THE LAW RESOLUTIONS OF women's RIGHTS: OR, THE LAW PROVISION for WOMEN.  
A Methodical Collection of such Statutes and Customs, with the Cases, Opinions, Arguments and points of Learning in the LAW, as do properly concern WOMEN. Together with a compendious Table, whereby the chief matters in this BOOK contained, may be the more readily found.  
LONDON; Printed by the assigns of JOHN MORE Esq and are to be sold by JOHN GROVE, at his Shop near the Rolls in Chancery-Lane, over against the Sixe-Clerkes▪ Office. 1632.   

A PREFACE TO THE READER.  
VArious are the Conceits and Judgements of Men: Nature teacheth each to prefer his Own; Hence it is, that the number of Books multiply, insomuch, that, according to the Wiseman; Thereof, is no end.  
To expect new Matter, were to give the old Proverb the Lie; Nihil jam dictum, etc. It's enough, if what was before, be now so changed by Method and Application, that it shows as new, and becomes more ready for Use. Habit and Apparel alter the Shape, sometimes the Conditions of Men. An old Theme in a new dress ingenuously contrived makes the Composer an Author. Why then should this Book blush to show itself? or doubt to be servant to the Printer, whose Master nevertheless it is?  
To give it as absolute, or free from faults, were to make it more than the Work of Man, whose incident is Error: Such as it hath, are rather accidental then original, and may be fairly excused; Not to insist, That the Author's dead, That it was long since collected, Alteration of some Cases by Modern Statutes, Or this the first Impression. Goodness is the Parent of Confidence; The Act is crowned by the End, which was this, A public Advantage and peculiar Service to that Sex generally beloved, and by the Author had in venerable estimation. To implore their Patronage, and prevail, were to guard this Book beyond Opposition. The strong neither needs nor desires a Champion; Meekness protects itself: What here you find real and perfect, therefore accept; It will subsist; Remit the rest, the rather for that nor the Tract, nor This is peremptory, But only proposed for your favourable sense and Approbation.  
I. L.   

TO THE READER.  
BY whom this following DISCOURSE was Composed I certainly know not, neither by what inducement the Author's pains therein was procured: But if for no other consideration then to make this scattered part of Learning, in the great Volumes of the Common-Law-Bookes, and there darkly described, to be one entire body, and more ready, and clearer to the view of the Reader, his love deserves thanks, and his endeavours kind acceptance. The Work hath been carefully, and with much labour and diligence collected: The Theme, as the subject, is, The Law's Resolutions of women's Rights; which comprehends all our Laws concerning Women, either Children in government or nurture of their Parents or Guardians, Maids, Wives, and Widows, and their goods, inheritances, and other estates. It is profitable and useful Learning to be well known. I am sure it will please all them whose actions are guided virtutis amore, and offend none but those ill manners, who can have no other antidote made them, then formidine poenae: for it sets forth Law, and justice, things honest, and things convenient. I had such a good conceit of the matter and frame of the whole Work, that having a Copy there of lying by me sometimes, within the Compass of a Lent vacation, I plucked my intentions from my own course of Studies, and cast them upon this. And those vitia Scriptoris, and Authoris, which I found, I amended, and have added many reasons, opinions, Cases and resolutions of Cases to the Author's store: wherefore those oversights or neglects that thou mayst impose upon the Printer or me, (which I suppose will be some (if not many) thou shalt have thanks to supply or amend, which is all I expected, and more than the Author, as I believe, had (or now being dead can receive:) and perhaps thou mayst have a better reward; for the old Adage is true, pretium non vile laboris.  
Vale, T. E.   

THE TABLE.  

ACceptance, pag. 177  
Accidents of Marriage, pag. 62.  
Actions by the Husband & Wife, how brought, 196. 197.  
Acts done by the Wife, when good, 141.  
Age of a Woman; at 7. her father shall have aid, at 9 she's Dowable, at 12. she may consent to Marriage, at 14. out of Wardship; at 21. she may make a feoffement. 7.  
Appeal of the husband's death, 332. How it shall be sued 338. within what time it shall be brought, 141. before whom it shall be sued 343. Pleas in Appeal, 353. 355.  
Attainder of the Husband, loseth the Wife's Dower, 152.  
Chattels real of the Wife, what interest the Husband hath in them, 130.  
Contribution of Parceners, 47.  
Courtesy of England, what, 79. there must be Marriage, 80. and seisin, ibid. and issue, 81. 87. shall not be of a reversion, ibid. nor of a right, 82. nor after the Husband's discontinuance 83. nor of an estate suspended, ibid. nor of a bare use. 84. A second Husband shall be tenant, 85. when the title thereof gins, 88 How the Husband shall lose it, 9 It shall be, though the child die, 89.  
Clergy in appeal. 364.  
Damages in an appeal, 365.  
Declaration in an appeal, 348.  
Degrees, how they shall be accounted, 76.  
Descent, how altered, 12.  
Discontinuance, 155.  
Divorce, what, 64. 122. Causes thererof, as Impotency, 65. Affinity, 66. long absence, 66.  
Dower, 90. what it is, 91. when to be recovered 93. what seisin is requisite, 93. the husband must have both Franktenement and Inheritance. 95. Of what things it is granted, 98. of what not, 99 Of what inheritance the husband must be ●eised, 101. When given of an estate determined, and when not, 103. How much it shall be, and how held, 106. 107. It shall be of the Husband's best possession, 108. when the wife may elect, 109. when of Land and rent issuing out of that Land, 109. At the Church-door, 111. Lost by elopement, 144. How the Husband may hinder it, 148. lost by his attainder, 152. who may assign it, 243. 244, etc. what things shall be assigned, 281.  
Election of Lands Dowable by the wife, 109. of Dower or loynture made during the coverture, 184.  
Elopement, a woman thereby loseth Dower, 144.  
Executor of his own wrong, 129.  
Executorship, 233.  
Exposition of the words, Lands, Tenements, & Hereditaments, 188. of the Stat. of Westminster, 1. cap. 4. 17. of the Stat. of 32. H. 8. cap. 28. 166. 170. 173. of the Stat. 27. of H. 8. cap. 10. 183.  
Evidences detained, 261.  
Felony, 206.  
Fines, 176.  
Fourcher, what; 218.  
Forfeiture of Estates, 313.  
Frank-Marriage, what; 73. whether it may be to a man, 74. It may be given at, before, or after Marriage, 74. That word maketh inheritance, 75.  
Heir, what, and how, 8. 9  
Hermaphrodite, what, 5.  
Hodgepodge, what, 40. 41. when used, 42.  
Husband and Wife, are one person, 116. 119. where one, and where several persons, 4. they cannot enfeoff one another, 120. How Lands may be conveyed from him to her, 123. where he shall be charged for her debt, 136. what Acts she may do, and what not, 141. How they shall bring actions, 196. 197. 204.  
Impediments of Marriage, by affinity. 59 by adoption, etc. 60.  
Infant, what acts void, and what voidable. 132.  
jointure, 183. where both it and Dower shall be had, 192. what shall be said to be a refusal or agreement to a jointure, 195.  
Law reduced to a Method, 1. of King Edmond, 375.  
Marriage, what, 51. Promises thereof defined and distinguished, 52. 53. How long such Promises are to be expected, 55. who may, and who may not contract Matrimony, 57 Impediments thereof, 59 60. why its necessary, 63. when its consummate, 63. Not dissolved for any crime, 67. Statutes concerning it. 68 69. Lands given to marry one, when recoverable, when not. 78. It changes the Woman's name and dignity, 125.  
Nuper Obijt, where it lieth, 27.  
Outlarie of Baron and Feme, 221.  
Partners, what, 24. difference between them and joint-tenants and tenants in Common, 25. the coherence between them, 45. where they shall be heir one to the other, and where not, 46. where they shall contribute, 47. where they differ in service, 49.  
Pardon of the King, 364.  
Partition, of the manner thereof, 31. where a Writ lieth, 33. what plea in that writ is good, 34. who may sue it. 35. In what case it shall abate 38. The judgement upon that Writ, 39 what things shall not be parted, 40. Where it may not be avoided, 42. 43. where it may, 44.  
Polygamy, forbidden, 61.  
Posthumus, where he may enter, 14. where not, 15.  
Promises of Marriage, how long to be expected, 55. How they may be dissolved, 55. and by what authority, 56.  
Quarentine, what, 242.  
Rape, 376. of two sorts, 377.  
Recoveries, what, 180.  
Remitter, what, and when, 157.  
Rend reserved upon a gift in Frank-marriage is void 73. a Woman dowable of Rent. 109.  
Seisin, to make Tenant by the Courtesy, 8. and the Wife dowable, 93.  
Service of Partners, where it differeth, 49.  
Statutes concerning Marriage, 68 69. of Gloucester, 160. of 32. H. 8. cap. 28. 163. that Stat. expounded. 166. 170. 173. of 27. H. 8. cap. 10. 183. Of 11. H. 7. cap. 20. Of 3. H. 7 cap. 1. Of West. 2. cap. 12. Of West. 1. cap. 14. West. 2. cap. 35. Of 6. Rich. 2. cap. 6. Of 31. H. 6. cap. 9 Of 3. H. 7. cap. 2.  
Tail special, 85.  
Treason, 208.  
Wast, 307.  
Wooing, 71. when the gifts shall be restored, if the match take not effect, 72.  
womans why in subjection, 6. their several ages, 7. when compellable to serve, 8.  
Writs, whereby a woman may have her Land, 23. of nuper obijt, 27. de rationabili parte, 30. of partition, 33.   
The end of the TABLE.   

THE WOMAN'S LAWYER.  

SECT. I.  
ALl Law, saith justinian in his Imperial institutions, belongeth to persons, to things, or to actions: which division I acknowledge to be good: and so in his method of the Civil Law, doth a Doctor and very learned man, Conradus Lagus, yet the same Lagus saith, it is too straight for his purpose, and therefore not feeling himself at ease in so narrow a distribution, to drive the forms of Civil Law to certain heads, according to their material varieties, he confesseth he i● compelled to constitute a plurality of Law members more than the very Law setteth down as appeareth in the 2. Part of his Method the 2. Chapter, yet a curious Caviler (I perceive) might find in justinian's partition a very great redundance rather than any defect, for Res is a transcendente, comprehending actions, persons, and what not. And actions in the widest signification seem alone to been the theme and right subject matter of Laws and all Humane Constitutions: as for persons they are so many, and so differing, that I think there is no use, Custom, Injunction or decree, but it appertaineth to some person, and that in some peculiarity of difference, either in state, age, sex, function, profession, merit, or some other like several regard, so that in mine opinion, Law might been dispersed into apt titles of this personal difference, in such sort as both Students, might come to the easier knowledge: the one of their learning general, and the other of their particular duty. I though I been fare unable to produce a perfect method of the Laws of England, as Lagus following his own artificial project hath framed an excellent Deliniation of the Laws of Rome, and though I been unworthy to have the Marshalling of the titles of Law to bring all matter cohering under them, yet I will make a little assay what I am able to do if I were put to it in a popular kind of instruction: following a frame by distinction of persons, chase the primary distribution of them made before the World was seven days old, Masculum & Foeminam fecit eo●, of which division because the part that we say hath least judgement and discretion to been a Law unto itself, (Women only▪ Women) they have nothing to do in constituting Laws, or consenting to them, in interpreting of Laws, or in hearing them interpreted at lectures, leets or charges, and yet they stand strictly tied to men's establishments; little or nothing excused by ignorance, me thinks it were pity and impiety any longer to hold from them such Customs, Laws, and Statutes, as are in a manner, proper, or principally belonging unto them: Laying aside therefore these titles which include only the masculine, as Bishop, Abbot, Prior, Monk, Deane and Chapter, Viscount, Coroner, together with those which been common to both kinds, as Heretic, Traitor, Homicide, Felon, Laron, Parricide, Cutpurse, Rogue, with Feoffor, Feoffée, Donor, Donée, Vendor, Vendée, Recognisor, Recognisée, etc. I will in this Treaty with as little tediousness as I can, handle that part of the English Law, which containeth the immunities, advantages, interests, and duties of women, not regarding so much to satisfy the deep learned or searchers for subtlety, as woman kind, to whom I am a thankful debtor by nature.   

SECT. II. The Creation of Man and Woman.  
GOd the first day when he created the World made the matter of it, separating light from darkness: the second day he placed the Firmament which he called Heaven, betwixt the waters above the Firmament and the waters under the Firmament: the third day he segregated the waters under the Firmament into one place, calling the waters Seas, and the dry land Earth, which he commanded to bring forth fructifying herbs, plants and trees: the fourth day he made the Sun, the Moon and the Stairs in the Firmament, to been for Signs, Seasons, Days and Years, and to give light upon the earth: the fift day he made by his Word the Fishes of the Sea, Whales and every feathered foul of the air, commanding them to increase: the sixth day he made Cattle, creeping things, the beasts of the Earth: and now having made all things that should be needful for them, he created Man, Male and Female made he them, Bidding them multiply and replenish the Earth, & take the joint sovereignty over the Fishes of the Sea, the Fowls of the Air, and over all Beasts moving upon the Earth, Genesis 1.  
In the second Chapter Moses declareth and expresseth the Creation of Women, which word in good sense, signifieth not the woe of Man as some affirm, but with Man: For so in our hasty pronouncing we turn the preposition with to woe, or we, oftentimes: and so she was ordained to been with man as a help, & a companion, because God saw it was not good that Man should been alone. Then when God brought Woman to Man to been named by him, he found strait way that she was bone of his bones, flesh of his flesh, giving her a name, testifying she was taken out of Man, and he pronounced that for her sake man should leave Father and Mother and adhere to his Wife which should be with him one.  

Now Man and Woman are one.  
NOw because Adam hath so pronounced that man and wife shall be but one flesh, and our Law is that if a feoffment been made jointly to john at Stile and to Thom. Noke▪ and his wife, of three acres of land, that Thomas▪ and his wife get no more but one acre and a half, quia una persona, and a writ of conspiracy doth not lie against one only, and that is the reason, Nat. br. ●o. 116. a writ of conspiracy doth not lie against baron & feme, for they are but one person, & by this a married Woman perhaps may either doubt whether she been either none or no more than half a person. But let her been of good cheer, though for the near conjunction which is between man and wife, and to tie them to a perfect love, agreement and adherence, they been by intent and wise fiction of Law, one person, yet in nature & in some other cases by the Law of God and man, they remain divers, for as Adam's punishment was several from Eves, so in criminal and other special causes our Law argues them several persons, you shall find that persona is an Individuum spoken of any thing which hath reason, and therefore of nothing but velure de Angelo, vel de homme, fol. 154. in Dyer, who citeth no worse authority for it then Callepinus own self, seeing therefore I list not to doubt with Plato, whether Women been reasonable or unreasonable creatures, I may not doubt but every woman is a temporal person, though no woman can be a spiritual Vicar.   

Of Hermaphrodites.  
OF Hermaphrodites I have some kind of doubts, not whether they been persons, but what persons they been, If a man die seized, leaving 3. children which be all Hermaphrodites, whether the eldest shall have all his land, or that it been partable as among coheires. Also if the eldest been a Hermaphrodite, and the other 2. fair young Virgins which way jetteth the descent. Bracton in his first Book, Cap. 7. saith, Hermaphroditus comparatur masculo tantum, vel feminae tantum, secundum praevalescentiam sexus i●calescentis, that is, it must been deemed male or female, according to the predominance of the sex most inciting.  
And as I remember I have read the like division, 
V●. Britt. Cont. sol. 1678.  Bracton in his first book the 30. Chapter fol. 438. where he showeth that a man shall not be tenant by the courtesy Si partus declinaverit ad monstrum, & cum clamore emitteret deberet, emisit rugitum, saith, it is not partus monstrosus, licet natura membra m●nuerit, vel ampliaverit, ut si quis habeat digitos, aut articulos sex vel plures. Now than if these creatures be no Monsters, but are in conjunction to take on them the kind which is most ruling in them, this must needs be understood in matrimony, and consequently they may have heirs, which being granted, why may they not be heirs according to the prevalescence which Bracton speaketh of: if I were to furnish myself a house, I would place no picture or Image in any parlour, dining or bedchamber, but it should be of good seemly and natural proportion, Satyrs and Centaurs should come no nearer than the post at my door. And at the threshold of this my treatise, or as it were a little behind the door: I will leave these deformed Children of Mercury, or Venus, suffering them to enter no further.    

SECT. III. The punishment of Adam's sin.  
Return a little to Genesis, in the 3. Chap. whereof is declared our first parent's transgression in eating the forbidden fruit: for which Adam, Eve, the serpent first, and lastly, the earth itself is cursed: and besides, the participation of Adam's punishment, which was subjection to mortality, exiled from the garden of Eden, enjoined to labour, Eve because she had helped to seduce her husband hath inflicted on her, an especial bane. In sorrow shalt thou bring forth thy children, thy desires shall be subject to thy husband, and he shall rule over thee.  
See here the reason of that which I touched before, that Women have no voice in Parliament, They make no Laws, they consent to none, they abrogate none. All of them are understood either married or to been married and their desires or subject to their husband, I know no remedy though some women can shift it well enough. The common Law here shaketh hand with Divinity, but because I am come too soon to the title of Baron and feme, and Adam and Eve were the first and last that were married so young, it is best that I run back again to consider of the things (which I might seem to have lost by the way) that are fit to be known concerning women before they be fit for marriage.   

SECT. iv The Ages of a Woman.  
THe learning is 35. Hen. 6. fol. 40. that a Woman hath divers special ages, at the 7. year of her age, her father shall have aid of his tenants to marry her. At 9 year's age, she is able to deserve and have dowry. At 12. years to consent to marriage. At 14. to be horse du guard: at 16. to be past the Lords tender of a husband. At 21. to be able to make a feoffement: And per Ingelton there in the end of the case, a woman married at 12. cannot disagree afterward, but if she be married younger, she may descent till she be 14.  
The age of 7. years, when Bracton wrote this aid, for making the son a Knight, or marrying the daughter, was due de gratia & non de jure, and pro necessitate & indigentia domini capitalis: measured by the indigence of the Lord, and opulence of the tenants: But West. 1. Cap. 35. in the third year of Edward 1. the Law was made certain, the Lord shall have aid of his tenants, as soon as his daughter accomplished 7. years age-for the marriage of her. Viz. xx. s. of a whole knight's fee, and xx. s. of xx. I. ●and in soccage, and so forth, according to the rate more or less.  
The King shall have this aid according to this proportion, by a Statute made 25. Ed. 3. and for this aid every Lord may either distrain or bring his writ de auxilio habendo at his election, but tenant by grand serjeanty, or petit, shall not pay this aid. Mich. 21. He. 4. fol. 32. no more shall copyholders', as seemeth by the writ, both in Fitzherbert and Bracton, for it is, Precipimus ut habere facias rationabile auxilium de Militibus, et liberetenentibus. Now if the Kings writ run for it before the Statute, how is it that Bracton saith it was due, but the gratis, That perhaps he meant but for the quantity, ipse videri●, if the father die, the daughter being unmarried, she shall recover so much as was gathered and not paid her at the hands of the executor or heir, but this aid is only for the marriage of the eldest daughter, and not for no daughter, where many make but one heir: But see Bracton fol. 36. b. Where he saith, primae genitae filiae non dabitur auxilium tale, quia istud auxilium pertinet ad Cap. dom. sicut pertineret si non esset nisi unus haeres cum omnes sunt quasi unus h●eres.   

SECT. V A Woman compellable to serve.  
THe next age of a Woman is 9 years when she is dowable, but we will stay a while with the virgins, concerning whom, if they be in the power and governance of parents, masters, or prochein amies, or if they be poor, the Law differeth little or not much from the common form appertaining unto males, unless it been in cases of rape, which I reserve to the end of my discourse, where the poor have least need of subsidy, only this I observe here, By a Statute made 5. Eliz. ca 4. Two justices of peace in the Country, or the head officer and 2. Burgesses in Cities, etc. may appoint any woman of the age of twelve years, and under 40. being unmarried, and out of service, to serve and be retained by year, week, or day, in such sort and for such wages as they shall think meet, and if she refuse, they may commit her to prison, till she shall be bound to serve.   

SECT. VI Of Heirs.  
But leaving this sort to the title of day laborers, come we to women wards in the custody of their lords. And take for the foundation here the Statute itself West. 1. Cap. 22. This Statute expressly reciting the material point of the Statute of Merton, willeth it in every of them to be observed, Merton Cap. 6. and the Statute of Merton is this, Whosoever lay person shall be convicted be he parent or other, to have detained, abduced or married puerum aliquem, he shall yield the value of the marriage and be imprisoned until ye have both made amends to the party damnified, if the ward be married, and satisfaction to the King for the transgression hoc de haerede infra 14. etc. but if any heir of 14. year's age, or upward till 21. shall marry himself without gréeing with his Lord to defraud him of the marriage, where the Lord offered him a convenient marriage, and without disparagement, there it shall be lawful to hold the inheritance until and after the full age of 21. years, by so long time as shall suffice to reap and receive the double value of the marriage, secundum est inationem legalium hominum et secundum quod p●oeodem maritagio prius fuerit oblatum, sine fraud & malitia, et secundum quod probare poterit in Curia Dm. Regis. Let us speak of heirs, and see a little in what cases a woman shall inherit, It is known to all, that because women lose the name of their ancestors, and by marriage usually they are transferred in alienam familiam, they participate seldom in heireship with males, and therefore Bracton is bold to say, Nunquam ad successionem vocatur femina quamdiu haeres superfuerit ex masculis, but to this rule he subjoineth exception and examples, the very same which are in Littleton, To wit exception of right line, right blood and manner of giving.   

SECT. VII. Of the right Line.  
A Female may be preferred in succession before a male by the time wherein she cometh: as a daughter or daughter's daughter in the right line is preferred before a brother in the transversal line, and that aswell in the common general tail, as in fee simple, for example, land is given to a man, and to the heirs of his body, who dyeth having issue two sons, of which the eldest dieth, leaving issue a daughter, this daughter shall inherit by the right of blood, also a woman shall be preferred propter jus sanguinis: Example, a man hath issue a son and a daughter by one venture, and a son by another venture, the first son purchaseth in fee, and dieth without issue, the sister shall inherit. So it is where a man seized in fee hath issue, ut supra, and dieth, his eldest son entereth and dieth without issue, etc. Bracton who hath both these cases, disputeth here as if he were seeking a knot in a bulrush, and he findeth a difference where the inheritance is Discendens and Perquisita. But Littleton is plain though the second son be heir to the father in the last case, and therefore should have had the land, had the eldest son never entered, yet the case being as it is: possessio fratris de feodo simplici facit sororem de integro sanguine esse heredem. & whether the fee was descended, or perquisit what skils it, here it must needs be, if the brother was heir of the blood of the first purchasor, that the sister of the whole blood is so too, yet there is a great difference between land purchased by him that died seized, and land descended unto him, for the first may go to the heir on the father's side, & for default of such to the heir of the mother's side, but land descended must always go to heirs of the blood of the first purchaser, and the case may be such that a female shall carry away inheritance from a male, though there be no difference of right line, or in the integrity of blood, which Bracton calleth jus sanguinis duplicatum: as where john Stile purchaseth in fee, & dieth without issue, an ant or ants, or uncle's daughter on the father side, shall inherit before an uncle, or uncle's son on the mother's side, where they be both collateral and the integrity or neernes of blood is alike. Put case, that the purchasor died leaving issue only john the younger, and this john married or unmarried dieth without issue, now cannot the land go to the heirs on the part only of the mother of young john, and therefore ye must ascend a step higher to the marriage of the father and mother of the first purchasor, if ye will find who shall inherit, where if there be neither brother nor sister to the purchasor, a daughter to the eldest uncle on the father's side may inherit before any of the mother's side, yea and before a son of the second uncle on the part of the father, and this by the worthiness of blood. I will not examine the crainkes of descent, but turn to the case, where possession of the brother excludeth a brother and taketh in a sister: If a man hath issue a son and daughter by one venture, and a son by another, and give land to the eldest son in tail, now if the father die and the reversion in fee descend to the eldest son, who likewise dies without issue of his body, the second son shall have this land: For here was no possession, but an expectance of fee simple in the eldest. Per omnes justiciarios de Communi Banco. 24▪ E. 3. fol. 13. For it is possessio fratris & non reversio fratris, etc. Yet Thorpe justice of the King's Bench thought the land should go to the daughter, Brook con. Brooke descent. 13. Again, afine was levied to I. and A. his wife in tail, the remainder in fee to A. they had issue a son, and the husband died, the wife took another husband, by whom she had issue another son and died: the eldest son entered and died without issue, the collateral heir to him entered as into the remainder in fee, and the youngest son of the half blood, to execute the fee, brought a Scire facias, which was holden good, for though the eldest might have charged, forfeited or given the fee simple by atteinder, yet it was not actually in him, and therefore the demi sank none impediment but the younger son might have it, as heir to his mother, 24. E. 3. fol. 30. Which cases prove, that the possession of a brother to convey the fee to a collateral heir, if it be not apprehendeth actively, the general heir to the common ancestor may enter, Therefore where there is a son or daughter by one venture, and a puisne son by an other venture, if the father die seized of an advouson or a rent, and the eldest son died before he present or receive the rent, the daughter shall not inherit, and if the father die seized of an use in fee, possessio fratris facit sororem esse haeredem: by taking the profits of the ground. 5. E. 4. 7. Where it is said that if the father by testament bequeath the profits for term of years, this letteth not the possession of the eldest brother: otherwise it is, if it had been for term of life, and the like difference is (by this book) if a lease be made for years or for life of lands not in use, etc.   

SECT. VIII. Where the manner of gift altereth the descent.  
Bractons' first exception to his general rule, that a Woman shall not inherit, when there is an heir male, is, Nisi contrarium faciat modus donationis. His example is, A man giveth land to one in marriage with his daughter, to them two and to the heirs of their bodies, they have issue a daughter, and the husband dying, the wife taking another husband, hath by him a son and dieth, the daughter shall inherit per modum donationis, the case is plain.  
But Littleton hath a limitation, where modus donationis, doth clean exclude Women from inheriting, That is, where lands are given to a man & the heirs male of his body: now if he die having issue a son and a daughter by one wife, and a second son by a second wife, the daughter can never inherit, nay, if he die having issue a daughter only, which daughter hath a son, neither daughter nor son shall inherit, for whosoever shall inherit by force of an entail made to heirs males, must (per modum donationis) be males & convey his descent to it per heirs males, which because the son cannot do here, the donor may reenter. But Littleton saith also (lest women should take the matter unkindly at his hand) that where land is given to a man, & to the heirs females of his body, his issue female shall inherit per formam doni & not the issue male: for the will of the giver must be observed. He hath another case which I may not omit: When lands are given a man, & to the heirs males of his body, which have issue 2. sons, & the eldest dies having issue a daughter, if he lease the land for term of years, the reversion descendeth to the son: but if the lease been for term of life of the lessée, the reversion and the fee simple descendeth to the daughter, the discontinuance is the cause, & here the daughter is in not in the per, but contra modum donationis by violating the will of the giver.   

SECT. IX. Where a woman coming to lands shall retain them, etc.  
NOw I will show you where a female having gotten inheritance: per modum donationis, or otherwise, shall retain it, and where not. Mark well this case, john died seized of fee, leaving issue Robert the eldest son, and Richard the puisne: Robert entered, took a wife and had issue Alice, which Alice died, he took another, and leaving her great with child he died, the Lord seized the land and ward of Alice, and granted the custody to one which endowed the wife of Robert, she was delivered of a son William, The Lord seized William his ward which lived ten years, and died without issue, Henry the son of Richard the second son of john entereth, Alice entereth upon Henry, and he brings an assize: now because the possession of the Lord was seisin and possession of William, to whom Alice was but of the half blood, it was awarded that Henry should recover. But by the opinion of the Court, the land which the wife held in dowry should go to Alice: for therein William had 
Broke dispent. pl. 19  no more but a reversion 8. Assisa pl. 6. Again, Henry seized of tenements deviseable in Winchester (where the Custom is, that he which is seized by devise may not with warranty or without warranty make alienation to bar the reversion or remainder (deviseth them to his wife Alice for term of life, the remainder to Th. his son for life, so that Th. should make no alienation: quo minus tenementa devenirent propinquioribus haeredibus de sanguine puerorum post mortem predicti Thom. Henry died having issue Steven an elder son, and Maud a daughter, which had issue Eliz. Steven died without issue Alice, the wife entered and died seized, Tho. entereth and alieneth in fee with warranty: Ma●d dieth, Elizabeth maketh claim by taking the haspe of the door in her hand: Tho. dieth without issue, Eliz. entereth upon the alienee, he putteth her out she, bringeth an assize.  
It was holden that the heirs of Henry had nothing in the fee simple by the limitation, which went not to his children, but to the next of blood to his children, excluding says infants demesne, And by Wilby, if B. make a lease to Alice for life, the remainder to the nearest of blood, if he die having issue 2. sons, and the eldest dye having issue a son (though this issue be heir to B,) the other son after the death of Alice shall have the land as nearest of blood, and (by Green and Seaton) if there had been several issues, of divers sons and daughters to the devisor, when the remainder vested it should have gone to them all. But here because the daughter of him had issue a daughter when the tenant for life died, and there was not issue of any son, at the instant to take from her, or with her, this Daughter's Daughter shall have all, and though there came an after borne son of any of the brethren, she may detain all, etc. for a remainder vested is not like to fee simple descended to a daughter, where a son Posthumus may enter. And if lands be let for life, the remainder to the right heirs of I. & if I. die having issue a son, which entereth after the death of the tenant for life, & then dieth, his son shall have nothing, because he was not capax at the fall of the remainder, likewise where there is a brother & sister, & lands are let for life to an estranger the remainder to the right heirs of the brother, if he and the tenant for life die, the sister may enter, and retain the possession and fee, though the brother's wife be afterward delivered of a son: in like sort did the remainder rest in the child of Ma●d in Eliz. viz. which recovered by award, 30. Assi. p. 47. But where there is father and son, which son purchaseth and dieth without issue, and an uncle entereth, if two years after the father hath a son by the mother of the purchasor, this son may enter and put out the uncle, and the reason of Law is that he that comes in by purchase must be capax, at the time when the purchase vest in him, but in case of descent it is not so requisite. Perk. in his Chapter of devises saith, that if a devise been made to a college, which is not a college at the time of the devise it is a void devise, although afterward it be made a college: & upon the same reason, is Dier 13: Eliz. 303. of a devise to an infant in ventre sa mere: And where a man dieth seized and his daughter entereth, etc. a son borne afterward may enter, but it is not so in case of purchase, etc. for if a woman consent to a ravishor, & her daughter and heir enter by the statute, 6. R. 2. ca 6. the son Posthumus shall not put her out, no more shall he, where a daughter and heir entereth for condition broken, and where a daughter hath a villain by descent, which purchaseth & she entereth into the perquisits an after borne son her brother shall have that which descended, viz. the villien but not the land: these cases hath Brook Descents, 58. out of the Doct. and Student, 5. Ed. 4. fo. 58. in the case of Elizabeth Venor, agreeth concerning entry made by 6. Ri. 2. And so doth Hales and Montague, in the case of Wimbish and Talbois, yet Montague Chief justice taketh there a learned difference if a man devise land for life, the remainder to the right heir male of the devisor, & the heirs of his body, etc. now if the devisée for life die, and a woman which is heir general to the devisor entereth, and hath afterward a son, the son shall never out the mother in whom is vested the inheritance for want of other persons to take the falling remainder: per le melior opinion 9 H. 6: yet (he saith) the cases of ravishment possession of a brother, abatement of a bastard, &c, are all to be understood of fee simple: for where the entry gaineth but estate tail, one may beat the bush and another take the bird, so if a man seized by descent from his mother make a feoffment with condition, etc. and die without issue, if a woman heir on the father side enter for condition broken, an heir male or female on the mother's side may oust her. Blow. etc. fo. 56. a. b. & 57 a.  

West. 1. ca 22.  
THen West goeth on with heir females, that so soon as they come to the age of fourteen years if the Lord for covetousness will not marry them, yet he shall not keep their land above two years after they have accomplished 14▪ within which two years if they be not married by their Lord, they may take action against him for their inheritance, to recover it without paying any thing for the custody or for marriage. If so be that of their proper malice or through the mischievous counsel of others, such women refuse convenable marriage offered by their Lord, he may in this case retain their land until they be of 21. years, and longer until he shall receive the value of their marriage.   

Littleton's words upon this statute in his 2. book cap. 4.  
BY Littleton if tenant by service of Chivalry die, his here female being 14. years old or more▪ the Lord shall have custody neither of the land nor body, for at that age a woman may have a husband able to do knights service, but if such an heir be under 14. and unmarried at the time of her ancestors death, the Lord shall have ward in her land until she be of 16. year's age, West. 1. cap. 22. which getteth the Lord 2. years to tender marriage without disparagement, and if during these two years the Lord tender no such marriage she may enter and oust the Lord. If such an heir female be married under the age of 14. in the life of her ancestor, which ancestor dieth before she accomplisheth 14. years, the Lord shall have no more but the wardship of her land till she be 14. years old, and then her husband with her may enter into her land and put the Lord out, for this is out of the Statute, because the Lord may not tender marriage to her that is already married, for before the Statute of West. such an heir female that was under the age of 14. at the death of her ancestor, and had atteined afterward to the age of 14. years, without any tender of marriage by her Lord made unto her, might well enter into her land, and put out the Lord, as appeareth by the rehearsal and very words of the Statute, which as it seemeth (so saith Littleton) was made altogether for the advantage of the Lord.   

A suspicion of Littleton's error.  
NOw saving Mr. Littleton's inspiration, I am greatly afraid that ye shall not find by the text of the Statute, That an heir female, being under 14. at the death of her ancestor, might by the common law before this Statute, enter and oust her Lord, as soon as she had accomplished 14. year of age without tender of marriage. The law perhaps was so, but this Statute proves it not: Again, I doubt, Littleton was deceived, in taking this Statute to be all for the advantage of Lords, yet it is likewise said by Davers 13. H. 7. 11. that this Statute was made for advantage of the Lords.   

Glanvill ibro. 7. cap. 12.  
Hear what Glanvill saith, women shallbe in ward until they be of full age & the Lord shall marry them being of full age, every one of them, with their reasonable portion, & thoughthey be of full age they shall remain notwithstanding in their Lord's custody until they been married by his advice, for by the law of the land, no woman heir can be married, but by her Lords disposing and assent. In so much, that whosoever having a daughter or daughter's heir or heirs, shall in his life time without 'gree of his Lord marry any of them, he suffereth by the right and general custom of the Realm perpetual disinherison, without ever recovering any thing, but by the grace & mere mercy of his Lord. If it be proved that any woman holden in ward do forfeit with her body, she shallbe deprived of her heritage, & her portion shall go and accrue to her parceners. And if they all offend, the whole heritage shall fall as escheat to the Lord. But after such heirs be once lawfully married, though they become widow afterwards they shall no more be holden in ward, nor then by their incontinency can they forfeit any inheritance. But yet they may not remarry without their Lords assent. Thus far Glanvill.   

Bracton his 2. Book cap. 37.  
BRacton, who (as it may very well be gathered) wrote one half hundred years after Glanvil, and but very little before the making of West. 1. In his 2. Book and 37. Chap. finding it a question, at what time an heir female should be out of ward, whether at 14. or 15. or at 21. acknowledgeth a greater capacity of deceit, and maturity of desire, to be in women then in men.  
And that therefore, a woman might be out of ward at 14, and marry, because, at that age she is able disponere domui suae et habere cone et key, et virum sustinere, that is to order and dispose, a to have, the key clog at her girdle, and to be a jolly stay unto a man. But this early emancipation of women heirs he taketh to be only of such as inherit land of socage tenure: for drawing toward the end of the Chapter he falleth in with Glanvil, And saith of heirs coparceners in Chivalry, si ab initio omnes maiores extiterunt nihil ominus in custodia dominorum ●rint donec per consilium et dispositionem eorum maritentur: quia sine ipsorum consilio et assensu, mulier haereditatem habens maritari non potest non etiam in vita antecessorum, &c. quod si olim fecissent, hereditatem amitterent: sine spe recuperan●i nisi solum per gratiam. Hodie tamen aliam paenam incurrent. And presently he showeth the reason why they might not marry without their Lords assent viz. lest the Lord might be constrained to take homage of his capital enemy, or of a man altogether unfit or unworthy.    

SECT. X. How the law came to a certainty in the point of a woman's being out of ward.  
CHoose now whether ye will learn of Glanvil and Bracton, what the law was in their time, or of Mr. Littleton, that wrote many score years after the making of Westm. 1. In mine opinion, neither did this law bring any advantage to Lords, neither doth it show that heirs females, oftenants in Chivalry, might enter at 14. years, neither is there any clear proof that the law was clearly so taken. The letter of the Statute doth not expressly give 2. years to tender marriage, but rest raineth covetous Lords, that they shall not hold the land above 2. years after the 14. which séemech plainly to import, as it is reasonably taken both by Needh. & Billing 35. H. 6 that before the making of this law, the age of male and female in this point, took no difference. I may be asked, how it cometh then to pass, that the law is so clear in that which Littleton concludeth withal, viꝪt. That the Lord shall not have two years to tender his woman ward marriage, save only where she is under 14. and unmarried at the death of her ancestor: before the Statute, it was either out of doubt, that a daughter and heir, should not be clean out of ward. at 14. or at the least it was doubted, whether she should or no: and the words of the Statute whatsoever Mr. Littleton saith, maketh not the matter plain enough. But we have the help of Reverend Prisot, in the Book above mentioned. 3. 5. Henrici 6. Westm. 1. (saith he) was made in the time of Edward the first, who purposing to put all the law into certainty, and in writing, begun to makes Books thereof, by help of the most sage men of the law in this Realm, judges and others. And he made a Book two years after the making of this Statute in which all the Statute is rehearsed, which book goeth on, and saith by express words: that no woman shallbe said to be under age, thereby to be in ward after she is past the age of 14. Thus saith Prisot. By him therefore and by other justices in the Exchequer chamber it was ruled clear, that where the King's tenant in Chivalry died leaving his daughter and heir of the age of 15. year, she should not be in ward. And Billing saith for law, that if between the 14. and 16. year, when an heir female is in ward another ward falleth which holdeth in Chivalry of the first, the Lord shall not have guard, per cause de garde, for the first ward is out of his power to all intents excepting only tender of marriage. And another justice saith, if a tenant hold ofone lord bypriority, & of another by posteriority, the daughter heir under. 14. shall be in custody of the anteriour Lord till she be 16. but she may enter upon the land by posteriority, as soon as she cometh to 14. likewise if the Lord hath once married this woman-ward, after the age of 14. she may presently, enter into her land: for now the Lord hath had all that, which to him belongeth, the marriage. And the course of the Chancery is to make livery, before: 14. cum exitibus, but after 14. livery tantum: vid. 4. Eliz. 213. Dyer. & Dyer. 20. Eliz. 362. 1. Hen. 720. on livery for then such an heir is to have the profits by the law. To come to an end of this matter, I will not forget, that even in Mr. Littleton's days very near two hundred years after the making of West. 1. by the last Statute, that ever Hen. 6. made in the year of his reign. 39 ca 2. it was established by Parliament that women being of the age of 14: years at the death of their ancestors, without question or difficulty shall have delivery of their lands and tenements descended to them: for so the Law of the land wils.   

SECT. XI. A search for the true reason, why a woman is horse du garde, at the age of 14. years.  
THe principal reason that moved our law founders, so soon to set women out of ward is none other than hath been already declared, she is quickly able domui preesse, viro subesse, and her husband for her shall do Knight's service, or some other for him, and in his stead, the cases are therefore 26: H. 8. fo. 2: If the King's tenant in chief, having feoffees to his use, marry his daughter, under age, to a man of full age, and dye, this daughter, being heir, is out of ward for her body though not for her land: for that shallbe in ward in this case, an the King's possession must be voided by suit and livery. But had she been of full age of 14. years at her father's death, no such thing had needed, neither should she have been in ward, nor the King have any primer seisin: For that was not as yet seen into by the Statutes of H. 7. which had given ward, relief and herriots upon the death of him, which died intestate and seized of only a bare use: again, if the King have a woman ward which he marrieth before she be 14, she shallbe be to all intents out of ward at 14. and may immediately sue her livery. 28. H. 8. for as a ward masculine, married by his Lord under 21. shallbe sui luris at 21. so shall a ward feminine being married before 14. be out of ward at 14. altogether. In the old Natura brevium in the writ de electione custodiae. it is said, that where the tenant marrieth his daughter being under age, to a man of full age, & dieth, the daughter shallbe out of ward. But if he marry his daughter, being of full age, to a man under age, and die, she shall be in ward. This Mr. Brooke taketh to be no law: even so do I: his reason is, that no Lord can have the marriage of her that is already married, or compel any heir to be twice married. For if a tenant marry his son and die, and then the son's wife dieth holden, the Lord shall not have his body in ward to marry him. Which is clear: specially if the son were infra annos nubiles at the time of his father's death. But certainly, if the Lord couple his ward to a wife which dieth, the ward is at full liberty for his body, and shall not be married by his Lord.  
The reason why an heir female of full age married by her father to a man under age, should not be out of ward, must be because the supposition of law faileth: her husband is not able arma portare & officiis fungi militaribus, vel pro iisdem faciendis cum alio pacisci. But this notwithstanding, me thinketh a woman married, should be out of ward for all her husband's nonage, thought the woman be but twelve years old a boy knight shall be out of ward for his body: shall a woman innupta & matura viro be in keeping of any but her husband, shall she at 14. year's age be ward because she hath a husband but 19 year olds, who should not have been in ward had she had no husband at all? non videtur. The husband's ability to do soldier's service, is neither the only nor the principal cause in mine opinion, why a woman is by law out of ward at 14. year's age. But law going with the trace or tide of nature, that hath made women (as Bracton saith) fit to carry cey and key cloge betimes, suffereth them to marry very early: And it should be a mischievous, inconvenient, unjust, and unnatural law, that should hold a woman from her husband, or from her inheritance, which is without offence of law married, & fully able to bring forth children, because her husband is not fully fit for all manor of horsemanship. Be not therefore good woman absterred from a young husband, by old natura brevium.   

SECT. XII. How a woman that hath been in ward, shall come by her land.  
A Woman past 14. years of age at her ancestors death shall not be in ward: And where she is in ward till 16. she may have action at 16. against her Lord for her inheritance, according to the Statute. By Littleton, she may enter which standeth with reason, for the Statute giving action to her affirmatively, doth not disaffirme the entry which she might have had, by the ancient catholic Common law: if she cannot or dare not enter, she may have alone (if she be alone) or with her fellows (if she be a coheir) a writ of mortdancester, as well against her Lord as against any other abator. Marlbridg ca 16.  
But if she be ward to the King, against whom a mortdancestor, writ of Ail, Besaile or Cozenage than it melts into petition, and she must sue for livery. And where the King hath a woman in ward with some lands holden of other Lords in socage, such a ward shall not so soon as she is 14. year old have livery of that socage lands, but she must arry unless she be married, in the mean while till she be 16. because livery must be at once parcel, & not by parcels. Yet if 3. copartners be in ward to the King, she which first cometh to age, shall sue her livery, and have partition upon it.   

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

SECT. XIII. Difference between partners and jointenants.  
FOr although partners have a conjoined estate, yet law maketh a great diversity betwixt them and jointenants: Partners by the common law, are only females or the heirs of females, which also must be in, by descents, for if sisters makeajoint purchase they are jointnants, and not partners. Betwixt whom observe here the germane & apparent difference: If two coparceners be of lands in fee simple, whereof one before partition made chargeth her part with a rent & dieth without issue, her coparcener taking as heir and by descent, shall hold the land charged. But it is otherwise betwixt jointenants.  
Also partners may devise and give away their part by testament, so cannot jointenants.   

SECT. XV. Difference between partners and tenants in common.  
ANd as in the cases precedent, partners are like tenants in common, so in that which followeth they are like jointenants. If two sisters enter into their deceased father's lands, and every of them having issue a son, dieth before partition, so that one moiety descendeth to one son, and one moiety to another, which sons enter and occupy the lands in common, if they be now disfeised they shall have but one assize and not several assizes. Because although they come in here by divers descents, yet still they are partners, and that not only in regard of the seisin & possession which their mothers had, but rather in respect of the estate which descended to their mothers from the common ancestors, the grandfather, to whom they are but one heir, so that of a disseisin before partition, they shall have but one assize.   

SECT. XVI. Difference of partners from both jointenants and tenants in Common.  
BY Bryan, 10. Ed. 4 fo. 3. one copartner may in feoff another copartner, for though their possession be joint, yet their right and interest is severed, so that if one sister die, the other shall claim a moiety by descent from her, and not the entire inheritance from the Common ancestors.  
Partners in this therefore are like tenants in Common, whose title and right are separated, and therefore they may infeoff one another.  
But it is otherwise with jointenants, whose right is entire and goeth with the possession by survivor. Again, partners may release the one unto the other, and in this they are like jointenants only, for if one tenant in Common release to his fellow, his moiety passeth not, because that he to whom the release is made, hath in the frank tenement of this moiety no possession. But partners whose right is from one root have a more co 〈…〉 ect possession then tenants in common, and may release one unto another.  
To conclude this point, partners differ from both jointenants and tenants in common in this, that partners are and always were compellable to make partition, so was neither of the other two before the Statute 31. H. 8. cap. 1. which ordaineth that jointenants & tenants in common of inheritance, which in England or Wales in the right of themselves or their wives, shallbe compellable by writ de participatione, to be devised in Chancery to make partition: And that after partition, they and their heirs shall have mutual aid one of another, for the deraigning of a warranty peramount, to recover pro rata, as is used betwixt partners at the common law.  
Afterward. 32. H. 8. cap. 32 it is ordained, that if any have equal estate with others or in common jointly for term of life or for years, or unequal estate, with such as have an adhering inheritance, they shall likewise be compellable to make partition: Provided, that this shall not be prejudicial to any person, other than the parties to it, their executors or assigns.   

SECT. XVII. Of the Nuper obiit.  
But ere we go any further in partition, let us see what actions may lie betwixt partners for their inheritance before they have divided it.  
And first, of the Nuper obiit, This is a writ and commandment of the King to the sheriff to summon a coheir to be before the King's justices at a day certain, to show why she or he (for it lieth betwixt parcenersin Gavell kind also) deforceth the plaintiff coheir from her reasonable part belonging to her, of the inheritance of I. S. their grandfather, father, uncle, brother, grandmother, aunt, sister, or cousin (as the case requireth) whose heirs they be: & qui Nuper obiit, ut dicitur. This writ lieth for lands holden in fee simple, only betwixt coheires, where one or more of them deforceth or holdeth out his or their fellow coheir or coheir, etc. It must be brought in the name of all those which be deforced though in verity there be but one that sueth. And this 1. may have a writ of summoneas ad sequendun against her negligent copartners, who if they appear not, the sole plaintiff shall be received to sue for her portion against the deforcer: If after the ancestors death, a kinsman enter claiming by descent, the Nuper obiit lieth not against him, but after entry and ouster, an assize of novel disseisin or a writ of right, for though coheires may have Amordancester against a stranger, yet can they not have it against one of their own parenteale, privy in blood, and claiming by the same descent, and where a writ of right sometimes is between sisters, as where one is enfeoffed by deed and another claimeth by descent, battle lieth not, nor the grand assize, but an inquest in licu thereof. Thus far, V N. B.  
The New. Na. Bre. not disagreeing saith further. That if one sister deforce another of the land whereof her ancestor died seized in estate of fee tail, the remedy must be by form done, and not by Nuper obiit, a Nuper obiit may been brought of the seisin of the ail, besaile or the tresaile, and if it be brought of the seisin of the grandfather, Darreigne seisin in the father is no good plea without showing that he died seized.  
This writ may be brought, by the aunt against her sister and niece, or by the aunt and niece, against another sister & niece, or by one sister against another, that is but of the half blood. But if the father give part of his land in frank marriage to one daughter and dye seized, etc. the donée in frank marriage, shall not have a Nuper obiit against her sister for her part in residue of her father's fee simple land, unless she put her land in hotch pot which was given in frank marriage. A nuper obiit must be brought by a coheir deforced, against all the other coparceners, though some of them have nothing to do in the demand.  
A villain and his wife, shall not have a Nuper obiit against the coparceners of his wife, for he is not enfranchised by marriage with one of those seignioresses to whom he was bound. If a coparcener be deforced by a coparcener and by astranger, the deforced may have a Nuper obiit against her coparcener, and jointenancy abateth not the writ, no more shall non-tenure of parcel of the thing demanded, by rule of the register. If two coparceners enter after the ancestors death, and deforcing a third parcener, do afterward make partition, and then one of them alieneth her portion in fee, the deforced partner may by a Nuper obiit against her two coheires (notwithstanding the alination) recover a third part of that which is not aliened and a third part of that which is aliened by a mortdancester or writ of Ail (as the case lieth) and in her own name, and in the name of her two coparceners against the alien●●.  
If one coparcener infeoff a stranger in fee, and take back an estate in fee or for life, it seemeth a Nuper obiit is maintenable still against her so long as she disclaim not in the blood, etc. But 21. Ed. 3. and 45. Edw. 3. is contra. But several tenancy, or non-tenure is no plea in a Nuper obiit for the privity of blood. But a sister may claim by purchase, and disclaim in the blood, and this is a good plea. If one coparcener die leaving issue a son, which son infeoffeth a woman in all the land, etc. & then marrieth her, now cannot the other percener have a Nuper obiit against the baron & feme. But she may have a mordancestor in her own name and in the name of the seizure which the father had the day of his death, for that amounteth to a dying seized see Novel not. br. 197. etc.   

SECT. XVII. Of the writ of right de rationabili parte.  
THere is also another Writ, called a writ de recto, de rationabili parte that never lieth but betwixt privies in bleed as betwixt brothers in gavell kind, or betwixt sisters, nephews, nieces, etc. It is also for lands in fee simple, as where the ancestor leaseth land for term of life, and dieth having two daughters, and after the death of tenant for life, one of the daughters entereth into the whole inheritance and deforceth her sister, the deforced may have this Writ, it is maintenable by two or three sisters against the fourth, or by an aunt, or niece against a sister that deforceth, and this writ lieth as well where the ancestor died seized, as where he died not seized. It is in nature a writ of droit patent, & must be directed to the Lord of whom the land is holden, from before whom it is removable by a Tolt, as the Haught writ is, where the ancestor dieth seized, and one coheir deforceth another (whether it be in gavel kind, or amongst partners at the common law) the deforced hath election of this writ or of the nuper obiit. But when he died not seized, and a coparcener afterward deforceth, the Nuper obiit lieth not: The form of this writ is, Precipimu● to the Lord, ut sine dilatione plenum rectum teneas A. de decem acris cum pertinentii●, quas clamat esse rationabilem part de libero tenemento quod fuit I. patris, vel etc. & tenere per liberum servititum tertiae partis, etc. for it must be seen what rent and service the whole land yieldeth to the Lord, & according there to shall the plaintiff be rated in his, or her writ. If after the death of their ancestor two coparceners enter, and the one do then deforce the other of something appendent or appertenent to that which is holden in coparcenery, she may have a writ de rationabili par●e of this appendent or appertenent which shall say, quod clamat tenere ad liberum tenementum.  
If a man dying seized of lands entailed have two daughters whereof the one entereth and deforceth the other, the remedy is by formedon, and neither by Nuper obiit or Rationabili parte: If a sister, aunt, niece or cousin, claim from her ancestor by feoffment in fee, & one which should have been coparcener (had the feoffment not been) deforceth her, she may have a writ of Droit patent, and join the mice by battle, or grand assize, come semble, saith Fitzherbert, because she claimeth not as heir. But where there is no impediment, entail, feoffement, or such thing, & all the partners deforced bring a rationabili parte against all the copartners, terre-tenants (for so it must been) and the heir of an heir may sue for part of the seisin of the common ancestor, there battle, or grand assize, voucher or view lie not, neither is nontenure any plea, for the writ lieth only between privies in blood: finally, the demand in this writ must been of a portion certain as of x. acres, if xx. descend to two sisters, and the demandant if she recover, shall have judgement of so many to hold in severalty.   

SECT. XVIII. Of Partition.  
NOw of Partition, it may be made in diverse manners, as first for example by agreement amongst two copartners or more which accord to divide the inheritance into certain parts of equal value to be holden in severalty, and always the part which the elder hath is called Ini ia pars, though in this kind of partition, there be no prerogative of primer election given to the eldest.  
Another manner of partition, is where they cause certain friends to make the parts or division; & here the eldest shall first choose, & then the next eldest, and so succéedingly.  
If by their whole agreement the eldest make the division it is said (saith M. Littleton) that she shall last make election, which is as much to say (say I) as she shall have none election at all, Littleton hath another manner of alotment wherein after partition made of the lands every part being written in a seroule, and lapped up in a bale of wax, is put into a bonnet, which must be holden by some indifferent body, and then (as we use to choose Valintines every partner pulleth out a part, the first borne first, the rest after her in degree of ancientry and every one shall hold her to her chance.  
Also partition may be made in Chancery, as when one copartner of full age, and another remaineth in ward to the King, etc. in such case if she which resteth in ward at full age have not her full part, she may sue a writ of partition or Scire facias upon the record returnable in Chancery, to show why a new partition shall not be made, and partition may be of a reversion, or of an advowson.  
Of a reversion thus, that A. shall have reversion of such such lands, B. the reversion of such other lands, & of an advowson, that A. shall have every 2. 3. or 4. avoidance, etc. & this is good without deed, where partition is made of a manor without mention of the advowson it remaineth in common see that case of advowson and partition of advowson, 2. Hen. 7. 5. a.  
Partition by agreement of parceners is good in law, aswell by paroll as by writing, and if unto two copartners there do descend two houses, whereof the one is worth xx. s. and the other x. s. annually, the best house may be allotted to one copartner, and she and her heirs to pay to the other and her heirs, (for owelty or equalities sake) v. s. rend issuing out of her house, and all this is good without writing, so that the partner that shall have this rent, and her heirs may distrain for the same when it shallbe arere, of common right in whose hands soever the house charged shall come, and this shall be a rend charge of Common right had and received for equality of partition, Fitzherb. fol. 252. & Plow. 134.  
Partition of lands, that one partner and her heirs shall have and hold them from Easter to the gule of August, alone and by herself; and the other and her heirs from August till Easter in the like manner, was awarded a good partition in the time of Ed. 2. and by similitude of reason (saith Fitzherbert) it is a good partition, where two Manors descend to two Copartners: that the one shall have one Manor by name, and the other the other for a year, to change possession the next year, and so forth from year to year commutatively, betwixt them and their heirs for ever, No. na. br. 62. l. & m. Et auxi. party. que lun▪ avera le ter●. in ta. & laut. le ter. in fee simple est bone partic. And partners may make partition for term of life or for term of years, and if one Copartner lease her part to another Copartner for term of years, yet she may sue a Writ of partition against her partner the Lessée, though the term be unexpired. 33. Hen. 8. Dyer 52. is a quaere. If the one of two Copartners lease for term of years, that which to her belongeth, and after the other bringeth a Writ of partition against the Lessor, to whom in this partition there is allotted a less portion than the due, some think (saith he) that the Lessée without remedy must hold himself contented, aswell as the partner which leased; But if the partition had been without writ, quaere.   

SECT. XIX. Of partition by Writ.  
When Copartners cannot all agree to make partition amongst themselves, the aptest means to compel them, is a Writ of partition. And if there be four Copartners, one may have this writ against three, or two against two, or three against one.  
The gist of it by the old Na. bre.. is where the one entereth keeping out the other, and refusing to make partition, but l●●t. layeth it where they be all in possession, and so soundeth the Writ itself; for it is a commandment to the Sheriff, Si A. fec●●it te securum, etc. summoneas B. that she come and show why she refuseth or permitteth not partition of a Manor, or a wood, or such like, the which with the appurtenances, the said A. and B. do hold together, undivided of the inheritance of ●. their father, Mother, or, etc. Fitzherbert in his Writ of partition, setteth down the form as a Carpenter should set up a frame of a Cottage, being both to show on what soil it should stand, for he showeth not the general gist of his Writ, and that his Precedent might make plain, which is not doubtful, that when Partners are in possession, one or more may have a partitione faciunda, yet he toucheth not the question, whether a Partner ousted, or not suffered to enter, may have it.  
40. Hen. 7. fo. 9 in a Writ of partition, Keble pleadeth for his Client, that the defendant was sole seized, sans ceo, that he held pro indiviso, with the Plaintiff: by Vavisour that is no good plea, for admit that she be sole seized, yet partition lieth well enough, but by Brian Chief justice, it is & hath been adjudged a good plea, in our books, for one shall not come to divide that with another wherein he hath no part. And (saith Keble) in a Writ of waste between tenants in Common it is a good traverse, Non tenet insimul & pro indiviso, likewise is it here where we have traversed the point, and supposal of your Writ, and the party by nuper ob●jt, may recover in severalty, and partition shall be made, and it was said that the seisin of one parcener, is the seisin of both, and so the reporter thinketh, if one enter, etc. Where she which entereth claimeth in the name of herself, and of her partner I can well agree, or if she enter not denying the right of her fellow: And if after the death of the common Ancestor, A. which is one Coheyre enter silent into the whole inheritance, B the other Coheyre may now perhaps (without other entry) in the name of herself and her Companion maintain a possessory action, against a stranger, but when a Sister entereth vindicating all to herself by purchase, or objecting against her Sister, Bastardy, or Attainder, and keeping her out of possession, this I trow is no entry of both, but such a deforcing as the Writs de rationabili parte, and the nuper obijt, were made to redress: If every seisin of a partner must needs be the seisin of all those that can claim as coheyres, than there is no deforcing or need at all of the forenamed writs.  
But seeing that law hath appointed them for lands in see-simple, and a formedone for land in tail against deforcers of their coparceners, I say, that seisin of one of them is not seisin to all of them, and having a chief justice on my side, I dare hold, that non tenet pro indiviso is a good plea in a Writ of partition, which if it be brought by her that is deforced and out of possession, it cometh preposterously out of kind and season, and out of the order that our Law-founders at the first ordained, See Brook Coparceners per totum, ou entrie de un est le entry del altar vers estrange pur lour advantage, mes nemie pur disadvantage 43. Ed. 3. 19 & lentrie d'un nest l'entrie de ambideux entre eux mesmes. 40. E. 3. 8.  

By whom, and how the Writ of partition must be brought at this day.  
COheyres in Gavell kind, may compel one another to make partition by Writ, but then they must mention the custom in their declaration, If one Coparcener dye having issue, etc. her husband being tenant by the courtesy is compellable to make partition, but he cannot compel, etc. by the Common Law, for the Writ lieth naturally, for none but parceners. Fitzherbert, and the old na. bre.. have a note out of the Register, that in the 12. of King Ed. (they tell not which) there was sealed a Writ of partition at Berwick between strange persons, and there it was said it might be granted between any Coheyres or fellow tenants, without naming the heredit●●e in the Writ, where it was likewise affirmed that such a Writ before that time was never seen, aswell the other books of Law, as the Statutes of 31. H. 8. make it out of question, that this Writ by the Common Law was only betwixt Coheyres, as the two Writts which we have passed, were by custom in some special places: joint-tenants, and tenants in Common might have a Writ of partition, as Fitzherbert setteth down: by the Custom of London, Writ of partition lieth against tenant by the courtesy Littleton 264. Dyer 1. M. 98. Brief de partit. at this day lie against the Feoffée of one Coparcener, but not for a Feoffée: mes. vide Dyer 3. M. 128.  
Likewise before the Statutes, if a man were both tenant in Common, and tenant in Copartnerie, as having one third part by purchase from one Sister, and another in the right of his Wife, he and his wife might bring a Writ of partition, which see Nat. br. fol. 61.  
It hath been much doubted, whether partition by agreement betwixt tenants in Common, or joint-tenants were good without deed: But by the better opinion, 3. Ed. 4. ●. 9 & 10. such a partition is good enough if it be upon the ground: but see the books of 2. Eliz. Dyer. 179. 18. Eliz. Dyer. 350. There is also a pretty case of a mill parted between two brethren joint-tenants by an award of a third, that one should repair the mill on the one side of a certain post, and the other on the other side imperpetuum, etc. which was awarded a good partition without any writing. 47. Ed. 3. 24. & ●9. Assi. p. 1.  
It hath been also much doubted whether judgement may be given to hold in several when in assize of novel disseisin, brought by one joint-tenant or tenant in common against another, it is found for the plaintiff, as it is clear it may be if the action were betwixt partners 7. assi.. p. 10. Herle would not have given judgement to hold in severalty, had the parties been joint-tenants: But 10. Assi. p. 17. such a judgement is given and no bones made of it, yet 28. assi. p. 35. R. Thorp in like case, would give no judgement but generally to hold a moiety per my & per tont, though he were besought in the Country at the assizes, & at West. again and again for judgement to hold severally, 7. H. 6. fo. 4. Weston glanceth on such a judgement, and Strange denyeth that it may be, for it destroyeth the suruivor: But Chine saith, that it may be, and hath been often: the reason why the Law was more scrupulous in those points between tenants in Common, and joint-tenants, then between partners, was (as I guess) because coheyres have their estate by course of law, and the other are in either by the act of some body which made the estate, or by their own doing, so that though for necessity they may alien that which belongeth to them, or charge it yet otherwise the Contract made by consent may not without manifest assent be undone: Bract. saith, fo. 206. sufficit femel voluisse, nec dissoluitur mutua voluntas nisi mutua voluntare contraria. It is perceived how the law was before the Statutes, 31. & 32. H. 8. a summary of which is set down already, now that it may the better in part be understood, how the law hath been taken since those Statutes, observe the causes following, out of my Lord Dyers Reports.  
The puisne of three Coparceners of a reversion upon estate for life gavel-kind alieneth by a fine, the lessée dieth, the eldest parcener entereth into all his Inheritance, the middlemost, and the Alienée bring a joint Writ of partition upon the Statute, the eldest pleadeth the general issue, non tenent insimul & pro indiviso, the case appearing by the evidence, it was holden upon a demurrer clear, that the action was not maintainable, for the one ought to have her Writ by the Common Law, and the other by the statute, but join they could not, Quaere (saith Dier) if the entry of the eldest give seisin to the rest, that it should give it to the stranger were hard 2. & 3. Phi. & Ma. fol. 12. 8.  
One of three Coparceners alieneth that which to her belongeth, one of the other two bringeth a Writ of partition against her fellow parcener, and the alienée, upon the statute, because in this case, she might have had a Writ by the Common Law, this Writ upon the statute abated: But if the two Coparceners had joined against the alienée, and the one had been at nonsuite, she should have been summoned and severed, and her part been divided as well as the others, quaere, by the Register, when the husband unto one of three partners purchaseth one part, etc. he and his wife may have a special Writ against the third, even so it seemeth if one of three Coparceners purchase a fellow's part, the purchaser may have a special writ against the third parcener, 7. ct 8. Eliz. 243. in Dyer, by Anthony Browne and Dyer joint-tenants, cannot at this day make partition by paroll out of the county where the land lieth, for 31. and 32. etc. change not the law in this point: But the partition must be by Writ out of Chancery. Humphrey Browne and Weston: 2. Eliza. Dier. 179. a man devised socage lands to his two daughters, and to the heirs of their two bodies loyally engendered, and died, the two daughters took husbands, and at full age, etc. partition was made by paroll, one husband had issue by his Wife, and she died: By the opinion of the whole Court the other Husband, and his wife shall have the whole Land by suruivor, for partition by word only betwixt joint-tenants or tenants in Common of estate of Inheritance is void: yet of a term peradventure (saith Dier) such a partition is good enough foe 350. in Dier: If ye doubt now of any thing something more than you did before, ye are the better learned and warned to work surely.   

The manner of partition by Writ, etc.  
THe judgement upon a writ de partit. faciend. if: that division be made between the parties; and that the Viscount in proper person going to the lands and tenements by the oath of 12. loyal men of his County, make the partition, delivering one part to the plaintiff, or to one of the plaintiffs, and another part to another parcener, etc. making no mention in the judgement more of the eldest then the youngest Sister, The Sheriff must give notice to the justices of the partition which he hath made, aswell under the seal of the 12. men as under his own seal, And in this partition there is no primer election given to any: but the second may have livery before the eldest, or the younger before either of them even as it pleaseth the Sheriff.  
And this difference is between partition by Writ here, and the other partition which is by agreement: In the first the Viscount shall make to every partner, her distinct share, but in the other they may agree, that one shall hold in severalty, and the rest shall occupy that which remaineth in common. Thus fare Littleton.   

Bractons' partition.  
THere is in Bracton a large discourse of partition, which I see not why, (for the form) at this day should not be good, if not of all other the best: And this partition is by commission to men either chosen by the parties, or appointed by the King as justices or extenders, with commandment to the Sheriff to make them come before those Commissioners or extenders tam milites quam alios legales homines nulla affinitate attingentes, per quos negotium melius expedire poterit. He hath also a precept to the Coroners where the Sheriff is negligent: Tepidus & remissus in executione preceptorum domini Regis, with a rule for valuation of an advowsan, viz. that a mark annual to the parson shall be rated a shilling to the parcener to whom the advowsan shall be allotted.  
And when the extent and division is made, every part being written by itself should be delivered to a Layman altogether unlettered, which should distribute to every coheyre her part at adventure, wherewith she should stand contented: But this might be otherwise, by their agreement amongst themselves, to elect according to the prerogative of their age. Bracton descendeth deeper into examination what things may be parted amongst coheyres, exempting neither lands, tenements, homages, villinages, services, servitudes, or anything belonging to lands and tenements from division, unless it be seriantia (quae dividi non debent, ne cogatur-Rex seruitium accipere per particulas) or a castle, or the head of some Earldom or Barony, quod propter ius gladij dividinon debet sit illud castrum vel aliud edificium, & hoc ideo (saith he) ne sic caput perplures particulas dividatur & plura iura comitatus & Baroniarum deveniunt ad per nihilum quod deficiat regnum quod ex comitatibus & Baronijs dicitur esse constitutum. Therefore Caput comitatus vel Baroniae resteth indivisible, and shall go to the eldest copartner, though where there are many chief and great Mansion-houses, every one may have one perhaps, and if there be but one, every one may have part thereof, where the franktenement is holden by service military, for if a free soke-man die, whose heritage it is, ab antiquo partibilis, the eldest son (by Bracton) shall have his house, and the rest shall have allowance: Amongst other things, Bracton standeth long upon the bringing to a common heap (which we call Hodgepodge) Land's given in marriage to a coheyre, showing that though lands given in marriage (whether the Inheritance be discendens, or perquisita, and whether she to whom the land is given, be at the time of the gift a maid or a widow) must needs fall into partition, when part of the other lands is claimed (& hoc quamuis homagium interuenerit & post tertium haeredem:) yet for all that, she to whom there is given in marriage already more than an even portion, may well retain it, and is not compellable to any confusion unless she demand a share in that which remaineth, so that she to whom all is given, may likewise retain all. And where a daughter was enfeoffed pro homagio & seruitio, or where a stranger was enfeoffed of part of the inheritance, which afterwards married a daughter, etc. they might be made parcel of the other lands, without any Hotch-pott: of these things ye may read more in Bract. li. 2. c. 33 and 34 with a Writ of habere facias seisinam, for he saith, possessio non pertinet ad haeredes nisi naturaliter fuerit apprehensa animo et corpore proprio vel alieno: sicut procreatorio prius ad ipsos non pertinebit, & unde cum in curia Regis facta fuerit partitio statim habean● breve de seisma sua habenda.    

SECT. XX. of Hotch pot, according to Littleton.  
FOr putting of lands in Hodgepodge, there is no where so full, and plain learning, as in M. Littl. third book c. z. If (saith he) a man seized in fée-simple lands, having issue two daughters, of which the eldest is married, give parcel of those lands to his daughter and her husband in frankemarriage, and die seized of other lands, exceeding in value those which are given, etc. the husband and wife shall have no part of this remnant unless they will put the land given unto them in Hodgepodge: for example, If the father had 30. acres, and gave 10. now after his decease if the donées refuse to make commixtion, the other daughter may enter and occupy the whole 20. and hold it to herself: But putting all in Hotch-pott, to find the entire value, (for it is but an estimation or valuation) finding the acres to be of like goodness, the Donées in frankemarriage shall have an n●reasement of 5. acres to hold all 15. in severalty, so that always, the land given in frank marriage, must remain to the donées and their heirs, for else (saith Littleton) should follow a thing unreasonable and inconvenient, which always the Law detesteth, there is the same Laws betwixt the heirs of Donées in frank marriage, and the other partners, if the Donées themselves die, before their ancestor, or before partition.  
This putting of Land in hodgepodge is where the other lands descend from the Donor only, and not from any other ancestor, for if they descend from the father or brother of the donour, from the mother of the Donée, that which is equally so descended, shall be without Commixtion equally divided: Also (by Littleton) if the land descended be of equal value with the land given in frank Marriage, Hodgepodge should be then in vain and to no purpose, and see Littl. Chapter of parceners more concerning such Hodgepodge.  

How partition may be avoided.  
PArtition made betwixt two Sister's tenants in fee simple, they both being of full age, is not defesable, though there want oweltie, and equal value in their parts.  
But if the land were in féetaile, the parties making the partition should be bound and concluded only for their time, the issue of her which had the meaner value, might enter after her mother's death, into her Aunt's part, and occupy with her in common, and she again with her niece in the part allotted to her Sister: If two Coparceners in fee, both married, together with their husbands make partition, it shall stand in force during the coverture, but after the death of a husband, his wife having a meaner part, may enter and defeat the partition, not so if at the time of the alotment, the parts were both of equal annual value.  
If two Coparceners, whereof the one is under 21. year's age, make partition so that a meaner value is allotted to the puisne partner, she may enter and defeat the partition either in her minority, or when she is of full age: but let her take heed when she cometh once to full age, that she take not the whole profit of that which to herself was allotted, for that is an agreement to the partition, and maketh it indefeasable, peradventure a moiety of the profits she may take.  
Three acres of land are given to one in tail, which hath other three in fee, and after his death, his two daughters make partition, so that one hath the land entailed, and another the land in fee, if she which hath the fée-simple, alien her part and die, her issue may enter into the land tailed, and hold occupation in Common with her Aunt, whose folly was to make such a partition, for since she is without remedy, against the alienée of her mother, and without recompense, for the lands entailed, whereunto she is an heir, by descent from the first Donée, it is reason she may enter, specially considering, that the state tail is not discontinued, yet 20. Hen. 6. it is holden, that she is put to her Formedon.  
A man seized of two carves of land, one by just title, another by disseisin of an infant, dieth seized having issue two daughters, they divide so that one hath the carve gotten by disseisin, & the infant entereth upon her possession, etc. she may enter into the other carve, and hold in parcenarie with her Sister: But if she had aliened her part in fee before the entry of the infant, this had been a full dismission of herself out of Copartnership which she could not have recontinued by entry, as she might perhaps, had she made only a lease for years, generally if after partition one part be evicted from her which hath it, by loyal entry, she may enter into the other lands, and occupy with the other Coparceners, compelling them to a new division: all this saith Littleton.    

SECT. XXI. How Partition shall be avoided when it is by judgement.  
MUch of that which Littl. hath taught for the avoiding of partition (as I collect) must be understood of partition in pais, and by agreement, for when it is made by judgement in a Writ of rationabile parte, nuper obijt, or assize to hold in severalty, or by livery in the Chancery, or else by Writ, the partitione, in which cases there is commission or authority derived from the Prince to extend and to make parts by the Oath of 12. men, etc. there is now no reason, that a matter of this substance, circumstance and solemnity, should be all laid on the ground, by a bare entry, yet that silly poor women altogether ignorant of the law, might not fear that that Partition which is made by the Law, that by law there were no means to reverse it, but that still it must stand impugnable, whatsoever iniquity or inequality it had, Old Breton saith in the end of his 17. Chapter, Si ascum ●ercener soit que se tient nient pay de cel partison si ferres nous vener le process, & le record devant nostre iustices de bank, etc. illonques soient les errors redress, etc. He concludeth somewhat like Bracton. Et apres le Assignement des purparties fuit per sort ou per election: foit le seisin per judgement de nostre court: But to the matter. There is occurring in many of the year books, remedies against partitions, as if judgement be given in a nuper obijt, of purparty, and seisin granted to hold severally, yet the partition may be annoyed by error in the first judgement. If partition be made in Chancery, and a less value than is due allotted to a puisne Sister, which remaineth still in ward, she may have remedy by scire facias when she cometh to full age: So whether partition be of itself altogether unjust, or in part inequal, through malice, ignorance, or negligence of the Sheriff or extenders, there is remedy always, so the parties be not hurtful to themselves.  
And although partners of estate in fee, being all of full age, making purpart by agreement, bind & conclude themselves and their heirs for ever, yet when partition is compulsatorie, and the parts are delivered by the Sheriff, who with his extenders maketh division (which may be without the presence of the heirs) I see no great reason here, why acceptance should be a bar in the issue perpetual, or to the parceners for term of life, yet Littleton's bien for guard is good counsel, vide Dyer 33. H. 8. 52.   

SECT. XXII. Of the coherence between Partners after division.  
BUt admit now that partition is so made that there remaineth neither cause nor intention to undo it, yet the partners are in a kind of confederacy and combination amongst themselves, by the very Law and custom of this Realm, Et lou● droit est cy connex nul de eux ne doit respondre sans le autre: pur le contribution. Etsi ascun se face ceo ne serroit in preiudi●● des auters partners. Britton cap. 73. so that if any of them will sue for any inheritance that was their Common Ancestors, the suit must be in all their names still, and if any of them be sued, for any such Land or inheritance, she may pray aid of the other coheires, which may come with her to plead a feoffment, fine or release, or deraigne warranty, and if in this sort she lose some or all her part, she shall recover that which her partners hold her equal portion. But if a parcener put herself in defence, and will not pray aid of her fellows, which may strengthen and assist her, she shall then recover nothing against her coheyres, though she lose all her purpart and livelihood: They continue therefore still in a sort one heir tied together like bundles of rods, for their mutual strength, and by Bracton and Britton, if one of them die without issue after partition, her part shall go to the rest, per ius accrescendi, But is crossed by Littleton above, which telleth you that their title shall be in this case by descent, though the dying be before partition, therefore if partition be betwixt two Sisters of the half blood, and one of them dyeth without issue, having an uncle of the whole blood to the Father, that Uncle by Bractons' partition shall have her Inheritance, etc.   

