in by Title p [...] mount; and it is but an Extract of 10 out of [...], the Remainder continuing as before, and the Exec [...] tors shall have it, for the Rent shall be incident [...] him who hath the Reversion under the Lessor, w [...] is the Executor, Poph. 145. Blaxton and Heath.

Emblements. Where the Wife shall have the Emblements, and where the Husband.

If Tenant in Dower sow her Land, and die befo [...] the Corn is ripe, the Corn in Conscience belongeth [...] her Executors, and not to him in Reversion; but otherwise, it is in Conscience of Grass or Fruits, [...] the Diversity in Law maketh the Diversity in Co [...] science.

The Tenant in Dower may devise [...]he Corn so [...] ed upon the Land, she is endowed of: If the Husb [...] sow the Land, the Property of the Corn is in the Ex [...] cutor, but subject to this Condition; If the Heir [...] sign [Page 175] to her the Land sowed for her Dower, she shall have the Corn, for she shall be in de optima possessione viri, above the Title of the Executor, 2 Inst. 81.

If a Lease be made to Baron and Feme during the Coverture, and the Baron sows the Land, and after they are divorced causa praecontractus, the Baron shall have the Corn, because the Judgment is an Act of Law, 5 Cok. 116. Oland's Case; and so it is if the Divorce be at the Suit of the husband, though Popham seemed to doubt of it.

If an husband seised in Fee or for Life in the right of his wife, sows the Land and dies,Baronsows the Land, and then there is a Di­vorce. or his wife dies before Severance, yet he or his Executors shall have the Corn, 1 Inst. 55. b.

If Baron and Feme, Jointenants for life,Where the Wife shall not have them. and the husband sows the Land, and dies before Severance, his Executors shall have the Emblements, and not the wife; for there is no Diversity in this case, and where [...]he husband is seised in the right of the wife, Mich. 5 Jac. Skehe and Arnoll, B. C. but 1 Inst. 55. b. [...] contra: for there it is said she shall have the Corn, and so it's said in Cro. El. p. 61. by Wray, that it was so adjudged: Quaere Dyer 3. 6. 1 Roll's Abr. 727. Noy 149. per Cro. Car. 515. she shall not have it.

But by Coke in Goodman and Gore's Case, Godb. 189. Sil. 270. Baron and Feme are Jointenants, the Baron sows the Land, the wife surviving, shall have the Emblements.

If a Feme seised in Fee, or for Life, of Land,Where she shall have them. sows this, and after takes husband, who dies before Seve­rance, it seems the wife shall have them, and not the Executor or Administrator of the husband, because the husband did not sow them.

If Baron seised of a Copyhold Land in Fee sows it,Copyhold. and after surrenders it to the use of a Feme, who is accordingly admitted, and after the Baron dies before Severance, the Feme shall have the Emblements, and [...]ot the Executor or Administrator of the Baron; [Page 192] because the husband pass'd the Emblements with the Land, to the Feme as an Executor to the Land, and by it the Privilege which the Law gives to him that sows, is taken away by the Surrender, and so is [...] one as if the Feme had sowed it, or purchased the Land sowed of a Stranger.

If the Baron sows the Land, and dies before Seve­rance, and his wife is endowed of this Land so sow [...] of a third part, she shall have the Emblements, and not the Heir or Executor; for she is to have the Land fuerit culta vel inculta cum frugibus & redditib [...], Bract. 2. 96.

In Action of Trower the Question was. Feme tenant for Life takes the Plaintiff to husband, the Re­mainder to another for Life,Hops. and Hops were grow­ing out of the ancient Roots, being within the Land in question, the Feme dies a little before the gather­ing of the Hops; whether these Hops appertain [...] the Husband, or to him in Remainder? The Co [...] held, they are like Emblements, which shall go to the husband or Executor of the Tenant for life, and [...]ot to him in Remainder; for they are such things [...] grow by Manurance, and Industry of the Owner, [...] not to be compared to Apples and Nuts, which grow of themselves, Cro. Car. 515. Latham and A­wood.

A Feme Copyholder, durante viduitate, sows the Land, and before Severance takes husband; the Lord shall have it, Cro. El. 466. alias 471.

For what things created during the Coverture, the Wife shall be charged after the death of the Hus­band, by her Agreement or Disagreement.

Rent.If Baron and Feme accept a Fine, rendring Re [...] if she agree to the Estate after the death of the husband, she shall be charged with the Rent, 50 E [...] 3. 9. b.

If a Lease for years be made to Baron and Feme, rendring Rent, if after the death of the husband the wife agree to the Lease, Debt lies against her for all the Arrears incurred in the Life of the husband, 2 H. 4. 19. 6. but after the death of the husband she may disagree to the Lease.

If Baron and Feme join in a Feoffment of the wife's Land, rendring Rent, the Baron dies,By Acceptance of Rent a Fe­offment affir­med. the Feme takes a new husband before any Rent; the se­cond husband accepts the Rent, the Feoffment is af­firmed for ever.

If Baron and Feme Lease by Deed, and after the husband dies, and she takes a second husband, who accepts the Rent, this shall affirm the Lease against the wife perpetually, Dyer 159.

If Baron and Feme join in a Lease for Life of the Land of the wife or years, rendring Rent, the wife may make this good by Agreement after the death of the Baron, 10 H. 6. 24. b. and shall have the Rent, 3 Leon. 271. Butler and Baker's Case.

If Obligation be made to Baron and Feme,Obligation. the wife may refuse it after the death of the husband, 4 H. 6. 6. and by such waver, this is made an Obli­gation to the Baron sole.

So it is in Exchanges and Partition, where Posses­sion of one is waved and refused.

What Acts of the Husband shall destroy the Custom of the Wife's Estate, or forfeit it, or not.

THE Husband seised of a Manor in the Right of his Wife, lets a Copyhold Parcel thereof, for years, by Indenture, and Died; this shall not destroy the Custom as to the wife, but that after the death of her husband she may demise it by Copy as before, Cro. El. 459, or 475. Conisby and Ruskey.

