A Philological Commentary, Philological commentary · Part D
D.
DAMMAGE.
DAmmage, in the Common Law, hath a speciall signification, for the recompence that is given by the Jury, to the Plaintiff or Defendant, for the wrong done unto him. Cook on Lit. l. 3. c. 7. sect. 431. Damnum dicitur à demende, cum diminutione ves deterior fit, Cook lib. 1 …. Rep. So costs of suit are dammages to the Plaintiff, for by them his substance is diminished.
DAMMAGE FEASANT.
Dammage Feasant, is when a strangers Beasts are in another mans ground, without lawfull authority or licence of the Tenant of the ground, and there do feed, tread and otherwise spoil the Corn, Grass, Woods, or such like. In which case, the Tenant, whom they hurt, may therefore take, distrain, and impound them, as well in the night as in the day; but for rent and services none may distrain in the night season.
He that hath the hurt may take the Beasts as a distress, and put them in a Pound overt, so it be within the same shire, and there let them remainD. and Student. till the owner will make him amends for the hurt: but by the Stature of Queen Mary, the Beasts must not be driven above three miles out of the hundred.
DEAN.
Dean, is derived of the Greek word foreign, that signifieth ten, because he was antiently over ten Prebands or Canons at the least in a CathedrallCook on Lit Church, and is head of his Chapter.
DEBT.
Debt, debts due by Obligation, shall be paid byCook 9 Rep. Pin…hons case. Executors before debts by simple contract, and debts by simple contract before Legacies.
If a man take a woman which is i debted to other persons, the Husband and Wife shall be sued for this debt, the Wife living. But if she die, the Husband shall not be charged for this debt after her death; unless the Creditour of the Husband and Wife recover the debt during the Coverture, then, although the Wife die, yet the Husband shallFitzh. Na. Br…tu. Det. be charged for to pay this debt, after the death of the Wife by this recovery.
If a man lease land for term of life to a woman rendring rent, and she taketh a Husband, and after the rent is behind, and the woman die, the HusbandId. Ib. shall be charged by a Writ of Debt for this rent behind, because that he takes the profit ofQui sentir commodum sentire debet & onus. the land by reason of his Wife.
By Law of the Realm Debt only ariseth upon some contract or penalty imposed, upon some Statute, and not by other offences, as in the Civil Law, debitum ex delicto.
If a Tailor make a garment for me, if we be notCook lib. 8. Rep. p. 147. agreed before what I shall pay for the making, he cannot have an Action of debt, otherwise it is for Victuals and Wine. But the Tailor may detain the garment untill he be payed, as an Innekeeper may his guests horse for meat, or he may have an action upon the Case, upon an assum fit to pay him so much as he deserves.
DECIES TANTUM.
Decies tantum, is a Writ, and lyeth where a Juror in any enquest, taketh money of the one part or other to give his verdict, then he shall pay ten times as much as he hath received.
DECEIT.
Deceit. the Common Law giveth a double remedy against such as endammage others by deceit, viz. either a Writ of deceit or an Action upon the Case.
DEED.
Deed, This word in the understanding of theFactum un fait it is called of the Civilians literarum obligatio. Cook on Lit. l. 1. c. 5. sect. 40. Common Law is an Instrument written in Parchmen or Paper, whereunto ten things are necessarily incident.
1. Writing.
2. In Parchment or Paper.
3. A person able to contract.
4. By a sufficient name.
5. A person able to be contracted with.
6. By a sufficient name.
7. A thing to be contracted for.
8. Apt words required by Law.
9. Sealing.
10. Delivery.
In another place on Lit. (viz. l. 3. c. 1. sect. 259.) Sir Edward Cook saith, a Deed is an Instrument consisting of three things, viz. Writing, Sealing, and Delivery, comprehending a bargain or contract between Party and Party, man or woman. Also in Goddards Case 2 Rep. he saithTraditio loqui facit Chartam. there are three things of the essence and substance of a Deed, viz. Writing in Paper or Parchment, Sealing, and Delivery, and if it have these three,In Deeds the Delivery is to be proved. although it want, in cujus rei testimonium sigillum suum apposuit, yet the Deed is sufficient; for the delivery is as necessary to the essence of a Deed, as putting of the Seal to it, and yet it is not necessary to express it in the Deed, that it was delivered. The date of the deed is not of the substance of it, for if it want date, or if it be a false or impossible date, as the 30 day of February, yet the Deed is good, for it takes er…i by the delivery, and not the day o… the date. The Order of making a Deed is,
1. To write it.Cook 2 Rep. Goddards Case. Then to seal to it.
And a…ter to deliver it: And therefore it is not necessary, that the sealing o… delivery be mentionedCook 5 Rep. Wyndams Case. within the writing, because they are to be done after.
