demand made of the rent by her husband hee shall haue Courtesie in the rent notwithstanding So it is if an Advouson in grosse descend to a woman married hauing Issue c. though she die afore auoydance the husband shall present and though the Bishop after the descent present by lapse yet the husband shall haue the second presentment for there cannot in these things possession be taken maintenant and at all times as they be in Lands And take with you here these Cases out of Dier 1. Ma. fo 95. Tenant per Cheualrie in cap. dieth his Daughter and Heyre being vnder age office is found and the King grants the wardship of body and Land to me which marrieth the ward and hath Issue by her and after shee accomplisheth the age of sixetéene yeares and the King is satisfied for the two yeares profit they tender a generall liuerie and before it be past the Wife dieth the Baron shall haue the Courtesie come semble saith the Booke And 6. Eliz. Dier 229. the like descent is to a Daughter and married hauing Issue by her husband and she dieth ten dayes after her Father no Liuery being sued that is found by office the Baron shal be Tenant by the Courtesie and shall sue liuery SECT XLIII No Courtesie of reuersion after estate for life THe seisin must be to the Wife in estate of Inheritance not mangled or cut off from the Frank Tenement and therefore by Parkins where a Woman an Heyre enters after her Fathers death and being seised in fée-simple makes a Lease of her Land to I. S. for terme of his life if she now marry haue Issue and die during the Lease the Husband shall neither be Tenant by the Courtesie of the Land when it reuerts nor of the rents in the meane while Also 8. assi p. 6. If a Daughter and Heyre enter endolâ— den and haue Issue by her and the condition being broken she dyeth if now the Feoffor enter the Feoffée shall not be Tenant per le Curâ—esie of the Seignorie But if a feme sole haue a rent or common in or out of certaine Lands and the Tenant leasseth the Land to a stranger during the life of I. S. and the woman intermarrieth with the Lessée hath Issue and I. S. dyeth now if the wife die the Baron shall haue Courtesie in the rent or Common And if the Tenant leased his ground for 20. yeares and a woman hauing in the ground a rent charge in fée intermarrieth with the Lessée c. dieth during the terme it is a question in Parkins whether the husband shall haue Courtesie in the rent after the terme determine see Parkins cap. By the Courtesie SECT XLVII No Courtesie of a bare vse IF a Woman sole seised c. make a feoffement to the vse of her selfe her heyres and then she marrieth hath Issue and dieth before any estate in the same lands be againe by entry or otherwise executed to her her husband shall not be Tenant by the Courtesie and this aswell after the Statute of 27. H. 8. as before if the Feoffement were since the Statute SECT XLVIII What Husband may be Tenant by the Courtesie and of what estate WHere the Wise is actually seised of Lands in â—éesimple see-taile generall or as Heyre of sée-taile speciall the second Baron may bee Tenant by the Courtesie as well as the first for so is the Maxime And Parkins Fitzherbert and Brooke haue all of them the Case 21. H. 3. viz. A woman Inheritour hath Issue by her Husband and he dieth she takes another Husband hath Issue by him and that Issue dieth the woman dieth her second Husband shall be Tenant by the Courtesie Bracton agréeth also who when hee hath shewed this Ciuilitie of England concludeth Quod dicitur de primo diâ—i poterit de secundo siue de primo viro haeredes apparentes extiterunt siue non plenae aetatis vel minoris But hee addeth Quod iniuriosum est secundum Sâ—ephanum de Segraue qui dicebat quod lex illâ— male â—uit intellecta male vsâ—tata Nam quod dicitur de lege Angliae intelligi debet de primo virâ— communibus haeredibus non de secundo maxime cum haeredes apparentes extiterint de primo My mind giues mee that hee said truth and that Law turning a little out of her Channell here before Iustice Segraues time could neuer since bee brought to her course SECT XLIX Of speciall Taile BEfore West 2. cap. 1. all the Estates which wée now call tailed that is curtailed or cut off were sée-simple Conditionall If Lands had béene giuen to a man and a woman in Franke Marriage or to them and to the Heyres of their two bodies which gifts make now a speciall Taile as soone as they had Issue the Condition was thought to be performed And as a woman suruiuing her first Husband in this case might alien the Land so might she by bearing a Childe to her second Husband c. this makes him Tenant by the Courtesie be inforced to proue that the Childe sent forth some voyce or cry arguing life and naturall humanity for if it bellowed bleated brayed grunted rored or howled there accrued no courtesie by getting such an vnciuill vrchin By him therefore there must be a naturall crie heard inter quatuor parietes for he saith though a Child be borne mutus surdus tamen clamorem emittere debet sive masculus sit siue foemina nam Dicunt E. vel A. quotquot nascuntur ab Eâ—a E. or A. all crye that from Eue come Though they be borne both deafe and dumbe Non sufficit igitur tantum baptizatus scpultura yâ—t 28. H. 8. Dyer fol. 25. sets downe Fitzherberts opinion that a man may be Tenant by the Courtesie though the Childe neuer crie car paraduenture lissue soit nee dumbe And so saith Parkins 9. 4. 7. viz. that if the issue bee borne aliue though it die before it be heard crie or before it be baptized for that is a matter also with Bracton if there were no lachesse contumacie or contempt in the Baron he may be Tenant by the Courtesie But by negligence or by contempt he shall preiudice himselfe ascuns diont SECT LI. A Childe borne beginneth the title of Courtesie NOw this hauing a Childe is such a matter as it séemeth that maine tenant thereupon the title of Courtesie beginneth for example if a bond woman purchase Land and marrie if the Lord enter before Issue be had no Childe borne afterwards shall make the husband tenant by the Courtesie But if the Baron haue Issue by his wife before the Lords entrie he shall be tenant by the Courtesie and the auourie from that time forward shall rest vpon him solement And the possession in Law if the wife die shall not light vpon the Heyre but vpon the Baron which shall be tenant to euery praecipe Câ—o est cleere lei Brooke out of the Doctor and Student vide Brooke