The Custom of a Manor is, If any Copyholder dies seised, having a wife at the time of his death, that his wife shall have it during her Viduity, the Lord and the Copyholder enfeoff J. S. thereof, and the Copyholder dies, his wife shall have it during her Viduity;Custom conti­nued quoad the Wife, tho' the Freehold be severed from the Manor. for the Custom is continued quoad her although the Freehold be severed from the Manor▪ for the Lords Acts shall not prejudice the Copyhold­ers Estate, and it is a Privilege by the Custom fixes to the Estate, that the wife shall have it after h [...] death, Cro. Jac. 573. Waldoe and Bertler. Vid. [...] Rolls Rep. 178. Mesme Case.

But the Custom of a Manor was found to be, that If a Copyholder in Fee died seised, his wife should hold it during her Life as free Bench, the Lord en­feoffs the Copyholder, who died seised; she shall not have the Land; but if the Lord had enfeoffed a Stranger of the Land, yet the Land remained Copy­hold, and the Custom is not taken away, Cro. Jac. 126. Leshmere and Avery.

If a Copyholder makes a Lease for years of Lands,Feme that hath the Wi­dows Estate, shall not avoid a Lease made by her Hus­band. whereof a Feme by Custom is to have her Widow's Estate, she shall not avoid the Lease, unless there be a special Custom to avoid it; for he comes under the Custom, and by the Lord's Licence, as well as the wife, Cro. Jac. 36. Farley's Case, Moor No. 147. Mesme Case.

Baron seised in the Right of his wife of a Copy­hold Land, surrenders it. Per Walmsley, It is a Discontinuance notwithstanding 4 Cok. 23.Discontinu­ance. Cro. Jac. 105. Collins and Couck.

What Acts of the Husband shall forfeit the Wife's Estate or not.

Feme Copyholder takes husband, who lets the Lands for more years than the Custom doth warrant; it is made a Quaere in Head and Challoner's Case, Cro. El. 149. whether this shall bind the wife as a Condition in Law. But it is resolved in Saverne and Smith's Case, Palm. 387. and 2 Rolls 344, 372. Mesme Case,Copyholder makes a Lease for more years than the Cu­stom warrants, it's no For­feiture. if Feme Copyholder of Inheritance takes husband, the husband makes a Lease for more years than the Custom will bear, the Lord enters for the Forfeiture, the husband dies, the wife dies, the Heir of the wife enters, and his Entry adjudged law­ful, so that it is no Forfeiture.

Denial of rent.Denial of Rent by the husband shall be a Forfeiture against the wife, and so Denial to do Suit of Cou [...] are present Forfeitures. If a Feme Copyholder tak [...] husband who commits Wast,Wast. this shall bind the wife; and the difference betwixt this Act, and the husband's making a Lease is: In Wast the Forfeiture goes to the Inheritance of the Wast, which continues for ever; but in Saverne and Smith's Case the Forfeiture de­termines with the Lease. Vide Rolls Rep. 372.

But if a Stranger without the assent of the husband commits Wast, this is no Forfeiture, 4 Cok. 27. Clifton and Molineux. Dodderidge in Saverne and Smith's Case,Diversity. took a difference, where the Copy­hold came to the Woman after Coverture, his For­feiture shall not bind her; for then it cannot be said it was her Folly to take an husband that would forfeit as it might if she had the Copyhold before Marriage, Palm. 387.

Vide Hobert 181. Howard and Bartlet. Where the Severance of the Customary Tenants from the Ma­nor, shall not prejudice the Widow in her Customa [...]y Estate. It is not in the power of the Lords to destroy Widows Estates. By the Severance Incidents to the Tenancy are not destroyed, but Incidents to the Seigniory are.

The Custom is that a Woman shall hold durante Viduitate; she shall make a Lease before Admittance; for in that case there is no Fine due to the Lord, and the Law vests the Estate in her, Noy 29. Remingt [...] and Cole, Hob. 181.

Surrenders, Grants, and the Construction.

The husband takes Copyhold Lands of the Lord cui donor concessit seisinam, The Wife is named after the Habendum, the Grant is good. Habendum to Baron and Feme; this is a good Grant to the wife, though she be named after the Habendum, and the wife by the [...] words takes a present Estate with the Baron, whic [...] [Page 197] she cannot do by Common Law Conveyance, 1 San­ders 151.

A Copyholder in Fee (where the Custom was for a Widow's Estate) made a Lease by Licence,Where Wife shall have the Rent, though no Party to the Lease. re­serving Rent to him and his wife during their Lives, (and did not say, and either of them.) Per Curiam, The wife may have this Rent, though no Party to the Lease, and it shall continue for the Life of either of them, Hill's Case, cited 1 Vent. 163.

The husband seised in Right of his wife,The Wife to join with the Husband in Grant of Co­pies. cannot grant Copies in his own name, but ought to join the wife with him, Cro. Jac. 99. in Shipland and Roy­den's Case.

Husband seised in the Right of the wife of Copy­hold Land, surrenders it. Walmsly held this a Dis­continuance, notwithstanding 4 Rep. 23. Ideo Quaere; for I conceive it makes no Discontinuance; and Cok. 4 Rep. is good Law. Vid. Lex Cust. 178.

Customs of Manors as to Wifes, Widows; what are good and what not.

That the wife of a Copyholder for Life shall hold it durante viduitate, was agreed to be a good Custom; and so the Custom of Taunton Dean, That if a Copy­holder in Fee marries a wife, if the wife survives, she shall have the Fee, & sic e converso agreed to be good, Noy p. 2.

There can be no Dower nor Tenancy by the Courtesy of a Copyhold, without special Custom, 1 Anders. 292. It was admitted by the Court to be a good Custom, That an Executor or Admini­strator shall have a year in the Land of the Copy­holder against the wife that claims her free Bench, Noy 29. Remington and Cole.

The Custom of a Manor was, That a Woman cooperta viro poterit devisare her Copyhold Land to her husband, or any other by the assent of her [Page 198] husband. Per Curiam, The Custom is not unrea­sonable; but because it was poterit devisare; which is a word of Justification, and it should have been usi sunt devisare, by way of Excuse, it was adjudged against the Plaintiff, Moor No. 268. 3 Leon. 81. Skipwith's Case.

If a Man marry a Widow, it's a good Custom that she shall not have Dower, Kitchin 149. Dalt. 30. b. but such a Custom of the wife of Tenant in Fee, is not good.

By Custom the wife to have the Moiety as Survi­vor, is good; and if any Lease be made, she shall have a Moiety of the Rent, 1 Keb. 357.

