Sir Henry Gwilliam Matthew Bacon.

A new abridgment of the law with large additions and corrections, Volume 3 online

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m 1809,






VOL. in.


no. 171 NABKKT 8TBKKT.



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» acoardiDg to Act of Coogmt, in tbe ywur 1644, by
McGuiTT Sl Datis,
in tfao Ckrk'i Office, of tfao District Court, of tfao Eastern District of PennsjlYania.

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To render this work worthy the patronage of the bar, the
editor has added such of the English decisions, which have been
made since the publication of the last English edition, as appeared

The reference to thesCi in addition to the American decisions,
wiUy it is hoped, make the work as complete as possible.


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CmtTKBT of England ... 5
Customs • • . . • 19
Customs of London - - - 36
Damages - . . . . 57

Debt 83

Deodand - - - - • 103
Descent- ..... 104
Detinue • - - - - 133
Devises ..... 137

Discontinnance - *• • . 138
Disseisin • - - . - 150

Distress 163

Dower and Jointure - - .190

Duress ..... 258

Ejectment 35^

Election 307

Error 320

Escape in ciyil cases - . - 391
Estate in feoHsimple - . .431
Estate in tail .... ^^8
Estate in tail after possibility of

issue extinct - - . . 448
Estate for life and occupancy 7 . 453
Eyidence - - • . . 472
Excommunication .... 543
Execution - - . . . aaq

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Tenant by the curtesy is he, who after his wife's death (having had issue
by her inheritable) is introduced mto her inheritance, and has an estate for
life therein ; and he is so called from the favour or curtesy of that law which
made this provision for him, to which he had no natural right, nor to which
any other nations, (a) except tfiose of Great Britain and &eland, admitted

Dr. & Stud. lib. 1, c. 7; Co. Lit 30, a; Cowell, tit Curtesy i it be^n in England
and Ireland in the time of H. 1, Seld. Jan. 65 ; and in Scotland in the time of Malcolm.
Macan. 56. Both by a positive institution. fiFont things are requisite to constitute a
tenancy by the curtesy, namely, marriage, seisin of the wife, issue, and death of the
wife. It 18 not, however, indispensable that seisin and issue should concur at the same
time. Jackson v. Johnson, 5 Cowen, 74. gf (a) [This is a mistake ; it was known in
other countries, though not under this name. By the rescript of Constantine it is esta-
blished, ui hmreditatii maternal paier unnnfruetum,JUii vroprietalem haberent, Craff. j. f.
dieg. 32, § 40; Cod. 1. 6, le. 1. And the laws of the Almains define the estate sdmost
in the very terms used by the laws of England. Lindenbrog, L. Aleman. 1, 93. We
find it in the feudal system, not indeed as a necessary consequence of the feudal tenure
in its original purity, but arising from the express terms of the investiture. The lan-
guage of the feudal law is maritxu uxori non ttuceedit infettdum, rUsi tit tpecialiler inves'
tUus. Wrifl^t's Ten. 193, n. c. /SThis estate was not unknown to the ancient Ger-
mans and Normans ; and in France there were several customs, which gave a some-
what similar estate to the surviving husband out of the wife's inheritances. Bouv. L.
D., Ettaie In/ the Curtesy f Merlin, Repert mots Linotte, et Quarte de Conjoint
paavre. f/ Sir W. Blackstone inclines to think, that tenancy by the curtesy of Endand
was so called, as signifying an attendance upon the lord's court or eurtis^ (that is, beingr
hb vassal or tenant,) not as denoting any peculiar favour belonging to this island.
3 Comm. 126. The contrary, however, is maintained by one of his successors in the
Yinerian chair. 3 Wooddes. 18.]

[The words of this law, as they are found in a writ of 11 H. 3, ordaining
the reception of it in Ireland, are, &' aliqtds despansaverit aliquam TmUieremj
rive viduamy she aliamj hareditatem kabeniemy et ipse postmodum ex ed
prolem suscUaverUy cujus clamor aiulUus Juerit inter qwoiwor parietesy idem
vify ri super vixerit ipsam uxorem suam^ habebit torn vitd su/l cusiodiam
hareditaiis tamis stue licet ea farti habverU haredem de pnmo viro suo qtd
JuerU pleruB ataiis.