pere he shall be fore-closed for the value of so much as is descended If after the Fathers death any heritage descend from the Father the Tenant shall recouer against him of the mothers seisin by a writt of indgement out of the rolles c. which the Iustices before whom the plea was pleaded shall grant to re-sommon the warrantie as hath béene accustomed in other cases where the voucher pleads â—iens a luy descenâ—râ— from him vpon whose deed he is vouched c. And in like sort the Issue of the sonne shall recouer by Writ of Cousinage aile or besaile In like manner the Wiues heyre shall not be barred after the death of his father and mother to demand by Writt of entry his mothers heritage which his father in her life time aliened dont nul fine est le uie in court le roy SECT XVII Mr. Littletons glosse vpon the Statute of Glocester BEfore the Statute saith M. Littleton if Tenant by the Courtesie did alien c. in fee with warrantie onely this after his discease should barre the Heyre for this was a collaterall warrantie before the Statute Since the Statute it is cleere that whether tenant by the Courtesie or tenant in the right of his wife doe alien the wiues heritace or marriage by his deede in pais which warrantie leauing none assets it is no barre to the heyre But what if the Baron alien by fine leuied in the Kings court with warrantie shall this barre the heyre without any thing descended in value Newton Chiefe Iustice of the Common place thought it should by implication of words for hee tooke dont nul fine c. to be a generall exception and therefore this alienation by fine with warrant to remaine a collater all warrantie as it was at Common Law But Littleton giueth his voyce with them of contrary opinion which thought it an obscure exposition to permit irreuocable alienation by Tenant in droit sa feme onely by his warranting concord without assetts when the Statute hath in the beginning taken it expresly from tenant by the Courtesie alienating by Feoffement Nul fine therefore is as much to say nul loyall fine rightfully leuied viz. a fine leuied by Baron and Feme for it is true that before this Statute was made and somewhat after it too there was no estate taile come into England A fine might then well and rightfully haue beene leuied by Baron Feme the Barons heire be bound with warrantie and the wiues heire barred for euer But now since the Statute if Baron and Feme had made a feoffement in fée by deede in the Countrey the womans heyre after decease of them both may haue a Writ of entry sur cui in vita for all the husbands warranty And this Statute of Glocester had left a fine no more force then a feoffement here if the finall exception had not beene for when it comes with insemente in mesme le manner giuing a writt of entry to auoyd the alienation made by the father in the mothers life time this might be extended perhaps to a fine leuied by them both for where the Baron and feme doth alien by fine its true that the Baron doth alien Lest therefore a fine leuied by Baron and Feme should be thought to be inféeblished this exception of a fine was necessary and it is to be intended of a fine loyall For when the Iustices know once that tenant in right of his wife commeth to leuie a fine onely in his owne name they will not receiue it SECT XXI Dyers Exposition LIttleton in this discourse seemeth to speake as if hee tooke a warrant without assets made by tenant per Courtesie or iure vxoris to bee no collaterall warrantie now a dayes whereat I maruell A man may haue a veyne cut vnder his eare that shall disable him from performing a great part of manhood but he shall be a man notwithstanding and a horse may be so foundred that he shall neither well goe or stand and yet a horse still So this kinde of warrantie gelt or foundered by Statute remaines collaterall nomine specie Dyer is so fo 148. at Common Law saith he garrantie by tenant per le courtesie was collaterall vncore est come ieo intend But it it is no barre in Mortdancester aiel or cousinage without assets in fée simple descended ie facto whereas before the Statute it was brought to bee intended and supposed and this Statute is taken strictly for the law at this day is come ieo intend if the heyre doe not enter vpon the aliene of his father in vita patris that he shall be bound and barred of his entry by the warrantie If the Father be disseised and release with warrantie the heyre shall be barred without assets both of entry and action also for this is none alienation by tenant by the Courtesie In the last point of the Statute of Glocester for alienation by the husband in vita vxoris c. if he alien the purchase of his wife with warranty this is out of the Statute for heritage or marriage is not intended purchase by her So much my Lord Dyer note that both he and Littleton stand vpon the word Marriage which indeed is not in the letter of the Statute SECT XXII The Statute of 32. H. 8. ca. 28. WEe haue passed the pillers not of Hercules but of Littleton in the Husbands power ouer his wiues Inheritance now let vs looke plus vltra with Columbus King Henry the eight and the Parliament ordained in the yeare aboue specified That all Leases of Mannors Lands Tenements or Hereditaments hereafter to bee made by Indenture sealed for yeares or for life by any person or persons being of the age of one and twenty yeares and seised in fee-simple or féetaile in the right of themselues their Churches or wiues or iointly with their wiues of any estate of Inheritance made before Couerture or after shall be good c. against the Lessors their wiues heyres and Successors c. according to the estate comprised in such Indenture of lease in like manner and forme as if the Lessors and euery of them at time of the Lease making had beene seised in pure fée-simple to her owne onely vses prouiso that this act extend not to Leases made of Mannors Lands Tenaments or Hereditaments being in the hands of any fermor or fermors by vertue of any old Lease vnlesse the old Lease be expired surrendred or ended within one yeare next after making of the new Lease nor shall extend to any grantée of reuersion c nor to any Lease of any Mannors Lands Tenements c. which hath not beene commonly let to ferme or occupied by fermors by space of 20. yeares next before such Lease nor to any Lease made without impeachment of waste nor to any Lease to be made for aboue 21. yeares or thrée liues at the most from the day of the making thereof And vpon euery
such Lease there shall be reserued yearly to the Lessors their heyres and successors to whom the Lands should haue come after the Lessers death if such Lease had not béene made or to whom the reuersion shall appertaine so much or more annuall ferme or rent as hath béene most accustomably yéelded c. within twenty yeares next before such Leases were made And euery person to whom the reuersion shal appertaine after the death of such Lessors or their heyres shal haue such remedies a aduantages to all intents against the Lessées their executors or assignes as the Lessor might haue had So that if the Lessor were seised in in speciall taile c. the issue or heyre of that speciall estate shall haue the reuersion rent and seruices c. Prouiso that the wife bee made party to euery Lease made by her Husband of any Mannors Lands Tenements or Hereditaments being the wiues Inheritance and that euery such Lease be by Indenture in the name of the Husband and the Wife and she to seale the same And that the ferme be reserued to the Husband and wife and to the heyres of the Wife according to her estate of Inheritance And that the Husband shall not in any wise alien discharge grant or giue any the rent or any part therof longer then during Couerture without it be by fine leuied by the Husband and wife but the rent shall remaine descend reuert or come c in such sort and manner as the land should haue done if no such Lease had béene made prouided that this act extend not to giue liberty of taking more fermes c. then before was lawfull c. nor inable Vicar or Parson to make or grant their Lease of Messuages Lands