SECT. XXIII. By what manner of acquisition the over-liver taketh the part of a Coheir when she dyeth.  
FOr your better instruction in this point, mark this Case, a man hath issue three daughters, by one venture, and one daughter by another venture, and dyeth soised, etc. they all enter, and two of the daughters by the first venture die, the third daughter by the same venture shall be heir alone to their two parts, and the fourth daughter of the half blood getteth therein nothing, 10. Assi. p. 27. yet 4. Assi. p. 10. if a man die seized having issue two daughters by diverse ventures, both under age, and a stranger abateth, and one of these daughters in their infancy, releaseth all her right, and dyeth without issue, the other may have a mortdancestor, and recover the whole Inheritance, as heir to her Father, though she can by no means be heir to her Sister: But if she which released, had been of full age when she released, she had given away her moiety. And if she had entered at full age, or under age, nothing had accrued to her Sister: But not entering, the mortdancestor to which they were both entitled, goeth for all to the suruivor. And this I think to be a good case, making nothing on Bractons' side, and not plain any thing on Littleton's.   

SECT. XXIIII. Of Contribution  
THat which Britton toucheth above, of Contribution, I understand to be in case, where one partner prayeth aid of another, the sequel whereof I have shortly told you: There is another Contribution by Statute, Marlebridge, c. 9 which willeth, S● haereditas al●qua de qua unica tantum secta debeatur, ad plures par●icipes eiusdem haeredit. devoluatur, ille qui habet eineciam partem unicam sacier sectam, & participes pro portione sua contribuant. The writ for this Contribution, when the young copartners will not perform the ordinance, hath cum de communi consilio proviso, etc. reciting the Statute.  
This Statute reacheth not to the King; at whose Court all the copartners shall give their several attendance, suit; and service. And if any of the lands partable be holden in Capite every Coheyre shall and must have a part of that in her alotment, for the King's profit, The statute of Ireland which is a receipt of H●n. 3; 14 of his reign to Gerrard Fi●zmorrice justice, showeth that by those days, the first borne partner did always homage for herself and her fellows to every common Lord of the fee who took all his service, per man●s primogeni●ae, which primogenita, had in recompense; (saith the Statute) no homage, ward-ship, or subjection of Copartners, nor any thing but the Capital Message, ratione eineciae: Glanuil (which writ before the Statute) saith, that homage and all other services, were done to the chief Lord by the hand of the eldest parcener for all the rest, without guerdon from them or their heirs, in the first or second degree: But (by him) their heirs in the third degree were bound to do homage, and pay relief to the heirs of the eldest daughter, etc. Because forsooth (as Bracton maketh the reason) issue being had and continued to the third and fourth degree, the heir of the eldest, might now take homage without fear of being excluded from inheriting that which was altogether unlike to descend unto them: But by Bracton the youngest Sister should presently do fealty to the eldest, and by Britton (who wrote after Marlbridge) the matter rested merely in the Lord's election, (for thus saith he) Election le Seignior aprendre tiels services per un mayne ou per les mains de toutes les parceners, Car autrement per droit les guards & marriages des auters parceners' pur les parols in le briefe de guard o● le plaintiffe dit que launcester, l'infant soit son tenant & lui fist service de chevalier. eac. 68 fo. 175.  
Now seeing that Glanuile, the Statute of Ireland, Bract. Britton, and all do agree, that every Lord might take his services by the hands of the eldest partner, (the reason whereof was a desire which the Law had to conserve Seignories in their intierties, & that Lords should not take or divide them into mynnomes, and Crotchets) what was it that caused the making of this ninth Chapter of Marlebridge? It should seem that Lords in those days played upon the advantage, And though they were scrupulous in taking of homage, by which they were shut from succession, and yet willing enough to take entirely all other emoluments incident or annexed to the tenure, from one pair of hands: yet suit of Court, which is burdenous or inconvenient to none but to the tenants, they would be and were content to dissipate, and it should seem also that in puisne Sisters and Coheyres, though they were easily entreated, that the eldest should do all suit and service, yet they could be well content to give them nothing for their pains, and therefore a Statute was needful, for other things I will not accuse old writers of error, they erred not perhaps if they take it as it was taken by Lawyers then, though that taking staggered from Law's conformity.  
This I say, (to me) the statute of Ireland is sufficient to prove that the eldest Sister shall have no guard, marriage, or subjection of the youngest, and neither homage nor fealty (by Littl.) can be taken otherwise, than a service incident to a tenure, for which it is lawful to distrain. As therefore when a Manor descendeth to two partners, each one may have parcel of the demesne, and parcel of the services, and so of one there may step up two Manors: And if the division be that one shall have the demesnes, and another the services, the suit is now in a very haut suspension, and the Manor for a time broken in pieces: but it shall be a Manor again, if she which had the services die without Issue, (per Thiru. 12. H. 4. fo. 34. 35) So I doubt not but when a tenement, holden by service military, descendeth unto two coparceners, and division is evenly made, each of them may pay rents and do service for her part to the Lord, who may take fealty and homage of either of them, if he will: And may be compellable to take homage of one of them at the least, which for the warranty shall be available to both.   

SECT. XXV. What service belongeth only to the eldest parcener to do.  
THere is some thing besides suit of Court that shall lie only upon the part, which by an Alcumized term we call einitia: Fitzherbert titulo partition. 18. hath this note, If the Earldom of Chester descend unto two parceners, it shall be divided betwixt them, As other lands use to be, and the eldest shall not have the Seignory or Earldom whole to herself, quod nota: adjudged, percotam curiam. 23. H. 3. But this notwithstanding if law should have the course, which she had in her state of innocence, I think the capital Message of a Knight's fee, and the head of an Earldom or Barony in partition ought ever to go to the eldest. And if because there is not else perhaps wherewith to make purparte to the youngest coheyre, or not any other thing, holden in Capite, to be distributed for the King's advantage and so for necessity, (quae nullis vinculis legum contine●ur) the head of a Barony be divided, yet the indivisible service by which it is holden, is scutage and grand-serjeantie, I mean the very actual service, falleth by right upon the eldest parcener. Et ubi est commodum, ibi debet esse onus, and so ubi est onus debet esse commodum: whether the case following prove mine assertion or no, I will set it down out of my Lord Dyer, and then prepare me to speak of another partnership: Humphrey Bohune, sometime Earl of Hereford and Essex, held the Manors of Harefield, Newman and Whitenhurst by service of Constableship of England (which is grandserjantie) and died seized, having issue only two daughters, they entered, took husbands, and the husband of the youngest became King, than partition was made, in which the King and his wife did choose Whitenhurst and Harefield, and Newman fell to the other partner: By the opinion of all the justices of England, the reservation of the tenure at the first was good, the two daughters before marriage erercise this office by sufficient deputy, and after marriage the husband of the eldest might execute alone, And per omnes iusticiarios, as when there are two daughters, and the Father dyeth seized of lands holden of one of them, the whole service, if it be entire, (as homage) is revived after partition: so here unity of parcel of the tenansie in the King, did not determine the office, but it continued in the other parcener, so that the King might exact the service, or refuse it at his pleasure, as every Lord may refuse the homage of his tenant, if it be not ancestrel. Me● pur ceo que le office fuit haut & dangerous, & auxi ver●● chargeable all Roy in fees, le Roy voile declaimer de auer le service execute Dier 11. Eliz. fo. 285.    

THE WOMAN'S LAWYER. The second BOOK.  
NOw that I have brought up a Woman, and made her an Inheritrix, taken her out of Ward, helped her to make partition, etc. me thinks she should long to be married: Foemina appetit virum, sicut materia formam, And I did not mean when I begun, to produce any Vestal Virgin, Nim●e, or new Saint Bridge●. Following therefore my first intention, I will begin to instruct Women grown▪ first such as are, or shortly shall be Wives, and then Widows.  

SECT. I. Of Marriage, according to the Civil and Common Law.  
MArriage is defined to be a Conjunction of Man and Woman, containing an inseparable connexion, and union of life. But as there is nothing that is begotten and finished at once, so this Contract of coupling man and woman together, hath an inception first, and then an orderly proceeding. The first beginning of Marriage (as in respect of Contract, and that which Law taketh hold on) is when Wedlock by words in the future tense is promised and vowed, and this is but sponsio▪ or sponsalia. The full Contract of Matrimony, is when it is made by words, de praesenti, in a lawful consent, and thus two be made man and wife existing without lying together, yet Matrimony is not accounted consummate, until there go with the consent of mind and will Conjunction of body.   

SECT. II. Of Sponsion or first promising.  
THe first promising and inception of Marriage ●s in two parts, either it is plain, simple and naked, or confirmed and borne by giving of something: the first is, when a man and woman bind themselves simply by their word only to Contract Matrimony hereafter: the second, when there is an oath made, or somewhat taken as an earnest or pledge betwixt them on both parts, or on one part, to be married hereafter. There is not here to be stood upon, the age definitively set down for making of marriage irrevocable, but all that are seven years old (betwixt whom Matrimony may consist) may make sponsion and promise. But if any that is under the age of seven, begin this vow and betrothing, it is esteemed as a mist, and vanisheth to nothing.   

SECT. III. Of public Sponsion.  
THis Sponsion (in which as it stands, is no full Contract of Matrimony, nor any more, save only an obligation, or being bound in a sort to marry hereafter) may be public or secret: public, either by the parties themselves, present together, or by message or Letters when they be distant one from another: Neither is there herein any curious form of paction or stipulation required, but only by words, howsoever expressed, a plain consent and agreement of the parties, and by the Civil Law, (with which the ancient Canons concorded) of their parents▪ if the Contractors were sub potestate parentum: the like reason seemeth to be for consent of tutors, etc. But it is now received a general opinion that the goodwill of parents is required, in regard of honesty, not of necessity, according to the Canons which exact necessarily, none other consent but only of the parties themselves, whose Conjunction is in hand, without which the conclusion of parents is of none effect: note further, that sponsalia may be made pure or conditional, and whatsoever is else adjected (as earnest, pledge, or such like) is but accidental.   

SECT. four Of secret Sponsion.  
THose Spousals which are made when a man is without witness, Solus cum sola, are called secret promising or desponsation, which though it be tolerated, when by liquid & plain probation it may appear to the judge, and there is not any lawful impediment to hinder the Contract, yet it is so little esteemed of, (unless it be very manifest) that another promise public made after it, shall be preferred and prevail against it. The cause why it is mistiked, is the difficulty of proof for avoiding of it, when for offence her just cause of refusal, the one or other party might seek to go lose, and perhaps cannot, but must stand haltered from any other Marriage, and the judge in suspense what to determine.   

SECT. V The validity of the Desponsation.  
THough this Sponsalia be always made with intent that Matrimony should ensue, yet the Contracter cannot thereunto be compelled, unless there were another thing joined to the Contract of Spousals, neither are they compellable to marry, though an oath accompanied the promise, unless it were made pure and without Condition, for in conditional sponsion of Marriage, the bond of performance is suspended in the Condition, till that be performed, unless there follow a relinquishment of the Condition, by copulation of bodies, or a new consent by word● of the present.   

SECT. VI The nature of the Condition.  
ANd here in the quality of Conditions it is observed, that if the Condition annexed to the promise be repugnant against the right of Matrimony, the disposition of the whole Spousals are void: As if a man promise a woman to marry her, if she poison the child which she conceived, the promise is of none effect, as towards Marriage. But a Condition, though it be otherwise unhonest or impossible, corrupteth not promise of Marriage if it be not adversant, and against the Law of wedlock.   

SECT. VII. How long the performance of promise is to be excepted.  
NOw it may be demanded what time must be tarried and expected by the Law Civil and Common, for perimplishing of promises made of future Wedlock: It is answered, that if the limits of time prefixed when the sponsion was first made, be once passed and expired: if the vow were made without limitation of time, then (where there appeareth not any weighty cause of stay) if both the parties be residing in one Province, the woman quae non vult ●ua vo●a diutius delude, may after two years marry to whom she listeth, But if her Spouse be commorant in another Province, than she must tarry three years, Though indeed these times of expectance, may be prolonged and lengthened, by a judge, as he shall find cause just and reasonable.   

SECT. VIII. In what case the betrothed may refuse one another.  
IF after the Sponsion or first betrothing, and before Matrimony contracted, some evil disease (as leprosy, or some violent cause or casualty) make one of the parties unfit for generation, the other may repudiate and abandon him or her, which shall be so diseased or unabled. Spousals are also dissolved for fornication, specially if it be committed by either of the parties with their kindred: likewise Spousals which are made a pupillis may be dissolved by a bare renuntiation, but by no means they are rightlier avoided, then by a dissension of both the Contractors, from their first consent, for by such dissent also society is or may be broken in sunder. There are other causes for which the bond of desponsation may be taken away, as devulgation of kindred unknown, and opportunity of nuptials sought by detestable means, for which cause not only Spousals, but Marriage itself, when it is contracted, may be dissolved.   

SECT. IX. By what authority Spousals are to be undone.  
TO all these causes of undoing the first vows of marriage, there must be added the authority of the Bish which hath power to absolve, yet the Canons do without the authority of any Bishops make free from the Obligation of only promised marriage, all those which abdicate themselves to Religion. And Hostiensis contendeth that without authority of any judge, Spousals are undone ipso iure, by a post-marriage, made by words of the present time, sed nemo sibi ipsi ius dicere debet, no man may be his own judge: And it is certain, that espousals ought never to be undone, but by public authority, unless the cause for which we will have them undone be so well known, that it needeth neither proof nor sentence, such as is fornication when it is notorious, and public to all the world.   

SECT. X. Of Matrimony contracted in the present time, and who may contract.  
THose which the Latins call puberes, that is, they which are come once to such state, habit and disposition of body that they may be deemed able to procreate, may contract Matrimony by words of the time present, for in contract of Wedlock, pubertas, is not strictly esteemed by number of years, as it is in wardship, but rather by the maturity, ripeness, and disposition of body: There is further required in them which contract Matrimony, a sound and whole mind to consent, for he that is mad, without intermission of ●ury, cannot marry: But he that is deaf and dumb, may contract Matrimony, quia non verbis tantum sed nutu & signis sensa mentis exprimuntur, and as they which are impuberes, cannot for infirmity of age, make any firm knot of Wedlock, so likewise they which by coldness of nature, or by enchantment, are impotent, be forbidden to contract.  
The impediments Ecclesiastical, as vows, Compaternitie and spiritual kindred, I will not meddle with: But come to kindred of blood, which containeth a principal let and prohibition of Marriage.   

SECT. XI. Impediment of Marriage by Kindred and Consanguinity.  
IN the world's infancy men were enforced by necessity to marry with own kindred, propter hominum pauci●atem, But that necessity is taken away and long since by the very voice of God, they which are in certain degrees of blood are forbidden to marry, Leviticus 18. And because Marriage is an abundant seminary of charity and love, it is wisely and profitably ordained that it should be dispersed into many families.  
Therefore by Natural, Civil, and Common Law, Marriage is clean forbidden betwixt all those, which are as Parents or Children one towards another in infinitum; and betwixt those persons, which are of kindred in the transuerse line, Marriage is forbidden till the fourth degree be past.   

SECT. XII. The impediment of Marriage by Affinity.  
THere is further a certain nigh alliance called affinity, quasi fines duarum cognationum coniungens▪ this riseth betwixt them which are married, and the kindred of one of them, as betwixt the husband and the kindred of his wife: now affinity prohibiteth Marriage only to the persons contracted, etc. for the Cousins or Consanguinity to my wife, are of affinity only to me, and not to my brothers or children by a former Wife; and my blood and consanguinity are kindred of affinity only to my Wife, and not to her brothers or former children: here is it that the Father and the Son may marry the Mother and the Daughter, and two Brethren may marry two Sisters in another Family: for the Consanguinity, of which one is of blood to the husband, and another to the wife, are betwixt themselves in no bond of affinity: And observe that in what degree a man or woman is to one of them that are married, by Consanguinity, they are accounted in the same degree to the other in affinity: As the wife's brother, who is in primo gradu to his Sister, is in the same degree to her husband, and their children in the second, etc. And so forth their children's Children, which after the fourth degree, are again by all laws permitted to marry, contrahi●●● & affinitas per illicitum co●●um.   

SECT. XIII. Diversity of Religion.  
AMongst the hindrances of marriage, note this also, that by Constitution of holy Church, marriage is forbidden betwixt persons of divers Religions, as jews and Christians.   

SECT. XIV. Of fear and constraint.  
ALso Matrimony holdeth not when it is extorted by force, or by such a fear as may cadere in constantem virum; quia matrimonia debent esse libera.   

SECT. XV. Of Marriage detestable made.  
ALso Marriage holdeth not, when it is sought or made with wickedness: And if a man promise to a woman which he hath adulterously polluted that he will marry her when his wife dyeth, etc. Or if a man have sought to abridge the days of his lawful wife to marry another: These villainies are such perpetual cankers in marriage, that they do not only hinder it to be made, but also rend it in sunder when it is made.  
There are other crimes, quae distrahunt Matrimonia contracta, as Incest cum cognata, and ravishment, yet if any man ravish a Maid, or other unmarried Woman, the Canons do admit him to marry with her if she consent: But otherwise she shall be rendered to her Father, upon whose suit and accusation, the ravisher is put to Capital punishment.  
There are by the Civil and Common Laws many other impediments of Marriage, as susceptio propriae sobolis, publica poenitentia, caedes Sacerdotis, interdictum Ecclesiasticum, etc. which I will not trouble Women withal.   

SECT. XVI. Marriage forbidden by public Constitution.  
BY Civil ordinance also Marriage is sometime restrained and forbidden, as betwixt him which adopteth, and her which is adopted: for seeing that they which are adopted are in the place and stead of Children, there resteth a League, as of kindred betwixt them and the blood of him which adopteth, by the Civil Law and Canons both.  
But this Civil kindred lasteth no longer than the adopted are in potestate adoptantis, Neither is it any obstacle to a Marriage, save only betwixt the adopted and adoptant, and those which are in his power. And as adoption hindereth Marriage by the Civil Law: so by the same law, a man may not marry her whom he took exposed, as a castaway or a foundling, and brought her up as a Daughter. Marriage is also forbidden, sometime ratione publicae honestatis, as if a Man be divorced from his wife, and afterwards she hath a Daughter by another man, this is no Daughter in Law to the husband, yet he should do impudently to marry her, Those prohibitions of Marriage that were sometime betwixt a Tutor and Pupil, betwixt a Precedent and a Woman in his subjection, betwixt a Senator and a freed bondwoman, betwixt a Senator's Daughter and a freed bondman, betwixt a woman Comedian or one whose parents used some lascivious or light Art, and a Senator: lastly, betwixt free and servile, are all either by long public Custom or by Common Law taken away.   

SECT. XVII. Of Polygamy.  
THere are examples in Scripture of Polygamy (viz.) where men had more wives than one at once, as Abraham, jacob, David, and Solomon had: And it seemeth 21. of Deuteromie 15. that it was sufferable by Moses his law, But it was said at the first, man and wife shall be one flesh, and the examples were rather permitted then lawful. The Civil Law Canons, and all Christian Common wealths do utterly condemn Polygamy, and so much did the wise Emperors of Rome detest all petulancy of Marriage, that they made and ordained Laws, that Women which within the year of mourning for their husbands betake them to wedlock again, should be reputed infamous and defamed. But this also the Canons have taken away, Contracts of Matrimony ought to be public. Nuptials de presen●i aught always to be made public at the Church, or at the least, in presence & Congregation, del bon g●n●s, yet is it not of necessity, that they which marry stipulate by themselues, or be present in person at the contract making, but it may be well enough by Proctor, so that the Contractors themselves be willing and witting, or that they ratify it when it is done.   

SECT. XVIII. What words are requisite.  
THere needs no stipulation or curious form of Contract in Wedlock making, but such words as prove a mutual consent are sufficient, and it may be made by Letters. If question rise about words, recurrendum est ad communem intellectum, & usum loquendi, & indubio pro matrimonio iudicandum, for there is more doubtfulness in construing of words, ut res magis valeat quam pereat, etc.   

SECT. XIX. The Accidents of Marriage.  
THose things which are of solemnity or benevolence, as provision of Dower, earnest, giving pledges, nuptial benediction, etc. are not of the essence of Matrimony which is made by consent: for though Dower cannot consist without Marriage, yet Marriage may very well stand without dower: And so it is of all Donations propter nuptias: In only one case written instruments are required in making of Marriage, and that is where a man marrieth her whom he hath holden a long time as Concubine, here instrumenta dotalia are behooveful, that the children had before Marriage, may be esteemed Legitimate: But this holdeth not in England.   

SECT. XX. Wherefore Marriage ought to be made.  
THe causes of Matrimony principally are two: The first is susceptio sobolis, increase of Children, for even by Plato every good man ought to desire that he may leave behind him worshippers of God, and propagators of piety: The second cause is the eviting of fornication and uncleanness 1. add Corinth. ca 7 Saint Paul biddeth, that to avoid fornication every man have his own wife, and every woman her own husband, and whosoever marryeth for beauty, age, order, splendour of birth, or for riches, rather than for these two causes, doth very perversely, though it be not expressly disallowed, but Marriage may be for the other things also, and the Consent may be given for them.   

SECT. XXI. The Consummation and individuitie of Marriage.  
WHen to the Consent of mind, there is added Copulation of body, Matrimony is consummate, the principal end whereof is propagation or procreation: But where the course after going is not observed, there riseth no lawful Offspring, the Children which are had, are not in power and commandment of them which beget or bear them, neither are they taken by Law for any other, then vulgo que●i●i. Otherwise it is in lawful Wedlock, the knot whereof is so strait and indissoluble, that they which are yoked therein, cannot the one without the consent of the other, (neither was it ever permitted) abdicate themselves, or enter into Religion, for Saint Paul in the above titled Epistle and Chapter, saith plainly, that the husband hath not power of his own body, etc. And there cannot chance any fedity or uncleanness of body so great, as that for it a man and wife ought perpetually to be segregated, yea so unpartible be they, that law saith, they may not utterly leave coniugalem consuetudinem, though one of them have the very leprosy itself.  
And here is moved a question not impertinent, That is, whether a woman be bound to follow her husband wheresoever he goeth, if he require it, whereunto it is answered by Bartall and by some other, That if the wife before she married knew the negotiations and occasions of her husband, would be such, that he must of necessity ever be travelling, she is bounden, and i● the Contract seemeth to have consented to go with him at commandment, but if after the bargain made he take up a new trick of circum●●gar●, she may let him go when he list, and tarry at home when she will.   

SECT. XXII. Of Divorce.  
PActis poenarum cogi potest nemo ad Matrimonium contrahendum: And as no man can be compelled by any convention of pain or penalty to contract Matrimony, so is it impossible, when it is once lawfully and evidently contracted, to distract it by any partition, covenant, or humane traction, Quos Deus coniunxit, homo non separet, yet there are Causes, for which diverse are permitted: But Divorce, that only separateth a consuetudine coniugali, taketh not away the bond of Matrimony, and therefore Divorces are sometimes perpetual, as long as the parties live, sometimes for a season limited, and sometime, till reconcilement be had, and he that maketh Divorce with his wife being only separated a Toro, is forbidden to take another wife.   

SECT. XXIII. Causes of Divorce.  
THe Civil Law hath many causes of Divorce, but by Divine and Common Law, the only sufficient cause is adultery and fornication, which by the Canons is carnal and spiritual: the spiritual is heresy and Idolatry: They dissolve Matrimony for spiritual fornication only, where one of the parties is converted to Christian faith, and the other for hatred of his religion will not cohabit, etc. And this is taken also from Saint Paul 1. ad Corinth. 7. where he saith, If the unbelieving depart, let him departed, a Brother or Sister is not in subjection.   

SECT. XXIV. Impotency or disability of Procreation.  
THere is admitted also, in dissolution of Marriage, the complaint of impotency: And justinian very discreetly, willed that in that exploration or proof of the defect there should be expected three years: but the Canons ordain that Matrimony is dissolved by probation of impotency, without mention or limits of time. And this is more than a bare divorce or separation, a Toro, for it dissolveth Marriage, avoiding it as it had never been: so that he or she whose fellow is convicted of impotency, may choose a new friend, and presently marry again.  
But this is to be understood of impotency which was before the Marriage made: for indeed where the impediment was so precedent, there could not any Matrimony exist or have being, etc.  
Otherwise it is, when this disability betideth after Marriage perfected and consummate, for in that case, he or she which remaineth potent, shall not leave and departed from the impotent, but be compelled to bear the discommodity, aswell as any other ill fortune. And that which is here taught of Conjugal impotency, stretcheth to all impediments of Marriage which are perpetual, ut per ea Matrimonium nunquam extitisle iudicetur.   

SECT. XXV. Marriages inter ascendentes & descendentes.  
THose Marriages that are made between ascendentes and descendentes, are so detestable, that by the Civil law they deserve exile and confiscation of goods. And there is a gloss that would extend this to all unlawful Marriages: but by Bartell and others, it is to be inflicted only upon those, which are contra iura sanguinis.   

SECT. XXVI. Captivity or long absence of one which is married.  
IT falleth out not seldom, the one of them which are married to be taken captive, or otherwise so detained, that it is uncertain if he live or no.  
Therefore because it is in some sort dangerous to expect long the incertain return of an absent yoke-fellow, here the Civil Law did ordain, that after a husband had been gone five years, and nothing known whether he lived or no, the wife might marry again, and so might the husband, that had expected his wife, etc. But the Common Law commandeth simply to forbear Marriage till the death of him or her that is missing be certainly known.   

SECT. XXVII. That no crime dissolveth marriage.  
OF old time, some Crimes were numbered amongst the Causes of Dissolving marriage: but justinian changed the Law here in part, and the Canons upon the saying of Christ, Quos Deus coniunxit, etc. will not by any means that Matrimony rightly made and consummate, can be dissolved, quoad ad vinculum Matrimonij. though for fornication they suffer a parting, quoad Torum. So that nodus legitimi Matrimonij, is never dissolved but by death, and the wife as long as she liveth is subject to the law of her husband by Saint Paul.  
Yet saith Lagus, seeing that in Contracts of Wedlock we regard as well what is decent and convenient, as what is lawful, I cannot tell why we be not bound in dissolving of it to follow the like equity: and for example, if a Wife cannot dwell with her husband without manifest danger of death, because he is cruel and bloody, why may not she be separated iudicis ordinarij cognitione precedente.   

SECT. XXVIII. The Authority of the ordinary judge, etc.  
FOr if Spousals of future Marriage cannot be dissolved without public authority, it must needs follow, that without like authority, there can be no repudiation when Matrimony is fully contracted and consummate: But in pursuing of divorce the strict order of judicial proceed is not always severely kept: for regularly production of witnesses before contestation of suit, non adiwat producentem, yet if Cornelia sue a Divorce against Sempronius, causa consanguinitatis, and Sempronius being cited will not appear, if now Cornelia bring her witnesses, the judge may receive them.  
Marry this religious observation the Canons give him ever, when he cometh to point of judgement, That the danger is less, in leaving men contrary to the Statutes of men, then in separating (contrary to the Statutes of God) those which are lawfully conjoined.  
Thus fare have I run myself in debt to Doctor▪ Conradus Lagus, of whom in the third part of his Method, ca 22. may be further learned the difference betwixt Scortum, pellex and Concubina, Our English comprehendeth them all in one word, and I would they dwelled all in one House, beyond Seas, Concubinatus speciem conjugij— habet; Et ex Concubinae natis conceditur beneficium legitimationis. If maid, wife or widow, ask what I mean to tell them so much of Civil and Canon Law, seeing they be none of those Country women, I pray them not to look for the Regions in mappa mundi, but for their own Regiment in Christian duty: The spiritual Law is here an Oracle to the temporal, which evermore sendeth to the Ecclesiastical judge, viz. the Bishop, for certification of lawfulness or unlawfulness of Wedlocks when Accouplements come in question.   

SECT. XXIX. Statutes concerning Marriage.  
FOr it is true that Newdigat● saith, 12. He. 8. fo. 6. that marriage and Divorcements with the circumstances of them be properly no parcel of Common-Lawes learning.  
Yet it is very needful here that I show you here what the Laws of England have néedfully concerning Marriage established, 32. H. 8. ca 38. declareth all persons lawfully to marry, which are not prohibited by Gods Law. And it was ordained, that all Marriages contracted and solemnised in face of the Church, and consummate with bodily knowledge, should remain indefeasable, notwithstanding any precontract, etc. Further, that neither dispensation, prescription, law, reservation, prohibition, or any thing (God's law excepted) shall trouble or impeach any Marriage made without the levitical degrees, nor any man be received in spiritual Court to process, plea, or obligation, contrary to this Act. This Statute, though it seemed to be made upon good and great considerations, (because precontracts too too slenderly proved, and sometime but only surmised, helped the Romish oppression, and separated those which were at quiet in an honest conjunction) yet many did after the making of it, very dissolutely come from their first vows, and, as it were in spite of conscience and Ecclesiastical censure, coupled themselves bodily with such as they newly fancied, slipperily leaving their former Contracts: it is repealed 2. & 3. Ed. 6. ca 3. only in the points of precontracts: And they are left in the validity which they were of, by the King's Ecclesiastical laws, immediately before the making of 32. with proviso that all the rest of the said Act standeth whole and in strength. So is it now again by 1. Eliz. cap. 1. See also 5. & 6. Ed. 6. ca 12. that the Marriage of Priests and Ecclesiastical persons is lawful, their Children legitimate, a Priest may be tenant by the courtesy, and his Wife have Dower.  
It is a sport to behold how some of the Canonists & Glossographers refreshed themselves in their disputes about Nuptial questions, how clear they make it, that, If Adam our first Father were now alive and a Widower, he could not take a Wife, quia, all Women are his Children, and that in the right line: Then what a question it is, whether unlawful copulation cause any affinity or no.  
In hoc articulo, (saith one of them) non parcam in foro verecundiae, that is to say, he will handle the quiddick without shame or honesty, and then in the plainest that may be, he findeth a difference betwixt a dog's neck in ●he Collar, and his nose in the King, betwixt knocking at the Barrels head, and setting it abroach: but the curious learning w. is that of spiritual kindred, caused either by holy Baptism, or by the blessed Chrism, and this had power impediendi Matrimonium contrahendum, & dirimend● matrimonium contractum: yea, this was such a matter, that 39 Ed. 3. fo. 32. Bastardy is pleaded against the Plaintiff in assize, and the cause was, that the father married a woman, before which Marriage he had christened ●●● which was his Wife's cousin, and for this cause, after and of them was dead, Divorce was sued, and judgement thereof given in the spiritual Court, though indeed by justice Thorpe, and the greatest opinion in the temporal Court, the Issue could not be bastardized, unless the Parents had been called, and the Nuptials destroyed by sentence, which was now impossible to do, for death had determined them.  
Out of question therefore, if the parties had lived, a little or no Kindred, had marred great good acquaintance: But howsoever, by those days secular Marriage was forbidden in spiritual men, and secular men were straightly prohibited by spiritual. Spiritual Kindred, the Statutes aforegoing, have now welcomm●● Wedlock, clean out of the Pope's stocks, And the 18. of Leviticus alone, doth in a manner sufficiently demonstrate, with what persons Women are restricted to marry.   

SECT. XXX. With what persons Women may not marry.  
SUch are her Grandfather, her Father, her Son's Son, etc. her Brother, though it be but the one part, her Fathers or Mother's Brother, her Brothers or Sister's Son, or her Son's Son. Brothers or Sister's Children (saith Ramus in his Commentaries of Christian Religion, lib. 2. ca 9) are forbidden to intermarry, ed more, non lege Divina vel Roman●: Christians, he saith further, which have abrogated the Law, 25. of Deuteronomy, whereby a Brother might be challenged to raise up the house of his deceased brother, have also constituted a prohibition, within certain degrees of affinity, and therefore a man may not marry with the widow of his Grandfather or of his Father, or with the widow of his own Son, or of his Son's Son, or with the widow of his Brother, or of his Brother's Son, or of his Brother's Sons Son, etc. Nor with the Grandmother, Mother, Daughter, Niece, great Aunt, Aunt or Sister of his deceased wife.   

SECT. XXXII. Of Wooing.  
I Am afraid my feminine acquaintance will say I writ as I live, I talk much of Marriage, but I came not forward: stay a while yet I pray you, I know many an honest woman more repenting her hasty Marriage ere she was wooed, than all the other sins that ever she committed. It were good reason we speak a little of wooing, but to handle that matter, per genus & species, would take up as much room, as the Indian figtree, every third whereof, when it falleth to the ground, groweth to a body. I will slip by it, only observing that the giving of gloves, rings, bracelets, chains, or any thing that is ex sponsaliorum largitate (as a man would say, of love's liberality) or as a pledge of future Marriage betwixt them that are promised, have a condition▪ (silent for the most part) annexed unto them, that if Matrimony do not ensue, the things may be demanded back and recovered, yet there is a distinction of like, for I have authority in it, Si sponsus dedit aliquid, & aliquo casu impediuntur nuptiae, donatio penitus rescinditur, nisi osculum intervenerit; marry if he had a kiss for his money, than the one half of that which was given, is the woman's own good: And she hath yet more favour in the case, for whatsoever she gave, were there kissing or no kissing betwixt them, she may ask all, and have all again. Quaere of this in the Consistory.   

SECT. XXXII. The Condiments of Love..  
THere are with us, as well as with the Civilians, many kinds of Donations propter nuptias, and some ex sponsaliorum largitate: Good meats are the better for good sauce; venison craveth wine, and Wedlock hath certain Condiments, which come best in season in the wooing time, and serve (as Breton saith) pour donor fees come melier talon d'aymer Matrimony. A husband per se, is a desirable thing, but Donements or Feoffements, etc. better the stomach, though of itself it be good and eager, And because the first Marriage made in Paradise, if you mark it well, had a jointure, I cannot but allow the circumspection which is had.   

SECT. XXXIII. Of Frank Marriage.  
IT was, as I suppose, more frequent in the old time, that men gave Lands with their Daughters in Marriage, than it was at this day: But now as then, if a man liberally and freely, without money or other considerations, save only love and natural affection, give Lands of Tenements to another man, with a woman which is Daughter, Sister, or Cousin to the Donor, in Frank Marriage, whether it be tempore Matrimonij, vel ante vel post, this word Frank Marriage maketh an estate of Inheritance, viz. to the Donees, and the heirs of their two bodies, and they shall hold quite of all manner of services (except the pure fealty) till the fourth degree be past. But the Issue in the fift degree, and his Descendant, shall hold of the Donor and his Heirs, as they hold over.   

SECT. XXXIV. The Gift must be Franke.  
PEr Rich. 16. assi. p. 66. if a man give land in Frank Marriage, rendering a rent, the reservation is void, till the fourth degree be passed per Martin justice, 4. H 6. 22. such a reservation is merely void, for it is contrary to the nature of Frank Marriage.  
By the old tenors, such a reservation is good, and the Donée shall hold in Common estate tail; by Brook in his Abridgement, it cannot be any estate tail, for want of the parol heirs. And where such a gift is made to a woman, not cousin to the Donor, there passeth but estate for life, for it is by a maxim or ground, that Frank Marriage maketh inheritance, and this case is out of the principal: By Bracton fo. 28. & 29. Si terra detur in maritagium viro cum uxore, & eorum haeredibus pro homagio & seruitio viri, licet detur in liberum maritagium (qua▪ sunt sibi ad invicem adversantia, etc.) tunc prefe 〈…〉 'em & erit ac si donatio fieret tai● viro quam uxori, he delivereth the like learning before, fo. 22. and this rule withal ●x tacita conditione & pacta incontinenti opposita insunt contractibus, & legem daunt eyes & illos infirmant.   

SECT. XXXII. The gift must be to a Woman, etc.  
IT was delivered for a Law in tempore H. 8. that Lands cannot be given to a man in Frank Marriage, though he be Cousin to the Donor.   

SECT. XXXVI. It may be tempore Matrimonij, ante, vel post.  
WHat if after the gift made, the man refuse to marry, the Cousin of the Donor marry elsewhere?  
If two Donées in tail after the Common form be divorced upon a precontract made by the woman, they shall▪ remain jointenants of the Frank Tenement▪ and the Inheritance is gone Tails 9 But per Dyer fo. 147. and 12. assi. p. 22. and 19 assi. p. 2. If Tenants in Frank Marriage be divorced, the Woman shall have all the Land, for the Land was given for the woman's sake, and for her advancement, and by john Bracton, her husband hath no more in it but Custodiam, as he is the wife's tutor and Guardian: By the same reason therefore that the wife shall have the land, if she be divorced, by the same, I should think, she should have it, if her Sponsus refuse to marry her: But where I give Land to one to marry my Daughter, or, if he marry my Daughter, there, if he marry another woman, I may enter.   

SECT. XXXVI. The word Frank Marriage maketh Inheritance.  
IF a man give lands with his Sister to I. S. in Frank Marriage, habendum ●is & haeredibus suis in perpetuum. By Knives, Mowbray and Finchden, 45. Ed. 3. fo. 19 this maketh neither Frank Marriage nor estate tail, with an expectance of fee, (as in Case where Lands are given expressly in tail, habendum eyes & haeredibus, but the fee-simple passeth presently by the gift, for Frank Marriage must be holden of the Donor▪ which here hath nothing left in him, but all is holden of the Lord Parainount, and the words do not make any other estate tail: yet 13. Ed. 1. lands were given to one, with the Cousin of the Donor in Frank Marriage, habendum eyes & haeredibus, and it was taken for good Frank Marriage: This, saith Brook, was in the year, that estates tail were made in. But for all that, if ye look the case in Fitzherbert, Formedone 63. whither Brooke sendeth you, you shall perceive that at the time of the gift, it was Frank Marriage in fée-simple, for by those days the Donee had potestatem alienandi post prolem suscitat●m: But in a gift made after the Statute of quia emptore●, on such a fashion, I take it the Law will be, as before in the case 45. Ed. 3. According as it was also holden in the years of H. 8. that if a gift be made in Frank Marriage, the remainder to I. S. in fee: this is no good Frank Marriage, for warranty and acquittal that are incident, etc. be only in regard of the reversion to the Donor, and they cannot be had when the fée-simple is presently conveyed to a stranger.   

SECT. XXXVIII. The Account of the Degrees.  
LIttl. accounts the Degrees from the Donor to the Donees, the first Degree; from the Donées to their Issue, the second; from the Donées Issue to his Issue, the third, etc. and the Issue in the fift Degree shall do service. And this (saith he) because the Issue of the Donor and the Issue of the Donée after the fourth Degree past, may inter-marrie by holy Churches Law. Bracton accounts thus, donatarius facit primum gradum; haeres suus facit secundum; haeres haeredis facit tertium; haeres secundi haeredis facit quartum, qui tenebitur ad seruitium, yea, he maketh it an express rule, that only the Donée and two heirs succeeding lineally, shall enjoy the immunity of being acquitted. And he seemeth to understand no other reason of the acquittal so long, but only an abstenancie from homage, lest the taking of it should hinder a reverting, if it betided the Donée, or the Issue to die without Issue. Fitzherbert titulo droit 55. and 60. citeth 6 H. 3. and 15. H. 3. in warrant of Bractons' Computation, which I think he fetched not any further than out of the Author himself, in whom fo. 21. I find it. And fo. 22. he answereth a doubt of his own ask, that is, Whether all other service shall follow and continue, if homage be done ante ter●ium haeredem, wherein he concludeth, that the service ever followeth homage, quamuis ad damnum soluentium: And I conclude, whether it be the third heir, or the fourth, that shall do service, he may still vouch, have a Writ of me ne, as if the fourth Degree were not past, and if he bring a Formedone, the Writ shall be Dedit in liberum Maritagium.   

SECT. XXXIX. A Woman gives Lands to one to marry her.  
AS Frank Marriage maketh Inheritance without the words Heirs, and is always made to a woman, and for her sake: so there is another Donatio prop●er nuptias, that is conditional without words of Condition made ever by a woman to a man. That is, where a woman gives Land to a man in fee-simple, or for term of his life, to the intent that he marry her, who if he afterwards when he is thereto within convenient time required, refuse, etc. there is now an ordinary Writ for remedy granted in this case, to reduce the Land, which Writ may be sued in the per cui, or post, after one or more alienations, either by the woman sole, or by her and her husband married, against such a one as should have married her, after the refusal, or after her death by her Heir, whether it be Son or Daughter, or Daughters with the child of another, and there needs no scripture or writing to prove that the feoffement was for intent of Marriage: nay, if a woman infeoff a stranger, to the intent to infeoff her, and one which she intendeth to marry, if now the espousals take not effect, she may have Writ causa Matrimonij prelocuti, against the stranger, though the deed of feoffement were simple and sans Condition, an. 34. Ed. 3. li. assi. and 40. Ed. 3. li. assi. a woman enfeoffed one which had a wife, and entered for non-performance of the Condition, heritance of woman, and in this part because it resembleth the Donations, that are propter nuptias, the Doctrine of it being something like that of Dower.   

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

SECT. XLII. Seisin.  
THere must be in the wife a seisin and possession; for if she were but heir in appearance, & die before her Ancestor, this availeth her husband nothing. Simile, If the Father (being seized of Lands) die, and soon after his Daughter and Heir dyeth before actual seisin had by entry either by the husband, wife, or other person for them, so that no possession and a naked possession in law here is all one: yea, the law is taken, that if a man dwell in Essex with his wife, and lands descend to her in Yorkshire, if she die the next day after, before entry, the husband shall not be Tenant by the Courtesy, for even in this case is found a default in him, that he did not constitute one to make entry for him maintenant after the Ancestors death, & yet if rend descend to a woman Covert, etc. which dieth before day of payment, or after the day, and no demand made of the rent by her husband, he shall have Courtesy in the rent notwithstanding. So it is if an Advouson in gross descend to a woman married, having Issue, etc. though she die afore avoidance, the husband shall present, and though the Bishop after the descent present by lapse, yet the husband shall have the second presentment, for there cannot in these things possession be taken maintenant and at all times, as they be in Lands: And take with you here these Cases out of Dier, 1. Ma. fo. 95. Tenant per Chivalry in cap. dieth, his Daughter and Heir being under age office is found, and the King grants the wardship of body and Land to me which marrieth the ward and hath Issue by her, and after she accomplisheth the age of sixetéene years, and the King is satisfied for the two year's profit, they tender a general livery, and before it be past, the Wife dieth, the Baron shall have the Courtesy come semble, saith the Book.  
And 6. Eliz. Dier, 229. the like descent is to a Daughter, and married, having Issue by her husband, and she dieth ten days after her Father, no Livery being sued that is found by office, the Baron shall be Tenant by the Courtesy, and shall sue livery.   

SECT. XLIII. No Courtesy of reversion after estate for life.  
THe seisin must be to the Wife in estate of Inheritance not mangled or cut off from the Frank Tenement, and therefore (by Parkins) where a Woman an Heir enters after her Father's death, and being seized in fée-simple, makes a Lease of her Land to I. S. for term of his life, if she now marry, have Issue, and die during the Lease, the Husband shall neither be Tenant by the Courtesy of the Land when it reverts, nor of the rents in the mean while▪ Also 8. assi. p. 6. If a Daughter and Heir enter, endol● den, and have Issue by her, and the condition being broken, she dyeth▪ if now the Feoffor enter, the Feoffée shall not be Tenant per le Courtesy of the Seignory: But if a feme sole have a rent or common in or out of certain Lands, and the Tenant leasseth the Land to a stranger, during the life of I. S. and the woman intermarrieth with the Lessée, hath Issue, and I. S. dyeth, now if the wife die, the Baron shall have Courtesy in the rent or Common. And if the Tenant leased his ground for 20. years, and a woman having in the ground a rend charge in fee, intermarrieth with the Lessée▪ etc. dieth during the term, it is a question in Parkins, whether the husband shall have Courtesy in the rent after the term determine, see Parkins, cap. By the Courtesy.   

SECT. XLVII. No Courtesy of a bare use.  
IF a Woman sole seized, etc. make a feoffement to the use of herself & her heirs, and then she marrieth, hath Issue, and dieth before any estate in the same lands be again by entry or otherwise executed to her, her husband shall not be Tenant by the Courtesy, and this aswell after the Statute of 27. H. 8. as before, if the Feoffement were since the Statute.   

SECT. XLVIII. What Husband may be Tenant by the Courtesy, and of what estate.  
WHere the Wise is actually seized of Lands in feesimple, see-taile general, or as Heir of sée-taile special, the second Baron may be Tenant by the Courtesy, as well as the first, for so is the Maxim.  
And Parkins, Fitzherbert, and Brooke have all of them the Case, 21. H. 3. viz. A woman Inheritor hath Issue by her Husband, and he dieth, she takes another Husband, hath Issue by him, and that Issue dieth, the woman dieth, her second Husband shall be Tenant by the Courtesy: Bracton agreeth also, who when he hath showed this Civility of England, concludeth. Quod dicitur de primo, di●i poterit de secundo, sive de primo viro haeredes apparentes extiterunt sive non plenae aetatis vel minoris. But he addeth, Quod iniuriosum est secundum S●ephanum de Segrave, qui dicebat quod lex ill● male ●uit intellecta, & male vs●tata: Nam quod dicitur de lege Angliae, intelligi debet de primo vir●, & communibus haeredibus, & non de secundo, maxim cum haeredes apparentes extiterint de primo.  
My mind gives me that he said truth, and that Law turning a little out of her Channel here before justice Segraves' time, could never since be brought to her course.   

SECT. XLIX. Of special Tail.  
BEfore West. 2. cap. 1. all the Estates which we now call tailed (that is curtailed or cut off) were feesimple Conditional, If Lands had been given to a man and a woman in Frank Marriage, or to them and to the Heirs of their two bodies (which gifts make now a special Tail) as soon as they had Issue, the Condition was thought to be performed. And as a woman surviving her first Husband in this case might alien the Land, so might she by bearing a Child to her second Husband, etc. this makes him Tenant by the Courtesy. be enforced to prove, that the Child sent forth some voice or cry arguing life and natural humanity: for if it bellowed, bleated, brayed, grunted, roared, or howled, there accrued no courtesy by getting such an uncivil urchin.  
By him therefore there must be a natural cry heard inter quatuor parietes, for (he saith) though a Child be borne mutus & surdus, tamen clamorem emittere debet, sive masculus sit, sive foemina, nam Dicunt E. vel A. quotquot nascuntur ab E●a:  
E. or A. all cry that from Eve come,  
Though they be borne both deaf and dumb.  
Non sufficit igitur tantum baptizatus & scpultura: y●t 28. H. 8. Dyer fol. 25. sets down Fitzherberts' opinion, that a man may be Tenant by the Courtesy though the Child never cry, car peradventure lissue soit nee dumb, And so saith Parkins 9 4. 7. viz. that if the issue be borne alive, though it die before it be heard cry, or before it be baptised, for that is a matter also with Bracton, if there were no lachesse, contumacy or contempt in the Baron, he may be Tenant by the Courtesy: But by negligence or by contempt he shall prejudice himself ascuns diont.   

SECT. LI. A Child borne beginneth the title of Courtesy.  
NOw this having a Child, is such a matter (as it seemeth) that main tenant thereupon the title of Courtesy beginneth: for example, if a bond woman purchase Land and marry, if the Lord enter before Issue be had, no Child borne afterwards shall make the husband tenant by the Courtesy: But if the Baron have Issue by his wife, before the Lords entry, he shall be tenant by the Courtesy, and the avourie from that time forward shall rest upon him solement, And the possession in Law if the wife die, shall not light upon the Heir, but upon the Baron, which shall be tenant to every praecipe. C●o est clear lei, Brook out of the Doctor and Student, vide Brooke villainage; 35.  
And if a woman Heir have issue by her husband, commit felony and be attainted, it hath been mostly holden, that the husband shall be Tenant by the Courtesy, notwithstanding, and that after Issue had, the Lord may avow for homage upon the husband without the wife 21. Ed. 3. 49. By Parkins, 91. 475. Likewise if the Wife's Inheritance be recovered against Baron and feme, by false oath, or erroneous Process, and execution is had and sued of this recovery, if they have Issue afterwards and then the wife dieth, the Baron now reducing the Land by attaint or error, shall hold per le Courtesy.   

SECT. LII. What if the Child die.  
IF a man have Issue by his wife, that is here in possession, the death of the Issue is no loss of Courtesy, and by Parkins, if a Daughter and Heir apparent take a Husband, have Issue by him, and the Issue dieth, if now the Father die, and the Baron and feme enter, he may be Tenant by the Courtesy without having other Issue, Brooke makes it questionable.  
Also by Brook, if a man die, his wife being privement enseient, a Daughter entereth as heir, taketh a Husband, and hath Issue, if a Son post-humus enter upon the Baron and feme, and the Issue of the Daughter dieth, and the posthumus dieth without Issue, the Baron clearly shall not be Tenant by the Courtesy, unless he re-enter▪ in his wife's time, and he doubteth, though the Baron enter sans other Issue. bility his wife may bear him, may by possibility be heir of that estate Si le possession le Baron ne soit loyalment anient) As addeth Parkins the Wife shall be endowed.   

SECT. LVI. The Husband must be seized.  
DOwer is of the possession of a Husband, the ground of it therefore is Marriage, a Concubine than shall have no Dower, no more shall she which is but only contracted, and it was holden by some, 10. H. 3. that she which was married in a Parlour or Chamber should have no Dower but it is now taken otherwise.  
Also where Marriage is clearly void and unlawful, there groweth no title of Dower: But if a woman first contracted to E. I. intermarry afterwards with T. K. this Marriage is voidable, but not clearly void, and if it be not frustrated, otherwise then by death of T. K. the Wife shall have Dower of his Land. Here ye may perceive that which destroyeth an absolute true Marriage, destroyeth Dower also: for though by Bracton there may be by special Constitution a Dower appointed, that shall stand good against the tempest of diverse assaults, yet by ground of the Common Law Matrimonium est fulcimentum do●is. And Bracton saith in his second book and 39 Chapter, Vbi nullum omnino Matrimonium, ibi nulla dost igitur, ubi Matrimonium, ibi does, quod verum est si Matrimonium in fancy ecclesiae contrahatur.   

SECT. LVII. Matrimony may be, and yet no Dower.  
THough Matrimony do always precede Dower, yet doth not Dower always follow Matrimony: for first where the husband had no Land, the Wife can have no Dower by the Common Law, Bracton and Breton which give a woman Dower in a certain somme of money or in other Chattels, speak rather as Civil Lawyers then mere English: Also Dower is not granted, unless the Husband is above 7. years old, and the wife above nine, 13. Ed. 1. Fitzherbert Feme perdera Dower, si son Baron morust devant 9 ans d'age Dyer 14. Eliz. fo. 313. Also if a man marry his bondwoman in gross and die, she shall not recover Dower against the Heir, for she is his bondwoman, but against the Feoffée of her husband she shall recover Dower, unless she be regardant to the Manor whereof the Feoffement was made.   

SECT. LVIII. What Seisin is requisite in a Husband.  
WHere the Huband hath neither possession in fact, nor possession in Law, during the Coverture, nor any thing save only a right or title, the wife shall not have Dower, as also if the Baron suffer a Disseisin, an abatement, a Condition broken, an alienation in Mortmain, or cesser of his rent or services by two year's space, etc. and then he take a wife, dieth before reduction of his Land, or if judgement be given for him in a plea of Lands, and he marryeth afterward, and die before entry or suing of execution, the wife shall not have Dower of these Lands: So is it if I. S. exchange Lands with T. K. and I. S. entereth, but T. K. taketh a wife, and dieth before entry, his wife shall not have Dower in any of the Lands exchanged, but where a husband is once actually seized, the wife shall be endowed notwithstanding any disseisin afterward done to him, or feoffement made by him either absolute or conditional: And if before or after Marriage celebrated and not dissolved a possession in Law be cast upon a Husband by descent, escheat, or fall of some remainder, the wife shall be endowed though the Baron die before entry, as if the King's Tenant die seized, and his Heir being married dieth before office or entry, the wife of the heir is dowable: so if rend des●end to a husband which dyeth before day of payment, etc. for there is not requisite in the husband such a seis●n as whereof an assize lieth: but if a praecipe quod reddat might lie against him, it sufficeth 4. He. 7. fo. 1. Brook 66. in Dower.  
A husband may have possession in law by descent of a villain in gros, or possession in law of a rend charge, by excepting the deed of grant, and hereof the wife shall be endowed, although the Baron do afterwards refuse receipt and seisin of the rent. But judgement in a Writ of annuity for the Baron taketh away Dower of a rend charge from the wife, and a woman may have Dower of an estate that was suspended, as if the Lord married with his Tenant, now is the Seignory suspended, but if he die, the wife shall have Dower, a third part of the rent per ret●igne●▪ for the Signiory, though it slept, yet there was still a possession in Law of it in the husband: Here it must not be forgotten that it seemeth doubtful whether an abatement of a stranger which is a possession in fact destroyeth a Possession in Law, it appears by Park. ●o. 72. sect. 371. & 372▪ & 4. H. 7. 1. per meux that it doth not.  
But 21. Ed. 4. ●o. 60. which is accorded for good Law, 4. H. 7. fo. 1. where in a Writ of Dower the Tenant pleadeth ne unques seisie in dower, etc. the demandament showeth that Lands descended to her husband, she being then his wife, and that he died before entry made either by him, or by other person, & issuit &▪ est donable per le l●y, and she was enforced by the Court to plead that none entered: for if a stranger had entered, she had not been dowable: And if she had pleaded 〈◊〉 〈◊〉 que Dow●e la Poet this had waned the special matter, but the other conclusion puts it to the Law and Courts consideration. Ye see now of what possession of Law a woman is dowable per Brian 4. H. 7. ●o. 17. if the King's ward die under age, and the ne●t heir being married, die before ●●u●n●runt sued, his wife shall not have Dower, But by Deuers and Hussey, if the King's Tenants Heir have a wife, and after office found, the Heir doth not enter, but dieth, the wife shall be endowed of the possession in Law before office, for the Statute of prerogative cap. 13▪ is intended only where the Heir taketh a wife after office, and intrudeth.   

SECT. LIX. There must be in the Husband an Inheritance not cut from the Frank Tenant.  
A Woman shall have no Dower in Lands, whereof the Frankement and Inheritance was never conjoined in her husband, during Coverture, therefore where the Husband had but a reversion after estate for life, the wife is not dowable: under this rule cometh one other, does de dote peti non debet: And if a man seized, etc. take a wife, and alien with warranty, and then both the feoffor and feoffée die, if the wife of the feoffée bring a Writ of Dower against the heir of the feoffor, which voucheth to warrant the heir of the feoffor, and hanging the voucher, the wife of the feoffée demands▪ Dower against the heir of the feoffée, if she bring her Writ, not for a third of two pa●ts, but for a third of all that whereof her husband dies seized, she shall not ha●e judgement fill the first plea be determined: Littleton. If there be father and son both married; and the Father seized of one acre, etc. dieth, and the son entereth and dieth: if now the son's son enter and endow his Grandmother which dieth, his mother is not Dowable of that which the Grandmother held in Dower, for of that his Father had no more in mere right, but a reversion upon or after a Frank tenement, and the Grandmother endowed was in of her Husband's possession, yet if the father had in his life time enfeoffed the Son, etc. the son's wife might well have Dower after the Grandmothers death, of that very Land which the Grandmother held.  
And if the son's son voluntarily or compulsarily ●● Writ of Dower had endowed his mother, against whom the Grandmother had then received her Dower, and died after execution, the mother might well have entered into the land which the ailesse recovered against her, Parkins 63. The Frank tenement and Inheritance may be both in a sort in the Husband, and yet not sufficiently knit and united together to give Dower: for example, the Lands be given to two, and to the heirs of the body of one of them, if he which hath the inheritance die first, his Wife is not dowable, no not after the death of the suruivor, for the state tail was not executed, in her husband to all intents, though the Issue in a Formedone against an abater might allege seisin, and esplees (as we call them) in his father. Likewise, if by fine sur grant & render, estate be made to a husband for term of life the remainder to I. S. his son in tail, the reversion to the right heirs of the husband, and the fine is executed, if now the Baron die, living I. S. or any of his Issue, the wife of the Cognusée is not dowable: But if a Lease be made for years, the remainder to I. S▪ for life, the remainder to his right heirs, etc. the wife of I. S. shall have Dower of this estate, though erecution of Dower cannot be ●asting the term; And if a Lease be to the Husband for life, with a remainder to a stranger for ●eares, the remainder to the Husband in ●ée, the inheritance and Frank Tenement are sufficiently connexed to give the wife Dower, b●t execution shall cease during the term: for when an estate for years is more ancient, or as ancient as the Inheritance, which the Husband had during Coverture, there the execution of Dower to the Wife must needs tarry the terms expiration: And so it is if a man grant me a rent in fee by Indenture, with Condition that the rent shall cease during the nonage of mine heirs, my Wife shall not be endowed during mine heir's minority.  
What if a man that is seized in Fée-simple make a lease for life rendering rend, etc. and then taking a Wife he dieth, the heir shall have this rent incident to the reversion, and it shall be a●ets to him in a Formedone in Descender: but the wife gets here no Dower; a●d saith Parkins, a woman shall not be endowed of a rent reserved by her Husband to himself and his Heirs upon a Lease for years, 1. Ed. 6. titulo Dower in Brook accordeth. If the Law be so, Dower hath less favour in this case then the estate per Cour●●si● d'Angleterre.  
But Clear if a man take a wife first, lease his Lands for years or for life, and die, now the Wife may recover Dower of the Land itself, and by Breton, if the woman recover the third part of Lands leased for years the office, de justice il serra a guard que el terti● remnant, les deux parties: que demorent de terre iesques a●●nt que il e●t receive all value de le tierr● party que il avera perdieu, etc. But if she recover all the Land leased from the termer, he shall have recovery per pl●● de garranti, either of such other Lands as the Lessor had, or if he had no other of the Lands seized, when the widow is dead, by s●ir● facias out of the Court where the judgement was enrolled. Note, That though the Law be as is abovesaid, where Lands are given to two, and to the Heirs of one of them, yet if the Husband purchase to himself and his wife, and to the heirs of the Husband, the wife may relinquish the purchase, and disagree by bringing her Writ of Dower: Like Law seemeth to be, where the purchase is to the Baron and feme during the life of the Baron, the remainder to his right heirs.   

SECT. LX. Of what things Dower is granted.  
Littletons' ground is of Lands or tenements, But a woman is Dowable also of all manner of rents which are rents of Inheritance, Also of Offices, as for example, of a Bayly-wicke in fee, a woman may have the third part of the profit in Dower, and be contributory to the charge: Also at this day where the Baron hath but an use in fée-simple or féetaile general, unless it be in case where the Husband may and doth disagree, the wife shall have Dower, and if a bargain and sale be made of Lands to the Husband which dieth before enrolment, the wife notwithstanding shall have Dower, and by the enrolment einsement, it shall be indefeisable against the Vendor and the Heir of the Vendée: Also a woman is Dowable of Villains regardant to a Manor, and if a villainy in gros, a woman may have Dower by taking his service every third day, and if a mill by taking the third part of the profit, and she shall grind tole-frée, and if a House, a woman is Dowable by a Chamber or rent assigned out of the house. Note that if such a rent be assigned out of the Land wherein Dower is claimed, the woman may have Assize without Deed, contra, if it be assigned out of other Land, 33. H. 6. fo. 2.  
Also a woman may hold an Aduousan appendent, in Dower of the third part of an Aduousan in gros, by presenting at every third avoidance, or the third part of the moiety of an Aduousan, by presenting at every sixth avoidance: And of a Common in gr●s which is certain a woman is Dowable. Likewise if any grant to I. S. that he and his heirs shall take yearly in his Meadow three load of Hay, etc. For Common appendent, Parkins saith, If a woman accept two acre's parcel of a Manor in allowance of Dower, she shall have no Common appendent: aliter, if a moiety be assigned her. E● 5. lacobile Countelle of Oxford's case cited in Harper's case, Coke 11. Rep. fo. 256. Dower shall be of predial Tithes, etc.   

SECT. LXI. Of what things Dower is not granted.  
OF naked services, as homage and fealty, there is none endowment, nor of a bare annuity granted in fee, nor of things uncertain as of Common without number. And if it be granted to I. S. that he and his heirs shall take so many Estovers in Methold wood as they will burn, in etc. this will yield no Dower, no more than a Licence or grant the coylor bois in altar bois: By the old writers, if in the first establishment of Dower special mention be not made or Aduousons' or third presentments, the wife cannot have Dower of any Aduouson pur ceo que advowson d●●sgly sevest mi departible: But when a Manor with the appurtenances is ordained for Dower, if an Aduouson be appendent to the Manor, and the Church become void, after the Husband's death the Wife may present.  
Also by them a woman cannot challenge a Castle, chief Mess, or head of any Barony or County, or any thing within the close or Circuit of the chief Mess, to be assigned her in Dower: But for her habitation she may choose aliquod honestum Messuagium de villenagijs, that is, some bond Tenements within the Manor-house.  
And where there is none such to choose, she shall have one clapped up for her in aliqua platea competenti de commum bosco: as long and broad as the third part of her husband's chief house: A cottage of clay and splints set close in a corner of a cold Common, which is but a rheumatic Lodge to welcome Suitors to. But how if the Common and all things be so enclosed that there is not room to swing a Cat in, women are not put in Rogum with their Husbands any where but in the Indies, and I think that custom is left there also by this time: If there be neither base tenement, nor wood, nor ground wherewith & whereon to build a Widow's habitacle, she may be endowed (for necessity) of the principal▪ Message, and without necessity always if the heir be so contented: The reasons which Breton and Bracton do expressly allege, for niceness of Law, making dainty in their time to endow Widows in Aduousons' and great Messages, is only the individuity or impartablenes of the things. Of an Aduouson because it is but ius quoddam, and not corporal, and great houses, etc. for the dignity and strength which the Realm was thought to have by their conservation: But considering that the end of Dower is chief the maintenance of a Wife, Si vir premoriatur: it may further be colourably said, that Law at first did never mean to trouble Widows with presenting of Clerks, for that either is not, or ought not to be a matter lucrative or of gain, though indeed Bracton prise a Benefice of an hundred Marks at one hundred Shillings value.   

SECT. LXII. Of what estate of Inheritance the Husband must be seized.  
THe Learning here is not discrepant from that which went before in title of Courtesy: Of fee or féetaile general a Woman shall have Dower, so shall she of fee-farm or of a base fée-simple, but not of Copyhold unless the Custom serve for it: And if Tenant for life make a feoffement in fee, the wife can have no Dower, 3. H. 4. fo. 6.  
The which Littl. inserteth in this Chapter of Dower, viz. where the Husband is seized, as heir of special tail, etc. is no interdiction of Dower in all cases to her which is married to the Donée of special tail. Littleton's own example is, That if Lands be given to a man, and the heirs which he shall engender of his wife Alice, if he dies, Alice shall be endowed of this estate; for no Issue of a second wife could be heir of special tail, and that makes the difference.  
The case 41. E. 3 fo. 30. is this, A man seized in general tail by fine made a feoffement and took back an estate in special Tail to himself and his first Wife, and died, the King seize by Tenure in capite, and endowed the second wife, the Issue of the first Wife came, showing the special tail, and by scire facias against the Wife recovered for default: she took a second Husband, who with his wife brought a quod ei deforceat against the Heir, and he pleaded the special tail, the woman by remitting the heir to the ancient tail, would have concluded him to say, that her husband was seized of any other estate. Et non allocatur.  
Parkins makes this case somewhat more austere against Dower, for as he putteth it fo. 60. the Issue is son to the Woman which claimeth Dower, yet the mother by him not Dowable, because the son though he be Heir is in of another estate then that which was in the Baron during Coverture, so likewise 44. Ed. 3. fo. 26. in a Writ of Dower against the Heir Tenant, he showeth that the band was given by fine to his father and mother in special tail, and that afterwards his father & mother discontinued the tail by fine to a stranger, and taking back an estate in general tail, they had Issue this heir, than his mother died, and the father taking the demandant to wife, he died, so the son was now in per lun tail & per lauter, and being adjudged in his eigne right by remitter, the wife was barred of dower, this Case in my conceit fringeth the generality of Littleton's rule, for the Issue which by possibility the second wife might have had, might by possibility have inherited, though not indefeisably in such estate as was in the Husband during Coverture.  
To conclude, where Lands are given to the Baron and feme in special tail, the remainder to the Heirs of the body of the Baron, and the Wife dies without Issue, there a second wife may be endowed, for after the death of the first wife the remainder in general tail vesteth main tenant and is executed: 50. Ed. 3. fo. 4.  
Newton saith, 7. He. 6. fo. 11. if a man make a lease for years with Condition, if the Lease pay an hundred pound at the end of the term, that then he shall have fee, etsi nemy que il auera que term: that in this Case by paying an hundred pound at the end of the term, the termer shall have fee from the beginning, and his wife is Dowable: quere, for it seemeth tunc▪ hath relation but ad tempus solutionis. If Tenant in Dower lease her estate to the Heir for her life, and the Heir dieth, his wife shall be endowed notwithstanding the life of the first dowager, 45. Ed. 3. fo. 13. In action of Dower the tenant shown that Tenant per Courtesy granted his estate to him in the reversion, rendering rend with clause of reentry, for nonpayment, he in the reversion marry the demandant, the tenant per le Courtesy reentreth for the Condition, he in the reversion died, his wife was barred Dower, for the surrender might well be upon Condition, 14. E. 4. fo. 6.   

SECT. LXIII. Where Dower is given or not given of an estate determined.  
Where the Husband's estate is loyally enuicted or determined, Dower for the most part faileth, As thus, two men make exchanging of two acres executed in fee, one of them dieth, his son takes a wife and entereth, and the otherpartie being impleaded, voucheth the son which entereth into warranty, so that the Tenant recovereth in value the acre, which he delivered in exchange, the son's wife shall never be endowed of this acre, for the title of recovery in value, is from time of the exchange by way of relation, and so before the Marriage.  
Likewise if two Copartners in gavel kind make partition, one of them marrieth, and the other being impleaded, prayeth aid of his partner which joineth, etc. if the demandant recover, and the Tenant have pro rata of the partners part which afterward dieth, his wife shall not have Dower of that which is recovered, for the title of recovery pro rata is from the death of the common Ancestor, saith Parkins. As a Villeine takes a wife, purchases lands in fee, his Lord enters, the Villeine dieth, his wife shall have Dower, for the Lords title begun by his entry, and the wives by seizin in the husband, the Tenant alieneth in Mortmain, or erecteth a cross (see thereof, W. 2. c. 33.) and the Lordentreth, the tenant's wife shall have Dower notwithstanding. So if the Lord recover in a Cessavit, the tenant's wife shall be endowed, yet if the tenant had made part, and brought a writ of Dower, it came to issue, ne unques seisie, etc.  
The jury found the special matter, and being asked what they thought of it, they answered, because there was never any permanent seisin in the husband, that she was not Dowable. Your thinking (said justice Thorpe) is contrary to your verdict, for here was a possession whereof she is Dowable, Et ceo fuit opinion de toutes. Littleton also seemeth to be against me in Estate sur condition, but it is not ipse dixit, but plusiors on't dit: Therefore if he were alive, I might perhaps entreat him to be on my side.   

SECT. LXIV. How much and how a woman shall hold in Dower.  
THe Common Law alloweth for Dower the third part of that whereof the Husband during Coverture, had such seisin as is before declared to have and hold (if it be in lands) by limits and bounds. But this Endowment per meats & bonds cannot be where the husband is Tenant in Common.  
If one of two Copartners in gavel kind take a wife, and die before partition made, the Heir may assign his mother a third part of his moiety to hold in Common, or he may first make partition and then endow her per meats & bonds.  
Generally, when a woman recovers Dower the Sheriff shall put her in possession per meats & bonds, and it hath been holden, that wheresoever the heir assigneth Dower a third part, per mi & per tout, to occupy in Common, if the widow accept it accordingly, that this should be a good endowment: The Law seemeth to be otherwise, By Common right Parkins saith, a woman shall have Dower, the third avoidance of every Aduouson, and the third part of every Manor that was her husbands, for if she take it in another form by assignment from the Heir she may suffer prejudice.  
As if a man seized of three Manors takes a wife, and grants a rend charge issuing out of all three Manors, and dieth: now if the wife by assignment of the heir, accept one Manor in Dower for all, the two parts of this Manor remain subject to the distress of the granter, because the woman (for the two parts) accepted here her Dower in counter comen droit. But had she upon recovery of Dower been assigned this Manor by the Viscount, she should have held all discharged.  
Yet if a married man seized of three Aduousons' of three several Churches, grant to I. S. that he shall present to the Church which next becomes void, and the granter dying his wife recovers in a Writ of Dower against the heir before avoidance, and the Viscount assigneth to her the Aduouson of one Church for all, etc. if now the Church thus assigned become void ascuns diont, saith Parkins, the grantée shall present, and not the woman, for she is endowed encounter common droit, and I. S. the grantée which is a stranger to the assignment cannot otherwise take advantage of his grant. But in the first Case after assignment of one Manor by the Viscount, the grantée might distrain in the other two Manors.   

SECT. LXV. Less or more than a third part.  
THough by the Common Law a woman is to have no less than a third part, yet if a widow will be so foolish as to accept a fourth or fift part or moiety of her husband's Inheritance assigned in allowance of all his Frank Tenement, it is a good assignment: And by custom in some seized of three acres in fee, marry and die, and a stranger which hath but two of these acres entereth by abatement into the third, and after he hath married the Widow he infeoffs a stranger of all three acres by indenture, resexuing ut supra, and dieth, the rent goeth out of all the acres, but if the heir of the first husband recover his acre and assign it to the woman in Dower, she is Dowable also of the rent, for indeed it is entirely issuing out of the two other acres: And if a man seized of three acres in fee make a feoffement of two reserving rend out of those two acres, ut supra, the wife having the acre which remained in Dower, may have Dower also of the rent reserved; qu●ere saith Parkins, car il est incounter le conscience de diverse homes, And making the acres to be of equal value, it must needs be against law also, for one acre of three equally valued, or of every acre one third part is a just Dower. But if the acre unsold were inferior in value, there is both conscience and law for the woman to claim Dower of the two acres, or of the rent, for a woman must be endowed of the best possession, and not according to the number of acres, but according to the value of the Inheritance whilst it was the Husbands. Therefore if I make a feoffement of my lands, and dye, and the feoffée builds a house upon it, or otherwise improoves it, my wife shall be endowed no otherwise then according to the value of my possession; yet if a disseisor or a feoffée sur condition, do edify, the disseisie or feoffor re-entering, shall have the building. If being married I make a feoffement, and the feoffee ruinateth a house which was upon the Lands before the feoffement, and that was worth four or five pound annually, my wife shall be endowed according to the value that the land was of, at time of my death, because a woman hath no right to possession of Dower before the death of her husband: But Parkins dares not let this Case go without a quaere.   