Rot Clans. 11 H. 3 ; Wright's Ten. 193, n. 9; Hale's Hist C. L. 180.

The right of a husband to retain the land of his deceased wife was con-
fined, according to Glahyille,(i) to such estates as were given with the
woman in maritagium. But in Bracton's time the claim had extended
itsdf ; for he saYS,(c) the husband should have the land if he married a
woman tuAentemfuereditatem vel maritagiumyVel aliquam terram ex causd dona-
iiomSj having any inheritance, whether a manlagmm or other gift of land.

(6) Lib. 7, e. 18. (e) Lib. 5, e. 30, § 7.

It appears from both these writers, that the second husband was equally
entitled to be tenant by the curtesy with the first. But this doctrine was
combated by one Stephanus de Segrave, whose name is found among the
justices itinerant in the reign of Henry the Third, as founded on a miscon-
ception of the meaning and design of this sort of estate. He thought there

a2 5

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(A) What Persons may be Tenants, &c.

was an injustice in giving an estate pet legem Anglim to the second husband,
more especiaUy when there were cmldren alive of the first marria^. And
this opinion of Stephanus de Segrave was afterwards established by the
statute de doms in respect of conditional estates.

1 Reeves's Hist. 898. Among the statutes which are classed under the denomina-
tion of iUUuta incerU iemporia^ we find the atattUum de tenefUibtu per l^em AngUm^ which
must eyidently have been written before the statute dt domMj inasmuch as it declares
that the second husband shall inherit. A^jaiUf as it confines the curtesy to estates giyen
in mariiagium^ according to Glanville, without including all inheritances, as Bracton
does, it must have been written before the latter author penned his book. But, if this
was a statute before Bracton*s time, that author, where he examines ^e question of the
second husband claiming by the curtesy, and mentions Segrave's opimcm against it,
(lib. 5, c. 30, § 7,) could not be supposed to omit noticing any statute that had been
made so decisiye as this is. 2 Reeves's Hist. Law, 315.] I In Rastall's Collection of
the Statutes, 1603, the following note is subjoined to this statute: <<but this seemeth to
be no statute, but only one man's opinion."||

(A) What Persons may be Tenants by the Curtesy ; what not.

(B) Of what Sort of Inheritances this Estate is allowable ; of what not

(C) What Estate the Wife must hare to let in the Husband to be Tenant by the

Curtesy : And herein,
1. The deteendibU Quality qfweh EdaU.
S. The Seiiin rfihe Wife thereof.
3. When this EeUUe and Seisin i» to begin and how long it miut eoniinue*

(D) Of the Husband's Title being initiate by haying of Issue, and to what Purposes :

And herein,

1. What Sort aflame this must be.

3. When it must be bom.

3. What it must do to entitle the Busband to be Ttnant by the Curtesy.
(£) The Nature and Quality of such Tenancy by Curtesy :

1. With retpeet to the Estate itsef.

S. Wiih Topeet to the Privity between Mm and the Heir.
(F) By what means this Title may be presented and destroyed.

(A) What Persons may be Tenants by the Curtesy; what not

1. The words of this law are general, and seem to extend to all sorts of
persons without distinction ; therefore (a) idiots and lunatics, and (i) vil-
lains, may be tenants by the curtesy.

(a) [But the marriage of persons in this unhappy state is merely Toid, by reason of
their incapacity to contract, and one of the circumstances necessary to the completion
of their title to the estate is therefore wanted.] {hi) The lord, if he will, may enter and
hold those lands against the villain and his issue forerer. Co. Lit 118, 133, a.

2. Persons convict only of(c) felony or treason, persons (rf) ouflawed in
any civil action, may be tenants by the curtesy.

(c) For they forfeit only their goods and chattels absolutely, for of their lands the king
gains but a pernancy of the profits. 5 Co. 110; Co. Lit 93, b, 391, a; Stanf. 198.
((/) Bro. tit Outlawry y 36, 36, 59 ; Co. Lit, 138. For such process of outlawry might
be easily superseded, and thereby the king's pernancy of the profits discharged.