Tenements Tythes c. or Hereditaments belonging to their Church or Uicarage And it is further enacted that all Leases made within thrée yeares before the twelâ—th of Aprill in the 31 yeare of H. 8. made by Indenture sealed by person or persons of full age of whole memory not vnlawfully coacted nor vnder Couert Baron for terme of yeares of any Mannors Lands tenements or Hereditaments whereof the Lessor or Lessors were seiâ—ed in any estate of Inheritance to their onely vse at the time of their Lease-making and whereof the Lessées their executors or assignes at time of this act Making were in possession by vertue of the Lease no cause of re-entry or forfeiture being had or made shall be good and effectuall in law against the Lessors their heyres and successors according to the couenants and agréements specified in the Indenture c. so that there be reserued to the Lessors their heyres successors c. as much yearely rent as was at any time yéelded within 20. yeares before making of any such lease or else the Leases to be of none other effect then they were of before this act And moreouer it is ordained that no fine feoffement act or acts to be made suffered or done by the husband onely of any Mannors Lands c. being the Inheritance or fréehold of the wife during Couerture betweene them shall in any wise be or make any discontinuance or be preiudiciall to the said wife or her heyres or to such as shall claime right title or interest by her death But that shée or her heyres or they to whom such right or title shall appertaine after her decease shall and may lawfully enter into such Mannors Lands c. any such fine feoffement or other act notwithstanding except fines onely leuied by Baron and Feme wherunto the wife is priuie and a partie Prouided that this clause extend not to giue any liberty to any Wife or her heyres to auoid any Lease hereafter to bee made of any her Inheritance by her husband and her selfe for 21. yeares or vnder or for thrée liues at the most whereupon yearely rent shall be reserued vt supra Prouided also that this act extend not to any Lease heretofore made by Ecclesiasticall or other person by Coâ—eâ—t or Common-seale which Lease is made voyd by act of Parliament nor to make good any Lease of any Ecclesiasticall person made by câ—uent seale or otherwise or of any other person attainted of â—reason c. SECT XXIII The Exposition THis Law in the first part is affirmatiue or I may say leasatiue a leasing Law or Statute Tenant in fée-simple iure mero suo nothing restrained by it No more is Tenant iure vxoris but he may make a Lease for yeares to continue till the last hower of Platoes great yeare or till King Arthur come againe for all this Statute for no greater rent then thrée bundle of bulrushes as well as he might before although her land were neuer leased before since Noaâ—s floud and such a Lease shall bind him during Couerture But if the Husband make a Lease by paroll or by poll déede or by Indenture and the wife not partie or if the Land were not informer times demised or if the ancient rent or more be not reserued then as the earth stayeth in the worlds center vpon nothing but Gods prouidence and permission the Demisée leaneth vpon no Statute but hangeth at the wiues courtesie ponderibus librata suis as at Common Law SECT XXIV Law before the Statute HOw that was yée shall perceiue by the cases following If before the Statute of quia emptores tenant in fée iure vxoris infeoffed a stranger expressing no tenure the feoffés was to hold of the Baron by such seruices as he and the Wife held by of the Lord Paramount If the Baron and Feme had ioyned in a Feoffement to hold of the Baron c. th expressed tenure had béene voyd and the Feoffee must haue held of them both by such seruices as they held ouer c. If the Baron in this case had died and the Wife accepted the rent in her viduity this acceptance here barred her for euer from auoyding the Feoffement by Writt of cui in vita If Tenant iure vxoris and his Wife had made a Feoffement to hold of the Wife the Feoffor should haue held of them both and if the Wife had died the Feoffor was to hold of the Baron till the feoffement were auoyded by sur cui vâ—a Par. 126. Againe if before this Statute of 32. H. 8. Tenant in fée iuro vxoris and his wife had ioyned in exchange for other lands in fée and the exchange being executed the Husband had dyed now the Feme by entring in vpon the Land giuen her vpon the exchange should be barred for euer from defeating the exchange But if it had béene made by the Baron alone she might haue defeated it notwithstanding her entrie for that could giue noseisin by force of the exchange to her that was neither partie nor priuie to it Par. fo 8. And if a man seised in right of his Wife c. make a Lease for life rendring rent with a letter of Atturney to his Wife to make liuery the Wife deliuers
Hill 18 E. 2. it was held by Herle Iustice that the Writ lieth well enough for him in remainder And Tri. 31. E 1. the heire in taile maintained a writ of entry in Consimili casu vpon alienation made by tenant le curtesie SECT XXXI The Writ of Entrie ad communem legem THe Writ of Entry at Common law is giuen in Case where Tenant in Dower or per curtesie or for life doth alien in fée or in taile or for life c. now if the Tenant which aliened doe dye hec in the reuersion must take this Writ of Entry ad communem legem which is very like the former Writs and may be in the per cui post If a woman recouer Dower alien and dye the Writ of Entry ad communem legem must make mention of the recouery And if Tenant by the curtesie aliâ—â— in fée and dye he in the reuersion if he be heire in fée simple may sue this Writ or his Assise of Moâ—â— dancester giuen by the Statute of Glocester ca. 3. If Tenant for life alien in fée and dye the Writs for him in reuersion are in diuers formes for if hee haue the reuersion by discent the Writ is in quod idem A. non habet ingressum nisi per C. câ—i D. pator vel antecessor of the Demandant cuius haeres c. demised c. But when the Demandant himselfe made the lease to him which aliened then the Writ is or may be Pâ—aecipe quod recidat c. omitting these words quod clomat vt ius haereditatem and note if Tenant for life alien in fee and dye hee in reuersion may chuse whether he will haue this writ or an ad terminum qui praeteriit If Tenant for life grant his estate and hee in reuersion grant his reuersion with Atturnement if now the Tenant which atturned alien in fée the grantée of the reuersion shall haue a Writ mentioning the grant and assignation c. SECT XXXII More of forfeitures and how a particular Tenant may forfeit his estate without alienation NOte If Tenant for life lease the land to I. S. for terme of life of I. S. which dyeth the first leasâ—e still liuing hee shall not haue the land againe because hee leased more than was in him and therefore hee in the reuersion shall haue it But if two be seised for life the inheritance in fée to one of them and ioyne in a lease for life and the leasee dyeth they shall bee ioynt tenants againe ê‘ Littleton 13. E. 4. fol. 4. Because hée which had the fée was priuy to the lease and so the other gained no new reuersion It is yet further to be vnderstood both that he in reuersion may enter