The wife that is endowable of the Moiety of Ga­velkind Land, may not wave it, and have the third part, Moor 260.

Separate Maintenance.

A Feme Covert may sue without her husband for her Separate Maintenance, and the Demurrer was over ruled. Cases, 35 Reynes and Lewes.

Money saved by the Wife out of her Se­perate Mainte­nance dispo­sed by her.Baron and Feme by Agreement separated and lived apart, and it was agreed the wife should have 150 l per annum Separate Maintenance; and out of which she had saved some Monies, and put it out to Intere [...], and took Bonds in a Friend's Name, and disposed [...] Money by Will; and this was in Chancery establi [...] a good Disposition, Lady Prudgeon's Case. Cases 11 [...].

In Covenant: The Defendant covenanted with t [...] Plaintiff, That S. (wife of the Defendant) should be permitted to live separate from the Defendant [...] til the Defendant and the said S. by writing under their several Hands, attested by two Witnesses, should give notice to each other that they would cohabit: And further, that he the Defendant, during the Coverture, and until such notice be given of their Desi [...]s to cohabit as aforesaid, would pay to the Plaintiff f [...] the Maintenance of the said S. 300 l. per annum [...] four Quarterly Payments; and sets forth, that the said S. from the Date of the Indenture of the Cove­nants, to the time of the said Suit, did live separate from the Defendant, and no notice of Cohabitation as aforesaid had been given during that time of either side, and for 75 l. for one Quarter's Payment, being alive.

Defendant pleads in Bar, That after the Indentu [...] aforesaid, and before the Action, another Indentu [...] was made between the Defendant and S. his wife o [...] the one part, and the Plaintiff of the other, reciting the first Indenture; and further reciting, That t [...] Defendant and S. did intend to cohabit, and did s [...] at that time, and expressing that it was the true [...] tent and Meaning of all the said Parties to the sa [...] [Page 203] Indenture produced, ut supra, that so long as the Defendant and S. should agree to cohabit, the said annual Payment should cease: And the Plaintiff did by the last Indenture covenant, That so long as they cohabited, that the Defendant should be saved harm­less from the 300 l. per annum Payment. The Plain­tiff replies, They did not cohibit modo & forma pro ut. The Defendant demurs. Judgment pro quer'; for unless the Cohabitation had been according to the first Indenture, as by writing mutually subscrib'd, and attested by two Witnesses, &c. it was no Bar; for the last Deed had not taken away the Effect of the former, and a later Covenant cannot be pleaded in Bar of a former: But the Defendant must bring this Acti­on on the last Indenture if he will help himself, 2 Ventr. 217. Gawden and Draper.

What amounts to a Disposition of the Wife's Term by the Husband, to vest the Interest in him, his Executors or Administrators.

What power the Husband hath of the Wife's Term.THE Baron by the Intermarriage hath full pow­er over the wife's Term to alien it; and if the wife dies, the Term survives to the husband; and if the husband dies, it survives to the wife unless he dis­pose it: But the husband can make no Disposition of it by his last Will, Plow. 416. Bransby and Gr [...] tham; and so is 2 H. 4. 7. b. 1 Rolls Abr. 344 Pop. 5. where a Man possessed of a Term for years in the Right of his wife, made a Lease for years of the same Land, to begin after his death, and afterwards he died, and the wife survived him, the Question was, If the wife shall have this, or the Lessee? And per Curiam, The Lessee shall have it; for as the hus­band, during his Life might contract for the Land for [Page 205] the whole Term which the wife had in it; so might he do for any part of the Term at his pleasure; for if he may demise the Land for 21 years, to begin pre­sently, he may make it also to begin at any time to come after his death if the Term of the wife be not expired; but for the Remainder of the Term, if the wife maketh no Disposition during his Life, the hus­band shall have it: But in this case, if the husband de­vise this Land to a Stranger, yet the wife shall have it, and not the Devisee, as it happened in the Case of Matthew Smith, because that by the death of the husband (before which the Devise cannot take effect) the wife had it in her first Right not altered by the death of the husband.

The husband can make no Disposition of it by his last Will.

So it is where Baron and Feme are Jointenants during the Coverture for 60 years; the husband by Indenture lets all the Land for 70 years to commence immediately after his death, the husband died and the wife survived, the Question was, If this were a good Lease to charge the Possession of the wife? And Per Curiam, 1. It is a good Lease,Term in Inte­rest, though not in posses­sion. for here is a good Term created in Interest, although not in possession; and it is not like a Case where nothing passeth till his death: 2. The husband having an Interest to dispose in his life-time, he might dispose all the Term, and it should bind the wife; so when he hath disposed by an Act executed in his life time of the Interest of the Term, and hath created a Term in Interest, this is as good as if he had granted all the Term, Cro. Eliz. 287. 1 Co. 155. Moor 329. Grant and Locroft.

L. possess'd of a Term for 18 years, and of another Term in Reversion of the same Land for 40 years, died intestate: His wife takes Administration, and en­ters and marries J. S. who let it to J. D. for 21 years, rendring Rent, and makes his Executor and dies. Per Curiam, During the first Term for years [Page 206] the Executor shall have it; for the husband had g [...] ven away all that Term; but for the residue of th [...] Term of 21 years, which is derived out of the Te [...] of 40 years, the wife shall have it as annexed to [...] Reversion or Term which the wife had, Cro. El. 27 [...]. Loftus's Case.

Disposition of part of the Term, no Dis­position of the whole.If a Man be possess'd of a Term of 40 years in [...] Right of his wife, and makes a Lease for 20 yea [...], reserving Rent and dies, the wife shall have the Re [...] due of the Term, but the Executors of the husb [...] shall have the Rent; for it was not incident to [...] Reversion, for that the wife was not Party to [...] Lease: So note, A Disposition of part of the Term [...] no Disposition of the whole, 1 Inst. 46. 6.

But Blackstone and Heath's Case is; A Man pos­sess'd of a Term for 20 years in the Right of the w [...] makes a Lease for 10 years, rendring Rent to him, [...] Executors and Assigns, and died: The first Questi [...] was, If the Executors or the wife shall have the Re [...] By Houghton and Crook the Rent is gone, agai [...] Mountague, who held the wife should have it; [...] it was agreed that the Executors of the husband [...] not have it: And if the husband after the Lease m [...] had granted over the Reversion, the Grantee sho [...] not have it: But by Mountague in that Case in Ch [...] cery the wife may be relieved for the Rent, Godb. 27 [...] Pl. 396. Pop. 145.