Every Deed shall be taken most strongly against the Grant…r, and most beneficially for the Grantee,Which division groweth from the form or fashion of them. West. part 1. Symb. and is most strong against the Lessor, and most beneficial for the Lessee.
Of Deeds some be,
1. Indented, so called, because they are cut to the fashion of the teeth in the top or side, which are either,
Bipartite, when there be two parts and Parties to the Deed.
Tripartite, when there are three parts and Parties.
Quadripartite.
Quinquepartite.
2. Polls which are plain without any indentingCook on Lit. l. 3. c. 5. sect. 3 …0. so called, because they are cut even or polled, every deed that is pleaded, shall be intended to be a deed poll unless it be alledged to be indenced.
If a deed beginneth, Haec Indentura, and the parchment or paper is not indented, this is no Indenture, because words cannot make it indented.Cook ubi supra. And Cook 5 Rep. Stiles case. And although there are no words of Indenture in the Deed, yet if it be indented, it is an Indenture in Law, for it may be an Indenture without words, but not by words without indenting.
DEFEISANCE.
Defeisance, is fetched from the French word desaire, that is, de…eat or undo, infectum redd… Cook on Lit.quod factum est.
DEFAULT.
Default, is a French word, and defalta is legallyCook on Lit. l. 3. cap. 7. sect. 438. taken for non-appearance in Court. There … divers causes allowed by Law for saving men default, as
1. By Imprisonment.
2. Inundation of Waters.
3. A Tempest.
4. Minority, but sickness is no cause of saving a default, because it may be so artificially counterfeited, that it cannot be known. C…atus ad locum non tutum, non arctatur compare… is a rule in the Civil Law, as if the Plague to there.
SE DEFENDENDO
Se defendendo, is not matter of justification, because the Law intends it hath a commencement upon an unlawfull Case. For quarrels are not presumed to grow without some wrongs either in words or deeds; therefore the Law putteth himBacons Collections of the Law. to sue out his pardon of course, and punisheth him by forfeiture of goods.
If a man kill another in his own defence, he shall not lose his life nor his Lands, but he mustId. use of the Law. lose his goods, except the party slain did first ussault him, to kill, rob, or trouble him by the High-way side, or in his own house, and then he shall lose nothing▪
DEFORCE.
Deforce, deforciare is a word of Art, and cannot be expressed by any other word, for it signifieth to withhold Lands or Tenements from the right owner, a de…oriom dissereth from a disseisor.
1. A man may dis…cise another without force, which Act is called simple Diss…isin.
2. A man may desorce another that never was in possession.
DEMAUNDANT.
Demaundant, is he which is Actor in a reall Action, because he demandeth Lands. And Plaintiff, que…ens in Actions personall and mixt quia queritur de injuria, I'enant, I'erens, in reall Actions, and defendant desenden… in Actions personal and mixt.
DEMAINES.
Demaines, according to the common speech, are the Lords chief Mannor-place, which he and his Ancestors have from time out of mind kept in their own hands, and have occupied the same together with all buildings and houses whatsoever. Dominicum de maire of the hand i. e. manured by the hand, or received by the hand, Cook on Lit. l. 1. c. 1. sect. 10.
DEMURRER.
Demurrer, cometh of the French word demeurer Lat. demorari to abide, and therefore he which demurreth in Law, abideth in Law, moratur or demoratur in lege. Minshew. Cook on Lit. lib. 2. cap. 3 sect. 96.
DENIZEN.
Denizen, quasi deins nee born within the KingsCook on Lit. cap. 11. sect. 198. ligeance, and thereupon in Latin called Iudigena, or from donaison donatio, because his freedom is given unto him by the King.