SECT. LXIX. Of Dower at the Church door.  
THe old kind of endowment at the Church Door cometh now a days seldom in use: But for all that I would have women better learned then to be ignorant of it, it is when a man seized in fee-simple, being of full age, coming to the Church door to be married, doth there affirm affiance and endow his spouse of all his lands, or of part, as of half or a less quantity openly and with certainty, the woman thus endowed may enter into her Dower, after the husband's death without assignment, and this Dower may be at the Church door in one County of Lands in another County and without deed, Parkins, sect. 217. Vide Ploughed. in Sharington, ca fo. 304. b. it is good without livery of seisin, Et per Shelly 28. H. 8 Dyer fo. it may be done within view, and the puisne son of Land in borrow English may not make such a Dower.  
Also a son and heir apparent when he is espoused by consent of his father, may endow his wife at the Church door in part of such lands and tenements as are the Fathers in fee-simple, and the son's wife after his death (the father living) may enter presently without further assignment into the parcels, thus certainly appointed: But if she enter after her husband's death and agree to any of these endowments ad ostium ecclesiae, she is concluded from claiming any other Dower. Thus fare Littleton. By Bracton none can endow his wife in this manner, unless he be Liber homo; for in his time if I be not much deceived, the greatest number of bondmen held in manurance Lands of their Lords, which they occupied to the Lords use and profit, in pure villeinage. These having none other lands, could not endow, etc. Also by Bracton, Quis posset dotem constituere, & sciendum quod tam minor quam maior masculus. Cui uxori, tam Church door to be married deliver the Deed to her, showing her the lands, saying, his will is, she have them according to the deed, if the Baron never claim otherwise, then in right of his wife that is a good feoftement.  
But he may endow her, of his own lands ad ostium Ecclesiae, without deed, though the Land be in a foreign County, marry when the Dower is of the father's Land, ex assensu, there must be a deed, for assent lieth not in averment 40. Ed. 3. 43. yet this is contrary to Bracton, and in old Books the consent hath been tried by proofs, Dowment may be good, ex consensu matris, but as they say now, not ex consensu fratris, sororis, vel consanguinei, The assent ought to be at the Church or Church door, yet 2. H. 3. the son married against the will of his parents, and eight weeks after endowed his wife, of his father's lands, ex assensu patris per curiam, it was holden good, Fitzherbert 199.  
Of the head of a Barony, or the Capital Message of a Knight's fee, Dowment ad ostium, etc. is not good, but it may be of a moiety of all such Lands as the Baron shall hereafter purchase in fee, or of all such Lands as the Baron's mother holdeth in Dower: But if the Father lease his Lands for life, and the Son and Heir apparent endow his wife, ex assensu, etc. of the reversion: now if the Lessée die, the Lessor enter, and the son die, the wife shall not have Dower, because she was not Dowable of the reversion at the Common Law, though it had been in her husband during coverture; so is it if the Father were seized for life, or jointly with another in fee: But if the father had been Tenant in tail, the endowment by consent had been good during his life, though no conclusion after his death to his Issue, or his wife claiming Dower, even as by Election if tenant in tail, being himself in actual seisin, endow his wife ad ostium Ecclesiae, & die, if his wife enter, the Issue may out her, and so may he in the reversion if issue fail: If the Father at time of endowment ex assensu be seized none otherwise then in his wife's right: Yet Parkins argueth, he shall be bound during his life, quaere.  
I have held young Maids now indeed somewhat long in the old endowments, and I would proceed to instruct them in the dower of the new learning jointures, I mean, for my desire is, that they should be able to have when they are Widows a coach or at the least an ambler, and some money in their purses. But they are of the mind for themselves I perceive, that Themistocles was in for his daughter, He desired a man rather without money, than money without a man, here is a wise ado ye say, I tell you of Dower, of the Widow's estate, and God knows whether ye shall ever have the grace to be widows or no, ye would know what belongeth to wives, on then in a good way, I have brought you to the Church door, if ye be not shortly well married, I pray God I may.   
FINIS.   


with her Husband's protection and supereminency: Now the Law that giveth Dower to her that is able to deserve it, and enableth at so green years, knoweth well enough that women are at their Husband's commandment: If Titus being dead have left his wife her maidenhead, immunis a culpa, a poena immunis erit, This I might dilate as in probability or likeliness of reason at Common Law, but it seemeth the matter resteth otherwise determinable.  
For in action of Dower the Tenant shall not plead nunquam carnaliter cognovit, nor the demandant be driven to aver a knowledge, etc.  
But the case may perchance be drawn to an issue of ne unques accople in loyal Matrimony, and that must be tried by the Bishop: Therefore for the better direction of Brides, take the case verbatim, as it is propounded with the solution 22. Eliz. Dyer 369. A woman of full age contracts Matrimony by words of the present instant, with a young man of twelve year's age, and this being solemnised in face of the Church with consummation after a sort, the young man being put to bed to her died under age, quaere if the Ordinary aught to certify an accomplishment in loyal Matrimony, Solutio doctorum quindecem.  
We be all of opinion that she is to be taken for a loyal wife coupled in loyal Matrimony, and in question of Dower, that the Bishop ought so to certify; for albeit that in other regards these were but Sponsalia de futuro, yet in case of Dower, and the privilege thereof, they are extended to Matrimony consummate, Et iudicium datum pro dote; here ye say was the Law as clear as Crystal on your side, when supper is done dance a while, leave out the long measures till you be in bed, get you there quickly, and pay the Minstrels tomorrow.   

SECT. II. Baron and Feme one person.  
NOw that Matrimony is celebrated and consummate, here is so straight a fellowship or rather identity of person, that if a feoffement be made to a man and his wife jointly with I. S. the Baron & Feme take but a moiety, and in a feoffement to Baron and Feme, and I. S. and T. K. they take but a third part, and where a feoffement is made to a man and his wife jointly, they take not several moities, as other joint Feoffees do, but the Baron and feme take entirely together, and in Law they are said to be seized by intierties, and there is no halfing betwixt them: For if the Baron charge the whole land or part of it with a rent, the wife shall hold it discharged after his death, and if he sell all or part and die. the wife shall recover all by Writ of cui in vita. See 40. assi. pla. 7. If a Villeine and his Wife purchase land jointly, the Lord enter, and the Villeine die, the Feme or her Heir shall have the whole Land, Eadem lex videtur, where the Husband joint-purchaser is an Alien borne, or attaint in praemunire, or of felony. But the book of Assizes goeth not so fare.  
The videtur is Parliament 43. in Brook, where likewise ye shall see it was holden 5. H 7. fo. 31. that if T. infeoff W. and A. his wife, & afterward it is by Parliament enacted that all estates, made by T. to W. shall been void, that the feoffement shall be void as well towards the wife as towards the Husband, because they are but one person in Law, and the Feme taketh nothing but by agreement of the husband. And upon the like reason is the case Dyer 3. Eliz. fo. 196. Sir Rob. Catline purchase land held in capite to him and his wife and his heirs without licence, and the Queen pardons all offences, pro quacunque alienatione sibi facta, and doth not speak of the wife in the pardon, and yet it was allowed in the Exchequer.  
But if the feoffement had been to W. and I. S. this I. S. should have held his moiety, notwithstanding the Parliaments decree, and this seemeth to be the better opinion, though there were in manner equal number to maintain, That if the feoffement were before coverture, the Parliament should void it for a moiety, but if it were after coverture, it should void for no part against the Feme, when she was discoverte, leaving to Parliaments their omnipotency, it is clear the husband cannot sever the jointure betwixt him and his wife, as an other joint-tenant may, if the jointure were made during Coverture, because there is then no moiety: Otherwise it is if the jointure were made before the Marriage: And if lands be given to a man and his wife, habendum one moiety to the husband, and habendum the other moiety to the wife, now they be seized of moities as Tenants in Commom: But for this I find no other authority, than the opinion of Knightly in Dyer, 28. H. 8. 10. b.   

SECT. III. Baron & feme cannot infeoff one another.  
Moreover, this Conglutination of persons in Baron and feme, forbiddeth all manner of feoffing or giving by the one unto the other, for a man cannot give any thing unto himself, therefore 27. H. 8. fo. 27. In action of debt upon an obligation to perform covenants, where it passed for the Plaintiff, because the Defendant had not paid annually seven pound to his wife, it is alleged in arrest of judgement, that the Covenant was impossible in itself, etc. But Chomeley, Shelley, and Fitzherbert moved the husband to agree with the Plaintiff Car le exception sert de riens, for although in strict intelligence of Law, money and Chattels, paid, delivered, or given to the wife by the husband, are still his own, yet a man may give his wife a pair of hose (saith the book) as a man is bound by honesty, so he may be bound by red wax and parchment to find his wife sustenance, and to be bound to give her money for her security, is all one; from this Lantern I think he took his light, which bond a gentleman of mine acquaintance to give his Wife the Obligée his Daughter, yearly such and so many gowns, heartless. etc.  
And the meaning must be taken and observed: in the book of 4. H. 7. fo. 4. is another memorable Cause, A man was bound to I. S. by obligation to make a sure estate to a woman in certain tenements within three months after his father's death: The Obligor marrieth the woman in his father's life time, and the Matrimony continueth, till the three months be expired; the obligation is forfeited, Vavisor said, the husband might well have performed the condition by fine levied, upon a writ of Covenant brought by a stranger, against the Baron and feme. Fisher said he might have performed it by making a Lease unto a stranger, the remainder to the wife, quaere of that. Vavisors performance had been good I think, if there had been in the beginning a full purpose and intent of intermarriage betwixt the woman and the Obligor: But that appears not, and therefore being that he hath brought himself to an impossibility of performance either of words or meaning, the Obligée must needs be allowed the advantage. If the obligation had been to the woman herself, the condition by inter-marriage had been dispensed with; for where the Obligee is a cause that the condition cannot be performed, the not performing is without penalitie to the Obligor, as if in the old days, I had been bound to an Abbot that A. should infeoff him, etc. before Christmas, if A. had presently entered into Religion, my bond had presently been forfeited: not so, If A. had been professed, under the obedience of the Obligée.  
And if I be bound to C. that A. shall marry B. before Easter: If I marry B. and our Espousals continue till Easter, my bond is forfeited. Similiter, If C. marry B. or if A. and B. cannot marry, because one of them dieth or wareth mad before the day.  
I find none other cause in our Yéere-bookes alleged why things may not pass by gift, between Baron and feme, save only unity of person.  
But undoubtedly the restraint springeth from a politic consideration, rather to breed, cherish and maintain the unity, then in judging of an impossibility because of the unity.  
But the Civil Law, vir non potest dare uxori, ne foeminae amorem coniugalcm in quaestu habeant, & prohibenter inter coniuges donationes, quia silicerct coniugibus invicem donare matrimonia fierint venalia & saepe distraherentur, etc. And because it would amount to arguing inter coniuges, there is a restraint by that law. Ne privignus dare queat novercae vel noverca privigno. What if the Matrimony be invalidum & legibus non consistens, yet non valet inter coniuges putativos facta donatio, ne melioris sint conditionis quam illi qui recte faciont: But a gift to a plain Concubine is good enough: unless the giver be a Soldier. By old john Bracton, lib. 2. ca 5. Non valent donationes inter virum & uxorem; non enim poterit vir dare uxori, nec e converso constante Matrimonio, quia huiusmodi donationes prohibitae sunt inter tales personas, nec infraudem facere possint constitutioni, veluti si Maritus donet extraneae personae ea ment ut redonet in vita viri vel post mortem: he maketh his reason in the 14. Chapter, Si tales donationes fieri possint ob amorem inter virum & foeminam posset alter eorum egestare & inopia premi.  
But at this day, though lands cannot pass betwixt Baron and Feme, right out by plain livery, or bargain, yet in the obliquity of fines, recoveries and uses, there is an Expedite transporting of Inheritance betwixt them, to the undoing perhaps of the party whose Lands are transferred and auferred, with not so much as conjugal love always in recompense.   

SECT. four In what sort things may pass betwixt Baron and Feme.  
Land's cannot pass from the Baron by feoffement to put the state from him immediately to the wife, though he were enfeoffed to that intent and upon such a condition: But one man may infeoff another upon condition to infeoff the wife of the Feoffor, (whatsoever Bracton say) and the condition good. Also a feoffement, fine, or recovery may be made, knowledged or suffered, to the use of her and her heirs which is wife to the Feoffor, Conusor or sufferer, etc. And as I may make another man the instrument to convey lands to my wife, so may I be the means to convey Lands to my wife, from another man, for by Letters of Atturney-ship I may deliver seizin of Lands to my Wife for another, and the feoffement shall be good by Parkins 41. And a man may device in his last Will and Testament, either by the custom, or by the Statute, 32. H. 8. Lands to his Wife in fee, féetaile for life, or for years, because this taketh none effect, till the Coverture be dissolved.  
It is said in Scolasticus case, If I device that he shall have green acre after the death of my wife, my wife shall have estate for life by the intent, etc. And although a wife by the general rule hath no will but her Husbands, and all Testaments of a feme-covert to device any Manors, Lands, Tenements and Hereditaments are ineffectual, by express declaration of 34. Henrici 8. capite 5. soever be the courtesy among Dames of honour, a woman's name of dignity changeth with the degree of her husband, and of such women as have not their honour by birth, but acquire that by Marriage the rule of Law taketh order, Si mulier nobilis nupserit ignoblem, desinet esse nobilis when she taketh a second husband.  
But what though the scrupulosity of the Common pleas were observed throughout the Realm, that Esquires Ladies should be no Ladies in Court and Country, whereunto I will never give voice what inequality were in this depressing? shall not likewise a Knight's widow marrying with a Baron or Earl as be much exalted verament, yet you see the dignity hangeth merely on the male side, carrying the sceptre of Wedlock.   

SECT. VI Touching servitude.  
NOw touching the state of freedom or bondage, Littleton saith, that if a freeman marry a bondwoman, the Lord cannot seize her; but there is remedy by action, for taking her sans gree or licence.  
Fitzherbert in his liber●are probanda agreeth 78. G. that she should be freed perpetually: But the Law seemeth to be otherwise. And so you may find the opinion of Doct. & Stud. foe 139 b. And that indeed it is no more but a Temporary privilege and exemption from seizure of her Lord, during time of coverture, for if the Signior of a Manor marry his Niefe regardant, the best authority that I can find is, that this Niefe is no more but shrined in the honour of her Lord, if he die she shall have no Dower, but remain still in her niefitie regardant to the Manor. And to say truth, I perceive not how a woman's being married can in any sort be an enfranchisement, no not for a time: it is no more but a sconsing or hiding of the servitude. Bracton saith elegantly manumission is a detection or laying open of the freedom which is a natura. A woman's liberty is free licence to do what she list unless she be letted by force or by Law, it is not restored to Niefe when she marrieth, Marriage rather pulleth it from her which before was free: When a Seignieur therefore marrieth with his bondwoman she must not turn her bum to him and say, heretofore my Lord; I lay in your bed, and now I lie in mine own, as the French Concubine said being married newly to her French Lord, but let her be burome and mindful of her subjection, for if this loving Signior of hers die, she may right well be an apparent Niefe again to her own son for aught that I know, why not as well as causes may happen that the father to son, or one son to another may be a villeine, the case did happen 3. Ed. 3. that the villain married his Lord's mother, and so the father in Law, and the brother de demisank were villains: If a free woman marry a villeine, her natural freedom is not otherwise infringed then by subjection to her husband: If the villeine purchase Lands and die before seizure made by the Lord, the wife shall have Dower: But if a frée-woman seized in fee or fee-tails, take a husband which is a villeine and die, the Lord may enter upon the husband's possession per le Courtesy, or upon the Issue being Tenants in fee-simple or fee-tail: See the Book 22. H. 6. fo. 18. &. 19  
But may the Lord enter upon the Land during Coverture, quaere. If a villeine be possessed of certain goods, and the Lord make seizure of them by poll, this is sufficient without seizin in fait: But if the villeine die before any seisin, and ordain Executors, these Executors shall have his goods, 3. H, 4. 15. 16.  
And a Villeine shall retain goods which he hath as Executor against his Lord, yea he may bring Action of debt against him as an Executor, all to the v●● of the Testator. Also if a Feme guardian in soccage marry with a villeine, I take it the Lord shall have nothing to do in this gardianship: If a Seignioresse of a Manor marry her bondman, he is made free, and where before he was her footstool, he is now her head and her Signior, here is part of the particularity.   

SECT. VII. The Baron may beat his Wife.  
THe rest followeth, justice Brooke 12. H. 8. fo. 4. affirmeth plainly, that if a man beat an outlaw, a traitor, a Pagan, his villain, or his wife it is dispunishable, because by the Law Common these persons can have no action: God send Gentlewomen better sport, or better company.  
But it seemeth to be very true, that there is some kind of castigation which Law permits a Husband to use▪ for if a woman be threatened by her husband to be beaten, mischieved or slain, Fitzherbert sets down a Writ which she may sue out of Chancery to compel him to find surety of honest behaviour toward her, and that he shall neither do nor procure to be done to her (mark I pray you) any bodily damage, otherwise then appertains to the office of a Husband for lawful and reasonable correction. See for this, the new Nat. bre. fo. 80. f. & fo. 238. f.  
How fare that extendeth I cannot tell, but herein the sear feminine is at no very great disadvantage: for first for the lawfulness; If it be in none other regard lawful to beat a man's wife, then because the poor wench can sue no other action for it, I pray why may not the Wife beat the Husband again, what action can he have if she do? where two tenants in Common be on a horse, and one of them will travel and use this horse, he may keep it from his Companion a year two or three and so be even with him; so the actionlesse woman beaten by her Husband, hath retaliation left to beat him again, if she dare. If he come to the Chancery or justices in the Country of the peace against her, because her recognizance alone will hardly be taken, he were best be bound for her, and then if he be beaten the second time, let him know the price of it on God's name.   

SECT. VIII. That which the Husband hath is his own.  
BUt the prerogative of the Husband is best discerned in his dominion over all extern things in which the wife by combination devesteth herself of propriety in some sort, and casteth it upon her governor, for here practise every where agrees with the Theoric of Law, and forcing necessity submits women to the affection thereof, whatsoever the Husband, had before Coverture either in goods or lands, it is absolutely his own, the wife hath therein no seisin at all. If any thing when he is married be given him, he taketh it by himself distinctly to himself.  
If a man have right and title to enter into Lands, and the Tenant enfeoff the Baron and Feme, the wife taketh nothing. Dyer fol. 10. The very goods which a man giveth to his wife, are still his own, her Chain, her Bracelets, her Apparel, are all the Goodman's goods.  
If a Woman taketh more Apparel when her husband dyeth then is necessarily for her degree, it makes her Executrix de son tort demesne, 33. H. 6. A wife how gallant soever she be, glistereth but in the riches of her husband, Executors; if such chattels be given to the wife and to a stranger, the husband alone is tenant in Common of them with the stranger. Secondly, the Court did hold clearly, that in Brackbridges Case, and such like, the immediate inheritance in the Baron, did not drown the interest of the Feme, for the one he had in his own right, and the other in his wives: But by an express act, as by feoffement or grant of a new lease, he might have given away the interest of his wife.  
But leaving all to Law, the Law shall save that interest distinct, and preserve it: And it was holden in this Case, that Baron & feme might not join in an ejection firmae with Anticle, but he alone might bring his action and the Baron chased to more higher and more real Writ.  
Also it was holden the Baron might distrain or have action of debt for a moiety of the rent, and as I comprehend the end of Brackbridges case, a feoffement by Thomas Brackbridge made of the Manor whereof the Land seized was parcel, and might well drown all interest Executory which his wife had, but not a Lease executed except livery had been made in the very Lands seized, for a Lease in possession of three acres maketh them to be no parcel of a Manor during the Lease, but a rend charge, or a lease executory which is but an interest, leaveth the possession entire, and no reversion in the Baron, there is further in the Commentaries the Case of Dame Hales, viz. Sir james Hales Lessée for years, in his own right taking a new Lease for twelve years over in remainder to himself and his Wife, died felo de se, the whol● interest was judged forfeits, for the felony had relation from the act done, id est, from entrance into the water, etc. At which time the Baron had power to grant, and consequently to forfeit it.  
If the Wife have a ward by reason of her Seignory, this likewise is a Chattel real, and the Husband's interest in it shall be as in a term or lease for years: But if the wife be guardian in socage, no lease of the infant's land, though it be made by Baron and feme, per Indenture shall bind the wife, but she may enter after the husband's death, and if she die, the husband shall not have the Gardianship.  
For in this Case, the wife hath nothing to her own use, but she is an officer appointed, upon confidence in her natural love, and this office is not grantable nor forfeitable. vide not. bre. 145. I have hitherto, but shown what is wrought as it were ipso facto, upon marriage's consummation while it is green, not past a day or a week old, and I thought it methodical to insert the learning of battery, because in my poor opinion it were better to combat for household mastery in the beginning, then to bring a Writ of right for it, when it hath gone too long, by title of rusty prescription.   

SECT. XI. Of the Wife's interest of affairs before Marriage.  
NOw let us look back a little and see what shall become of the dealings which Mistress Titus had whilst she was Sempronia, an agent in the world, widow or maid sola and uncovert.   

SECT. XII. Of Infancy.  
TO debate matters of infancy would ask a whole volume pierce: But briefly know that all deeds, gifts, grants, etc. made by an Infant which take not effect, by delivery of the infant be absolutely void, By matters in fait or writing, which take effect, by hand and delivery are only voidable by the infant, or by them which have the infant's estate.  
Out of his rule are excepted acts apparently of necessity or profit to the infant, or which can be no disprofit to him, for manger boire, necessary apparel and schooling, the obligation or covenant of an Infant is good.  
Also an Infant's presentation to a Church is good enough for danger of lapse, and because it is no matter of emolument, and things done by virtue of office, as giving of goods, or payment of debts by an infant Executrix, are good, so are acts which concern the infants proper purchase. As if estate be made to an Infant of two acres, to have and to hold, the one for life, the other in fee, a feoffement of one acre made by the Infant is a good election: And it is said fo. 104. in Dyer, that an Infant is bound by all Statute Laws, if there be not an express exemption; Now whatsoever a Feme sole might avoid by infancy, she and her husband may avoid it by entry or action after Marriage, if they take the time, else not.  
For example, An infant feme sole hath title to enter for Mortmain, within a year after alienation, or title to enter into the purchase of her villeine before his alienation, if by lachesse she let slip her advantage, as she may do notwithstanding her infancy, no wise husband that she taketh afterward can mend it, for here was but a title to that which neither she nor her ancestor ever had: But if an infant Feme sole have a right, as upon disseisin done to her or her ancestor, she may always enter, whilst she is sole, notwithstanding any descent during infancy; And so may her husband which marrieth her after the descent: Littl. teacheth us, fo. 95. Chap. Descents, that lachesse of a husband which suffers descent, shall not toll the entry of a Feme covert, or her heirs after Marriage dissolved. But there is an addition to Littleton, that it is otherwise where a title is already given to a Feme sole which taketh a husband, and suffers descent, etc. for it shall now be accounted the Woman's folly that she would take such a husband.  
Howsoever it be Law, or howsoever it be understood, the Case before must needs be good Law, for an infant Feme hath as much favour as an infant Male: And taking of an husband cannot toll an entry which was saved to a Feme sole by infancy, neither do I perceive, how the husband's lachesse at the time of descent, can toll the Wife's Infancy to make any imputation of folly, where infancy might excuse it.  
By Parkins, If a man lease two acres to me for life, the remainder of one of these acres to a Feme sole, which afterwards takes a husband, and then the Lessée dying, the Baron entereth into one acre, and thereof enfeoffs a stranger by mets and bonds, the wife shall not after his death enter and if Baron and Feme make a gift in tail or lease for life of the wife's Land rendering rend, so soon as the Baron dies the reversion is only in the wife, who by accepting the rent shall bind herself and her heirs: But if she will refuse the rent because she was under age at time of the feoffement, it seems she may be received to a dum fuit Infra etatem, whereby she affirms the feoffement to be her own. If this be infallible Law, I doubt not then if a Feme infant disseised do marry, and during her infancy the husband suffereth a descent, but her entry is saved, and she may enter, after Coverture dissolved if not before: But Fitzherbert concludeth with a quaere, and so must I.   

SECT. XIII. Acts, etc. of a Feme sole being full Age.  
Understand now by a Feme sole, a Woman of full age. If a Feme sole become indebted, and marry, the Baron and Feme may be sued for this debt during life of the Feme: If the Creditor sue the recover, the Baron shall be charged with it after the wife's death, aliter non.  
A Feme sole, Lessée for life, rendering rend takes a husband, the rent is arrere, the wife dieth, though here be no recovery in the wife's life time, yet because the Baron took the profit, he is still chargeable in a Writ of debt for the rent, for quisentit commodum sentire debet & onus, If a Feme endowed of rent take a husband and die, the husband shall have action of debt for the rent arere, for it was a duty accrued during coverture: But if a man be bound to a Feme sole, and she takes a husband, and the day of payment comes during Coverture: now if she die, her husband cannot have an action of debt upon the obligation, for this was a thing in action before marriage, Nat. bre. fol. 120. & 121. And agreeing to that is 39 H. 6. 27. Br. Testaments 10. but by that book the Wife may make the Baron her Executor and so saith the Book of 12. Hen. 7. 22.  
If a Feme sole being made Executrix, take a husband, she remain still a disposer of the Testators goods to his use: and after payment of his debts she may deliver Legacies, and after all that give the rest for God's sake maugre le test sa Baron. But upon such a giving of goods or delivering of Legacies before payment of debts the husband may have an action of trespass, for gift before payment is not a right administration, but a devastation of the Testators goods, Par. fo. 2. and 18. H. 6.  
A feme sole seized of a carve of land, grants out of it a rend Charge by deed, and delivers this deed to a stranger with Condition to deliver it to the grantée as her deed, if he go to Rome and return before Easter, the Woman takes a husband, the grantée performs the Condition, the deed is delivered to him, he hath a good rend Charge, yet the Baron was seized of the land before the grant took effect, what though, if the Feme had enfeoffed a stranger of the land, he should have held it charged, for to some intent the grant hath relation from delivery of the deed as an escrow though for the rent, the grantée cannot have that but for the days incurring after the darraine delivery, and if the Feme at the delivery of the escrow had been married all had been void, Par. fo. 2. & 3. and fo. 29. some hath maintained, he saith, where a Feme sole delivers an obligation or other deed of grant, as an escrow with condition, etc. ut supra; that it should have no relation at all save only to the last delivery; for if he to whom an obligation is so made, release all action to the Feme sole, before performance of the condition, and before delivery of the deed by the baylée, he may notwithstanding sue upon the obligation, when it is delivered, which proves that it takes none effect till the last delivery; and than it must needs be void if the Woman be married at time of this delivery, if all were not countermanded presently by taking a husband. But Parkins will not yield to these reasons, for the Feme sole was a person able to oblige herself in any manner of Contract, and her covenants and agréements made upon consideration, she could not countermand though she would.  
If a Feme sole seized of Land, infeoff a stranger by deed indented reserving rend to her and her heirs, to be paid annually at Easter, with a conditional clause of entry for nonpayment, and then they two intermarry, etc. here can be no failing in performance of payment during coverture, for all this while the rent and condition are suspended.  
If the condition had been to pay ten or an hundred pound, it had been drunk up by the inter-marriage, for if a feme sole make a feoffement to a stranger upon condition to pay her ten pound, and then she marrieth with I. S. I. S. before the day of payment may release all manner of conditions, duties and demands, and the condition shall be determined. But such a release coming after the day wherein the condition should have been performed at what time the wife hath a title of entry will not bind her or her heirs, after the husband's death. Par. fo. 148.  
There followeth a question, if a Feme sole infeoffeth a man of black acre by indenture with Condition, that he shall infeoff her of green acre before Easter, and they two marry and continue married till after Easter, whether the husband be maine-tenant seized of black acre inthe right of his wife, There followeth in Par. fo. 149. a case aiding towards solution of this doubt. If I be bound by obligation to a Feme sole to marry her by monday next, if she marry a stranger and the espousals continue till tewsday, I need not tender myself to her.  
A Feme sole makes cognizance of her right to levy a fine before Commissioners per dedimus potestatem, having the Writ of Covenant (ut oportet) and at the day given in bank, when the Concord should be recorded, the woman is married, but notwithstanding the fine was recorded and engrossed, as levied by a Feme sole: the question was whether it should bind the Husband, or not, it was said, death of a party, etc. which as the act of God dissolves the whole business, by abatement of the Writ, but marrying after the teste of the Writ of Covenant, and dedimus potestatem, and Cognizance made, doth not so: The woman therefore and her heirs are bound for ever; and the Husband's release of all his right to the Conusée, makes all clear 7. & 8. Eliz Dyer 246. the Lord Keeper of the great seal of England his case.   

SECT. XIII. Of Acts done by a Feme Covert.  
Every Feme Covertis quodammodo an infant, for see her power, even in that which is most her own: A wife may be seized in her own right with her husband in estate of Inheritance: but if she make livery and seisin to another in any parcel of this Inheritance by herself alone without 'gree of her Husband it is void, yea her Husband and she together may maintain an assize upon the entry: but where only the Baron is seized, and the Feme maketh livery, the assize must be only by the Baron in his own name: Par. 38. Likewise fo. 2. he telleth us, where a man is seized in the right of his wife, and the wife grants a rend charge out of her own Land, the Husband not knowing it, or the Husband knowing, but not consenting; but the deed is only in the name of the wife, this grant is void. Admit the Husband be vagrant out of the Country, and the Wife (ignorant of his life or death) grants a rend Charge by deed reciting that▪ she is sole; yet if the Grantée enter and distrain for the rent, the husband may maintain an Action of Trespass for this entry.  
Admit that this una caro Baron and Feme through false love or jealousy, be set at nine miles asunder variance, and certain Lands are assigned to the Wife by the Baron for her maintenance, if the Wife grant a rent Charge out of this Land, it is merely void.  
If a Feme Covert grant a rent Charge out of her land by fine, as though she were sole, this bindeth not the Husband; but if he die before he and his Feme have reversed their fine by error, the Feme shall be bound.  
And if to a Feme Covert there be a feoffement made (a feoffement and livery is of great celebrity) yet a naked disagreement of the Baron avoideth it 1. H. 7. fo. 16. If a Feme Covert (her Husband being beyond the Seas) be enfeoffed of an acre of Land, and the Husband coming home refuseth, and causeth the Wife likewise to relinquish all manner of seisin or taking any profits of the Land, this in a Writ of entry, sur disseisin in le per brought against the Baron and Feme will discharge the Husband of damages from the time of the refusal, but not for the occupation before refusal, tamen quaere, Par. fo. 10. yet (saith he) they remain Tenants (for all the refusals) of the Frank Tenement to use any action so long as none other person entereth: but if a Tenant when his Signior is beyond the Seas, do infeoff his Lord's wife jointly with a stranger of the tenancy, and the Lord coming home distrains the cattle of the stranger for his rent, this distress is a complete disagreement, and puts the Wife out of seisin, so that now the possession remains entirely to the stranger the joint feoffée; otherwise the husband should be at a shrewd mischief viz. without remedy for his rent, for all the time incurred before the distress, Par. 10. Note that in these Cases it is no plea, for the grauntor to say that the Baron did not agree, but he must show the disagreement.  
A Feme Covert may be a disseiseresse without assent of the Baron, and he shall be charged with damages, in assize against him and his wife: But if the Baron do a disseisin to the use of his wife and she agrees to it, the Frank Tenant for all this settleth not in her, for the entry of a husband gaineth nothing to his wife, but where she hath either right of entry (as upon disseisin) or title of entry as upon a Condition, etc. A Feme Covert makes a Testament of the goods of her husband, she dieth, the Executors prove the testament, if the Baron now will deliver the goods to the Executors, this maketh the Testament good; for howsoever it might be accounted void, being made without the husband's consent, yet being once proved, it gathereth spirit (as it were) and the delivery of the goods, shall employ an assent before the will was made, note that licence or assent here, is sufficient per paroll, Par. 97.  
A Feme Covert may take an assumption from any man for her Husband, she may take an obligation or feoffement to herself, she may commit a disseisin, and her husband by his assent shall be a disseisor, ab initio: She may give, sell, or charge her husband's Chattels, by his assent, as a horse or such like, and she is not so like a Monk that all her acts should have an impossibility of taking any strength, but her husband's agreement coming after them, shall make them good whether they be to his advantage or disadvantage, 27. H. 8. fo. 24. But the acts of a Monk cannot be made good by agreement of the Sovereign.  
And in the end of the case, Fitzherbert affirms, that when a Woman makes a gift of her husband's goods, the Husband's post-assent is a new gift. One thing I will add, That though a gift made by a wife of things which are quickly gotten, and quickly gone, (chattels I mean which require no solemn conveyance) and the Wife hath a meddling with them may be made good by agreement, yet a feoffement made by the Feme, cannot be made good by the Husband's bare consent succeeding.  
Now for Executorship of a Feme Covert note that per Brian, 2. H. 7. fo. 15. b. she cannot be an Executor without the agreement of her Husband, and per mesme le reason, she cannot give goods of the Testator without his consent▪ for upon return of devastaverint, the Husband's goods shall be put in execution: The case in the book, is of an Executorship, before Coverture. And remember that Fitzherbert saith, 28. H. 8. Dyer fo. 7. If the wife have a Lease by Executorship, the husband cannot sell it, sed tota curia con●ra eum: But a Feme Executrix to her first husband may retain goods against the Executors of her second Husband, if he neue● did alienate them. 21. H. 7. per Fineux.   

SECT. XIV. Of Elopement.  
AMongst the acts of a Feme Covert, I must not forget to admonish her that she take heed of Elopements, A woman shall not forfeit Dower by not suing appeal of her Husband's death, or by not visiting her husband, or not coming to comfort him when he is wounded or exceeding sick in a foreign shire; but i● he be in his home County where he dwelleth, quaere: A woman in her frenzy may cut her husband's throat, and it is no forfeiture of Dower; but if she make an Elopement (which is a mad trick) Dower is forfeited. Elopement by the sound and quality of the offence might seem to be derived from alopex a fox, for it is when a woman seeks her prey fare from home, which is the fox's quality. But the word seemeth to be French, there is a fair Statute against Elopement, West. 2. ca 34. Si uxor sponte reliquerit virum & abierit & m●retur cum adultero suo, amittat in perpetuum actionem p●tendi dotem, quae ●i competere posset de tenementis viri sui, si super hoc convincatur, nisi vir suus sponte & absque cohertione Ecclesiastica came reconciliet & secum habitare permit●at, in quo casu restituatur ●i actio. A Woman that leaves her husband, goeth away and abides with her adulterer, if she be convicted thereof, loseth for ever her command of Dower, etc. unless the Husband of his own free accord without ecclesiallicall compulsion suffer her to be reconciled and to cohabite with him, in which case her action is restored for Dower.  
It is commonly holden (saith Parkins) that a Woman shall lose her Dower by voluntary Elopement, though her abiding be involuntary, and though she make none abode at all with her Adulterer: But if she be ravished, and demur with the Ravishor, against her will, she loseth no Dower. If when the husband is commorant at one manor, his wife departed to another of his manors, and there live in adultery, this is none Elopement, for it cannot but be intended, she cannot abide there without 'gree and goodwill of her Baron; ye shall have a case for your erudition out of my Lord Dyer concerning this matter: of Dower was demanded of a Manor, ex dotatione Domini Powes by R. H. and Anne his Wife, it was pleaded that the said Anne in vita Domini Powes.  

Frankly of her own accord,  
Left her Husband and her Lord,  
And from bednal▪ Greene she ran  
With Matthew Rochlei Gentleman   
To the parish of Saint Clements Danes, where she lived in adultery, all the life long of Lord Powes, abs●▪ hoc that ever she was reconciled, the demandants pleade● a reconciliaui● & cohabitare permisit, the rejoinder is non reconciliavit modo & forma.  
To prove the reconciliation, a lying together diverse nights at diverse places was given in evidence▪ with demeanour, as Baron and Feme; against this it was objected that they never were resient or abiding in one house together, but always in sunder, and that the woman continued in adultery with one or other continually, as long as her husband lived. Et non allocatur, for there may be many Elopements with many reconciliations, and the Defendant at his peril must take issue upon one, 1. & 2. Phi. & Mariae, Dyer, fo. 107. But me thinks here wanteth equality in the Law, women go down stile, and many grains a● lowance will not make the balance hang even: A poor Woman shall have but the third foot of her Husband▪ lands when he is dead, for all the service she did him during the accouplement (perhaps a long time and a tedious) an● if she be extravagant with a friend ut supra, this is an Elopement and a forfeiture, etc. But as the saying is, men are happy by the mass, they may go where they list I warrant ye, and because they are enforced to travel in the world, they will pay dear abroad for that which they▪ stéeme of no value at home. Their adulterous soi●●rning● is not discerned, they may lope over ditch and Dale, a thousand out-ridings and out-bidding is no forfeiture, but as soon as the good wife is gone, the badman will have her Land, not the third, but every foot of it.  
Have patience (my Scholars) take not your opportunity of revenge, rather move for redress by Parliament, and in the mean season be persuaded that liberty or impunity in doing evil by immodest life and lascivious gallops, is no freedom or happiness: no, but rather act thus fare your Husband's duty of instruction, namely, to learn him to leave his incontinency abroad, by your modest and chaste life at home. And if this will not produce you, the comfort of your Husband, yet a fare greater comfort the effect of balaam's desires, Let me die the death of the righteons, and let my end be like his.   

SECT. XV. The Husband's power in Lands, which the Wife holdeth in Dower or otherwise for life.  
THe Husband's Sovereignty over his wife, her goods, and chattels personal or real, is no less than hath been declared. The dominion likewise over▪ all manner of Frank Tenements his own or his Wives, is supereminent in him during Coverture, but so that he standeth well bridled from doing any thing a per luy, whereby either the Dower which his wife had by a former marriage, or expecteth by the present or any other estate for life or in fee, can be taken from her when he● is gone: If a Widow tenant in Dower marry, and her new husband surrendreth, etc. this is good during Coverture, but if the Feme survive, or if there be a Divorce causa praecontractus, the Feme may enter and defeat the surrender, though he to whom it was made be dead, and his Heir in by descent, yea and the Law differeth not here though the Wife had joined with the Husband in the surrender: But if Baron and Feme will surrender Lands which the wife holdeth for life by fine, this shall bind the wife, for the wife which is giver shall be examined, etc. for no particular Tenant can surrender by fine without being named in the writ, whereupon the fine is levied, Par. 117.  
If a lease be made to Baron and Feme for life, and the Baron make alienation in fee, the Lessour may enter for a forfeiture, and maintain an assize, if he be ousted: but the Wife sur●i●ing, may have a cui in vira post mortem is by a husband disseised, release all his right to the husband, and afterward notwithstanding the release brings a writ of entry in nature of an Assize, and recovereth against him by default, the wife of the releassée shall be endowed. But if the Heir of a disseisor being in by descent, the disseisée re-enter, and take a wife, now a recovery against the Baron by default or reddition in a writ of entry in nature of Assize taketh away Dower from the wife, for the recoveror had right according to the nature of his action, and the possession which the Baron had during Coverture is destroyed: But it falleth out otherwise where a man is married, and then there is a disseisin, descent, entry and recovery, ut supra.  
If a Praecipe be brought against the Baron which pleadeth misnosmer, or jointenancy, and it is found against him, whereby the demandant recovereth, this ousteth not Dower, unless the Demandant had right.  
In a writ of entry in le post against the Baron, he voucheth himself to save the state tail, and showeth how his father gave him the land in tail, and that the fee simple is descended unto him, and upon a traverse of the gift in tail, it is found for the demandant which recovereth, and the Baron dieth: Now if so be that the Baron might well have pleaded a release of all actions or all right of the demandant, the Wife may falsify this recovery in her writ of Dower: Tenant in tail having Issue dieth, a stranger abateth, dieth, his heir entereth, and takes a wife, the Issue of tenant in tail, arraings an assize of Mortdancestor, against the Baron which traverseth the points of the writ, and they are found against him, so that the demandant recovereth, and the Baron dieth. It hath been holden that the wife shall not recover Dower here, until the heir have reversed the verdict by attaint. But it seems (saith Parkins) he may falsify the recovery in a writ of Dower main tenant; for the husband might have pleaded to the action of the demandants writ, and if the Feme (which by no means might have attaint) must tarry till the Heir have defeated the verdict, perhaps he will never sue attaint, or he will release, & so the wife which once was entitled to dower by her husband's possession, never defected but by his own lachesse, should lose her Dower maugre sat est, which seemeth unreasonable: Yet quaere (saith he) for the judgement is upon a verdict, comprehending matter repugnant and contrary to that which should he pleaded against the writ: But if the demandants entry had been congeable: then out of doubt the wife had had no power of falsifying, for the entry had wrought a remitter.  
The Heir of a Disseisor entereth, taking a wife, and the Disseisée in a writ of entry, ad terminum qui preterite, recovereth against the Baron by default, the wife may falsify this recovery in a writ of Dower: But it is seldom that the demandant in Dower shall falsify a recovery against the husband, had by his lachesse in not pleading a plea, which went merely in abatement of the writ.  
And therefore to say that the Baron might have pleaded misnosmer or joint-tenancie will not serve to falsify a recovery: But if she can prove that the demandant had no right nor cause of action, but jointly with a stranger, which stranger by his deed shown forth to the Court had released before commencement of suit all his right to her husband being in possession, this will serve to falsify the recovery for a moiety.  
Thus hath Parkins in his treaty of Dower at large discovered, that a title never tried against the Baron in his life time, may be tried by his wife when he is in his grain: And so further 36. H. 6. titulo fauxifier de recovery in Fitzherbert, 15. That a woman may falsify a recovery had against her husband by action tried, but it must be in another point, and not in the very same which was tried by the recovery.   

SECT. XVII. Loss of Dower by the Husband's attainder.  
He that hath a notable grudge against his wife, and would be sure to delude her hope of Dower, hath adirect way, though it be somewhat dangerous, and I will not be of his Counsel: He needs do no more but imagine, compass, and conspire some detestable renowned treason of the old stamp; and if he be once attainted thereof, according to his desire, etc. But if he do but pingle, as suffer himself to be outlawed, in action of trespass, this was never any forfeiture of Frank Tenement: The Law was in the late days of Littleton and Parkins that every attainder of murder or felony done by the Baron▪ was an ouster of dower to the wife. The first Solons of the English Law be like thought that tender regard of a wife's estate, should restrain a husband from all inormious transgression against the sacred Crown and dignity Royal, would God it might: but the true reason why the law was so penal for such offences of the husband toward the wife, (in whom perhaps was no fault) that thereby she should have no Dower: and towards the children that they should have no descent of inheritance, but the hereditary blood should be corrupt) was upon these reasons grounded upon the Law of nature, and given by justice Stamford in his book fo. 194. saith he to this effect, men will now eschew those Capital crimes when they shall see those persons who in nature and affection are nearest and dearest unto them, and most to be beloved, shall be punished with themselves: so that if themselves will not refrain such crimes for themselves, yet they should the rather refrain for the love of their wife & children upon whom they bring so perpetual loss and punishment and stain of so infamous a note as that their stock, blood and Lineage shall be corrupted and attainted, their children disinherited, and the wives of their bosoms because the wives of such impious and foolish Husbands, by their defaults deprived of all their means and livelihood. And Breton fo. 258. makes another reason why a wife of a man attainted, etc. shall lose her Dower est pur ceo que est a supposer que el scavoit del felony son marry, and by him a woman lost no Dower, in case the felony were committed before Coverture.  
King Edward the sixth in the first year of his Reign abrogating some Statutes concerning treasons or felony, for their austerity, and making some new decrees concerning treason, preserved Dower against all perpetrations of an evil husband: But 5. & 6. eiusdem regis ca 11. by the last proviso, It was again enacted, that no Wife of any person attainted of treason should be received to demand or have Dower, etc. Yet for felony 1. Ed. 6. is still in force.  
And treasons by Act 5. Eliz. ca 1. for assurance of her Majesty's royal power, or by the Act eodem anno cap. 11. against clipping, washing, rounding or filing of Coins, or by the Act 18. Eliz. ca 1. against diminishing or impairing the Queen's Coin or other coin currant here, do none of them make any corruption of blood, or forfeiture of Dower.  
Note, if after attainder the Baron purchase his pardon, this is so fare forth a new birth unto him, that his Wife shall have Dower of the Lands which come to him after pardon, if his Issue by her may per possibility inherit. Par. 75.  
And remember this Case, 3. & 4. Phi. & Marie, Dyer 140. b. Marry the wife of Sir john Gate, attainted of treason brought a Writ of Dower, against Wiseman the attainder of Sir john; was certainly pleaded in bar, she replied, that long time before the attainder and before the treason committed, after the Espousals, the said Sir john▪ Gate was seized in fee of the Land whererof she demands Dower, and thereof enfeoffed A. B. whose estate the tenant hath upon a demurrer, without argument at bar or bench the Council of the parties being heard in justice Brookes Chamber, the demandant was barred of Dower, by opinion of all the justices, because the Statute is, The Wife of a man attainted of any manner of treason whatsoever shall in no wise be received to ask, challenge, demand or have dower of any her Husband's Lands during the force of that attainder: And by Stamford, 195. this extendeth to petty treason: But nota, (saith Dyer) the Lands here sold and gone before treason committed, were never subject to forfeiture or escheat, ut in causa Vavisor, M. Littleton in the Chapter of Dower: And therefore Antho▪ Brown Sergeant was angry at the heart for this judgement: See Littleton fo. 11. per Vavisor. If a man commit felony, alien his land, and then be attainted, the Wife shall have action of Dower against the Feoffée, but not against the King or Lord, if it be escheated.   

SECT. XVIII. The Husband's power in his wife's inheritance, and of discontinuance.  
A Woman's Inheritance is Lands of Inheritance which she hath by descent or purchase, and her Marriage such as was given her in Frank Marriage by learned M. Littleton: But take here all fée-simple or féetaile, which she hath sole by herself, or jointly with some other to be her Inheritance.  
Then know that at Common Law a man seized in the right of his Wife of green acre, may make a feoffement of it to a stranger, and this is such an interruption (called a discontinuance) of the wife's estate, that not only the Baron is bound whilst he liveth, but the Wife also when he is dead is by common Law forbidden entry into her own land, and put to her action of cui in vita, but if a man seized in the right of his wife be disseised and release to the disseisor (though it be with warranty) this is no Discontinuance.  
If a man seized in fee in the right of his Wife, have Issue by her a son and die, and then a second Husband makes a Lease of the Land, for term of his life, and the Wife dyeth, if now the Lessée surrender to the second Baron, it is a question, whether the son can enter during the life of lease for life: But clear (saith Littleton) when he is dead, the son may enter for the discontinuance which was but forth life, was determined.  
If Tenant in the right of his Wife make a Lease for his own life, the reversion in fee is in the Baron: If he die in the life time of his Wife and of the Lessee, and his heir grant the reversion with atturnament, now though the grantee enter, after the death of the Lessee, yet the wife may re-enter: for as an estate tail cannot be discontinued, but by one which is seized by force of the entail, so the estate of a Wife, is not discontinuable but by him which is seized in the wife's right.   

SECT. XIX. Of a Remitter.  
YOu must understand somewhat also of a Remitter. And because women learn faster by example then by precept, I will not stay to define a Remitter: Baron and Feme seized together in special tail, have Issue a daughter, the wife dyeth, the Baron catcheth another wife, hath Issue by her another daughter, discontinueth the tail, disseiseth the discontinuee and dieth, now is the Land descended to the two daughters, the eldest daughter is remitted (that is remaunded and settled in the ancient estate) for a moiety, and driven to a Formedone against her Sister for the other moiety, for here the Sisters are by several titles tenants in common not parceners.  
If Tenant in tail infeoff a Feme sole and die, and then his son being under age, intermarrieth with the Feme Feoffée, this is a remitter to the Son, and his wife which before had fée-simple hath now nothing at all in the land. But if the son had been of full age at the time of espousals, he had not regained the ancient estate, but stood seized only in droit sa feme. If a Woman seized, etc. take a husband which alieneth in fee, and then takes back an estate to him and his wife for life, this reprisal (though it were by Indenture or by fine) is merely the act of the Husband, and the woman sans folly is adjudged in her Remitter, the reversion of the Lessor running to smoke, rightly to smoke, which is something more than nothing: for if after all this the Lessor bring an action of waste against the Baron and Feme, the Baron cannot bar her by showing her reprisal and remitter; but he is stopped from speaking against his own Feoffement and receipt.  
So that here may be an estoppel or conclusion by a matter not witnessed with specialty or any manner Scripture: But if in the action of waste the Baron will make default, at the grand distress, the wife upon her prayer received to show her matter shall bar the Lessor of his action right well.  
For in every case where a woman is received to plead in her husband's absence, she shall have advantage as if she were a Feme sole. And the reason why rendering back the land by the Alien to Baron and Feme worketh a remitter, though it were by ●ne, is because a Feme Covert that taketh any thing by fine is never examined by the justices.  
But where somewhat is to be conveyed, from a Feme Covert, by a fine, as if Baron and Feme make cognizance to another, etc. or a grant or render, or a release by fine, in all or such like cases, because the right of a Wife is passing, and she shall be eternally concluded, she must be examined before the fine can be received: and if she confess that her husband menaced her if she would not levy the fine, etc. it shall not be received 15. E▪ 4▪ ●0. 1. But where nothing is moved in fines, save only a wife's purchase and gaining, there is used none examination of her, and therefore such fines do not conclude her.  
If Tenant in tail discontinueth it and dieth, and the discontinuee makes a Lease to the Daughter and heir of the Tenant in tail being of full age, and to her husband for their two lives, the daughter is remitted: If Baron and Feme Tenants in special tail be, and the Baron alieneth in fee, and takes back an estate to him and his wife, for their liue●, because they are but one person, and the estate is likewise one and entire without moities, and the Feme cannot be remitted here without the Husband be also remitted, they are adjudged both in their remitter: But the Baron himself is stopped from claiming so much contrary to his own alienation.  
If Lands he given to a Woman in tail, remainder to another in tail, remainder to a third in tail, with remainder over in Fee, if the woman take a husband that discontinueth in fee, all the remainders are discontinued, and if the Wife dyeth without Issue, there is no remedy but a Formedon by turn, if the first, second or third Donée die without Issue: But if after the discontinuance an estate be made to the Baron and Feme for their own life or another man's life, or any other estate, the Wife is remitted and so are all they in remainder. If the Feme die, the next in remainder may enter, and so is it for them in the reversion after the caile is ended.  
A Lease of a house is made to a Feme sole for term of her life, and in a ●aint or false action a stranger recovereth this house against her by default, so that she may have a quod ei deforcear by West. 2. ca 4. now is the reversion of the Lessor discontinued, and he cannot have an action of waste. But if the woman marries, and the recoverer lease this house to the Baron and Feme for life, the wife is remitted to her first estate by the Lease, the first Lessor to his reversion, and he may have action of waste if there because.  
Yet here if the other which recovered in the false action bring an action of waste, the Baron hath no other remedy but to make default at the grand distress, and then the wife received, may bar him by showing the faintness or falsehood of his action whereby he recovered.  
If after discontinuance, etc. the Baron take back estate to himself and his Wife, and to a third person, this is a remitter for a moiety, and for the other moiety the Feme must sue her cui in vita after the death of her Husband.  
If after discontinuance of the Wife's estate, the Baron go beyond the Seas, and the discontinued lease the Land to the Wife for life, and deliver seisin; if the Baron agree thereunto at his return, this is a remitter, for the Feme shall be adjudged as an Infant, and not as a Feme sole in this Case, Quaere (saith Littleton) if the Baron at his return disagree, etc. whether this oust the Feme of her remitter.  
If the Baron discontinue, the discontinuée be diseised, and the disseisor lease! the tenements to the Baron and feme for life, this is a remitter to the Wife, though the Baron were consenting to the disseisin: But if the Baron and Feme were both of Conen and Consent to the disseisin, the wife shall be a disseiseresse and not remitted.  
If the discontinuée make back estate to Baron and Feme by indenture upon condition, viz. rendering rend, and for fault of payment reentry, and because the rent is ar●eare, the discontinuée doth re-enter, upon this entry the woman may have an assize of novel disseisin after the husband's decease, for the condition by the remitter, was clean extinct in truth, though during coverture the Baron was estopped, etc. so that he and his Wife could not have an assize together.  
If the Baron discontinue, take back estate to himself for life, the remainder after his decease to his wife for her life, here is no remitter till the husband be dead: but the Wife surviving, Frank Tenement is cast upon her main Tenant will she nill she by act of Law, and she is remittted, for though she enter not, yet she can have none action against any body for this land; but any man that hath cause may have action of it against her, because a recipe quod reddat is maintainable against tenant in ley, and that is the widow here: But Tenant of Frank Tenement in fair, is one which hath an actual seisin, and upon disseisin thereof may maintain an assize.  
The Statute of Gloucester perceived how by common Law a man may play fast and lose with his Wife's Inheritance by feoffement to discontinue her estate, and to continue it again by resumption▪ and so to make it Inheritance or not to his wives at his pleasure. But a feoffement doth only bar the Wife's entry, what if to his feoffement the Baron aims warranty, what if to his warranty assets, what if he levy a fine? Gloucester, ca 3. anno 6. Ed. 1. is,  
If Tenant by the Courtesy alion, etc. his son shall not be barred in a Writ of Mortdancester by the deed of his Father, from whom none heritage is descended, to demand and recover the mother's land, although his Father's Charter be with warranty for him and his heirs: But if land descend to him the part son pere, he shall be foreclosed, for the value of so much as is descended.  
If after the Father's death, any heritage descend from the Father, the Tenant shall recover against him of the mother's seisin by a writ of judgement out of the rolls, etc. which the justices before whom the plea was pleaded, shall grant to re-sommon the warranty, as hath been accustomed in other cases where the voucher pleads ●iens a luy descen●r● from him upon whose deed he is vouched, etc.  
And in like sort, the Issue of the son shall recover by Writ of Cousinage, ail, or besaile. In like manner the Wife's heir shall not be barred after the death of his father and mother to demand by Writ of entry, his mother's heritage, which his father in her life time aliened dont nul fine est le vie in court le roy.   

SECT. XVII. Mr. Littleton's gloss upon the Statute of Gloucester.  
BEfore the Statute (saith M. Littleton) if Tenant by the Courtesy did alien, etc. in fee with warranty, only this, after his disease, should bar the Heir: for this was a collateral warranty before the Statute. Since the Statute it is clear, that whether tenant by the Courtesy, or tenant in the right of his wife, do alien the wife's heritace or marriage by his deed in pais, which warranty leaving none assets, it is no bar to the heir: But what if the Baron alien by fine levied in the King's court, with warranty, shall this bar the heir without any thing descended in value?  
Newton Chief justice of the Common place, thought it should by implication of words: for he took dont nul fine▪ etc. to be a general exception, and therefore this alienation by fine with warrant to remain a collater all warranty, as it was at Common Law.  
But Littleton giveth his voice with them of contrary opinion which thought it an obscure exposition to permit irrevocable alienation by Tenant in droit sa feme only by his warranting concord without assetts when the Statute hath in the beginning taken it expressly from tenant by the Courtesy alienating by Feoffement. Nul fine therefore, is as much to say, nul loyal fine rightfully levied, viz. a fine levied by Baron and Feme, for it is true that before this Statute was made (and somewhat after it too) there was no estate tail come into England. A fine might then well and rightfully have been levied by Baron & Feme, the Baron's heir be bound with warranty, and the wife's heir barred for ever: But now since the Statute if Baron and Feme had made a feoffement in fee by deed in the Country, the woman's heir after decease of them both may have a Writ of entry, sur cui in vita, for all the husband's warranty. And this Statute of Gloucester, had left a fine no more force than a feoffement here, if the final exception had not been; for when it comes with insement & in mesme le manner giving a writ of entry to avoid the alienation made by the father in the mother's life time, this might be extended perhaps to a fine levied by them both, for where the Baron and feme doth alien by fine, its true that the Baron doth alien: Lest therefore a fine levied by Baron and Feme should be thought to be inféeblished, this exception of a fine was necessary, and it is to be intended of a fine loyal: For when the justices know once that tenant in right of his wife, cometh to levy a fine only in his own name they will not receive it.   

SECT. XXI. Dyers Exposition.  
LIttleton in this discourse seemeth to speak, as if he took a warrant without assets made by tenant per Courtesy, or iure uxoris, to be no collateral warranty now a days, whereat I marvel. A man may have a vein cut under his ear, that shall disable him from performing a great part of manhood; but he shall be a man notwithstanding, and a horse may be so foundered that he shall neither well go or stand, and yet a horse still: So this kind of warranty gelt or foundered by Statute remains collateral nomine & specie, Dyer is so fo. 148. at Common Law (saith he) guarantee by tenant per le courtesy was collateral & uncore est come ieo intent: But it it is no bar in Mortdancester, aiel or cousinage, without assets in fee simple descended ie & facto, whereas before the Statute it was brought to be intended and supposed, and this Statute is taken strictly: for the law at this day is come ieo intent, if the heir do not enter upon the alien of his father in vita patris, that he shall be bound and barred of his entry by the warranty.  
If the Father be disseised, and release with warranty, the heir shall be barred without assets both of entry and action also, for this is none alienation by tenant by the Courtesy. In the last point of the Statute of Gloucester for alienation by the husband, in vita uxoris, etc. if he alien the purchase of his wife with warranty: this is out of the Statute, for heritage or marriage is not intended purchase by her.  
So much my Lord Dyer, note that both he and Littleton stand upon the word Marriage, which indeed is not in the letter of the Statute.   

SECT. XXII. The Statute of 32. H. 8. ca 28.  
We have passed the pillars, not of Hercules but of Littleton in the Husband's power over his wife's Inheritance, now let us look plus ultra with Columbus.  
King Henry the eight and the Parliament ordained in the year above specified, That all Leases of Manors, Lands, Tenements, or Hereditaments hereafter to be made by Indenture sealed for years or for life, by any person or persons being of the age of one and twenty years and seized in fee-simple or féetaile, in the right of themselves, their Churches or wives, or jointly with their wives of any estate of Inheritance made before Coverture or after, shall be good, etc. against the Lessors, their wife's heirs and Successors, etc. according to the estate comprised in such Indenture of lease, in like manner and form, as if the Lessors and every of them at time of the Lease making, had been seized in pure fée-simple to her own only uses: proviso, that this act extend not to Leases made of Manors, Lands, Tenaments or Hereditaments, being in the hands of any fermor or fermors by virtue of any old Lease, unless the old Lease be expired, surrendered, or ended within one year next after making of the new Lease, nor shall extend to any grantée of reversion, &c▪ nor to any Lease of any Manors, Lands, Tenements, etc. which hath not been commonly let to ferme or occupied by fermors by space of 20. year's next before such Lease, nor to any Lease made without impeachment of waste, nor to any Lease to be made for above 21. years or three lives at the most from the day of the making thereof: And upon every such Lease there shall be reserved yearly to the Lessors, their heirs and successors to whom the Lands should have come after the Lessers death, if such Lease had not been made, or to whom the reversion shall appertain so much or more, annual farm or rent as hath been most accustomably yielded, etc. within twenty year's next before such Leases were made. And every person to whom the reversion shall appertain after the death of such Lessors or their heirs, shall have such remedies a advantages to all intents, against the Lessées, their executors or assigns, as the Lessor might have had: So that if the Lessor were seized in in special tail, etc. the issue or heir of that special estate, shall have the reversion, rend and services, etc.  
Proviso, that the wife be made party to every Lease made by her Husband of any Manors, Lands, Tenements or Hereditaments, being the wife's Inheritance, and that every such Lease be by Indenture in the name of the Husband and the Wife, and she to seal the same: And that the ferme be reserved to the Husband and wife, and to the heirs of the Wife according to her estate of Inheritance: And that the Husband shall not in any wise alien, discharge, grant or give any the rent, or any part thereof, longer than during Coverture, without it be by fine levied by the Husband and wife, but the rent shall remain, descend, revert, or come, &c in such sort and manner as the land should have done if no such Lease had been made provided that this act extend not to give liberty of taking more fermes, etc. then before was lawful, etc. nor enable Vicar, or Parson to make or grant their Lease of Messages, Lands, Tenements, Tithes, etc. or Hereditaments belonging to their Church or Uicarage: And it is further enacted that all Leases made within three years before the twel●th of April in the 31 year of H. 8. made by Indenture sealed by person or persons of full age, of whole memory, not unlawfully coacted, nor under Covert Baron, for term of years, of any Manors, Lands, tenements, or Hereditaments, whereof the Lessor or Lessors were seized in any estate of Inheritance, to their only use at the time of their Lease-making, and whereof the Lessées, their executors or assigns at time of this act Making, were in possession by virtue of the Lease, no cause of reentry or forfeiture being had or made, shall be good and effectual in law against the Lessors, their heirs and successors according to the covenants and agréements specified in the Indenture, etc. so that there be reserved to the Lessors their heirs, successors, etc. as much yearly rent as was at any time yielded within 20. years before making of any such lease, or else the Leases to be of none other effect than they were of before this act.  
And moreover it is ordained that no fine, feoffement, act or acts to be made, suffered, or done by the husband only of any Manors, Lands, etc. being the Inheritance or fréehold of the wife during Coverture between them, shall in any wise be, or make any discontinuance or be prejudicial to the said wife or her heirs, or to such as shall claim right, title or interest by her death: But that she or her heirs, or they to whom such right or title shall appertain, after her decease shall and may lawfully enter into such Manors, Lands, etc. any such fine, feoffement or other act notwithstanding, except fines only levied by Baron and Feme, whereunto the wife is privy and a party. Provided that this clause extend not to give any liberty to any Wife or her heirs to avoid any Lease hereafter to be made of any her Inheritance by her husband and herself for 21. years or under, or for three lives at the most, whereupon yearly rent shall be reserved ut supra: Provided also that this act extend not to any Lease heretofore made by Ecclesiastical or other person by Co●e●t or Common-seale, which Lease is made void by act of Parliament, nor to make good any Lease of any Ecclesiastical person made by cruent, seal or otherwise, or of any other person attainted of ●reason▪ etc.   

SECT. XXIII. The Exposition.  
THis Law in the first part is affirmative, or I may say leasative, a leasing Law or Statute, Tenant in fée-simple, iure mero suo nothing restrained by it: No more is Tenant iure uxoris, but he may make a Lease for years, to continue till the last hour of Plato's great year, or till King Arthur come again (for all this Statute) for no greater rent than three bundle of bulrushes, as well as he might before although her land were never leased before, since Noa●s flood, and such a Lease shall bind him during Coverture.  
But if the Husband make a Lease by paroll or by poll deed, or by Indenture, and the wife not party; or if the Land were not informer times demised, or if the ancient rent or more be not reserved, then as the earth stayeth in the world's centre upon nothing but God's providence and permission▪ the Demisée leaneth upon no Statute, but hangeth at the wife's courtesy, ponderibus librata suis, as at Common Law.   

SECT. XXIV. Law before the Statute.  
HOw that was, ye shall perceive by the cases following; If before the Statute of quia emptores▪ tenant in fee, iure uxoris enfeoffed a stranger expressing no tenure, the feoffés was to hold of the Baron by such services as he and the Wife held by of the Lord Paramount. If the Baron and Feme had joined in a Feoffement to hold of the Baron, etc. th' expressed tenure had been void, and the Feoffee must have held of them both by such services as they held over, etc.  
If the Baron in this case had died, and the Wife accepted the rent in her viduity, this acceptance here barred her for ever from avoiding the Feoffement by Writ of cui in vita. If Tenant iure uxoris and his Wife, had made a Feoffement to hold of the Wife, the Feoffor should have held of them both, and if the Wife had died, the Feoffor was to hold of the Baron till the feoffement were avoided by sur cui v●a, Par. 126.  
Again, if before this Statute of 32. H. 8. Tenant in fee iuro uxoris, and his wife had joined in exchange for other lands in fee, and the exchange being executed, the Husband had died; now the Feme by entering in upon the Land given her upon the exchange, should be barred for ever from defeating the exchange. But if it had been made by the Baron alone, she might have defeated it notwithstanding her entry▪ for that could give noseisin by force of the exchange to her that was neither party nor privy to it, Par. fo. 8.  
And if a man seized in right of his Wife, etc. make a Lease for life rendering rend with a letter of Attorney to his Wife to make livery, the Wife delivers seisin, the Baron dieth, she accepts the rent, the may have a cui in vita by the common Law, for the acceptance here maketh not the Lease good, because the livery which the wife made, was as servant to her Master and only the act of the Baron, Par. 41. we have concerning acceptances some plentiful Learning, 21. H. 6. fo. 24. Ascu saith there, That if Lessée for years be in arrearage of rent and die, his Executors shall pay the arrearages if they occupy the Farm, contra, if they waive possession, and so if a Lease for life be made to Baron and Feme, the Baron commits waste and dies, the wife shall be subject to an action for waste done by the husband if she occupy the land; contra, if she waive the possession, and by Paston in the end of the case, if Baron seized ●ure uxoris▪ make a lease for life of the land, and die, the wife can have no action of waste, for she was not party to the lease, & ex hoc sequitur, that a woman upon acceptance of rent of lease for years made by her husband without being herself a party, is not bound, but she may enter: And albeit the lease were for life, yet acceptance barreth not a cui in vita, if she were not party, etc. 26. H. 8. ●●. 2. per curiam, if Baron and Feme sell the Wife's land, make feoffement, and the Vendée by the Indenture of sale covenants to pay ten pounds annually to the Baron and Feme during their lives, if the Baron die and the feme accept the ten pounds, this is no bar in cui▪ in vita, no more than acceptance of rent after Marriage dissolved, where the Baron a per luy made a feoffement or lease.  
But acceptance of rent, etc. where they both made a feoffement or lease for life is a bar of all actions. I will hunt for no fare fetched learning of acceptances: but this I find, if a man lease his land to ●. 8. to hold at will by certain rent, none acceptance of the rent here, after the Leassors death can bar the Heir of entry, or make any affirmance of the lease, for acceptance can neither make good a lease determined by entry, or a lease already void without entry by the lessors death.  
And he that leaseth to hold at will endeth that will when he endeth his life: but a lease for years by an Abbot or Tenant in tail, is not by their death presently void, but voidable, and the successor or Issue by acceptance of the rent affirms the Lease; So doth the Feme affirm the Lease made for years, by her husband of her Land, by acceptance when she is become sole: and see Dyer, 5. Mar. 159. by the opinion of three justices, Dyer, Stamford and Browne, if Baron and Feme had made a Lease by Indenture rendering rend, and the Baron before rend day die, and the Feme before the day take another husband, who accepts the rent and dies, this acceptance shall bind the Wife: but note and take with you this peculiar rule, where acceptance binds her that she be a party to the Lease, and that by writing, for if a man makes a Lease for years without deed, of land, which he holdeth in right of his wife, this was merely void towards the wife, so soon as the Husband is dead, and acceptance of the rent is to no purpose, Plo. 431. per Bromley.  
Again 9 H. 6. If tenant in Fee iure uxoris make a Lease for years and the wife dieth, the Lessée shall pay the rent until the Wife's heir enter, for so long there is a continuance of a farmer by force of the Lease; but none ●●owry lieth for the Husband, because he hath no reversion. And an action of trespass vi & armis may be against him, but he cannot have action of debt for the rent.  
But to come home to the very brink of the Statute, nota (saith Dyer) That the common opinion amongst all justices at this day is, If Baron and Feme make a Lease for term of years, before the Statute of 32. Hen. 8. by Paroll reserving rend to them both, if the wife when she is become sole, accept the rent at the Fermors hands, this binds her not from annoying the Lease, if it were not by Indenture, for her assent was requisite at the beginning, and that ought to have appeared by deed Dyer, 1. Mar. fo. 91. The same Learning is, 4. Mar. fol. 146.  
When a Feme Covert departs from her Land the intent, consideration and cause ought to be expressed in scripture to prove her consent to the whole Manor; for it is agreed for Law, That if before the Statute, Baron and Feme had made a Lease by paroll of the Wife's Land for term of years, rendering rend, though after the Baron's death she had accepted the rent, yet she might out the Termer, because her privity to the Lease appears not per escript; likewise if a feme covert suffer a recovery or fine of her Land, it shall be intended by Law to be to her own use, if there appear none other intent expressly by Writing.  
And none averment shall be taken of intent or consideration in such Case other than the Indenture specifieth.   

SECT. XXV. Observations upon the very Statute▪  
I Have showed what strength a Demise or Lease for years made of the Wife's Land by Baron and Feme, or by the Baron only was of before the Statute, and is of being made since the Statute without the appointed circumstance and solemnity: Now a little to the very Statute▪ As I said before, the ordinance is that Leases shall be good, etc. But not directly that any term shall be boyd, though void of strength by this Statute they may be many ways, as appears by the proviso.  
Note that the forerunning Lease, Demise or occupation by Fermors must be derived from one that had Inheritance (for if at the end of a primitive Lease made by the Lord of whom the tenancy is holden, or by the King's grantée or committée of wardship, or by tenant in Dower, or by Tenant per le Courtesy, some of which may by good possibility have had power to make Leases by space of twice twenty years, a tenant in tail makes a Lease, this succeeding demise hath no virtue or ingredience of the Statute though it seem to have good correspondence with it; And it is doubted whether a Farm continued twenty years by the Donors' demise, be sufficient or no, to make room for a new Lease.  
This for aught I perceive is by a prudent interpretation of the Constitution rather upon equity and intent, then upon the Text, tenants in fee simple or tailed which transmit their possession to their dear offspring, will not make Leases to any great disadvantage of any of their own babes or blood, and therefore their Leases may well be imitated.  
But like enough it is that Tenant per le courtesy, or in Dower, or in right of his own or in another man's signory, may Lease away their estate, for a proud fine and a little rent: Nay ye may be sure, that if they might set the example, they should be gotten to make Leases for esperuiers annual, and small yearly income in hope that my young Master at his full age, should be content with the old rent, and a kennel of 〈…〉 ds: King Henry's and the Parliaments meaning was not therefore, that their Leases should be any patterns for reservation of rent by Tenant in Tail, or as I suppose in the right of his Wife. If Baron and Feme make a Lease by Indenture for twenty years to commence at Michaelmas it might seem doubtful by the book 7. & 8. Eliz. Dyer, 246. whether it be a good Lease, by this Statute.  
If Baron and Feme by their Indenture make a Lease to commence after the Wife's death▪ I think this no good Lease, according to the Statute, for twenty one years ought to be from the making of the Lease, etc. If the Baron and Feme die, the Heir is not bound to accept the rent or allow the Lease. And though he do accept it, if the Land were tailed, he may enter notwithstanding: vide 10. Eliz. Dyer, 279.  
If Baron and Feme make a Lease by Indenture, etc. for 31. years, quaere, the Baron dying, whether this be a good Lease, for 21. years or no, I think it is not, but standeth merely at Common Law. For the first Proviso of this act is that it shall not have respect or extend to Leases made for above 21. years.  
When King Henry the eight in 31. of his Reign by Parliament had made void all Leases to be made of Lands, which should afterward come to him, if any Leases former were in esse, or being, with proviso viz if he which had an old unexpired lease, took a new that he should hold for 21. years, from making of the new Lease, so that it exceeded not twenty one years, it was admitted in Falmestones Case, that such a Lease made for fifty years, was good for 21. Plo. 110.  
And when Thomas umpton afters (32. Henry the 8.) ca 1. which gave power to Tenant per Chivalry to device two parts of his land, had devised a whole manor in fee, before 34. Ed. 3. 5. Hen. 8. of explanation, which will by the said Statute of explanation, was referred to the Law, the device was adjudged good for two parts, contra Kelwais opinion, as you may see 4. & 5. Phil. & Mar. Dyer, 150. But these cases differ fare from the former as ye may find by the comparing the Statutes: If after a Demise by Baron and Feme for twenty shillings of usual rent▪ the husband release all his right, except twelve pence, etc. or grant that the Lessée shall hold dispunishable for waste, the Wife accepting twelvepence post mortem viri, may distrain for the rest notwithstanding, and have an action of waste, Dyer 304.  
Note, before this Statute was made the Count Bridge water being tenant in tail, the remainder to Basset in tail, he bond himself in recognizance to the said Basset to make no alienation, grant, sale, conveyance or exchange, otherwise then for his own life, it was a question after the statute, whereunto Basset and all men were parties, whether the Earl might now make a lease for xxi. years without forfeiture of his Recognizance, resolved by Bromely, Portman and Harris sergeants that he could not, but if he did make such a lease, they thought that neither he in remainder or the donour should ever avoid it by any dying sans issue, 33 H. 8. f. 49. in Dyer, who, concludeth and so shall the statute be expounded, for so was the intent, a meaning of the makers, yet the text hath no word of donours, or of them in remainder, I hear that law is taken now to be clean contrary in the last point viz, that remainders and reversions are freed from this act, and I believe it the rather because 34. H 8. ca 20. that frustrateth feigned recoveries against tenant in tail, where the King is in reversion or remainder, in the provision for strength of leases, made according to the Statute, is only against the Heir or heirs of tenant in tail, etc.   

The last part of the Statute. SECT. XXVI.  
THe Last part of the Statute is negative against 〈◊〉 continuance, which how fare it prevailed before or after the act, the former instructions, with the act itself, do put in some clearness. But a case or two will make it more plain, Amy Townsend seized of a Manor in tail, take a husband, the husband made a feoffement, 29. of H. 8. to diverse persons in fee, to the use of himself and his wife for life of them two, with remainders of use over. After this Statute made, Amy and her husband made a Lease for 21. years of part of this Manuor, according to this act of 32. H 8 Amy died first, than her husband died▪ the question is, whether Amy were remitted to her former estate tail by virtue of 27. H. 8. ca 10. and so the Lease good, 〈◊〉 was argued on the one part, that reduction of the possession by the statute 27. etc. was of effect alone with their feoffement, and because this possession was regained without either tort or folly in the wife, whose agreement whether she would or no, was included in her husband's agreement during Coverture, she must needs when Coverture was dissolved, till disclaimer, or some act done to the contrary be adjudged in possession, there was then no tenant against whom to bring her cui in vita, if she should not bring her cui in vita to purge the first wrong, she must needs be remitted, if she were remitted, this cause must needs be good. And although the Statute of 27. settle possessions according to quality and quantity of the use, yet it seemeth not that so it shall continue, but they may change by a former ancient right, for the Act being affirmative takes not the Common Law's operation in remitters: besides that, it hath an express saving of eygne right: further, if that the wife should not be remitted, this inconvenience followeth, the Baron might charge the Wife's inheritance with a rent, to the whole yearly value, or be bound in a Statute merchant, etc. and then making a feoffement to his wife's use, she should hold the land charged after his death. To this it was answered on the other part, that the feoffement at the time thereof made a discontinuance, which puts Amy to her cui in vita, which because she hath not used, but is come to possession only by force of 27. etc. she must take it only by the manner, order, and limitation of the same Statute, Coverture, or infancy, being no whit material, because the Statute hath none exception. The words are in manner, form, quality and condition of the use, etc. and because this was a new Constitution of that which was not at the Common Law, it hath not the force of a negative implying in nul altar manner than is therein described: Amy is therefore a joint purchaser with her husband in estate for life, and not in or by descent of estate ta●●e: Now to say that her right and estate should change by silent operation of the Law after she was repossessed, that cannot be, for the whole entry is tolled, and if she be not remitted by her first▪ possession and reprisal, she is never remitted.  
If a Disseisour make feoffement to the use of the Disfeisée, and after the Disseisor enter, he shall be remitted, but before his entry he shall not be remitted, for he shall be adjudged in possession by virtue of the Statute, but so soon as he entereth he is remitted, for his entry was never tolled: But Amy Townesends entry was clean taken away, by the discontinuance, etc. further if she should be remitted by the Statute of 27. the remainders should be all destroyed contrary to the text of the same Statute. And to the inconveniency alleged, if she shall not be remitted she shall hold encumbered with the charges of her Husband, that is none at all, for Amy after her husband's death might have disagréed and relinquished the use with possession annexed to it, by bringing a cui in vita, against him next in remainder; for in him by such disagreement or user of action had the remainder vested, as though the woman had been a Monk or dead person in Law, or never named in the limitation: If the use had been to Amy Townsend in fee, she might have brought her cui in vita against the Feoffor or his heir, by which they shall be Tenants to her action, and so might the encumbrance have been avoided▪ for when a feoffement is to the use of one which refuseth the use, it shall be in effect as if the use had been limited to Paul's steeple or to Charingcross, all falling or reflecting because the Feoffor hath no recompense or consideration to his use, and he shall be Tenant to every Praecipe: It was further agreed, that as the Cause fell out, Amy Townesend could not be remitted, though her possession had returned by refeoffement at the Common Law, because Sir Roger Townesend her Husband outlived her, for 21. Ed. 3. the Case is, Baron made a Feoffement, the Feoffée ●einfeoffe the Baron and Feme and heirs of the wife, she woman died, the Heir entered, the Baron brought an Assize, which was judged maintainable: for whilst the Baron lived he was tenant to the heir's action; And the th● judgement was, that Amy Townsend was never remitted; the reason was indeed because there is nothing in the Statute of 27. to make a remitter: for the clause of saving of Dr●its, Titles and Actions, is of such right, etc. as was before the Statute, and not of any right, title, or action, risen since or after it: Now note that as a Lease made for twenty years by Baron and feme Tenants for life binds not any remainder by the Statute, which speaketh only that Leases made by Tenants of Inheritance, shall bind heirs and Successors, so I would infer that if the Leassors inheritance be determined, whether it were iure uxoris in tail or otherwise in tail, the remainder must be free from the Statute: But note that the point which made me choose this case for illustration of the Statute, is this, Amy Townesend was judged not remitted, because she had no title of entry, but only by the 27, etc. of uses, and therefore she must needs claim her possession, according to the use.  
But put Case the Feoffement had been since the Statute of 32▪ the Law would then have judged a remitter; for by Littleton, where any persons entry is congeable, which taketh estate for life or in fee, it is a remitter, if the reprisal be not by Indenture, or record, or some matter of estoppel, for always where there is a double right or title, the Law must judge for the best, as well in the entry as in the possession, and an Indenture made by Baron and Feme is none estoppel to the Wife by the Common Law.  
Concerning the Case 21. Ed. 3. Wilby which gave judgement, thought the Baron's advantage a hindrance to the Remitter, yet if he died the wife should be remitted: But if you look, Brook remitter 21. and 41. ye shall find that the Feme was maintenant remitted though to save the husband's advantage of warranty, they would not so judge it, quod mirum saith Brook, and quaere quia contrarium a ceo iour.   