Possibilities not vested in the Husband.In Cases of Possibilities the Law doth not ve [...] them in the husband: As if a Feme sole be possessed of a Chattel Real, and be thereof dispossessed, and then takes husband, and the wife dies, and the Baron survives, this Right is not given to the Baron by the Intermarriage; but the Executors or Administrato [...] of the wife shall have it; so it is if the wife have b [...] a Possibility, as if the husband possest of a Term i [...] the Right of his wife grants this to J. S. if he sha [...] so long live, and dies, the wife shall have this Possibi­lity of Reversion; if J. S. dies within the Term, and [Page 207] not the Executors of the husband, 1 Inst. 351. 1 Rolls Abr. 345. So if a Lease be made to Baron and Feme for Term of their Lives, the Remainder to the Exe­cutors of the Survivor of them, the husband grants away this Term and dies; this shall not bar the wife, for that the wife had but a Possibility, and no Interest, 1 Inst. 46. b.

Baron and Feme mortgage their Interest in the wife's Term,Baron and Feme join in a Mortgage of the Wife's Term, the Feme dies, the Condition shall survive to the Husband. and before the day of Payment the wife died, and the husband paid the Money at the day in Redemption of the Mortgage, and entered and took another wife, and made her Executrix, who entered, R. took Administration to the Goods of the first wife, and entered upon the Lessee, upon whom the second wife entered, and made the Lease to the Plain­tiff, and Judgment was given for the Plaintiff, be­cause that though the Lease was at first the wife's, and that the husband was possest in her Right; so as though he had purchased the Fee-simple, the Lease had not been extinct; yet by the Intermarriage he hath full power to alien it; and if he survive the wife, he is to enjoy it against her Executors and Ad­ministrators: So here when he survives, the Condi­tion survives to him and restores the Lease to him in state as it should have been if it had been aliened, Hob. 3. Young and Radford, 1 Rolls Abr. 344. the same Case.

It is said in Rolls Abr. 344. If a Feme possest of a Term take husband, and they grant the Term upon Condition, and re-enter for the Condition broken, the wife shall have the Term again: And the Case of Radford and Young is there cited to be adjudged contrary to Hobart; which was, if a woman possest of a Term take husband, and they grant the Term upon Condition, if their Executors or Administrators p [...]y 10 l. to re-enter, and after the husband pays the 10 l. this is not any Disposition, but they shall be possessed in the Right of the wife; for although he [Page 208] pay the Monies to redeem it, yet perhaps he received the Money when it was mortgaged.

If a husband possest of a Term in Right of his wife grant this over upon Condition, that the Grant [...] shall pay 10 l. to his Executors, the husband dies, the Condition is broken; the Executors of the husband enter, the wife shall not have the Term, for this w [...] a Disposition of the Term; all the Interest being granted over, 1 Inst. 46. b.

If husband possest of a Term in Right of the wife, grants this to J. S. if he shall so long live, and dies, the wife shall have this, causa qua supra.

If a husband grant the Land which he had i [...] Lease in the Right of his wife, except part, the wi [...] shall have this part so excepted, for it is not disposed of, Dyer 264.

Lessee for years assigns his Term to the wife of the Lessor and a Stranger, and after the Lessee barg [...] and sells the Land for Money by Deed inrolled, [...] dies; the Stranger dies, and the wife claims to h [...] the Residue of the Term not expired. Now [...] Bracebridge's Case, Plowd. where the husband i [...] such a Case made a Feoffment, it was adjudged that by the Livery he had extinguished,Extinguish­ment of the Term of the Wife. and given over the Term of the wife: But some make a Divers [...]y where the husband makes a Feoffment, and where a Bargain and Sale, because by it nothing passeth b [...] the use; and after the Statute of 27 H. 8. the Pos­session is conveyed in such manner as the Use, and by the Grant of the Use the Lease in jure uxoris, passe [...] not, Moor 171.

Extent of the Wife's Term.If a Term for years in the Right of the wife be e [...] tended for the Debt of the Baron, this shall bind t [...] wife, 7 H. 6. 26. but the wife shall have the Re [...] due after the extent incurred.

If the Baron grant the Herb or Vesture of the Land, which he held with his wife for years, and dies, the Grantee shall have the Grass or Vesture, 7 H. 6. 52.

If Baron and Feme be ejected out of the Term in Right of the wife,Recovery in Ejectione Firme is a Disposition and the Baron recovers in Eject­ment brought by him in his own name only, this is an Alteration of the Term, and vests in the husband only, 1 Inst. 46. b.

Upon Execution against the husband for his Debt,Term of the Wife sold by the Sheriff. If Baron be outlawed or attainted. the Sheriff may sell the Term during his Life.

Terms for years in Right of [...] the wife, if the hus­band be outlawed or attainted, they are Gifts in Law, 1 Inst. 351.

Though the husband be possest of the Term in her Right, yet he hath power to dispose thereof by Grant or Demise; and if he be outlawed or attainted, they [...]re Gifts in Law, 1 Inst. 351.

Two Femes Jointenants of a Lease for years,Two Femes Jointenants, one takes Hus­band and dies, the Term shall survive. one of them takes husband, and dies; yet the Term shall s [...]vive; for though all Chattels real are given to the husband if he survive, yet the Survivor between the Jointenants is the elder Title, and after the Marriage the wife continued sole possessed; for if the husband die, the Feme shall have it, and not the Executors of the husband; aliter of personal Goods, 1 Inst. 185. b.

What Trusts of the Wife the Husband shall dispose or not.

If husband being possest of a Term for years, grant this over in Trust, for the Benefit of the wife, he may afterwards dispose and forfeit this Trust, and bar the wife, p. 8. Jac. in Scac. Wyke's Case;What Trust of the Wife the Husband may dispose or not. for he had as great a power of the use which he had in the Right of his wife, as he had of a Term in the Right of his wife; but if he make a Lease for years to ano­ther to the use of the wife if she so long live for her Jointure, the husband may not dispose this Trust, Mesme Case, and so for the Benefit of his Wife and Children.