3. But persons attainted of (e) felony or treason shall not be tenants by the
curtesy ; for they bein? thereby eaiira legem positij and their persons forfeited
to the lang, they are henceforth become incapable of our laws in general,
and, by consequence, of this in particular, which intended to give the inhe-

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(B) Of what Sort of Inheritance this Estate is allowable.

litance only to those who were capable of holding it tota vita sua: also,
persons attainted in (f) a pramunire are excluded the benefit of this law,
and also {g) aUenSy be they fiiends or enemies ; and in these cases their
tide shall nerer arise, even for the benefit of the king, but the wife's estate
shall be discharged of it forever.

(e) Bio. tiU Owrtuy^ 15; Staundf.196; Godb. 323. {Thoufl^i the husband have
iaucj and aftarwarda commits treason, of which he is attainted during the life of his
wife, his curtesy estate is not forfeited by his attainder, but the wife's estate is dis-
charged firom the curtesy. 1 Bin. 1 ; Pemberton's lessee y. Hicks, 3 Dall. 479 ; 4 Dall.
168. S. C.} (/) Go. Lit 391 a; 3 Inst. 43. (g) But, if the alitn be made denizen,
or ^e person attainted pardoned, and have issue after, they may be tenants by the
curtesy, in respect to that issue had after, but not in respect of any issue had before.

7 Co. 95. ^ropish recusants were disabled from being tenants by the curtesy, 3 Ja.

],c. 5, $13.

(B) Of what sort of Inheritance this Estate is allowable ; of what not.

1. Of a use at common law, or what is now called a trust, it is expressly
resolved, that a man shall not be tenant by the curtesy; (a) and Doctor and
Student assigns this as one reason why so much land was put in use to
prevent this title ; and the 27 H. 8, c. 10, in the preamble, recites this as
one of the mischiefi that statute intended to remedy. The reason seems,
tiiat of a use there was neither tenure nor wardship, nor any escheat nor
benefit to the lord, and, therefore, not within the reason of this law ; besides
that the fisoflees were tenants to the lord, and the land in their hands the
proper subject of such titles, and there could not be double out of the same
lands. Another reason ma^ be, that the use consisting merely in privity
between the feoffor and feoffees, and being in the nature of a thing in action,
for which no remedy lay but by subpcena in Chancery, and, thei^ore, none
could have any remedy for it but tibose who were parties or privies to the
fecrfSnent, or within the words or plain meaning thereof, and, consequently,'
the husband could not be tenant by the curtesy, nor his wife be endowed
hereof, they being strangers and collaterals to the feofiment ; and the deny-
ing them the rents and profits could be no breach of trust in the feoffees,
they not being Originally trusted for any such purpose, nor compellable to
account to them.

Dr. & Stud. 0. 93 ; Perk. 457, 463 ; Bjet, 9, pi. 35 ; 1 Co. 133 ; 4 Inst 07. (a) [But
enitesy of trusts is now allowed in eqoi^, though dower is refused. Otway v. Hud-
son, 3 Vem. 583; Williams v. Wray, lb. 681; Chaplain v. Chaplain, 3 P. Wms.
839. And, therefore, of money to be invested in land. Sweetapple v. Binden, 3 Vem.
536. Cunninfriiam v. Moody, 1 Yes. 174; Dodson v. Hay, 3 Br. Ch. Rep. 404.]
^Houghton v. liapgood, 13 Pick. 154.8^

2. A man shall not be tenant by the curtesy of a copyhold, unless there
be a special custom to warrant it, for the freehold and inheritance being in
the lord, and the copvhold bein^ only a customar]^ right of taking the pro-
fits time out of mind at the will of the lord, this custom, like all others,
must be a law to itself, and all estates derived thereout are so &r good as
tiiey are warranted by that law, and no farther. If, therefore, there be no
custom for a man to be tenant by the curtesy of his wife's estate, there is
no law by which he can claim it ; and if there be no law, he can have no
more right than to another man's property. And this statute cannot operate
upon copyhold, since this statute, like other statutes, was made within
time of memory, and so falls short of any share in the original consti-
tution, or governing of copyholds ; and, for this reason, where such custom
of holding by the curtesy has prevailed, it has yet been taken literally

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(B) Of what Sort of Inheritance this Estate is allowable.

strict, and not extended in the least beyond those bounds the custom has
allowed of.
4 Co. 22; Hob. 216; Cro. Eliz. 361.