SECT. XXVII. Whether acceptance or taciturnity may not take away an entry at this day.  
NO fine, feoffement or other act done by the husband only shall make any discontinuance or be prejudicial to the wife, but that she may enter, etc. what if Baron and Feme make a feoffement or Lease for life, by solemn Indentures with Livery and seisin clear, this takes not away at this day the wife's entry after Coverture ended. But admit when she is a widow, she refuseth to enter and accept payment of rent or performance of covenants: is not now both her entry, and her action gone also, even as in case of an Infant, which makes such a feoffement or Lease, and accepts the rent when he is of full age: The question must be answered out of the Statute, and in mine opinion there is nothing in it to aid a woman after such ratification by acceptance volenti non fit iniuria, nec invitis confirmantur beneficia. A Lease by Baron & Feme per Indenture is not void presently by the Baron's death. But whereas before she was driven to suit and action, she may now enter by the Statute, yet it compels her not to enter, neither casts any fréehold upon her. In like manner if the Baron alone alien his Wife's Land by fine with proclamation, the Wife may enter by force of this Statute, but per opinionem totius curiae Ed. 6. Dyer fo. 72. If she suffer five years to pass and expire without entry or user of action she and her heirs shall be barred for ever, for this Statute of 32. though it limit no time for the woman's entry, yet it speaketh nothing of fines with proclamation, and therefore it takes not the general Law made 4. Hen. 7. cap. 24. of fines, with proclamation. And see Sir Ed. Coke 8. Rep. fo. 72. in Grenlies' case.   

SECT. XXVIII. Of Fines.  
SEe further the case 18. Eliz. Dyer 351. Land holden in socage was given to a man and his wife in tail, the remainder in see to the Barons right heirs, the Baron alone levied a fine with proclamation to his own use, and afterward by his last will and Testament in writing, devised the Land to his wife for life, the remainder over to a Stranger upon condition to pay certain rend annually out of the land with Clause of distress, etc. the Baron died, the wife entering and claiming estate only for life paid rend according to the will and died. Now the question is, wh● the Issue in tail or Devisée of the remainder should have this Land, Et per iudicium curiae. Partly because his mother had waved the estate tail, and although she had not done so, yet because he could not convey his title and descent, but aswell as heir to his father as to his mother, the fine with proclamations levied only by his father bars him: So fare goeth the Book. And you may observe, that it bars the wife if she will.  
See also 5. Eliz. 224 in Dyer, the husband levied a fine with proclamations of his own land, and after five years died, his widow continuing sole, of full age, whole memory, out of prison, within compass of the four Seas, and doth not make any demand or claim of dower, within 5. years after her husband's death (quaere if he which pleadeth in bar of Dower, ought expressly to aver this:) The question was, if she were barred of Dower, Dyer telleth us termino Hillarij 4. H. 8. rotulo 344. such a bar pleaded was admitted good, for the ground of Dower was the Husband's seisin, and the action given by his death. So that it is within the second saving of 4. H 7. which preserveth to all which are not parties pursuit of right grown after the fine, by or upon cause before the fine, so that they take it within five years.  
In Plowden fo. 373. justice's Dyer arguing Stowell and the Lord Zouches case, affirms the learning which I have recited out of his own book: But Plowden inserts his note, that he takes the Law to be otherwise, and that a woman is bound to no time of her Dower, after such a fine, for (saith he) the aim of 4. H. 7. as against future droicts is wholly against such rights, as either suffered wrong before the fine, or by the fine, and in this case of Dower, the title is all after the fine, and standeth well in accord with it, not touched by the Statute, the woman therefore may demand when she listeth.  
So if there be a cessor begun, a year before a fine with proclamations continued a year after, the Lord is not restrained at the end of 5. or 15. years to bring a cessavir. so he saith likewise, if a mortgage be disseised, a fine lenied by the Disseisor with Proclamations passed, yet the morgager paying his money to the Morgagee may at any time, within 5. years or more, after the payment re-enter. When Giants fight, Pigmées may not part them: but howsoever some incertainty arise in every corner of the Law, this is here certain, that a fine levied by the husband only, of his own land, tolleth not the wife's action of Dower, if she come in time: And a fine so levied, by him, of the wife's Land, taketh not away her seasonable entry; but the gulf that swalled up entry, action right, and all possibility of reducement by Law is a fine lawfully levied by baron and feme, where (forsooth) because a woman is examined by a justice or one that hath a Dedimus potestatem, etc. and acknowledgeth her free consent and agreement, what cannot men get wives to do if they list, she shall be barred and for ever excluded of a great many acres of ground, for a few kisses and a gay gown. That is a fine finem litibus imponens, for till it be done and dispatched, the poor woman can have no quiet her husband keeps such a iawling.   

SECT. XXIX. Of common recoveries.  
AS for tricks of Common recoveries I perceive not how that can be greatly prejudicial to women: for first if a man will suffer a feigned recovery of his own Land to defeat his wife's Dower, she may falsi●●e it, etc. see the Ejection firmae per Ear against Snow, Ploughed. fo. 515. the baron there being tenant in tail, his wife having nothing in the Land, he and his wife suffered a common recovery with voucher to his own use, etc. the opinion of all the justices was, that though the woman survived, yet the estate tail shall be barred, for it was found precisely by verdict that the wife had no interest in the Inheritance: The baron therefore, which alone lost estato tail by the recovery, might recover alone estate tail in value. But as for the wife, no man can say what estate she had; nor whether she should have a quod ei deforceat, or a Writ of right, if she had lost the land by default. So likewise having lost by the recovery, nothing or no man can tell what her recompense in value must be: She was named (said the justices) upon intent to bar her of Dower, and such is the meaning of husbands which will have their wives named in such recoveries: but clear the estate tail is barred, if in this case the wife might sue execution in value against the vouchée by estoppel, yet the issue in tail should not be concluded by the act of his Father, but he might oust her of that which she had so recovered in value, etc. see Sir E. Coke 10. Rep. 43. a. in Mary Portingtons' ca that the usage hath been always upon common recoveries against Baron and Feme to examine the wife, and to grant a dedimus potestatem, to take upon her examination her Conusance as in case of a Fine.  
But let the case be, Tenant iure uxoris is agreed with john a Style to suffer a recovery of his wife's Lands to certain uses comprised in Indentures betwixt them two, a Writ of entry in the post is brought against the Baron and Feme, which appear in person or by Attorney, calling to warranty the common vouchée, a man well worth a couple of new roasted eggs, which reenters into warranty, Then after declaration and imparlance, at the day of the appearance shall the demandant recover against Baron and Feme, and they in right of the Wife shall recover against the Vouchee of such lands as he hath, or is like to have when time hath a hairy crown: shall this recovery or possibility of unlikely recovery in value bind the wife when the Baron is dead whether she will or no: by Brooks novel cases, 23. H. 8. pl. 37. it seems that such a recovery did then bind the wife to: but without examination me thinks it should not bind the wife: The Statute of 32. is that none Act of the Barons shall make discontinuance, etc. except only a Fine by Baron and Feme, Ergo such a recovery notwithstanding though it be executed the wife may enter. See 23. Eliz. cap. 3. and there is a saving to every Feme covert or her heirs her Writ of error to be sued within 7. years after she become sole, for reversing of Fines and recoveries past, if they must be reversed by error, it seems without error, they were very dangerous. For a rule to conclude withal, take this, That wheresoever the Baron doth any thing out of Court, which thing he and his Wife were compellable to do, it shall be deemed and construed to be the act of both of them, as if the Baron seized in right of his Wife, or jointly with his wife, assign Dower to another woman, it bindeth, and so granting of a rent for equality of partition and atturnment by the Baron alone, binds the Wife.   

SECT. XXX. of jointures.  
I Will enter no further into the stream of Fines and recovery, they require a cunning swimmer: And a short Discourse cannot possibly make any plain discovery of them; otherwise this place would have borne the Doctrine fitly about making of jointures, for all husbands are not so unkind or untrusty as to endamage their Wives by alienation of their Lands: but contrariwise the greatest part of honest, wise and sober men, are of themselves careful to purchase somewhat for their Wives, if they be not, yet they stand sometimes bound by the woman's parents to make their Wives some jointure.  
If husband, Father, Mother and all would be unmindful of provision in this point, yet very many of our English women have with their singular virtue, so much wisdom of their own, as to foresee for themselves, and discern the difference between that which we call Dower and jointure: jointures saith Dyer 4. M. fo. 148▪ are made for the most part to Baron and Feme jointly, or to the Feme only, this also is comprehended under the term jointure before Marriage or after, for sustentation of the charge and necessities of espousals; and they are made causa matrimony & gratis▪ without the consideration of money, bargain or any thing saving for love and affection of the Baron or his ancessors, and these jointures are a present possession: But Dower must be tarried for till the Husband be dead: It must be demanded, sometime sued, for sometime neither with suit or demand obtained. Again, Dower was subject to forfeiture in times past, by felony done and proved in the Baron by the Baron's treason, by the Wife's elopement, and every question in the validity of Marriage maketh a scruple of Dower, all which inconveniences being wisely foreseen, women did learn to become joint purchasers with their husbands of such estates, as would avoid all weathers, and a good while they did enjoy jointures and Dowers after their Husbands were dead; against which the Statute of 27. H. 8. of uses, ordaineth as followeth.   

SECT. XXXI. A part of 27. H. 8. ca 10.  
IT is provided, etc. that where any persons have purchased or have estate of lands, etc. made to them and their Wives, and to the heirs of the Husband, or to the Husband and wife, and the heirs of their two bodies, or to the heirs of one of their bodies, or to the husband and wife for term of their lives, or for the life of the wife, or where any such estate hath been or shall be made, to any husband and his wife or to other persons their heirs and assigns to the use and behoof of the said husband and wife, or to the use of the wife for the jointure of the wife, that in every such case the woman having such a jointure, etc. shall not claim any Dower of the residue of any Hereditaments that were her Husbands, by whom she had such a jointure, or make any demand thereof against the Tenants of the said lands, etc. provided that if any woman be lawfully expulsed or evicted from her said jointure or from any part thereof without fraud or Coven, by lawful entry, action or discontinuance of her Husband, that every such woman shall be endowed of as much of the residue of her Husband's hereditaments as the Lands or Tene●ents so evicted shall amount or extend unto: Provided that nothing in this act extend to hurt or prejudice any woman heretofore married, concerning her right, title, use, interest or possession which she may claim or pretend to have for her jointure or Dower in any Lands, etc. of her late Husband being now disseised: Provided also, that if any Wife have or hereafter shall have any Lands, Tenements, or Hereditaments unto her given or assured after Marriage for term of her life, or otherwise in jointure (except the assurance be made to her by act of Parliament, and the Wife after that fortune to outlive her husband, in whose time the jointure was made, that the Wife so overliving, shall and may at her pleasure refuse the Lands appointed or assured in jointure, and thereupon have, demand and take her Dower by Writ or otherwise, according to the Common Law.   

SECT. XXXII. The Exposition.  
THe first observance is that no estate gained by matter of conclusion, shall be deemed a purchasement within this Statute, or be averred to be made pro iunctura: But the Statute must be intended of true and substantial estates. Therefore if an owner or tenant of certain land make answer to Baron and Feme in an action of waste, or if he pray aid of them, as if they were seized of the reversion, or if he bring a quod ei deforceat, against them as if he had none other than a particular estate; though these things were purposed for jointure, yet they seclude not a Woman from right or demand of Dower: Releases such as enure to make estates, as where a joint-tenant releaseth to his Companion, or such as go to enlarge an estate, as where he in reversion releaseth to his particular Tenant, may well make and accomplish a jointure: but such Releases as work no more but un mitter le droit, as where he that is disseised by Baron and Feme, releaseth to the woman the disseiseresse, etc. are no purchase intended within this Statute, for it is meant only of such purchases as the wife hath by gift either of her husband or of some other body, and not of such estates, as she hath gained by her own wrong: likewise is it of releaseth that go by way of extinguishment, as where a Disseisor infeoffeth Baron and Feme, and the Disseisée releaseth to one of them, this is alike available to both, but this release can make no jointure, for there is no estate conveyed by it.  
Per iusticiarios, 6. Ed. 6. Brooke titles Dower, a devise of Land by the Husband to his Wife in his last will and testament, is no bar of Dower, for it is but a benevolence and no jointure: Yet in M. Brograves' reading it was holden contrary, 5. Eliz. Dyer, 220. the case is, that a man seized of Lands in tail, and of some other in fée-simple, holden in socage, deviseth the third part of all his Lands to his wife for her life, in full recompense of all such jointure and Dower as she shall have or may claim, etc. the Wife without any assignment or user of Action of Dower entereth after his death, into that which was holden in Fée-simple to a value of a third part of all, and the opinion was, she had determined her election and barred herself of Dower.  
But this Case maketh nothing to the variance or question, because the Legacy was with an express exclusion of Dower, etc. But see Sir Ed. Coke 4. Rep. fo. 4. a. in Vernons case, resolved that unless it be expressed in the will to be for her jointure it shall be no satisfaction for her Dower: See 38. H. 8. Dyer 61. William Whorewhod seized of Land, to the value of 360. pound, of which 60. pound was by joint purchase to him and his Wife during Coverture, devised, that his wife should have the third part of all his land during her life, with those Lands, which she had in jointure, the assignment to be made by his executors, if it were not contrary to Law, this Widow refused her jointure of 60. pound, and demand a third part of the whole inheritance; viz. 120. pound as her Legacy, with a third part of that which remained for her D●wer, viz. 80. pound: at last by agreement it was ordered and decreed in the Court of Wards, that she should have the Legacy, ut supra, and forty pound over for Dower: This Case decideth the question, for it is against the latter opinion express, ideo quaere. Brooke noteth also Dower 69. that per justiciarios, if a man make his Wife joint-purchaser with him after Coverture, of any estate of Frank Tenement, unless it be to him and his Wife and their Heirs in fée-simple, it is a bar of Dower if she agree to the jointure post mortem viri, otherwise it is of fée-simple, for thereof the Statute saith nothing. But M. Brograve in his reading did maintain for all the foresaid opinion, that where fee-simple is conveyed to a Feme for jointure expressly, it is a good jointure within compass of this Statute: for if estate in tail or for life be a good jointure, and exclude Dower by acceptance, etc. a fortiore, fée-simple shall bar. And see in Vernons case reported by Sir Ed. Coke 4. Rep. fo. 3. b. that the case in Brooke is misreported and the Lord Dyer is against it, and confuteth Brooks reasons of this opinion.  
He relied also upon dame Dennis case, 8. Eliz▪ Dyer 248. An Indenture was made 36. H●n. 8. Betwixt Sir Maurice Dennis and Elizabeth Statham, that in consideration of expected Marriage, and other things reasonable the said Sir Maurice and his heirs, should from thenceforth stand seized of certain Lands, etc. to the use of himself and his heirs until Marriage were had and solemnised, and then to the use and behoof of the said Maurice and Elizabeth, and their heirs after Marriage, Sir Maurice died, entered into the Lands, and demanded Dower of his other Lands, it was a question whether this conveyance and matter, ut supra, with averrement that it was for a jointure, should bar her of Dower, Catline, Saunders, and Dyer were against the Dower by equity of the Statute, which in the third proviso is of jointures for term of life or otherwise: Against them were justice Browne and Whiddon, and they resembled this Statute to another of the 11. H. 7. ca 20. which cannot be extended to fée-simple, but is meant and expressed only of estate for Life, or in tail severally or jointly with the Baron.  
But justice Dyer as it seemeth by M. Brograve upon diligent conference with sage men of Law, did strongly adhere to his former opinion, that this conveyance with averment made a good jointure: Ye shall find again, 14. & 15. El●z▪ he affirmeth for Law, that where Fée-simple is limited over to a Wife, or estate made to Baron and Feme in fee, it is averrable pro iunctura, if the conveyance he not expressly contrary: See a question for averment, Dyer 226.  
One that had an use in Fee of certain Lands, to the value annual of 100 pound, took a wife, 22. H. 8. and after espousals at request of his wife's friends and Parents, caused the Feoffees to execute estate to him and his wife, and to the heirs of himself of parcel of this Land to twenty pound value, etc. He then purchased other Lands, and after 27. died seized of all: The wife by taking rents and profits of the twenty pound land agreed to her estate therein, and afterward brought a Writ of Dower, detertia par●e residui omnium terrarum, etc. because the Statute is expressed of jointure, and the deed whereby estate was made to the baron and feme hath no mention of jointure or Dower, quaere, whether this matter generally alleged without averment, that it was pro junctura▪ vel pro do●e, shall bar or no: See the Institutions of Sir Ed. Coke, ●o. 36. much matter concerning jointure.  
In all conveyance or purchase for jointure, unless it be by fine, or common recovery, he which makes the estate must be a person able to convey etc. at the time of jointure making, or else it is not good.  
He must not therefore be non compos mentis, attaint of treason, an alien borne, or under age▪ but the nonage of the Wife, is not material whether the jointure be made, before Coverture or after, if she accept it, agreed at M. Fitch's reading.   

SECT. XXXII. The Words, Land, Tenement or Hereditament.  
LAnd is intended as well of pasture, meadow, woods, heath, etc. as of arable, and lands covered with water or surrounded is within the Statute: So is a Town an Isle, etc. but vestura terrae, or an upper Chamber cannot make a jointure as Land.  
Tenements assured in jointure, may be Aduousans, Rectories, Windmills, an upper Chamber, a Seignory in Chivalry, and a reversion sur estate pur vi●, all coming within the mea●ing of the Statute.  
As for a reversion upon or after estate for years, it is rather in account of law, land, than a tenement: for the Frank Tenement, which is the principal, is as the present substance of the Land itself: And the reversion of either of these particular estates, if rend be reserved, may well be assigned for a jointure.  
Yea and whether rend be reserved or no upon a Lease for years, it might be somewhat doubted whether the reversion be assignable for a jointure, etc. because the Frank Tenement passeth presently, and a woman may have an assize thereof.  
But clear a nude reversion, sur estate pur vie sans rent, because it is no present commodity, cannot make a jointure, yet if such a reversion be assigned, and it turn to a possession in the Husband's life time, it may be a good jointure by matter of subsequent Hereditament, within the Statute may be a rent charge granted to a woman for life, though it were never in esse before; or a rent reserved upon a Lease for life: But the Hereditament assigned must be a profit and commodity, or else it is not assignable, &c, for homage or fealty, shall not make any jointure.  
Rend payable every five year may be assigned for jointure, for is a profit though it be not annual. And an ancient kéepership of a Park with a fee belonging to it, may be appointed or assigned in Dower.  
But so is not a kéepership newly granted and sans fee, which is a charge, without gain or utility.   

SECT. XXXIII. Estates Tail.  
ALl estates tail, are within the equity or compass of this branch of 27. and the forms or species within the ●etter are but as patterns or examples of jointures. And therefore where an estate is limited to Baron and feme, and to the Heirs Males of their bodies, or to them and the heir's Males or Females of the body of one of them, although this be an abridgement or amputation of one sex, from the examples within the very Statute; yet it is a good jointure.  
There is a Case in proof thereof, Dyer, 97. 1▪ Marry the Duchess of Somerset was joint-purchaser with her husband of estate to them two, and to the heir's Males of her Husband's body, between them begotten, which is none of the five estates expressed in the Statute, but the justices held clear unless it were refused it excluded Dower.  
So is it if estate be made to Baron and Feme, to them and the heir's Males which the Baron shall have of the body of his wife, vel e converso. Or if the gift be to Baron and Feme, and three heirs of their two Bodies, which is an estate determinable upon death of the third Issue, or if it be to them and to the heirs de corpore, the son of both of them or of one of them all these estates limited for jointure are good enough.   

SECT. XXXV. Estate for Life, etc.  
THese words, Or for life of the Wife, are intendable as well for an estate made to the Wife only during her life, as of an estate made jointly to Baron and Feme during the life of the Wife: Therefore an estate made only to the Wife for her life, or to the Baron for his life, with a remainder to the Wife for her life, is a good jointure within meaning of the Statute; yet it seemeth not to agree with the nature of a jointure by the etymology of the word, and the Statute speaketh not of any remainder, Dyer 14. & 15. Eliz. fol. 387. agreeth and saith that jointures may be conditional, which if the Wife accept after the husband's death, she shall be barred of Dower, as where the condition is, that she shall keep herself unmarried, and, saith he, a Conveyance to a wife during her life in remainder, after the immediate death of her Husband, upon condition reasonable may well be intended pro iunctura, yet he himself afterwards, fo. 340. thinketh that such a remainder to the wife for her life, after the death of her Husband, cannot be termed a jointure, because the Etymology serveth not, and 11. H. 7. ca 20. & 27. H. 8. demonstrateth no such jointure for women in possession or in use of any estate in remainder after the Husband's death, etc. quaere.  
If an estate be conveyed to a man's Wife, and to a stranger for their two lives for the Wife's jointure, it is good enough, yet the Statute mentioneth only estates betwixt Baron and Feme: And although the estate be not conveyed to the Feme by precise terms for her life; yet words that amount to as much, shall be of as great effect: As if Lands be given to a wife, until I. S. hath levied an hundred pound, or till he be promoted to a Benefice: This maketh an estate for life, within the branch of 27. etc.   

SECT. XXXVI. Estate to the use of Baron and Feme.  
IF estate be conveyed to Baron and Feme to the use of a Stranger, this is no jointure; but if it be to Baron and Feme, or to one of them, or to a Stranger to the use of the Feme, it is a good jointure, and in every limitation of use to the Baron and Feme it is requisite that he or they that shall take the possession may be seized to an use, for if Lands be given to the King, or a Corporation, or to an alien borne to the use of Baron and Feme, this is no good jointure, for these persons cannot stand seized to another bodies use, no more can a Rector or Parson of a Church, or a Bishop, unless it be in respect of their natural capacity; but a man attainted may take for another bodies use, and therefore a Feoffement to him, to the use of Baron and Feme may be a jointure.   

SECT. XXXVII. How a Woman may have a jointure and Dower, and how neither jointure nor Dower.  
A Woman may have Dower notwithstanding her jointure, by the kind oversight of her Husband, or of his heir: As if a jointure assigned, the Baron himself will endow his Wife, ad ostium Ecclesiae, or ex assensu patris; Or if after the husband's death, his heir or Feoffée will assign other Lands in Dower to her which hath a jointure already: Or if the heir plead to her in a Writ of Dower, ne unque seisique Dower, etc. or nient accouple in loyal matrimony; or any other plea save jointure, etc. in bar of Dower, for in such Case if it be found against him, the woman shall recover Dower, and retain her jointure nevertheless, quia volenti non fuit iniuria. On the other side a Woman shall have neither jointure nor Dower, if by her own folly or wrong done, she have forfeited her jointure: As by breach of a condition annexed to her estate, or doing of waist, or making a Feoffement: And if her jointure by lawful title, and without any folly in her, be evicted from her yet where the heir is remitted to another estate then that which her husband was seized of during Coverture, she getteth no Dower. So is it if the estate whereof Dower is demanded, were conveyed to the Baron and his heirs during the life of I. S. But if it were to the Baron and his heirs, for so long time as I. S. had heirs of his body lawfully begotten, this estate may yield Dower.   

SECT. XXXVII. The first Proviso for Dower upon eviction of jointure.  
THis Proviso is to be construed favourably for women, as the premises be in favour of the Heir: And therefore as well tailed Lands as Fée-simple are bound to render value and recompense; if therefore the jointure evicted were to the value of twenty pound per annum, and the heir have twenty pound per annum of Land tailed to his Father, the woman shall recover every whit of it in recompense of her lost jointure, for this latter and new Statute controlleth the ancient Statute, de donis conditionalibus.   

SECT. XXXVIII. In what case a Woman may refuse her jointure to demand Dower.  
THe Statute is plain, that a woman may refuse a jointure made during Coverture, and take her Dower, or waive Dower, and rest on her jointure, unless the jointure were by act of Parliament, etc. And M. Brograves' opinion was, that if the jointure were made by other assurance, and afterward confirmed by Parliament, that such ratification took away a woman's election as well as if the original assurance had been by Parliament: But if the jointure were made before Marriage, the woman must needs hold her to her jointure, sans election. And this is by implication upon the third proviso, as appeareth by the report of Anderson, &c▪ See Commentaries Plowden, 390. The Case 6. Eliz. Dyer, 228. is, That Richard Ashton Esquire in accomplishment of certain Indentures dentures betwixt him and Sir William Barenport, concerning Marriage to be had betwixt Richard Ashton the son and Elizabeth the daughter of Sir William, which gave seven hundred Marks with her in marriage, enfeoffed certain persons before Marriage of Land to the annual rent of twenty pound to the use of the said Elizabeth for term of her life: The Marriage being consummate, first Richard the Father, and then Richard the Son died, than it was found by office that Richard the son died seized in Fee if these Lands, whereof the Feoffement was made, and of other Lands holden by Chivalry, as of the Duchy of La●caster his heir being under age, the first question was whether she might retain the twenty pound Lands, ●●d have Dower of the rest, because she was not Richard A●●●ons wife at the time of the Feoffement first made, neither was it made of the barons lands, or by the baron resolved by Council of the Court, that she was barred of Dower: And it was so likewise resolved in Vernons Case, Sir Ed. Coke 4. Report, wherein is much learning touching jointure.  
The second question in Eliz. aston's ca was whether she were Dowable from the Queen, because the feoffement was not found by the Office.  
The third question, whether it might be a●●r●ed for the Queen in stay of petition of Dower, that the Feoffement was made pro iunctura, no such matter being expressed neither in the deed of Feoffement or Indenture of Co●●●ants.  
The fourth question, whether the Widow Elizabeth might be received to aver, and prove by Commissi 〈…〉 the Court of Wards, that the Feoffement was not meant for a jointure. Here is enough to make Women be w●●e how they take jointures before Marriage: Take 〈…〉 ther to admonish you, beware of fines after Marri●●●, jointure was made to a Feme Covert by her Baron▪ she and her baron aliened the land by fine sur connusance de droit, by the opinion of justices, Wray▪ Bell, Manhood▪ and Dyer, she shall not demand Dower of the residue of her husband's Land after his death; for she aliened her jointure before time of election was given her, by the Statute, quaere. But if the fine had bene sur connusance de droit, come ceo que le connuseead de done le Baron tantum, this had been a better form for the wife and less dangerous, 19 Eliz. Dyer, 358.   

SECT. XXXIX. What is a sufficient refusal or agreement of or to a jointure made after Coverture.  
See Sir Edw. Coke 3. Rep. in Butlers and Baker's Case.  
THe refusing or agreement, etc. because they are peremptory, must not be clouded, dark, doubtful or implicative, but plain and express, a bare word or saying, by a woman, that she will refuse her jointure or accept it, is not material, as diverse justices do hold it: But if she come upon the Land whereof she is Dowable, and there refusing her jointure pray the heir to assign her Dower, this is such a refusal that the heir by this shall be charged in damages from this time forth in a writ of Dower, and this refusal must be to the heir himself, and not to a Stranger. If a Widow waive the possession of a house or tenement assigned in jointure by her husband, and get her to another place, this is no refusal: But if she have any meddling with the land assigned in jointure, or do any other act amounting to assent or dissenting, as for example, If she bring a writ of Dower and declare upon it, this is peremptory although she be under age, Covert or not Covert of a second Husband; for the Law saith, that they which have discretion to acquire and get things, have sufficient discretion to give and preserve those things gotten. Therefore if an Infant cdme to any thing by purchase, he shall not in that have any advantage▪ or be in better plight than a parson of full age.  
As where estate is made to an Infant of two acres, to have and hold the one for life, the other in fee, etc. a▪ Feoffement made of one whilst he is yet under age is a sufficient election. And if a rend charge be granted to an Infant, whereupon he bringeth a Writ of annuity, he shall never avow for it, as a vent, when he cometh to full age: So if an Infant recover debt, and sue execution by elegit, etc. he shall never have a scire facias: And an Infant is subject to an action of waste or entry for condition broken as well as any other person, These collections gathered, as I think, by some well learned and industrious Student out of M. Brograves' reading, though they want of the fullness and perfection which the own pen of so great a Lawyer might have given them▪ yet are they pertinent and important. And I not a little beholding to him, from whose hands I obtain them.   

SECT. XL. Of Actions brought by Baron and Feme, or by one of them.  
NOw because the common sayings are found by common experience true, Qui capit vxor●m, capit lights, and qui habet terras habet guerras, A Wife brings jars, and wealth brings wars, quarrels, suits and controversies at Law, sans c●o, that it hath any other intendment, it will not be amiss a little to declare how and in what manner actions at law must be commenced and pursued by ba●on and Feme, or against them, or by or against one of them according to prescription of Law, and their several and joint Interests, etc.   

SECT. XLI. Where the Baron shall sue only in his own name.  
A Man shall sue for his Wife's Marriage money only in his own name, but how or where, that is a matter of some obscurity: by Bracton, lib. 5. ca 10. 407. money that is promised causa Matrimonij, is as a sequel of Marriage, and so being annexed to a thing spiritual, requires a spiritual suit; yet he confesseth that it is otherwise for Land promised or covenanted, etc. Fitzherbert in his Writ of Debt citeth 31. Ed. 3. that if a man promise one twenty pound to marry his Daughter, which marrieth her accordingly, he may have a Writ of debt upon his promise, but he forgets not the ●éere difference in the Book of assizes; for in the Writ of prohibition, he tells us, if a man promise one twenty pounds if he marry his Daughter, after marriage if the promiser will not pay the money, the husband may not sue in Court Christian, if he do a prohibition lieth▪ marry if I promise one twenty pounds with my Daughter in Marriage, etc. now▪ upon nonpayment, he may sue in Court Christian, for this concerneth Matrimony. The same learning he insisteth upon his Writ of Consultation, adding that if he die which made the promise, the other may sue in Court Christian against the Executor, or Executors of Executors, 22. ass. pla. 70. is thus, upon Contract had betwixt two men, that if one of them will marry the others Daughter, he shall have ten pound, etc. the ten pound after Marriage must be demanded in the King's Court, because the promise was not with his Daughter in Marriage, but by Covenant, that he should, etc. But if he had promised the money with his Daughter in Marriage, it must have been demanded in Court Christian: And if a man promise upon his faith to pay ten pound, the Ordinary cannot compel him to pay it, but he may enjoin corporal penance, unless the promiser will voluntarily redeem it: Thus teacheth justice Thorpe in declaration of the Statute of circumspect agatis 45. Ed. 3. fo. 24. The Demandant declares upon a covenant betwixt him and the Defendant, that if he married the Daughter of the defendant, he should have an hundred pound, etc. It was moved that this demand of debt upon a Covenant concerning Matrimony was not good, but the matter concerned the Court Christian per articulos cleri, Notwithstanding because the demand was upon a deed, and a written deed maketh a lay covenant, the defendant was compelled to answer: But 14. of Ed. 4. fo. 6. in an action of debt the Plaintiff declares that he had married the Defendants daughter, upon agreement of twenty pound to be paid, etc. and all the judges of the common pleas (without tarrying the Defendants answer) awarded que le plaint priest rieu person brief, for the demand is, say they, of the same nature with the espousals, viz. ius spirituale, and determinable no where but in Court Christian, and yet the Book of assizes was there remembered 15. Ed. 4. fo. 32. the plaintiff in a Writ of debt demanding five marks declares upon a covenant quod not●, for five pound where he had married, etc. and 33. pound five shillings four pence was paid, but the residue being 5. Marks, the defendant denied to pay, yet I care not saith Catesoy though he be discharged: for I know well enough that upon such a matter, the action lieth not at common Law, quod fui● concessum per curiam▪ And the cause alleged was that there was not quid for quo 17. Ed. 4. fo. 5. The master of the Rolls asketh the justices of the Common pleas, if a man promise money to another to marry his daughter or servant, which marrieth her accordingly, whether an action of debt will lie at the common Law or no: No saith Townsend, for it is but a nude promise of no more effect than if I promise you 20. pound to build you a new Chamber, and ex nudo pacto non oritur actio. But if I promise you six shillings every week for the boarding of I. S. here is quid for quo, for law intendeth here, that I have advantage and profit by the service of I. S. But further in your case, the thing that is to be done is spiritual which cannot be sold, neither can the party be compelled to do it: Rogers and Siliard were contrary to him in opinion, That a promise upon Marriage is no ●●dum pactum▪ because the daughter cousin or friend is by intendment advanced. And if I promise a Schoolmaster money to teach my child, he shall have action of Debt. Likewise if I promise a Surgeon money to heal a poor man's wound, or a Labourer money to mend a highway. But in the end Choke & Little●on agreed with the Master of the Rolls, that in the case by him propounded none action lieth at common Law▪ because Matrimony whereupon the promise is founded is a thing spiritual, and by no manner of means vendable. 19 Ed. 4. fo. 10. in an action of debt, brought upon such a bargain: Collow saith, it is true, a man must demand a woman contracted to him in the spiritual Court, but money is a temporal thing: And when a Parson of a Church is to recover tithes, he must sue in Court Christian▪ but if he sell his tithes, when they be severed, he shall sue for the money in the King's Court, but then and afterward in the same or like case 20. of Ed. 4. fo. 3. Bryan asketh him then, to what end serveth the Statute, that things touching Matrimony and Testaments must be tried in Courts Christian, cui des vous quam vous purres achate les Sacraments. Sir, saith Neale, dimes are a thing spiritual, but if a Parson of a Church lease his Tithes, he must sue for the rent in a temporal Court, and Collow stands to it, that per emptionem & venditionem res spirituales efficiuntur temporales, he never spoke a truer word in his life.  
Out of these opinions consorting together like harp and harrow, may be gathered this sure learning. That he which will wed shall do well, (and according to the Statute of circumspect agatis) to take as much as he can of his wife's marriage money before hand, with fair Indentures or good obligation for the residue. And by the abovesaid Books, as also by M. Plowden in that case he may have action of debt, for every deed sealed and delivered carrieth sufficient consideration, to wit, the will of him that made it.  
Concerning the old scruple, though money be a visible sign of invisible grace Sacramental and Spiritual, specially if it be in Angels; yet I trust it is not more spiritual than the woman herself with whom it is promised. And as there is no question made but a man may sue in Court Christian for his lawful wife unlawfully taken and withholden, upon which suit if a prohibition be granted, a consultation may be had for proceedings, quatenus p●r restitutione uxoris duntaxat prosequitur, etc. So by Fitzherbert in his Writ of Consultation an Action may be brought at Common Law, de uxore abducta cum bonis viri, or an action of trespass for taking only of the Wife. But for a clear proof that in these promissions of money upon Marriage, neither the money is any Ghost, nor the promise any nudum pactum. See the case 10. Eliz. Dyer, 272.  
An Action of the Case was brought upon promise of twenty pound made to the Plaintiff in consideration, that at special Instance and request of the Defendant he had married his Cousin: this was a good cause of action in the Queen's Court, although the Marriage were celebrated and perfected before the assumption, because the Nuptials did ensue the Defendants request.  
And as Lands may be given in Frank marriage after the Espousals, and yet the Espousals be cause and consideration of the gift: so may money be promised after Espousals, and yet the Espousals be cause of the promise.  
But Reader be not confident of the Law in that Case of Dyer, for I have seen a report of a Case between Sandill Plaintiff, and jenny Defendant, entered in Banco Regis▪ Hillar. 2. jacobi Rotsie▪ 571, where the Plaintiff declared that the Defendant in consideration that the Plaintiff had formerly married his Daughter at his special request, the Defendant promised the Plaintiff to pay him every year during the life of the Defendant ten pound, etc. and as my report saith, the Plaintiff upon non assumpsit pleaded, had verdict and judgement in the King's Bench, but upon a writ of error in Exchequer Chamber, the judgement was reversed, for that the Marriage was executed before the promise made, and yet the declaration supposed that the Defendant requested the Plaintiff to Marriage, etc.  
But let me not run so fare from my Tert as never to find the way back again: A man may sue for Marriage money in his own name only, and so is it generally where that which is in demand, or to be recovered, cometh merely and only to the Baron. Example, 43. Ed. 3. fo. 8. The Earl of Arundel brought a Writ of Trespass against one, for chase in a free Chase that he held in right of his Wife, and the Writ awarded good, though the Wife were not named in it, because nothing was to be recovered by damages.  
Likewise is it if the Baron bring a Writ of Trespass for strays taken in Lands holden in right of his Wife. And eod. anno fo. 26. for breaking of a house and carrying away of timber, the Husband alone shall have the action because he may when he list pull down a house or sell timber standing upon his Wife's Inheritance, or make a release to any body upon such manner of trespass, and the Wife's action is gone for ever.  
There is also the same year fo. 16. another Case, wherein because a decies tantum was brought by Baron and Feme, the Writ abated; for though the first action concerned the Wife's Interest, yet nothing is to be recoveredin a decies tantum but damages, etc. See the Book of 20. H. 6. fo. 1. a Writ of maintenance wherein nothing is recoverable, but damages, was brought by Baron and Feme upon maintenance in a bill of fresh force against them, by the better opinion they might join, etc. And the Defendant passeth Ouster, but not by award, 41. Ed. 3. f. 9 a Writ of Champerty brought by the Baron only upon an assize which had passed against him and his wife, was allowed good notwithstanding exceptions taken of the wife's Interest, etc. upon the reasons before expressed. And by Finch, if a man have a Ward in right of his Wife, Dower shall be demanded against him only, because the guard is a Chattel vested: But if a Writ of Wardship be to be brought, it shall be against the Baron and feme, etc. because of voucher.  
And in trespass, if the Plaintiff recover against Baron and Feme by false verdict, they both must wine in the attaint▪ for that must be according to the record 46. Ed. 3. fo. 20. a man brought a Writ of ravishment de guard, declaring upon a possession, iure uxoris, and the Writ held good: yet in this case there is more than damages to be recovered, for the Plaintiff shall have the Infant restored by the very words of his Writ. But there again it was agreed, that an action to recover a Ward must be against them both, because of voucher, though in a writ of Dower it be ut supra, because therein there is no voucher, etc. If Baron and Feme sell the Wife's Inheritance by fine for twenty pound, an action of debt for the money shall be brought by the Baron only, for the grant was only the Barons grant, and if he die, the Executors shall have the action and not the Feme. 48. Ed. 3. fo. 18.  
And a replevin must be brought by the Baron only, because a Feme Covert cannot have a property in any goods or Chattels: But for such goods as the Wife hath as Executrix, it seemeth the Baron and Feme may join in are pleven: so shall they for goods of the Wife taken dum sola fuit, Fitz. in the title reception. In trespass at Common Law, or upon the Statute, Anno 5. Rich. 2. the Baron alone shall have action of trespass, and so likewise for taking away Charters, concerning the Wife's inheritance. So is it if he alone deliver such Charters, he alone may have action against the Bailiff, etc.  
But a Writ of Detinue of Charters of the Wife's inheritance must be sued by both, etc. because the Charters themselves are to be recovered. And therefore upon recovery of them the Baron and Feme must join for recovery. A quare impedit was brought 50. of Ed. 3. fo. 13. and the Baron declared of an agreement betwixt three Sisters to present by turn to a Church, whereof they had the Aduousan, and this was the turn of his Wife, etc. The Defendant demands judgement of the Writ, because the Wife being still alive was not named, but this Writ also was awarded good, because nothing was to be recovered here but only the Presentment and not the Aduousan. And if a Writ should be awarded to the Bishop against the Baron, the Wife thereby should not be out of possession, because she is not party to the judgement▪ besides that, she is aided by West. 2. cap. 3. And for a general rule where the Husband's release is good, the action may be brought in his name only, as upon cutting of trees, grass, Corn, etc. And such actions may be brought in the name both of the Husband and the Wife. An assize of ●arraigne presentment is a mixed action, and the Aduousan itself, shall be recovered in it, therefore of necessity it must be brought both by Baron and Feme 15. Ed. 4. fo. 9 The Baron Signior in right of his wife, joined in a writ of rescous, and it was argued that he alone ought to have brought the writ: But it was awarded well brought by them both. Though per Littleton it were good enough in nosme le Baron tantum. And per Pigot, when an obligation is made to Baron and Feme, the Baron alone may have the action, or they may join ●adem lex in trespass, etc. maintenance, etc. for always▪ where the action may survive to the wife, the wife may join in the writ: They which shall read these two last Cases argued 50. Ed. 3. and 15. Ed. 4▪ in the years at large, shall not need to repent it.   

SECT. XLII. When a Wife may sue or be sued alone.  
IT is seldom, almost never that a married woman can have any action to use her writ only in her own name: her husband is her stern, her primus motor, without whom the cannot do much at home, and less abroad: But if her Huusband commit felony, take the Church and abjure the Realm, she is now in case as a Widow enabled to make alienation of her own land as a Feme sole, or to bring a cui in vita for her Lands aliened by her husband, quod vide cui in vita▪ Fitz. 3. Likewise 1. H. 4. fo. 1. The Kings writ of Ward against Sibyl Belknap, is awarded good, though it were brought by the King; but judgement was asked of it, because Sibyl was a Feme Covert, iour del brief purchase, and the husband not named; whereunto was answered, that for offence against the King and his Peers, Belknap was banished to Gascoigne, there to remain till he obtained the King's Grace, etc. justice Gascoigne by the assent of his fellows, commands the Defendants to answer, and she pleads in bar. Again 2. H. 4. fo. 7. all the justices testify, that the wife of Sir Robert Belknap who was banished, sued a writ alone without naming her husband, and by their common award it was holden good, for that as some said, the said Sibyl was the King's Fer●er.  
But howsoever it were, Markham exclaims Ecce modo mirum quod foemina fert breve regis, Non nominando virum coniunctum robore legis. Some say it should be convictum, etc. It is like a miracle that a wife should commence any suit without her husband, 18. Ed. 4. fo. 4. If a feme Covert be impleaded without her husband and outlawed, the baron and feme may join in a writ of error to reverse the outlary, for the wife cannot sue without the Husband. If a fine be levied to a feme Covert, yet she and her husband must join in the quid juris clamat, as the book of 11. H. 4. 7. testifieth: If Baron and Feme be beaten, etc. they must join in action for battery of the Feme, but for his own stripes the Baron shall bring his own action by himself, or else his writ abates for that part, 9 Ed. 4. fo. 52. Because a feme Covert hath nothing to do to participate in the suits of her husband, nor in the privileges of her husband: Therefore a suit against the Wife of an attorney shall not be in the Court where he serveth by bill, but by original writ, and none essoine de seruitio Regis▪ or other essoine cast for the Husband, shall serve for the wife, for if in a praecipe quod reddat against baron & feme at the grand Cape the Baron be essoyned de seruitio regis, and the wife make default, she shall lose her Land. So likewise if the Baron be a servant of the Chancellor, etc. no writ of privilege shall serve for him and his wife, but actions against them both must be sued at the Common Law; But a protection cast by the Baron, dismisseth the plea sans iour for both, because the Feme cannot answer without her husband, 35. H. 6. f. 3 & 4. a feme covert shall not be received to disavow the attorney of her husband, but he shall make an attorney for them both 33. H. 6. f. 31. And cod. ●n. fo. 43. If the wife will come into the Court & offer to plead any other plea then that which her husband hath pleaded, or to confess the action▪ she shall not be received to it, but the husband may not forcher per essoin. And if baron & feme wage the law, etc. If the wife appear not at the day given, the baron shall be condemned: But a wife shall never be received to disavow the suit of her husband and herself, quod vide 39 Assisarum pla. 1. a good Case.   

SECT. XLIII. Of Felonies.  
IN matters criminal and capital causes, a Feme covert shall answer without her husband, 15. Ed. 4. foe▪ 1. And note, if a Feme Covert steal any thing by cohersion of her Husband, this is not felony in her 27. lib. Assisarum 40. It was found that a woman had stolen bread to the worth of two shillings by compulsion of her husband, and awarded that she should go quite. It seemeth to be all one if a woman steal by commandment of her husband, quaere.  
If a man and his wife commit felony jointly, it seemeth the wife is no fellow, but it shall be wholly judged the Husband's fact, saith Stamford: Seven men and a woman were arraigned of felony, found guilty, and because th● woman cried out she was wife to one of the seven, the judges sent to the Bishop to be certified of the Marriage. But a woman by herself without the privity of her husband may commit felony to become either principal or accessary: As if she steal goods, or receive théeves to her house, etc. and if the husband so soon as he perceive it waive and forsake their company, and his own house, in this case the Woman's offence makes not felony in the baron. But if the baron commit felony, his wife not ignorant of it may keep his company still notwithstanding, and not be deemed accessary; for a woman cannot be accessary to her husband, insomuch as she is forbidden by the Law of God to bewray him: note also that a woman cannot be thief of her husband's goods, if she take and give them away, the receiver is no fellow, Stanford. lib. 1. cap. 19 Briton allows that the wife shall keep her husband's counsel, but yet so that if she acquit herself per pais del fait & consent, for felons wives he saith have often held men whiles the husband killed them, and in that case it is reason and Law that they hang together, fo. 47. By Bracton▪ non debet virum accusare uxor, nec de●egere ●ur●um suum neque feloniam, con●en●ire tamen non debet, nec co●diutrix esse, sed feloniam & nequi●iam viri quantum potest impedire. And by him if goods stolen be found sub cla●ibus uxoris, she shall be culpable with her husband of his felony. Item, si uxor cum viro coniuncta fuerit, vel confessa fuerit quod viro consilium vel auxilium praestiterit, ●●n●bun●●● ambo, nam licet obedire debeat uxor viro in a●●ocioribu● tamen, & la●●o●inijs, nec est ei obediendum. Poterit vir ligare & tenere, atque uxor sponte & non coacta occidere, & ita ●ene●ur de maleficio uterque: libro 3. ca 32. In the end he showeth how execution of judgement shall be deferred when the woman condemned is with child, sive ante delictum conceperi●, sive post. He coteth civil Law for it. But Stanford hath it perfecter.  
If a woman be arraigned of felony, it is no plea to say she is with child, but she must plead to the felony, and if she be found guilty, she may then claim the benefit of her womb, whereupon the Marshal or Viscount shall be commanded to put her in a chamber, and cause some women to examine and try her, whether she be ensoint de un infant, which if she be not, she shall be hanged maintenant: And though she be quick with child, yet judgement shall not be delayed, but only execution deferred. If after such respite when she is once delivered, she become great again, and object to prolong her life, the judge ought to command execution presently, for this benefit shall be claimed but once, If the judge inquire further of it, it must be but to set a fine on the Marshal or Sheriff for looking no better to her. Stanford, lib. 3. ca vl●imo. And by the books which he citeth the objection must be not priviment ensoint, but en●●int de vive enfant.   

SECT. XLIV. Of Treasons.  
ANd this objection of enseintment is aswell to delay execution for treason as for felony. A woman for committing either grand or petty treason shall be burned. The latter part of the Statute 25. of Ed. 3. ca 2 is, That if any servant kill his Master, any woman kill her husband, or any man secular or religious person kill his Prelate to whom he owes obedience, this is treason, and every Lord shall have the Escheates for such treasons of his own proper fee, the Statute is but declaration of the common law titulo Coronae, in Fitzh. A woman compasseth with her Adulterer the death of her husband, they assailed him riding on the high way, beating, wounding, leaving him for dead, and then they fled: The husband got up, levied hue and cry, came before the justices, they sent after the offenders, which were gotten, arraigned, and the matter found by verdict, the adulterer was hanged, the woman burned to death, the husband living, voluntas reputabitur per facto, 15. E. 2. A woman servant conspired to rob her Mistress, and brought a stranger to the bedside where the Mistress lay asleep, the stranger killed her, the servant silent nothing doing but holding the Candle, the two chief justices and H●re thought the servant a Traitress, and a principal, 2. & 3. Eliz. Dyer, 128. yet Mistress is not verbatim in the Statute, Stanford was one of them against the chief justice's opinion in this case; yet in his own book he teacheth that abettors & procurers, are within the meaning and intent of the Law: The servant and the wife conspire the husband's death, he is killed by the servant, in absence of the wife, this is petty treason in them both, by opinion of diverse justices, otherwise it is if the murderer be no servant, Dyer 16. Eliz 332. for Saunders wife which procured Brown to kill her husband, but barely hanged as accessary, because the principal was but a murderer. 8. Eliz. Dyer 254.   

SECT. XLV. Actions by Baron and Feme together.  
THe baron and feme may join in a writ of trespass, quare vi & armis clausum fregit, etc. for trespass done in the wife's land, either before coverture, or during coverture. See 21. H. 6. fol. 30. such a Writ brought of trespass in the Close of Baron and Feme, and feeding up blada sua. judgement is asked of the Writ, because a Feme covert hath no property in goods and chattels during the coverture. The Declaration, saith Markham, is blada sua dum sola fuit depastus fuit. That, saith Newton, is not possible, but it ought to be blada ipsius Katherinae, etc. Yeluerton saith, that both the Writ and Declaration ought to have been Dum sola fuit, which Newton denies, and saith, that the Count ought only to be so, and affirmeth, that as the matter is brought forth, there is an intendment of depasturing before coverture, and of breaking the Close after coverture, of which the Baron and Feme may have a Writ Clausum suum fregit, etc. So the Action seemeth to be by two several titles: But in the end the record was viewed, which was Quod clausum ipsius Katherinae fregit & blada eiusdem Katherinae depastus fuit; and the Declaration Dum sola fuit, which made the Writ to be awarded good. And there it is said, that by the Register the Writ is not Dum sola fuit but general, and the Declaration special. Yet 7. H. 7. fol. 2. upon the like Writ of Quare clausum fregit & bon● & catella sua cepit, which Declaration of trespass to the Feme Dum sola fuit, judgement being given, was afterwards found erroneous, for fault in the Writ which should have been not bona sua, but bona ipsius le Feme, and therefore a Repleader awarded. The baron & feme may have a Writ of trespass of assault made to the Feme, and imprisonment of her, until the Baron compounded and paid a fine, and the brief and count shall be ad damna ipsorum quod nota. 46. Ed. ●. 3. Nota per Cu●iam, saith Brook, Baron and Feme may join in appeal De ●●pe le feme, for the husband alone cannot have it without his wife, 8. H. 4. fol. 21 The case there is, A woman prisoner in the marshalsea, makes a suggestion to the Court, that the Marshal's man had ravished her in prison: G●scoigne commanded the Marshal to take his man to his custody, and his staff from him, and the Court told the woman, that she alone could not bring appeal, sans son Baron, but if her husband would come, and they two together would prove the rape, the ravisher should be hanged. By this case it is plain, that the wife alone cannot have the appeal, but the Baron and Feme may have it. But neither by this case, or any other statute, can I find that the baron may not have it alone, Whether ne unque a couple in loyal matrimony be a sufficient plea in this appeal, and whether he which is but Baron in possession only, that is, that husband which is at the time of the rape may have it, quaere, and see 11. H. 4. 13. Baron and Feme may join in a Writ of Debt, and 16. Edw 4. fol. 8. such a Writ brought for arrearages of account, with Declaration that the defendant was the wife's receiver, Dum sola fuit puraccount render, and that the Baron and Feme after espousals, assigned Auditors, which found the defendant in arrearages, etc. Insomuch as the ground of the Action begun by the wise, and the assignment of the Auditors was pursuing. And likewise by the wife they might join. So if an Obligation be made to Baron & Feme, they may join in a Writ of Debt, and if the Baron die, his wife and not the Executors shall have the Action, 3. H. 6. fol. 37. Per curiam Baron and Feme may join in a Writ of Debt upon an Obligation made to them during coverture. And Babington affirms that the Baron may have the Action alone if he will, 43. Ed. 3. fol. 10. such a Writ was brought, and exception taken that it ought to have been by the husband alone, sed non allocatur, Though for chattels vested, as goods that are given to a man and his wife, the Baron alone must pursue his Action for taking them out of his possession: Otherwise it is of matters consisting only in Action, etc. for they survive to the Feme, like to a Lease granted to Baron and Feme for years. So is it of ravishment, or ejectment of Guard, for these are Chattles real: But if a man and his wife be bound by Obligation, a Writ against them both upon that Obligation shall abate car fait del Feme couert est void. See 15 Ed. 4 fol. 10. that if an Obligation be made to Baron and Feme, and the husband dieth, the wife or husband's Executor, which of them shall hap to have the Obligation shall sue, etc. as it is said by Bryan. And Detinue of Charters shall be brought by Baron and Feme for Charters concerning her joint possession, 38. H. 6. fol. 25.  
If Baron and Feme make a Lease for years of the wife's lands, they must join in an action of waste, or else the Writ shall abate, 7. H. 4. 15. yet 3. H. 6. fol. 53. a Writ of waste so brought was doubted of, because forsooth a Feme covert cannot make any Lease: But at the last the Writ was holden good, for the wife might accept the rent, or distrain for it, and make avowrie after the husband's death, at what time, and not before, she hath power to agree, or disagree; but during the Coverture, the lease was the Act of them both, baron & feme tenants for years, may join in an Action of covenant, against the Lessor that outeth them, for the wife surviving shall have the term, if the husband do not alien, 47. of Ed. 3. fol. 12. And where a remainder is to be executed to a Feme covert by force and conveyance of a fine, etc. the Baron and Feme may have a Scire facias, to show why the land should not remain to I. S. and to N. his wife, for the land cannot remain to one of them, but it must remain to them both: But a Formidon in Discender, or Reverter. or a Writ of Escheat differeth, 11. H. 4. fol. 15. 44. Ed. ●. fol. 10. a Writ of Dower was brought by Baron and feme, and the tenant pleaded, that the former baron had never any thing in the land during the espousals, which the Demandants did not deny, therefore the Tenant prayed they might be barred, and their confession recorded, but it would not be granted, because it should be prejudicial to the wife, yet at the request of the Tenant they were received to acknowledge their right by fine, and the woman was examined. Quod nota, for she shall not be examined upon confession of an Action.   

SECT. XLVI. Actions against Baron and Feme.  
AS Actions are rightly pursued by Baron and Feme when right is withholden from her, or wrong done to herself, her interest or possession, so when the wife is, or is supposed a wrong doer, or her husband doth wrong under pretext of her interest, writs must be sued against them both; for as it hath been showed already, if a Feme covert be condemned in any civil Action without her husband, she and her husband may have a Writ of error. Therefore if a woman which is indebted take a husband, an Action of Debt shall be against her and her husband in the Debent, 9 E. 4. fol. 24. 7. H. 7. fol. 2. agreeth, and if any thing were owing to the Feme before marriage, the Writ of such a debt shall be Quas●is debet. If a man bail goods to a Feme sole which marrieth afterward, an Action of Detinue shall be against her and her husband for these goods per curiam, 39 Ed. 3. 17. And 1. H. 4. fol. 31. a Writ of trespass sur le case, was brought for not repairing certain banks, upon lands which the defendant had in Dale, by reason whereof the plaintiffs ground was surrounded, and because the Defendants whole interest in Dale was only jure uxoris, which wife was not named in the Writ, it abated, for they ought to have been joined. 3. H. 4. fol. 1. Upon a Lease made to Baron and Feme for years, rendering rend, the Lessor brings a Writ of Debt, etc. against Baron and Feme, and judgement was asked of the Writ, because it was not brought against the Baron only: Thi●●ing holdeth the Writ good, aswell as an Action of waste shall be against both Baron & Feme upon such a Leaf, and so doth one other justice, but some pleaders argued contra. And in Actions against Baron and Feme, the woman must be named wife, 42. Edw. 3. fol. 23. A writ of trespass is brought against john and Alice with others, Alice saith she was and is the wife of john, iour del brief purchase judgement deal brief, and this is a good plea in abatement of the writ. So if a writ be against john and Alice his wife, Alice if she be single may plead, not the wife, judgement deal brief. But john shall not have that plea per totam curiam, for none as Brook maketh the reason; shall plead Misnosmer, but the party, 7. H. 6. fol. 9 In Assize against Baron and Feme the Uicount returned, that he had attached the Baron per centum ones matrices, but the wife had nothing to be attached of, within his B●●liwicke, he● e●● in eádem inventa, the best opinion is, that the return is not good, for he was commanded to attach the wife, which the Law would never command if the thing were impossible, but it is possible enough for the wife to be attached, by her husband's goods, and by him she must be brought into the Court. Babington saith, an Attachment must be by a mere chattels, which shall be forfeited by Default, but not by any Chattel real, as a Lease for years, or a ward, or by appartell, etc.  
Now note, it hath been said, that in an Action of debt or trespass, or other personal Actions, if the Baron appear, and the wife make default, or if the wife appear, and the baron make default, they shall not answer the one without the other, 44. Ed. 3. fol. 1. A writ of debt was brought against Baron and Feme, the wife outlawed, the Baron rendered himself at the Exigent, at return whereof he appeared in ward, and the Plaintiff prayed because the Process was determined against the wife, that the husband might answer sed non alocatur. But see in the next lease a writ of trespass pursued against Baron and Feme to the Exigent, the Uicount returned that he had taken them at the day, the Baron came inward without the wife, etc. The Plaintiff declared against him, he was compelled to answer, and pleaded not culpable le Vicont fuit charge de le corps le Feme. & amerc●e, and a writ went out to have the wife at Westminster at a certain day, with a Venire facias betwixt the Plaintiff and the husband, returnable the same day, see 34. H. 6. fol. 29. A writ of trespass against Baron and Feme, and the Baron as servant to the Chancellor brought a Super●edeas for himself and his wife. Littleton said it was to be allowed for neither of them, no more than where trespass is brought against one of the Chancery; and another man, etc. Nay not so much, saith Prisot, for in that case the Plaintiff may take his bill in Chancery against him which is of the Chancery, and leave out the other, but he cannot do so here, specially the trespass being supposed to be done by the wife. The privilege being dissolved, Littleton prayeth that the Defendant may answer: Nay, saith Billing the wife never yet appeared, therefore take your Process against her, and we will pray an Idem dies for the husband. In an Action of Debt, saith Littleton, against Baron and Feme, it is true that one shall not answer without the other, and in trespass also the wife shall not answer without her husband, but the husband may answer without the wife, if she make Default. Truth, saith Prisot, all is one, in every writ of trespass, whether it be of ●attery, or otherwise, and in every other personal Action one of them shall not plead without the other. But in a Praecipe quod reddat the default of a wife is the default of the husband and wife, aliter in trespass or debt against baron and feme, for there if the baron appear by cepi corpus or exigent, and the wife makes default, the baron shall have an idem dies ꝑ maineprise, and if the wife waiu● be, the husband shall go sine die, for in every case where the wife is party to the writ it must be intended prima fancy, that the cause of action beginneth from the wife. Bryan a Protonotaries' Clerk said it had been holden by the Court before this time, that if the baron came in gratis, he should answer sans sa feme, but if he come by cohersion, etc. then ut supra. But saith Prisor all is one, and there is no diversity, to whom all the justices, and many Sergeants agreed, q̄ il ne respondra vnques sans sa feme en nul case: yet afterward 36. H. 6. fo. 1. in an action against baron and feme upon the Statute ●. Hen. 6. of forcible entries, the Sheriff returned the plur' capias mandavi ballivis, etc. which answered they had taken their bodies, etc. the Bailiffs were demanded to bring in their prisoners, the Baron appeared, and she wife made default. It is a doubt whether the husband should answer maintenant, and a writ go out to the Sheriff ad habendum corpus uxoris, or whether the baron should have an idem dies with the wife, and go in the mean season sans maineprise, for by Wangford he might not answer without his wife, because of the imprisonment, etc. Prisor here asked, what was the supposal of the writ? and when he understood it was of an entry by baron and feme jointly, he affirmed the baron should answer presently without the wife. And so said he in trespass & battery, when it is supposed by the writ that baron and feme together did beat the Plaintiff, the baron appearing, fans le feme, shall answer, otherwise should it be here if the writ had supposed the forcible entry dum sola fuit, for it were unreasonable when the action riseth and is caused from the wife, that then her default should be her husband's default. And likewise is it in action of debt if the wife be waive, the baron appearing at the exigent, shall go sans maineprise, for it cannot be intended, but that the action riseth only from the wife. But if an action of trespass done by baron and feme jointly, the baron appear at the exigent, and the wife be waive, the husband shall answer, and if the issue be found against him, and afterward▪ the wife▪ sue her Charter of pardon, it shall not been allowed, unless she bring her husband with her. By Prisot also in this 〈…〉 se, a man cannot have a writ in the Chancery against baron and feme, supposing a forcible entry du 〈…〉 sola fuit, but the entry must been supposed jointly as in an action of trespass▪ And Laycon declares against the baron in the end of the case. And note 40. E. 3▪ that in trespass if the baron be outlawed, and the wife appear at the exigent ●l all 〈…〉 sans iour, if the baron purchase a pardon, and sue scire facias against the party, he must bring his wife with him, or his pardon shall not been allowed: But it is other wise▪ i● the baron appear▪ and the wife be waive, etc. for the baron alone may answer. There is much of this matter in the year books, 43. Ed. 3. so. 18. in action of detinue against baron and feme, the wife was waive, the husband appeared at exegent, praying that the Plaintiff might declare against him, which he did upon a delivery to the feme dum sola fuit: Because the process was determined against the wife, whose acts the baron alone could 〈…〉 answer unto. It was awarded que il▪ 〈…〉 quit, for though to loss of issues returned to baron and feme, the wife's default is the barons default, yet it is otherwise upon a capias▪ or exigent▪ for the corporal punishment. But in a praecipe quod redda● a grand Cape shall go out upon the wife's default, And see▪ 41. Ed. 3. so. 24. in a writ of dower against baron and feme upon the default agreed Cape went out, and at the day the baron only appeared, 〈…〉 pleaded that he alone was tenant, etc. sans c●o, that his wife had any thing in the land, here the wife's default was so 〈…〉 r, a default of baron and feme both, that the 〈…〉 season, 41. Ed. 3. 24. in libro veter.  
But the Baron's default is never any default of the wife, therefore 16. Assis. p. ●. In a pr●cipe quod redda● against Baron and Feme, the Baron made default, any the wife 〈…〉 here 〈…〉 and 〈…〉 issue, which being sound against her, she and her husband brought an attain. Though in 〈…〉 were challenged, first, 〈…〉 the Baron (they said) by default had 〈…〉, and then because he was 〈…〉 to the 〈…〉, 3. 〈…〉. In a writ of debt at the 〈…〉 ned Cepi corpus for she 〈…〉, and the 〈…〉 non est ●●uentus, the exigent here went out only against the Baron, and an idem dies was given to the wife. But it was said if the 〈…〉 had returned, the husband taken, and the wife non 〈…〉▪ exigent should have gone against them both; for the wife is to be brought by the husband.  
For by Cho●▪ & Danble 9 Ed. 4. f. 23. if 〈…〉 an action of debt the Baron appear, and the wife make default, capias shall go against them both, quod m●rum, faith Brooke▪ where corporal punishment shall been, indeed it seemeth to be no law, for 9 H. 6. f. 8. in an action of debt, at the exigent the Baron and Feme sued a super●edeas, but notwithstanding they were returned outlawed, and at the same day the Baron appeared alone, and a new exigent went out against the wife only, and an idem dies given to the husband, car il ●auer● corporal pain, etc. ●nd if he make default at the return of the exigent, a di●●ringas shall go against him. Again, 11. H. 4. a 〈…〉 ●api●s went against▪ Baron and Feme, the Baron appeared, and the wife made default, the Plaintiff could not obtain exigent against them both, but he had it against the Feme, and an idem dies given to the Baron? For though in a praecipe quod redd●● in 〈…〉 of the grand 〈…〉 and such like, and for loss of 〈…〉 returned upon Baron and Feme, the wife's default be the husband's default, yet the wife's default only shall ●ot ●ée so 〈…〉 to him as to drive him to a corporal punishment▪ as to the capias or exigent. Likewise 39 Ed▪ ●. 3. fol. 18. 〈…〉 against Baron and Feme, at the exigent the Baron appeared, the wife made default, and because she was misnamed in the writ, a new exigent went out, and a● idem dies to the husband, yet he was compelled here to answer maintenants, 8. H. 4. fol. 6. in appeal of Mayhem against Baron and Feme after exigent awarded, the Baron alone came and found surety, and had a supersedeas, though the wife never appeared, 12▪ H. 4. foe▪ 1. in a writ of debt against Baron and Feme, process continued till capias was awarded, than the Baron appeared of his ow●● accord, and the wife made default, an idem dies was given to the husband, and a capias sicut alias went against the wife, which came and finding sureties▪ had a supersedeas to the Sheriff, then at the day of appearing the wife c●me, and the Baron made default, therein was awarded that the wife should have another day of maineprise, and process went out against the husband. But this, he said, should be no example in temps a vener.   

SECT. XLVII. Of Fourching.  
THis interchange or shifting of appearance and default by Baron and Feme is called sourching or fourcher: The term being of no greater lineage than from a hay fork or pitchfork, which in french is fourth: The Logicians call their dilemma a fork: And our Ancients have given a like name to a subtle kind of delay which parceners, jointenants, and married couples had at the common Law when suits were commenced against them called forcher▪ for even as a cunning fight bull when he is baited, offering to the dog first one horn, and then another, might be said to forth, so these conjoined adversaries were wont to play with both tynes, when first one should appear, and his fellow be ●ssoyned, and at the next day of appearance he should make default, which formerly appeared and be essoyned by him which first made default. Against this West. 1. ca 42. complaining that demandants were greatly delayed by 〈…〉, which might not answer but together and by jointenants which knew not their own several, that used to four●h by ●ssoine, till every one were once essoined▪ ordaineth that such tenants henceforth shall been allowed no essoine more than at one day, and as one person. The Statute of Gloucester made 6. eius●em. Regis 〈…〉 the first reciteth the former Statute thus: Whereas it is established, that parceners and tenants in common shall not fourth by essoine, after they have once appeared in Court; It is ordained that the same Law shall been observed when a man and his wife are impleaded, etc. In the book 12. H▪ 4. fo. 1. Culpeppe● affirmeth, that fourcher which was at the common Law in a writ of debt is not to be re 〈…〉 died by this Statute of 〈…〉. And Thy 〈…〉 confesseth, that the Statute i 〈…〉 l●●d▪ 〈…〉 yet saith he, at the common Law 〈…〉 and 〈…〉 might never fourth by distresses, infinet in a writ of debt, for that they are in a manner one person in law Thus much of sourching.   

SECT. XLVIII. The Baron and Feme appear.  
But admitting that there is no delay used, how shall Baron and Feme plead? I suppose it is hardly comprehended within rules. Brooke setteth down that in a quid ●uris clamat against Baron and Feme they may deny the deed, by which the Feme should be bound, and a quid iuris clamat was brought against a Feme covert, 18. H. 6. fo. 1. Titulo Baron & Feme 83. And where the Baron is estopped from pleading non tenure, the wife is so t●●▪ Titulo lou●nes accounts Br. 17.  
●6. assisar. p. 44. An Assize was brought against Baron and Feme, the Baron canus in proper person, and pleaded the Plaintiff 〈…〉, the wine's Attorney was asked if he would ass●●t to the plea, who answered he would be advised, therefore thes d●●● was delivered ba●● again to the husband, to the intent that it should not been allowed, unless the wine's Attorney consented, who alterward agreed. Thus doth Fitzh. titulo Assize abridge the case 243. very near the original, for Brook mistake it, or I mistake him; in the title of Baron and Feme, 72. In an action of debt against Baron and Feme executrix, It in a good pleading to say that the wife hath fully administered, and a good replication to say that the wise hath asserts sins pa●ler del Baron, ●●. Hen. 6. fo. 4. And there it is said, that a wife 〈…〉, may administer and distribute gods without the assent of her husband: And if that she sell the Testator goods and redeem them, yet still they remain assets. If a Fame tenant for life take a husband, and they sine, being 〈…〉, of a stranger, if the Baron die, he in 〈…〉 cannot enter, for that is the act of the husband.  
If a Feme tenant for life take a husband which alieneth in Fee, and he in reverston entereth, if now the Baron dye, the wife shall have the land again, 29. assisar. p. 43. Brook 86. Titulo Baron and Feme. The case is of an estate made to baron and Feme in the book of assizes, in a writ of entry in nature of assize against Baron and Feme, the Baron pleaded non tenure for his wife, and for himself joyntenantie with a stranger▪ This was Bolden a good plea per Curian● and not double, for he must answer for both, 16. H. 6. fo. 22.  
12. Rich. 2. Baron and Feme were acquit in appeal, & it was found by verdict that they had been imprisoned to damnages C. l. By Thin & H●ll justices, the damages ought to be severed, the Baron to have one judgement for himself, and he and his wife another judgement for his wife, for if the husband should dye before execution, the wife ought to have execution of her da●u●ages, and not the husband's executors, which could not be if the recovery were in common, Fitzh. Titulo judgement 108.   

SECT. XLIX. Outlarie of Baron and Feme or of one of them.  
44. Ed. ●. fo. 3. The Baron and Feme being outlawed in an action of debt, got each of them a several Charter of pardon, sued scire facias against the Plaintiff, and found maineprise jointly, the Viscount returned that the scire facias came tardy, at which return the Baron appeared without his wife, and praying to have scire facias sicut alias upon the first maineprise, or a new scire facias by new maineprise, neither of them might be allowed without his wife, yet it was agreed that if two men were outlawed, one might sue pardon and scire facies without the other, for in that case, the one may plead alone upon the first original without his fellow, against whom the process is determined: but the Baron cannot plead here without his wife, see the book 11. H. 4. fo. 89. Baron and Feme being outlawed, the wife appeared and brought a Charter of pardon, she was suffered to go at large, but the pardon might not be allowed because the baron appeared not, and the wife could not plead without him.  
14. ●. 6. fo. 14. june said that one kind of divorce betwixt baron and feme is, when an action of trespass is brought against them, and the baron only appearing, process goes out against the wife till she be waives, etc. She can never purchase her pardon, unless her husband appear, so that if he will he is divorced. The like subtlety hath M. Littleton 13. Ed. 4. fo. 4. where he affirms, that if a woman be outlawed by erroneous process, if the husband will not bring a writ of error, he may so be rid of a shrew; for that countervails a divorce.  
11. H. 4. Sheweth that a woman may be suffered to go at large, though her pardon been not allowed till her husband appear with her, etc. And see Dyer 10. Eliz. 271. In debt against baron and feme, process was continued till the baron was outlawed, and the wife waive, afterward the wife came in ward by process, brought the queen's pardon for her waivery: Though the pardon could not been allowed, because the wife without the husband could not sue scire facias against the platntiffe, to make him declare upon the first original, for the pardon had a condition in law, ita quod ipsa staret recta in curia, which she could not do alone, yet by the opinion of the Court she was to be discharged of the imprisonment, I think the shrew went home. But that a woman outlawed by herself alone for an offence touching her in an action brought against her husband and her, and the husband appeared before outlagary was discharged of her imprisonment upon sight of her pardon, I find not here nor no where else, and therefore it may be M. junes' way will serve sometime to be rid of a shrew, and that by a like manner a woman may be voided of a slovin, or uncumbred of a Churl. An action of trespass is brought against baron and feme, and the baron outlawed, the wife appearing at the exigent, goeth san●iour: if a capias utlagatum lay hold of the husband, I perceive not well how he can get lose without his dames favour.   