vpon alienations made by particular Tenants vt supia to his disinheritance without suing the aboue mentioned Writs And also that there are sundry other forfeitures to the Reuersioner besides expresse alienations which I would haue widdowes to take héed of 6. Edw. 3. fol. 17. In Action of waste by an Infant against Tenant by his fathers demise he pleades that the father confirmed his estate to haue and to hold to him and his heires in fee by his déed shewed to the Court Iudgement si c. It was said for verity that if the claime were found false the heire might enter Page 64. in Fitzh And if a reuersion bee granted by fine and the conuse brings a quid iuris clamat against the Tenant for life which pleadeth that shee hath estate in taile by deuise in Testament from the Commissors if it bee found by verdict that shee hath but estate for life that estate is forfeited Quod vide Plowd fol. 212. in Saunders in Fremans Case where the entry for the conusée is consideratum est pro seisina reddâ—t praed cum partium versus c. occasionae clam ' placit praedict ' forisfact ' habend ' si voluerit persequatur ac etiam quod finis praed si voluerit ingrossetur Plesingtons Case 6. R. 2. was this A man made a lease for yéeres and granted further by Indenture if he aliened the reuersion or dyed within the teâ—me that the leassée should haue francketenement and liuery was made the fée simple was granted by fine c. and in a quid iuris clamat the leassee claimed francketâ—nement iudgement was giuen that the cognisée might enter for a forfeiture and that the fine should be engrossed si voluerit Sée 3. 4. Eliz. Dier 209. in a like case the iudgement was not quod quaerens recuperet seisinam but quod prosequatur pro seisina si voluerit finis ingrossetur c. SECT XXXIII The Statute of 11. H. 7. cap 20. THe Common Law restrictiue of it selfe and helped something by the Statute of Glocester was sufficient a great while to bridle women from making alienations for any land that they held in Dower or Ioynture as arguments of their owne good deserts and testimonies of their husbands loue But time which made the art of fencing more fine than it was at the first when Combattants fought all at head and shoulders and it was greater shame to strike vnder the girdle than it is now made law also more subtile than in the beginning it was when lands went altogether or for the most part by liuery of seisin And women witty of themselues instructed by crafty men grew cunning at the last that they could alien lands holden for life or in taile to whom they listed in fée And hee which suffereth disinheritance should not easily helpe himselfe by Writ of Entry either ad communem legem or in casu prouiso for remedy whereof was made this seuere statute in effect as followeth 11. H. 7. If any woman which hath had or hereafter shall haue any estate in Dower or for life or in taile ioyntly with her husband or only to her selfe or to her vse in any Manors Lands Tenements or other Hereditaments of the inheritance or purchase of her husband or giuen to the husband and wife in taile or for terme of life by any Ancestors of the husband or by any other person seised to the vse of the husband or of his Ancestors and haue or shall hereafter being sole or with any other after taken to husband discontinued or discontinue aliened released or confirmed alien release or confirme with warranty or by couin suffered or suffer any recouery of the same against them or any of them or any other seised to their vse or to the vse of either of them after the forme aforesaid that all such recoueries discontinuances alienations releases confirmations and warranties so had and made and from henceforth to be had and made be vtterly void c. And that it shall be lawfull to euery person and persons to whom the interest title or inheritance after the decease of the said woman of the said manors lands or tenements or other hereditaments being discontinued aliened or suffored
matter but the other conclusion puts it to the Law and Courts consideration Yee sée now of what possession of Law a woman is dowable per Brian 4. H. 7. â—o 17. if the Kings ward die vnder age and the neâ—t heyre being married die before â—â—uâ—nâ—runt sued his wife shall not haue Dower But by Dâ—uers and Hussey if the Kings Tenants Heyre haue a wife and after office found the Heyre doth not enter but dieth the wife shall be endowed of the possession in Law before office for the Statute of prerogatiue cap. 13 is intended onely where the Heyre taketh a wife after office and intrudeth SECT LIX There must be in the Husband an Inheritance not cut from the Franke Tenant A Woman shalll haue no Dower in Lands whereof the Frankement and Inheritance was neuer conioyned in her husband during Couerture therefore where the Husband had but a reuersion after estate for life the wife is not dowable vnder this rule commeth one other dos de dote peti non debet And if a man seised c. take a wife and alien with warrantie and then both the feoffor and feoffée die if the wife of the feoffée bring a Writt of Dower against the heyre of the feoffor which voucheth to warrant the heyre of the feoffor and hanging the voucher the wife of the feoffée demands Dower against the heyre of the feoffée if shée bring her Writt not for a third of two paâ—ts but for a third of all that whereof her husband dyes seised she shall not haâ—e iudgement fill the first plea be determined Littleton If there be father and sonne both married and the Father seised of one acre c. dieth and the sonne entreth and dieth if now the sonnes sonne enter and endow his Grandmother which dieth his mother is not Dowable of that which the Grandmother held in Dower for of that his Father had no more in méere right but a reuersion vpon or after a Franke tenement and the Grandmother endowed was in of her Husbands possession yet if the father had in his life time iâ—feoffed the Sonne c. the sonnes wife might well haue Dower after the Grandmothers death of that very Land which the Grandmother held And if the sonnes sonne voluntarily or compulsarily â—â— Writ of Dower had endowed his mother against whom the Grandmother had then receiued her Dower and died after execution the mother might well haue entred into the land which the ailesse recouered against her Parkins 63. The Franke tenement and Inheritance may be both in a sort in the Husband and yet not sufficiently knit and vnited together to giue Dower for example the Lands bee giuen to two and to the heyres of the body of one of them if hee which hath the inheritance die first his Wife is not dowable no not after the death of the suruiuor for the state taile was not executed in her husband to all intents though the Issue in a Formedone against an abater might alleage seisin and esplees as we call them in his father Likewise if by fine sur graunt render estate be made to a husband for terme of life the remainder to I. S. his sonne in taile the reuersion to the right heyrâ—s of the husband and the fine is executed if now the Baron die liuing I. S. or any of his Issue the wife of the Cognusée is not dowable But if a Lease be made for yeares the remainder to I. S for life the remainder to his right heyres c. the wife of I. S. shall haue Dower of this