DENIZATION.
Denization is three-fold.
1. Absolute, as the common denizations be to them, and their heirs without any limitation or restraint.
2. Limited, as when the King doth grant LettersCook Calvins Case. of his denization to an alien, and to the heirs males of his body, or to an alien for term of his life, for …ujus …st …are, ejus est disponere, and this denization of an alien may be effected three manner of waies, by Parliament, Letters Patents, and conquest, as if a King and his Subjects should conquer another Kingdom as well ante nati as p…st nati, as well they which sought in the field, as they which remained at home, are all Denizens of the Kingdom conquered.
DEODAND.
Deodand, is when any man by misfortune isQuasi Deo dandum, i. e. in eleemosynas erogandum. slain by a Horse or by a Cart▪ or by another thing that moveth to further the death, then the thing that is cause of his death, and which at the time of his misfortune did move, shall be forfeit to the King, and that is called Deodand, and pertains to the Kings Almoner, for to dispose in AlmsWhere a man killeth another with the sword of …. at stile, the sword shall be forfeit as a Deodand D. and Student. c. 51. and Deeds of Charity.
If a man killeth another with my Sword, it shall be forfeit as a Deodand, for it shall be adjudged my …ault, that I did not keep my weapon from him, Dr. and Student. Omnia quae moven… ad mortem, sunt Deo danda. Cook l. 5. Foxleys Case.
This Law concerning Deodands, is grounded upon the Law of God, Exo. 2. 28.
DERAIGNE.
Deraigne, cometh of the French word derayer, Cook on …i…. l. 2. c. 11. sect. 2…2. Dicitur à detinendo because detinet is the principall word in the W…t.or deraigner, i. e. to displace, or to turn out of his order, and hereof cometh deraignment, a displacing, or turning out of his order. So when a monk is deraigned, he is degraded and turned out of his order of Religion, and become a Lay man.
DETINUE.
Detinue, is a W…it that lyeth against him who having goods and cha…tels delivered to him to keep, refuseth to deliver them again.
Upon generall acceptance of goods to keep or toCook on Lit. Cook 4 Rep. S…uth…tes Case. keep safely, if the goods be stolen or otherwise perish, the …a…li. For he that accepts them shall answer for them. …therwise it is, if he take them upon speciall accep…an…e, to keep them as his own goods.
DEVISE.
Devise, cometh from the French word diviser, Minishew.id est disperti…i, because those Lands or Goods which appertain to the Divisee, are distributed into many parts, wherefore it is better written divise then devise, or else it may be derived from theCook on Lat. l. 2. c. 10. French word devise…, i. e. sermo…ina…i, consabulari, so as deviser person testament, is to speak by his testament what his mind is to have done after his decease.Lit. Ten. l. 3. c. 10. p. 123. Sect. 55…. If lands be devised to a man to have to him in perpetuum or to him and his a…ligns for ever; in these two cases the devisee shall have a Fee-simple: Perkins holds he hath only an Estate for the term of his life, for these words (for ever) saith he, can extend to none other then the devisee, because no more persons be named in the devise, and the life of man in this respect is said to be for ever with him. But Sir Edward Cook determines i…, thatCook on Lit. l. 1. c. 1. sect. 1. a Fee-simple doth pass by the intent of the Devisor, but if the devise be to a man, and his Assigns without saying (for ever) the Devisee hath but an estate for life.
If a man devise I and to one … sanguini s…, that is a Fee-simple, but if it be semin… su…, it is an estate …ail.
If a man devise an house furnished, the housholdFulbecks prepar. Id. ib. stuff passeth, but not the wine that is within the house, because by common intendment a house is not furnished by Wine.
By the Common Law, if a man devise the third part of his g…ds to his Wife, it shall beFulbecks parallel. so rated as they were at the time or the dea… of the Testator, though a man may not gran… …r give Lands to his Wife during the cove…re, because they are but one person in Law; yet he may devise his Lands to his Wife, to have in Fee-simple,Lit. l. 2. c. 10. or otherwise, because such device taketh no effect till the death of the Devisor, and then they are not one person.