If a Lease be made by the Father to P. A. [...] Trust for the Advancement of his Daughter, who married with him, the husband may clearly dispose of this Term, and no Remedy at Common Law for it, 1 Bulst. 118. Platt and Sleepe.

If a Term for years be granted in trust to the [...] of the wife, the husband ought not to have this Tr [...] after the death of the wife.

If a Term for years be granted to the use of a Fe [...] Sole, and she takes husband, and dies, the Admi [...] ­strator of the wife shall have the use and not the husband; because this Trust of the wife was a th [...] in privity, and in nature of an Action, for wh [...]ch there is no remedy but by Writ of subpoena; for th [...] Trust runneth in privity in this case, and the husb [...] shall not be Tenant by the Courtesy of an Use.

The Husband cannot grant or charge the Term of the Wife in trust.A Woman conveys a Lease in Trust for her [...], and after marries; in such case it lies not in the pow­er of the husband to dispose of it, and if the wife [...] the husband shall not have it, but the Executor [...] the wife, March Rep. 45. Sir John St. John's Case, so ruled at Common Law; and in Wytham and Waterhouse's Case, a Lease for years was granted to the Defendant to the use of the Grantor's Sister, whom he afterwards should marry; who married her accordingly, and then died: the Feme takes the Plaintiff to husband, and afterwards she died; and the Defendant takes Administration of the Plain [...] wifes Goods, and the Plaintiff sued the Defendant i [...] Chancery to have the Term; and it was decreed by the advice of all the Judges of England, that neith [...] the Term nor the Use thereof appertained to the hus­band,Nor forfeit it for Outlawry or Felony. Cro. El. 466. And it was resolved in Ch [...] ­cery, That the husband cannot grant or charge th [...] Term of the wife in Trust, Cases 225. as the w [...] having assigned her Term in Trust for herself befo [...] Marriage, and the husband without joining with th [...] Trustees, does mortgage the Trust; and the husba [...] [Page 211] being dead, the Mortgagee exhibits his Bill to have the Lands conveyed to him, or that they should re­deem, and the Court dismist the Plaintiffs Bill; for since Queen Elizabeth's time it has been the constant course of this Court to set aside all Incumbrances and Acts of the husband upon the Trust in the wife's Term, and that he shall neither charge or grant it a­way, neither shall he forfeit it by Outlawry or Felony if it be for Jointure.

A Trust was for raising of Money for a Feme sole in case she did not marry contrary to the liking of Sir Ed. W. and his Lady; and if she did,Trust for raising Money for a Feme sole if she mar­ry with con­sent. then to such persons as the said Sir Edward and his Lady, or the Survivor of them, should nominate; and for want of such Nomination, then to Sir Edward and his Lady; and Sir Edward and his Lady were Lessees in Trust. The Feme sole married without their consent, Sir Edward died without any Appointment, and so did his Lady. The Court was of opinion, that it was not in the power of Sir Edward and his Lady to have disposed of this Lease, otherwise than for the Benefit of the Feme sole, if she had lived; and her Administratrix was well intitled to the Benefit of this Lease. Cases 58. Fleming and Walgrave.

A Trust was,Annuity pur­chased in Trust for the Wife, yet the Arrears de­creed to the Husband. That one A. should purchase in his own name an Annuity of 80 l. per annum for the Life of the Plaintiffs wife, and pay the same to her and her Assigns, and the Bill in Chancery was to force the Payment of this Annuity to the Plaintiff, who lived separate from his wife: It was decreed, That the husband being Assignee of the wife, and that there being no Negative words by the Will to exclude the husband from the Annuity, he could not exclude him, and so decreed the Defendant to pay all the Arrears and the growing Annuity to the Plain­tiffs husband. Cases 194. Dakins and Beresford.

Diversity be­tween a Lease for life, and a Lease for years. Note, A Diversity between a Lease for Life and a Lease for years made to a Feme Covert, for if I let Land to a Feme Sole for Term of years, who taketh husband, and after I confirm the Estate of the hus­band and his wife, To have and to hold the Land for Term of their two Lives: In this Case they have a Joint Estate in the Freehold of the Land, for that the wife had no Freehold before; but her Estate of Freehold cannot be altered by the Confirmation made to her husband and her, as the Term for years may, whereof her husband may make Disposition at his pleasure; and this Confirmation makes them Join­tenants for life, because a Chattel of a Feme Covert may be drowned, 1 Inst. 300. a.

Term vests in the husband by Payment of Debts.Executor de Son Tort dies intestate, his Mother administers, and after takes husband, (there being amongst the Chattels of the wife as Executor de Son Tort, a Term for years) the husband pays so much of the Debts of the first Intestate as the Term for years is worth. Per Curiam, The Term for years is vest­ed in the husband, Sid. p. 76. Baker and Beresford.

What shall amount to a Forfeiture of the wife's Term, or not.

Lease for years is made to Baron and Feme, provi­ded that if the same Land shall come into other hands, than to Baron and Feme, and their Issue, that the Lord upon tender of 100 l. may enter. By Dyer and Brook his Entry is lawful, for it is the Act of the wife:By Marriage of an Husband who aliens. Weston cont', for it is an Act in Law, and the husband is possest in jure Uxoris, aliter if the wife had been dead. The principal Case in Dyer was; The Lessee covenants that if he, his Executors or Assigns, alien the Term, then the Lessor to enter. Lessee makes his wife Executrix, and dies; the wife takes husband, the husband aliens the Term, and it is de­bated there whether the Lessor may enter. Baldwin; [Page 213] The Condition is not broken, because the husband's Estate is made by Law, and cannot be said Assignee, and so like a Tenant by the Courtesy: But by Brown and Shelley, an Assignment in Law is as strong as an Assignment in Fait; and by the Espousals the Term vests in the husband, as if it had been a Gift by the wife, and it was adjudged it was a Forfeiture, Dyer 6. b. 7. a.

[...]st how a Feme Covert may make Executor, and then how she may be made Executrix.

A Feme Covert may make her Testament of Goods, and make an Executor by the assent [...]f her Husband.

A Feme Covert may make an Executor of Ch [...] in action due to her, 8 Jac. B. C. Graunt's C [...] and so is

18 Ed. 4. 11. b. A Feme with the consent of [...] Husband may make an Executor of things, which [...] husband shall not have by her death.

She may make her husband Executor of the Go [...] which she hath as Executrix, if he will accept [...] 4 H. 6. 31.