estate though erecution of Dower cannot be â—asting the terme And if a Lease be to the Husband for life with a remainder to a stranger for â—eares the remainder to the Husband in â—ée the inheritance and Franke Tenement are sufficiently connexed to giue the wife Dower bâ—t execution shall cease during the terme for when an estate for yeares is more ancient or as ancient as the Inheritance which the Husband had during Couerture there the execution of Dower to the Wife must néeds tarrie the termes expiration And so it is if a man grant me a rent in fée by Indenture with Condition that the rent shall cease during the non-age of mine heyres my Wife shall not bee endowed during mine heyres minoritie What if a man that is seised in Fée-simple make a lease for life rendring rent c. and then taking a Wife he dieth the heyre shall haue this rent incident to the reuersion and it shall be aâ—ets to him in a Formedone in Descender but the wife gets here no Dower aâ—d saith Parkins a woman shall not be endowed of a rent reserued by her Husband to himselfe and his Heyres vpon a Lease for yeares 1. Ed. 6. titulo Dower in Brooke accordeth If the Law be so Dower hath lesse fauour in this case then the estate per Courâ—â—siâ— d'Angleterre But Cléere if a man take a wife first lease his Lands for yeares or for life and die now the Wife may recouer Dower of the Land it selfe and by Breton if the woman recouer the third part of Lands leased for yeares de office de iustice il serra a gard que el tertiâ— remnant les deux parties que demorent de terre iesques aâ—â—nt que il eâ—t receiue al value de le tierrâ— partie que il auera perduâ— c. But if she recouer all the Land leased from the termer he shall haue recouerie per plâ—â— de garranti either of such other Lands as the Lessor had or if he had no other of the Lands seised when the widdow is dead by sâ—irâ— facias out of the Court where the Iudgement was inrolled Note That though the Law be as is abouesaid where Lands are giuen to two and to the Heyres of one of them yet if the Husband purchase to himselfe and his wife and to the heyres of the Husband the wife may relinquish the purchase and disagree by bringing her Writ of Dower Like Law séemeth to be where the purchase is to the Baron and feme during the life of the Baron the remainder to his right heyres SECT LX. Of what things Dower is granted LIttletons ground is of Lands or tenements But a woman is Dowable also of all manner of rents which are rents of Inheritance Also of Offices as for example of a Bayly-wicke in fée a woman may haue the third part of the profit in Dower and be contributary to the charge Also at this day where the Baron hath but an vse in fée-simple or fée-taile generall vnlesse it be in case where the Husband may and doth disagrée the wife shall haue Dower and if a bargaine and sale be made of Lands to the Husband which dieth before inrolement the wife notwithstanding shall haue Dower and by the inrolement einsement it shall be indefeisable against the Vendor and the Heyre of the Vendée Also a woman is Dowable of Villaines regardant to a Mannor and if a villanie in gros a
companion diuorced for lands wherein shee claimeth inheritance or estate for life so if he haue aliened in sée â—ée tayle â—r for life the lands which he had in fée simple â—ée â—a le or for terme of life to a stranger she may as soone as she iâ— diuorced bring a Writ called a â—â—i ante diuorâ—â—â—m against the Alâ—enee And this Writ may be in the per cuâ— post If shee dye before action commenced or before recouery her heire may haue a Writ called a surâ—uranâ—e diuortium and the Aunt and Néece may joyne in iâ— But for her estate tayle her heire shal be put to a formidone But note Reader that it séemeth both the woman and her heire may enter after the Statute of 32. Hen. 8. and neuer bring Cui in vita nor sur cuim viâ—a c. for the opinion in Grenlies Case Sir Edw. Cokes 8. Rep. fol. 73. is that if the baron alien and after the wife is diuorced causa praecontract which dissolue the marriage à vinculoma rimonii the wife during the life of the husband or after his death may enter for the words of the Aâ—tare nâ— fine feâ—ffeinent c. during the Couerture betwéene them and although the Statutâ— saith But that the same wife c. that is to be intended of her which was his wife at the time of the alienation c. Note that whereas West 2. cap. â— giueth a cui in vita vpon recouery by default against the husband c. shée shall haue a cuâ—â—hâ—e diuortium vpon the like â—eâ—ouery by equity extension of the Statute and the processe is summons grand cape peâ—iâ— cape I wil here set the bounds and limits of my third booke not because this sequell and consequence â—iuorte I meane whereby the issue had is basâ—â—â—â—â—zed and the wâ—â—an restored to her goods and lands conforteth with the marriage so perfectly begun as I meant it for this is not the vntying of true wedlocke but rather a dissipation of marriage tainted at the beginning and in Christian Court adiudged to a â—â—llity as if it had neuer béene the Baron and Fâ—me that I hâ—â—â— spoken of all this while if they were not married in their infant loue and very first flowing age yet were they not â—rostbitten or so blasted either of them when they were young but they might well haue frâ—â—tified neither was either of them a common Law breaker intangled with promise or praecontract and as for consanguinity or affinity there was no more betwixt them than is betweene Iack Flecher and his bolt You may imagine some matter by onely imagination perhaps more visible than it could haue béene being true whereupon a publike sentence of seperation being published a Thoro mensa but then there was a monition of chast liuing and prohibition to both the parties that neither of them should flâ—â— to other marriage so long as both of them were liuing And the Author of seperation that is the party suing diuorce did put in sufficient caution to doe nothing contrary to this prohibition So that the holy liues of matrimony were not cleane broken and pulled asunder but within a yéere or two they were reconciled voluntarily of their â—wne accord And soone after so I will make it hauing the Distaffe Spindle and Shéeres all in mine owne hand the husbands life was suddenly cut off or else the wiâ—e had béene sole executrix THE WOMANS LAWYER The fourth BOOKE PAle death equo pulsans pede pauperum tabernas regnumque â—urres Death I say to whom the Poet did attribute so much power in this his verse Omnia sub leges mors vocat aâ—â—a suas hath called the husband hence left the house full of mourning and specially the wife cannot chuse but sorrow and lament If my â—oure legged beast should fall into halues the one halfe starke dead without motion or spirit and the other halfe standing still vpright senting séeing féeling gazing must it not thinke you be wonderfully astonished If an Elephant in whom as some dâ—e write is vnderstanding of his countries spéech a wonderfull memorie and recenting of things past a great delight in loue and glorie besides prudence equitie and religion should haue his head cut off his body remaining still for all that vegetable and sensitiue would he not trow yée be excéeding sorrowfull for the forgoing such an