The intent of the Devisor shall be observed for he shall be accounted in…ps consilii, becausePloyden p. 413. that wills are most often made when men l… extremity and want counsell. If a man make divers wills and Testaments, yet the last Device and Will made by him shall stand, and the other are void.
If a man of sound memory make two Testaments,Exceptio. viz. one Testament in the sixth year of our Lord the King which now is, and the other Testament in the eighth year of the same King, and after the Testator languishing in his bed, and being dumb, one man in the presence of his otherPerkins …. of testam. p. 92. … ▪ neighbours delivers him both the Testaments, and …e takes them in his hand, and the other saith unto him, Re-deliver unto us that Testament which now you will shall stand, and be your last Will▪ and he delivers the Testament with the former date, and retaineth the other with him, now the Testament which is delivered shall stand, notwithstanding it hath the former date, and was written before the other.
If one devise to an Infant in his Mothers belly it is a good device, otherwise it is by feossement,Termes of Law. g…ant or gift, for in these Cases there ought to be one of ability to take presently, or other wise it is void▪
If a man devise Land in certainty, as the mannour of Dase or white A…re, and he hath no interest nor p…ssession in them at the time of the making the Will, and after the Devisor doth purchase it, in such Case it shall pass to the Devisee, for then it shall be taken that his intent was to purchase it, as it is said, … H. …. 1….
The Device of Tenant for term of life or Tenant in dower o… corn growing at the time of their death is good.
If a man be seised of a house, and possessed ofCook on Lit. l. 3. c. 3. sect. 287. divers heirlooms, that by Custom have gone with the house from Heir to Heir, and by his Will deviseth away the heirlooms, this device is void, for the Will taketh effect after his death, and by his death the heirlooms by antient custom are vested in the Heir, and the Law preferreth the custom before the Device.
So if the Lord ought to have a Herriot when his Tenant dieth, and the Tenant deviseth away all his good, yet the Lord shall have his Herriot for the reason aforesaid.
DEVIT.
Devit, in Latin Ius, in English Right, it is found in the Law six manner of waies, viz.
1. Ius recuperandi.
2. Ius Intrandi.
3. Ius habendi.
4. Ius retinendi.
5. Ius recipiendi.
6. Ius possidendi.
All these severall sort… of Rights following the relations of their objects are the effects of Civil Law.
DISCRETION.
Discretion, is a knowledg or understanding to discern between fal…hood and truth, right and wrong, shadows and substance, equity and colourableCooks 5 Rep Rooks case. pretences, and not to do according to their wills and private affections, for as one …aith, Valu discretio discretionem confundit.
DISCONTINUANCE.
Discontinuance, is a word compounded of de Cook on Lit. l. 3. cap. 11. sect. 592.and continuo, for continuare is to continue without intermission. Now by addition of de (Eup…i… gratie dis to it) which is privative, it signifieth an intermission.
DISPARAGEMENT.
Disparagement, is a shame, disgrace, or villany done by the Guardian in Chivalry, to his ward in Chivalry, being within age by reason of his marriage. Of such disparagements there be fourTermes of Law. kinds.
The first, Propter vitium animi, as an ideot non composmentis, a Lunatick:
The second, Propter vitium sanguinis, as
1. A Vill….
2. Burg…nsis, a man of trade, as an Haberdasher, or Draper, this agreeth with the Civil Law, Patricii cum Plebe matrim…nia ne contrahant.
3. The Son or Daughter of a person attainted ofCook on Lit l. 2. c. 4. sect. 188. treason, or felony, albeit pardoned, for the blood is corrupted.
4. An alien or child of an alien.
The third, Propter vitium corporis, as
1. De membris, having but one hand, one eye.
2. Desormity, as to look a squint, a c…ipple, halt, lame, dec…epit, crooked.
3. Privation, as blind, deaf, dumb.
4. A horrible disease, as leprosie, pal…e, dropsie.
5. Great and continual infirmities, as a consumption.
6. Impotency to have a child in respect of age, tender years, or for natural disability.
7. De…owred.
The fourth kind of disparagement was propter …a…ram privilegii, a… …o marry the heir to a widow, whereby he should by reason of the bigamy have lost the benefit of his Clergy whereby he might save his life, but now this is taken away by the Sta…u…e, it must be competens maritagium abs…ue disparagatione.