A Feme Covert cannot make Executor wit [...] the assent of her husband, and the Administration [...] her Goods of Right appertains to her husband, 4 [...] Ognel's Case.

But a Feme Covert Executrix may make an E [...] cutor of the Goods which she hath as Execu [...] without the assent of her husband, and in such [...] Administration appertaineth not of Right to the [...] band; and what she had as Executrix, she had [...] auter droit, and not otherwise an Interest in the [...] M. 8 Jac. Graunt's Case.

Administrati­on of the Goods of a Feme Covert.If a Feme Covert dies intestate, Administrati [...] may be granted of her Goods; for peradventure [...] had Choses in action, which are not given to the [...] band by Law, Dyer 251. admitted.

What things the Administratrix of the Wife [...] have, and not the Husband.

Choses in action.The wife's Administrator shall have Choses in [...] on always, and not the surviving husband; as i [...] case of Lease or Bond: As if an Obligation be m [...] to the use of the wife. The Case was; Art [...] Johnson was possess'd of a Term for years, and [...] signs it over to J. S. being Brother to the wif [...] the said Johnson, to the use of the said wife: Jo [...] son dies, and makes his wife his Executrix, [...] which the said wife takes Rob. W. to husband, [...] takes the Profits of the said Lands during the life [...] [Page 223] the wife; the wife dies intestate, J. S. as next of [...] took Administration as well of the Goods of the said wife, as of her first husband. By all the Judges [...]e Administrator had now as well the Interest as the [...]e of the said Term, as well in Conscience as Law: And Rob. W. shall not have it, because it is as a thing [...] Action, which the Administrator of the wife shall [...]ways have, and not the husband: As if an Obliga­tion had been made to the use of the wife, Pop. 106. [...]. Johnson's Case.

Feme as Administratrix to her husband brought Debt for Arrears of Rent incurred in the Life of the [...]band;Arrears of Rent. which Rent was granted jointly to Baron [...] Feme. Per Curiam, The Arrears belong to the [...]fe in jure proprio, and not as Administratrix of [...] husband, and the naming her Administratrixs [...]s surplusage, Moor 886. Dembian and Brown.

If a Feme Executrix to J. S. takes husband, and af­ [...] the Baron and Feme brought Action of Debt upon [...] Obligation in Right of the wife,Debt on Bond by Baron and Feme Execu­trix, and they have Judg­ment, Feme dies, the Baron shall not have Execution. as Executrix to [...]. S. against J. D. and have Judgment against him [...] recover the Debt, with Damages and Costs; and [...]er the wife dies before Execution sued, the hus­ [...]nd shall not have Execution upon this Judgment; [...] that he (although he be privy to the Judgment) [...] he shall not have the thing recovered; but this be­ [...]ngs to the succeeding Executor or Administrator of J. S. 1 Rolls Abr. 889. Beaumont and Long. [...]de Infra.

Lease to J. S. who assigned it over to K. who by [...] Will devised the same to his wife, who made her [...]ecutrix also; and she afterwards took one W. to [...]sband, and died. W. takes out Letters of Admini­ [...]tion of the Goods and Chattels of his wife, and [...]sed it to the Plaintiff: The Question was if the [...]e be in as Executrix or Legatee,Feme Legatee and Executrix, at Election. for until Election [...]de she shall not have it as Legatee. But it was [...]ved that the said wife, Executrix to her husband, [Page 224] had made a Lease by Deed, reciting thereby that where the husband was possessed in Right of his wife as Executrix of her first husband. Per totam Curiam, This is an express Claim as Executrix; and then when the wife dies, if the husband would have a [...] ­vantage of it, he ought to take out Letters of Admini­stration of the Goods of the first husband. Vid. 1 Le [...]. 215. Cheyney and Smith.

A Woman is made Executrix, and after married, she cannot now assent to a Legacy, there being no In­terest vested in the husband.Assent to a Legacy. Contra, Of a bare Au­thority given her to sell; but by Windham this as­sent, and the husband's not contradicting it, is good Evidence that he did agree, 1 Keb. 708. Cook and Bellamy.

What things Feme Covert Executrix may do without her Husband, or not.

Feme Covert Executrix may make an Executor without his assent.

Feme Covert Executrix, without her husband, ac­knowledgeth Satisfaction of a Judgment without real Satisfaction had,Acknowledge Satisfaction. it is not good, Sid. p. 31. Lady Fe [...] ­ner and Sir Lewis Dives.

Feme Executrix may not give the Goods of the Testator in pios usus, without the assent of the hus­band. Vid. 14 H. 6. 4. vid. Cook, p. 9. 43.

In Russel's Case, 5 Rep. 27. it is agreed that a married wife cannot do any thing as Executrix i [...] prejudice of her husband.

Two were bound to a third jointly and severally; the Obligee made the wife of one of the Obligors Executors, and deviseth to her all his Goods, after Debts and Legacies paid, and dies: The Woman Executrix administers; then the same Obligor made her his Executrix, and died, leaving Assets to pay the Debt; then the wife dies intestate, and the Plain­tiff [Page 225] administrat. de bonis non, if the Obligee brings Action and sues the surviving Obligor. It was resolved that the Action lies not: 1. When the Obligee made the wife of one of the Obligors Executrix,Obligee makes the wife of one of the Obli­gors Executrix the Action was suspended during the Continuance of the Exe­cutorship, and then the Rule is a personal Action once suspended, is extinct if it be by his own Act, as here it is by making the Woman Executrix,Regula. aliter by Act in Law. 2. When the Obligor made the Executrix of the Obligee his Executrix, and left Assets, the Debt was presently satisfied by way of Re­tainer,Obligor makes the Executrix of the Obligee his Executrix. and so no new Action can be had for that Debt, Hob. 10. Fryer and Gildridge, Moor 855. Mesme Case: But if a Feme Executrix of a Debtee takes the Obligor to husband, and after the Baron dies, this Suspension is not any Extinguishment,Feme Execu­trix of a Deb­tee takes the Obligor to Husband. be­cause it was by Act in Law, and in auter droit, M. 30 & 31 El. Sir John Needham's Case, 8 Co. 136.