3. As, where J S set forth, that within such a manor there was a cus-
tom, that if one took to wife any customaiy tenant of the said manor in fee,
and had issue by her, if he outUved such wife he should be tenant by the
curtesy ; and the case was, that J S married a woman, who, at the time
of the marriage, had not any copyhold, but, afterwards, during the cover-
ture, a copyhold descended to her ; it was adjudged, that he should not be
tenant by the curtesy by this custom, for that his wife was not a customary
tenant at the time of the marriage, which, by the strict and literal meaning
of the custom, she ought to be.

Sir John Sayage's case, 2 Leon. 109, 208, S. C. cited. [But this case was denied
to be law by HoU, C. J., and Powell, J., in the case of Clements t. Scudamore, 1 P.
Wms. 62, and 2 Lord Raym. 1028 ; and in 1 Salk. 243, S. C, it is said to have been
denied by the whole coort.]

4. Of an annuity to a woman and her heirs, after a writ of annuity
brought, a man shall not be tenant by the curtesy any more than a woman
shall be endowed thereof, for thereby it becomes a personal inheritance.

Co. Lit. 144 b; Poph. 87.

5. A man may be tenant by the curtesy of lands held in ancient demesney
and a woman may claim dower of such lands : also, of lands in Borough^

Alden's case, 5 Co. 105; Cro. Eliz. 826, [S. C; 2 And. 178, S. C; but this point
does not appear in any of the reports.]

6. Of lands in gavelkind^ (a) a man may be tenant b^ the curtesy with-
out having issue by his wife, by the custom, and herewith our statute has
nothing to do, since custom, a law of much longer standing, had already
provided for him, and prescribed the terms of his enjoying of it.

Co. Lit. 30 a; Dav. 60; L. P. R. 627. (o) But of such lands of the wife the
tenancy bv curtesy extends only to a moietjr, and it oeaseth if the husband marries
again. This at least is the custom of gavelkind in Kent. Robins. Gav. b. 2, c. 1.]

7. There are some kinds of inheritances whereof a man may be tenant
by the curtesy, though a woman, in such case, shall not be «idowed ; as, if
lands holden of the king by knight's service descend to a woman, and after
office found she intrude and take husband, and have issue, in this case the
husband shall be tenant by the curtesy ; yet, if the heir male, after office
found in the like case, intrude, and take a wife, she shall not be endowed,
by the express provision of Prserogat. Regis, c. 13. But this statute doth
not alter or abridge the statute that gives a man a tide by the curtesy.

Praerog. Regis, c. 13 ; 4 Co. 65.

8. So, if a man marry the nief of the king, by his license, (which amounts
to an enfranchisement, at least during the coverture,) and after lands descend
to the wife, and the husband have issue by her, and then she die, the hus-
band shall be tenant by the curtesy : but, if a woman marry the villain of
the king, by his license, she shall not be endowed ; for, notwithstanding the
license, he still remains a villain to the king, w^ho may enter at his pleasure,
and defeat the wife's title of dower by his own title paramount.

Co. Lit. 30 b.

9. A man shall be tenant by curtesy of a castle, of a (a) house that is

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(C) What Estate the Wife most have, &c.

a^put baromaj or comiiat&Sy because able to defend the realm, and of a
common without number; but of these a troman shall not be endowed.

Co. Lit 30 h. (a) Bat for this, vide head Dower ^ and that hy a late resolution a
woman sluill he endowed of such a^hou8e«

10. Of offices of profit a husband shall be tenant by the curtesy.

Plow. 379. My Lord Coke cites some ancient records, wherein tenancy hy the
curtesy was allowed of dignities and offices of honour, as to carry a sword before the
king at his coronation, to be his canrer upon that day ; to be Earl of Salisbury, by the
curtesy ; but these being offices, as appears, annexed to particular dignities, or being
dignities themselves, and capable of being entailed, may, without any inconvenience,
be allowed ther privilege of this law. Co. Lit. 29. But see note (1), in the 13th edit.