SECT. L. Of Divorce.  
But it is time to make an end of marriage since we are come to matter of divorcement, of which I reckon this of outlary for none. 47. Ed. 3. in the very end of the year setteth down slew ways, Causa professionis, Causa pcontractus, Causa consanguinitatis, causa affinitatis, and Causa frigiditatis, with an observation, that when divorce is Causa professional, the wife shall be endowed, and the heir inherit, contra, in all the residue, ●mmaturi●i● also, or minority of age at the time of espousals, may be one cause of divorce, As ●9. Ed. 3. fo. 32. john & Alice his wife brought an assize, the Tenant said that Alice had sued divorce in the Archbishopric of Berwick, because she was under age of consent, tempore sponsalium, never consenting afterward, and divorce was had judgement deal brief. And Broke titulo guard 124. remembreth that 5. Ph. & Mar. the Doctors of Law declared for divorces upon this case, That if an heir, or other body be married infra annos nubiles, and do disassent at the age of discretion, or after (before assent) to marriage it is sufficient, and the party may be wedded to some other body, without either divorce or testimony of the disagreement, before the ordinary, who though he may punish ꝑ arbitrium judicis here, yet the second espousals are good, by Law of both Realm and Church: But when divorce is had, for kindred, precontract, frigidity, or such like case, the Law is clean contrary, for trial of divorce when it is pleaded in a temporal Court, must be by certificate of the Bishop, and not ꝑ pais. 5. Hen. 4. fol. 2 and sentence of divorce belongeth to the Bishop in his spiritual Court.  
Of which there is authority, 2. Eliz. 179. in Dyer, This year he saith, sentence of divorce was given Causa frigiditatis naturalis, in the Archbishop's Court of Audience, and the woman was actrix & querulans de impotentia pro●r●andi●● vi●o, who was adjudged impotent by the Physicians: The same year, or next year, another case and judgement happened like, and the woman which complained married to a second husband of better stuff, by whom she had children, and gave him all her land by fine, etc. her. first husband also was married to another woman, and had children by his second wife, (ut asserebatur) in which case the Doctors held that the parties divorced were compellable to live again together, ut vir & uxor, quia sancta Ecclesia decepta fuit in judicio priori, Therefore much ado was made to stay the engrossing of the fine, yet the justices made it be engrossed, contra manda● dom Custodis, etc. But see Sir Edw. Coke 5. Report. fo. 98. in Buries case, that the Doctors were deceived, for the parties divorced causa frigiditatis cannot live together again, and the issue by the second wife is legitimate, for a man may be habilis & inhabilis diversis temporibus. Again, 13. and 14. of Eliz. Dyer fol. 305. teacheth that right and lawfulness of marriage is ever to be judged, not by the temporal, but by the spiritual judge: And therefore in an issue of ne unques accouple in loyal matrimony, if the Bishop certify not the lawfulness of wedlock, but the circumstances. he shall be amerced, and a melius certiorando awarded. Seeing therefore right of marriage is to be discussed by the spiritual judge, they which are married aught in no case to sever themselves, and remarry without the spiritual judge: if they do, the second marriage is no marriage, the children had in it are illegitimate, and the woman not dowable, except in the case first specified. And generally where espousals are not merely void but defiesable, if they be not avoided by divorcement, the issue which is had without defeiting that shall inherit: as if a man marry his cousin or his sister, saith the book, and have issue by her, and die before divorce had, now nothing can bastardise the issue, for though the Commissary was wont in his visitation to make a kind of divorce in such cases after death of one of the parties, it was never any more than an Inquisition of office, Ad inquirendum de peccatis, for the heir could not be bastardized, when the parents both or one of them were dead, and therefore not citable to appear, etc. And it is holden strongly by Thorpe 39 Edw. 3. and in the Parliament 24. H. 8. see Brooke titulo Bastardy 23. 37. 44. 47. And a divorce cannot be had but of a marriage consisting, and not yet by death dissolved, for there cannot well be a reversing of any divorce when the parties divorced be dead, as Brook understandeth Connings by 12. H. 7. 22. for saith he, it was adjudged in Co●bers case, where the baron and feme had issue, and afterward were divorced, the baron taking another wife, by whom he had issue and died, that when the first issue sued in spiritual Court to reverse the divorce and bastardise, the second issue, after his father's death a prohibition lay: But it was said that the title and descent were comprised in the libel, or else the prohibition could not have been granted. Thus saith Brooke titulo Deraignment. But titulo Bastardy 47. he setteth down the same case, that a man may be bastardized after the espousals, wherein he was begotten and borne, or by death determined. See Sir Edw Coke 7. report Kennes case, that some divorces dissolve the matrimony, scilicet à vinculo matrimonei, and bastardise the issue, and ●ar●● the woman of her Dower, and some à mensa & Thoro, which dissolveth not the marriage, nor bar the wife of her Dower, nor bastardise the issue: And therefore if any action be brought and divorce pleaded, the cause of divorce ought to been showed: And there it is said that a divorce may be repealed in the spiritual Court after the death of the parties, but a suit after the death of the parties to divorce them, and to bastardise their issue may not be, for that the trial of bastardy, or not belongeth to the temporal Court, originally if sentence do not hinder. And see Sir Edw. Coke Institut. ca Dower f. 33. & ca Estates upon condition fol. 181. the derivation of the word divorce à divertendo or dino●●●ndo, quia vir divertitur ab uxore, and see there the several causes of divorces, and how for any of them respectively do extend in power and effect, and in Littleton's tune many divorces were of force, which the Statute of 32. H. 8▪ cap. 8. take away▪ and there see that a man may marry the sister of his first wife, since that Statute.  
By Na. br. ●●l. 44. in the writ of prohibition, and Na. br. 1●9. and Dyer 28. H. ●. 1●. agree, if the woman shall have the goods not spent, and that detinue lies for them, If goods be given in marriage with a woman, she shall recover them in the spiritual Court after divorce, and there lieth no prohibition, ●6. Hen. 8. fol. 7. is that if the husband before divorce had, have given or sold without collusion, such goods as were the wives before marriage, she is without remedy for them being divorced.  
But if he aliened them by collusion, and bring a writ of detinue, for so much of them as the property may been discerned of, and for the residue, money and such like, she shall sue in spiritual Court. If a man which is bound to a woman by obligation marry her, and they be divorced, she hath her action again, which was suspended ibid. by Fitzh and Norwich. But see the book of 11. Hen. 7. 4. p Cur. contrary where the divorce is causa precontract ', and it is so cited, Dyer 4. Mar. fol. 140.  
If the woman divorced were an Inheritrix, etc. and the husband before divorcement hath done waste, felled her woods, received her rents, granted her wards, presented to her Churches, given away her goods, none of these things passed in possession executed can be reversed or recalled: But if the Inheritance itself were discontinued or charged, or a release made of it, or her villains manu●●itted, she shall have remedy for these things by common Law.  
If baron and feme Iointpurchasers de disseised, and the baron release, etc. the wife shall have a moiety if they be divorced, although before there were no moieties betwixt them, for the divorce convert that into moieties, which see Brook title Deraignement and divorce 32. H. 8. In Sir Edward Coke 5. Rep. in Olands' case it was holden, that if a Lease been made to baron and feme during the Coverture, and the baron soweth the land, and after there is a divorce causa precontract, the baron shall ha●e the Corn, and not the lessor, for although the baron prefecuted the suit, yet the sentence which dissolves the marriage is the iudgment-in Law, and judicium redditur in ●●ultum.  
And as by divorce, that which was entire may been converted or divided into moeties, so by it, inheritance may be made francktenement. And if baron and feme donées in tail, have issue and be divorced, now they have but francktenement, and the issue shall not inherit, for it is not like here as where lands are given to two men, or ●o a man and his mother, or to a man and his daughter, and to the heirs of their bodies, where several heirs shall severally inherit, for it was never lawful for them to marry, 7. Hen. 4. 16. Broo●▪ 9 in titulo Taile, see also, 13. Edw. 3. titulo Deraignment, If land be given to baron and feme in tail which be divorced causa precontract, etc. they shall hold jointly for term of their lives, and the land go to the Suruivor. But by the Reporter, if the gift were in franckmarriage, the party which did not cause the divorce shall have all: and agreeing to that difference is Perk. Chap. feoffement, Sect. 238. and also agreeing is Sir Edw. Coke 9 Rep. in Beamonts' case.  
12. Assisar p. 22. Dorees in franckmarriage were divorced at the woman's suit, the baron continued possession till he died, and afterward the womandied, the possession was adjudged to have remained always to the woman, because she never made any debate for it, so that the man never had it by disseisin, and agreeing to that is Plowden Wymbysses case fol. 58. & Diet 3. M. fol. 126. 19 Assisar. plac. 2. The Do●●e in franckmarriage wedded infra annus nubi●es, sued divorce by the barons motive and the wife's agreement, at their full age, and the woman recovered all the land against her quondam husband by assize. And Titulo Assize in Fitzh. pla. 413. 44●. is this case, A man of certain tenements, enfeoffed his feoffor, & his wife in tail, the remainder to the right heirs of the baron, they were divorced, at the suit of her husband, which kept the woman out of the lands, and she brought an Assize, whereby she recovered a moiety of the tenemen's by judgement presently. And propter difficultatem it was adi●rned for the other moiety to the Commonpleas, where she had ●udgement of that also, because divorce was at the husband's s●●t. As a woman may have an Assize against her companion divorced, for lands wherein she claimeth inheritance, or estate for life, so if he have aliened in see, ●ée tail, ●r for life, the lands which he had in fee simple, ●ée ●a le, or for term of life, to a stranger, she may as soon as she i● divorced, bring a Writ called a ●●i ante diuor●●●m against the Al●enee: And this Writ may be in the per, cu●, & post. If she die before action commenced, or before recovery, her heir may have a Writ called a sur●uran●e divortium, and the Aunt and Néece may join in i●. But for her estate tail her heir shallbe put to a formidone. But note Reader, that it seemeth both the woman and her heir may enter after the Statute of 32. Hen. 8. and never bring Cui in vita, nor sur cuim vi●a, etc. for the opinion in Grenlies' Case, Sir Edw. Coke 8. Rep. fol. 73. is, that if the baron alien, and after the wife is divorced causa precontract. which dissolve the marriage à vinculoma rimonii, the wife during the life of the husband, or after his death, may enter, for the words of the A●tare n● fine fe●ffeinent, etc. during the Coverture between them, and although the Statute saith, But that the same wife, etc. that is to be intended of her which was his wife at the time of the alienation, etc.  
Note that whereas West 2. cap. ●. giveth a cui in vita upon recovery by default against the husband, etc. she shall have a cu●●h●e divortium upon the like recovery by equity & extension of the Statute▪ and the process is summons, grand cape, & pe●i● cape. I will here set the bounds and limits of my third book, not because this sequel and consequence ●iuorte, I mean, whereby the issue had, is bastardized, and the w●●an restored to her goods and lands, conforteth with the marriage so perfectly begun as I meant it, for this is not the untying of true wedlock, but rather a dissipation of marriage tainted at the beginning, and in Christian Court adjudged to a ●●llity, as if it had never been, the Baron and F●me that I h●●● spoken of all this while, if they were not married in their infant love and very first flowing age, yet were they not ●rostbitten or so blasted either of them when they were young, but they might well have fructified, neither was either of them a common Law breaker, entangled with promise or precontract, and as for consanguinity, or affinity, there was no more betwixt them, than is between jack Fletcher and his bolt. You may imagine some matter by only imagination, perhaps more visible than it could have been, being true, whereupon a public sentence of separation being published a Thoro & mensa, but then there was a monition of chaste living, and prohibition to both the parties, that neither of them should fl●● to other marriage so long as both of them were living. And the Author of separation, that is the party suing divorce, did put in sufficient caution to do nothing contrary to this prohibition. So that the holy lives of matrimony were not clean broken, and pulled asunder, but within a year or two they were reconciled, voluntarily of their twne accord. And soon after (so I will make it) having the Distaff, Spindle and Shears all in mine own hand, the husband's life was suddenly cut off, or else the wi●e had been sole executrix.    

THE WOMAN'S LAWYER. The fourth BOOK.  
PAle death equo pulsans pede pauperum tabernas regnumque ●urres: Death, I say, to whom the Poet did attribute so much power in this his verse, Omnia sub leges mors vocat a●●a suas, hath called the husband hence, left the house full of mourning, and specially the wife cannot choose but sorrow and lament. If my ●oure legged beast should fall into halves, the one half stark dead without motion or spirit, and the other half standing still upright, scenting, seeing, feeling, gazing; must it not, think you, be wonderfully astonished. If an Elephant, in whom (as some d●e writ) is understanding of his country's speech, a wonderful memory and recenting of things past, a great delight in love and glory, besides prudence, equity, and religion, should have his head cut off, his body remaining still for & all that vegetable and sensitive, would he not (trow ye) be exceeding sorrowful for the foregoing such an ornament, I dare be bold to give a woman as much as Pliny gave the Elephant: She hath understanding, and speech, firm memory, love natural, and kindness, desire of glory and reputation, with the accomplishment of many meritorions virtues: But alas, when she hath lost her husband; her head is cut off, her intellectual part 〈…〉 gone, the very faculties of her soul are; I will not s 〈…〉 clean taken away, but they are all be 〈…〉 ned, di 〈…〉ed and dazzled, so that she cannot think or remember when to take rest or ref●ction for her weak body. And though her spirits and natural moisture being▪ inwardly exhausted, with sorrow and extreme grief, she be called and enforced to seek restauration, by such aliments as life is prolonged by, yet is she nothing desirous of life, having lost a moiety of herself, yea the principal maytie now best prised and esteemed, but never best loved: Time must play the Physician, and I will help him a little: Why mourn you so, you that be widows? Consider how long you have been in subjection under the predeminance of parents, of your husbands, now you be free in liberty, & free proprii●uris at your own Law, you may see num. cap. ●0▪ That maidens and wives vows made upon their souls to the Lord himself of heaven and earth, were all disavowable and infringible, by their parents or husbands, unless they ratified and allowed them, either express or by silence, at the day when such vows came first to their notice and knowledge: But the vow of a widow, or of a woman divorced, no man had power to disallow of, for her estate was free from controlment. Must a woman needs weep thus for the loss of her Buckler, Shield, and defence, in the person of him with whom she held daily commutation of all offices proceeding from love and superlative kindness. Let her learn to cast her whole love and devotion on him, that is better able to love and defend her than all the men in the world, Him I mean that hath forbidden to afflict widows▪ or orphans, with promise to hear their cries, and vindicate their wrongs, by killing them by the sword, and making the wife's widows, and their children fatherless, of them which break this Commandment, Exod. cap. 22. Then because a sober carefulness and moderate sedulity, in business of profit or disprofit, doth mitigate greatly the sorrowing for such actions, as opinion or fancy makes thus grievous, let her look to her affairs as cause and need requireth.  

SECT. I. Of Executorship and Administration.  
SHe is not made an Executor, because the office is troublesome, let her take heed she make not henrselfe an Execut' de son ●o●t dame she, by her own wrong▪ 〈…〉. H. 6. fol. 31. Action of debt was had against ● woman as Executrix to her lafe husband. S●e●pl●aded that her husband made B. and C. his Executors, which taking Administration from the Archbishop, did de●i 〈…〉 to this De●c●dant three robes, which her husband gave her by will, 〈…〉; that ever she administered in a●▪ other manner. As●●on justice held this for no good plea▪ because here was no colour of any Administration, for that is no Administration to use her own goods. But if one administer (quoth he) about funeral ●●pen●es and nothing else, he may in a Writ brought against him, plead the Administration for this only cause▪ sa 〈…〉 ceo that he administered in any other manner, for here was a kind of Administration which shall charge the party no further than the goods administered will reach. But for a woman to take her own goods is none Administration at all, 〈…〉 ●●riam. And there it is said, that the Law allows a woman convenient apparel, but not excessive▪ etc.  
Anno primo Eliz. In an Action of debt as against an Executor, upon a plea of ne unques execut' ne unques Administrater ●ōe executor. A special verdict was found, how the Defendant had recovered 10. l. that was due to the Defunct, and made an acquittance for it, taking also into his hands all the goods and chattels, that were the said Wyrials, so was his name, using them as his own, this was holden a sufficient Administration. And saith justice Dyer fol. 166. I take for a rule, that occupation and possession of a dead man's goods, giveth sufficient notice of the person which shall be charged to administer, be it either ordinary or Executor. 17. Edw. 3. Action of debt was mainteynable against a Dean only, gardiam spiritualium sede vacante ad cuius manus bona devenerunt, without naming the Chapter, and issue was taken upon the devenerunt, viz. the possession. And such an action may been against an Executor alone, which hath possession of the goods, 8. Edw. 3. In a Writ of Dower against one Executor alone that held the ward in his only custody, he was named Cu●tos and not Executor.  
And for this reason it is, that though an Executor bringing action must show how he is Executor for the most part, yet the like is not needful in an action against an Executor, for he may be an Executor sundry ways, by Testament, by letter of the Ordinary, or by his voluntary Administration, and taking unto him possession, use, and occupation of the goods long, 50. Ed. 4. fo. 72.  
And if an Administrator bringeth an action, he shall say in his Count qui obiit intestatus, and not ut dicitur, but where one declares against an Administrator, it is the usual form to say qui obiit intestatus ut dicitur for the Plaintiff, there is not intended to know certainly whether the Defendant been Administrator or not. And see Greysbrooke 〈…〉. Ploughed. fo. 276. b. etc. that where letters of Administration are pleaded in Law, they need not been showed to the Court otherwise in the Count, etc.  
And a woman taking more apparel than is convenient for her degree, without legacy or licence is an Executor de son tor● demesne, 33. Hen. 6. yet there is some possession or meddling, that the Law tolerateth, and is cullorable, and yet it draweth no burden with it, as expenses about funerals, or if one be made Coadintor, or Supervisor▪ or if he have letter's add collegendum, or if he were Executor, by a former will disproved by a latter will.  
Likewise if a Feme Covert be made Executrix, not meddling with any goods, etc. refuse to administer when she is sole. In all these cases there is a Colour of authority, and the party shall plead the especial matter, sans ceo, that he administered in any other manner.  
But he which claimeth by gift, shall plead absque hoc quod ut Ex●cutoris. In the principal Case Dyer concludeth, that the Plaintiff should be without remedy, if he might not have the action. And if (saith he) a lawful Executor by his evil administration, viz. Conversion of goods to his own use shall be charged, it must needs be thought reasonable, that he should be in better case undischarged, that executeth but by wrong of his own carriage: Thus fare Dyer. Sometime the husband dyeth in so good time, that it were madness in his widow to refuse administrations. Know therefore that by the Statute 21. H●n. 8. ca 5. When the husband dieth intestate, or the Executors named in the Testament do refuse to prove it the ordinary or persons, which have authority to take probat of Testaments, shall grant administration to the widow of him which is deceased, or to the next of his ●in, or to both, as by his discretion shall be thought good, taking surety of him, or them, to whom such commission shall be made, for true administration of the goods, debts, 〈…〉▪  
And where diverse persons claim Administration as next of kin, which are all in equal degree, or where one claimeth where indeed diverse been in equality of kindred with h 〈…〉, the ordinary shall have liberty to grant it to one or more of them which require it. ●●d whereone or more, but not all of them w●th are in equality of degree, d●e make request, the Ordinary may admit the widow, and him or them●●ely making request, or any one of them at his pleasure, taking nothing, etc. unless the goods d●● amount 〈…〉 the ●●l●●●● 〈…〉 pounds', the penalty is forfeiture of so much money as was received contrary to this Act to the party grieved, and ten pound to the King and party grieved besides.  
But by the ancient custom of the Realm: If any man died 〈◊〉▪ the Ordinary might dispose of his goods in ●●●us▪ uses, he might feife, prese●●e, give or grant them, yet was he not chargeable in any action prosecute, by creditors of the intestate▪ because forsooth he was a judge spiritual, and not subject to temporal fuit, for things committed to him upon confidence.  
But West. 2. ●●. 20. ●a e A●. t●. F. ● is Cum post mosten alienus deceden●is intestate & obligati aliquibus in debito, & the goods come to the Ordinaries hands, it is ordained that he answer to action as an Execuntor shall do, quatenus bona defunct ●●●fici●●t. Then again, because still the Ordinary might neither meddle nor be meddled with, for things in action as debts, etc. 31. Edw. 3. cap. 11. ordaineth, that in Case of intestate the Ordinary shall depute the most trusty and nearest friends of the dead to Administer, and that they shall have action of debt, or answer in action of debt, and be accountable to Ordinaries, etc. as Executors. I will wade no further here in the office of Executor or Administrator, except it be only to show unto you, how next of kin in the Statute of 21. H. 8. hath been taken.  
A son of Charles Duke of Suffolk, by a second venture, having certain goods by his father's Will, died intestate, and without wife or issue, his mother who was daughter to the Lord Willough by took Administration, which was afterward revoked after great argument in the spiritual Court, as well by common Lawyers, as Civilians, in the behalves of the said mother Duchess of Suffolk, and Lady▪ Francis wife to the Marquis Dorset, sister of the half ●loud to Henry the Intestate, which sued to reverse the Administration, and obtained it herself, though she were but sister the demi sank, for the mother is not next of kin to her aw●e▪ son in thi●●a●ter, but must descend and not ascend, either by one Law or the other, and children be ●● sanguine patris & matris, ●●● pater & matter non sunt de sa●g●ine puerorum. Contrary it is of brethren and sisters, 5. Edw. 6. 47 in Brook titulo Administraton There is also this Case, William Rawli●s Clericus died inte●●ate, administration was committed to Sir Humphrey Browne, who had married Rawlins his sister, William Shelton, and john Shelton, sons to the Lady Browne by her first husband, reversed the administration and obtained ● for themselves.  
But see in Sir Edward Coke 3. Rep. in Ratcliffs ca fol. 40. it is said that the book of 5. Edw. 6. have been often times resolved to been no Law, and that the goods of the son or daughter ought to be granted to the father or mother as the next of blood, and there is Littleton ●ited who saith, that although the son's lands go to the uncle, yet the father is next of blood.   

SECT. II. Are●son●ble part of the goods.  
IF there been a will proved, the widow must take such goods as were bequeathed her by delivery from the Executors, but whether here were a will or none in some places, she shall have a third part of all her late husbands goods. For this there is an ordinary writ to the Sheriff, where she cannot have a third part of that which remains after funerals discharged, and legacies paid and performed, to summon the Executors to appear and make answer why she should not have, as the custom of the Court is, that women ought to have rationabilem partem de bonis & ca●al●●s vir●rum. The like writ is for children, whether they be sons, or daughter●, or both. And this writ speaketh of a custom in the County, that children which are not heirs nor promoted in the father's life time, shall have their reasonable part, 3. Edw. 3. A Writ of debt was brought by a man & Alice his wife against the Executors of his wife's father, & declaration was upon custom of the Shire, that children not advanced should have their reasonable part of their father's goods, the Executors said, that Alice was married by her father in his life time, judgement si action, etc. It is no answer said one, to say that she was married by her father, except you say also by, or with her father's goods, and to her conveniable advancement, and here the husband at time of the marriage, or after had never any land. The Executors said still she was conveniently married by her father's procurement, etc. And in the end the Baron and Feme offered to aver, not married by the father, on which point the issue was joined, Fi●zh. Dett. 156.  
40. Edw. 3. In a rationabili parte bonorum, brought by a daughter counting on the custom of the Town, that every son and daughter should have a reasonable part, the defendant pleaded a reversion descended to her, which she might sell for her advancement in marriage, judgement si action, etc. Mowbray said, the Lords in Parliament would not agree that this action is maintenable by any common custom or Law of the Realm. Doctor and St. fol. 132. a. by the custom of some Country, the children (the debts and legacies paid) shall have a reasonable part of the goods of the dead. 39 Edw. 3. fol. 9 10. One brought a Writ of Detinue for certain goods, showing the custom of Sussex: That where the father died intestate, his heir should have a reasonable part of his Chattels, and upon this custom he demanded goods come to the Defendants hands; It was argued whether the custom were good or no. Morris, such a custom hath been allowed in Eyre 21. Hen. 6. fol. 1. & 2. In fine ●asus a woman brought a Writ of detinew against her husband's Executors for a ●●ity of his goods, as for her reasonable part by custom, and the Defendant was compelled to answer.  
7. Edw. 4. fol. 20. & 21. I● a ra●io●abili parte bo●●rum, judgement was asked of the declaration, because the custom was, that where the Baron died sans issue, the wife should have a moiety of his goods, after debts and ●u●erals discharged, but if there were issue, she should have but a third part, and here the Plaintiff had a demanded moiety without alleging that the baron died sans issue, etc.  
The Plea was amended by permittance of the justices, for Da●by said, the widow had as good title to the goods as to lands at the common Law. But Cat. by spied another fault in the Count, viz. Continuance of the custom not alleged.  
18. Hen. 6. fo. ●. in a rationabili parte bonorum one Executor appearing, confessed the action, and the others made default, whereupon the Plaintiff recovered presently by equity of the Statute 9 Edw. 3. cap. 3. by which the Executor coming first must answer. Like, or the same learning is in the former Book 7. Ed. 4. where Choke said, that always if ne unques executor, ne unques administrat come executor be a good plea (ut hic) the Executor first appearing must answer.  
I see that many tunes in stead of this writ de rationabili parte bonorum, a writ of debt sometimes, and many times of detinue hath served, and you may find further 52. and 56. titulo Detinue in Fitz●. And the great variance is in this, that the action is founded on a custom sometime of the Town, sometime of the County, and sometime of the Realm, for indeed many have holden that it is general like an action of the Case against an Ostler, or an action design custodiendo. So teacheth Glanuil, and so Fitzh. who relieth upon magna Charta▪ cap. 18. which prescribing how the King's debts shall been, levied of his goods that is dead, willeth the surplusage to remain for the Executors ad testamentum defuncti pimplend. saluis uxori & pueris eius partibus rationabilibu●, which being of a reasonable part may be restrained to places where custom yieldeth it, for aught that I perceive Bracton in this passage, is like a piece of Roman ancient coin that time hath rusted and defaced.  
If a man (saith he) make a Testament, he ought to remember his Lord of whom he holdeth his land with the best thing he hath, and the Church with the next: If the wife dye before the goodman, the Church must have likewise the second best beast of all the ●●ocke heard or driven, but he saith, this is of g●a●e and permission of the husband, and though a man be not bound to give any thing to the Church nomine sep●lturae, yet if he do it is a laudable gift, and Dominus papa will not be against it. A woman that is at her own commandment may make a Will, and dispose the fruits and corn growing on her Dower lands, whether they be severed from the soil, or not severed, quoth 〈◊〉 non po●u●t sed n●●c de gratia potest. She that is sub po●estate viri, can make no Will without her husband's ratification, though by custom sometimes women ●o● make Wills of that which might have fallen to their reasonable part, etc. or of things given them, ●● or●atum ●●cut de robis & ●ocalibus.  
A man may make a Will of all his things movable, excepting so much as he oweth, for debts are before legacies, and the King before all Creditors. It is lawful for the Viscount or Kings Bayli●●●, showing his letters Patents out of the Exchequer, to attach all the goods and chattels of him which is dead found within his lay fee to the value of the debt, etc. and to i●bre●iat them, by view of lawful men, so that nothing be amoved till the debt been paid, and the remainder of all such chatte●s shall be to the Executors debitum, vero defuncti quod debetur. I●d●is non usurabit qu●mdiu haere●●●●ra aetatem extiterit, neither shall the King when a jews d●●● cometh to him take any more than the principal, neither shall a woman's Dower ●e char●●able with her husband's debt. D●● debe● esse libera, and when a man dieth 〈◊〉 state, the execution of his goods belongeth to the Church and his friends deducing first o●● of them his clear de●●s, amongst which must be reckoned his ser●●●ts wages, certain and incertain, if incertain they shall be taxed by the 〈◊〉 friends, & the charges of his burial, & funeral expenses taken out of the stock, that which remaineth must be divided into three parts, whereof one shall go to the wife, the second to the children, and the Testator hath absolute power to dispose of the third. If there be no children, una medietas defuncto, alia uxori reseruatur: If there be no wife, una medietas defuncto, alia liberis tribuitur: And where there is neither wife nor children, tuncid totum remanebit defuncto: The heir is bound to pay his Predecessors debts, so fare forth as the inheritance fallen to him will extend and further as his own grace and good liking leads him. Ea quae dicta sunt locum habent & tenent, all this is Law, saith john Bracton, except custom sway otherwise as in Cities, Boroughes and Towns. London he saith hath a custom, that when certain Dowry is appointed to a woman, either in money or other chattels or houses, she shall demand no overplus of her husband's goods, except it be the increment which he giveth by his voluntary bequest. And the reason why she shall have not plus quam dotem constitutam, is because ipsa prededucet dotem suam ante omnes debitores. His conclusion is that Citizen's wives and children shall have no more than is bequeathed to them, but be exempted from the general custom: vix enim inveniretur aliquis Civis qui in vita magnum questum facerit, si in morte sua cogeretur invitus bona sua relinquere pueris indoctis & luxuriosis & uxoribus malemeritis, etc. I am sorry that Bracton seemeth to conceive no better hope of Citizen's wives, but it may be he was deceived not only in his opinion of Borrough women, but of Law also, for he makes his division of a man's goods into thirds or seconds, shutting it clean out of Cities and Towns Corporate, to be general which Mowbray ere while told you, the Lords would not confess to be Law, 40. Edw. 3. And many arguments may be made to the contrary; for indeed it might most properly fit and be convenient for Citizens, whose estate consisteth very often rather in movable goods than in lands, and seeing the custom serveth not for heirs that have their father's inheritance, widows may most reasonably be barred from it that have jointures, or reasonable part of Inheritance, which are no● the widows of Citizens, for the most part. But let ●s end this matter with Sir Thomas Smith De republica A●glor. lib. ●. cap. 6. Though our Law may seem somewhat rigorous towards wives, yet for the most part, they can handle their husbands so well, and doucely, specially when they be sick, that where the Law gives them nothing, their husbands at their death of their good will give them all, and few there be that be not either made sole, or chief Executors of the husband's last Will and Testament, having for the most part the government of the children and their portions, except it be in London, where a peculiar order is taken by the City, much after the fashion of the Law civil.   

SECT. III. Of Quarentine.  
ALL this while the widow remains still in the ho●●● where her husband dwelled, for as Britton saith, ●n bone Christien, though perhaps not in excellent French, ne a●●iert my que ●ee●es solent botes horse ovesque le con de lour barons. Therefore M●gna Ch●●●● cap. 7. giue●●● widow qu●●●ntine or forty days a●o●e in the capital message of her husband after his decease, except the house be a Castle. If she must leave it because it is a Castle, there must presently a competent habitation be provided for her, in which she may honestly dwell till Dower be assigned her, and in the mean season she shall be allowed reasonable estovers in the common, etc. The Writ that goeth out to the Sheriff, or Kings Ba●li●●●, upon ●●●●●ment is a commission commanding speedy justice, and therefore process is to be awarded upon it against the party offending to appear within a day or two, not tarrying for the County day, and the proceeding is as in a commission Oy●● and T●●●i●er.  
See 6. Edw. 〈◊〉. 76. in Dyer, A Writ of Dower was brought, and the Tenant pleaded in abatement of the Writ, that since the darren continuance the Demandant had entered into part, etc. Showing incertain which and this was holden a good Plea, and the demand being of francktenement, the demandan●s entry hath abated the whole Writ, y●t 45. Edw. 3. in a ●●i●e facias to have execution of Dower, such an entry pleaded was not good; The Demandant to maintain her Writ said, that her husband died seized in fee, and that he and she the same Demandant, cohabitabunt super eodem manerio ut vir & uxor usque ad diem obitus sui, with protestation, that it descended to the Defendant which entered, and that she continued possession cohabiting with him, and she held the same at the pleasure and will of the heir, & non aliter: This, saith Dyer, is holden no good pleading for the quarentine, but she should have showed the death of her husband certain, and the time of the forty days continuing, therefore the opinion of the Court made her w●i●● her plea, and travers the entry, n●ta prolege: If a woman marry within the forty days, she loseth her quarentine Dower. Brooke ●y. Dower 101. 1. M. But if otherwise she be ou●●ed by the heir within the forty days, she shall have a Writ de quarentena habenda no ●● br. 161. b.   

SECT. iv Assignment of Dower.  
NOw to assignment of Dower, it is true that when it appears certain what it is that a woman shall have in Dower, she may enter presently when her husband is dead, and tarry for none Assignment, per Littleton, yet Perkins saith▪ if a man dye seized of iij. s. rend charge in fee, though here the third part be certain enough, his widow shall not distrai●●● for xij. d. before Assignment. Nay further, if she rec●●●● this Dower by action, yet she shall not distrain for it before execution: But if the Lord of a Manor do marry with a woman tenant by iij. s. rent and dye, here she shall have xij. d. Dower by way of reteiner without any Assignment. And in case where rent is recovered in Dower, the Viscount may deliver seizin by grass, by a bough, by a clod of land, or by the distress of beasts, taken upon the land, though the day of payment be not yet come. But the party cannot charge any those beasts, 40. Ed. 3. fo. 22.   

SECT. V who may assign Dower.  
SOmetime Dower is assignable by the husband's heir, as if a man seized of two acres of land in one County, make a feoffement of one acre with warranty and dye, the heir may endow the widow with parcel of the acre remaining in allowance and full satisfaction of the whole Dower, & been, for if in a writ of Dower brought by her against the feoffée of her husband, he vouch the heir, etc. she shall recover conditionally against the voucher. And if the heir make a Lease for life of part of such lands as are to him descended, and endow his mother of the parcel remaining in allowance of all, etc. it is good, yet in this case in a Writ of Dower against the Lessée, if he vouch his Lessor, the recovery shall not be against the vouchée, because he is not bound to warranty as the heir of his father. But if he had been generally vouched, the heir, and had generally entered into warranty, judgement perhaps should be conditionally against him. Sometimes the husbands one feofee, or vendée shall assign Dower for the rest. And if a woman accept Dower from one of her husband's feofées, in parcel of his land, in allowance of her Dower of the rest, it seemeth this shall bind her against the other 〈…〉 fees, yet some have doubted thereof, because the other feoffees, say they, cannot plead this in an action of Dower against them, neither is there means to bring into Court him which made assignment, being a stranger. If diverse joint-tenants be of certain lands assignment of Dower, by one of them shall been good against them all. But if one joyntenant of land assign rend in allowance of Dower, his follows shall not be distrained for this rent, for there could be none enforcement to assign Dower after this manner. Likewise if the Desseisor assign a rend charge out of the land, this shall not bind the desseis●e, causa qua supra,  
Assignment of Dower may be by one which is a Disseisor Abator, or Intr●dor, etc. if this assignment be without fraud in the woman endowed, and sans ●or● to any other person, it is good, though the Assignor be a tortuous Possessor, but if there be any such covin, or tort, the assignment is voidable, for the most part by entry. 44. Ed. 3. fol. 46. A woman that had title of Dower, with intent of defeating the Tenant's warranty made a stranger to enter, and against him she recovered Dower, it was holden in an Assize, which she brought afterwards, that he recovery would not serve her, but her estate was gained by des●isin, because of the covin.  
Assignment of Dower by him which hath Francktenement is good, and if the wife hath not right of Dower of that which is so assigned by the Tenant of the Francktenement, yet that shall stand until it be defeated. And if tenant per elegit, statute staple, or statute merchant assign Dower, it is not good. And Assignment of Dower by guardian in soccage seems not to be good, saith Perkins, for a Writ of Dower lieth not against such a guardian, see 29. Assis. p. 68 But Assignment by guardian in Chivalry is good till it be defeated▪ and it shall never be defeated, if the woman's title of Dower be just.   

SECT. VI Assignment to herself, or de la pluis beale.  
IF a man seized of forty acres of land, 20. by Chivalry, and 20. by soccage die, etc. and his wife being guardian in soccage, bring her Writ of Dower in the Kings or some others Court, against the Lord which is guardian in Chivalry, he may plead this matter, and pray to have it adjudged, that the woman endow herself of the fa●●est in her own possession, and if she cannot deny the case, it shall be judged for the Lord, to retain quietly the lands which he hath during the nonage of the Infant. And after this judgement the woman may endow herself in presence of her neighbours, by limits and bounds de la pluis beale part of the soccage lands, to have & to hold to herself for term of her life. This manner of endowment is never before judgement be given for it, either in the Kings or some other Court, and it is to save the state of guardian in Chivalry, Perkins giveth this matter, which Litlton leaveth thus raw, a turn or two more. And so doth Keble 14. Hen. 7. 26. If, say they, the land which the woman hath by her gardianship, be not the whole value of her just Dower for the smallness of it, or because it is charged with some rent, she may show the matter in her replication: And if the Lord cannot deny it, or do travers it, and it is found against him, then shall the woman have so much of the lands holden in Chivalry, as together with that she hath in possession already, may make up just a third part of her husband's inheritance. If the inheritance were all of soccage tenure, the widow being guardian cannot endow herself the la pluis beale, but she shall be allowed a third part in her account for so long time, as she is Guardian, for if she bring her Writ of Dower in this case against the heir he cannot plead her gardinship, and that she may endow herself, See 45. Edw. ●. fol. 6. If such a Feme guardian bring a Writ of Dower against one whom her husband infeofed with warranty, he shall not pray that she 〈…〉 owe herself, for he may vouch the heir which Gardin 〈…〉 Chivalry cannot do. It is no good plea for Garden in Chivalry to say the Demandant was guardian in soccage, etc. but he must show that she is guardian in soccage ●our deal brief purchase, and this is good till she have showed by replication the land devested from her possession.  
If a widow guardian in facto, of some lands that were her husbands, and holden in Chivalry, purchase her Writ of Dower against another Guardian in Chivalry, he shall not plead the special matter, and plead ut supra, for the wardship is here to the widows own use and profit.   

SECT. VII. Assignment of Dower by the King. Statutum prerogative ca 4 fact. 17. Ed. 2.  
THe Statute is that after the deaths of husbands which held of the King in Cap 〈…〉, the King shall assign Dower, yea although the heir be of full age, Vidue si volu●runt. And such widows before assignation of Dower, whether the heir be of full age or under, shall swear not to marry without the King's licence: If they do marry ●a●● licence, the King shall take into his hands as a 〈…〉 esse all the L●●●s and Tenements holden of him in Dower so that the woman shall take no profit of it, till she or her husband have satisfied the Kings will by fine, which was wont to be tempore regis Henrici patris regis. Ed. ●. ●aith the Statute, at full yearly value of the whole Dower, nisi uberiorem g●●●iam habu●●●nt ●ulieres. And women which be themselves Tenants in Capite of inheritance, what age soever they be of, shall swear likewise not to marry without the King's licence. Si fecerint, terrae cap●●●tur eodem modo in manus Regis, etc. This Statute is proved to be but confirmation of the common Law, ●4. H. 3. Prerogative 27. i● Fitzhe●●●rt, and by ●●. Char c. 7. ul a vidua distringatur ad se ●●●●tandum dummodo voluerit vivere ●●●e marito: Ita tamen quod secu●itatem faciat, quod se non maritabit ●ine assensu nostro, si de nobis tenuerit vel sine assensu domini sui si de alio ●●nnerit. Fitzb. in natu. br 263. shows the manner of endowment by the King: The widow must come into Chancery, and make oath not to marry sans licence, whereupon the King may make the Assignment in the Chancery, and direct his Writ to the Escheator, certifying him that he hath assigned a third part of such lands, with a third part of the liberty of Court view of franckpledge, etc. commanding him to make livery of the same to have in Dower, or the woman may after she hath sworn, have a writ reciting her oath, and commanding the Escheator to make assignment. But the most usual course is ut antea.  
And the King though he hath committed custody of lands to another person, may assign Dower to the widow in Chancery notwithstanding, and she shall have a Writ to the Escheator, y●● and the King may grant a Writ to the Escheator, commanding him to take surety of the widow not to marry sans licence, and then to assign her Dower, as praecipi●us tibi ●● cappo sacramento, etc. assignari & lib●●i ●●cia●, etc.  
If the Tenant which is dead held by Chi●●●ry of some Bishopric or such like which is in the King's hands by vacancy, the widow must demand her Dower in Chancery, and she shall have a Writ for her Assignment to the Escheator, but in this case she swears not to marry sans licence. So is it also when Dower is demanded of la●●●, holden of a common person in Chi●●●ry, where the heir is in the King's ward p●r ●●nage.  
And the King may assign Dower in Chancery rendering rend to him, because the lands assigned do exceed a just third part of the Tenements, whereof Dower is assignable. If the widow be so weak ●● impotent that she cannot travel to the Chancery to take her oath, and demand Dower, she may sue a special Writ to some person, both to take her oath, and to receive Attorney▪ whom she will constitute to sue in her stead. If livery be made to the heir being of full age with a reservation of Dower, to be assigned to the King, and then the widow cometh into the Chancery for Dower as she must do, there shall go a special Writ to the Escheator, to warn the heir that he be in Chancery at a certain day, and the widow shall been appointed the same day to receive her Assignment. But if the Writ of Livery directed to the Escheator been general, without clause of salua do●a per nos assig●anda, the widow must now ●●● for her Dower by Writ of Dower against the heir. If the King when he makes livery reserves Assignment of Dower to himself in his Writ to the Escheator, now whether the widow come and demand dower in Chancery, or demand no dower, yet the reversion is in the heir after assignment, for after the death of Tenant in Dower the heir shall not 〈◊〉 any ne● livery. Because the first writ command● all the land● to be delivered, and so the Escheator doth deliver all, nothing being reserved to the King, but only Assignment of Dower. If after this Assignment i●●e ●●r●is●● by the heir, or other body, that the land which the woman hath, is of far greater value than it was made by the extent, etc. if the excess ●e 〈◊〉 and returned, ● s●i●e facias shall go▪ forth ●● cause the woman to come and show cause why she should not take a n●w Endowment.  
If she appear and cannot gainsay the matter, or if she were warned and make default, it seemeth in both cases, she shall be endowed a new. So that parcel of the lands which she hath, shall be taken from her, ●● the King may, if he will, make assignment altogether new, by a new Writ to the Viscount. If the widow after she is sworn and endowed, do marry sans licence, the King sends to the Escheator to seize those lands, which she holdeth in Dower, by a Writ reciting the oath, the endowment and marriage with this in it, Nos contemptum hu●●●modi nolentes transi●● impunitum, necnon inde●●●●tati nostrae volentes prospleere, tibi praecipimus (si ita est) ●nc omnia terr●● & ●●●●ment quae ten●t in Dote, etc. capias in man nos●●, Ita quod de 〈◊〉 provenientibus nobis respond●●● ad scaccar●●● 〈◊〉 quousque nobis d● Forisfac●u●● ad nos inde pertinent satisfactur ●u●rit. Thus far 〈◊〉.  
Stamford argueth, whether Fitzherbert deliver the Law rightly or no, in this that he saith, the King may assign Dower in Chancery, though he have committed o●●● the wardship of land to some other body: for many writs are in the year books brought against the Committée in such a case. And in some books the woman recovers Dower, the King never being made privy: As titulo ●●● del roy 23. 〈◊〉. is the case 4. H. 7. fol. ● Action of Dower was against the King's Committée during the heir's ●onage, the Defendant shown how it was fo●●d by office, that the husband's father tenant to the King, died seized having issue, the husband which entered sans office, and died▪ leaving his heir under age, all which matter was 〈◊〉 by office: whereupon the King seized, committed the lan● to the Defendant, etc. judgement ●● actione.  
And the widow was adjudged dowable. Bry●●, who at the first was in mind to proceed no further without ●●d of the King, when he had considered the Statute de Bigamis▪ cap. 3. awarded presently that the woman should recover Dower. The Statute is, Vbi custodes hereditatis mari●orum suo● cui●●dias habent ex dono vel concess●●ne regis, ●●ue custodes ●●●um petitarum ●enea●●, ●iue heredes dictorum ●●●●men●orum vocentur ad warrantiam si excipiant quod sine reg● respondere non possu●●, non ideo ●●persed●●tur, qu●● in lo●●el●●dicta pro●● iustus fuerit procedatur● Stamford noteth some books wherein is ●ound, that he●re● in costodie of Committees vouched to Warranty, have come in and had aid of the King, directly contrary to this third Chapter de Biga●is. But whether the Kings grant in those cases were Durante 〈◊〉, or Durante bene placito▪ it appears not in the ●ookes, and that makes a great difference.  
Likewise if the Writ of Dower ●e 〈◊〉 〈◊〉 Committée of a Committee: And if Wardship ●● committed to the widow without exception or foreprize of Dower, she is concluded to claim any Dower during the Wardship. In Stamfords' opinion the new 〈◊〉 〈◊〉 and the case supra 4. H. 7. do not agree. Howbeit for ●hy part ● find not the repugnancy; for as the King may assign Dower to his widows, though the heir● be of full ●ge, Vid●a si voluerit, so Fitzhorbe●● saith he may assign Dower if he will, though he have committed the la●●●●▪ And this doth not deny, but rather affirm that ●● some case the Committée may assign Dower▪ If the Committée (as Stamford himself confesseth) assign. Dower to one that is not dowable, or if his assignation exceed just measure, the King may reform it. And if a wom●n ●●dowed by the King's Committée will marry 〈◊〉 〈◊〉 because she stands vn●wor●e, for in the C●mm●● pla●e is no swearing in this point, her ●●nds are never ● whitlesse subject to ●eizure for the contempt, therefore in the end he concludeth, that where ●●ard is omitted over, the woman hath election, whether 〈◊〉▪ 〈◊〉 ●●● to ●he King in Chancery, or at Common Law against the Committée, unless it be where the grant of a Ward is but Du●an●e been placito▪ for in that case of necessity the suit must be to the King. S●● Sir 〈◊〉 〈◊〉 〈◊〉, fol. ●8▪ the reason why a Writ of Dower is maintenable against the Committee of the King.  
Stamford thirsteth Fitzherbert also in that that he saith, a widow must demand Dower against the heir, which hath Liue●●● without clau●●●● 〈◊〉 dote p●●●●● assig●and●; for when Liue●●● is before Assignment of Dower, there is commonly a saving in the Writs of Livery, if so be the woman were found to be wise, etc. by the office. And if she be not found by the Inquisition, than there is a leaving out of Sal●a Dote, etc. in suing of general Livery. Indeed if she were not found to be the King's Tenants wise in the office, the heir may safely s●e▪ Livery within 〈…〉 such saying: But 〈…〉 agrees with O●slow P 〈…〉 32. in the case of mines, that for Assignation of Dower, if the King have not expressly relinquished it, though the Livery be s●m●●l●●se of salua Dote▪ etc. yet this makes no such wai●ing of the prerogative, but that the King may assign Dower to a widow, that by an office is found to have been wife to the King's Tenant at the time of his death, for without so much it seems she can neither demand it in Chancery of the King, nor of the Committee, nor of the heir in the Common place, quere vide fol. 109. Prerogative of not assigning. The King hath a prerogative aswell of not assigning, as of assigning Dower. As if the husband's Feoffee in a writ of Dower against him call to Warranty the heir in the wardship of the King, etc. the woman shall recover against the Tenant, and no recovery shall be as yet against the heir: But neither any common person, nor yet the King's Committee of wardship, shall have this prerogative: But for the King himself, if in the case judgement to recover is value be given for the Tenant, he must stay for execution till the King's hands be amoved, etc.  
If a woman be endowed by her husband's Feoffee, of such lands as the husband did not die seized of, whereof also for this reason the King can have no wardship. Stamfords' opinion is, that she cannot marry s●ns licence.  
For by ●6. Assisarum Pl. 57 it appeareth that where a woman was endowed, by Guardian in Chivalry, who was afterward attainted of treason, and his Signiory forfeited to the King, she must hold now of the King, and not of the heir which was in reversion of the land: He accords with Fitzherbert, that the Statute of Prerogative is understood only of lands holden in capite, and therefore she must demand Dower of lands holden of a Bishopric, or of Tenant in capite, when the temporalities, or the heir are in Custodia regis, she must be endowed in Chancery, but she may marry when she list, and shall take no oath to the contrary: Also if a widow will relinquish her Dower of lands holden in capite, she may marry ●ans licence. And see Dyer 3. M. 123. b. affirmeth, that the wife of Tenant paravaile shall not be sworn as widow of the King in the Chancery, when her Dower is assigned to her. The reason per Stamford is the copulative connexion of Et si se maritaverit, to the former words of the Statute of demanding Dower, and swearing not to marry: The words si viduae voluerint, he takes to imply no more but election of refusal, or taking of Dower, and that is manifest by the last clause of the Statute.  
But by Fitzherberts' writ, which he sets down for form of seizure, when a widow is married sans licence, it appears that the King may grant to another the marriage of his widow or widows, and for marriage before agreement with such a Grantee the King may seize, and composition with such a Grantee by Baron or Feme before or after marriage, is as good as if it were with the King himself. But now by the Statute 32. H. 8. cap. 46. This composition is given to the Master of the Wards and Liveries, with three of the Council of that Court, who have also authority to tax according to the Statute of Prerogative, a reasonable fine for marriage sans licence.  
How much it ought to be is plain by the Statute, as also what lands are subject to the Statute, as also what lands are subject to seizure aswell of the husband's lands as of the wives. If that were reason, saith Fitzherbert, a woman's inheritance might be seized too, Et semble a moy, the King cannot grant marriage of his widows as he may of his wards; for a widow may remain sole without penalite, or paying for it, by Mag. Chart. cap. 7.  
But Stamford includeth, that a widow endowed o● lands holden in capite by the King's Committee, or husband's heir, though unsworne is not freed from marriage sans licence, for she is presently as soon as she is endowed, tenant to the King, and not to the heir which is in reversion, yet only the heir is he, which shall have action of waste against her; but if trespass be done upon the ground, she may have a writ out of Chancery, supposing entry upon the King's possession. And avowry to be made by the King resteth only upon her, as holdeth Wood, 1. H. 7. fol. 17. and 4. H. 7. 1.  
Now note that Endowment in Chancery is of such strength, that be it by wrong or by right, it cannot be avoided by plea without suit in Chancery: And if it be too little, the woman must stand in her own harms, that hath once attempted it in Chancery, be she within a●e, or of full age, as appears, 18. Ed. 3. fol. 29.  
If any office be traversed, because the land is holden not of the King, but of some other Lord, who therefore hath an Ouster le maine una cum exitibus, yet Dower which is already assigned remaineth undefeated, till another suit be made in Chancery to avoid it.  
Yet in this case, because Admeasurement, is no prejudice to the King of whom the land is not holden, the Lord that tendereth traverse, may have a Writ of Admeasurement at the Common Law. And the heir may have Admeasurement of Dower assigned by his Ancestor: But an Abator cannot have Admeasurement, neither can Guardian in fait have Admeasurement upon assignment by Guardian in droit, nor if the heir were at full age at his Ancestors death, and died, his heir being within age can the Guardian have Admeasurement, but where a woman is endowed in Chancery, and afterward the heir, or some other for the King surmiseth excess of value, it may been admeasured beginning with Scire facias, as Fitzherbert hath taught supra, and fol. 249. ●. If the husband had l 〈…〉 in diverse Counties, by reason whereof diverse writs of diem clausit extremum were awarded after his death into every of those Counties, the widow cannot be endowed till such time as all the writs be returned into Chancery. If after she is once endowed in Chancery, her Dower be recovered from her by any title, she hath no remedy but to remove the record of this recovery into Chancery, and then upon the first record which showeth that she was endowed, and upon this other of recovery she shall have Scire facias, reciting both the records against him which is tenant of the two parts, to reseise them into the King's hands, and so to be newly endowed, but not to recover any damages, though damages were recovered against her, Lib. 43. Assisar. Pl. 32. for by the latter part of the Statute Prerogative, cap. 4. It seemeth the King hath lost his prerogative, and that he is bound by, West 1. cap. 22. Note that woman joint purchaser with her husband is not within this Law to fine for her marriage, when she becomes a widow (say I) therefore well far a jointure.   

SECT. VIII. Suit for Dower at the Common Law.  
THus we have seen how, and when a widow mu●● f●● for Dower in the Ch●●●er●●, viz. when either her husband died the 〈…〉 tenant in cap●te, or by ●nights service, his heir under age, or otherwise tenant to some other, ●hole lands are in the King's hands by vacancy, or nonage of the heir. But if the husband, which held in Socage, or by ●nights service, not of the King, did give or alien any man●●r of way his lands, or were disseised of them, or died s●is●● of them. The widow, if by simple demand she cannot obtain her Dower to be assigned her, may have a w●●t of Dower Vnde nihil habet at the Common Law against him which is tenant of the Franktenement, by the old Nat. brevium this writ is maintainable against him which hath possession of the land, by what manner soever, or against the Guardian in Chivalry; in this or like form, Rex V●cecomiti, etc. command A. to render to B. which was the wise of C. ●er reasonable Dower, quae ad came contingit de libero ●enemento, quo● fuit predict C. sometime her late husband in D. unde ni●i●●abet, & unde queritur quod A. ei defortiat, etc. & nisi fecerit & B. fecerit t● securum de clamore prosequendo, etc. summoneas A. ut sit apud Westm ostensurus. If the Dower were ad ostium Ecclesiae, or ex assensu patris, or otherwise there is mention made of it in the writ. In London there may be a writ from the King to the Mayor and Sheriffs in these words, Quod justicietis A. quod just & ●●ne delatione, & secundum consuetudinem civitatis nostrae London redd' B. quae fuit uxor C. rationabilem dotem, etc. Et justicietis D. quod just, etc. whereby appears that a widow in London may have a writ of Dower against several tenants by several justicies, as well as at the Common Law several Precipes against several tenants all in one writ, the Process in the Common Place, is summons, Grand cape & petty cape, in the Common Place this writ of Dower, unde nihil habet, must be returned into the King's Court, Et per grand reason, saith Britton cap. 10. 4. For if two or more women should strive, every of them affirming herself to be the lawful wife of him which is dead, not minding to be buried with him, as is the corpse in India, but to get a third of his lands: This must be tried by Certificate from the Bishop, unto whom if any but the King should write for the deciding of debate, it might fall out to be all in vain, because none hath power but the King to compel the Bishop to make Certificate. In the next Chapter Britton showeth, that if the Tenant vouch to warranty one which appeareth according to summons, the Plea shall proceed betwixt the Plaintiff, & the Warrantor, or Vouchée, the Tenant keeping seizin till the Warranty be determined▪ Then if the guarantee cannot be denied, nor the woman's right disproved, if that which she demandeth were certainly assigned to her for Dower from her husband, she shall recover against the Tenant, Et le renant le value.  
But if the demand be of no other than reasonable Dower▪ the woman shall recover in value against the Warrantor, and the Tenant shall hold his land in peace: If so be this Warrantor be under age, yet the Law favoureth widows so much, that the plaint shall not attend his full age. Therefore if the Tenant show forth any Charter, Deed, or special cause, whereby the Court may perceive that the Infant is bound to Warranty by the Ancestors act, he shall answer presently, what age soever he be of. And though the Infant in ward be aliened by his Guardian or Guardians from hand to hand, this shall not prejudice the Voucher, for always he shall vouch to warranty the Heir and not the Guardian, who is bound to present his ward so vouched in Court without difference, whether it be one or many parceners. Thus saith Britton, and 48. Ed. 3. fol. 5. agreeth, that he which voucheth an heir under age, must vouch him in ward de untiel. If he be a ward, it is said there also, that he which voucheth an heir at full age, must show a Deed, quaere. But when the lands are in the Guardians own possession to his own profit and use, the writ of Dower must ●ée brought against the Guardian, and not against the Infant. 46. Ed. 3. fol. 19 Where Mowbray saith, where an Infant is vouched in ward of the King, the woman shall recover Dower maintenant. 3. H. 6. fol. 17. It was agreed per curiam, that in Action of Dower, if the tenant vouch the heir in the King's ward within the same County where the writ is brought, the Demandant shall not recover before the warranty be determined: but the Law is contra, if the Voucher had prayed summons in another County, for then the Demandant should recover maintenant, yet by the Register fol. 7. if in a writ of Dower the tenant vouch in Durham, the Demandant shall abide trial of the warranty, and not recover presently. But by Fitzherbert for a rule in titulo▪ Vourcher, if the tenant vouch in a foreign County, she shall recover maintenant, and never attend trial of the warranty, but when Vourcher is in mesme l● county. If the heir vouched to warranty, aft●r ●hee hath appeared and count●● pleaded the warranty, or before appearance, being lawfully summoned do 〈…〉 ke default, the Defendant shall have execution against him maintenant, if he have lan●s within the County, Brook Dower 5. And also Dower the 6●. when the heir is vouched in the same County, the woman shall recover against the heir. Dyer 3. Eliz. ●●●. In Dower the tenant vouch the heir in the same County, who co 〈…〉 as one that hath nothing by descent in ●ée, and renders Dower, the tenant avers, that he hath ass●●● by descent, cue 〈…〉 if he should not say in fee, for by Weston and Browne, if the lands be in tail, it doth not 〈…〉 the tenant's lan●s And the opinion of the Court was, that the Demandant shall have judgement presently aga 〈…〉 the heir if he hath lands, etc. and if not against the tenant, and that before the issue of the ass●●s tried.  
1 Ed. ●. fol. 24▪ In a writ of Dower against Tenant for life, if he vouch his Lessor, which is heir to the husband, the woman shall recover against the Tenant, and he over against the Vouchee. But when the heir i● vouched by Charter of his Ancestor, the Demandant shall 〈…〉 cover against the Vouchee, and the Tenant shall hold 〈…〉 peace: Yet in a Writ of Dower against Lessée for 〈…〉 e of the Baron's demise, if the heir be vouched to Warranty (though here the reversion which is the cause of the Warranty were made by the Baron) the Demand 〈…〉 shall recover against the Tenant, and he against the heir. If the tenant vouch in a writ of Dower, and the Vouch 〈…〉 counter plead the Warranty, the woman shall recover maintenant, though in other actions it been otherwise. 46. Ed. 3. fol. 25. and 49. Ed. 3. fol. 23. In a Writ of Dower the Tenant vouched himself, to s●●e the 〈…〉 tail. 2. H. 4. fol. 18. in Dower the Tenant vouched the heir, Process went on to sequatur sub suo periculo sicut alias, the Vouchée came not, it was awarded the Demandant should recover against the Vouchée, if he had lands in the same County. If not, that she shall recover against the Tenant, and he over in value. But first it was examined if the Vouchee were heir to the Baron.  
21. Ed. 3. fol. 30. In Dower the tenant voucheth the Baron's heir in ward of the demandant per cause de nurture, showing the Ancestors Deed, he was compelled to plead in bar, because now the woman might be endowed De la plus beale, for Garden pur nurture, hath always intendment to Soccage tenure. Vide Brooke Dower 42.  
5. Ed. 3. The father's wife was endowed, the Grandmother brought a writ of Dower against her, ●he vouched the heir in reverston, the Demandant recovered against the tenant, and she against the heir a third part of two parts remaining, but not in value. See Brooke Dower 79. If the Grandmother die, the mother may enter into the first dower, and the heir into the second.   

SECT. IX. Pleas in a writ of Dower.  
ADmitting there were no Voucher, let us run over other matters usually pleaded. 14. H. 4. 33. in Dower was demanded a third part of two mills & of other lands, the tenant asked judgement of the plaintiff: for they were during the whole time of coverture, but the ●●te of two mills, viz. to●ts. 38. Ed. 3. fol. 13. In a writ of dower against one as Guardian of land, and heir of K. de R. the defendant answered that the Infant's father was ●. de R. judgement deal brief, and if the writ were good, he was ready to render dower: You cannot, said Knyvet, plead to the writ & render dower both at one day, so the demandant praying judgement, seizin was awarded her. And because she averred that the defendant was not touts temps priest, to render dower, an Inquest of damages was awarded, and that execution should cease till the Inquest were passed.  
13. Ed. 4. fol. 7. In action of dower the tenant pleaded touts temps prist de render Dower, & uncore est. The demandant said that I. S. her husband died seized, and that such a day and year she required the tenant to endow her at Dale, which refused, etc. he replied that at the same day he offered to go with her to the lands, and to assign her dower, but she refused, sans ceo, that he refused: The Court held the Issue well taken by this special pleading. But if he had said generally and barely he refused not, some thought it had not been sufficient, insomuch as it denies not the request.  
Bryan said the demandant here might not have several judgements of one thing, for note, she was to recover dower upon the first plea, but all the other justices were of opinion clear, that she should have judgement, of Dower maintenant, and 18. Ed. 3. In action of Dower judgement was to recover dower with an inquest for damages. As in a Quare impedit the Plaintiff may have one writ to the Bishop, and another to the Sheriff to inquire of damages.  
Likewise 14. H. 8. fol. 25. in a plea of dower upon confession the demandant recovered judgement, and after judgement averring that her husband died seized, she prayed a writ to inquire of damages, & habuit: for if the demandant in dower will recover damages, she must ever surmise that her husband died seized, though the Tenant confess the Action, or plead but only to the Writ, and in the end of her Demise she may maintain the Writ, for sur plea & brief, the dying seized appears not, without surmise, etc. 22. H. 6. fol. 44.   

SECT. X. Deteiner of Evidence.  
BY Perkins, none may detain Dower for detaining of evidence but only the heir to whom the evidence belongeth, and the heir, when he pleads, must show what the evidence is, etc. And they must concern the lands descended, unto him whereof Dower is demanded; for he may not detain Dower of land which the Charters concern not, or for Charters concerning his purchased lands, or those whereof he hath no seisin. Aliter, if they concern some reversion descended; But if the heir come in vouched to warranty by the Barons feofée, he cannot plead this Deteiner of Evidence, because in verity the land is another man's to whom most rightly the Charters belong. But one copercener may have this plea after partition against her mother or other Demandant in Dower, though the evidence concern the other parceners and her all alike; see 41. Titulo Dower in Brook, If a widow that is with child detain evidence against her husband's daughter and heir, or other heir collateral, it shall been no sufficient plea to delay Dower. 1. Perkins 70. & 71.  
18. Hen. 8. fol. 1. The heir said, the Demandant detained a bag ensealed with the evidence, concerning the land, which if he would deliver he was ready to render Dower, bone plea per Curiam.  
33. Hen. 6. fol. 51. The Tenant pleaded for part of the land, whereof Dower was demanded non tenure, for another part detinue of Charters, for another part joyntenancie which his father, for a fourth part demanded view: but it might not be granted, because he took notice to himself of that part by pleading to the rest. And the Plaintiff to his plea of suruivor pleaded his release made to the father her husband in his life time, Issi●● seisi que Dowry, etc. The plea of Evidence detained as Littleton said, went to the whole action, quod fuit, negatum, v●de Brooke ●y. Dower 4 but he was forced to show what evidence he detaineth, viz. a special Charter.  
4●. Ed. 3. The Tenant pleaded a withholding of Evidence certain, concerning his inheritance, and shows what: Et q●e il a● estre toures temps priest si, etc. the woman made title to two deeds, by gift to her husband and herself: and for the other Evidence, she said whereas the Defendant claimed as brother and heir to her husband, she kept it to the use of her child: si ou●sq̄ soit inseint q̄ serra ●eure si dien luy done nostre, and issue was taken, whether she were inseint die obitus mariti, not whether she were inseint per son baron die obit●s. And that book of 41. Edw. ●. is cited for law, in Sir Edw. Coke 7. Rep. fol. 9 that a woman may detain Charters for the heir in ventre ●a mere. And 22. Hen. 6. fol. 16. It was agreed that deteiner of Evidence is no plea in an Action of Dower, unless it concern Inheritance descended. Et si● videtur ibidem, saith Brook, that if it concern inheritance, though it be not the very land, whereof Dower is demanded, the plea is good, 9 Edw. 4. to plea of Charters detained, the Demandant answered veies cycle fait & pr●● dower: the Court reading and perceiving it to be the deed, etc. gave judgement for Dower.  
14. Hen. 6. fol. 4 The Tenant pleaded detinue of a chest with two fines and other Charters: ꝑ Martin justice, if the Chest were open he ought to declare every deed, specially by itself, and so it is likewise in action of detinue, for a Chest open with evidence, quod curia concessit.  
2. Hen. 7. fol. 6. Is set down, the reason why the certainty of evidence detained must be shown, viz. That the jury may be more able to make their verdict, and the Court to judged to whom they appertain: for if they belong to the Defendants purchase, he is put to a Writ of detinue.  
And 6. Eliz. Dyer 230. see, a man seized of four acre's soccage land, and of one deed or Charter concerning those lands, by his last will in writing devised three of his acres to his youngest son in fee, the fourth acre to his wife for life, the remainder to a stranger in fee, h● died, his wife got the deed, entered into her acre, and the son into the three acres devised to him, the woman brings a Writ of Dower, for a third of these three acres. The son pleads detinue of the Charter, which if she would deceuer, he is and always had been ready to render Dower: she shown the whole cause by way of replication, & upon that the other side demurred. It seemeth (saith Dyer) that this plea serveth for none, save only the Baron's heir, and for no land, but that which is descended: And not for the heir himself if he come in by voucher, or ●s Tenant by receipt in default of Tenant for life: Where he is no more but tenant per admittance, for such a one cannot say, that he hath been toutes temps priest a tender Dower si etc. Neither can guardian in chivalry have this plea, for he cannot have a writ of detinue of the heirs evidence: And this plea is a bar for no lands but those which the Charters detained do concern. 22. H. 6. Where Newton saith, the reason of this bar is, because the evidence being seen and looked into, may yield matter to bar the Demandant of her Dower, for such lands therefore as the Charters do not touch, Dower shall be granted of them, this plea notwithstanding. Also certainty must ever be alleged in this case, if the evidence be not in some bag, bo●, or chest, sealed or locked up. And note, the Defendant supra was not named heir by the demandant, neither had he enabled himself to this plea as heir, therefore the Court might take it indifferently: As in a quare impedit▪ if the incumbent be named Clericus, the Court takes him for a Disturber if he enable not himself as incumbent, or person impersonée. Another fault was found in this Tenant's conclusion of his plea, because he said vnco●e priest a tender Dower, but in very deed he relied not again on the condition if the Demandant would deliver the Charter according to the ancient book of entries. And at the last judgement was given pro dote.  
See Sir Edw. Coke 9 Rep. in Anna Beddingfelds case 1. That the Charters ought to concern the land whereof Dower is demanded, and not other lands descended to the heir. 2. He that pleads that plea ought to show the certainty whereof a certain issue may be joined, or that they are in a chest or box sealed, which import sufficient certainty, whereof certain issue may be taken, and in both cases action of detinue may be brought by the heir. 3. No stranger although that he been Tenant of the land, and hath the evidences conveyed unto him, may plead in a Writ of Dower deteiner of Charters, but that plea is only in prinity for the heir of the husband. Also the heir shall be in the degree of a stranger in five cases. First, if the heir hath the land by purchase. Secondly, if the heir hath delivered the Charters to the wife. Thirdly, so the heir be not immediate vouchee, namely, by the Tenant in the Writ of Dower, but by his vouchée. Fourthly, if the heir comes in as vouchée, having no lands in the County where the land is demanded. Fifthly, if he comes in as Tenant by receipt. And Guardian in Chivalry may not plead deteinement of Charters, for he may not conclude his plea if the Demandant will deliver to him the Charters, etc. for the Charters which concern the heritage of the heir shall not be delivered to the Guardian as it is adjudged in 10. Edw. 3. 49.   

SECT. XI. Detaining of the heir.  
AS the heir only may detain Dower for detaining of evidence, so the Guardian in Chivalry only may deterge Dower for detaining the heir, and that he may plead and conclude q̄ il ad en touts temps priest, for the ward belongeth to him.  
If a widow eloign the infant or heir of her husband, though some other body have him by her delivery, yet the Guardian in Chivalry may detain Dower, except she can redeliver him to the Guardian in as good plight, as he was at the time of the eloignment, that is, unmarried if he were eloigned unmarried. But a woman nourishing her own Infant, the son or heir which her husband left her, if a stranger clauning as Guardian sake him from her, the right Lord shall not detain dower for this cause. But if a woman take and remove the heir from the place where he was nourished at time of the Baron's death; Now if a stranger wrongfully take him from her, the true and right Guardian may detain dower. And this matter is pleadable by Guardian in Chivalry, though he come into Court, by reason that the heir is vouched to be in his ward; for by right the custody of the Infant can appertain to none but to him, unless it be by his grant or agreement. Certainty is required in pleading of this detainer, aswell as in the other, viz. that she which demandeth dower hath eloigned or detained I. S by name, son, or daughter W. etc. 22. H. 6. fol. 16. 2. H. 7. fol. 6.   

SECT. XII. Possession in the Demandant.  
39 Ed. 3. 17. DOwer was demanded, a third part of a carve of land; the tenant said the demandant herself was seized of a third part of it already: judgement the brief per Knyvet it was no good plea, without showing who assigned it, or that she recovered it. For if she were in by disseisen, she must have dower of the other two parts remaining: nevertheless by which the tenant was chased to answer for the two parts. 7. o● H. 6. 33. & 34. In action of dower against t●●, one said he had assigned rend, out of the land six shillings and eight pence annual to the demandant for term of her life, which she accepted, etc. The other pleaded tou●s t●mps priest, etc. The assignment was holden a good plea, etc. the demandant said she never agreed. Now, per Strange, she was to recover a moiety maintenant, though the other plea were not yet tried: for this was a confession of one, and pleader in bar of the other.  
2. H. 4. fol. 7. A Lady sued in Chancery to be endowed of diverse Manors which were her husbands, where the heir was in guard of the King, as was found by the Diem clausit extremum there returned, and because it appeared that King Richard had committed wardship of the lands and body of the heir till full age of the said heir to her by patent without foreprise, or mention of dower, she was ousted of dower per agard de toutes les justices, till full age of the heir, simile, 11. of H. 4. in case of the Lady Arrundell. Fitzherbert saith likewise, If a woman take a lease for years of land, whereof she is dowable, she shall not sue for Dower during these years, Nat. br. 149. c. Bracton propoundeth to be considered what shall be done when the widow brings her Writ of Dower, unde nihil habet, and yet it is so that she hath part of her Dower already: If (saith he) it be proved, or she cannot deny it, cadit breve, and she shall not recover the residue, but by Writ de recto de dote: Therefore let her accept no part of her Dower, before she purchase her Writ, and let it contain all the Deforcers, be they in one County, or in many.  
When they are so put together, if now she accept any thing of her Dower without judgement, the acceptation of part shall be no exception against her, for she may confess satisfaction for that part: If peradventure she have already taken part of her Dower from some one person before the obtaining or purchase of her Writ, let his name and the summons for him be in the Writ notwithstanding, and then if it be objected she hath accepted part, she may acknowledge that he hath satisfied her for his part, and whether before or after suit is not greatly to be stood upon. But if he of whom she received part be not named in the Writ, she cannot against the objection of acceptance reply, that the land which she accepted is not in the same Town, but in another. For unde nihil habet in the Writ non debet referri ad villas sed ad dotem. It is nothing worth therefore, to say she hath nothing in tali villa, if she hath any thing nomine dotis, wheresoever it be it is not then material. And when a woman replieth nihil habet, her defence shall not be per legem that is wager of Law, but per patriam. Likewise, if a woman plead that she hath nothing nomine dotis but by some other title, as ratione custodiae & huiusmodi, Inquisition may be in the County where it is supposed she received Dower, to find whether she have any thing in Dower of the tenements which were her husbands, and if she had, and now hath not, to inquire what is become of it, this was a Nor●●. case of Holda the late wife of W. in Trinity Term, 4. H. 4. as Bracton in his fourth Book 13. Chapter and fol. 312. relates unto me.   