A Feme Executrix marries with a Debtor of the Testator; the husband dies, and Debt was brought against the Feme, who pleads riens enter les mains; and if this were Assets was the Question? Per Curiam, Debt suspend­ed. This Debt is not Assets in her hands; for by the In­termarriage the Debt which the Executrix had en auter droit, was not extinct but suspended; and the Action was revived against the Executors of the Ba­ron, and compared it to Darcy's Case in the Com­mentaries, Cro. El. 114. Crossman and Read.

Though if the Feme Obligee take the Obligor to husband, this is a Release in Law:Feme Obligee takes the Obli­gor to husband But if a Feme Executrix takes the Debtor to husband, this is no Re­lease in Law, for that should work a Devastavit, which an Act in Law shall not work, 1 Inst. 264. b.

If a Man takes to wife an Excutrix, all the Debts being paid, and he hath Goods in his hands to pay Legacies, the wife dies, the husband cannot be sued for these Legacies in the Ecclesiastical Court by the Legatees; for the next of Kin to the wife may have Letters of Administration granted to him of these Goods in the hands of the husband. And therefore if such husband, after his wife's death, makes a pro­mise, That in Consideration he had the Goods, being more than would satisfy, if the Plaintiff being Lega­tee would forbear to sue him for such a time, he would pay the Legacy. It is a good Consideration, 1 Bulst. 44. Smith and Jones.

Administratrix, dur' minoritate of the Daughter; Executrix made divers Bonds to the Creditors of the Testator,Of Husband's retaining Goods. and then took husband. Per Curiam, The husband may retain so much of the Testator's Goods as amounted to the value of the Debts paid. But Hobert, p. 250. makes it a Question, how the Case shall be if the wife die? for then the Husband is no longer chargeable by her Bond: But it's said in 1 Rolls Abr. 923. If the husband in the life of the wife declare that he retains such particular Goods in­stead of the Obligations, although the wife after dies; yet by the Declaration the Property was absolutely altered in the husband,Alteration of the Property of the Goods. and then the death of the wife will not divest it, Briers and Goddard.

Feme and another Person are Executors; Feme takes husband, the husband doth not alter the Property of the Goods of the Testator, and the wife dies; now the other Executor shall have Action of Detinue against the same husband of the said Goods, Ben [...]. No. 38. p. 10.

Where the Husband shall be charged with the Waste of the Wife Administratrix: The manner of the Proceeding of the Sheriff in such Case; and whe­ther Execution shall be de bonis propriis of the Husband.

If A. recover against B. Debt and Damages,Where Execu­tion shall be de bonis propriis of the husband. and after B. dies, and Administration is granted to C. his wife, who wasts the Goods; and after she takes D. to husband, and a Fieri fac' is awarded de bonis Testatoris in the hands of D. and C. the Sheriff re­turns nulla bona, &c. And upon this, on surmise that they have wasted the Goods, other Writ is a­warded to the Sheriff, si sibi constare poterit per In­quisitionem, that they have wasted, then to warn them to shew cause why Execution should not be de bonis propriis, and the Inquest find this matter, and refer it to the Court whether the husband and wife have wasted the Goods of the Testator, according to the Writ or not. Upon this special Return the Court shall award Execution de bonis propriis, of the Baron and Feme; for the Sheriff had returned the special Matter, and therefore the husband is to be charged for the Conversion of the wife, M. 16 Car. 1. B. R. Knight and Hilton, Ux. versus Copping, 18 H. 6. 14. b.

Upon Suggestion of a Devastavit of a Feme Exe­cutrix, it was laid,Declaration in Waste against Baron and Feme Execu­trix. that the Baron and Feme Devasta­ver' and Converter' ad usum ipsorum; and upon the Issue it was found accordingly: It was moved in Arrest of Judgment, that they could not convert to their own use; and so in Trover and Conversion, quod Converter' ad usum ipsorum, is not good. But Per Curiam, Here the material part of the Issue was the Wasting of the Baron and Feme, which they might do jointly, and the Conversion is nothing to the purpose, 2 Vent. 45.

Now the reason why Execution shall be de bonis propriis of Baron and Feme, is, the wife may have Goods as a Term, or Chattels real before the Cover­ture; also she may have Goods after the husband's decease; and therefore in Debt the husband is char­ged in Right of his wife, as Executrix, and Judg­ment is given against them, it shall be de bonis suis propriis, and good. And it was resolved, Cro. Car. 519. in Mounson and Bourne's Case, that a Devasta­vit may be by a Feme by Eloigning the Goods, as a Feme Covert may do a Tort, and be punished for it. It was held also, that if a Man take Executrix to wife, and waste the Goods, it is a Devastavit in the wife. And if there be a Recovery against Baron and Feme upon a Devastavit, if the Baron survive the wife, he shall be charged; also if the Feme survive, she shall be charged: But if the Recovery be not against Baron and Feme in the life of the wife,Where the Husband shall not be charged. and she dies, the Ba­ron shall not be charged.

Feme is Executrix of her first husband, and she ad­ministred when she was Sole, and then takes a second husband;Baron and Feme commit­ted to the Fleet on a Devasta­vit. and there is a Devastavit returned, and a Capias ad Satisfaciendum against both de bonis pro­priis, and the husband was committed to the Fleet, and so was the wife, because the Devastation of the husband shall be the Act of the wife, Dyer 210. marg. M. 38 & 39 El. B. C. Vaughan & Thomas.

A Woman is indebted by Obligation as Executrix, and had Assets of the Goods for the Debt, and after takes husband, the Debtee demands the Debt of the husband, and thereupon they submit themselves to Arbitration of all Actions and Demands; the Arbi­trators may make an Award of this Debt that the wife of the husband as Executrix owed to the Debtee,Husband chargeable with a Devasta­vit of the wife, tho' no Assets came to his hands. And per Coke, in this Case, though no Assets came to the hands of the husband, yet he is chargeable for the Devastavit made by the wife before Coverture.

So 21 H. 7. 29.Award of a Debt due to the Wife as Executrix. b. The husband submits all Acti­ons and Trespasses, &c. and the Award was of a Debt due to the wife as Executrix. Per Curiam, This is a good Bar of the Debt of the wife, 1 Rolls Rep. 269. Lumley and Hutton.