DISSEISIN.
Disseisin, is a wrongfull putting out of him thatCook on Lit. lib. 3. c. 8. sect. 475. Cooks case of execuors. 5 Rep. is actually seised of a Freehold. All lawfull acts which a disseisor or abator doth is good, and therefore i…a disseisor or abator in low a … which hath title of Dower, this is good and shall bind the disseisee.
DISTRESS.
Distress, is a French word, in Latin it is caled districtio, sive angustia, because the cattel distreinedCook on Lit. l. 2. c. 6. sect. 136. are put into a streight which we call a Pound. It is a maxime in the Law, that no distress can be taken for any services that are not put into certainty, as a man may hold of his Lord to shear all the Sheep depasturing within the Lords Mannor, and this is certain enough, albeit the Lord hath sometime… a greater number, and sometimes a lesser number there, and yet this incertainty being referred to the Mannor which is retained, the Lord may distrein for this uncertainty.
One may distrein any where intra …um, so that it be not in the High-way nor Church-yard.Of what things a didress may be taken.
A distress must be,
1. Of a thing, whereof a valuable property is in some body, and therefore Dogs, Bucks, Conie…, and the like that are ferae naturae cannot be distreined.
2. Although it be of valuable property as aCook on Lit. l. 1. c. 7. …. 5…. horse, (yet when a man or woman is riding on him) or an Ax in a mans hand cutting of wood and the like, they are for that time priviledged, and cannot be distreined.
3. Valuable things shall not be distreined for Rent, for benefit and maintenance of Trades▪ which by consequent are for the Common-wealth and are thereby Authority of Law, as a horse in a Smiths Shop shall not be distreined for the rent …ing out of the shop, nor the horse in the Hos…ry nor the materials in a Weavers Shop for making of cloth, nor cloth or Garments in a Taylors Shop, nor sacks of Corn or Meal in a Mill, nor in a market, nor any thing distreined for dammage feasant, for it is in the custody of the Law.
4. Nothing shall be distreined for rent that cannot be rendred again in as good plight, as it was at the time of the distress taken, as Sheaves or Shocks of Corn cannot be distreined for rent, but for dammage feasant they may. But Carts with Corn may be distreined for rent, for they may be safely restored.
5. Beasts belonging to the Plow averia carucae shall not be distreined, for no man shall be distreined by the Instruments of his Trade or profession, as the Ax of a Carpenter, or the Books of a Scholar, but goods or animalia …iosa may be …. If the distress be of utensils of houshold or such like dead goods, which may take harm by wet or weather, or be stolen away, th…e he must … them in a house or other Pound covert … in the same … ▪
… ▪ Furnaces, Cauldrons or the like fi…ed to the Freehold, or the doors or windows of a house, or the like, cannot be distreined.
…. Beasts that escape may be distreined for rent, though they have not been l…vant and cou…nt, he that d…streins any thing that hath life must impound them in a lawfull pound within three miles in the same County.
The Common Law is, men cannot distrein forCook 7 Rep. cases vponupon the Statute and … Rep. …allyes Case, and …n l…. l. 2. c. 1…. rent or service in the night, as is adiudged in the 12 of …. …. …. distress, but for dammage seasant he may distrein in the night for necessity of the Case, for otherwise peradventure he shall not distrein …, for before the day they may be taken or s…ay out of his Land.
A grand distress is that which is made of all the goods and Chattels which the Party hath within the County.
DIVORCE.
Divorce, is so called either a diversa … … mentium of the diversity of minds of those that are married,Ridly of the Civil Law. Cook on Lit. because such as are divorced, go one a diverse way …rom the other, or from the verb divert which signifieth to return back because after the Divorce between the Husband and the Wife, he returneth her again to her Father or other Friends, or to the place from whence he had her.
There are di…ers causes for which the Husband and the Wife may be divorced.
1. Causa praecontractus, therefore if a man marry wish a woman precon…a…te… and hath issue b… her,Buries case 5 Rep. this issue in Law, and in truth bears the sirname of his Father: but i… after the Husband and the Wife be divorced for the pre-contra…t, there the issue hath lost his sirname, and it become a Bastard & nullius fi…u…s.