ornament I dare be bold to giue a woman as much as Pliny gaue the Elephant She hath vnderstanding and spéech firme memorie loue naturall and kindnesse desire of glorie and reputation with the accomplishment of many meritorions vertues But alas when she hath lost her husband her head is cut off her intellectuall part 〈…〉 gone the verie faculties of her soule are I will not s 〈…〉 cleane taken away but they are all be 〈…〉 ned di 〈…〉 ed and dazled so that she cannot thinke or remember when to take rest or refâ—ction for her weake body And though her spirits and naturall moysture being inwardly exhausted with sorrow and extreme griefe she be called and inforced to seeke restauration by such aliments as life is prolonged by yet is she nothing desirous of life hauing lost a moytie of herselfe yea the principall maytie now best prised and estéemed but neuer best loued Time must play the Physitian and I will helpe him a little Why mourne you so you that be widowes Consider how long you haue beene in subiection vnder the predeminance of parents of your husbands now you be frée in libertie frée propriiâ—uris at yoâ—r owne Law you may see num cap. â—0 That maidens and wiues vowes made vpon their soules to the Lord himselfe of heauen and earth were all disauowable and infringible by their parents or husbands vnlesse they ratified and allowed them either expresse or by silence at the day when such vowes came first to their notice and knowledge But the vow of a widow or of a woman diuorced no man had power to disallow of for her estate was free from controlment Must a woman néeds wéepe thus for the losse of her Buckler Shield and defence in the person of him with whom she held daily commutation of all offices proceeding from loue and superlatiue kindnesse Let her learne to cast her whole loue and deuotion on him that is better able to loue and defend her than all the men in the world Him I meane that hath forbiddâ—n to afflict widdowes or orphans with promise to heare their cries and vindicate their wrongs by killing them by the sword and making the wiues widdowes and their children fatherlesse of them which breake this Commandement Exod. cap. 22. Then because a sober carefulnesse and moderate sedulitie in businesse of profit or disprofit doth mitigate greatly the sorrowing for such actions as opinion or fancie makes thus grieuous let her looke to her affaires as cause and need requireth SECT I. Of Executorship and Administration SHe is not made an Executor because the office is troublesome let her take
vnques seisi que Dower c. THere are other pleas that goe to the action and verie right of Dower as Ne vnques seisi que Dower c. id est The husband had neuer any seisin or state of Inheritance where of the wife can claime Dower sée 45. E. 3. fol. 13. The tenant in Dower leased her whole estate to the heire rendring rent for terme of her life the heire died and this was adiudged a seisin whereof the heires wife might demand Dower though the first tenant in Dower were still aliue for the lease was a Surrender and if a stranger had entred immediately after the heires death his heire must haue had a Mordancester Ergo said one the wiâ—e dowable Yet marke this case â—bid a man seised c. in fée simple dies his sonne entreth and he dies the sons sonne enters and endowes his Aylâ—sâ—e she dies a stranger abateth In this case it is cleere the sons wiâ—e shall haue no Dower of the portion assigned to the Aylesse though the sonnes sonne may haue a Mordancester per Kirton Finch and Mowbray But betwiâ—t this casâ— and the other they say is great oddes for here the Grandmother endowed was in from her husâ—â—â—â— and she sonnes possession and estate howsoeuer to his â—â—ire in whom the fée rested it were not destroyed but hee might bring a Mordancester yet to his wiâ—e it was cleane adnihilate whereas in the first case the Fée and Francktenâ—ment not a whit impeached by the life of her which surrendred were perfectly conâ—â—â—ned in the Baron to whom the Surrender was made And if a râ—uersion be granted to I. S. of certaine lands per faiâ— in pais in which lands I. T. and his wiâ—e haue â—state for life which doe atturne and afterward surrender there is no doubt but I S. his wife if hee die shall hauâ— Dower though it bee indéed defeasible after death of T. K. if his wiâ—e suruiue and will vndâ—â— the Surrendâ—r whereas in our first case the Surrender is no way auoydable but the heires wife shall pay rent according to her portion per Finch â—bâ—â— 14. Ed. 4. fol. 6. Tenant by the courtesâ—e granted his estate to him in reuersion rendring rent with clause of re-entrie for non payment the Grantée married the rent was arréere tenant per le curteâ—â—e re-entred hee in the reuersion died his wife waâ—â—arred of Dower for the Surrâ—nder might well bee vpon candition 2. H. 4. fol. 22. In action of Dower it was pleaded that the Demandants husband had nothing in the land â—ut by 〈◊〉 done to the tenant Iudgement si action c. The woman shewed how her husbands father hauing two sonnes leased his land to the eldest sonne and to hiâ— wife for 〈◊〉 of theâ—r liues and that shee her selfe married with the youngest sonne the eldest died and his wife married with the tenant the father died the reuersion descended to the second sonne being her husband the tonants wife died and he kept possession the Demandants husband did put him out he re-entred she prayed seifin c. Brooke thinketh she ought to haue trauersed the Disseisin And if the Baron had not entred after the death of the eldest sonnes wife she should not haue béene endowed yet saith he 〈◊〉 if without entrie there had not beene a seising in Law and whether the Francktenement which the tenant had once in right of his wife â—e determined in puncto by her death 11. H. 4. 73. In action of Dower the Tenant saith That N. gaue the land to the Baron and his first wife for terme of their liues the remainder in taile to the tenant remainder in Fée to the right heires of the Baron his first wife diâ—d he married this demandant and then hée died and the tenant entred c. he demands Iudgement if of this estate she shall haue Dower This amounted plaine to ne vnques seisi que Dower la puit but per Hanke Thirn that plea might not serue by reason of the Fée simple in remainder which might ingender doubtâ—ulnesse a layes gentes But where a lease was made to Baron for life the reuersâ—on to the Lessor or remainder to a stranger there in action of Dower ne vnques â—eiâ—â— â—ec iâ— good for no manner of Inheritance was in the husband 11. H. 4. 83. Dower was demanded of twentie pounds rent respondetur the Baron had nothing but â—oyntly with â— N. who is yet aliue â—udgement si Dower c. and he was not compelled to shew whether he pleaded as â—ertenant or as Pernor of the rent the Demandant replyed that I. N. had released all his right in the rent â—â— her husband But becauss she shewed not the Déed of â—â—â—ease shee pleaded by aduisement of the Câ—urt seisie que Dower la puit Quaere of the generall â—ssue against the â—â—eciall matter 11. H. 4. 88. A woman shall haue Dower of rent 〈◊〉 chased by her husband in fée though hee die before dâ—â— of payment And if it be pleaded against her Ne vnques fâ—â—â—â— que Dower c. she shall not shew the speciall matter but say seisi que Dower la puit and shew the matter iâ—â—â—â—dence 22. H. 6. 