The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CXXII. Skipwith's Case. Pasch. 20 Eliz. In the Common Pleas.

IN an Action of Trespass: It was found by a special Verdict;* 1.1 That the Lands were Copy-hold Lands. That the Custom of the Mannor was, That Quaelibet Foemina Viro Co-operta pote∣rit devise Lands, of which she was seised of an Estate of Inheri∣tance in Fee simple according to the Custom to her Husband; And also Surrender the same in the presence of the Steward and 6 other of the Tenants. And it was further found, That one J.S. was seised of the Copy-hold Lands, wherein the Trespass was; And that he had Issue 2 Daughters and died seised of the said Lands: And that after his Decease his two Daughters en∣tred into the said Lands, and afterwards, they both took Hus∣bands; And that afterwards, one of the said Daughters made a Will in writing, and by her said Will, in the presence of the Steward, and six of the Tenants, she Devised her part of the said Copy-hold Lands to her Husband and his Heirs; and at the next Court, surrendred the said Copy-hold Lands in the presence of the Steward and six other of the Tenants, to the uses in her Will expressed, and shortly after she died; and that after her death,

her Husband was admitted to the said part of her Lands: who con∣tinued the possession thereof; And the Husband of the other Daugh∣ter and his Wife entred upon him: Vpon whom, he re-entred; And the Husband brought Trespass. This Case was argued at the Bar, by Rhodes: And he said, That the Custom was not good; neither for the Devise, nor for the Surrender. First, for the incertainty of the Estate, what Estate she might Devise, for that is not expressed in the Custom; but generally that she might Devise her Copyhold Lands of Inheritance, without expressing for what Estate. And secondly, the Custom is not good; for that it is against reason, that the Wife should surrender to the use of her Husband; And that a Custom to devise is not good where it is incertain, he vouched many Cases; As 13 E. 3. tit. Dum fuit in∣fra aetatem. 3. The Tenant said, That the Lands lay in the County of Dorset, where the Custom is, That an Enfant might make a Grant or a Feoffment when he could number 12 d. and because it is incertain when he could do it, It was holden to be a void Custom. So 19 E. 2. tit. Gard. 127. In a Ravishment of Ward, It was alledged, that the Custom was, That when an Enfant could measure an Ell of Cloath, or number 12 d. that he should be out of Ward; And it was holden to be a void Custom for the incertainty: Also he said, That in the principal Case, the Custom was void; for that it was against reason, that the Wife should surrender to her Husband; for every Surrender is a Gift: and a Woman cannot give unto her Husband; for the Wife hath not any disposing Will, but the Will of her Husband only. And there∣fore the Case is in 21 E. 3. That if the Husband be seised of Lands in the right of his Wife; and he maketh a Feoffment in Fee of the Lands, and the Wife being upon the Lands doth disagree, and saith, She will not depart with the Land during her life; yet the Feoff∣ment is a good Feoffment, and shall bind the Wife during the life of the Husband. And see 3 E. 3. Br. tit. Devise, 43. That a Feme Covert cannot Devise to her Husband, for that should be the Act of the Husband to convey the Lands to himself. And whereas the Case in 29 E. 3. was Objected against him, where the Case was, That a Woman being seised of Land deviseable, took a Husband, and had Issue by him; and the Wife Devised her Lands to her Husband for his life, and died; and a Writ of Waste was after∣wards brought against him: And it was there holden, That the Writ did lie. He said, That that Case did make rather for him than against him, for that Case proves, that the Husband did not take the Land by vertue of the Devise in his own right; but that he held the Lands having Issue by the Wife as Tenant by the Courtesie, and so under another Title; and therefore it appear∣eth, that the Writ of Waste was there brought against him as Tenant by the Courtesie. Also he said, That the Devise was void by the Statute of 34 H. 8. Cap. 5. where it is Enacted, That Wills and Testaments made of any Lands, Tenements, &c.

by Women Coverts shall not be good or effectual in the Law; and he said, That that Statute did extend to Copyhold Lands: But as to that, all the Iustices did agree, That Copyhold Lands were not within the words of that Statute. But Anderson said, That the Equity of that Act did extend to Copyholds: And further Anderson said, That the Prescription, or Custom in the principal Case was not good; for it is layed to be, That Quaelibet Foemina Viro Co-operta poterit, and it ought to be potest; and by the Custom have used to Devise to the Husband: And a Pre∣scription must be in a thing done, and not in posse. Also he said, That the Custom if it were good, is not well pursued; For the Custom is, that she may Devise and Surrender in the presence of the Steward and six Tenants, and that must be intended to be done all at one time; for the words of a Custom are to be per∣formed, if it may be: but in the principal case, the Devise is laid to be at one time, and the Surrender at another time, and so it is not in pursuance of the Custom: But to that it was not answered. But then it was said, Admit that the Custom to devise, and the Devise were not good; yet the Action did not lie against the De∣fendant, because that the Husband was admitted, and his Entry into the Land was countenanced by a lawful Ceremony; and also he was Tenant in Common with the other Husband by such Entry. It was adjourned.

Notes

• * 1.1

  Godbolt 14, 143. Co. of Copy-holds 94.