2. Causa frigiditatis, therefore if a man be maried to a woman, and after the… are divorced causa frigiditatis, and then the m…n ta… another Wife, and hath issue by her, ye… his … lawfull, because that a man may be habi… & … diversis temporibus. S…mp… p…esu…nt…r p…le▪ … tione …ili…rum & …iliatio n… …st ….
3. Causa impubert…s, or m…s statis, and … this ca…e if two be married …, and after the full age divorce is had between them th…s dissolves the marriage.
Divorce is two-fold.
1. A vinculo matrim…nti, causa praecontract…, causa metus, causa imp…t…mi… seu frig…ditatis, Cook on Lit. l. 3. c. 5. sect. 38…. and … Rep. Kennes case.causa a…finitatis seu consanguin…tatis: all which are causes of divorce preceding the marriage.
2. A mensa & th…r…, as causa adulterii, which dissolves not the ma…riage a vincul… matrimonii, nor bars the Wise of dower, for it is subsequent to the▪ marriage.
DOMINICUM.
Dominicum, is a word sorensale of many significations, amongst the French is called Domaniam, amongst the Italians demanium, and here with us demaine, which some erroneously call demeane or demesne, as if it came of the French word demesne, i. e. sui ipsius proprium, and not of the Latin word Dominicum.
Dominicum, saith Bracton, accipitur multiplicit…. Est autem dominicum quod quis habet ad Brac. l. 4. tract. 3. c. 9. n. 5.…inensam: & proprie sunt Boardlands Anglice i. e. dominicum ad men…am, and are such lands which are properly cultivated for the maintenance of the Family, as the demaines of a Mannor, &c. and it is of the like signification amongst the French, as appears by …ppinus lib. 1. …it. 1. …. …. …manio regis. Prim… (inquit) S…eptris ad…ictum …uerit in necessarios Regiae mensa aulaeque …mptus.
Dominicum is sometime… taken pro terris in vill…ium con…essis as Bracton ibidem, item dicitur vill…ium, quod …ra…itur …llanis, quod quis temp…stivè & intempesti…è resumere possit pro voluntate sua & ….
Dominicum is sometime… taken pro libero tenemento, and this accptation, as saith Bracton, is threefold, viz.
1. Cum quis habet liberum tenementum, & alius usum fructum.
2. Cum quis habet liberum tenementum, & alius custodiam.
3. Cum quis habet liberum tenementum, & alius curam.
Dominicum generally (as saith Bracton) is when a man hath Lands in see to him and his heirs or to him and his successors.
In Dominico sei…i…us is when a man hath Lands or tenements for life at the least, Ita quod Assisum novae deseismae habere possit si ejectus fuerit.
Dominicum Bannum is a proclamation or edict by the King.
DOOMES-DAY.I ambert in his perambulation of Kent.
Doomes-day, Book is so called, because (as Matthew Paris saith) it spared no man, but judged all men indifferently, as the Lord in th… … d… will do▪
Liber …u …, quem librum librum … lem, Camb. Brit.Anglis …ti…m, Angliae … ▪ c…ales, act… publica & Angliae …ust…um … nare Liber Dome▪ Dei varie app…llatur, viz. Censuali… Angliae, Ro…ulus Win…oni…, …: Angli… notitia & Liber Judiciarius, … in Anglici enim … Archi…is augustissimum & …a i…d… Crinelia monumentum prostat … R…ni anti…ua p…litia antiquarum legum & v… …nsu…tudinum verae Origines & solidissima fundamen… … sunt continentur iste ingens duobus Tomis sive … thesaurus, & in ips…s s…accarii magni Angliae fisci…a…ibus s… ma cum vigilantia & cautela reponitur Dominus Simonds … eus in Epist…la manuscripti istius praefixa.placet.
DOWER.
Dowe…, in the Common Law, is taken for th… Cook on Lit. li. 1. cap. 5. sect. 3….portion of Lands or Tenements, which the W… hath for term of her life of the Lands or Tenemen… of her Husbands after his decease, for the sustenan… of her self, and the nurture and education of her Children.
Dower is of five sorts or kinds, vix.