4â— per Newton In action of Dower the â—â—nant plead Ioynt estate to the Baron and I. N. in plein vy whose estate he hath the demandant shall not say â—â—â—â—â— que dower c. vnlesse shee shew how or trauerse that I. N. tooke nothing by she Feoâ—ment â—9 H. 6. fol. 9. Against Dower the Tenant pleadeâ— that I. S. seised in Fée infeoffed him and hee leased to the Baron to hold at will which estate hee continued all his life time sâ—ns câ—o that he was seised of any such estate que Dower la puit the Iudges orderad that for the long continuance of the possession and dought deslais gâ—â—â— all should be entred 10. H. 6. 17. It is not a good plea against Dower â—o say the Baron had nothing but for terme of his life for this amounts to the generall 〈◊〉 Ne vnques seisi que Dower la puit But to say the Baron had nothing but 〈◊〉 ment with A. in fée and that A. suruiued c. This by â—â—â— Fée simple confessed makes a good plea. 14. H. 6. 5 6. In action of Dower the tenant said â—e was seised till by the Baron disseised vpon whom he re-entred Iudgement c. the Demandant said that before this tenant had any thing in the land W. being seised in Fée infeoffed her husband issâ—â—t seisi c. and she prâ—â—â—â— to be endowed per Martiâ— the replication is not good â—â—â— this might â—e before the Disseisin and before couerture too and if so then the Baron Ne vnques seisi que Dower la puâ—â— That yée may yet perceiue further how 〈◊〉 a point it is to take or relinquish this plea rightly marâ—â— well the case 30. H. 8. Dyer fol. 41. In a Writ of Dower the issue was Ne vnques
by default that now the Tenant shall not haue a Quod ei deforceat but Iudgement to recouer in value against the Vouchée If Baron and Feme tâ—nants for life in the wiues right lose by default and the Baron dye a Quod ei deforceat lieth not but a Cui in vita as vpon a Demise made by the baron In a Quod ei deforceat the Demandant must count that he was seised c. in his Demesne as of Francktenement or in his Demesne as of Fée tailâ— laying the Esplees in himselfe but he néeds not shew of whose gift lease or demise though he claime for life or she claimes in Dower or sibi haeredibus de corpore And the Defendant must deny the Demandants right c. and shew how he recouered in a Formedon or in some other Action concluding that he is ready to maintaine his right aâ—d title aforesaid c. vnde petit iudiciâ—m Then the Demandant must either trauerse it or shew matter in barre but he shall not make defence and then plead inbarre as he shall doe in a Formedon Fiâ—zh 10. Ed. 4. fol. 2. Dictum fâ—â—t and the tenant may plead a release of all the Demandants right in a Quod ei deforceat But the old Nat. Breu. obserueth that if the Demandant vouchâ—one that entreth into Warrantie hee which recouered shall not plead the Vouchées release made after recouerie In a Quod ei deforceat the Tenant may vouch and so may the Demandant 50. Ed. 3. 25. But if the Demandant vouch his Vouchée cannot vouch ouer 10. H. 7. 39. The old Nâ—t Bâ—eu acknowledgeth that in a Scire fâ—cias there lies no oucher yet if a man recouer by default in a â—câ—re facias out of a sine against Tenant in taile which bringeth a Qâ—od ei deâ—orceat if the Recouerer maintaine the title of his first Writ the Tenant in taile may vouch The Law séemes to be otherwise sée Plow 11â— 206. 14. H. 7. 18. The questions arose vpon the Demandants vouching 10. H. 7. fol. 10. The first whether he must shew cause of the Warrantie or no. The second whether hée may vouch one that hath nothing in the reuersion The third whether he shall recouer in value Frowicke answered The Voucher is by Statute and hee néeds not shew any cause for the Statute of W. 2. cap. 3. saith Concedatur ei quod vocet ad warrant ac si esset tenens in priori breue in which case he should shew no Déed Second hée shall not vouch any stranger for the Statute is Ideo concedatur eis quod vocenâ—ur ad warrantum quia non possunt sine his ad quos spectat reuersio respondere Third the Statute giuing voucher meanes that he shall haue the effect of his vouching id est to recouer in value And if a Statute giue action for a thing whereof the action did not lye at Common Law the partie shall haue iudgement processe and execution incident or belonging to that action and a reuersion is a cause of voucher and of recouerie in value Frowicke said fuâ—ther That though he which leased cannot disclaime yet his Grantee may and award his charge and if voucher here should be no more but an aid prayer the Grantée might not disclaime for if Tenant for life pray in aid of him in reuersion hée shall not disclaime And Tenant by the courtesie cannot vouch for he shall neuer recouer in value SECT XXVII Admonition for women to take heed of him in the reuersion THe rest of this fourth booke shall consist most in warnings to widdowes and women tenants in â—articular estates that they doe nothing preiudiciall to their warrant It is true for the most part Ex quibus rebus maxima vtilitas ex iiâ—dem summa pernicies Water washeth and drowneth fire reasteth and it burneth the Sunne ripeneth and it scortcheth and seareth They that can help can hurt The reuersioner of a widdowes estate of whom she shall haue aid to defend her shall take her estate from her in many cases if she offend him in his reuersion SECT XXVIII Of Waste EVen by the antique Law of England if Bracton say truth fol. 316. The Gardian in Chiualrie committing waste did lose the wardship was auerred Et damna restaurabat But if Tenant in Dower committed waste there was no forfeiture of her land or parcell of it but he in reuersion might stop and let her from doing waste and such hinderance was no Disseisen Also he might haue if néed required a Non permittas to the Sheriffe commanding him not to suffer waste vendiction or exile in lands tenements houses woods garden c. and he might haue attachment against the widdowes or a Pone per vadios saluos plegios to make her come c. shew why shée committed waste If the waste in a wood were found by Inquisition the paine was no more but that from thenceforth shée should take no manner of Estouers either to build burne or inclose but it must be per visum forestariorâ—m haeredis And Bracton sets forth the Wâ—â—â— for placing and appointing of the Fâ—râ—eâ—cor or by the heire ad praedict ' 〈…〉 custodiendum But now by the Stat. of Gloc. cap. 5. A writ of waste lyeth against Tenant in the courtesie or for life or for yeares or in Dower and the partie attainted in waste shall lose the thing wasted and make grée to trebble value of so much as the value shall be taxed at This Statute made 6. Ed. 1. ordaineth also that the Gardian which loseth his wardship for committing waste shall render dammages if losse of wardship be not equiualent to the harme Peraduenture Bracton wrote after the Statute for in one part of his Booke Ed. 1. is named â— 3. But it is said Sir Edw. Câ—kes 3. Rep. fol. 40. a. that Glanuile wrote temps H. a. Bracton temps H. 3. Britton temps Ed. 1. and in Sir Edw. Cokes 8. Rep. in Iohn Webs case fol. 46. b. he saith that Bracton wrote in fine del Roy H. 3. and Fleta wrote in temps E. 1. But note a woman shall not answer for waste done before her time yea if land bée leased to Baron and Feme for terme of their liues and they commit waste if the Baron die now the widdow is not punishable for this waste For that which the Baron did during couerture was only his act and offence dead and determined with his person Concessum per curiam 2. H. 4. and Br. 59. in his Writ of waste Yet if the lease had beene made to a Feme sole who takes a husband which commits waste otherwise it is by 9. H. 6. 52. women need no further warning to take héed of waste they are of themselues so hauing SECT XXIX The Writ of Entrie in casu prouiso BVtlet eâ—â—â—rie good woman take héed how she maketh any gift or alienation of such lands as she holdeth in Dower For Glocest cap. 3. is if a woman sell or