[11. Where a testator directed his trustees to convey a fourth part of his
freehold lands to the use of his dau^ter for her natural life, so as she alone
should take the rents, her husband not to intermeddle therewith ; and, after
the perfonnance of several other trusts, in trust for the heirs of the body of
the dau^ter, Lord Hardwicke held, diat in this case the trust was merely
executory, that the wife took an estate for life only, and. therefore, the hus-
band was not entided to be tenant by the curtesy.

Roberts v. Dizwell, 1 Atk. 607.]

H But it has been held, said his lordship, in a case of a trust estate for
payment of debts, and in the case of an equity of redemption, that a hus-
band may be tenant by the curtesy; for in the case of a trust for payment
of debts, it is only a chattel interest in the trustees, and the first taker has
a freehold over.

Roberts v. Dixwell, 1 Atk. 607.||

(C) What Estate the Wife must have to let in the Husband to be Tenant by the Curtesy.

1. LmLETON acquaints us, that it must be an estate either in fee-simple
or fee-tail general, or where the wife has it as heir of the special tail ; (a)
and my Lord Coke says, for the husband to be tenant by the curtesy is one ot
the incidents to an estate-tail, which to restrain by condition were repugnant,
&c. ; and therefore if a woman, tenant in tail general, marries and hath issue,
which issue dieth, and then the wife dies, so that the estate is thereby deter-
mined, yet the husband shall be tenant by the curtesy. The same law if the
limitation had been to the woman and the heirs of her body, upon condition,
that if she die without issue then to remain to another ; for this is not a con-
dition, but a limitation, and no more than what the law saith.

Lit. $35; Dyer, 148; 6 Co. 41; 8 Co. 36; Co. Lit 227; 8 Co. 34; Leon. 1G7;
Pain's Case, Co. Lit 30 a. (a) [But the wife must be sole tenant both of the freehold
and the inheritance. Co. Lit 183 a.]

2. So, if one, seised of a rent in fee, makes a gift in tail general, or if a
lentde novo be granted in tail general to a woman, who marries and hath issue,
the issue dieth, and then the wife dieth without other issue, yet the husband
shall be tenant by the curtesy of the rent, though the estate-tail therein be
determined and spent ; for this being an incicknt to such an estate at the
time of its creation, whenever the husband has issue, his title is initiate, and
shaU not be lost after by failure of issue, which, being the act of God, ought
not to turn to his prejudice. And this is within the words of our law hcere"
dilatem habeniemy without fixing its continuance.

Co. Lit 30 a, note (2), 13th edit [As the statute de donia does not extend to hus-
bands claiming curtesy, or wives claiming dower, it is for this reason, probably, that a
husband may haye curtesy, and a wife dower of a rent reserved upon a gift in tail. For

Vol. IIL— 2

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(C) What Estate the Wife must have, &c.

though, as between the donor and his heiia and the donee and his heirs, the rent is inei-
dent to the reversion in consec^uence of the statute de donUj yet, as against a husband
claiming curtesy, or a wife claiming dower, the donor must, to warrant the positions of
Lord Coke, have a rent in gross, that is distinct from any estate, as he haa before the
statute de donis. Preston on Estates, c. 6, note.]

||It is stated by the learned editors of Coke upon Littleton, as the result
of the several cases cited below, that where the fee, in its orimial crea-
tion, is only to continue to a certain period, the wife is to hold her dower,
and the husband his curtesy, after the expiration of the period to which the
fee charged with the dower or curte^ is to continue ; but that where the fee
is originally devised in words importuiff a fee-simple, or fee-tail absolute and
unconditional, but by subsequent words is made determinable upon some
particular event ; there, if that particular event happens, the wife's dower
and the husband's curtesy cease with the estate to which they are annexed.
A different doctrine, however, as to cases of the latter description, seems to
have been laid down in the case of Buckworth v, Thirkell. There Joseph

Online LibrarySir Henry Gwilliam Matthew BaconA new abridgment of the law with large additions and corrections, Volume 3 → online text (page 1 of 114)