1. Dower per legem communem.
2. Dower per consuetudinem.
3. Dower, ex assensu patris.
4. Dower ad ostium Ecclesiae.
5. Dower de la plus baile.
To the consummation of Dower three things a… necessary, viz. marriage seisin, and the death … her Husband. Id. ib. & Binghams Case 2 R… U…i nullum matrimonium, nulla dos.D…s is derived ex donatione, & es… quasi donarium, because the Law it self giveth it to her.
Of a Castle that is maintained for the necessary de…e…e of the Realm, a woman shall not be indowed, because it ought not to be divided, and the publick shall be pre…ed before the private▪ … o… a Castle that is only maintained for the pri…e use and habitation o… the owner, a woman shall be endowed.
A woman may be endowed of the third part of … of a Dove house, of the third part of a pi…a…y▪ viz. te… piscem, …el jactum retis …ertium. The …est endowment of Tythes, is of the thi…d Shea…, for what Land shall be sown is uncertain.
If the Wife be past the age of nine years at the death of her Husband, she shall be endowed of what age soever her Husband be, albeit he were but four years old, for consensus, non concubitus facit matrimonium, and a Woman cannot consent before twelve, nor a man before fourteen, yet this inchoate, and imperfect marriage (from the which either of the Parties at the age of consent may disagree) after the death of the Husband shall give dower to the Wife, and therefore it is accounted in Law after the death of the Husband, legitimum matrimonium a lawfull marriage, quoad d…tem. If a man taketh a Wife of the age of seven years, and after alien his Land, and after alienation the Wife attaineth to the age of nine years, and after the Husband dieth, the Wife shall be indowed, for albeit she was not absolutely dowable at the time of the marriage, yet she was conditionally dowable, vir. she a…tained to the age of 9 years, before the death of the Husband• for by his death, the possibility of dower is consummate. So it is if the Husband alien his Land, and then the Wife is attainted of Felony, now is she disabled, but if she be pardoned before the death of the Husband, she shall be indowed.
By the Custom of Gavel-kind, the Wife shall be indowed of the moity, so long asId. sect. 53. she keep her self sole and without Child, which she cannot wave, and take her thi…ds for her life. For, in that case consuetudo tollit communent legem.
And as Custom may enlarge, so may Custom abridge dower, and restram it to a fourth part.
Albeit the Wife be an 100 years, and the Husband at his death was but 4 or 7 years old, so as she had no possibil…ty to have issue by him, v…tId sect. 35. seeing the Law saith, that if the Wife be above the age of 9 years at the death of her Husband, she shall be endowed, and that women in antient times have had Children at that age, whereunto no woman doth now attain, the Law cannot judg that impossible, which by nature was possible. And in my time, a woman about threescore years old hath had … Child, & ideo non definit us in jure, and the Husband at such tender years, hath habitum, though not potentiam; therefore his Wife shall be endowed.
Dower is favoured in respect of the Widowhood and desolateness of th… woman whose Husband is deceased.
It is commonly said, Three things are savouredCook on Lit. Fulbecks p…epar. in Law, Life, Liberty, Dower. With the Civilians, Dower may be in goods, and not in Lands yet herein England it must be in Lands and not in goods.
If a woman go away from her Husband with an Adulterer, and will not be reconciled, she loseth her Dower by the Statute of Westminster 2. C. 34.
Sponte virum mulier fugiens, & adultera sacta.
Dote sua careat, nisi sponso sponte retracta.
DRUNKENNESS.
Drunkenness, For being drunk a man shall forfeitAn. 4. Iac. 5. c. made perpetuall by 21. Iac. 7. 6. 5 s. or sit six hours in the Stocks, for tipling 3 s. 4d. or sit four hours in the Stocks, the Constable for not executing it forfeits ten Shillings, proof of one witness is sufficient. Any one Justice of Peace hath power to convince an Offendor of drunkenness.
DURESSE.
Duresse, is where one is kept in Prison or restrainedEx duritia of straight imprisonment or hard intreaty. Doderidge. from his liberty contrary to the order of the Law. It is also an exception in pleading to avoid the Deed, which a man was enforced to seal to ransome himself from an unlawfull captivity. Vide new B. of Put Verbo duresse.