SECT. XIII. Ne unques seisi que Dower, etc.  
THere are other pleas that go to the action and very right of Dower, as Ne unques seisi que Dower, etc. id est, The husband had never any seisin or state of Inheritance, where of the wife can claim Dower, see 45. E. 3. fol. 13. The tenant in Dower leased her whole estate to the heir, rendering rend for term of her life, the heir died, and this was adjudged a seisin, whereof the heirs wife might demand Dower, though the first tenant in Dower were still alive; for the lease was a Surrender, and if a stranger had entered immediately after the heir's death, his heir must have had a Mordancester: Ergo, said one, the wi●e dowable. Yet mark this case abide. a man seized, etc. in fee simple dies, his son entereth and he dies, the sons son enters and endowes his Ayl●s●e: she dies, a stranger abateth. In this case it is clear, the son's wi●e shall have no Dower of the portion assigned to the Aylesse: though the son's son may have a Mordancester per Kirton, Finch▪ and Mowbray: But betwixt this cas● and the other, they say, is great odds; for here the Grandmother endowed, was in from her hus●●●●, and she son's possession and estate howsoever, to his ●●ire in whom the fee rested it were not destroyed, but he might bring a Mordancester, yet to his wi●e it was clean annihilate, whereas in the first case, the Fee and Franckten●ment not a whit impeached by the life of her which surrendered, were perfectly con●●●ned in the Baron to whom the Surrender was made. And if a reversion be granted to I. S. of certain lands per fai● in pais, in which lands I T. and his wi●e have ●state for life, which do atturne and afterward surrender, there is no doubt but I S. his wife, if he die, shall hau● Dower, though it be indeed defeasible after death of T. K. if his wi●e survive and will vnd●● the Surrender: whereas in our first case the Surrender is no way avoidable, but the heir's wife shall pay rend according to her portion per Finch, ●b●●. 14. Ed. 4. fol. 6. Tenant by the courtes●e granted his estate to him in reversion, rendering rend with clause of reentry for non payment, the Grantée married, the rent was arréere, tenant per le curte●●e reentered, he in the reversion died, his wife wa●●arred of Dower, for the Surrender might well be upon candition.  
2. H. 4. fol. 22. In action of Dower it was pleaded, that the Demandants husband had nothing in the land▪ ●ut by 〈◊〉 done to the tenant, judgement si action▪ etc. The woman shown how her husband's father, having two sons, leased his land to the eldest son, and to hi● wife for 〈◊〉 of the●r lives, and that she herself married with the youngest son, the eldest died, and his wife married with the tenant: the father died, the reversion descended to the second son, being her husband, the tonants wife died, and he kept possession, the Demandants husband did put him out, he reentered, she prayed seifin, etc. Brooke thinketh she ought to have traversed the Disseisin. And if the Baron had not entered after the death of the eldest sons wife, she should not have been endowed: yet saith he, 〈◊〉 if without entry there had not been a seizing in Law, and whether▪ the Francktenement which the tenant had once in right of his wife ●e determined in punto by her death.  
11. H. 4. 73. In action of Dower the Tenant saith, That N. gave the land to the Baron and his first wife for term of their lives, the remainder in tail to the tenant, remainder in Fee to the right heirs of the Baron, his first wife di●d, he married this demandant and then he died, and the tenant entered, etc. he demands judgement if of this estate she shall have Dower.  
This amounted plain to ne unques seisi que Dower la puit, but per Hank & Thirn, that plea might not serve, by reason of the Fee simple in remainder▪ which might engender doubtfulness a lays gentes. But where a lease was made to Baron for life, the reversion to the Lessor, or remainder to a stranger, there in action of Dower ne unques ●ei●●, ●ec. i● good, for no manner of Inheritance was in the husband.  
11. H. 4. 83. Dower was demanded of twenty pounds rend, respondetur, the Baron had nothing, but ●oyntly with ●. N. who is yet alive, ●udgement si Dower, etc. (and he was not compelled to show whether he pleaded as ●ertenant, or as Pernor of the rent) the▪ Demandant replied, that I. N. had released all his right in the rent ●● her husband. But becauss▪ she shown not the Deed of ●●●ease, she pleaded by advisement of the C●urt seisie que Dower la puit: Quaere of the general ●ssue, against the special matter.  
11. H. 4. 88 A woman shall have Dower of rend 〈◊〉 chased by her husband in fee, though he die before d●● of payment: And if it be pleaded against her Ne unques f●●●● que Dower, etc. she shall not show the special matter, but say seisi que Dower la puit, and show the matter i●●●●dence.  
22. H. 6. 4●. per Newton. In action of Dower the ●●nant plead joint estate to the Baron, and I. N. in plein vy, whose estate he hath, the demandant shall not say ●●●●● que dower, etc. unless she show how, or traverse that I. N. took nothing by she Feoffment.  
●9. H. 6. fol. 9 Against Dower the Tenant pleade● that I. S. seized in Fee, enfeoffed him, and he leased to the Baron, to hold at will, which estate he continued all his life time, s●ns c●o, that he was seized of any such estate que Dower la puit, the judges orderad that for the long continuance of the possession, and dow deslais g●●●▪ all should be entered.  
10. H. 6. 17. It is not a good plea against Dower ●o say the Baron had nothing, but for term of his life: for this amounts to the general 〈◊〉 Ne unques seisi que Dower la puit: But to say the Baron had nothing, but 〈◊〉 meant with A. in fee, and that A. survived, etc. This by ●●● Fée simple confessed makes a good plea.  
14. H. 6. 5, & 6. In action of Dower the tenant said ●e was seized, till by the Baron disseised, upon whom he reentered, judgement, etc. the Demandant said, that before this tenant had any thing in the land, W. being seized in Fee, enfeoffed her husband iss●●t seisi, etc. and she pr●●●● to be endowed, per Marti●, the replication is not good, ●●● this might ●e before the Disseisin, and before coverture too, and if so, than the Baron Ne unques seisi que Dower la pu●●. That ye may yet perceive further how 〈◊〉 a point it is to take or relinquish this plea rightly, mar●● well the case, 30. H. 8. Dyer, fol. 41. In a Writ of Dower the issue was Ne unques seisi que Dower la puit: It was given in evidence to the Inquest on the Demandants ●ehal●e, that a feosment was made to the ●aron in fee, & the deed of feoffment was showed to the Court, it was answered that long time before the feoffment, the Earon was seized to him and his first wife in special tail, and how afterward he discontinued that, and takes back an estate in fee simple to himself by ●he 〈◊〉 aforesaid, of which estate he died seized so that the heir in special tail was remitted, and the second wife being now Demandant, not dowable.  
Montague would have demurred and dis●●ssed the ●ury, but the justices were clear in opinion that the ●ury ought to 〈◊〉 for the Demandant, because their charge was only upon the issue, viz. whether the Baron had ever ●ei●in of such ●state, that th● wife▪ might have dower. And they were not to ●●g●●d the Remitter, but only to look to the general issue given them in charge. But if the spe●i●ll matter had 〈◊〉 pleaded, the Demandant must n●●d● have ●éene ●arred; for if he which makes a feoffement, with condition to r●●nter for the condition broken, and then in a Writ of d●●er brought by th●fe●●●●●s wi●●, he will plead ne unques ●●i●●● qu● dower, it shall be found against him, ▪ Knightly▪ therefore would have the sp●●iall matter found by the jury, and a verdict at large, but the justices would not consent.  
Yet ●empore▪ Edw. 1. There was a case, that the Baron discontinued his wi●es 〈◊〉, and died, his wife recovered against the discontinue, and he died, the discontinues wife brought a Writ of Dower against the woman Recou●rer, and she pleaded the general issue ne unques ●eisi que dower la puit. All this matter was found ●y ●pe●iall ver●●●●, and ●udgement gi●●n upon the issue, 〈◊〉 foolishly ●●yn●d, that the Demandant should reco●er Dower, which she should never have done, had the 〈◊〉 ●éene good: S●● and mark well this case: and 21. Edw. ●. fol. 60. and the ●●se 28▪ A●s. pl. 4.   

SECT. XIV. Recovery against the husband.  
14. H. 4. 33. IN action of Dower the Tenant pleaded a recovery in Assize against the husband, judgement si action, etc. the Demandant said her husband was seized, etc. and married her, and infeofed the Tenant, and afterward disseised him, against whom the Tenant recovered in Assize, the Baron died, she prayed to be endowed. The Tenant said he was seized, till by the Baron disseised, against whom he recovered by Assize sans c●o, that the Baron was seized before the disseisin, que dower la puit, the Demandant said, seized before the disseisen, que dower la puit.  
Likewise 47. Edw. 3. 13. the Baron makes a feoffment, and ousteth the feofée, the feofée recovers in assize, the baron dieth now in a writ of Dower, if the feoffée plead recovery in assize, the widow cannot ●al●●●●● the recovery, but she may plead that long time before it, etc. her husband was seized que dower la puit, and the Defendant contra.  
12. H. 4. 20. 21. The Tenant said he brought a Formedone against the husband, which Writ hanging, he shown to the husband a d●ed of intailment, whereupon presently he rendered the land in p●is to the Tenant, which entered and▪ now averreth the entails; judgement si action, Thi●● said the Statute was si vir reddat adversario suo de plen● justiciarii adiudicent mulieri dotem, but he and the whole Court agreed, that rendering in pais doth not defeat me●●● estates of them which were neither parties nor privy to the rendering, and therefore they awarded the wo●●● should recover Dower. Hank said, fee simple might not be rendered without livery and seisin, and where there is Lord and Tenant, the Tenant may not surrender to his Lord: Of falsifying of recoveries I have spoken already.  
Note, If land be recovered in value against the husband, because of warranty made by his Ancestors, the widow shall have Dower of those lands notwithstanding: for if the Baron had aliened the land before voucher, it should not have been rendered in value: Consequently▪ therefore the woman's title is more ancient than the vouchers, which beginneth but the day of vouching. By F●●zh in his Abridgement Dower 129. And his ●at●. ●re. 150. d.   

SECT. XV. Ne unques accouple, etc.  
SOmetime the unlawfulness of marriage is pleaded in bar of Dower. As 39 Edw. 3. 15. the Tenant pleaded the Demandant was first married to A, and he living she married B. of who●e dowment she claimeth, A. being still alive, this was held no good pleading, and therefore he added & ●ss●●t nient accouple in loyal matrimony. The entry was only ne unques accouple, etc. and a Writ awarded to the Bishop to certify, but for all such pleas deduced at length by old Writers, as stand upon the invalidity of marriage, I will refer widows to that which is gone before of marriage and divorce. The pleas also of under 9 years of age of attainder, of non tenure, jointenure, or several tenure, I will not tarry on them. 39 Ed. 1. fol. 4. A woman brought Dower against tw● by several precipes, and one of them prayed ●yd of the other as parceners, so that it appeareth that several tena●cie is a good plea in action of Dower▪ Contra in Assize, Brook 99   

SECT. XVI. Plea that t●e Baron is ye● alive.  
THe Writ de dote unde nihil habet affords another exception against Dower, because it saith quondam viri sui, for though the fundamental cause of dower be matrimony quoad le title, yet as to the possession a woman cannot claim it till matrimony be dissolved, therefore by Fitzherbert, if the Baron take habit of religion, the wife shall not be endowed, till the husband be dead re vera, yet by Britton it is issuable, whether the Baron be entered into religion or no, and that issue shall be tried by the Ordinary, and judged according to his certificate. ●ut when the deforcer will bar Dower by ●l●a that the husband is yet alive, if the widow reply he is dead, the proof regularly belongs to the Plaintiff. But if the Defendant say the husband is in plein vy & ceo & est priest averrer, he must prove his a●er●ent, and sometime ●oth parties shall be heard to make their pr●●e, which if it ●e a●●●e strong on either ●●●e, the Demandant may have i●dg●ment o●●eisi●, finding surety, such as the Court, shall ●ward, to res●ort, if h●r husband hereafter ●ee brought into Court, the ●a●d with the issues and pro●●●s ther●●●, i● t●e interim reco●●●d. But if the matter be doubtful, and the woma●●a●●ot ●●●●e, such surety, the seizin shall r●●●●●e where i● is, and t●● plea in suspense to be renewed p●●summons as occasion shall serve, Britton fo. 25.   

SECT. XVII. judgement.  
IVdgement in a Writ of Dower is framed according to the substance of the title, and circumstance of the pleading. It is touched above when or how a woman shall recover damages by s●r●ise, that the husband died seized.  
20. H●●. ●.▪ The Statute o● Mo●●on cap. 1. ordaineth concerning widows, q●● post mo●tem v●●o●●● expe●luntur de dotibus suis & doors s●os vel qua●●●●enam habere non poss●n●●i●e placito. That whosoever shall deforce them of Dower ●r ●●ar●ntino in any tenem●nts, whereof their husbands died seized, if they be convicted the ini●●●o d●forci●me●to, they shall r●nder damages to the widows, so much as the Dower should have b●●ne worth to them from the time of the husband's death, till the day where the widows recover seizin of Dower p●r ●udicium Cur●e. And the De●orcers shall ●e● in ●ise●icordia Reg●s never aw●it the less.  
It is plain now that the Baron dying seized, if the wife be deforced s●e shall recover damages, which are sometime comprised in the judgement o●seisin, and sometime awarded 〈◊〉 judgement misgovernment or s●r●●●se ut s●p●●▪ But for all this Statute of M●●to● de inius●● deforciamento, a widow shall not in all cases, recover damages by this dying seized; for if the Tenant plead touts temps priest, etc. and it be confessed or found to have been so, there i● now no fault in him ●●● C●●y● & Hill▪ ●●. H●●▪ 4. fol. 40. 41●. forevery h●●re hath right to all the parts of hi● since stor● i●herita●●e, ●till the widow will ●● endowed.  
The case they say objected, viz. that in a Writ of Co●s●●●●● touts ●emps priest, will not excuse the Tenant of damages, is no▪ thing ●like: for the O●cu●iour there hath not just ●itl●, etc. Doctor and Student tells us fol. 82. & 8●. that though the husband dieth seized, if hi● widow ●oth not de●●●d Dower, s●● shall recover no damages, for it is a g●●● plea in a Writ of Dower ●●●● the Tenants appear the first day, to say touts temp● priest a yeeld●● Dower, if it be de●●●ded, and that plea ●●all excuse him of damages, but i● he had made refus●●●, he shall been chargeable as well for damages before the request as after. But in Sir Edward Coke 4. Rep. 30. b. in Shawes' Case, a woman recovered Dower by plaint in a Court Baron, and she recovered damages from the death of her husband because he died seized, and it doth not appear that there was any request and refusal. I dare not say that it is Idemius, whether the heir or his feoffée plead his plea; though I cannot find● any pres●●ent of damages given upon it being true, but often sur plea de tou●s temps pr●st, the judgement ended thus, ni●ilde materia qui● venit primo edis, vide ●●. Ed. 4. fol. 7. I do refer the Reader for his better instruction touching this matter, where he shall find variety of store, Sir Edward Coke Comment. upon Litleton fol. ●2. b. The second Chapter of Merton gives power to all widows to make wills, as well of Corn growing upon their dowry lands, as upon their inheritance, saluis s●ru●●s dominorum de ●eodis, quae de do●ib● & aliis tenementis suis debentur. Britton seemeth to be taken with a Chancery spirit, upon ●ight of this Statute cap. 100L. fol. ●●0. where he saith, that in every judgement of seis●● awarded of reasonable Dower, there ought to be a foreprise or exception de ble●●. c●●ssaun●s & femes ●auches, I will subjoine Bracton as an Adiutor, perhaps more orthodox, Dower, saith he, lib. 2▪ cap. 40▪ shall ●● assigned by the heir, if he ●e of full age, or by the Lord in the heir's name, if he be underage; And this within forty days after the husband's death, for otherwise occur●i● tempus & sequantur damna, nisi ration●bilis causa excuset. This assignation must be made of the land, as it was by the husband, tilled or untilled, with the fruits growing upon it, allowing nothing to the heir or Executor for manuring, husbanding, or culture of it, for of old time it was observed, that in what ●●s● or plight a woman had received her Dower, whether it ●●●● tilled or untilled, she must restore in like plight to the heir, etc. she might not make her Will of any corn gro●ing, or fruit not separated, from the francktenement. Sed nou● superueniente gratia sicut p●●et de provisionibus apud Merton: A woman may now ordain her Testament of corn or fruit growing on her dowry, or, severed growing, all is one. If the husband alien all his lands, and the Tenants need not yield dower to the widow as soon as she demandeth it, if there be just cause of calling to warranty, one or more, successively till the heir be vouched; And all that time the Tenants are not charged with damages or costs. But when the heir entereth into warranty, if he do not presently yield Dower, but stand out obstinately, he shall pay damages, as much as dower m●ght have been worth to the woman from the time of the husband's death, to the day wherein she hath judgement, and the heir shall be amercered. In like manner is it, if a widow without any assignation enter into her Dower that was certainly nominated to her ad ostium Ecclesiae, and which she findeth empty at her husband's death, if she be ejected, or put to suit and delays, she shall recover damages: So shall she if she be ejected the tenement assigned for quarentine during the forty days, or before dower assigned after the forty days. So likewise is it if she have no place at all assigned to dwell in, ubi recli●et caput suum, etc. Thus Bracton: and thus long we have been in the Writ de dote nihil unde habet, which though it be aptliest brought in the common place for the reason above declared, yet it may be sued in the County before the Sheriff per justicies, as saith Fitzherbert in his na. bre. 148. But than it seems it must been removed by recordari facias, if the Tenant plead ne unque accouple, etc. so the book of Entries 223, 224. for in the base Court that issue cannot be tried.   

SECT. XVIII. The Writ de recto de dote.  
THere is another Writ called the Writ of right of Dower, not because the former Writ hath any ●orciousnesse in it, or claimeth upon wrong title, but because this second Writ hath fewest ambages in pleading, and the form of it is upon pure right▪ briton saith, there are cases wherein a woman is driven to a Writ of right of dower pleadable in Court.  
One is where a woman hath lost seism of her dower, as if she were disseised, and after long peaceable seism of the desseisor she re-entered with force, if the desseisor recover against her by assize, she hath no remedy, but only by Writ de recto de do●e, counting of her own seism: Another is where a woman demands lands or tenements which were her husbands, as part of her dower, when she is seized of a surplus or greater part already: And the third is when she demands something as appertenant ●● h●r dower. Fitzherbe●● seems not to allow Bracton● relation of unde nihil habet in the other Writ, for he ●aith, where a woman that hath recovered part of her dower of one Tenant already, demands the re●nant against the same Tenant in the same Town, because the words unde nihil habet will not se●ue, this Writ de recto de do●● is used of necessity, and is directed to the heirs Guardian, if he be in ward, or to the heir himself, or to a deforcour: And some say, that a woman losing her dower by default in a praecipe quod reddat, she shall recover by this Writ de recto de dote, by the opinion of some. But it seems she may have a quod ei deforceat by equity, the Statute W. 2. cap. 4. Whereas before she had no ●●●edy but by this Writ, or by action of deceit, if she were not summoned. Fitzherbert holdeth also, if a woman lose her dower by assize or other action tried, she● may have an attainte, but not this Writ de recto, for the land was assigned her once to hold in dower, and by that title she had possession, so that that title est execute, and so she ought to sue an action of her own possession if she be deforced, and not demand dower again. quaere.  
The form is: Praecipimus tibi ut plenum rectum ●●neas B. quae fuit uxor: C. de tertia parte decem acr●rum cum pertinentiis in D. quam cla●at tenere de te in dote ꝑ liberum seruitium tertiae partis unius denarii per annum, etc. And this Writ may be of the moiety of land, according to the custom, etc. or of the profit● of an office. Fitzherbert sets down one for example; Rex Andreae salutem, we command you that you yield unto B. which was wife of ●. her full right and third part of the profits issuing of the Custody of Westm. Abbay goal, with a third part of three Acres a●rable, of one rood of meadow, of bread, meat, and bottles of ale weekly, etc. which she claimeth as belonging to the francktenement, which she holds of you in dower, etc. by free service, and bearing a third part of cost and charge towards the keeping the goal and gate of the Abbey aforesaid, etc. whereof you yourself deforce her: hereby appeareth plain that a woman deforced from any thing appendent, or appertenant to dower assigned her, may have remedy by Writ de recto de dote. The old na. bre.. notes that of a Bailiwicke, or any such office in fee, which a woman may execute herself, or make substistute or deputy of it, she shall have dower, but not of Stewardship or Marshalship of England.  
And of a common of beasts without number a woman is not dowable, 9 H. 7. 4. & Park. Sect. 341. And of an use before the Statute of 27. Hen. 8. of uses she was not dowable, as it is said in Vernons ca Sir Edward Coke 4. Rep. fol. 1. And of an annuity shall be no dower, but of predial tithes dower shallbe, as appears by the Countess of Oxford's Case, cited in Harpurs Case in Sir Edw. Coke 11. Rep. fo. 256.  
The paroll or plea is sometimes removed in this Action; As if the Writ be to the husband's heir, which heir being himself Tenant of the Land will not do● right: the Demandant may have out a pone▪ to remove the matter straightway from the heir's Court into the Common place, but a tolt to remove it first into the County, for the original is, nisi fece●●s vicecomes faciet, and from thence it may been removed by the Plaintiff to the Common place by a pone without any cause mentioned in the Writ. But the Tenant in a droit patent cannot remove the Plea out of the County without showing case in the pone; yet as well in a Writ de recto de dote as in a Writ of droit patent the tenant may remove the plea, showing cause, and that immediately out of the Lords Court, into the Common place by recordare: and so cut of the heirs Court, quaere.  
If a man se●l all his land and dye, so that the ●eire hath nothing by descent, now this Writ must be directed to the feo●ee, of whom the widow when she is endowed mus● hold, as of her Lord by ●ealty. But if before the Statute of quia Emptores terrarum, & ●. if the husband ●●● infeofed a stranger of part of his Lands to hold of the husband, etc. a Writ of right of Dower must have been ●o the heir, in whose Court the matter was to been pur●ue●, by reason of the remaining signory.  
So ●● it if at thi● day the Baron giu● part of his Manor to hold in tail: But if a man give away all his ●and to be holden of him in tail, and dye, now the Writ de recto de dot● must be against the donée directed to the Sheriff retournable in the Common place, for the heir having only a Signiory in gross can keep no Court. An● in the Writ shall be inserted quia B. capitalis dominus feodi remisit nobis curiam suam.  
If the Baron having leased all his land● for term of life d●●, etc. And though there be not in Chancery, or any where els●, any matter whereby to prove the Lords remission of the Court: yet if the Lord have not any demesnes whereupon to hold a Court, he can have none action against the Demandant for the ●alse supposal, or surmise: nor let nor hinder the proceedings in Common place.  
But if he had a Court to hold plea in, and did not remit his Court to the King, he may ha●● prohibition to the justices, commanding the● not to proceed any further. But saith Nat. Breu. quaere of that matter. And s●e Ploughed. fol. 74. ●. where the Lord hath a Court, and he will remit his Court, his Certificate must been to the King in his Chancery, and thereupon a Writ of right shall be returnable in the Court of Common P●ea●.  
In the Common Place, when the plea is removed thither, your process is Grand c●pe, and Petit cape: In the Lords, or heir's Court is used fir●● a precept in nature of s●mm●●●, and of a Grand cape, and Petit cape. And note that in this writ if ●●● 〈◊〉 appear, they never proceed to grand 〈◊〉, or tr●●ll by battle (from which the 〈◊〉 is ex●●p●ed) and so ●●●●●quently here is never per Br●cton any E●soine de mal● lecti. But the tenant may ●●●●h his 〈◊〉, if ●● have any. And after the woman hath ma●● h●● 〈◊〉 or dem●●● pursuing h●r writ, the tenant may in 〈…〉, say that ●●ee rendered she land to hi● of h●r own accord: Or if she said he disseised her of her Dower: he may plea●●●● Relege, saith Bracton, Et po●●ri●●●ritas per patriam d●clarari▪   

SECT. XIX. What things shall be assigned in Do●●●, etc.  
WHen judgement is given in curia regis against the tenant, either upon his default at the Grand cape returned, or upon confession, or issue tried, the chief substance of the entry is no more but con●ider●tum est ut re●up●●●● 〈◊〉 de 〈◊〉 p●rte, and then either presently, or after ward, ●● the 〈◊〉 of the demandant, there is awarded a writ, 〈◊〉 〈◊〉 〈◊〉 de tertia parte, to the Sheriff, who must make return, how he hath executed the King's commandment. But I find by Dyer, 11. Eliz. fol. 278. that an Alias habere fac▪ shall not be awarded after the Sheriff hath executed the Formedon; the case was that the Sheriff upon the Habere fac', etc. proffer seism by means of a third part, and the Demandant refuse, yet by Harpur and Dyer her entry was afterwards lawful, for the certainty appeared, and they that an Alias habere fac ' by no precedent shall be granted, and as images of this course must be the proceedings in all bas● Courts which hold of Dower.  
So that it is now more than sufficiently perceived, that the third part of every man's inheritance is assignable for Dower, by the husband's heir, or the heir's Guardian, or by the Feoffée or Feoffées of the husband, or heir, or by some other tenant, or tenants, or by the Chancellor, Escheator, or Viscount. But it ought to appear yet more fully, how these three parts shall be assigned, and wherein▪ See Dyer, 2. Eliz. 187. In Dower against eight, two confess the action, and the rest plead in ●arre, sir had judgement for a third part of two in eight divided, and afterward upon verdict against the sir, judgement was of sir part● in eight divided.  
parcel of any thing, whereof a woman may rightly claim Dower, is assignable, etc. But other lands than those whereof she is by title dowable, or not assignable.  
Acceptance of a greater or less part than the third, in name of Dower of all the franktenement, which the Baron had, bindeth a woman. But assignment of all the land which the Baron had is not good. But I refer you to Sir Edw. Coke Commentary upon Little●on, fol. 346. how Assignment is to be made, and what Assignment is good, where it is said eight things are observable to a perfect Assignment of Dower.  
The heir is not bound to assign any widow Dower in his capital Message, or in any part thereof. But Assignment of such house in allowance of all other lands, or of other lands whereof she is dowable, for the house is good when it is accepted, And Assignment of a chamber in the husband's dwelling house, when other lands are not, whereof to make assignation is good, being accepted. But a woman is not bound to accept this kind of Dower, except she list: Arent may be assigned her out of the house, and this shall be good sans fait. Like wise it is of Common, of Estovers, of Pasture assigned in allowance of lands, or other things whereof a woman is dowable. And lands in Wales may be assigned for a whole Dower: and thereby ● woman may be excluded from her Dower in England. If upon judgement of Dower, and before execution, the tenant assign a rent per paroll, issuing out of the land, whereof the judgement was given, and the woman accepts it in stead of Dower, th●● i● a good bar in a Scire facias, and it is distrainable of common right▪ but if the Assignment had been by p●roll of other lan●s, than of such as wherein the woman might have claimed Dower, it would not have barred execution, because it was not pursuant to the first judgement, Dyer, 1. Mar. fol. 91. It is said in Sir Edw. Cok●● 4. Rep. fol. 1. in V●rnons case, that at the Common Law no collateral satisfaction or recompense made to a woman in satisfaction of her Dower, was any bar of her Dower, for no title of Fran●kte●●ment or inheritance may be barred by any collateral satisfaction.  
When the Writ of 〈◊〉 comes to the Sheriff, he shal● deli●●r 〈◊〉 ●●●●●● and bounds, but this rule cannot stretch to things not boundable. Therefore if Dower be demanded or recovered of three shillings rend, assignation of one shilling is sufficient: And when dower of a 〈◊〉 or will is demanded, a third part of the pro●●t, &c, shall ●● assigned, and it ●●● good Endowment without certainty. Et ●l 〈◊〉 〈◊〉 free▪ & sirrah contrib●●●●i●. And so dower of a villein●, either the third▪ days work, or every third wéek●▪ or month. And so of the profit of th● thir● part of Stallage, of the third▪ part of the profits of a Fair, and so of the third pa●t of the pro●●t of a Park, and of a Dove house, and so of the third part of a piscary, viz. Pertertium pisc●m, veliactum ●er●iu●●e●is, etc.   

SECT. XX. New Endowment.  
IF that which a wom●● holdeth i● dower 〈◊〉 lawfully against her will, and without her fault 〈◊〉 and evicted, etc. she shall be new endowed of the other lands, whereof the ●●ate which her husband had remains still undefeated, for example: The Baron seized of thr●● Acres dies, the wi●dow is endowed of one Acre, which he gained by 〈◊〉, if she be ●●sted she shall be ●●dowed of the other two Acres. Tenant in tail of thr●● Acre●, discontinueth in fee, the Discontinuée marrieth, and dieth, his wife recovereth dower against his heir; the issue in tail brings a Formedon against the widow, sh●● voucheth the heir, he enters into Warranty, loseth, and the demandant hath execution, though the ●state which th● heir hath in the other two Acres remaining be defeasible, yet the woman shall be newly endowed of them, till they be defeated: yea, though the Discontinu●● his heir have aliened, the widow shall been newly endowed notwithstanding. Again, a man seized of two Acres in fee, within one County, takes a wife, enfeoffeth a stranger of one Acre with Warranty, and dying having issue a sonn● which entereth into th● other Acre, the wife brings a writ of Dower against the Feoff●●, which toucheth the heir, and the heir lo●●●h ●● default, so that the Demandant hath judgement conditional, and execution against him, to recover of the land which he hath by descent within the same County where the Writ was brought. If now the Vouch●●●● restored by a Writ of deceit to the lan● which the woman recovered, she shall have Sci●● facias against the Feoff●● that was tenant in her first Writ, to be newly endowed of the other Acre. And if he have thereof enfeoffed a stranger, yet this stranger shall be bound by the first judgement in dower that was conditional.  
If a woman that is dowable take a second husband, and be endowed by his assent per meats & bounds, if now the Baron discontinue in fee, and die, the wife may have a C●● in vit●: and Perkins leaves it not clean out of doubt, whether she may not be new endowed of such other possessi●ns, as were her husbands during coverture, because the endowment was not by Writ.  
This new endowment is when the eviction is loyal, & m●●g●●●● t●st del feme; for when it i● otherwise, she must recover the land again by such means as she may, from him which recovered it.  
50. Ed. 3. fol. 7. loan. late wife of L. W. brought her Writ of dower against T. H. demanding the third part of a Manor. It was pleaded, Q●●●l ne po●●n●●s demander▪ for ●●no 12. huius ●●gis, a sine was levied of the said Manor betwixt I. and E. and the tenant sued Sc●●● facias out of the fine against the now demandant, which came and pleaded to parcel that she held it in Dower, of endowment from her husband, b● assignment of W. C. & ●●●●●●d● d● l●●▪ etc. for another part, she claimed for term of ●er life, by lease from W. C▪ of whom likewise she prayed aid, and had it granted. C▪ came in by process, and joining in aid, pleaded a Feoffment made to himself in fee, by L. the baron, son and heir to I. W. whereunto the tenant pleaded R●●ns pass● per l● fait, and the process continued against the jury till a day certain, at which day C. made default, and this demandant maintained the iss●● which was found against the now demandant, viz. that Rie●s passa per le fait, and execution awarded for the plaintiff in the Scire fac. Iudgeme●t si ●●count●r ce●● recoveree a quel el fuit party, el po●t nens demander, and the demandant demurred.  
Her pretence was, that by the reco●erie she was remitted to her action paramount, because the recovery affirms her husband's possession. But the better opinion was, that wh●n her Dower once lawfully assigned was recovered against her, she had here no remedy, but by exrour or attaint, for a writ of right she might not have: But if in the Scir● fancies she had alleged to that part which she claimed in Dower, that she h●ld it in Dower of the Assignment of W. C. Priest da●tender● a q●e le co●rt vo●●●● g●rder, she had saved her estate by protestation, and the reversion might h●ue héene judged to him which had right, whereas pleading as she did, some thought sh●● had forfeited h●● Dower, but that was denied by Tresili●n. Belk●ap, who said, that when one is ●● per tort, as i● the Disse●sée or his heirs ●nter upon him which is in by descent, or if a widow enter upon a discontin●●● of her husband, and then upon issue taken sur seisin, or disseisin, it is found for the plaintiff, the tenant is remitted to his Action paramo●●, Brief ●▪ ●●tri● in the one case, and in the other a Cu● in v●●a. But if a recovery been against a Tenant that hath rightful possession, the rem●die must be by errors, attaint, or writ of right. And therefore in the last cases, if the tenants had pleaded● release, or other matter, which might extinct the right: if it had passed against them▪ their remedy must have been by writ of right, p●● Clop●on, qu●●●e.  
Which. said, if a recovery be had against the Baron upon a delatory plea, as nontenure mis●osm●● of the town, or such like, a woman may falsify such a recovery in a writ of Dower: It seems to be otherwise, saith Brook, if a recovery be had in that mann●r aga●●●● the woman herself who is endowed.   

SECT. XXI. Admeasurement of Dower.  
ADmeasurement is in a kind a recovery against a woman, not of her whole Dower, but of part of it; for if the heir whilst he is under age, or the Guardian whilst the heir is in ward, do endow a widow of more land than ●he aught to hold in Dower, the heir when he cometh to full age, may have a writ D●●●m●nsur●tione do●is against her, and the Surplus or excess shall be restored to the heir: but there is in this case only an amputation without any novel assignment▪ If the heir being under age assign Dower too largely, before his Lord and Guardian enter into the land, or seize his Ward, the Guardian may have a writ of Admeasurement by West 2. cap. 7. And if the Guardian pursue the writ faintly against the w●man endowed, the heir may have a writ of Admeasurement b● the same Statute, Custodi de cae●●●o conced●t●● breve de admensuratione dotis, nec per sect●● custodis si fictae & per collusionem sequ●tur v●●sus mul●●●em tenentem in dot●m, pr●●ludat●● hae●●● cum ad ae●●●●m p●●u●neri●●d 〈◊〉 admensu●●●dom, etc.  
If the plea be in the Coontie, the Plaintiff may remove it without cause, and the Defendant may remove it with ●●●●e ●hewed in the writ▪ as in a Replevin. And when the writ is r●●●●ed by Po●● into the Common place, the pro●●●●e i● summons, attachment and distress, etc. according to the Statute. Then the Sheriff cannot make admeasurement, but he shall extend the land particularly, and returning the Extent ●●●o the Common place, the justices shall admeasure Dower. Note if the Guardian assign Dower excessive, and then grant over his estate, his assign shall never have a writ of admeasurement. Likewise if the heir under age assign Dower, which his Guardian may admeasure when he hath entered, etc. but the Action is not grantable, for the Guardian assigned or grantee shall not admeasure: But an heir may have the admeasuring of Dower assigned in his Ancestors tune. And if a woman be endowed in Chancery per le Roy, etc. the heir may have a Writ of Admeasurement, if a woman after she is ind●wed make any improvement of the ●and, so that it becomes of fare greater value than it was of at the time of the Assignment, there lieth no admeasuring upon this improvement. And Bracton saith, No● erit estim●nda meliora●●o mu●●●ris quam fecit in door suapost assignationem, tempus e●im assignationis dotis erit spectandum. But if this improvement be by casualty i● some mine of c●ale or lead, which had been formerly found and occupied in the husband's time, the matter is somewhat doubtful. But see Sir Edward Coke 5. Rep. fol. 12. a. in Saunders cap. q̄ sc. That if the mine appeared at the time of the ad assignment admeasurement lieth.  
As for new mines, a widow may not make or dig any that is waste, thus fare Fitzherbert. Briton cap. 113. and Bracton lib. 4. cap. 17. show with what circumstance admeasurement shallbe made by the viscount surserement de probes homes praesentes & per bo●e & legale extent. They say, that the amputation is not only of excess and superfluity by this Writ of admeasurement, but also of that which ●ught not to be assigned, admensuratio debet esse, ●am de indebito, quam de superfl●o.  
And therefore if a Castle or head of a Barony were assigned in Dower by the Guardian without any necessity: the heir may have this Writ: for enter he cannot, say they. They show also what plea a woman may have against admeasurement, viz. that the Plaintiff himself made the assignation, or confirmed or allowed it being of ●ull age, etc.   

SECT. XXII. The charge of Dower.  
ADmitting the Dower assigned to be both for quality and quantity just, there is yet to be declared with what immunity a woman shall hold her Dower. First Bracton saith, Si peculia ma●iti sufficiant ad solutionem tenentur, sed uxori dos sua deonerabitur. Et heres defendere dotem & warrantizare eam mulieri debet & pro ea sequi comitatus hundreda & curia dominorum, ut viduatae domui suae intendat & nutritioni suorum (si qui fuerint) puerorum. If the husband's goods be not sufficient for payment of his debts, the heir must discharge Dower of the burden, etc. for he is the widows warrant of her Dower, and aught to▪ follow for her, County Court, Court léet, and hundred, etc. That she may see to her house, and nurture of her children.  
Fitzherbert in his Writ of Admeasurement, first affirms, that a woman shall not be distreined in her Dower, in her Inheritance, or in the joint purchased lands to her or her husband, for her husband's debts. The Writ which he sets down for remedy, saith almost as much, R●x Vicicounti, etc. cum secundum legem & consuetudinem regni angliae, mulieres in terris & tenementis quae ten●nt in dotem de dono virorum, vel quae sunt de ipsarum haereditate, vel quae sibi quesiverint, pro debitis virorum distringi non debent, etc.  
And in some Writs is this Clause, Dum tamen haeredes vel Executores testamenti ipsius, etc. ad debi●a illa reddenda nobis sufficiant. But it seems reasonable, saith Fitzherbert, that a woman shall not he distreined in her Inheritance for the King's debts, neither in her Dower or joint purchased lands which her husband, if her title commenced before her husband became debtor, and there is a Writ in the register importing no less, yea he affoord● it to be good reason that lands purchased by Baron and Feme, after the Baron is entered in debt to the King should be discharged in the widow's hands. But let widows agree with the King as well as they can, the heir is liable to the debts of his Ancestor before the widow: The heir likewise dischargeth her of suit and service, and is so fare forth her warrant, that by Britton, if she be impleaded and vouch any other to warranty, she forfeiteth her Dower pur sa malice, and though her husband's feofee be not called her warrant: yet if she be endowed by him she must hold of him. And regularly Tenant in Dower must be Attendant to her husband's heir, or to the heirs Guardian, or to the Gardenis Executor, or to him in the reversion, according to the rate of rent whereby they hold over: if Tenent by fealty and xij. d. rend been disseised and dye, his wife being endowed by the disseisor, shall be an attendant to the same dissessor of iiij. d. annual. And now if the heir will bring a Writ of entry in to quibus against the woman thus endowed, she may show her special matter, and that she is ready to attend to whom the Court will award: which shall award, that she retain her Dower still, and be attendant to the heir, quaere, saith Parkins if the heir have any other remedy, for he cannot enter upon the Tenant in Dower. D.st. 82. a. saith, That a Feme tenant in Dower leaveth the reversion in him against whom she demands her Dower, although he be a disseisor, and doth not reduce the reversion by her recovery to him which hath right, as other Tenants for life do. And as it is said in Sir Edward Coke 8. Rep. 35. in Pains ca if she recover against Tenant for life, she leaveth the reversion in him. But by nat. br. fol. 265. a. if the King assign Dower in Chancery as Guardian, the reversion reposeth in the heir, for which he shall sue livery. If after judgement the heir grant his reversion, and the woman atturne, she shall be Attendant to the grantée. If Lord Mean & Tenant be, the Tenant holding by iij. d. rent, and the Mean by 20. d. If the Tenant marry, and the Mean release to him all his right in the tenancy, the Tenant dieth, the wife must be endowed, according to her husband's best possessions, and therefore shall be Attendant to the heir by a penny, and not the third part of twenty pence. If he which holdeth by fealty and xij. d. having a wife, sell the tenancy to his Lord, and the estate is executed, the Tenant's wife shall be endowed sans attendancy, for the signory extinct is not reviuable: If Lord Measne and Tenant be, the Tenant holdeth by xij. d. which dieth, & his wife is endowed, she shall be attendant to the heir by iiij. d. now if the Lord release all his right in the tenancy to the heir, the meanalty is extinct, and the attendance gone, for it was but in respect of the charge which the heir was at to his next Lord.  
But where there is Lord and Tenant by fealty and xij. d. rent, if the Tenant make a gift in tail of the land to hold of him and his heirs by xx. s. rend etc. if the donée dye without issue, his wife endowed, shall be attendant to the donor by v. s. and viij. d. although the Lord release to the donor, for his attendance is not in respect of the charge over, but by a special reservation.  
If there be Seignor Mean and Tenant by fealty and iij. s. rent, the Means wife after he be foreiudged in a Writ of mean, and dead, shall be endowed without attendance. If Tenant by fealty and xij. d. make a gift in tail of the land, re●●●●ing ●ij. d. rent, etc. and the do●ce having a wife and issue by her, ●iscontinueth in fee, and dieth, now though the wife recover Dower, and have execution of it against the discontinues, yet she shall not be attendant to him, for h●s is not chargeable as the Baron was, because the Dowers ●uowry resteth of ●ere●●●●● upon the issue, to whom for all that the widow shall not be attend●●t, till he have recontinued the 〈◊〉 resail, quaere tamen, saith Perkins. If the Tenant whilst he It●●● held of his Lord by fealty, and a 〈◊〉 of forty shillings price, the Tenant's widow when she is endowed shall be attendant by xii●. ●. iiij. ●c. 〈◊〉 she tenure were by fealty, and a nag without express value, she shall been Attendant by a nag every▪ third year. Perkins fo. 84. ●●.   

SECT. XXIII. Of the cui in vita.  
I Have been long in Dower, and I fear me some women had rather never be endowed that is, they had rather die with their husbands, or soon after them, than been bound to learn this Catechism, yet I must come to it once again.  
But first let ussée how lands whereunto a woman may have right by ancient endowment, or by descent, or gift in franckmarriage, or by▪ some other acquisition, before or during Coverture in fee, fee tail, for life, or for years, may be reduced, if the husband have aliened them, for it the possession continued always in the husband till his death, then by his death the widow is made sole Tenant of them, so little needing either assignation, or other circumstance, that without new entry, claim or challenge, she may have action of her own possession against any other that shall enter.  
If the husband aliened entirely any lease for years of his wives, it is gone irrevocable, and if he make no sale, and the wife dies, he shall have the leaf, except she be jointly possessed with another, and the serving jointenant shall have. Commentar. upon Fitzherbert. 185. If he aliened part of the estate, as for ten years next ensuing, where the term was for twenty, the widow may enter when ten years expired. But see in that Case, that if the husband rested a rent, and dies, the Executors of the husband shall have the rent, for it was not incident to the reversion, yet the wife shall have the resiove of the term, Sir Edw. Coke Commentar. upon Fitzherbert fol. 57 b. if he aliened for the ten last years she may continue possession, till those ten years be commenced. If the husband device away by his last Testament, a term for years, which he hath by right of his wife, I suppose the devise is ●●id as well as if it were made of some higher estate, as it appears by Perkins chap. Devices▪ and Plowd. 419 in Brabant 〈…〉 g●● case. And the Law is all one in all respects, where the Baron and Feme are possessed of lease for years by entreaties that if the estate be made to them during their coverture, or by moyties that is to them jointly before marriage) or where the Baron is possessed of a lease iure uxoris. See Dame Ha●●▪ case, Plowd. 260. And if the Baron possessed of a lease for years in the right of his wife, charge the land with a rent, and die, the rent is gone, Plowd. 4●8 in Bracebridges case, for she is remitted. And if Feign Guardian in Socrage be, and her Baron alienateth it and die, the wife may enter. And see Dyer, 8. Eliz. 25▪ the same is of Copy holds per 〈…〉 der, to the use of a Feme for years, & the wife die, the estate rests in the husband without a custom be to the contrary. If an husband be possessed of a term for years in the right of his wife, and judgement is had against him, and the term is extended, and the husband dieth, it shall be good against the wife, as appears by Sir Edw. Coke 8 Rep. 96. in Ma●●ing case. And see the 9 case of 50 E. 3. lib. Ass. note Sir Edw. Coke Rep. in ●ulwoods case, and Plowd. 26●▪ in Damè Hales cas●, where a lease made to Baron and Feme is extended for the debt of the King after the wife's drath.  
If a man possessed of a te me, deviseth it to one for his life, the remainder to a woman for her life, who takes an husband, the husband may release that to the particular tenant, although it be but a possibility, Sir Edw. Coke 10. Rep. 47. Lampe●●s case. And if a woman hath a lease for years as Executrix, and takes an husband, he may sell it per ●o● curi 〈…〉 pr 〈…〉 r Fitzherbert, Dyer ●8. H. 8. 7. A woman hath▪ a term 〈…〉 trir, the husband s 〈…〉 wits to 〈…〉 v●●n which a moiety is awarded to the pretendor of the title, the wife is bound thereby, but because the defendant in detinue brought by the wife for the Indenture of lease, plead non d●tinet, and not the special matter, judgement was against him, Dyer, 2. E 〈…〉. 183. & 21. H. 7. 6. agrees.  
If the husband discontinue the Frank tenement of his wife, the apt instrument whereby to recover it, when she is a widow is a Cum 〈…〉 vita: Which, though it be not so necessary and needful, perhaps, since the Statute of 32. which disableth husbands to discontinue as it was before, yet I. perceive not by what reason the use of it is forbidden, even in those cases where the entry is congeable, for the virtue of the Writ is not decayed by lawfulness of the entry, neither doth free liberty to take possession, prohibit the resort to justice and action at Law, when perhaps a woman cannot, or dares not enter.  
By Common Law therefore if the Baron alien in fee, the heritage of his wife or her Francktenement, by Feoffment or by Demise, for term of life, or in tail, she may have remedy after his decease by this Writ. Of which the general form is, Praecipe A. quod ●●d ●●● B●quae fuit uxor C●●●um messuagium 〈…〉, quod clamat, esse ius, & hereditat▪ suam. Et in▪ quod A. no● habet ingressum, nisi per C. quondam virum, &c▪ qui illud ●● de 〈…〉 isit, & cui in vita contradicere non pot 〈…〉. Th' 〈…〉 may be in the per ●ui and post, and some variety. it hath according to title of the Demandant, as Qu●●● clamat 〈…〉 ius haereditatem, or Vt ius & maritagium, or Vt ius ex●on● I. qui ipsa● B. & C. virum suum feofavit, & in quo, etc. or Quam clamat tenere sibi, & haeredibusde corpore suo, & de 〈◊〉 C. quondam▪ viri sui ex●untibus ●● d 〈…〉 ne I. or Quam clamat ess● dotem suam ex dono E. pri 〈…〉 vel secundi, etc.  
If Baron and Feme lose the wife's land● by de 〈…〉, she may have this Writ when she is a widow. But if the wife's lands be recovered in a Cessavit, per●de 〈…〉 ●● Baron▪ and Feme, upon a C 〈…〉 during esp 〈…〉 shall never have a Cu●●● vita, 4. Ed. 2.  
If Baron and Feme, and a third person, being joint-tenants in Fee, the Baron alien the intiertie, and die, his widow shall have a Cui in vita of a inoytie, during the life of the third person▪ for it seemed the alienation was a severance of jointure, saith Fitzherbert. But he sends us to 36. Ed. 3. in his Abridgement, titulo Cui in vita. By which book the wife in this case cannot have a Cui in vita for any part▪ so long as the third person surviveth, because they two may join in a Writ of right, and if he die, she may have a Cui in vita of all: Vide Librum.  
Of lands which a man and woman purchase jointly before coverture, the Cui in vita. shall be but of a inoytie: but of lands purchased jointly during co●e●●ure, the Cui in vita is of the in 〈…〉 e, and being brought of a inoytie, the Writ is not good, 39 H. 6. 45. for in the one case they are seized by inoyties, in the other by intireties.  
A woman by excepting lands, which she and her late husband took in exchange, or by excepting rend reserved out of it, shall be b●●●ed in a Cui in vita, or any other action, Fitzherbert, and ●6. Ed. 4. 8. Idem ius, if she accept parcel ●● her own land in Dower: but 17. Assisarum pl. 3. Brook 24. Cui in vita. If the assignment of this Dower be sans fait, it is no bar or conclusiou, but a Remitter; otherwise if it be by Deed or Record. If a man give lands to a woman to marry with him, and after espousals he alieneth the same land and dieth, she may have a Cui in vita. And note, that the gift or demise alleged in a Cui in vita is traversable. Thus much Fitzherbert.  
48. Ed. 3. 8. In a Cui in vita, claiming to hold sibi & 〈…〉 de corpore, without showing of whose donation▪ the 〈◊〉 pleaded to the Writ, and it was abated. But in a Quod ●● de 〈…〉, the Demandant needs not show by who●e gift she claimeth.  
49. Ed. 3. fol. ●9▪ The Writ was, Qua 〈…〉 sib 〈…〉 W. N., The tenant said, she never had any ●●ing of the gift of W. N. per Belknap, the answer was not good, for were the gift from one or other, if the husband aliened, she might have the action, and the Writ may be Qu●m elama● ut ius & haere●●a●em: though she purchased the lands, & adior●at●r. The latter point is affirmed, 7. H. 4. fol 5 & per Littleton accorded: but for the first, vide 50. Ed. ●. fol. 6. in a Cui in vi●a quam cl●mat ●ener●●x dimissione per termino vi●ae ●. N. it was admitted upon argument: a good answer per ● u●iam, for where one maketh title it ●ught to be true.  
And there find sur release made to Baron and F●me, and to the herres of the baron by I. N. was holden no demise, for it must be supposed the baron and feme were in possession tempore finis: And Persy said it had been adjudged, if a woman claimed in her Writ ad termi●um vitae, if it were found she had estate tail, the Writ should abate.  
So likewise if a woman claim by lease for term of life per A. and it was sound that A. made no lease: she had now no estate, and consequently hath none action. Likewise (said Kirton) if in Assize of novel disseism, the plaintiff make his title by feoffment of A. and is found that A. enfeoffed him not, but B. did▪ he shall be barred in the Assize, for where a man maketh his title upon a point which is bo●nd against him, it cannot be inten●●● that he hath a better title, and there he shall not have advantage of any other.  
39 H. 6. fol. 38. In a Cui in vita quod clamat esse ius su●●● ex d●no I. which enfeoffed t●● Demandant and her fate husband, with declaration, that they were seized as of Franktenement, and l●e les explees, as tenants for life, etc. Pri●o● said, That in cases special this▪ Writ aught to make mention of whose gift, lease, or demise, the Demandant claimeth, as, Ad ●erminum vitae ex dono I. S. or, Sibi & haeredibus ex dono I. S. But in demand of Fee ●●●nple it is enough to say, Q●●m ●l●m●t ut ●us & hae●●ditatem, without showing by whose gift or feoffment.  
7. H. 7. fol. 2. If this Writ ●e agains●●aron and feme for lands holden in the wife's right, it must be in quod uxor ingressa est per I. N. & non quod vir & v●or ingressi sunt per I. N.   

S●CT. XXIV. west 2. Case 3.  
2. E●. 4. fo●. 13. IF a man be seisod in right of his wife, and recovery is had against them by default, the woman after his death, may have a Cui in vita, but not a Quod ei deforceat, per Moyle justice: It seems that at Common Law, this writ of Cui in vita was only granted upon actual discontinuance by the baron: for West 2. cas●●● i●, Q●ando vir amiserit per defalcum tenementum quod ●uit in uxoris suae, duru●● fuit quod uxor post mortem viri non habu●rit, aliud recup●rare, quam per breve de recto propter quod D●minus Rex ●●atuit, ut mulier post mor●●in ●iri ha●eat recuperate p●n breed ingressu cui ●●●a in vita▪ etc. But in this case, if the ten●●● can prove that he had right on his side when he recovered: Mu●er ●i●il capit per ●reue●. N●t● also by the way, that this heat w●●s. Si vir se absentaveri●, & ●●luerit ●●● uxoris 〈◊〉 defend●re v●d si in ulta uxoris redd●●● 〈◊〉▪ ●● v●●● an●● 〈◊〉 〈◊〉 para●a 〈◊〉 〈◊〉 〈◊〉 de●●●dete▪ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to further for recoveries If judgement of ●or eiudger be given against Baron and F●uie, this is not void as soon as the Ba●on is dead, but v●ydable by error, for the woman cannot have a Cui in vita, 〈◊〉 fol. 2●●  
A 〈◊〉 ●y 〈◊〉 ●● 〈◊〉 alienation ● and therefore upon su●● a recovery, as soon ●● the husband is dead, the woman may have a C●●●●●●● by the Common▪ Law, 4▪ Ed. 2. ●rook●▪ 〈◊〉 vit●▪ 18.  
If a r●co●eri● be ●●● by 〈◊〉 W●●● of wa●●e, th● w●●e cannot ●●u●●● 〈◊〉 〈◊〉 either because the recovery is not merely by default▪ or else because the 〈◊〉 of waste hath no demand of land, quaere if she shall have a Quod e● de●o●ceat, 9 Ed. 4. 16. If Baron and Feme be impleaded, by one which hath good title, and the Baron confess the action, the woman hath no remedy. Yet the Statute is that upon rendering by the Baron, the wife may be received, ●●. But if Baron and Feme be received upon default of tenant for life, where the reversion is in the wife, the Baron cannot confess the action, for he must be 〈◊〉▪ Ad ius 〈◊〉 def●●●endum, 7. Ed. 4. 17.   

SECT. XXV. The Sur ●ui in vita.  
IF she which hath cause to bring a Cui in vita, of Fee simple lands, die before she hath sued, etc. her heir shall have ● Sur ●●● in vita. But if the wife's lands, which the husband aliened, were in state of Fee tail, and the wife ne●●● 〈◊〉 her heir must sue a 〈◊〉 in dis●onder, and not a 〈◊〉 ●●●●●●, for though both these 〈◊〉 he the children of the ancient Common Law, and were before West 2. Yea, and this latter Writ was maintainable for lands given to the mother in frank marriage, or to the heirs of her body (which at the first was Fé●●●●pte) yet when 〈◊〉 made 〈◊〉 ● tail, it did also expressly set down ● Writ, whereby the heir should recover such estates. The Sur c●●●n vita, for it is no ●ore but Praecipe quod 〈◊〉 etc. quod 〈◊〉 esse i●● & hae●● ditatem su●●, in quod non habuit ingressum nisi per E● and so in the Cui, o● in the 〈◊〉 And the A●●t and Née●● 〈◊〉 〈◊〉 in it upon alienation made by the husband of their common Ancestor, or upon recovery had against ●●● and her. If a second husband alienhis wife's Fee si●ple land●▪ and she dieth, the issue by her first husband 〈◊〉 ●u●● Sur cui in 〈◊〉 〈◊〉 these ●●nd husband still living, if he were never entitled to be T●nant by the Curt●sie. But if he were entitled by the Courtesy, the A●tion is stayed, so leng as he liveth: And this Writ lieth of a V● Mi. 21. Edw. 3.  
44. Edw. 3. 4 & 5. A man ●eised in right of his wife discontinued, and after diverse alienations, he repurchased the lands to himself, his wife died, the heir brought a ●ur cui in vita against him: praecipe W. ●. quod reddar, etc. cui contradicere non potuit: exception against the writ, because it was not by another na●e, but it was disallowed, and the writ awarded good. If the Baron alien his wives see simple with warranty▪ and lea●ing asse●●● to descend in fee, he and his wife dye, and the hair alieneth the ascends and dieth, his heir shall be barred in a sur cui in vi●a▪ But if an heir intails▪ alien the ascends and die, his issue shall not be barred.   

SECT. XXIV. The 〈◊〉 d●f●rciat.  
THe quod ej deforciat, though it be not merely a woman's Writ, yet perhaps it comes not more aptly into consideration any where than in this place, after the cui in vita.  
If Tenant in ●aile, or Te●●●● in Dower, or T●nant per Courcesie▪ or Tenant for t●●me of life, ●●●e their la●● by default in any 〈◊〉▪ quod redda● brought against them, they have no remedy, if they were summoned according to Law, but by this Writ which is given in express for me by West 〈◊〉 〈◊〉 And 〈◊〉 the 〈◊〉 upon 〈◊〉 〈◊〉 the Writ lieth against the 〈◊〉 and his heirs, in which case 〈◊〉 particular Tenant was without remedy at the Common law for a writ of right he could not have. The Statute having ●irst appointed 〈◊〉 woman shall recover Dower, where the husband 〈◊〉 his 〈◊〉 by de●ault. viz. by writ of Dower (in which the T●nant must not plead the judgement alone, but he m●st also pr●●e her right) showeth also how actions run together. When a woman already endowed, or Tenant by the courtesy, or in frank marriage, or by other in tail▪ or for life, demand the estate which they the●●●●ues lost by default, in which cases when it is come to that, that the Tenant m●st pro●e h●s right, the Demandants, which cannot answer without them in the reversion, may vouch them ●●●i● flent ●ene●tes in priori br●●●. And so the Tenant ●●it loco actoris, and if the Action were ● Writ of right, they may proceed to the grand a●●ise or battle; And further, C●m mulier ius non habens impeteous bre●e de dote super custodem, & custos per fa●orem mulieris dotem reddiderit vel defaltam fecerit, vel placitum i 〈…〉 ct pe● coll●sionem defenderit, ut dos fuerit mulieri adiudicata: provisum est quod cum ad aetatem ve●e●t haeres habeat actionem petendi seis●●am ●ntecessoris sui, etc. it a tamen ut salua sit mulie●i exceptio quod ius h●be●t in dote quod si ostenderit recedat qui●●a & sit haeres in misericordia & graviter amerci●tur secundum discretionem Iustie●▪ Then to the quod ●i deforciat. Si haeres vel alius, de door sua implacitaverit muli●r●m, & si dotem suam per defaultam amisserit, fi●● ei tale breve: praecipe A. quod iuste redda● B. qui fuit uxor C. unum messuagium cum pertinent●s in N. quod clamat ●ss● rationabilem dotem, vel de rationabil● dote sua & quod idem A. injust ei defo●cia●▪ So is fitzherbert▪ but by the old ●●. b●●. it must not be called an i●●u●● for●ing. Ps. car le poll. ini●ste non habetur in Stat●to, which is true, ad istud breve habeat tenens exceptionem ad osten de● du● quod mulie● i●● non habeat in do●● quod si ●●●nd at, reced a● quietus▪ etc. Last of all because until this time the Law 〈◊〉 no remedy upon lo●●e by default, ●●●▪ only a writ of right, which served not for them, that ●●●ld not speak de mero iure, viz. Tenants for life, in 〈◊〉▪ marriage, or in tail; ●he 〈◊〉 to a●oid that proiudi●e, g●●es them likewise their 〈◊〉 writ● of quo●●● defo●●●●●, 〈◊〉 according to their title, either, quam clamat ad termium vitae, vel ut ius & maritagium, vel sibi & haeredibus de corpore. Tenant by the courtesy, likewise though it be not expressed by the Statute, may have a quod e● deforciat, quam clamat tenere per l●gem Angliae, which is by equity, saith Fitzherbert, If any Tenant of those particular estates, lost by default, by reason of non summons, he may have a quod ei deforceat, or a writ of deceit, at his pleasure. If a man lose by default in a writ of waste sued against him: he shall not have a quod ei deforciat, because the waste must be found by verdict: novel nam▪ bre..  
Yet 2. Hen. 4. fol. 2. Hanc. said, if a writ, to inquire of waste, were awarded, the Defendant which lost the land might have a quod e● deforciat, videtur lex esse contra, saith Brook, for it was there agreed by all the Court, that attaint lieth in an Action of waste: and the party may challenge the jury: yea, the book at large is that the Viscount may quash the panel, though it be of his own making so, that this kind of recovery is by verdict, and not by default. Note, that 21. Hen. 6. Challenge is denied, but by Newton and Vaston justices, Markham and Portington, Sergeants, attaint lieth. But see Sir Edw. Coke Comment. upon Fitzherbert fol. 355. that is resolved, that if the Tenant in a Writ of waste in the tenet lose by default, a quod ei deforcea● lieth, as well as in assize, and it is no reason to say that attaint lieth against the jury, for so it doth in assize, yet it is there said, that attaint doth not lie after a Writ of, inquiry of waste, for it is but an inquest of office. But there it is said, that if the judgement be a nihil dicit, there a quod ci deforceat lieth not, for that is after appearance, and is not a judgement per defaultam.  
And note there, that if Tenant for life make default after default, and he in the reversion is received and plead to issue, and it is found by verdict for the Demandant, the default and the verdict are causes of the judgement, and yet the Tenant shall have a quod ●i defor●e●t, & vide Dod. fol. 556. more est quod ei deforceat. 33. Hen. 6. 46. Littleton saith, that Tenant for life, or in tail, may have a quod ei deforciat, as well upon disseisen done to them, as upon recovery against them by default, for before West. 2. there was a quod ei deforceat at Common. And all is one, whether it be brought upon a disseisen, or a recovery, for neither Writ, nor Declaration make any mention of any recovery, and the Tenant may choose whether he will plead the recovery or other matter in bar, which if he do, the Demandant cannot vouch, acsi esset tenens: Neither is nul tiel recovery a good plea prima fancy, save only for the Demandant, when the Tenant pleads a recovery by default.  
2. Edw. 4. fol. 11. Littleton stands to his old opinion, that there was a quod ei deforciat at the Common law, and he would have it maintainable still by one that hath cause to bring a formedone, or an assize, or writ of entry, sur disseism; But the Court seems to wonder at his sayings, and also at the first, when Billing comes, and demands oier del record: for the Tenant in a quod ei deforceat, the Court asks him quae intendes per ceo: so that with question● of admiration they seem plainly to reject both opinions, that there is any quod ei deforciat at the Common law, given otherwise than upon recovery by default, and then the Tenant may plead ●ul tiel record; for neither the writ nor the declaration makes any mention of the recovery▪ But Li●●leton comes once more, 10. Edw. 4. fol. 2. and 〈◊〉, that once he brought a quod ei deforciat for his mother, of lands which she claimed to hold in▪ Dower, the Tenant said, there was no record to 〈◊〉, that the 〈◊〉 were lost by default. And Littleton challenged the plea, because it might be the 〈◊〉 was in a 〈◊〉 Baron by default in a Writ of right, in which ●●●● quod ●● deforc●at lieth: and therein i● no record, 〈◊〉 is a record by default: ●he Tenant said, there wa● neither record nor recovery where any 〈◊〉 by default appeared, and this was holden a good plea, per le● 〈…〉 And Littleton relinquished his suit.  
44. Edw. 3. fol. 42. A quod ei deforciat was brought against the heir of one which recovered in an assize, he prayed the plea might stay for his non age, and vouched to warranty W. N. etc. the voucher was allowed but not his age: because he might not have had it in his first Action: So that it appears, this writ lies upon recovery in assize, and the Tenant may vouch: But by Thorpe, if it had been the party himself which recovered, he could not have vouched; Et mirum saith Brook, that upon a recovery in assize, which is by jury and not by default, this writ should be. And if ye look this book at large, ye shall find again, that this writ and the proceeding in it, is merely by the Statute upon a recovery by default, therefore a quod ei deforciat lieth, and that upon a recovery by default in a quod ei deforciat. As 13. Edw. 1. a woman recovered in a Writ of Dower, by default against Tenant for life of rent, and afterward the Tenant, which lost by default, brought a quod ei deforciat against the woman, and she lost by default, and then sued a quod ei deforciat, etc. This is the highest Writ which these particular tenants can have of their own possession, as it were their writ of right, and it lieth against him which is Tenant, though he be not party to the recovery, as against the feofée of him which recovered. But it lieth seldom or never for a stranger to the recovery. Yet 41. Edw. 3. fol. 30. the Baron and Feme joined in a quod ei deforciat of lands lost by the Feme before marriage, & been. And by Belknap it lieth upon a recovery in a sciri facias, and it lieth without showing the record.  
The Tenant in this Writ, whether it be he which recovered, or his alienée, shall not have view. 41. Ed. 3. 8.  
If a man lose by default in a writ of right brought in a Court Baron, he may remove the record, and have a quod ei deforciat, in the Common place, and quaere saith Fitzherbert, if he never remove the record, if he then may not sue his quod ei deforciat in which Court he will, either the common place, or the Court Baron. He agreeth if a woman lose by default, and then marry, she and her husband may have this Writ: but if Tenant in tails lose by default and dye, his heir must sue a Formedon: for that is his Writ of right.  
If lands be given to Baron and Feme in especial tail, the remainder to the Baron in general tail, and the wife die sans issue, now if the Baron lose by default, in a Praecipe quod reddat, his writ of Quod ei deforceat must be Quod clamat tenere sibi & haeredibus de corpore suo, for so soon as the wife died, the state apres possibility drowned in the remainder, 50. Ed. 3. fol. 4. If in a Scire facias brought in Chancery by an heir of full age, to avoid endowment assigned in Chancery, whilst he was ward, he recover by default, the woman may have a Quod ei deforceat in Commune Banco. So likewise if a man recover land by default in Scire facias, out of some record in the King's Bench, the Tenant which lost by default may sue a Quod ei deforceat in the Common Place. If two coparceners' tenants in tail, lose by default, they may join in a Quod ei deforceat, yet the default of one is not the default of the other. 46. Ed. 3. in Fitzherbert, Nat. Breu. Brooke hath it also. A Quod ei deforceat brought by two men, heirs in tail, of Gavill kind, Quam clama● sibi tenere & haeredibus de corporibus exeuntibus was awarded good, though they could have none issue of their two bodies. 46. Ed. 3. 21. If tenant for life, or in tail appear in a Praecipe quod reddat, and afterward departed in despite of the Court, he shall lose the land, but yet he may recover by Quod ei deforceat, for the recovery is by default, for that he doth not appear when he is demanded. But if tenant for life, or in tail, after the mice joined in writ of right, depart in despite of the Court, they shall lose the land, and not have a Quod ei deforceat, for the judgement is final. If Baron and Feme seized in droit le feme for her life lose by default, in a Praecipe quod reddat, they may have a Quod ei deforceat, by Fitzherbert, which is denied in the old Nat. Breu. 155.  
If tenant for life lose by a default in a C●ssauit, he shall have a Quod ei deforceat▪ by this Statute of West. 2. If ●e in reversion upon default of tenant for life pray to been received, plead, and lose by action tried: yet the tenant for life may have a Quod ei deforceat, for the judgement must be against him by his default. If in a Praecipe quod reddat, the Tenant vouch, and the ●ouchee will not appear, so that the Tenant loseth by default of the Vouchée. Fitzherbert makes it a question, whether he may have a Quod ei deforceat, or no, because the judgement is not given upon the tenants own default. But clear it is, if the Vouchée appear, enter into Warranty, and lose by default, that now the Tenant shall not have a Quod ei deforceat, but judgement to recover in value against the Vouchée. If Baron and Feme, tenants for life in the wife's right, lose by default, and the Baron dye, a Quod ei deforceat lieth not, but a Cui in vita, as upon a Demise made by the baron: In a Quod ei deforceat the Demandant must count, that he was seized, etc. in his Demesne as of Francktenement, or in his Demesne as of Fee tails, laying the Esplees in himself, but he needs not show of whose gift, lease, or demise, though he claim for life, or she claims in Dower, or sibi & haeredibus de corpore. And the Defendant must deny the Demandants right, etc. and show how he recovered in a Formedon, or in some other Action: concluding that he is ready to maintain his right a●d title aforesaid, etc. unde petit iudici●m. Then the Demandant must either traverse it, or show matter in bar: but he shall not make defence, and then plead inbarre, as he shall do in a Formedon. Fi●zh.  
10. Ed. 4. fol. 2. Dictum f●●t, and the tenant may plead a release of all the Demandants right in a Quod ei deforceat. But the old Nat. Breu. observeth, that if the Demandant vouch●one that entereth into Warranty, he which recovered shall not plead the Vouchées release made after recovery. In a Quod ei deforceat the Tenant may vouch, and so may the Demandant. 50. Ed. 3. 25. But if the Demandant vouch, his Vouchée cannot vouch over. 10. H. 7. 39 The old N●t. B●eu. acknowledgeth, that in a Scire f●cias there lies no oucher: yet if a man recover by default in a ●c●re facias, out of a sine, against Tenant in tail, which bringeth a Quoth ei de●orceat: if the Recoverer maintain the title of his first Writ, the Tenant in tail may vouch. The Law seems to be otherwise: see Plow. 11●. & 206. & 14. H. 7. 18.  
The questions arose upon the Demandants vouching, 10. H. 7. fol. 10. The first, whether he must show cause of the Warranty, or no. The second, whether he may vouch one that hath nothing in the reversion. The third, whether he shall recover in value. Frowicke answered▪ The Voucher is by Statute, and he needs not show any cause, for the Statute of W. 2. cap. 3. saith, Concedatur ei quod vocet ad warrant▪ ac si esset tenens in priori breve: in which case he should show no Deed: Second, he shall not vouch any stranger; for the Statute is, Ideo concedatur eis quod vocen●ur ad warrantum quia non possunt sine his ad quos spectat reversio respondere. Third, the Statute giving voucher, means that he shall have the effect of his vouching, id est, to recover in value. And if a Statute give action for a thing, whereof the action did not lie at Common Law, the party shall have judgement; process and execution incident or belonging to that action, and a reversion is a cause of voucher, and of recovery in value. Frowicke said further: That though he which leased cannot disclaim, yet his Grantee may, and award his charge, and if voucher here should be no more, but an aid prayer, the Grantée might not disclaim; for if Tenant for life pray in aid of him in reversion, he shall not disclaim. And Tenant by the courtesy cannot vouch, for he shall never recover in value.   

SECT. XXVII. Admonition for women to take heed of him in the reversion.  
THe rest of this fourth book shall consist most in warnings to widows and women tenants in particular estates, that they do nothing prejudicial to their warrant. It is true for the most part, Ex quibus rebus maxima utilitas, ex ii●dem summa pernicies: Water washeth and drowneth, fire resteth and it burneth, the Sun ripeneth, and it scortcheth and seareth▪ They that can help can hurt. The reversioner of a widow's estate, of whom she shall have aid to defend her, shall take her estate from her in many cases, if she offend him in his reversion.   

SECT. XXVIII. Of Waste.  
EVen by the antique Law of England, if Bracton say truth, fol. 316. The Guardian in Chivalry, committing waste, did lose the wardship, was averred, Et damna restaurabat. But if Tenant in Dower committed waste, there was no forfeiture of her land, or parcel of it, but he in reversion might stop and let her, from doing waste, and such hindrance was no Disseisen. Also he might have, if need required, a Non permittas to the Sheriff, commanding him not to suffer waste, vendiction or exile in lands, tenements, houses, woods, garden, etc. and he might have attachment against the widows, or a Pone per vadios & saluos plegios, to make her come, etc. show why she committed waste. If the waste in a wood were found by Inquisition, the pain was no more, but that from thenceforth she should take no manner of Estovers, either to build, burn, or enclose, but it must be per visum forestarior●m haeredis. And Bracton sets forth the W●●● for placing and appointing of the F●r●e●cor, or by the heir ad praedict' 〈…〉 custodiendum. But now by the Stat. of Gloc. cap. 5. A writ of waste lieth against Tenant in the courtesy, or for life, or for years, or in Dower, and the party attainted in waste shall lose the thing wasted, and make 'gree to treble value of so much as the value shall be taxed at. This Statute made 6. Ed. 1. ordaineth also that the Guardian which loseth his wardship for committing waste shall render damages, if loss of wardship be not equivalent to the harm. Peradventure Bracton wrote after the Statute for in one part of his Book Ed. 1. is named ●. 3. But it is said Sir Edw. Coke's 3. Rep. fol. 40. a. that Glanuile wrote temps H. a. Bracton, temps H. 3. Britton, temps Ed. 1. and in Sir Edw. Coke 8. Rep. in john Webs case, fol. 46. b. he saith, that Bracton wrote in fine del Roy H. 3. and Fleta wrote in temps E. 1. But note a woman shall not answer for waste done before her time: yea, if land been leased to Baron and Feme, for term of their lives, and they commit waste: if the Baron die, now the widow is not punishable for this waste: For that which the Baron did during coverture, was only his act and offence, dead and determined with his person. Concessum per curiam, 2. H. 4. and Br. 59 in his Writ of waste. Yet if the lease had been made to a Feme sole, who takes a husband which commits waste, otherwise it is by 9 H. 6. 52. women need no further warning to take heed of waste, they are of themselves so having.   

SECT. XXIX. The Writ of Entry in casu proviso.  
BVtlet e●●●rie good woman take heed, how she maketh any gift or alienation of such lands as she holdeth in Dower. For Glocest. cap. 3. is, if a woman sell, or give away in fee, or for life, the tenement which she holdeth in Dower; the heir, or he which is in reversion, may maintenant have his recovery by Writ of Entry, and this is termed a writ of Entry in Casu proviso. There is no doubt but Fee in this Statute signifieth both Fee simple and Fee tail. And he which hath Fee simple, Fee tail or Estate for life in the reversion, may have this Writ against the Alienée, or against him which is tenant of the Francktenement. And this during the life of the tenant in Dower which aliened, for when she is dead, it lieth not per●el N●t. Breu. The Statute expresseth not the writ, but the form is, Praecipe A. quod reddat B. unum tonemen 'em quod clamat, in quod non habet ingressum nisi per C. quae suit uxo D. qui illud ei demised & illud tenuit in dotem de dono praedicti D. quondum viri sunt cuius haeres, etc. & quod post eemisionem per istud C. praefat' A. contra formam Statuti Glocest. etc. ad praefatum ● reverti debet performameiusdem Statuti. And it may be in the Per, Cui, or Post. If a woman recover Dower against the heir, and then alien in Fee, the recovery must be mentioned by the heir in his writ of Entry in Casu proviso. In like manner as it must be in a writ of Entrie●d Communem Legem upon an alienation by tenant in Dower, and though this alienation be but in tail, or for life, yet the form of the writ varieth not: If he which hath the reversion in Fee grant it to another, and the Tenant in Dower after Atturnment, alieneth in Fee, the Grantée of the reversion shall have Writ specifying the grant. Likewise if the heir grant his reversion with Atturnment, and the Grantée grants it over with Atturnment, the third Grantée may have a writ specifying that the woman held of the first, second, and third, ex assignatione, etc. The Aunt and Néece having the reversion by descent, may join in this writ, and the process is summons, grand and petit cape.   

SECT. XXX. The Writ if Enirie in Casa coasimili.  
THis Writ is in nature like the other, and it lieth when Tenant by the courtesy, or Tenant for his own life, or another man's, alieneth in fee, or in tail, or for term of life, he in the reversion which hath it for life, or in tail, or in fee, may have this Writ of Entry in Casu consimili, during the life of him which aliened, and this is form and granted upon West. 2. cap. 24. which willeth, That as often as there is a Writ found in Chancery for one case, and another case falling sub eodem●●●e, and requiring like remedy, there is none in the registry of the Chancery, for that the Clerks of the Chancery shall concord in framing a writ Vel atterminent quaer●ntes in proximo Parliamento, & scribantur usus in quibus concordare non possunt, etc. & referant eos ad proximum Parliamentum, & fiat breve de consensu Iurisperitor●m: ne conting●td● caetero quod curia Domini Regis deficiat conquerentibus in justitia perquirenda.  
The Writ is, Reverti debet performam statuti in consimili casu provisi. And it supposeth always altenation in feodo, although the Tenant leased or dem said it, but for term of another man's life, or in tail: And so the writ of in Casu proviso: And that of Entry ad Communem Legem: This writ may be in the per, cui, and post: And without title made in the writ, if if so be that the Demandant himself made the particular estate of him which aliened: But if the father or other Ancestor make a lease for term of life and die, and then the Tenant for life alieneth in fee, now the heir in reversion shall have a writ comprising his title in itself. And if this writ be brought upon alienation made by Baron and Feme, the writ supposeth that the wife aliened with her husband, but yet she may have a Cui in vita after her husband's death, the alienation not letting it: If Tenant for life grant his estate to another, and the grantee alieneth in fee, the Writ shall be in quod non habet ingressum nisi per C. cu● D. qui illud tenuit ad vitam ex demissione B. deposit ad eusdem te●m●num etc. If a man make a lease for life, and dye, and his heir grant the reversion to B. and the Tenant attains, If now the lessée grant his estate to another, which alieneth in fee to A. B. shall have a Writ comprehending the assignation and grant of all the estates.  
If lands be given to two men, and to the heirs of one of them, and he which hath the fee simple dies, and then the Tenant for life alieneth in fee, now the heir of him in remainder may have this Writ, for it lieth as well for him as for Tenant in reversion.  
If any Abbot or Prior make a lease for life, the lessée alien, the Prior dye, &c the successor may have this Writ; Also tenant in tail may have it, if he make a lease for life, and his lessee alien in fee. And it seems if Tenant in tail make a lease for life of the lessee, and dye, the issue in tail may choose to bring a Formdon, or Writ of Entry in Consimili casu against the alienée, whilst the lessée for life is yet living, for the alienée, which is Tenant in the Action, cannot plead in Abatement of the Writ, that the Demandant hath title to a Formedone: But if Tenant in tail make a lease for term of his own life, which is no discontinuance, if now the lessee alien in fee, and the lessor dye, his heir cannot have a Writ de consimili casu; but he is driven to his Formedone, for in this case, he hath no title to other Actions by colour of any demise. But in the former case he had title, by reason of the discontinuance made for life, to claim by right of the new reversion descended; so that he had a double title, the reversion reserved sur le seas and the title in tail, consequently election of Action: Quaere.  
P. 17. Ed. 3. A lease made for life, the remainder to another in fee, the loesses aliened in fee, and a writ de consimili casu brought by him in the remainder, and it abated, for the Court said, that he in remainder, was not possessed in fait, till the remainder did fall after the death of the ●essée.  
Saith Fi●zherbert, the Law is not so taken at this day, but that he in remainder hath the remainder vested in him, as well as hath he in the reversion, for he may have an action of waste, and enter for alienation of his tenement as well as he in the reversion may: Ergo he hath his remainder in fa●t, and me seemeth, this judgement was not well given, saith Fitzherbert. And Hill 18 E. 2. it was held by Herle justice, that the Writ lieth well enough for him in remainder. And Tri. 31. E 1. the heir in tail maintained a writ of entry in Consimili casu upon alienation made by tenant le courtesy.   