In Debt on Obligation against J. and his wife as Administratrix; The Defendant pleads Payment by the wife after the Intestate's death, and on that Issue found pro Quer': Judgment quod recuperet debitum against Baron and Feme, de bonis Testatoris, si non, &c. the da­mages de bonis propriis. Judgment was quod recuperet de­bitum against them de bonis Testatoris, si non, &c. the Damages de bonis propriis. Per Curiam, This Judgment is well given; 1. Although the Plea be false, yet he is altogether a Stranger to the Testator; and therefore the Judgment shall be only de bonis Testatoris, and not where he pleads fully admini­stred, which is false in his own Conusance: Although the wife hath not any Goods during the Coverture, yet because the husband is only charged in respect of the wife, and she might have Goods if she survived, and Execution might be taken against her, the Judg­ment is good, Cro. Jac. 191. Johns and Adams.

It is said in Rolls Abr. 919. If a Feme Executrix take husband who wasts the Goods, the Feme dies; by the Common Law there is not any remedy against the husband:Devastavit re­turned against Baron and Feme; Feme dies, the Hus­band shall be charged. But in this Case by the Ecclesiastical Law, the husband shall be punished and compelled to make Restitution; but if a Devastavit is returned a­gainst Baron and Feme, and the Feme dies, yet the husband shall be charged, Sid. 330.

If the husband possest of Goods in the Right of his wife as Administratrix,Prohibition against a Spoliation. grants the Goods to J. S. and after the wife dies, and after a new Administra­tion is granted to J. D. who sues the Grantee of the Goods for a Spoliation, in the Ecclesiastical Court, a Prohibition lies, M. 11. Car. 1. B. R. Clark and Daniel. So if such husband wast the Goods, and af­ter the Wast dies, if the husband be sued in the Spi­ritual [Page 230] Court for a Spoliation, or a wast of the Goods, a Prohibition lies, 2 Rolls Abr. 302.

Term extinct in one respect, yet remains Assets in ano­ther.Feme Executrix hath a Term, and takes husband, and the husband purchaseth the Reversion, the Term is extinct as to her if she survive; but as to all Stran­gers it shall be accounted as Assets in her hands, Moor 54. 1 Leon. 720. Crossman and Reade. In Leon. the Case was, J. S. made his wife Executrix, and died; J. D. being then indebted to the Testator in 60 l. upon a simple Contract, the wife Executrix took to husband the said J. D. J. D. made his Exe­cutor, and died: A Creditor of J. S. brings an Action of Debt against the wife, Executrix of J. S. and upon the pleading, the Matter in Question was, If by the Intermarriage of the wife with the Debtor of the Testator,Intermarriage of a Feme with a Debtor of the Testator. the same were a Devastavit or not, and if the said Debt of 60 l. due by J. D. should be As­sets in her hands? And per Curiam, It is no Deva­stavit nor Assets; for the Woman may have an Action against the Executor of J. D. and it was a­greed per Curiam, that if a Man make a Debtor and a Stranger his Executors, and the Debtor dieth, the surviving Executor may have an Action of Debt against the Executor of the Debtor.

Debt on Bond by Baron and Feme Execu­trix, and they have Judg­ment; Feme dies, and the Husband shall not have Exe­cution, and why.If a Feme Covert, Executrix to J. S. take husband, and after the husband and wife bring Action of Debt on Obligation in Right of the wife, as Executrix to J. S. against J. D. and have Judgment against him to recover the Debt, with Damages and Costs; and after the wife dies before Execution sued, the hus­band shall not have Execution upon this Judgment; for that (though he is privy to the Judgment) yet he shall not have the thing recovered, but this appertains to the succeeding Executor or Admnistra­tor of J S. M. 7 Car. B. R. Beaumont and Long, vide Supra, Trin. 11 Car. B. R. Jefferies's Case, Cro. Car. 208, 227. after a year and day the husband brought Scire fac' to have Execution. But per Cur' [Page 231] The Scire fac' lies not; for the first Action was brought by the Baron and Feme Administratrix, which is en auter droit, and the Recovery being thereupon, is in Right of the Intestate; and the Feme being dead, the Baron cannot claim that Debt; for the Administratrix being dead, the Suit is meerly determined, and cannot be revived by any but he who comes in in that Right, and so doth not the hus­band; and he who ought to have the Scire fac' might have Privity and Property in the Debt, and the husband hath no Property in it.

W. and his wife being possest in Right of the wife of a Term, which she had as Administratrix to her first husband C. W. being indebted, by Contract granted the Term to Coleman, to the use of W. and his wife for their Lives, and after to the use of Cole­man himself. W. is sued for this Debt and Recovery against him, and the Sheriff by Fieri fac' sold the Term to the Defendant.Term in the Wife as Admi­nistratrix, if extendible for the Debt of the Husband. The Grant of the Term is not void by Stat. 3 H. 7. as made to defraud Credi­tors; for this Grant is not to avoid Creditors, for the Term being in Right of the wife as Administra­trix if it so continued in the hands of W. and had never been granted, this was not extendible for the Debt of W. and if W. himself had it as Executor, it had not been extendible for his proper Debt, and Fraud shall not be intended except expresly found.

Actions. Vide Supra.

A Feme Executrix takes husband,By Outlawry the Husband forfeits no Goods as the Wife had as Executrix. they bring Action of Debt as Executrix, and recover and have Judgment; but in bar of this the Outlawry of the Baron is pleaded. Per Curiam, The Baron forfeits nothing of the Goods which the wife had as Execu­trix, 3 Bulst. 210. Hix and Ux. versus Harrison.

Indebitatus by Baron and Feme as Administratrix of J. S. on account as Administratrix, and Arrearages found to Baron and Feme as Administratrix: The Defendant demurs, because it is not said, The Debt was due to the wife as Administratrix, 3 Keb. 396.

A Feme sole delivers a certain Sum of Money into the hands of J. S. the Defendant thereupon Cove­nants with the Feme to pay to A. B. 100 l. per annum, Covenant with a Feme to pay A. 100 l. per annum, Feme takes husband, husband makes Executor and dies, the Exe­cutor may sue for the Arrears so long as the Money shall continue in the hands of J. S. the Feme takes husband, the 100 l. per annum is Arrear; the husband makes his Executor, and dies, and after his death the 100 l. per annum is an Arrear also: The Executor brings Action of Covenant upon the Indenture, and good; for the Covenant concerns the Executor because he represents the Testator, Stiles 140. Pope and Hunt.