second branch of the Statute shall bee expounded father or mother after the death of the father And it was resolued in that Case that there bee 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 foure manners of Gardians namely Gardian in Chiualry Gardian in Soâ—age Gardian in nature and Gardina for nurture and now the Statute makes a new Gardian namely by assignation but the mother in that case cannot be Gardian for nurture because her daughter was past 14. yéeres of age But she had the custody of her within the prouisâ—on of the Act â—ure naturae and the assent of Raph Ratcliffe the mothers husband was not materiall for the custody of a child is an inseparable incident to the parent and marriage may not transferre that to a husband And that was resolued that although the issue was whether Elizabeth had the custody of Martha at the time of the contract and that did appeare that shee departed from her mothers house six houres before the contract yet in iudgement of Law her mother had the custody of her at the time of the contract And that was resolued that in that Case Edward Ratcliffe and Martha his wife had good title to the land against Andrewes and his wife for the one daughter as that Case is shall not take benefit of forfeiture of the other for the statute giues 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 hee ought to be of the bloud and secondly to whom the inheritance should descend or come c. and although the wife of Andrewes bee of the bloud yet in that Case by the death of Martha the land if shee hath issue shall deseend to her issue and if shee hath not issue that shall reuert to her mother c. but iudgement was against the Plaintiffe for that the issue was found against him These are the Lawes whereby rapes and rauishments of women are repressed which if they bee well looked vnto will proue that there is now no cause why lying Lâ—onicus Chalcondilus should be beleeued who writing of Englishmen affirmeth that we haue no care what becomes of our wiues and children That in our peregrinations and trauels wee interchange and vse one the others wiues mutually That we count it no reproch by whom soeuer our wiues or daughters bee got with â—hild That with vs if a man come to his friends house hee must lye with his wife the first thing that he doth vt deinde benigue hospitio accipâ—arur And though some of the last recited Lawes were vnmade when Chalcondilus did write aboue one hundred yéeres since yet there were then Lawes enough to proue him a déepe lyer and had hée â—éene in England to haue trussed him vp too perhaps for lechery had his learning steaded him no better than his honesty this is no lesse cause why I should be thus bitter against Chalcondilus a dead man for that it may séeme he wrote by hearesay nullo odio gentis and in other matters hee reporteth honourably of vs. But it is strange that a man writing not a great while since but euen the other day not at Athens neither at Rome or Reams where they vse to belie vs head and foot but here at London should be bold to wrâ—te and put in print matter to this effect That beggers and the poorest sort of our women we doe vse to punish and to whip them when they are taken for leachers and dishonest liuers But Gentlewomen and Ladies of honour and worship they are neuer pâ—nished for incontinency but rather for their amorous wantonnesse and lubricity the more estéemed and magnified This follow deserueth plainly better to bee hanged than to bee beléeued For neither is it true that any womâ—n with vs can better her reputation by dissolute life and manners Neither can any woman learne a more deuillish lesson than so to be perswaded And seeing the Lawrs themselues declare what detestation they haue of bruitish concupiscence by punishing consent with lâ—sse of inherâ—tance I would I could perswad all women to eschew not only these gulfes but also the ecclesiasticall Censures which I meddle not with together with the â—â—â—â—my which they purchase sometime with outward laâ—â—â—â—iousnesse from the report of them which iudge a careâ—â—ssâ— liberty in behauiour an infallible argument of sensuality whereby some men haue béene imboldened to offer â—orâ—â— because they thought it was expected SECT XXIX Appealâ— of rape NOw let vs consider a little how these Lawes 〈◊〉 to bee put in practice if any virgin widdow or â—â—gle woman be rauished shee her selfe may sue an Appeale of rape prosecute the feâ—on to death and the Kingâ—â—â—â—don as it séemeth cannot helpe him If a Feme coâ—â—â—â— be rauished shee cannot haue an Appeale without her husband as appeares 8 Hen. 4. fol. 21. But if a Feme â—ouert be rauished and confent to the rauisher the husband alone may haue an Appeale and this by the Statute 6. Rich. 2. cap. 6. The husband that this Statute speaketh of which may sue the Appeale must be a lawfull husband in right and possession for ne vnques accouple in loyall matrimony is a good plea against â—im 11. Hen. 4. fol. 13. So doth Iustice Stanford affirme the booke to proue without question and that the Law is so too where Appeale is brought by Baron and Feme Brooke abridging the case 11. Hen. 4. séemeth to incline to the contrary opinion The case at length is thus Thomas Hausegle sâ—â—th Appeale de rauishment sa feme against Thomas V. and others according to the Statute 6. Rich. 2. reheaâ—â—â—â—â— in his Declaration the order of the Statute and that they had rauished her against the forme of the said 〈◊〉 The Appellâ—â—â— said the Plaintiffe had another Writ hanging returnable the same tearme of the same rape and because the Writ was not serued he had obtained a sicut alias Ergo this Writ of the same nature should abate Haâ—â—said he might pursue which Writ â—e would And by their writ a Praecipe quod reddat or an Assise for the like cause shall abate for of one land a man cannot haue two recoueries But in this case it may bee there were two rapes at seuerall times c. and also the first Writ was not entred in the roll nor the â—â—cut alias in the Record then the Declaration was challenged as insufficient because it was â—elonice rapuit and not carnaliter cognouit but to that it was answered that felonious rape implied carnall knowledge for rape without such knowledge is buttrespasse Another exception to the Declaration was that two had rauished as principall c. which Rolfe said could not be therefore the Plaintiffe ought to haue declared against one as principall and against the other as accessary or