SECT. XXXI. The Writ of Entry ad communem legem.  
THe Writ of Entry at Common law, is given in Case where Tenant in Dower, or per courtesy, or for life doth alien in fee, or in tail, or for life, etc. now if the Tenant which aliened do dye, hec in the reversion must take this Writ of Entry ad communem legem, which is very like the former Writs, and may be in the per, cui, & post; If a woman recover Dower, alien, and dye, the Writ of Entry ad communem legem, must make mention of the recovery; And if Tenant by the courtesy ali●● in fee, and dye, he in the reversion if he be heir in fee simple, may sue this Writ, or his Assize of Mo●● dancester, given by the Statute of Gloucester. ca 3. If Tenant for life alien in fee, and dye, the Writs for him in reversion are in diverse forms, for if he have the reversion by descent, the Writ is in quod idem A. non habet ingressum nisi per C. c●i D. pator vel antecessor, of the Demandant cuius haeres, etc. demised, etc. But when the Demandant himself made the lease to him which aliened, than the Writ is or may be Praecipe quod recidat, etc. omitting these words, quod clomat ut ius & haereditatem; and note, if Tenant for life alien in fee, and dye, he in reversion may choose whether he will have this writ, or an ad terminum qui praeteriit. If Tenant for life grant his estate, and he in reversion grant his reversion with Atturnment, if now the Tenant which atturned alien in fee, the grantée of the reversion shall have a Writ, mentioning the grant and assignation, etc.   

SECT. XXXII. More of forfeitures, and how a particular Tenant may forfeit his estate without alienation.  
NOte. If Tenant for life, lease the land to. I. S. for term of life of. I. S. which dyeth, the first leas●e still living, he shall not have the land again, because he leased more than was in him, and therefore, he in the reversion shall have it: But if two be seized for life, the inheritance in fee to one of them, and join in a lease for life, and the leasee dyeth, they shall be joint tenants again. ꝑ Littleton 13. E. 4. fol. 4. Because he which had the fee was privy to the lease, and so the other gained no new reversion.  
It is yet further to be understood, both that he in reversion may enter upon alienations made by particular Tenants, ut supia, to his disinheritance, without suing the above mentioned Writs: And also that there are sundry other forfeitures to the Reversioner besides express alienations, which I would have widows to take heed of.  
6. Edw. 3. fol. 17. In Action of waste by an Infant against Tenant by his father's demise, he pleads, that the father confirmed his estate to have and to hold to him and his heirs in fee, by his deed showed to the Court, judgement si, etc. It was said for verity, that if the claim were found false, the heir might enter. Page 64. in Fitzh.  
And if a reversion be granted by fine, and the conuse brings a quid iuris clamat against the Tenant for life, which pleadeth that she hath estate in tail, by devise in Testament from the Commissors, if it be found by verdict that she hath but estate for life, that estate is forfeited, Quod vide Ploughed. fol. 212. in Saunders in Fremans' Case, where the entry for the conusée is consideratum est, pro seisina & redd●t praed▪ cum partium versus etc. occasionae & clam' & placit praedict' forisfact' habend' (si voluerit) persequatur ac etiam quod finis praed▪ si voluerit ingrossetur. Plesingtons' Case 6. R. 2. was this. A man made a lease for years, and granted further by Indenture, if he aliened the reversion, or died within the te●me, that the leassée should have francketenement, and livery was made, the fee simple was granted by fine etc. and in a quid iuris clamat, the leassee claimed francket●nement, judgement was given that the cognisée might enter for a forfeiture, and that the fine should be engrossed, (si voluerit) See 3. & 4. Eliz. Dier. 209. in a like case the judgement was, not quod quaerens recuperet seisinam, but quod prosequatur pro seisina si voluerit, & finis ingrossetur etc.   

SECT. XXXIII. The Statute of 11. H. 7. cap 20.  
THe Common Law restrictive of itself, and helped something by the Statute of Gloucester, was sufficient, a great while, to bridle women from making alienations for any land that they held in Dower or jointure, as arguments of their own good deserts and testimonies of their husband's love; But time, which made the art of fencing more fine than it was at the first, when Combatants fought all at head and shoulders, and it was greater shame to strike under the girdle than it is now, made law also more subtle than in the beginning it was, when lands went altogether, or for the most part by livery of seisin.  
And women witty of themselves, instructed by crafty men, grew cunning at the last, that they could alien lands, holden for life, or in tail, to whom they listed in fee. And he which suffereth disinheritance should not easily help himself by Writ of Entry, either ad communem legem or in casu proviso: for remedy whereof was made this severe statute in effect as followeth. 11. H. 7.  
If any woman, which hath had or hereafter shall have any estate in Dower, or for life, or in tail, jointly with her husband, or only to herself, or to her use in any Manors, Lands, Tenements, or other Hereditaments of the inheritance, or purchase of her husband, or given to the husband and wife in tail, or for term of life by any Ancestors of the husband, or by any other person seized to the use of the husband, or of his Ancestors, and have, or shall hereafter being sole, or with any other after taken to husband, discontinued, or discontinue, aliened, released or confirmed, alien, release, or confirm, with warranty, or by covin, suffered, or suffer any recovery of the same, against them, or any of them, or any other seized to their use, or to the use of either of them, after the form aforesaid, that all such recoveries, discontinuances, alienations, releases, confirmations, and warranties, so had, and made, and from henceforth to be had, and made, be utterly void, etc. And that it shall be lawful to every person and persons, to whom the interest, title, or inheritance, after the decease of the said woman, of the said manors, lands, or tenements, or other hereditaments being discontinued, aliened, or suffored to be recovered, after the first day of December next coming in the form aforesaid should appertain, to enter into all and every of the Premises, and peaceably to possess and enjoy the same, in such manner and form, as he or they should have done, if no such discontinuance, warranty, or recovery had been had or made: And if any of the said husbands and women, or any other seized, or that shall be seized to the use o● them of the estate afore specified, after the said first of December, do make or cause to be made, or suffer any such discontinuance, alienations, warranties, or recoveries, in form aforesaid, that then it shall be lawful to the person or persons, to whom the said manors, lands, and tenements should or ought to belong, after the decease of the woman, to enter into the same, and to possess, and enjoy them, according to such title, and interest, as they should have had in the same, if the woman had been dead, no discontinuance, warranty, nor recoveries, had as against the said husband, during his life, if the discontinuance, alienation, warranties, and recoveries, he hereafter had by or against the same husband and woman▪ during Coverture and espousals betwixt them▪ unguided, that the said women, after the decease of their said husbands, may reenter and enjoy, etc. according to their first estate; And over this it is enacted, that if the woman, at the tune of such discontinuance, alienation, recovery, warranty, etc. besole, that then she shall be barred and excluded of her title and interest in the same from thenceforth, and the person or persons, to whom the title, interest and possession of the same should belong, after the woman's decease, shall immediately after the discontinuance, alienation, warranty, and recovery, enter, possess, and enjoy, the same Manors, Lands, etc. according to his or their title; Provided that this Act extend not to avoid▪ any recovery, discontinuance, or warranty, after the form aforesaid, heretofore had, made, or suffered, but only where the husband and wife, or either of them, now being alive, or any other to their use, now have title and Interest to the said Manors, etc. or take the issues and profits to their vse● Provided also, that this Act extend not to any recovery or discontinuance, where▪ the heir next inheritable to the woman, or ●e▪ or they, that next after ●er deat●▪ should have estate of inheritance, etc. 〈◊〉 〈◊〉 or agreeing to the re●●uerie●▪ where ●he same assent and agreement is of record or inrowled. Provided also, that it shall be lawful to every woman being ●ol●, or married after the death of her first husband, to give, s●ll, discontinue, etc. for term of her life only, after the course of the common Law.   

SECT. XXXIV. The Exposition.  
BEfore this Statute, if Tenant in Dower had aliened in fee with warranty, and died, the warranty descending upon him in reversion, had barred him, for against collateral warranty of Tenant in Dower, or for life, the Statute of Gloucester cap. 3. determined nothing. L●●●●eton fol. 164. He addeth, that if the heir were under age, both at time of alienation, and also when the warranty descended, he should he at no prejudice by this collateral warranty: But if he wore under age at time of the alienation, and came afterward to full age, during the woman's life, and never entered, then perchance he should be barred; This was Law when Littleton wrote, and had continued so above two hundred years, and during the reign of nine Kings after the making of Gloucester cap. 3. which Statute Dyer comparing with the later, he reputes the last cruel against women; for by this A●t of 11. Hen. 7. all alienations, recoveries, releases, and warranties of Tenant in Dower, or ●oynture of the husband's lands are of no strength. And where Gloucester alloweth Tenant by the courtesy to alien with warranty and assets: this from women is clean taken away this, he saith, is un case fort dure. That if a woman ●oyntresse in tail, whose warranty is lincall to her heirs, do ali●n, and leave assets, yet the heir may enter; Therefore he is of the mind that this Statute being rigorous of itself, aught to receive a stre●t and literal interpretation, fol. 148. But Stamford, Browne, & Brook, expounded these words, (given by the Ancestors) to been intendible of all manner of assurances, for money or otherwise: There are two Cases in Plowden that endued great Argraments upon this Statute; The first is betwixt Winibishe and Falbo●es a man enfeoffed diverse persons to the use of himself and his wise in special tail, before the Statute of 27. He●. 8. of uses▪ and after the Statute the husband died, a stranger recovered in a formedone, per ment deduc, the first day, by covin, and upon false ti●le, he to whom the title appertained, after the woman's death entered, and the entry wa● adjudged lawful, though he could not have judgement for a default in the pleading, and that was want of certainty in his replication, and not showing how he was heir, or the party to whom the entry was given by the Statute.  
The greatest matter upon the Statute objected to enforce a proof, that the widow, which suffered the recovery, was not bound by this Act, was, that she held not jointly with her husband, any lands or tenements, but only she was seized of an use in tail. (for they took it clear on all pa●ts, that the case came into consideration, as if the Act of 27. had not been made) and that seems to be directly within the letter of the Laws; But Montague chief justice, showing how greatly the marriage of women, and their advancement by it, is respected in Law, as appeareth by the Writ of ●a●●a matrimony prolo●●●i, and the ●●i ante diu●rtium taken by equity of West. 2. cap. ●. and also by that, that where donées in frankemarriage are divorced; the woman shall have all the lands: affirmeth it to be reason against such women thus favoured, and who abuse such favours as the Law bestows upon them, and will be of Covin and Fa●●ity, to impair their deceased husband's inheritance, and disinhe: it their heirs, to construe this▪ Law for their co●●●●tion, for the Lawmakers of the statute were bend extremely against them, though it be penal in some sort o●it sel●e. And so it was agreed, that if the widow were not within the words, yet she was within the intent and meaning of this Statute.  
The other case was this betwixt Eiston and Stud. Baron and Feme le●ied a fine of l●nds of the wives▪ inheritance, taking back an estate in ta●le the remainder to the right heirs of the wife, the question was whether the woman after her husband's death, might alien without danger of this Statute, adjudged that she might, because she was clear without the intent and meaning of the Act: For whatsoever the words import, the matter that this Statute aimed was, and is, to restrain women which have jointures, proceeding originally from their husbands, or the husband's Ancestors, that they should do nothing prejudicial to the heirs. But in this case there came no jointure from the husband, but contrariwise, the wife had made a jointure to her husband, and after his decease, to bridle the woman to do what she listed with her own inheritance, were against all reason, and as fare from any affinity with 11. H. 7. as it should be, when a woman seized in Fee simple gives lands to the father of him whom she intends to marry, to the intent that he regrant this land to his son and her after marriage, with a remainder in tail, etc. to restrain her, when after marriage regranting, and death of the husband, she should levy a fine to other uses, or suffer a recovery, which case though it be clean out of the Statute, yet it is within the words, for the ●oynture was made by the Baron's Ancestor, though not originally, etc. And so note those two cases of Ploughed. one is taken to be within the intent, though out of the letter, and the other though within the letter, yet out of the intent, and yet both constructions most reasonable and just.  
And see Sir George Brownes case, Sir Edw. Coke ●. R●p. that a lease made by a woina● t●nant in ta●le of the gift of her husband, etc. make a lease for three li●s● that is not warranted by the Statute of 32. H. 8 and although the lease be without clause of Warranty, yet it is within the Statute of 11. H. 7. for those words in the act (with warranty) refer to releases and confirmations which makes no discontinuance without warranty, for the inte●t of the Act is, to prohibit not only every bar, but ●ueri● manner of discontinuance, which puts the heir to his real action. And in that case it was resolved, that if the issue in tail had before the woman's for feiture granted his remainder only in that case, he by the express letter of the Act shall enter upon the discontinuance of the woman, for his act doth not bi●de his estate. But when the issue in tail levy a fine with praclamation, in the life of the woman tenant in tail, etc. that shall bind the tail, and therefore there the Conusée shall enter, for he which hath the immediate title, interest, or inheritance, at the time of the for feiture, shall enter by that Statute. And it was said by Anderson, Chief justice of the Common Pleas, that where it was in●ented for to mak● eua●●●ne out of the Statute, that if such a woman tenant in tail accepts a fine sur conusans de droit come c●o, etc. and by grant and renders the land for a th●usand years, that is an alienation within the intention of the Act, although the words of the Act are discontinuance, alienation, etc. and of that opinion was W●ay Chief justice, and Dyer, and all the Court of Commo● Pleas was of the same opinion, 18. Eliz.  
And in Sir Edw. ●okes 3. Rep. Lincoln College case. It was resolved, that if the heir in tail convey the lands to others, and the woman tenant in tail release, or makes con●●r●nation with warranty which is not but to perfect and corroborate the estate which the heir in tail hath made, such a warranty is not restrained by the said Act, for that which the woman hath done, is for the benefit of the heir, and not for his prejudice, and by his a●●ent. And she and the heir●●●ight have joined a fine, and so bar the estate tail, not with standing the Statute of 11. H. 7. therefore such Acts by the woman shall not be void, to grant the hair, or any else, any advantage by the Statute of 11. H. 7. And note the opinion of Sir Edw. Coke in the said case of Lincoln College, that the son borne after, shall by this Statute out the daughter, who entered for forfeiture, and ●●ew●● other opinions concurring, y●● in Dyer 21. Eliz. 362. the heir in such a case is said to be in by purchase.  
And note, Reader, that it hath ●●●ne adjudged, that although the Deed of conveyance, and assurance of the woman's jointure or estate, d●therpresse her marriage portion, as well as her marriage, to ●e the cause and consideration of such jointure or ●stat●▪ yet if the estate pr●●éds from the husband or his Ancestors, she is within the said statute of 11. H. 7. and s●e Villers and Beau●●●rit● case, 4. Mar. 146. But ●●●u●r● if the portion money appear to be the full price of the land, if that differ not the case.  
See Sir Edw. Coke Comment upon Littleton▪ 365. These ●ases put a man seized in Fee, levy a fine to the use of himself for life, and after to the use of his wife, and of the heirs males of her body by him begotten, and had issue male, and after he and his wife levied a fine, and suffered a common recovery; the husband and the wife died, and the issue male entered by the Statute of 11. H. 7. and the entry was ●olden lawful, and yet this ca●e is out of the letter of the Statute, for she neither levied the fine, etc. being sale, or with any other save her husband, who made the Io●●ture, Sed qui ●aeret i● littera, ●aeret in cortice; and therefore this case being within the 〈◊〉 of the Statute is within the remedy▪ But 〈◊〉, 〈◊〉▪ that this case was de●yed for Law by the R●●●rder o● London, in his argument in the case hereunder 〈◊〉▪ between Copland and Pyat. Another case in Sir 〈◊〉 Coke Commentaries upon Littleton, which agree with Eiston and Studs case in Ploughed. is; A man seized of land ●ure v●oris and they two levy a fine, and the 〈◊〉 grant and render the land to the h●sband and wife in special tail, the remainder to the right heirs of the wi●●, they have issue, the husband dieth, the wife taketh another husband, and they two levy a ●●ne in Fee; the issue entereth, this is within the letter of the Statute, and yet is out of the meaning, because the state of the land 〈◊〉 from the wife, so as it was the purchase of the husband in letter, and not in meaning. But where the woman in ●●nant for life by the gift, or conveyance of any other, ●●● alienation with Warranty shall bind the heir at this day.  
The case of Copland and Pya● adjudged Hillar. 7. Car. in Ban●● Regis, in effect was thus▪ I. S. his son was to marry to the daughter ●● I. N. And the Deed 〈◊〉 that I. N. for th● consideration of four hundred 〈◊〉 paid by I. S. and of a marriage, &c▪ and for the 〈◊〉 of the blo●● of I. N. covenants to stand seized to the use of the son ●● I. S. and his daughter whom the 〈◊〉 of I. S. should marry, ●●taile the remainder to another 〈◊〉 of I. N. th● remainder to the h●ires of I. N. 〈◊〉 dieth having issue, and the wife alieneth by 〈◊〉. 〈◊〉 〈◊〉 was resolved, that it was not within the Statute of 〈◊〉 7. notwithstanding the four hundred pounds paid by ●●● husband's father, for the ●●nd ●rst moved from 〈◊〉 〈◊〉 father, and the preferment of the blo●●●● I N. 〈◊〉 〈◊〉 intent that the husband's heirs should not 〈◊〉 〈◊〉 but the wives. And the Bishop of Ex●●tors case 〈◊〉 that case cited, which was that in consideration 〈◊〉 〈◊〉 to the woman, and service done by the man, 〈◊〉 〈◊〉 gave the land to them 〈◊〉, ●●● 〈◊〉 to 〈◊〉 of the Bishop, it was ●●●● to be 〈◊〉, that the 〈◊〉 〈◊〉 after her husband●●●●th, had no 〈◊〉 within 〈◊〉 said Statute of ●●. H. 7. but that she might self it 〈◊〉 ●●nger of the Statute.   

SECT. XXXV. What Actions concerning chattels do survive a widow.  
I H●ld it good wisdom for a widow, and for all persons, to have greatest care of matters of greatest moment, and not to contemn the lesser: Now that ●●● have do●e with matters of Francktenement, we will see a little, in what Actions concerning Chattels rea●●, or personal duties a widow may be Plaintiff, or Defendant, to make an end of reckonings begin before, or whilst she was a wife. I● Feme covert deliver Deed to I. S. she may have Action of Detinue for the Deed after her husband's decease, for though the delivery were void betwixt I. S. and the Baron, yet it is good betwixt I. S. and the wife, if the Baron dye, 3. H. 6. 50.  
If a lease be made to Baron and Feme for years, and the Baron die, the wife shall have the term, and if the Lessor out her, she may have Action of covenant, 47. Ed. 3. 12.  
If a man be bound to Baron and Feme in Statute Merchant, the Baron alone may make de 〈◊〉 〈◊〉 e, and by some opinion the Au●●●● quert la must been against ●●● alone: but if he do not release, etc. the Statute▪ suruiveth to th● wife, and she may sue execution, & executor ●● my. And, per Finch, the Law is all one of an Obligation and a Statute. Likewise in a plea of land, if Baron and Feme recover the land with damages, and the Baron ●●●, his wife shall s●e for damages, and not his Executors.  
So likewise by B●lknap, If an Obligation be made to Alice the wife of Robert, this is a good Obligation, and Alice and Robert may join in an action upon it, and if Robert die before he have released, for ●e may 〈◊〉 release it, Alice alone shall have the Action, 48. Ed. ●. 12. simile 7. H. 6. fo. 2. See the Commentaries of Sir Coke upon Littleton, fol. 350. It is said that Chattels reals of a mixed nature, namely, partly in possession, and partly in action, happening during coverture, if the wife have her husband, she shall have them by the Common Law, as if the husband be seized of a rend charge, rend service, or Sack, iure uxoris, the rent incurreth during coverture, if the husband▪ die the wife shall have the arrearages, and ●● of an Aduowson of the Church during coverture, & sic de 〈◊〉. And in those cases the husbands shall gain● them by suruivership: but for arrearages, or avoidance of the Church before marriage, the husband could have ●● help by suruivership, and so of releaseth. But now by the Statute of 32. H. 8. cap. 37. By suruivership the husband shall have the arrearages as well incurred before the marriage as after.  
If an Estray happen within the Manor of the wife, if the husband dye before seizure, the wife shall have it, f●r that the property was not in the wife before seizure.  
But as to personal goods there is a diversity 〈◊〉 a property and a bare possession, for if personal goods be delivered to a woman, or if she find goods, or if goods come to her hands, as Executrix to a Bailiff, and taketh a● husband, this bare possession is not given to the husband, but the Action of Detinue must be brought against the husband and the wife.  
If Baron and Feme make a lease for years, and the Baron die, the wife may bring an Action of waste, 22. H. 6. 24.  
If an Obligation be made to Baron and Feme, and the Baron die, the widow may have the Obligation▪ 4. H. 6. 5. Quaere, for the book is not so clear, as Brook makes it, the woman was Obligée with her husband, 〈◊〉 sued as Executrix.  
Generally where title, or cause of Action, is given 〈◊〉 woman before marriage, or during marriage, and the husband releaseth not, etc. the Action surviveth when ●●● die. But there may be a release in land as well as in fact implied, as well as expressed. And therefore the case is 8▪ Ed. ●. Br. D●●●. 156. and cite Plow●. 184. in Woodward and Darcy his Case, If a man be bound to a woman, and to another, and the Obligor marry the woman, all the obligation is extinct although the wife over▪ live her husband, or although she dies, ●wing the other obligee, for either of the obligées hath power to release, and that inter▪ marriage is a release. And gifts in Law of the chattels of the wife as well real as personal are outlawry or attainder of the husband. If a man marry with a woman executrix, and then release to Creditors, all manner of Actions generally, this extendeth to his proper accords, and to those which his wife hath, either in her own right, or as executrix. Baron and fe●e ●0. in Brook. See Brooke coue●on● 6. Action of covenant was brought against Baron and Feme, lessées of a Manor for term of life, rendering 20. ●i. per annum, and they were bound to the Plaintiff, that he should have such surety for his rent as his Council devised; the Counsellors devised the Assurance, and the Defendants refused to make it, it was ruled for Law, that if the Baron died, nothing should bind his widow, save only the lease and reservation, if she agreed to the lease post mortem viri: And she shall be charged with payment of the rent, or double it, or pay fine ●● 〈◊〉 paenae, or hold it subject to reentry, according as the lease was made: But a collateral covenant, as that the lessor shall distrain in other lands for his rent, or a covenant, to charge the lessées▪ persons in twenty pound for non payment, &c▪ such like agréements bind not the widow, when the Baron is dead, and the Writ abilted.  
Note, that widow is a good Addition, to be put to the Defendants name many original Writ of Action personal, appeal or indictment, wherein exigent ●eth, etc. According to the Statute, ●. Hen. 5. cap. 5. And 14. Edw. 4. fol. ●. B●arkey demanded of the justices in the 〈◊〉 chamber, if an Action were brought against a 〈◊〉 〈◊〉 was neither maid, wife, nor widow, what addition should be given her, some say she should be called single woman: and there it is doubted, whether servant ●ee a good addition, or not; for it was no addition by the Common Law, as some said.  
We are passed the greatest, and most difficult part of Law, peculiarly belonging to a widow, and come now to consider, whether she shall marry again, or no. If john Boccace de C●rtaldo, in his Book De duris mulieribus, may be believed, When the sister of covetous King Pigma ●●● and widow of Sycheus, Hercules his Priest, had built the Walls, Temple, Market, Town house, and private dwellings of Carthage, giving laws and rules of life to the inhabitants, amongst the rest that were filled with love of her great virtues and singular beauty, the King of Malaca was one, he grew so vehement in his desires, that he threatened the Citizens of Carthage with wars, and utter subversion of their new City, unless he might have the Foundress of it to be his wife: They knowing how highly their Queen would remain displeased by any dire●● solicitation to a second marriage, & not knowing how otherwise to save themselves▪ determined to win her assent without ask. The chief of them went therefore to Dido, and told her how the King of Malaca required Masters and Instructers of huma●●tis to be sent him out of Carthage, from whom he and his people might learn to do off their natural ●●●●atousnesse and incivility, and further▪ how he had menaced fire, sword, and extreme dissolution, unless his request were accomplished: But they knew not (they said) whom to send, or who would be willing to go, and leave his own habitation, to dwell with a King of such savage nature, and wild behaviour, as was this King of Malaca. Dido, when she heard them, answered, that she was ashamed there should be found in any Carthaginian, such 〈◊〉 and cowardly fear, affirming plainly, that men were not borne only for themselves, and whosoever he were that would not adventure loss, peril, yea, and death, though it were certain, for safeguard of his Country, he was (she said) unworthy to dwell in Carthage, or that either he or his posterity should ever be received to any honour or reputation amongst them. The Carthaginians thought they had obtained their desire, and uncovered their counsel to the Queen, telling her plainly the King's demand. Dido not knowing how to reply against her own r●dar●utions, replenished with sorrow and anxiety, was enforced to yield her assent to wedlock, and craved a day, before which she said she would go unto her husband▪ but before th● term was expired, she caused a great fire to be made in the most eminent place of the City, and there in view and concourse of all other people, after many ceremonies and offering of sacrifice, as it were to appease the ghost of ●c●●us, she suddenly with a knife strake herself t● the heart, and told her subjects that now she went to her husband, her Sichaeus, her dear Sich●us. on whose name still invocating, she sunk to the ground, hane chosen rather to shed her dearest life's blood (as she said) than to violate the vows of chaste widowhood. Boccace mine Author here may have some colour of reason, to extol the resolution of Dido▪ but not to condemn so bitterly (as he doth) all women that marry a second husband. Some of them are destitute of friends, their parents, brethren, and kindred dwell fare off, suitors c●me every day, who can obsist them▪ Another widow hath lands rents, store of goods, some suits at Law, and no body that she can trust, in help to govern that which she hath, or to inherit it when she is gone. Another is tolled to marry by mighty persuasions of her dearest friends and kindred. Another hath 〈◊〉 youth on her side▪ 〈◊〉 Indian's leap into the dead man's fire, if they will, she hath learned that it is better to marry than to burn.   

SECT. XXXVI. A 〈◊〉 to marri● so, 〈◊〉 it be not uncertain who shall 〈◊〉 her to the●●●● 〈◊〉▪  
I For my part, that am like neu●r to be feared, unless some widow be moved with compassion towards me, will not speak villainy of Bigamy, or Octogamie, let every woman marry when she seethe her time, but 〈◊〉 〈◊〉 〈◊〉 a slow speed perhaps will be best, and let her examine well whether the pannier be empty, or no. If (saith Sir Thom●s Smith, in his Treatise De Repub. Angliae. ●ol. 104.) I marry the widow of one lately dead, which at the time of her husband's death was with child, and the child is b●●ne after marriage solomnized with me, this child shall be mine 〈◊〉 and lawful son, so▪ precisely do we take the letter, Peterest quem 〈◊〉 demonstran●. Littleton ●aith, 18. E. 4. fol. 30. If a man marry a woman which is gro●●ment ens●●nt by another, and within four days after marriage she is delivered, this child shall be his that hath newly married the woman and inherit his land, for it is no bastard. It 〈◊〉 〈◊〉 would have it understood of a woman enseint by ●●p ●●zard, and in such cases it is reason; that he which takes the Dame should have the Foal▪ So ●s it also when ●●●man elopes with a stranger in 〈◊〉, and 〈◊〉 her husband john at Noke being between 〈◊〉 four 〈◊〉, must father the child, and it shall be his heir, it he die; for the Law will not ●●ing into trial directly, wh● 〈◊〉 the child, 44▪ Edw. 3. fol. 10. and ●. H●●. 4. 〈◊〉. ●●● though issue may 〈◊〉 ●● taken, whether a woman 〈◊〉 ens●m● by her 〈◊〉, ●●●h● time of his death's dea●ing out the question by whom, as appeareth by the for●●● Books, and 1. H. 6. fol. 3. Then if it may be found by Engu●st, that a woman was with child at her husband's death, the Law which permits not to inquire by whom, affirms it to be the husbands, and that husbands which might lawfully beg●t it. I think ●urely, ●ir Thomas Smith mistook the Law: for by Thorpe and Willowby, 24. E. 2. fol. ●9. If a man dye seized of land in Fee simple, and the wife which is 〈◊〉 〈◊〉 with a so●ne, marry again, and after is delivered, ●●is son shall been adjudged son and herro to the first Bar●n and not to the second▪ Though justice Be● there were of opinion, that the Infant might ●hu●e his father▪ It were better reason perhaps, that the second husband might 〈◊〉 whether he should be his so●ne, or no, and by allowance make him hi● heir.  
Sir Ed. Coke in his Comment upon Littleton, fol. 8. a. saith, I● a man hath a wife, and dieth within a ●erie short time after, the wife marrieth again, and within nine moneth● hath a child, so as it may be the child of the one or the other, some have said in this case the child may choose his father, Quia in ho● cas● filiatio non potest probari, and so is the Book to be intended: For avoiding of which question, and other inconcemences, this was the Law before the Conquest, Sit omnis vidua ●ine marito 12. mensibus, & si marita verit perdat dorem. But if women had all been of such sobriety, as many are, many of these questions had never risen, and I must confess it is great petulancy in any widow, that slippeth to second wedlock, whilst she yet nourisheth in her womb, the pledge of vn●●n and love, betwixt her and her late husband: I thank God, I cannot say that I have known in my life time any widow so wanton. In old time women used now and then to sane themselves left with child, and to bring forth borrowed brats, to deprive the Deceaseds right heir of his inheritance, sometimes of their own mischievous malice and deceitfulness, and sometime by consent and combining with the Lords of whom the lands were holden. Bracton in his second Book, cap. 32. hath a large discourse, De partu supposito: and there is a Writ to the Sheriff, to call before him, and the Keeper of Pleas of the Crown, the woman that pretendeth to be enseint, to have her examined, by tractation and search of good and lawful women, per ubera & per ventrem, whether she be pregnant or no, and if the matter he found doubtful, to commit her to a Castle, and wary custody, without access of any suspected woman, Qu●usque de partu suo corstare possit. But this is a piece of learning so obsolete and wor●e out, that I think since I was borne, and a long time before, there never was any such Writ put in ●re▪ I conclude therefore, that our widows now adays are honester than they were in Henry the thirds time, in the fifth year of whose reign, Mariell widow of William Constable de Mauton in Comitat. N. rff. practised this cozenage: widows of this age are nothing so deceitful, though deceived sometimes by bad husbands.    

THE WOMAN'S LAWYER. The fifth BOOK.  
THe widow married again to her own great liking, though not with applause of most friends and acquaintance. But alas what would they have her to have done, she was fair, young, rich, gracious in her carriage, and so well became her mourning apparel, that when she went to Church on Sundays, the casements opened of their own accord on both sides the streets, that bachelors and widowers might behold her, Hic trahebatur & ●lle, & er●● cunctis amor unus habendi. Her man at home kissed her pantofles, and served diligently; Her late husband's Physician, came and visited her often▪ The Lawyer to whom she went for council, took opportunity to advice for himself. If she went to any feast, there was ever one gues●, sometimes two or three, the more for her sake; If she were at home, suitors overtook one another, and sometimes the first comer would answer the next, that she was not within; All day she was troubled with answering ꝑetitions. And at night when she would go to rest, her maid Marion was become a Mistress of requests and hum●le supplications. This kind of life the widow liked not I ask again what she should have done; he to whom she gave a den●all would not take it; if she denied him twice, he said two negations made an affirmation; and he challenged promise; therefore to set men's ha●ts and her own at rest, she choose amongst them, one not of the long robe, not a man macerate and dried up with study, but a gallant gulburd lad; that might well be worthy of her, had he been as thrifty as kind hearted, or half so wise, as hardy and adventurous; This youth within less than a year, had set the Nuncios which his predecessor kept in prison at liberty round about the Country, the bags were all empty, the plate was all at pawn, all to keep the square bones in their amble, and to relieve Companions; One of which notwithstanding, that had cost h●m many a pound, for none other quarrel, but vous mertes challenged him one day into the field, which was appointed, and there my new married man was slain; Now his wife will bring her Appeal.  

SECT. I. Appeal of the husband's death.  
BY Bracton li. 3. cap. 29. A woman can have an Appeal, but only in two cases; per quod alicui lex debeat apparens adiudicari. As in case where injury and force is committed against her person by ravishment, or when her husband is killed imer Brachia iva: This form of appeal therefore is, A. late wife of B. appeals ●. that whereas B. her husband was at such a place, such an hour, such a day, and such a year. C. came with force, requiter & in felonia contra pacem regis, and killed him betwixt her arms, and that he did this against the King's peace, and feloniously, she will prove and maintain as the Court shall think good; Again, the same A. appeals E. of this, that at the same place, the same year, day and h●wer, E. ●ame with C. feloniously, and against the King's peace, and held B. till C. killed him, etc. If he which is appealed, de facto, were taken upon the fact▪ with his knife or sword all bloody, and this verified by Testimony of good and lawful men▪ non erit v●terius ●●quiren●●●. Thus Bracton.  
Now let us ●●● how she shall be understood, there is no doubt, but a woman may have other Appeals, besides th●se tw●, of rape▪ or death of her husband.  
11. Hen. 4. fol. 9●. An Appeal of Robbery was brought by a woman, the defendant said, the Appellant was his 〈◊〉, judgement, si el ●erra respondue, and to the robbery, non culpable. So that he pleaded to the felony, and the ●●●fty admitted a good plea▪ And a woman may have an appeal of may hem. 13. Hen. 7. 14. Hussey saith, it was demanded of him for a doubtful question, where parish Clarke ●ell out with another man, and threw the Church ●●re keys at him with such force, that they ●●ang out at the Chamber window, and put out a woman's eye, whether it were may h●● or no? And for the evil intent of the Clerk, it was deemed may h●●▪ but consideration ought to be had in a●●e●●●ng ●a●●ages. But true it is a woman shall not have appeal of any man's death, save only of her husbands, therefore if a man be killed that hath neither wi●●, nor son, but his next heir is either daughter, sister or female Cos●●, albeit he hath many other ●●●red, E●si●s, or V●e●es, the pro●●●ity of a female he●●e, ●●●es away the Appeal quite and clean; for of ●●● Ancestors death, if he had no wife, the Appeal belongs over to the heir, who here cannot have it, because it is a female▪ for Mag. Char. doth directly deny it. ●ap. 34. N●llus c●pictu● a●● imprisonet●●, propter apellum ●eminae de mo●●e a●●●●●u● quam viri sui. And upon such an Appeal brought by an heir female, the Defendants cannot be arraigned at the King's suit, because the Appeal was never good. Neither shall the Defendants recover damages, because (as Shared maketh the reaso●) he may be arraigned and condemned otherwise ad Sectam regis, for any thing yet done to the Contrary. 27▪ A●●. p. 25.  
A daughter or sister, etc. can have none Appeals of a fathers or brother's death, no more can a mother have▪ Appeal of the death of her son. If a woman have issue a son, which is murdered, and there is no heir to him on the father's side, by Billing chief justice, Needham, and Choke, none uncle nor other kinsman which must co●●●y as heir by the mother, can have the Appeal, because the Statute, before remembered, excludeth her, from wh●m they must derive: Bria●, Littleton, N●ale, and the chief Baron are contra. For, said they, the Uncle on the ●●ther side may have Appeal of the Nephew's death, which the father from whom the Uncle must convey, 〈◊〉 have any more than the mother. But Billing tells them▪ the Cases are nothing like, for a father may have an Appeal of his Ancestors death; but so cannot another i● any case; the bridge therefore being once broken, ●d e●●▪ the mean of conveyance stopped and disabled, the Appeal is altogether, and for ever taken away. ●7. E●●▪ 4▪ fol. 1. And so is it adjudged likewise ●0. Hen. 6. fol. ●●▪ where there was grandfather, mother and son, the mother died, the grandfather was murdered, the s●nn● might not have Appeal, because he conveyed by a woman, scilicet, by his mother, and▪ there it was▪ stood ●●●▪ that an Appeal shall never descend, but he to whom it first falleth, shall have it, and if he die, the A●tion d●●●●▪ It is a good case well argued in the book at large. See the book of 11. Hen. 4. 1●. It appears that in Appeal o● Rape by the husband ne unques accouple, etc. nest p●●● for the husband in Act or possession shall have that w●er● the marriage is not void, and yet that plea is good in Appeal by the wife of the death of her husband, for there she shall not revenge his death to whom she was not lawfully married, and see 50. E. 3. 15. Br●●●on agrees with Bracton qui null ●ee, puisseare appeller de felony, de mort ●orsque de mort son baron, ●u● deins ●●● & l●●our enter ses bra●. And it is true, that by the ancient Law neither woman or other person might have appeal of death, unless the appellant ●●●● pr●s●n●, or did see the dead man, at the ti●● when he was slain. But the Law is changed by ●lo●. cap. 9 which willeth that no Writ henceforth shall go out of Cha●●●ry, for the d●●●● of man▪ to inquire whether a man killed another, by ●●●aduenture, or in his own defence, or otherwise feloniously, but he shall remain in prison, till the coming of justice's errants, or gai●● delivery, and before them, put himself to the country, for trial of good and evil. And if it ●e ●ound by the country, that, what he did, was ●● his own defence, or by ●●sad●enture, the I●●●●●es ●●●ll d●e the King to wit, and th● King do the party grace, ●●luy plei●●. Also it is provided, that no Appeal shall be ●●●ted si le g●●r men● come 〈◊〉 a●●e●▪ ●u● if the Appeal ou● show t●● d●●d, the y●●re, the day, and ●o●●●, ●●●●mps l●●●y, the Town where, and the weapon wherewith the slaughter was committed, ●he appeal shall stand go●d, and ●●●●e appeal shall be abated for want of ●resh ●u●●, i● it be per●●ed within a y●●re and a day after the ●●●t co●●i●●●d. Before this Statute the Appellant always 〈◊〉 o●●●s proper view, ●ow ●● needs not. The 〈◊〉 ●hat ●●●ll ●●ing ●his appeal, 〈◊〉 be wi●e to th●●a●●● 〈◊〉 ●● 〈◊〉 〈◊〉, ●or ●●en● accouple in loyal matrimony is a good plea, in bar o● her appeal, as before is said. But this plea is not so peremptory, but that after the Bishop hath ●●● 〈◊〉 ●●y●●ment ●cco●●●e, etc. the Defendant may afterward ●●●ad none culpable, and this in 〈◊〉 in vit●●, but he cannot ●●●ad on to the felony immediately upon the ●●rst plea. Therefore here is requisite two trials, as it seemeth 50. ●●. ●●●. Idem 27. 〈◊〉 p. ●.  
Furthermore it is requist●e, that she be sole and unmarried, married that made this Appeal for if she marry again 〈…〉 her Appeal is gone, though the new married husband be dead within the year and day after his death that was slain. Yea, and not only a widow which hath an Appeal▪ hangging abateth her Appeal, and loseth it for ever, by new marriage, but also if after judgement and before execution▪ she take an husband, she loseth execution of the judgement, 11. H. 4. fol. 48▪ By Brian and Hussey 2● F. 4▪ fol. 72, 72. If a woman pursue her Appeal till the Defendant be outlawed, and then marry, she may sue execution. And so did Skr●●n● hold the Law to be in the 〈…〉, ●. ●. ●. ●ut Gaseo●g●e▪ Chief justice denies it. And ●▪ or 2. Mariae, Brooke Appeal 100 the justice of the King's Bench did all agree, that a widow loseth her Appeal, by taking of a second husband. Et idem videtu●, (saith Brooke) de executione; for the reason wherefo●● this Action is given to a widow, is not as Glanuell makes it, Quia una caro est v 〈…〉 & uxor. For then the Baron might have an Appeal D● morte v●oris, which is never granted, but her heir shall have it▪ And if the wi●● kill the husband, his heir shall have the Appeal. And I hear●, saith Stanford, Plee● de Coron▪ fol. 5●▪ it hath been adjudged, If she King pardon the woman all manner of treasons, the heirs Appeal is gone. But the true reason why a woman hath the Appeal De morte vi●i▪ is because by his death, she is thought less able to live and maintain herself▪ so said the judges in Q 〈…〉 ne Ma●●●s days, and that therefore when she taketh another husband, cc●●ante causa, ce●●at effectus, and her Appeal is gone, like as a widows Quarentine is determined, when she is once remarried. But where a woman continueth sole, she 〈…〉 d ●●ne other shall have this Action, either in her life or after, though she die within the year, and before Appeals commenced, 20. H. 6. 42.  
It is not requisite that the Appellant here ●e dowable of his possessions which is slain, for though a woman ●lope from her husband, and never be reconciled▪ yet 〈…〉 may have Appeal of his death, per I●glibie, 50. ●. ●. 15. Sir Edw. Coke▪ Comment vp●n Littleton, fol. 3●▪ saith. That if the Baron be attainted of treason, etc. his wife shall not be endowed, and yet if any do kill him, the wife shall have an Appeal. So likewise agrees the Book of 35. H. 6 58. wheres, in an Appeal de mor●● viri the Defendant said, the Baron w●s indicted, arraigned, for●d culpable, and judgement to be hanged etc. and to the felony nient culpable: It was agreed, that there is no such corruption betwixt a man and his wife, by Attainder, as is the corruption of blood betwixt a man and his heir, for the heir of a man attainted shall not have an Appe 〈…〉 e, and she is his wife notwithstanding the Attainder, but the other is not heir. And per Markham, If an Appeal be not good, the Defendant shall not be arraigned at the King's suit, when the Plaintiff is at non suit: Also in this case it was delivered, that the Marshal of the King's Bench, the Viscount, or such Officer, that is commanded to execute a man condemned, is a Felon, if he execute him in other manner than he is commanded, as if he cuts off his head where the judgement was he should be hanged. But if he do execution according to the judgement, than he may justify in an Appeal, and needs not plead non culpable: Yet in Appeal against a judge, for adjudging a man to death, he cannot justify, but must needs plead none culpable, and give the matter in evidence, Simile 27. assi. p. 41. where, in Appeal de morte viri, the Desendant pleaded utlagary de felony. judgement si, etc. Shared said it was no more lawful to kill an Outlaw, than to kill another man, and therefore the Defendant pleaded none culpable. Ludd said, that one was excused of the death of the Baron of Woodhall by the outlawry, etc.  
It appears now what wife, and of what husbands death she may have an Appeal. Stanford in his third Book, cap. 15. notes, that in ancient time there were certain presumptions so vehement▪ that they were a condemnation of the party without other trial, they ●oe not so at this day, but every man shall have his trial, how great soever the presumption were. But the vehemency of presumption may oust battle. For 6. H. 3. The Coroner and others testified, that the Defendant was taken cum cultello sanguinolento, etc. ideo consideratum est. quod se non defendat per duellum.   

SECT. II. How a woman shall sue this Appeal.  
IT seems that all Appeals aught to be sued in proper person, and not by Attorney, as Appeal of Mayhem must be in proper person, 21. E. 4. 7●, & 73. A woman which was grossment enseint, sued this Appeal, and the Defendant was attainted, the woman's appearance was recorded for the whole term, and yet by the better opinion, she might not pray execution, by her Council, but aught to come in proper person; therefore one of the judges did ride to Islington to her, to see if she were alive, and desired execution, which she required, and the Defendant had judgement. An Appeal is called but a suit of revenge, and therefore is not much favoured, Dver 5. M. 152. If one of the Defendants in an Appeal makes default, the Court cannot proceed, but otherwise in an In●itement, as it is there said. This by Common. La; If any Liege subject be slain by another subject in any foreign Realm, the wife of him which was slain, may have an Appeal in England, before the Constable and Martial, etc. And this is by Statute, 1. Hen. 4. cap. ●4▪ Stanford, fol. 65. Feme auer● appeals de mort viri tue in esco●e per comen L●y comme semble▪ 13. H. 4. Brook 153. By the said Statute it is also ordained, that none Appeals from henceforth be pursued in Parliament. Likewise I find by Statute, v●z. 15. R. 3. cap. 2. That of the death of a man, an● of Mayhem done in great ships, being and hover in the stream of great rivers, only beneath the bridges of the same, nigh to the sea, and in none other places of the same rivers, the Admiral shall have conusance, etc. saving to the King all manner of forfeitures, etc.   

SECT. III. The Statute 3. H. 7. cap. 1.  
But for the ordinary course of suing of Appeals, 3. H. 7. cap. 1. layeth the best foundation: This Statute reciteth the Law of the land to be, that if any man been slain in the day, and the Felon not taken, the Township shall be amerced. If any man be wounded, and in peril of death, the offender should be arrested, and put in surety, till knowledge be had, whether he which is hurt will live or no. And where any man is found dead, the Coroner upon view of the body, should inquire who were the murderers, their abettors, consenters and who were present at the murder committed, whether man or woman, and he ought to enrol, and certify their names. The use had been also (as saith the Statute) that within a day and years after any death or murder, the felony should not been determined at the King's suit, and that for saving of the party's suit, or else the party was agreed with, by which it is the more chargeable, and thereby murders were increased: and also, he that will sue in Appeal, must sue in proper person. The constitution of this Law therefore is, that every Coroner henceforth do his office, and that if any man be slain or murdered, the slayers, murderers, their abettors, maintainers, and comforters should been indicted, arraigned, etc. at the King's suit, within the year after the felony or murder done, without tarrying a year and a day for any Appeal. And if any, either principal or accessary thus arraigned, been acquitted at the King's suit with●n the year and day, the justices before whom he is acquit, shall not suffer him to go at large, but either remit him again to prison, or let him to bail, till the year and day be passed: And the wife or next heir of the party slain, may take their Appeal within the year and day, after the felony or murder done, (if the benefit of Clergy be not yet had) with all advantages that acquittal or Attainder at the King's suit notwithstanding. Furthermore, the wise or heir of the person slain or murdered, may commence their Appeal in proper person, any time within a year after the felony done, before the Sheriffs and Coroners, etc. or before the King in his Bench, or justices of Gaol delivery: And the Appellant in any Appeals of murder, of death of man, where battle by the course of Common Law lieth not, may make Attorney, and appear by the same in the said Appeals, after they been commenced to the end of the suit, and execution of the same. And if the murderer do escape untaken, the Township, etc. shall be amerced, and the Coroners shall deliver their inquisition afore the justices of the n●xt Gaol delivery, which justices shall proceed against the murderer, if they be in Gaol, or else the said justices shall put the Inquisition before the King in his Bench. The Statute also giveth the Coroner thirteen shillings and four pence, for taking inquisition super v●s●m corporis.  
By this Statute and the other of Gloc. cap. 9 a woman perceives that within a year and a day, she cometh timely enough with her Appeal. Stanford notes, that (though the Law have been taken otherwise) if he which is rob make fresh suit, albeit he commence not his Appeal, two or three years after the robbery, yet his Appeal is good: for if the party rob have his endeavour to take the Felon, he may commence his Appeal at any time, at the justice's discretion. For Gloc. if it be rightly understood, seemeth to speak only of Appeals de mort. And where it saith, Deins l'an & iour apres le fait, this (le fait) is understood the felony, whereupon Appeal must commence. Therefore if a man be strucken and wounded on one day, and dye within the year another day, the Appeal must be begun within a year and a day after the wound given: And if a year after a murder committed, one become accessary, there lieth an Appeal against this accessary, as it seemeth within the year and day after he became a Felon. And the Appellant is not confined to a year and a day next after the murder committed, Stamford fol. 63. a.  
But in Heydons case Sir Edw. Coke 4. Rep. fol. 42. Wray Chief justice said, that the common experience of the King's Bench was, and so was the Law without question, that the year for the bringing of the Appeal, shall be accounted from the death, and not from the stroke, against Stamfords' opinion. And the rest of the judges there said, that there is no felony until the death. And in the 7. Rep. fol. 30. it is said, If the Appeal be delivered to the Sheriff within the year, and before its return, or that the Sheriff hath done nothing, and the King dieth, and the year ends before the return, in that case the Plaintiff shall have a Certlorare to the Sheriff, returnable in the King's Bench, and upon that the Plaintiff shall have Reattachment, etc. and that for necessity, etc. otherwise she should lose her Writ lawfully purchased.   

SECT. iv Within what County an Appeal must be brought.  
REgularly this Appeal aught to be brought into the County, where the homicide or murder was committed. But admitting that a man he wounded in one County, and go into another and there dye, where shall the appeal commence, by Common Law? Titulo coronae. In Fitzherbert 59 it appears, that it ●as commenced in the County where the wound was given: but both Counties joined in trial, as well where the wound was, as the death. And in the same title Placito 60. in such case the Appellant commenced in the County where the party died; and trial by ambideux Counties. By these books it should seem, that at Common Law the Appellant might choose his County, but now the Statute, 2, & 3. E. 6. is plain, which ordaineth, whereas jurors in one County could not take knowledge of things done in another by the Common Law. That in cases, ut supra, an Indictment found by jurors of the County where the death happeneth, whether before the Coroner, supra visum corpo●s or before justices of Peace, or other justices▪ or Commissioners, which have authority to inquire of such offences, shall be as good, as if the stroke, wound or poisoning had been in the same County, where the party shall die, etc. And the justices of Gaol delivery, or if Dyer and Terminer, a● the same County where such Indictment shall be taken, And the justices of the King's Bench (after the Indictment removed before them) may proceed as if the stroke, or poisoning, and the death had been all in one County. And the party to whom Appeal is given, may commence, take, and pursue in the same County, where the party feloniously stricken or poisoned shall dye, against the principals, or accessaries, in whatsoever place or County the same accessaries shall be guilty. And the justices before whom the Appeal shall be commenced, sued, and taken, within the year and day after the slaughter committed, shall proceed against all such accessaries in the County where the Appeal shall be so taken in like manner and form, as if the offence of such accessary had been done and committed in the same County, where such Appeal shall be taken, as well by trial of twelve men of the same County where●● such Appeal is so sued, upon plea of not guilty, or otherwise. And further it is ordained, that where murder, ●● any manner of felony shall be committed in one County, and another person or more shall become accessary, or accessories in another County; an Indictment found or taken by justices of Peace, or other justices or Commissioners, to inquire of felonies, in the County where such offence of accessories is committed or done, shall been as good, as if the principal offence had bééne committed and done in the same County, wherein the Indictment of accessary is found. The Statute appointed further, how the Custos rotulorum, or Keeper of the Records, of the principals attainder, or aquitall shall certify, etc.  
Before this Statute, if one man had committed murder in one County, and another had been accessary in another County, there was no remedy against this Accessary by the Common Law, Stanford fol. 63. yet Kinuet said, 43. E. 3. fol. 18▪ If a man were slain in one part of the Town, and another man received the Manqueller in another part of the Town, which is in another County, Appeal might be sued against them both in the Courty where the kill was committed, and that so it had been adjudged.   

SECT. V Before whom appeal shall be sued.  
By the afore recited Statute it appears before whom appeal must be sued: but Stanford sets it out yet more largely, Libro 2. cap. 14. The party entitled to an appeal, is at election to take it by Writ or by Bill. If he take it by Bill, he must sue all prochevie County maintenant, as soon as the felony is committed, and by Britton fol. 5. the Plaintiff, must stude two sufficient pledges, liable to the Visco●●●● distress, to pursue his appeal, according to the La● of the land, and the Coroner shall enter the appeal, and the ●ame of the pledges. Then it shall be commanded to a Bayley or sergeant du pais, wherein the felony was done, that he have the bodies of the appellées at the ne●t County, to make answer, etc. If the sergeant testify at the next County, that ●ee cannot find them, it shall be awarded, that the principals which are appea●●d▪ d ● fait, be solemnly demanded to come to the King's pea●● and due trial of the felony, whereof they be appealed, and so they shallbe called from County to County, until they appear, or until they be outlawed. So saith Br●●ton, and with him accords 22. Assis. 97. 98. which seems a marvellous matter to S●a●●ord, viz. that any Viscount▪ or Coroner should award process of outlawry in such a case. Because, Magna Charra. 17. (written long time before either Br●tton, or the ●●ok of Assizes) is, that no Viscount, Constable, Escheator, Coroner▪ or other the King's Officers may hold any pleas of the Crown. Therefore many do hold opinion, that 〈◊〉 appeal is comme●ced, before the Sheriff or Coroner▪ although they may awa●● process till exigent yet the exigent itself t●ey cannot award, neither if he appear, can they put him which is appealed to answer, but only commit him to prison, because of the Statute. An● when appeal is commenced before the Viscount or Coroner, it may be removed into the King's Bench by a Cer●iorari, out of either the Chancery or King's Bench, and this Cer●iora●● shall be directed to the Viscount and Coroners, as appears by the Register fol. 76. So that by the register, and by 〈◊〉▪ c●p●●●. whi●● willeth that Coroners shall attach and represent the pleas of the Crown, and ●h●● the Viscount shall have Counterroules with them, as well of appeals, as of inquest of Attachment, or of other things which belongs to that office, etc. as also by the b●●ke▪ ●●● 〈◊〉. 15. (where ● C●r●●orari directed to the Viscount only, for remove of a● Appeal w●s h●ld●n vo●d) and so it is evident, that an appeals is of record a● well before the Viscount as before the Coroner, and ●● did the makers of the ●aw▪ 3. Hen. 7● cap▪ ●. take it, ●● is to 〈◊〉 ●●ene by the Letter.  
Also appeal by Bill may be begun before justices of Goal delivery, but then the appellee must be in prison in t●e same Goal, etc. at time of the appeal so taken against him, or at the least one of the Appealleds must be in prison, etc. else the appeal ought not to be taken, and if it be it is not good, 13. H. 4. ●o. 12. 9 H. 4. ●o. 2.  
But an Approver may appeal them which be at large by the Statute de Appell●tis. Note that, when appeal is commenced before justices of Goal delivery, against diverse, whereof one only is prisoner before them, the appeal must be remoue●, into the King's Bench, and from thence process shall go against such as are at large. And if justices of Goal delivery have power to receive appeals by Bill, the justices of the King's Bench may do it much more, for as Scot said 17▪ E. 13. fol. 13. they are the chief Coroners of the land.  
If a man be in prison for felony in the King's Bench, or before justices of Goal delivery, and afterward he is let to Bail, appeal by Bill may be against him notwithstanding: for he is prisoner sti●l when he goeth by ●ai●ement. 21▪ Hen. 7. ●o. 33. 32. Hon. 7. ●4▪ & ●●●ulo Maineprise in Fi●z ●erb●rt, for there Shar●● said, that they which took him to bail were his Gardenis, and should be charged upon his escape. And some said, that they might been hanged for him. 33. E. 3. ma●●epris●. But p●a. 1●. in the ●a●●e titil 〈◊〉 ●aith, semble q̄●●●. for the entry is 〈◊〉▪ ● 〈◊〉 〈◊〉. And by the book 〈◊〉 3. Ed●. ●. aforesaid, the entry is precious in bali●um. And where a Prisoner is delivered unto two in bail, they may imprison him if they will, ꝑ W●lby. 16. E. 3. And 21. Hen. 7▪ supra▪ he which is let to ●aile shall find surety to answer all men.  
But a man cannot have appeal against him which goeth at large by maineprise▪ 9▪ ●. 4. fol. ●▪ & 29. Hen. 6. 37. for he is not in ward. There is some difference between bail and maineprise, but learn how it stands, an●●●●ther appeal may be consciences before Iusti●●●▪ of the Peace or no, quaere, for their Commission is to hear and determine felonies. Also, quaere, if a man be strooken in France, and dieth in England▪ Whether appeal lieth thereof (if the parties were not in the King's service in France,) before the Constable and Martial, etc. by the Statute of 1. H. 4. ca 14.   

SECT. VI Of Appeal by Writ.  
HOw an appeal shall be begun by Writ, Stamford saith no more thereof, but only chescun sceit comment a ceo purchaser: And as his knowledge made him presume that other men were not ignorant of it, som● ignorance makes me presume, that many do not know it. Bracton ●. 3. cap. 30. saith, that sometime it happeneth by negligence of the Viscount and Coroner, that the appeals must be attached by the Kings Writ in hac forma: Rex vicecomiti, etc. si A. ●● cerit te securum de clamore suo. prosequendo, tunc attachiari facias B. per corpus suum, qd● sit coram justiciariis nostris ad primam assis●m, cum in parts illa● vene●int: responsurus eidem A. de morte L. mariti, etc. unde eum appellat, etc.  
He sets down likewise the Writ for removing of appeals begun, and already attached: to fetch them into the King's Bench with a pone per vadium saluos p●●gios, for the Defendant to be there ad respondendum praedict' le plaintiff de praedicto Appello. But if this Writ be granted at the instance of the Defendant, than it is with a summon as per bonos summonitores; to the Appellant add▪ sequendum appellum, etc. and those words per vadium & plegios are omitted. After much like matter not unworthy to be observed, he comes to the Writ when appeal is begun before the King in his Bench immediately; Rex vicecomiti, etc. s●l●tem. si A. fec●rit te securum de clamore suo prosequendo, pone per vadium & faluos pleg ios. B. & C. qd' sint coram etc. tali die ad responden●um eidem A. de morte. D patris vel alterius antecessoris, unde ●os appellat. And at the ●●y, he saith, they which are attached ●ay essoine themselves, vnle●●e they be appealed for death of man, or for a more heinous crime. West. 2. cap. 13. is against the appellée, non iaceat de caetero appellato●● in appello de mor●e hominis essoinum, in quacunque curia appellum ●uerit terminand u●; Now whether Bractons' form of the Original pone per vadium & saluos plegios, be good or no, when any appeal of murder cometh in the King's Bench, learn, for the book of Entries is praeceptum fuit vicecomiti quod si A. secerit cum securum de clamo●e suo prosequendo: atta●hiaret B. per corus, etc.   

SECT. VII. diverse appeals for one felony is but in few Cases.  
BY the ancient Law one might have diverse appeals, against the principal, one▪ and against the accessary, another, as appears by the old Writers. And 28. E. 3. fol. 90. But since that time the Law hath been changed, so that unless in a few special cases a man can have but one appeal, which must comprehend both principals and ace●s●aries. And therefore 9 Her. 4. fol. 1●. in appea●e against two, whereof the one was present, and the other appeared not, the Plaintiff declared against the●●oth, and the Law which compelleth to declare at one time against all the appeals, compelleth to make but one appeal. The case was, 47. E. 3. that a woman brought an appeal against one as principal, which was attainted and hanged at her suit▪ and then she brought an appeal against two others of the same felony, against one, as principal, and against another, as accessary, and awarded que el prendrariens person brief.  
And so should it have been if the first appealée had been acquit, or if the appellant had been at nonsuit after appearance. 47. E. 3. to 18. and see more of this matter St●mford li▪ 2. cap. 15.   

SECT. VIII. The Declaration in Appeal.  
THe Count or Declaration in Appeal of murder, according to the ancient form was thus. A. appellat. B. de morte. C. fratris sui, etc. quod cum ipse A. & C. essent in pace Dei & Domini regis apud S. etc. venit idem B. cum talib. etc. & nequiter & in felonia, in assultu premeditato, contra pacem domini regis fecit idem B. praedict' fratri suo & unam plagam mortalem in capite cum quodam gladio, vel quovis alio genere, armorum multorum, etc. ut obierit infra triduum de plaga illa. Et quod hoc fecit nequiter & in felonia, & contra pacem Domini regis, offered se dirationare versus ●um per corpus suum, sicut ille qui praesens ●uit & hoc vidit, sicut curia Domini regis consideraverit, Et si de eo male contigerit per corpus fratris sui, vel alterius parentis, etc. Et sic plures possunt appellare unum de uno & eodem facto, siloqui possunt, de visus sui testimonio. So that Bracton showeth, if one of the appellants had died, or made default, the other might take the appeal, and be admitted ad dirationandum. But if the Appealee had defended himself against one, or been acquit by judgement; he was freed from them all. The reason why no man was admitted to bring appeal de morte, unless he could speak of his own eye witness, was (saith Stanford) the reasonableness, which seemed to be in it, that a man should not combat for the truth, when the Accuser was not able to verify it, but by relation from others. And therefore in a Writ of right, until West. 1. cap 40. had changed the Law, the Demandants Champion in his oath, did ever affirm, that he or his ●ather, had seen the seisin of his Lord or Master, so that his own sight, or his fathers, caused him to combat. And as it seems battle did not lie in any appeal de morte in Bracton▪ time, except the wound were given with some sword, dagger, or such like, as he calls 〈◊〉 mos●●●. Also his form speaketh nothing of the length, breadth or deepness of the wound, as the Declarations do at this day; I will leave Stamfords' precedent, and take one or two out of the book of Entries. There ●ol. 43. Katherine johnson▪ late wife of Robert johnson, comes in person and doth instantly appeal, john Bishop late of Harling in the County Norff. Ye●man, and W. F. late of the same Town and County, Yeoman, and R. W. late of H. in the same County, Yeoman, of the death of the aforesaid Robert johnson late her husband. videlicer, of that, that whereas the said Robert johnson was in God's peace and the Kings, at Harling aforesaid, upon Monday next before the Feast of Saint Matthew the Apostle, in the second year of eur late King H. 7. about two of the clock after noon, of the same day, john Bishop, and W. F. there came feloniously, and as Felons of our Lord the King that now is, of their premeditate assault, against our Lord the King's peace, Crown and dignity, in the day, year, hour, place, and County aforesaid, and the aforesaid john Bishop with a sharp pointed weapon called a dagger of twelve price, which he had and ●eld there in his right hand, did feloniously strike the aforesaid Robert johnson upon his breast, and into the hart, giving to the same Robert johnson then and there, a mortal wound four inches deep, of the which mortal wound, the said Robert johnson, did forthwith then dye, at Harling aforesaid. And so the aforesaid john Bishop, did then feloniously kill and murder the aforesaid Robert johnson, at Harling aforesaid. And W. F. the same monday, in the same year, at the same town of Harling, was present, feloniously procuring, consenting and keeping the same john Bishop, to do the felony and murder, in form aforesaid done and committed. And after the felony and murder aforesaid committed by the aforenamed john Bishop, the same W. F. and R. W. the same Monday in the same second year of our Lord the King, at Harling in the County aforesaid, did feloniously receive the said john Bishop, harbour, comfort, and maintain him, knowing that he the said john, had done the felony and murder in form aforesaid, and as soon as the same felons had committed the said murder and felony, they fled, and the said Katherine did fresly follow them from Town to Town, into four of the next Towns, etc. And if the Felons will deny the felony abovesaid, in form aforesaid alleged against them, Katherine the Appellant, is ready to prove it against them, as the Court shall think meet.  
Again fol. 51. is another Declaration. Thus, Elizabeth, etc. in person doth instantly appeal the aforesaid john Clerk of this: That whereas the aforesaid john Browne was in peace of God and our Lord the King that now is, at W. in the City of N. in a certain place called Carrow, the twelft day of january, etc. about ten of the clock aforenoone; There came the aforesaid john Clerk which now appeareth, and the aforesaid William Clerk which appeareth not, and whom the aforesaid Elizabeth would likewise appeal, of the death of her said husband, if he were present; And they two did feloniously, and as felons, of our Lord the King that now is, in the day, yeer●, hour, and City aforesaid, give to the aforesaid john Browne a certain drink, which they, the said john Clerk and William Clerk, had mixed and compounded with powders, and intoxicative spices, viz. Ratsbane, and others, and they did feloniously incite and provoke the said john Browne, to drink up the said drink so intoxicate, which said john Browne having good trust & confidence in them, and being utterly ignorant of the intoxication aforesaid, did then and there, and at their persuasion, drink up the said drink, and therewith was then and there, by the said john and William feloniously poisoned: And afterward the said john Browne at Billingford in the County of Norff. the 20. day of january next ensuing in the same year, being so poisoned of the same poison, died, and so the aforesaid john Clerk and William Clerk, feloniously, and as felons of the King, at Billingford aforesaid, in the County aforesaid, the 20. of january, the aforesaid john Browne did kill and murder, etc. And if john Clerk, which now appeareth, denyeth the felony aforesaid of death and murder laid against him, the aforesaid Elizabeth is ready to prove it against him, as the Court shall think good.  
It might be collected out of these precedents without any more help, that a woman may maintain her appeal, without expressing any arma moluta, as the fashion was: Bracton saith, the Appellant needs not set down the hour wherein the party was stain, but the Statute of Gloc. makes it material, yet Stanford acknowledgeth, that the Declaration which was at Common Law, without the hour may be used at this day, because Gloc. is but affirmative and prohibits nothing. But the place where, etc. must needs be set down certainly in the count, for so commandeth the Statute, therefore in Appeal against diverse men, naming them to be of sundry places and Towns, if it be said afterward, at the place aforesaid, this is not good, there are diverse other forms of Declarations in this Appeal: As 44 E. 3. fol. 33. in Appeal against three as principals, the Appellant declared that one of them, such a day, and hour, wounded her husband to the brain, whereof he died, and at the same hour another, with a dagger strooke him to the hart, so that if he had not died at the first wound, he must have died of the second, and the third wounded him in another place, etc. counting severally against them, that every one gave him a mortal stroke, according to the fact. For so willeth the Statue que il counta le fact, and this fact must be declared as it was done, or as the Law doth expound it to b●e done▪ Therefore if two be present at the death of a man, and one of them striketh never a stroke, but only commands the other to kill, etc. in the appeal, declaration must be, that they both did wound him mortally▪ ●●. E. 4. fol. 71▪ And there it is said, that where the Count goeth, that they all did strick, etc. the striking is not traversable. So is it in Appeal of Rape, where one doth the Rape, and the other being present doth abet him, for there the Count shall go that both ravished her, for so the Law saith. In the same book 21. E. 4. in appeal de mort against two, whereof but one appeared; the Plaintiff declared against him which appeared, and would have counted against them which made default, that they likewise wounded, etc. and the justices ●ade him speak, but only of him which appeared▪ Ga●coigne was of contrary opinion 9 Hen. 4. ●o. 2. and with Gaseoigne agree very many precedents. But see Waits Case Sir Edward Coke 4. Rep. fol. 47. there ought to be but one Appeal against all the principle● and accessaries, except where there be accessaries after the Appeal brought, for there there may be another appeal brought against them, for that they could not be named in the first Writ, and if an Appeal be brought against divers, and all but one make default, yet the Plaintiff ought to count against all, saith that book.   

SECT. VIIII. Defence in Appeal.  
THe Defence in Appeal, is that the Defendant came and defended all felonies, awaits, assaults, forethinking, and all that is against the King's peace, Crown, and dignity, and pleaded non culpable. E● ponit se super patriam de bono & malo. This is the general plea, etc.   

SECT. X. Pleas to the Writ.  
AGainst the Writ to abate that, may be pleaded false Latin, or want of form▪ And note that none may have more writs of Appeal than one of one felony hanging at once. 7. Hen. 7. fol. 6. Yet where there are two such Writs hanging, they must not be abated, but by notifying to the Court, that they be both pursued by the Plaintiff, and that must appear by some ●t of his. As that he hath appeared and declared upon them both. For though one Writ were delivered to the Viscount of Record to serve it, this might be as well the Act of a stranger as of the Plaintiff, and therefore no conclusion towards him, but that he may say, it was not at his suit.  
So where an Appeal is commenced in the County by bill, removed to a Court of Record, and there hanging, if now the Plaintiff pursue another appeal of the same felony by writ, the appeal by writ abateth: But where the Appeal by brief is purchased, before the Appeal by bill removed out of the County, there the Court ought to send, for the Appeal in the County without abating the Appeal● which is commenced by Writ, for the Appeal by Writ is more worth than that Appeal commenced▪ i● the County, which is not but a 〈◊〉▪ until it be removed in an Appeal against two; ●●● may plead that his companion named with him in the Writ died at such a place before the Writ purchased; or that there was no such person in re●um natura, when the Writ was purchased, as is named with him, for there is no body else to plead these pleas, but only he which appeareth: But he cannot plead, that the party named with him in the Writ is entered into religion, or is a married woman, etc. for there is another party to plead so, but in the other cases there is none. And in these cases of appeals against more than one, an appeal abated towards one is abated towards all. In appeal where misnomer of the plaintiff is pleaded, if it be confessed, the Plaintiff shall be examined whether it were by couin●or no● The cas● is 9 Hen. 5. fol. 1. A woman sued appeal by name of Cicely, B. whereas her name was▪ johan, and after the defendants imparlance ●he came and said▪ her name was johan, she was examined▪ and it was found to be done sans covin. ꝑ que▪ el ala sa●s fair fin●, quere ●● el ●●●ra novel appeal ꝑ nosm●. johan Brooke Appeal 38.  
It seemeth in appeals the Defendant may ha●●e 1, 2, 3, or 4. or more pleas to the Writ, as well as he which is Tenant in an Assize may; But than he must take good heed, that one be not Contrary to another. Bracton, Et in omnibus appellis maioribus vel minoribus non potest appellans variare vel ●ppellum suum in aliquo mutare, adiicere tamen potest interdum, ut si prius non dixerit, quibus armis, etc. potest nominare ●●ma, scilicet gladium vel b●sacutum, Et potest, qui actionem ci●●●iter 〈◊〉 mutare eam, & agere criminaliter & sic accrescent & appellum augere, ●ed non contra. In the book of Entryes fol. 47. the Defendants came in proper person, & defenderunt vi●● & iniuriam, quando etc. om●em felloniam & quicquid etc. and they said that in the said County of W. there were two Towns called M. one old M. and another new M. absque▪ hoc, that in the County, there was any Town, Villadge, Hamlet, or place, known and named by the name of M. only, without addition, & hoc p●rat● sunt verificare, unde petunt iudicium de breve illo & petunt inde allocationem & quoad feloniam praedictam seperatim dicunt quod ipsi in nullo sunt inde culpabil●s, & inde de bono & malo ponunt se super patriam. It ●●● found non habebatur aliqua villa, etc. named M. 〈◊〉. Ideo consideratum, ut nihil capiat per bre. and that the Defendants ●ant inde sine die, and the Plaintiff capiatur. 9 H. 7. Ro. 33.   

SECT. XI. Pleas in Bar of the Action.  
IN Bar of the Action may be pleaded, that the woman which bringeth the Appeal, etc. hath taken another husband, or that she was never accoupled in loyal matrimony, to him of whose death she brings the Appeal▪ And if it be brought by the heir, it is a good plea in Bar, to say, the wife of him which is dead, is yet alive, and the Action given to her.  
In the book of Entries fol. 50. Praedicta Alicia dicit quod ●●mpore mortis praedicti Thomae ●adem Alicia fuit v●o● praedicti Thomae, in quo casu, ●idem▪ Aliciae, & non praedicto Nicholas, de ●ure pertinet h●bere, & prosequi appellum, etc. Et v●terius ●adem defendens dicit, quod praedictus Nichola●s appellum praedictum versus ●andem Aliciam inter Alios per covinam ea intention, ad eam de prosecutione appellinus' de morte, praedicti Thomae excludendam impetravit, que oia & singula, etc. & petit inde allocationem etc. & quoad felonia, non culpabilis. Et inde, de bono & malo ponit se super patriam. 30. H. 6.  
Also it is a good plea in Bar to say, that the Plaintiff hath succeased her time, in that she hath not brought her Appeal within the year and day after his death, which is supposed slain; or to say, that he of whose death the Appeal is brought, is yet alive at such a place, and to bring him in the Court, that he may be viewed and known; see thereof 43. Assis. pa. 26. in Appeal de morte viri, the Defendant pleaded le Baron in vi●, etc. and the Plaintiff contra● day was given to bring in their proofs, which, when they came, were found, one both sides defective▪ The Defendant therefore, for his safest way pleaded ●on culpabilis vide●ur ergo, that the first issue if it had been found against him, should have been peremptacy, and that he may waive it before trial, in favorem vitae. And note, that if a man plead not guilty, and pute himself upon the jury in an Indictment of felony, and he may confess the fact before verdict and pray a coroner, otherwise in an Appeal as it was holden 11. Hen. 7. 5.  
8. Hen. 4. fol. 18. In Appeal de morte viri, and at the day the Baron was brought into Court examined 〈◊〉 known: and the woman for her false Appeal was committed to prison, till she paid a fine. The general bars against all Appeals, of which some may be objected against the Plaintiff here, are those, That the Plaintiff is attainted of felony or treason, or a Monk, or a Priest, a mayhemed body (by some other than by the Plaintiff) or of non sane memory, or deaf and dumb, or a layer, or a natural fool. Attainder by outlawry, if it be erroneous, is a bar no longer than until it be reversed; It is a good plea in bar also; that heretofore the Plaintiff brought an Appeal of the same felony, in which she was at non suit after Declaration, or withdrew herself from her Action: Or that heretofore she sued Appeal of the same felony against another person, which was acquitted or condemned at her suit. Or the Plaintiffs release may be pleaded in bar, if it were made to the Defendant himself; for release made to another will not serve, though it were made to one, joined with the Defendant in the Appeal. Corone in Fitzherbert 9 and 2. Rich. 3. 9 agrees. And so if the Plaintiff withdraw herself, as against one of the Defendants, her Appeal shall stand good against the other. And note where the Defendant pleads in bar any of these pleas, yet in favour of 〈◊〉 the Law permits him to plead over to the felony, and his pleading shall not therefore be counted double, exceptin the case of release, in which indeed he may not plead to the felony, for not guilty in contrary to accepting of rel●●●●, which ●●t●li●th guilt. So also of a woman bring Appeal of robery, and the Defendant pleads villainage in the Plaintiff, he shall not conclude over to the felony 〈◊〉 culpable, for that were an enfranchisement.  
But perchance when the villainage is found against the Defendant, he may then take his plea of rien culpable as well, as he shall have when he plead any other pleas, for if he plead them without concluding to the felony, he may after his bar is found against him plead rien culpable notwithstanding. quod vide 28. E. ●. fol. 91. 22. E. 3. fol. 38. 18. E. 3. fol. 32. except only in pleas of release, as is said, which implieth always a confession of felony. 9 Hen. 4. fol. 2. in Appeal de morte viri, the Defendants pleaded the wife's release, made since the darraine, continuance of all accords, real and personal, and she demurred, the best opinion was, t●at real actions are of things real and durable, as lands, rents, etc. and personal actions are of damages and such like, yet p Hulls, personal is as well the punishment of the person as damages, and the punishment here is death, which is released & le bar is good.  
But Littleton teacheth us contrary in his book, for he saith, that Appeals of robery, rape or death, or any Appeal wherein the ●●dgement is of death, are more high than personal Actions, and therefore they are not barred by release, unless it be of all manner of Actions, or of all Appeals.  
See Sir Edward Coke in his Commentaries upon Littleton fol. 287. b. in any Appeal wherein judgement is of death, a release of all Actions real and personal is no bar, for that release extendeth but to common or civil actions, and not to criminal, but if a release of actions personals is good in an Appeal of mayhem for every Action wherein damages are only recovered, is in Law taken for personal, fol. 288. a. And in Sir Edw. Coke 4. Rep. in Hudsons' Case it is said, although the Appeal of mayhem runneth feloniously, ●uy maymas, yet he shall recover but damages, and therefore recovery in trespass is a good bar therein.   

SECT. XII. Auterfoits acquit.  
ALthough it be now no plea in Appeal of death, for the Defendant to lay, that he was here to fore acquit of the same felony; yet because Stanfords handling of it containeth good learning, and it may still serve in appeals of rape: And likewise in Indictments of death, for he that was acquit in appeal may have it: I will not omit it. By Common Law therefore, in all Appeals or Inditements of felony, for the Defendant to say, that he was A●ter●oirs arraign de mesme le felony, before ●uth justices, and acquitted (vouching the record) is a good plea, and he needs not to have the record in Court, because this plea is not dilatory, but in bar, Coron. in Fitzherbert, 2 ●.  
This plea the Common Law disalloweth not, because it alloweth, that a man should not put his life in jeopardy twice for one and the same offence. The acquittal than must be of the very same offence, or else this plea is to no purpose: Therefore if two men be indicted of felony, as principals, and afterward by another Indictment, it is ●ound that one of them did the felony, and the other did feloniously receive him; after the felony committed; he that is secondarily indicted and arraigned as accessary, shall not be discharged, by pleading arraignment, and acquittal upon the first Indictment; for the offence is not supposed the same and one, but committed at diverse days, 27. Ass. p. 10. And this for accessaries after the felony: But when felony i● done by force of commanding, and procurement of another, he that shall be arraigned as accessary, may plead that he was acquit, etc. though it were as principal, and the offences were at diverse days, for, Vulnus, pre●eptum, & factum, sunt quasi unum factum. Yet Stanford noteth the ancient Law to have been taken otherwise. See 8. E. 2. is, Potest quivis acqui●tari pro morte alicui●s per patriam▪ & ho● non obstant● ex indictamento, vel secta alicuius de ●●xilio, abetto, v●● procuramento, potest suspendi pro morte eiusdem. And note that he that was indicted and arraigned of the death of john at Style, may plead that he was heretofore indicted and acquit of the death of john at Noke, averring that john at Sti●e and john at Noke were one person. E● seira discharge. Fitzherbert Co●one, 189.  
So likewise if a man were slain two years since, and one which was indicted and acquit of his death, is again indicted of the same man's death, supposing that ●e killed him this present year; he shall plead the first acquittal, and be discharged notwithstanding the variance; for a man can be slain but once, and the Court in this 〈◊〉 shall charge the Inquest with the time of his death, which is supposed slain, and whether it were the same parson supposed to be slain, by the 〈◊〉 Indictment. So likewise if a man be indicted, and acquit in one County, and afterward indicted of the same death in another County, the acquittal at first shall discharge, etc. But in robberis it seemeth otherwise; for one and the same man may be rob by one other man s●ndrie tunes; and therefore acquittance of a robbery done at one day, is no discharge of a robbery done at another day. Now if a man be indicted of robbery in one County, he shall not plead th●●●e was indicted and acquit, of the same robberis, in another County, 4. H. 7. fol. 5. But it is said there, that in appeal of robbery it is a good plea; because the Plaintiff is to recover his goods again by the Common Law; not so in Indictments, in the book at large the Defendants plea is, that he was indicted of taking the same goods, etc. which 〈◊〉 said ●ust be take 〈◊〉 〈◊〉 i●lly for the King, that the same goods ●ere shall ●● twice▪ 〈◊〉 〈◊〉 said the Count●●s 〈◊〉 not joins in trial of the averment de● me●●ne ●● felony, when one County had acquitted him. Fro●ioke said, That by the same ●e●son, 〈◊〉 by he might be found culpable in one County, of felony done in another, by the same reason acquittal in one should discharge him in another.  
Se● Corone in Fitzherbert, 220 41. ass. p. 9 A man indicted in the King's Bench of rape and robbery, pleaded acquittal at the County of Cornwall, at the Assizes, and it was adjudged good▪ Stanford bids us inquire where the King's Bench was at the taking of the Indictment, and whether any other Indictment in Cornwall, of that matter, were removed into the King's Bench, because the Book saith, one indicted in bank le Roy, etc.  
ye must know, that if there were not sufficient matter of felony in the Indictment or Appeal, upon which the acquittal was had, auter●orts acquit is no plea, to stay a man indicted of new from new arraignment, for it falls out upon the matter, that the party's life was never in jeopardy.  
And so is it if a man be acquit in an erroneous Appeal, which acquittal is reversed by error; he may been arraigned at the King's suit upon Indictment; for by the reversal he is become as ne●er acquitted. But before rehearsal outer●oi●s acquire is good plea, and if the error were only in the pro●es●e, it is not material, for appearance sal●es those defects: And it sée●●eth also, that he which was once acquitted in appeal, shall not answer any more to the Appellant, though the acquittal be reversed by ●●●●ur howsoever, for so the Court might be delivered 〈◊〉 〈◊〉 and the Defendants never be delivered.  
But if one bring an Appeal, which hath no cause or title to it, as perhaps one which is neither wife nor heir, etc. and the Defendant takes none advantage of it, but pleads 〈◊〉, and is acquitted, this will no● serve to 〈◊〉 the right heir or wife in their appeal, or the King upon arraigning him upon Indictment, or upon the new Appeal, if the wife or heir be at non suit therein.  
And if one be arraigned upon Indictment at the King's suit and acquitted, whereas by order of Common Law, the King should have stayed, till the Appeal hanging had been determined. Yet this is no error, for th● plea of auterfoits acquire shall serve the Defendant in Appeal well enough. And Auterfoits acquire in Appeal is no plea against the King, in an jindictment of the same felony; if the acquittal were by battle and not by Inquest, 12. E. 2. Corone in Fitzherbert, ●75. For battle lieth not against the King, a●d therefore that trial against another shall not bind. Quaere, saith Stam●ord, for Bracton is contra. Si à pluribus appellatus, sit de uno facto & una pl●ga, & versus unum se defend●rit recedet quietus versus omnes alios appellan●es, & etiam de secta regis, quia per hoc purgat innocentiam suam, etc. Before the Statute 3. H. 7. cap. 1. Whereby Auterfoits acquire is become no plea in appeal of death, if a man were indicted of another man's death, the justices would not arraign him, (as appears by recital of the Statute) till the year and day were passed. And in Corone Fitzhe●●ert, 44. ye may ●ee that in 22. E. 4. the justices of England advised, all men of Law to observe this order and course throughout the Realm; yet before this time it appears, 7. H. 4. fol. ●0. & 21. H. 6. fol. 32. That where th●re was no appeal hanging, if suggestion had been made to the justices, that the evidence was manifest and apparent against the party indicted, they would arraign and try him upon the Indictment, although it were within the year. Likewise if the Appellant were under age, the justices did use to arraign and try him that was indicted maintenan●! For otherwise the party indicted might cause by Covin, that the Appeal should be brought by an Infant under age, as perhaps three years old, and so perish the King's s●●t for ever. But all this seemeth now to be remedied by the Statute, in Appeals which are of death, but other Appeals are left as they were before. The Common Law therefore unchanged is, that if a man be indicted of robbery, whereof there is an Appeal hanging, and the appeal is proceeded so fare, that the justices may percei●●● the felome is all one, they ought to surcease trial upon the Indictment, as it is 1. 31. H. 6. fol. 3. For note that in Appeal of robbery when it is by Writ, the robbery cannot be certainly known before Declaration. Otherwise it is, if it be commenced by bill, or that the Appeal be of death of a man any.   

SECT. XIII. Auterfoits attainted.  
THis is a sore saying, which some men have to plead for themselves, viz. that they are already condemned to be hanged, and ask judgement, whether during the Attainder, they should answer to the felony whereof they are condemned, or to any other: And this plea serveth, where the party condemned hath already forfeited as much as he can forfeit, so that it is to no purpose to tra●●●● him any further. But in some special cases, when there is some end of it, a man already condemned may been arraigned again. As if a man attaint of felony, were guilty of treason also, at the time of the felony committed, he may now be put to answer the treason; because thereby the King shall have the escheat of his land, of whomsoever it were holden, 1. H. 6. 5. Otherwise it is if the treason were committed after the felony; or at the least, if it were after the attainder had of felony; for then the title vested in the Signors, before the King's title, might not be devested by matter accrueing ex post facto. And if diverse men have diverse Appeals of robbery against one, to the end that every man may have again his goods, whereof he was rob, by making fresh suit, he shall be attaint at every one of their suits. But note (saith Stamford) in cases where the Defendant will discharge himself of answering, by attainder of any other felony, than that whereof he is arraigned; it may be replied either for the King or the party, that since the Attainder the King hath pardoned him the said Felony and Attainder, whereby he is now restored to the Law, and aught to answer to all other felonies, though they were perpetrated before the felony whereof he saith he was attainted. Titulo Coronae in Fitzherbert, 227. 10. H. 4. etc.  
But to the felony whereof a man is attainted he shall answer no more after he hath his pardon of it. Thus far, Stamford. See Brooke, Titulo Coronae, 11. Quaere. Whether a man attainted of felony, and pardoned, shall answer at the King's suit, to other felonies before committed, and whereof he was not indicted at the tune of the Attainder, per aliquos videtur quod ita, as well as at the suit of the party in Appeal; yet some held otherwise, 10. H. 4. That a man can die but once at the suit of the King, and he that is pardoned is as a new man, all former judgements, as against the King, being determined: Quaere de Appeals, Cor il est●foredure de maintainer Appeal in le case. For all Appeals were determined once by the judgement upon Indictment.  
Note that it was resolved in Wrote; case, Sir Edw. Coke 4. Rep. fol. 45. That Auterfoits convict of manslaughter upon an Indictment of murder, and Clergy allowed is a good plea in an Appeal of murder, and that although the conviction was had hanging the Appeal. But it was also there resolved, that if the Indictment upon which the conviction was had were insufficient, the offender may, notwithstanding that conviction, been indicted or appealed again, for that his life in judgement of Law was never in jeopardy: and so it was resolved also in Vauxes case in the same Report.   

SECT. XIV. Clergy.  
IF the Defendant in Appeal crave his Clergy, and the Plaintiff say that he is Bigamus; if he be so certified it is peremptory, and he shall be hanged without pleading Ouster to the felony. See 11. H. 4. fol. 10. That Clergy is allowed in Appeal de morte viri. In the Book of Entries, wherein scil. fol. 5. is the Kings writ to certify, whether the party appealed were Bigamus as E. which appealed him of the death of A. her husband alleged: But at this day Bigamus shall have his Clergy, by the Statute of 1. Edw. 6.   

SECT. XV. The King's pardon.  
IF a woman which bringeth an Appeal de morte viri, let fall her suit, the King's suit is not prejudiced thereby, and if the wife release all Appeals, and afterward by verdict in Appeal brought by her, the release is found, the entry is, De appello praedict' quoad sectam praedictae Aliciae sit quietus, & quod ipse eat inde sine die, etc. Sed quoad sectan Dom. Regis in hac parte instante allocutus est qualiter se velit acquietare, & dicit quod in nullo estinde culpabilis, etc. See the Book of Entries, fol. 47. b. So likewise in Appeal Dè morte patris, or De morte viri, the King's pardon cannot take away execution, 13. H. 4. But it is a good plead against the King, when an Appeal is once determined. And if the Appeal be determined not by act of the Appellant, but by act of Law, the King's pardon shall not be allowed without the Appellants privity. As if the Plaintiff pursue her appeal till the Defendant be outlawed, by this outlawry the appeal is ended: and now if the King pardon the felony, etc. this pardon shall not been allowed without Scire facias against the party, at whose suit the Felon was outlawed. And at the day of Scire facias returned, the party may appear, and pray execution, which is grantable, the pardon notwithstanding. But if the Sheriff return, that he warned her to appear, and she make default, the pardon shall be allowed without more ado. And this Scire facias, upon pardon granted, may be required against the Appellant, though the Appellée never desire it, and though he show no release or other matter in discharge of the Appeal. For he shall come timely enough with that, when the other appears upon the Scire facias. Also the Scire facias is grantable, though the Charter of pardon have not the clause. Ita quod stet rectus in curia.  
Vide Fitzherbert. p. 17. titulo Charter, 11. R. 2. In appeal against Principal and Accessary, the Principal was pursued till Outlawry, and Exigent went out against the Accessary, and at the day of the return, the Plaintiff was at non suit in his Appeal, and then came the Principal with his Charter of pardon, and prayed it might be allowed, because the Plaintiff was at non suit. Gascoigne made answer, That the non suit could not help him, for the Appeal had run his full course, and was determined as towards him, by the outlawry.   

SECT. XVI. Damages in Appeal.  
NOw to draw towards an end of this matter, though a woman cannot be put to trial by battle in appeal, any more than the King may in his suits, yet she prosecutes appeals, not altogether without danger, as y●e may perceive by the entry made in the Book of Entries, fol. 49. b. and by the Case 8. Hen. 4. fol. 18. likewise 41. Assis. pl. 8. In appeal de morte viri in the King's Bench, the Plaintiff was at non suit after appearance, wherefore it was awarded, that she should be taken to pay a fine, and she came and paid it, the Appellée was afterward discharged, and inquiry made of damages and abbettors, and two abbettors being found, damages were taxed to a hundred pounds, and the appellant was not worth above a hundred shillings, yet it was awarded, that the Defendant should recover his damages taxed at a 100 li. against the woman, and that he should sue against the abettors if he would, but no Capias against the woman, because she had fined before.  
It is by the Common Law, saith justire Stanford, that damages in Appeals of folony are always for the defendant, when he is acquit, for common reason wils, when a man is put to undergo a trial, whereby his lands, goods, life and reputation are all put in hazard, without desert or matter of good foundation, by only the malicious accusation, of his adversary, and he is found by due acquittal of Law, a loyal true man, that he have amends against his false Accuser, and (if the Accuser be himself insufficient) against them, which procured and abated the Plaintiff to pursue the Appeal, but for so much as damages were not recoverable against Procurers and Abettors, but by original Writ of conspiracy, which was no such speedy redress or satisfaction, as the great mischieffousnesse of the offence required, a Statute was made for a more quick remedy.   

SECT. XVII. West. 2. ca 1●.  
AS followeth. Because many men of pure malice and purpose to grieve others, procure false appeals, to be brought of ●●●●cide and other felonies by Appellants, which are nothing worth, and therefore can neither answer the King for their falsety, nor yield damages to them whom they. Appeal. It is provided, that if any man be appealed of felony, and acquit himself in due manner in the King's Court, at suit of either the King, or of the Appellour, the justices before whom such Appeal shall beheard and determined, shall punish the Appellour by one years imprisonment▪ and nevertheless such Appellours shall render damages to the Appeals, according to the justice's discretion, having regard to the arrest and imprisonment, which the Appeal hath sustained, and to the Infamy, which by the imprisonment or otherwise, the Appellé●● have incurred. And nevertheless they shall be grievously fined towards the King. And if peradventure such Appellours have not wherewith to make amends for the damage aforesaid, it shall be inquired, by whose abatement the Appeal was maliciously thus form, if he which is appealed do so require that. And if it be found by the Inguisition, that any man were an Abbettour by malice, he shall be distrained by a judicial Writ at the Appellées suit, to come before the justices; And if he be in ●●● manner convicted of abetting by malice, he shall be punished by imprisonment, and restitution of damages. sicut de Appeslatore superius dictum est. And from henceforth in appeal of death of a man, there shall lie no essoine for the Appellour, in what Court soever the Appeal shall be determined. The Statute is against Appeals by malice, etc. therefore if the Defendant were indicted of felony, before the Appeal sued (though he be acquit afterward,) he shall recover no damages, for it is to be intended, that the indictment induced the appeal, and not malice▪ Otherwise it is, if he were not indicted till after the appeal commenced, or if there be a variance betwixt the appeals and indictment, as the acquittal of him upon the one, is no acquittal of him upon the other, as if he be indicted as a principal, and appeals as an accessary, vel contra But if the variance be in things of no substance, so that the acquittal in the one been an acquittal in the other, there shall be no damages. And though the word malice by the letter of the Statute doth seem to reach only to the Appellours and procurers, yet it is to be understood by the books, that it reach as well to the Appellant as to them. And the word felony in the Statute stretcheth to feloni●s, so made after this Statute, and ancient felonies made so before the Statute. Acquitted in due manner is as well where the Defendant is acquit by battle, as if it were by the Corntry, and he is intended acquit by battle, when the Appellant acknowledgeth in the field his appeal to be false (which is a kind of vanquishment) for if the Appellant be slain in the field, the damages are gone; Now there is as well an acquittal in Law, as an acquittal in fait. Therefore if two be appealed, one as principal, and the other as accessary: the accessary shall recover damages, upon acquittal of the principal (if the inquest, which tried the principal, were charged with the accessary,) though they gave no verdict of the accessary, for the accessary in such case may have by the Common Law his Writ of conspiracy, as appears 33. Hen. 6. fol. 2. But if the principal be acquitted, the accessary never appearing, but hanging still in process, he shall neither recover damages by this Statute, nor have a Writ of Conspiracy by Common Law, till he come and be acquitted by verdict, as appeare● 41. Assiss. p. 24. un bone case. If the Defendant bar the Plaintiff in appeal, he shall not recover damages, except the bar did acquit him of the felony▪ Therefore if his plea were bastardy in the Plaintiff, or that he hath an elder brother, or ne unques accouple in legal m●●●imonie, and such like pleas, although th●se ple●● may discharge the appeal as well against the King, as against the party, yet notwithstanding any such plea in bar, he may be afterward indicted, and attaint of the felony, and therefore he is not to recover damages, for th●se plea●●ry not his innocence any more, than pleas which are only in abatement of the Writ. So is it likewise, if the Plaintiff be barred upon a demurrer in Law, and so, where it is found by verdict akilling se defendend●●, or by misadventure, for this is none acquittal of the felony, in so much as the Defendant can never be cleared thereof without purchasing his pardon: So is it also, when the Defendant upon arraignment takes him to his Clergy, and the Court takes an inquest of office, whereby he is found riens culpable: this is none acquittal, whereby he may recover damages; for claim of Clergy, is rather by implication, confession of felony than otherwise: But he that will waive his Clergy, and put himself in inquest, if he be a quit he shall recover damages: So if the Appellée have both the King's pardon, and the Appellants release, and yet he will waive them, and plead riens culpable, he shall recover damages, if the Country acquit him, yet he hath done a matter of record, which by implication acknowledgeth the felony, quoe●e: for if the pardon were by Parliament sans question, he might not waive it. See thereof 11. Hen. 4. fol. 40. He is not acquitted debito modo, that is, acquitted erroneously, without due process, As 9 Hen. 5. fol. 2▪ the Defendant c●me in by exigent, upon which the Viscount had returned ce●● corpus, whereas he should have returned exigifeci and the Defendant appearing upon the exigent, without taking advantage of the process, pleaded riens culpable, to the appeal, and so was found; but yet he could not get judgement to recover damages, for the cause aforesaid quaere. for 19 E. 3. Titulo Corone in Fitzherbert 444. is contra. that error in the process is not material, so long as there is no error in the Writ of appeal, Declaration or pleading▪ for the Defendant is arraigned upon the original, and not upon the mean process.  
The Statute speaks thus, vel ad sectam domini Regis, vel appellatoris. The King's suit here is understood in appeal, when after arraignment of the Defendant, the Appellant having declared, is at non suit, f●r if the Defendant been acquit at the King's suit upon an Indictment of the same felony, he shall recover no damages.  
And the manner of recovering damages, when acquittal is at the King's suit, differeth some what ●●em recovery upon suit of the party, etc. for in the first ●ase he which is acquitted, shall recover no damages, till he have sued▪ scire fac. to bring the Plaintiff into Court, which by non suit was become out of Court. But in the other case he shall recover damages without other process▪ Titulo Damages in Fitzherbert 7. 7. Whore the Ca●e was, that the Appellant took a husband after non suit, and yet scire facias was awarded against the woman only. The Statute is further, that the justices before whom, etc. shall punish the Appell●ur, etc. this cannot been understood by justices of Nisi prius, though by the Statute 14. Hen. 6. cap. 1. they have power to give judgement in treason and felony tried before them, and that ●s well where the Defendant is acquitted, as where he is attainted; But yet within this Statute they are not, 〈◊〉 the plea of the whole appeal is not heard before them, nor any more, save only the trial, as you may ●ée, 10. E. 4. ●o. 14. The Statute is further, that the damages shall be considered, having respect to the imprisonment, etc. Therefore if appeal be against diverse men, and they all are acquitted, damages shall be taxed to them severally, because perhaps one is more damnified than another, for one may be appealed as principal, and an●ther as accessary, and one may be a Gentleman, and another n●●●, ●. Hen. 5. fol. 1. and 40. E. 3 titulo Damages in Fitzherbert p. 77. But note that this recovery of damages is not for every one, for if an appeal ●ee against a Monk, ●● Feme covert, without the joining the Sovereign or ●●●band, as it must be, (except the Sovereign with his Monk, or the Baron with his wife commit●● the ●●l●ny) the Monk or Feme covert shall recover no damages, though they been acquit. Titulo Corone in Fitzherbert 276. 22. E. 3. The principal Case was an appeals against a Monk, and the justices said it was all one for Law, if it had boene a Feme covert. quaere. for if an appeal be against Baron and Feme, which are acquitted, damages shall be taxed, and recovery severally, viz. The Baron sole shall recover for his own imprisonment, and the Baron and Feme jointly for the imp●●sonment of the wife. The Statute is moreover, versus Dominum regem graviter redimantur. This fining to the King is never, but where the Defendant is to have damages also, for otherwise the Plaintiff shall not fi●e, but only beeamerced, as 9 Hen. 5. fol. 1. the appeal abated for mis●o●mer, and the Plaintiff was but only amerced. vide 41. Assis. Corone 219. the appellant was at non suit after Declaration, and the Court presently awarded process against the Appellant, to c●me and make fine, agreeing that if the party were afterward acquit, at the King's suit, so that he recovered damages against the Appellant, yet she should not pay a new fine. Put the ca●e therefore, that at the King's suit the Defendant had been found culpable of the felony, what remedy there might be, for the Plaintiff to recover his fine again, which he paid before noon, as it seems, for it seems the Plaintiff which is at non suit in the appeal, shall pay a fine by the Common Law, and this was the cause why they awarded it to been paid maintenant. Then for enquiry of abbettors, etc. Cum appellatores non habeant unde praedicta dam●a restitue●●, inquiratur per quorum abettum. These words imply, that if damages be not by Law recoverable against the Appellours, there shall be none enquiry of abbettors. And where the Statute is, that if the Appellants are not able to restore damages, it is intendible all the damages, for if the Appellant be sufficient to render part, but n●t all the damages, enquiry shall be of the Abettors, and they shall be charged. 8. E. 4. fol. 3. & 8. Hen. 5. & 219. ●itulo Corone in Fitzherbert. The Statute is, shoppellatus hoc petat. Of office only therefore, and without request, as it should seem, the Court cannot inquire of Abettors. And ●8. Assis. 222. titulo Corone. where they ●ad enquired of Abettors, at the desire of one Defendant, and they found none, and afterwards another of the Defendants, being acquitted, prayed enquiry likewise, it might not be obtained, because it appeared by the first verdict, that there were none Abettors, there rem ined therefore no more to be enquired o●, but what damages were sustained. This Stamford affirms to b●e in appearance against Law, for saith he, it is against the words of the Statute, and against reason, for what reason is it, that a man should be bound by an inquest, whereunto he is not privy, and against which he can have no remedy, because it was but an inquest of office, for albeit that commonly the enquiry of Abettors, is by the same inquest that acquitted the Defendant, yet their enquiry in this point is but of office, for if they find Abettors, these Abettors when they come may traverse all that is found in this point; As if it be found, that the Appellant is not sufficient, and A. and B. were Abettors, A. and B. may come and say by protestation, not knowing the felony for plea, that the Appellant is sufficient, or that they never abetted. 8. E. 4. fol. 3. and the words, S● legitimo mod● convictus fuerit de huius●odi abbe●to per ma●●●iam, prove also that answer is allowed, to that which is found by the inquest. And note that it is a good answer for the Abettor to show matter, wherefore the Defendant ought not to have damages, or to show that he was acquitted, not lawfully, bu● erroneously. But the Abettors shall not take exception, against the Inquisition, for that it is not found at what day, year, or place they abetted, for the Abe●nent simply found satisfieth the Statute, which willeth, v● inquiratur per quorum abe●●um. And when that it is once found, the Defendant may supply that which wanteth, adding to the inquisition, the year, day and pla●●. ●i●ulo Corone in Fitzherbert 45. 22. E. 4. By the words, per br●ue de iudicto ad sectam appellati distringantur all veni●ndum coram justiciariis, etc. And the process should seem to be distress infinite. But Titulo Corone, 102. the Court awarded first a Venire facias, & then Dis●resse, which course hath little authority for it, for all the other Books give a D●string as for the first Process, which is always sued out by him which is acquitted. And for his better speed, he may pursue this if he will, though the Appellant been not in Court. As if the Appellant been at non suit, and the Defendant arraigned at the King's suit is acquitted, his damages taxed, and his Abettors found, now he may have Process against the Abettors maintenant, though the judgement of damages been suspended till Scire facias ●e sued, and returned against the Appellant: and note if the Defendant which is acquitted in an Appeal, be non suit in his Process against the Abettors, this is not peremptory, but he may commence process again of new, if he will, Corone, 386. And 3. E. 2. titulo Action sur le Statute, 28. An original Writ brought for Abetment and Declaration against the Abettors, for greater damages than were assessed in the Appeal is awarded good. For of damages taxed in Appeal, there lieth no attaint, because the Enquest, as to the damages, is but of office, and the Defendant cannot compel the justices to increase damages, therefore it is reason that he aid himself by Action. So saith Stamford.   

SECT. XVIII. Of the old Law.  
I Have waded further into this vindicative Action than I thought to have done, and yet not touched what the Princes warrant of a man's life may avail him, against the instant appeal of a widow. I know one or two that are thought to be buckled against Appellants, by a lease of their own lives from the King; but how tr●● it is, or how contording with Law, I know not: Howsoever it be, I advice a widow, that is full of spleen for the slaughter of her husband, to read over mine instructions here, to a●●a● choler, and then if composition be offered, not to refuse it. For first I do you to wéet, that appeals d● mor● are but slippery Actions. Be judged by the case, 33. H. ●. Dyer ●ol. 50 Warnforo of the Temple was sued in an appeal of murder: the Writ was, Ad respondendum A. B. alias dict▪ A. B. fra●●● & haetedi, to him that was murdered, and the Defendant was discharged, because the Plaintiff was not named brother and heir in the substance of the Writ, but only in the Alias dict●, for it ought to have b●●ne, Ad respondendum A. B fratri & ●●●●▪ redi, alias d●ct●, etc. This was the chief cause why the Defendant was discharged. Then, I say, it is a more Christian thing to take five hundred po●nds of a mankiller, for a release, leaving him to agree with the King for his neck, as good cheap as he can, than to seek blood and death (though of one which hath deserved it) in anger, malice, and revengefulnesse. Last of all I affirm, that it agreeth with the eldest custom, and ancientest English Laws. For that which learned M. Lamberd in one place speaketh but as conjectural, is (me thinketh) true without all peradventure. Id ●st, that this form of proceeding against an homicide given to the dead man's heir, or widow, is a revengeful Action first given to appease such quarrels and capital enmities of families and kindreds, as the Northern men yet use and call F●awds, which heretofore (but a long time since) were general, and overspread the Realm. So that an Appeal du mort, is but an image of deadly Feawd. The inducements to think so are these. The action of Appeal is preferred before the King's action: the offer of trial by the Appellant, by Bracton is, per corpus, etc. & si de eo male contigerit per corpus fratris, etc. And the ancient use was, when the Appellée condemned went to execution, that all they which were of blood to him that was murdered, should draw the man-flayer to the gallows, by a long rope, or cord, to show love to their kinsman, and desire of revenge, per Bromley in Plowdens' Commentary, 306. And 11. H. 4. fol. 12. When T●rwit had affirmed, that by the ancient Law in Appeals the mott, the dead man▪ kindred and his wife should draw the Felon to execution. Gas●olgne added, Hoc ●uit in diebus nostris. By these days Appeals the mort shown, by their outward face and phisnomy, from whence they sprung. But by the old Laws of King Inas, King Edmun●, and the rest, ye shall plainly perceive, that Feawd was their mother, and that money was the quencher of the quarrel, very often, if not always. See therefore in M. Lamberds Book, Depriscis legibus, the Law 7●. of Inas: If a bond man kill an Englishman, his Lord shall deliver him into the hands of the Lord or kinsman of him which is slain, or redeem him at sixty shillings: If the Lord will not pay the money, he shall at the least emancipate his bondman, and the kinsman of the murderer so emancipate, may undertake for him, to pay the price of him which is dead. If he have no kinsman that will do so much for him, Metuat sibi malum ab aduersar●is, Let him be at the hazard of his enemies. And I have read an old Law which I cannot find again, Parentibus occisi fiat emendatio, vel guerra eorum portetur. But in the same book, De priscis Legibus, ye may find that King Edmund, which reigned an hundred years and more before the Conquest by the advice of Odo of Canterbury, and the Archbishop Wolstan of York, with many other of the Clergy and Laiety, made Laws, amongst which one hath this Preface; Etenim nos omnes harum taedet pugnarum quotidianarum: and therefore we ordain as followeth.   

SECT. XIX. King Edmunds Law.  
IF any man hereafter do kill another man, he alone shall take upon him, and sustain the deadly enmity of the dead man's kindred, unless he can by the help of his friends pay the whole price and estimation of his head, whom he hath killed, (what condition soever he were of) and that within the space of twelve months▪ If his kindred forsake him, and refuse to pay any thing for him, he alone shall bear the quarrel, and his kinsmen shall not be reputed as enemies: But if they give him sustenance, or have any peace and society with him, he that doth so shall forfeit all that he hath to the King, and been taken also as an enemy ●o the blood: But otherwise, if any man to revenge his kinsman's death, pursue and kill any one, but only the first murderer, he shall lose all that he hath to the King, and be deemed an enemy to the King, and to all that love him. This Statute abridges ●eawds excepteth the Felon● kindred, forbidding to kill in Withernam, and for money it seems the feawd was stripped.   

SECT. XX. Of Rape.  
CHu●● now whether ye will imagine, that the widow hath agreed with him which was her husband's bane, or that she hath pursued him to death: She remaineth from henceforth a widow, giving herself to alms and deeds of charity, and of this good mind are many of our widows, which purpose constantly to live out the residue of their days in a devout remembrance of their dear husbands departed, to whom perhaps they made vows never to marry again after their deaths. But to what purpose is it for women to make vows, when men have so many millions of ways to make them break them? And when sweet words, fair promises, tempting, slattering, swearing, lying will not serve to beguile the poor soul: then with rough handling, violence, and plain strength of a●mes, they are, or have been heretofore, rather made prisoners to lusts théeves, than wives and companions to faithful honest lovers: So drunken are men with their own lusts, and the poison of Ovid's false precept,  Vim licet appellant, vis est ea grata puellis. 
That if the rampire of Laws were not betwixt women and their harms, I verily think none of them, being above twelve years of age, and under an hundred, being either fair or rich, should be able to escape ravishing.  
This is therefore a matter concerning maids, wives, widows, and women of all degrees and conditions, if either they be, or possess any thing worth the having, and because the ignorance of Law may here turn a mollifying heart to harm, I were to blame, if I left my Scholars without warning to take heed.   

SECT. XXI. Ravishment i● in two sorts.  
THere are two kinds of Rape, of which though the ●●● be called by the com●●● people, and by the Law itself, Ravishment; yet in my conceit it borroweth the name from r●pere, but unproperly, for it is no more but Species stup●●, a hideous hateful kind of whoredom in him which committeth it, when a wom●n is enforced violently to sustain the fury of brutish concupiscence: but she is left where she is found, as in her own house or bed, as Lucrece was, and not hurried away, as Helen by Paris, or as the Sabine women were by the Romans, for that is both by nature of the word, and definition of the matter: The second and right ravishment, Cum quis leonestae f●mae soeminam, sive virgo, sive vidua, sive sanctimonialis sit invitis illis in quorum est potestate, abducit. Neque refert, an quis (volente vel nolente rapta) id faciat, nam vis quae Parentibus vel Curatoribus fit, moxime spectat. It seemeth the first kind of rape deserved always death by God's Laws, unless the woman ravished were unbetrothed, so that the ravisher might marry her, as you may read Deuteronomy, chap. 22. vers. 23. and by the Civil Law. Raptores, in the second kind, subjiciebantur poenae mortis rapta si fue●t ingenua. How heinous they been both, and have a long time been, by the Laws of England, ye shall now perceive.   

SECT. XXII. The old Law of libidinous Rape.  
BRacton in the eight and twentieth Chapter of his third Book showeth, that by the antique Law of King Adelstan, He that meeting a virgin sole, or with company, did but touch her unhonestly, was guilty of breaking the King's Edict, Et emendabit secundum iudicium comitat. If against her will he threw her on the ground, he lost the King's favour; if he discovered her, and cast himself upon her, he lost all his possessions; if he lay with her, he suffered judgement of life and member: yea, if he were an horse man, his horse lost his ta●le and main, (as Stamford citeth it to be, lib. 2.) But the words are, Equus suus ad de●ecus suum decoriabatur de superiore labro, & cauda quae proprius natibus abscindere debent; item canis si secum habeat, etc. codem modo dedecorabitur. His Hawk likewise lost her beak, talons, and ●raine. And the virgin had in recompense all his land & money by the King's warrant. This was in King Adelstanes days, at least an hundred and twenty years before the Conquest, when ●o●roprores v●ig nitatis & casti●●tis were hanged, and their fautors also. But in Brractons' time it seemeth, that these kind of ravishers were otherwise punished, they lost their eyes and were gelt. She that brought an Appeal was to complain herself presently to the next neighbour, or to the chief men of the Hundred, or to the Coroner, or Viscount, showing her garments bloody and torn, and in the first County to enter her Appeal, and pursue it, at coming of the King's justices. Before whom, unless the offender aid himself by exception, that the Appellant was still a virgin, (which was tried by inspection of women) and if she were found a virgin, the Appellant was imprisoned for her slander, or that he held her before times as his Concubine, or that she consented to his embracements, or some other like plea, he l●st his eyes and stones, for they calorem s●up●● induxerunt. Except the woman before judgement given, demanded him for her husband, for that was only in the woman's election, and not in the man's, because of the inconvenience which otherwise might have happened, if some hardy strong Lecher had ravished a Dame noble, or of great birth, he should either go away unpunished, or else by means of one pollution, perpetually desire her, to the disgrace of her whole stock. Thus fare Bracton. And in the Book, De priscis l●gibus, it is s●t down for a Law made by King William the Conqueror; Interdico ne quis occida●ur vel suspendatur pro aliquo culpa, sed eruantur oculi, &c abse●ndantur testiculi, vel pedes vel manus, ita ut truncus vivus remare ●t, in signum proditionis vel nequitiae. I command that from henceforth no man be hanged, or put to death for any transgression, but let the offenders eyes be pulled out, or his stones, feet, or hands cut away, that the trunk or mutilate body still left alive, may remain as a testimony of his prodition and lewdness. Now if this mangling Law of King William were still in force in Bractons' time against ravishers, was it Mag. Chart. cap. 29. Or what was it that made the Law so meek in Edward the first his time▪ that the first Statute against Rape, speaketh of it so mildly, as if it had been at Common Law a very small trespass.   

SECT. XXIII. West. 1. cap. 14. anno 3. E. 1.  
THe King commands, that no man ravish or take by force any damsel within age, either with her consent or without. Nor any dame or damsel (of full age) or other man's wife, against her will. If any do, the King will do justice and common right, at his or her suit, that shall sue within 40. days, if none commence suit within 40. days, the King shall have the suit, they which are culpable shall be imprisoned two years, and be ransomed at the King's pleasure. And if they have not to satisfy the ransom, they shall suffer a longer imprisonment, as the trespass shall require, a man may well suspect that there was something, which had allayed the rigour of former Law, before this Statute was made. It may been the importation of Clergy men urging satisfaction according to Moses Law, if the woman ravished were unmarried, and otherwise the bashfulness of those which are betrothed and espoused, kept in the truculent Law of King William. Howsoever it were, this Statute of West. 1. (in my poor opinion) being rather affirmative than otherwise, runneth not in favour of ravishers, to abrogate their old punishment, but inflicteth a greater punishment upon them, than that which had lately been put in practice. Or it may be very well that the common right, which King Edward promised here to do for them that would pursue within forty days, was according to the severity, which B●ac●on speaketh of.   

SECT. XXIV. West. 2. cap. ●5.  
THe mitigation of the old Law, one way or other, in a few years brought forth so many enormities, That at the next Parliament, which King Edw. held ten years after, it was ordained as followeth.  
It is ordained, that if any man ravish any woman espoused, or damsel, or other woman, which consenteth not afore, nor after, that he shall have judgement of life and member. And whosoever ravisheth any woman by force, though she consent afterward, shall have judgement as afore is said, if he be attainted at the King's suit. And if any woman be carried away with the goods of their husband, the King shall have the suit, for goods so carried away. This Chapter containeth also the ordinance against Elopement, and another for Nuns, qui monachialem a domo suo a●●ucat, linnet monach●●li● consentiat, puniatur perpri●onam trium annorum, etc. & satisfaciat dom●i, a qua abducta fuerit & nih●lominus redimatur ad vol●●ratem reg●●.   

SECT. XXV. 6. Richard. 2. cap. 6.  
A Man would have thought, that this Statute should have repressed for ever, all violence towards the persons of women, but quantos motos scies, reclamante ratione, Priape: In the sixth year of King Richard's reign, and about the 16th. of his age, this villainy of rape was so increased, and women so little offended with the injury, or so ashamed to confess the outrage, that a new Law was made to punish women, which consented to their ravishors, ut sequitur. Against ravishers of Ladies and daughters of Noble men, and other women in every part of the Realm, now a days more violently offending, and oftener than was wont; It is ordained, that wheresoever, and whensoever such Ladies, daughters, or other women be ravished, and after rape do consent ●o such revishers, that as well the ravishers, as they which be ravished, be from henceforth disabled, to have or challenge Heritage, Dower or jointfeoffement after the death of their husbands; and ancestors. And that incontinently the ne●t of the blood of those ravishers, or of t●em that been so ravished, to whom such Heritage, Dower or jointfeoffement ought to revert, remain, or fall, after the death of the ravisher, or of her that is so ravished, shall have title m●●ntinently after the rape, to enter upon the ravisher, or her that is ravished, and their Assigns and lands, tenements, in the same heritage, Dower, or jointfeoffement, and the same to hold in state of Heritage.  
And that the husbands of such women, if they have husbands, or if they have no husband living, the father or other next of the blood, have from henceforth the suit to pursue against the Offenders and Ravishers in this behalf, and to have them thereof convict of life and member, though the woman after such rape do consent to the ravisher. And the Defendant in this Case shall not be received to wage battle, but that the truth of the matter shall be tried by the Country. Saving always to the King and other Lords of the Realm, their escheats of the Ravishers, if they be convict.  
This is a shrewd Statute. Till this time he that had ravished a woman might hope for a clemency, at the least at her hands, because he had ventured his life for her sake, but what shall lusty lechers now do? the more a woman is worthy to be won, because she hath or shall have wherewith to keep a man, the more danger it is to meddle with her. She that perhaps might have b●ene persuaded, (had this Statute not 〈◊〉) to 〈◊〉 a matter of greater astonishment, than 〈◊〉 bears not now be merciful, lest sh●e b●e cruel to herself. Therefore now men look on fair Gentlewomen, heirs, and widows, as the ea●● looketh at a fish in the water, she would 〈◊〉 ●e dealing, but is l●th to go 〈◊〉.  
And now comes in the second rape by a●duction, wherein avarice is as great an ag●●t as ca●●●lity, a●d something wiser in avoiding of danger, now men turned themselves for love's sake into Centaurs first, and took on them the shape of Bulls afterward.   

SECT. XXVI. 31. H●●. ●. cap. 9  
THerefore in the 31. y●ere of Hen. 6. was a Statute made, beginning with complaint, that in all parts of the Realm, diverse people of power, moved by 〈◊〉 〈◊〉 cousnesse, against all right and gentleness, had 〈◊〉 new 〈◊〉, to the danger, trouble, 〈◊〉 〈◊〉 〈◊〉 of Ladies, Gentlewomen, and other women sole, having substance of ●●nd, tenements, or movable goods, 〈◊〉 then great innocency and simplicity, wishing to take them by force, or otherwise come to them, seeming to be their great friends, promising them the●r faithful loves, and to by great 〈◊〉, they caught them into their possession, co●●●ying them into places where the Offenders were of power, not suffering them once gotten into their governance, to g●● a● liberty, till they h●d bound them by Obligation or Statute merchant, and enforced them to marry against their own liking, otherwise they would levy the said sum in the said Obligation or Statutes, to prevent danger of forfeiture of the same Obligation or Statute, or further peril to their persons. The purveyance of this Statute, is but a Grant of a Writ, whereby to call before the Chancellor, or before the justices of Assizes in the County, or before some other noble persons, assigned by the Chancellor of England, the persons offending, to make void the Obligation or Statute, if there be cause, with a severe penalty of 300. li to be forfeited by the Sheriff, if he did not execute she same Writ duly, according to the tenure thereof. This Statute was too meek and gentle, something like him that made it. H. 6.   

SECT. XXVII. 3. H. 7. c. 2.  
But 3. Hen 7. cap. 2. beginning with a better complaint against takers for lucre, of maids, widows, or wives having substance of lands or goods, or being heirs apparent, which takers sometimes married them, and sometime des●owred them, to the breach of God's Law, and the Kings, the disparagement of such women, and utter heaviness and discomfort of their friends, ordaineth, that whosoever taketh against her will unlawfully, any maid, widow, or wife, shall together with the procurors, abbetters and receivers of any such women (knowing her to be so taken against her will,) be felous, and every of them been reputed and judged as felons principal. But this extendeth not to taking, where a woman is claimed as a ward or bondwoman. And Mr. Lambard noteth, that anno 3. & 4. Phil. & Mar. this Statute was construed to make no felony, unless the woman married were either taken or deslowred.   

SECT. XXVIII. 4. & 5. Phi. & Mar. cap. 8.  
THerefore to supply what hitherto was wanting against takers, and also intisers, ravishing by allurements and flatterers, 4. & 5. Phil. & Mar. cap. 8. saith, that for want of sufficient Law, it remained still a faml●ar and common mischief in the Realm; That maidens and women children of Noble men, Gentlemen, and others, which were heirs apparent, or had lands in great substance left by their Ancestors or friends, by flattery, trifling gifts, or fair promises of light persons, and also by subtlety of such as bought and sold them for reward, were many times alured to contract matrimony with unthrifty persons, and thereupon oftentimes with sleight or force were taken from their parents, friends or kinsfolk, to the high displeasure of God, the disparagement of the children, and perpetual condolence of their friends; Therefore it is ordained, that it shall not be lawful to convey any maid or woman child, unmarried, or under the age of sixteen years, out of the possession, and against the will of her father, or of such person, to whom by his will or otherwise in his life time, he shall have appointed the keeping, education and governance of her, except such taking, as shall be without fraud by the Master or Mistress, or Guardian in So●age, or in Chivalry, of or to such maid or woman child. And if any person that is above the age of fourteen years, shall convey, or cause to be conveyed, any such maid being within the age of sixteen years, out of the possession, and against the will of the father or mother, or any other person which then shall have by lawful means, the order, keeping, education, or governance of her, the offender duly attainted or convicted (other than such, of whom she shall hold by knight's service,) shall suffer two years imprisonment, without bail or mainprize, or par such fine, as shall be assesed by the Queen's Council in the Starchamber.  
And if any shall take away, and deflower any such maid, or woman child, or shall against the will of her father, or he not knowing (if the father be in life) or without the assent or knowledge of the mother having custody ●nd governance of the child, the father being dead▪ by letters, messages or otherwise, contract matrimony with any such marred, (except it be by the consent of the person or persons, by interest of wardship entitled to have the marriage) he shall suffer (being lawfully con●●ted) five years imprisonment, without bail or maineprise, and pay such fine as shall be assessed in the Starrechamber, etc. the one moiety of all which fines shall be to the Qu●●e and her successors, and the other to the grieved.  
And the Council in Starrechamber, by Bill of complaint or information, and Instices of assize by inquisition or indictment, (in which process shall be awarded, as inditements of trespass at t●e Common law) have authority to hear and determine the offen ●s.  
Moreover, if any woman child, or maid●n▪ being above the age of twelve years, and under sixteen, do at any time consent to such person as shall make contract of matrimony contrary to the form of this Statute, the next of kin to whom the inheritance should come after her death, shall from time of such assent have and en●oy all such lands, tenements, and her editaments▪ as she had in possession, reversion, or re●●●nder, at the time of assent, during the l●te of such pe●son, so contracting matrimony, and after her ●●cease so contracting, etc. then the said lands shalldescen▪ re●e●● remain, and ●ome to such person or persons, (other than t● him that shall so contract matrimony) as they should have done, in case this Statute had never been●m●de● But th●s. At exten●eth not ●o dimmish any liberty, custom, or authority, in London or like corporations, as touching Orphancs, their lands, goods, or chattels.  
See Ratcliffs Case in Sir Edward Coke 3. Rep. fol. 38. upon this Statute of 4. and 5. of Phil. and Mar. In an Ejection firm upon special pleading, a special verdict was thus in effect, that William Wilcokes married the daughter and he●re apparent of john Edol's and Alice his wife, and hath issue by her, john, Elizabeth▪ and Martha, William Wilcokes afterwards by his will in wrighting appoints the order, custody, education, and government of his said three children, to their said grandfather and grandmother, during the grandfather and grandmother's lives, and then dies, the widow of Wilcoke● marrieth Ralph Radcliffe, john Edois dies, and his widow being Tenant in ●ee simple of the lands in question holden in soccage by her will, deniseth them to her grandchild john Wilcokes in tail, the remainder to Elizabeth and Mortha, and the heircs of their two bodies equally to be divided, the remainder in fee to her said daughter and heir apparent, the mother of these three devisées, and dieth, john Wilcoke dieth without issue, his sister Elizabeth married one Andrew's, and he, his wife, and her sister Marth● enter the lands, and were seized accordingly, and Mar●ha abiding with Ralph R●tcl●ffe, and his wife being above fourteen, and under sixteen years of age, with Ralph R●t●l●ffe his consent, and of her own accord departs eight miles off from them, where six hours after she was married to Edward Ra●cliff●, who enters and made the Plaintis●e his lease; And (the issue being whether Elizabeth Ratcliff the wife of Ralph Ratcliff had the custody of Martha the wife of Edward R●tcliffe the lessor at the time of their contract and marriage,) all the judges and Co●rt of King's Bench resolved that Eliz●beth had the governance of her daughter Martha at the time of her contract and marriage within the intent and meaning of the Statute.  
It was resolved in that case, that those words father & mother within the second branch of the Statute shall be expounded father or mother after the death of the father.  
And it was resolved in that Case, that there be two manners of custodies or wardships, the one by the Common Law, the other by the Statute: And that also at the Common Law there are four manners of Guardians, namely, Guardian in Chivalry, Guardian in So●age, Guardian in nature, and Gardina for nurture, and now the Statute makes a new Guardian, namely by assignation; but the mother in that case cannot be Guardian for nurture, because her daughter was passed 14. years of age. But she had the custody of her within the provision of the Act ●ure naturae, and the assent of Ralph Ratcliff the mother's husband was not material, for the custody of a child is an inseparable incident to the parent, and marriage may not transfer that to a husband. And that was resolved, that although the issue was whether Elizabeth had the custody of Martha at the time of the contract, and that did appear, that she departed from her mother's house six hours before the contract, yet in judgement of▪ Law her mother had the custody of her at the time of the contract. And that was resolved, that in that Case Edward Ratcliff, and Martha his wife, had good title to the land against Andrew's and his wife, for the one daughter, as that Case is, shall not take benefit of forfeiture of the other, for the statute gives the forfeiture to the next of kin, to whom the inheritance should descend or come after her decease, during the life of such person that so shall contract matrimony, so, that first he ought to be of the blood, and secondly, to whom the inheritance should descend or come, etc. and although the wife of Andrew's bee of the blood, yet in that Case by the death of Martha, the land if she hath issue, shall deseend to her issue, and if she hath not issue, that shall revert to her mother, etc. but judgement was against the Plaintiff, for that the issue was found against him.  
These are the Laws, whereby rapes and ravishments of women are repressed, which if they be well looked unto, will prove that there is now no cause, why lying L●onicus Chalcondilus should be believed, who writing of Englishmen, affirmeth that we have no care what becomes of our wives and children; That in our peregrinations and travels we interchange and use one the others wives mutually: That we count it no reproach by whom soever our wives or daughters be got with ●hild; That (with us) if a man come to his friend's house, he must lie with his wife the first thing that he doth, ut deinde benigue hospitio accip●arur. And though some of the last recited Laws were unmade, when Chalcondilus did write, above one hundred years since, yet there were then Laws enough to prove him a deep liar; and had he ●éene in England, to have trussed him up too perhaps for lechery, had his learning steaded him no better than his honesty; this is no less cause, why I should be thus bitter against Chalcondilus a dead man, for that it may seem he wrote by hearsay, nullo odio gentis: and in other matters he reporteth honourably of us. But it is strange that a man writing, not a great while since, but even the other day, not at Athens, neither at Rome, or Reams, where they use to belie us head and foot, but here at London should be bold to wr●te and put in print matter to this effect, That beggars and the poorest sort of our women, we do use to punish and to whip them, when they are taken for lechers and dishonest livers, But Gentlewomen and Ladies of honour and worship, they are never punished for incontinency, but rather for their amorous wantonness, and lubricity the more esteemed and magnified. This follow deserveth plainly better to be hanged, than to be believed. For neither is it true that any wom●n with us can better her reputation by dissolute life and manners; Neither can any woman learn a more devilish lesson, than so to be persuaded. And seeing the Lawrs themselves declare what detestation they have of brutish concupiscence, by punishing consent, with l●sse of inheritance; I would I could persuade all women to eschew, not only these gulfs, but also the ecclesiastical Censures, (which I meddle not with) together with the ●●●●my, which they purchase sometime with outward la●●●●iousnesse, from the report of them, which judge a careless liberty in behaviour, an infallible argument of sensuality▪ whereby some men have been emboldened to offer ●or●●, because they thought it was expected.   

SECT. XXIX. Appeals of rape.  
NOw let us consider a little how these Law's 〈◊〉 to be put in practice, if any virgin, widow, or ●●gle woman be ravished, she herself may sue an Appeal of rape, prosecute the fe●on to death, and the King●●●●don (as it seemeth) cannot help him. If a Feme co●●●● be ravished, she cannot have an Appeal without her husband, as appears 8 Hen. 4. fol. 21. But if a Feme ●ouert be ravished, and confent to the ravisher, the husband alone may have an Appeal, and this by the Statute 6. Rich. 2. cap. 6. The husband that this Statute speaketh of, which may sue the Appeal, must be a lawful husband in right and possession, for ne unques accouple in loyal matrimony is a good plea against ●im. 11. Hen. 4. fol. 13. So doth justice Stanford affirm the book to prove without question: and that the Law is so too, where Appeal is brought by Baron and Feme. Brooke abridging the case, 11. Hen. 4. seemeth to incline to the contrary opinion. The case at length is thus, Thomas Hausegle s●●th Appeal de rauishment sa feme against Thomas V and others according to the Statute. 6. Rich. 2. rehea●●●●● in his Declaration the order of the Statute, and that they had ravished her against the form of the said▪ 〈◊〉. The Appell●●● said, the Plaintiff had another Writ hanging, returnable the same term, of the same rape, and because the Writ was not served, he had obtained a sicut alias, Ergo, this Writ of the same nature should abate; Ha●●said, he might pursue which Writ ●e would. And by their writ a Praecipe quod reddat, or an Assize for the like cause shall abate, for of one land a man cannot have two recoveries. But in this case it may be, there were two rapes at several times, etc. and also the first Writ was not entered in the roll, nor the uncut alias in the Record, than the Declaration was challenged as insufficient, because it was ●elonice rapuit, and not carnaliter cognovit: but to that it was answered, that felonious rape implied carnal knowledge, for rape without such knowledge is buttrespasse; Another exception to the Declaration was, that two had ravished as principal, etc. which, Rolfe said, could not be, therefore the Plaintiff ought to have declared against one as principal, and against the other as accessary, or else to have brought several Appeals, whereunto was answered, that it two or twenty go and come together, to commit any felony, as robbery or murder, though one of them only commit the Act, yet all the rest are principals. A third exception against the Declaration was, that the Plaintiff had not showed how his wife assented after the ravishment, and the Appeal was given by W●st. 2. to the Baron and Feme, and not to the Baron alone by the Statute of Rich. 1. But this exception also was disallowed, because the Count had recited the whole purveyance of the Act, and the ravishment was contra formam etc. Last of all, the Appellées pleaded, that long time before the espousals, betwixt the Appellour & the woman supposed to be ravished, one of the Appellées had affianced the same woman, after which affiance the Appellour married her, at a certain Church against her will, (after which marriage, whereunto she never agreed) she came of her own accord to the Defendant who had now married her, so that the Appellour and she were never coupled in loyal matrimony. This manner of pleading was said to be a con●ession both of the first marriage and of the ravishment, which the Council would have taken by protestation. But ●●●scoigne told them, they might not have protestation, to prove them guilty of felony. Therefore the Defendant pleaded generally, Ne unques accouple. etc. which the Plaintiff accepted of his own accord, and a Writ was awarded to the Bishop. But all men's opinions seemed to be, that this was no good plea, because the Statute is, that the husband shall have the Appeal, though they agreed that when the Action is by Common Law, as an Appeal De morte viri, ne unques accouple, is a good plea, for no woman shall revenge her husband's death by Appeal, unless she were wife as well in right as in possession.  
The Statute of Richard giveth the Appeal, where the woman ravished hath no husband, to her father or next of blood, etc. which is understood ut supra, where the woman consenteth to the ravisher, for otherwise the woman herself must pursue the Appeal, upon West. 2. cap. 34. for the father cannot have by the Common Law, either Appeal of rape of his daughter, or of death, either of son or Daughter: But it seemeth that by this Statute, if a woman be next heir to her which is ravished, and consenteth, she may have an Appeal of rape against the ravisher, as well as any prochevie heir male may. And learn, If a woman which is ravished dye, and her husband takes another wife, whether he may now have an Appeal or no. It is said, that if a Lord ravish his Nief, she cannot have an Appeal of rape against him; but the King may punish it by way of Indictment.   

SECT. XXX. Within what time Appeals of Rape must be commenced.  
BY Bracton, Si virgo sit corrupta & oppressa con●●● pacem Domini Regis, she ought to go strait way, D●● idem factum recens est, and with ●ue and Cry complain to the good men of the next town, showing her wrong her garments torn, & 〈◊〉 and then she ought to go to the chief▪ Constable, to the Coroner, and to the Viscount, and at the next County to en er her Appeal, and have it enrolled in the Coroners ●oll: and then day was to be given her, till the coming of the King's justices, before whom she was again to re-intreat her Appeal, and if she varied from the Coroners roll, she lost her suit. Bri●ton toeth the commencement of this Appeal to forty days after the fact, agreeing with West. 1. ●ap. 13. But by this Statute (saith S●a●ford) rape was but trespass, insomuch therefore, as it is since made felony by another Statute, and no time limited, within whi●h the suit shall be beg●n, it seemeth a woman is at choice to bring it when she listeth, so that she exceed not time reasonable.   

SECT. XXXI. Within what County Appeal of Rape shall be brought.  
Appeal of rape must be brought within the County, where the ravishment was committed, and if a man take a woman against her will in one County, and leading or carrying her into another County he there ravisheth her, the Appeal must been where the ravishment was committed: and though the Declaration be, of taking in another County, yet the trial shall be only where the Writ was borough, Titulo v●s●e, in Fi●zherbert 28. And it seemeth, that to speak of the taking in another County▪ in a Declaration of Rape, is but surplusage and more than needeth, for it abates not the Count if it be left out. But perhaps such a leaving out in Action of trespass, would abate the Writ, because the Plaintiff is to recover▪ damages▪ for the taking in another County, and they of the County where the Writ is brought, cannot assess damages for the taking: But in this Appeal there is nothing to be recovered, but only that the offender s●ffer death for his offence.   

SECT. XXXII. The Declaration in Appeal of Rape.  

47. E. 3. fol. 14.  IS a good form of Declaration in this Appeal, where in a Writ of Appeal of rape, the plaintiff counted, how she was in God's peace and the Kings, such a day, such a year, and in such a place, and the Defendant came feloniously, and as a Feion against the King's Crown and dignity, then and there did r●●i●●●er, and carnally know her, and that she did pursue him from Town to Town, and from County to County, till he was taken at her suit; and that A and B. were at the same time and place in force and aid of the same Felon, etc. And if the Defendant will this deny, she is ready to prove it, as the Court shall award, that a woman aught.  
But know that the several Statutes have made two several forms of Appeals of rape, one upon the Statute of West. 2. and in that there needs ●● mention of any Statute. But in the other which is upon the Statute of Richard, the use is always to recite the Statute in the Declaration, and that the words, Contra formam statuti, implieth sufficiently, that the woman hath consented to the ravisher.   

SECT. XXXIII. Pleas to the w●it.  
PLeas to the Writ may be many, as false ●atine, or want of ●or●●, or that the Plaintisse hath another Writ hanging, of the same felony, as is s●ewed you before ●● the other Appeal. And 5. H. 6. Fol. 1. Exception was taken against the Writ ●● Appeal of ●ap●, because it was ad respo●dendum the Plaintiff se●und●m formam sta●●ti, etc. Whereas it ought to have been, Vnde eum appellat secundum formam statuti. Whereunto it was an●●dred, that the Statute of 6. ●. 1. giveth not the Appeal, for that is by the Common Law, but he must answer according to the Statute, which oute●h battle; for the Statute saith, Ad duellum vadiandum non recipiatur & issint le brief bone.  
Another exception was taken against the Writ, because it was not, felonice rapuit, but the Defendant durst not stand upon it, but pleaded over, rien culpable; for rapu●t implieth felony. But in every Appeal of rape, if the Writ want the word rapuit, it shall abate, though it have words amounting to as much as car●●●●ter cognovit, or any such ●t●●e, 9 E. 4. ●ol. 26.   

SECT. XXXIV. Pleas to the Action.  
THough it be true, that where ●●● shall be charged with rape in Appeals or otherwise, it ●ust be by the Word rap●it, and ●●t carnaliter cognovit only, y●t by Bracton it is a g●●d plea in Appeal of rape to say, Non abstullt e●●ucellagium● suum, qu●a a●●u●h v●●go est▪ & ve●i●●● probab●●u● p●● asp●c●●●●o●po●i●, & pe● quatuo● legales fem●nas iurat●s de ve●itate dicenda, quaere. Stamford saith it is a good plea for the Defendant, though h●e lay with the woman, yet he did not carnally know her, for the force of the Declaration resteth in that. And by ●●i●ton▪ fol. 45. If at the time of rape supposed, the wom●n conceive child, there is no rape▪ for none can conc●●●e without consent. Also by Bracton, it is a good plea, to say that before the rape supposed, he kept the Plaintiff, and used her as his Concubine. But by the same Bracton, it was no plea to say she was another man's Concubine, or Harlot, Quia licet meret●●x fuerit a●ea, cer●●●●●c ●emporis non fuit, cu● nequi●iae eius reclamando consenti●e noluit.  
And note, if she which is ravished, assen● for fear of death at the time of the ravishment, ●t ●s a rape▪ against her will, notwithstanding such consent; for assent must ●e voluntary, per curiam, 5▪ E. 4. Crompton, 44.   

SECT. XXXV. A question what is meant by ravishment with force, in W●st. 2. cap. 34.  
STamford leaveth it doubtful, and to be learned what the difference is betwixt ravishment with force, and without force. M. Lambard thinketh the word to be but declaratory, signifying all ravishment to been forcible. And it is true, that no woman is ravished in this sort only by parroll, or influence of Rhetoric. But in mine opinion, the Statute must needs intent two kind of ravishments, because it maketh one more odious than the other▪ and propoundeth death inevitable to him which ravisheth with force, though the woman forgive h●●, and cons●●● to him. A more detestable villainy▪ I think, therefore was meant in this parase, of him which being himself overcome with concupiscence, overcometh a woman hand to hand, by length of breath, and strength of his own sinews. You shall understand therefore, that about those days there was an Appeal of ●or●e in use, as it were against the ravishers yeomen of the stirrup, vi●. against him or them which were holder's, and assisters to the principal carnal oppressor, as appeareth about the end of the 28. Chapter of Bracton, Lib. 3. Eadem A. appellat C. quod eadem die eodem anno, etc. quo predict▪ B. & eadem hora dum idem B. abstulit pucellagium suum fuit idem C. in fortia, ita quod tenuit eandem A. dum idem B. abs●ulit pucellagium suum, vel concubuit cum ea, postquam, etc. Such fellows were termed appellati de fortia, and they which take such Coadjutors, might very well be called ravishers with force and aid, of all other most hateful, in judgement of all indifferent honest women.   

SECT. XXXVI. De muliere abducta cum bonis, etc.  
THis Statute toucheth also the most covetous ravishment, that is, when a man's wife and his goods are ravished together: so much against woman's mind, that she is loath to leave either money or plate behind her, and because some men used in those days, to let their goods go, lest otherwise they might perhaps call their wife's home again, the suit is given to the King, if the husband neglect it, 44. Assi. p. 12. A man brought a Writ of trespass against a Knight and his Lady, and two others in Bank le Roy, for taking away the Plaintiffs wife, and his goods, and they all came by Capias in custody of the Viscount, and the Plaintiff counted of ravishment of his wife, and his goods carried away, etc. a protection was showed forth for the Knight and his wife, and allowed, and judgement was demanded of the Writ, because the Plaintiff and his wife were divorced. justice's Kniuct said, that though the woman were dead, the husband might have the Action of ravishment notwithstanding, a●d so is it if they were divorced. For he was not to recover his wife by the Action, nor any thing else, save damages for the trespass. Then it was said, the divorce was causa frigiditatis; Knivet said, the weather might wax warmer with him, Il poet recoverer son nature, & overer come home, & reaver sa feme; and therefore answered to the Writ. Then judgement was asked again of the Writ, because it was against a man and his wife, and one woman cannot ravish another, sed non allocatur; for a woman may be assenting or aiding to any ravishment, therefore the Defendants pleaded none culpable. The very same, or very like case is again, 23. E. 3. 23. See 21. H. 7. fol. 13. The opinion of Fin●ux, that it is lawful for a man to travel with another man's wife to London, at her request, and to carry her behind him, when she will ride to sue a divorce, or a reversment of outlawry, or for a warrant of the peace, against her goodman. Yaxley was of contrary opinion. And where the party which taketh another man's wife, cum bonis, etc. is indicted at the King's suit of trespass only, the Indictment is, Quod vi & armis, Mariam uxorem cuiusdam A. B. apud S. rapuit, & ●am cum bonis & cattallis, viz. etc. ipsius A. B. cepit & abduxit, & ●a ●idem A. B. adhuc iniuste detinet, contra p●cem, etc. & contra formam statuti, etc.  
So likewise at the husband's ●●it the Writ is, Attachias B. quod sit coram nobis, etc. ad respondendum prefato A. quare vi & armis uxorem prefati A. apud N. rapuit, & ●am cum bonis & cattallis, etc. ad graue d●mnum, & contra formam statuti, etc. as appears by Fitzherbert. So that you see the difference betwixt rapuit in Trespass, and in Appeal, or Indictment of felony. Presidents whereof are in M. La●●bards Book, and M. Crompton●.   

SECT. XXXVII. The case of Elizabeth Venor.  
NOw that women may learn to stand upon their own guard partly, and not trust altogether to defence, or courtesy of Laws, which are not more rigorously penned, than sometime put in execution against them, let them mark● this ca●e. Lands were given in ●a●le to William Vexor, and to Elizabeth his wife, and to the heirs of their two bodies, the remainder to the said Elizabeth and the heirs of her body, the remainder to Robert Babbington in tail, the remainder to the right heir of T. S. father of Elizabeth. William Venor died without issue, and Elizabeth being sole seized, was afterward ravished by john Worth, which after that h●● had married her, was indicted of rape, and took sanctuary at Westminster, Elizabeth his wife being there with him, was advised to disassent, and to part from him to save her inheritance, which she refused to do, and was afterward brought before the Council in the Star-Chamber; being there demanded if she assented or not, and she answered, that john Worth was her husband, and she would not forsake him, whereupon the issue of Robert Babbington, (Robert being dead) entered upon her land by the Statute of 6. R. 2. which willeth (saith ●rook●▪ if any woman assent to the ravisher, that he to whom the land should descend, revert, remain, or escheat may enter. And though it were contessed, that there was another person, more near in blood to Elizabeth than was this issue of Robert Babbington▪ yet because he was next in remainder, his entry was lawful. But Eliz●beth did ●ust him, and h●● brought an Assize: Then to prove the assent, it was gi●en in evidence that she had married him, assenting to him as well in Sanctuary, as before the Council. And for Elizabeth▪ it was alleged, that the espousal and all the assenting were by dures and force, and for fear of the ravisher, which might not be called assenting, for none consenteth but frankly, voluntarily, and sans féare, Quod videtur Lexibidem. But in the end, because she might have disagréed before the Council, and did not, her assent was holden voluntary, and the Assize passed for the Plaintiff. And it was agreed for Law, that if title of entry into lands be given to a daughter by force of this Statute, and she entereth: that she shall retain and enjoy them, notwithstanding the birth of any son Posthumus coming afterward, though he be more near, or worthy of blood. And so it is generally where the entry is given by Statute: but if by Common Law, adiscent been cast upon a daughter which entereth, she must give place to a son borne afterward. It was remembered in this case, that in former time a woman being ravished, after she had continued seven years with the ravisher, and had borne him a child, escaped from him, and sued in Parliament in the time of H. 6. against him, till he was attainted. And being demanded how she could now say, that she never assented, having conceived, etc. she answered, that her flesh consented to him, but her soul and conscience did ever abhor him, 5. E. 4. fol. 58.   

SECT. XXXVIII. The Statute 18. Eliz. cap. 7.  
I Am at the end of my voyage; but before I take shore I will ●hew you how our late most excellent Lawgiver, renowned Queen Elizabeth, (whose vigilant care hath always been, that all her people might live under her in peace, and without oppression) hath given strength and perfection to the former functions of other Princes, to make them a firm bulwark against all manner of iniurers that possibly might oppress women; and I can but marvel, that when so da●●abl● a crime ●● rape, had given so often to the whole Realm, such cause of bitter complaint; and men in sundry ages, had beaten their brains so carefully in finding out remedy against it: how it was possible, so long space together, to lea●e such a privilege to him that could read the blessed Psalms of Mi●erere, etc. that though he had ravished the fairest Lady in the Land, he might almost go away without touch of breast for it. Therefore the eighteenth of Queen Elizabeth, for repressing of felonious rapes, and ravishments of women, and of felonious Burglaries, it was enacted that they which were found guilty by verdict, or by confession, or outlawed of or for such felonious Rapes or Burglary, they should suffer death, and forfeit as in cases of Felony had been used by the Laws of the Realm, without allowance of privilege, or bene●●t of Clergy. Further, that they which were in other cases to have benefit of Clergy, should immediately after burning in the hand, according to the Statute in that case provided, be forthwith enlarged by the justices▪ and not be delivered to the Ordinary. But yet that the justices▪ before whom the Clergy shall be allowed, may detain such persons in prison for correction, as long as they shall think convenient, so it be not above a year: Then because in the fourtéenth year of her Majesty's reign (as you may perceive in Die●, fol. 304. in the case of a Scot which had ravished a girls, being not past seven years old, the justices were in doubt whether rape could be of a child of such tender years, not yet nine years old, and therefore they went not to judgement of the Scot, though by evidence of diverse Matrons he seemed guilty, this Statute ordaineth, that if any person, unlawfully and carnally, know and abuse any woman child under age of ten years, every such unlawful and carnal knowledge shall be felony, and the offender being duly convicted shall suffer as a Felon, without allowance of Clergy. And as M. Lambard and M. Crompton do both of them note, it is not material whether she consent or no, for the Law adjudgeth her unable to consent, at so tender age. The last proviso of this Statute is, that they which are admitted to their Clergy shall answer to all other manner of felonies, whereof they have not formerly been acquitted, convicted, attainted, or pardoned, as they should have done, if as Clerks convicted they had been delivered to the Ordinary, and made their purgation.   

SECT. XXXIX. The Statute 39 Eliz. cap. 9  
LAstly, because this exemption of Clergy was leveled only against Burglaries, and felomous rapes by violence, and of the antique Faulkoners fashion, leaving unto covetous rautshers by abduction, and I might say by insinuation, the benefit of their Book, by reason whereof diverse maids, widows, and wives, had of very la●● days, been first carried away, and then defiled, married, etc. It was enacted at the first Parliament, begun Ann. 39 of the late Queen Elizabeth, That whos●euet shall be convicted, or attainted, of or for any offence made felony by the Act above specified, 3. H. 7. or which being indicted, or arraigned, of or for any such offence, shall stand mute, or make no direct answer, or shall challenge peremptorily above the number of twelve, shall in euer●● such case suffer death, without benefit of Clergy, provided that nothing in this Act contained, shall extend to take Clergy from any person or persons, which ●●● not either principals, or procurors, or accessaries, before the offence committed.   

SECT. XL. The Conclusion.  
THus have I sailed betwixt the capes of Magna Charta, and Quadragesima of Queen Elizabeth, collected the statutes principally belonging to women, conjoining customs, cases, opinions, sayings, argumeuts, judgements, and points of learning of like sort and subject, dispersed in our Law books: now coming to take haven, God grant I may fall in at port Grace, and good acceptance of all that shall read what I have gathered, they which are less learned than myself in this study (which I account to be those, that have but newly taken acquaintance of Littleton) may spend some t●me here, not without some fruit and profit. They that are better learned than I, (into which company some may crowd, that perhaps might be challenged of intrusion) will give me no thankes for my pains. Rather I must thank them if they vouchsafe to read them without open scorn and bitter censuring; but they to whom my travels are chief addressed are women, so many as bear the title of honest women, how good and virtuous soever they be, I s●e not how they can scape the taint of ingratitude, if they give not a reasonable favour and applause to my good intention and labour, whereby things behooveful for th●m to know are laid plain together, and in some orderly connexion, which heretofore were smothered, or scattered in corners of an uncouth language, clean abstruded from their sex. Which concealment, because it seemed to me neither just, nor conscionable, I have framed this work, admonishing them not to take it for so strong and substantial a pée●e as London bridge is, whereon you may boldly set up great buildings; but I willsay to you, as Littleton said in his Tenors to his son: There ●ée some things in these Books which are not Law, yet even those may enable you the better to understand the reasons and arguments of Law, and to confer and inquire what the Law is, amongst the sage Masters thereof.   
FINIS.