Court of Chancery held that the want of a formal assignment of dower was nothing in equity, for still the right in conscience was the same. And if the heir brought a bill against the mother, for an account of the profits, it was just that a court of equity should, in the account, allow a third of the profits for the right of dower. TITLE VI. DOWER. CHAP. V. What will operate as a Bar or Satisfaction to Dower, 2. Attainder of the Husband. 19. Bargain and Sale in London. 26. 21. A Devise is no Bar of Dower, Unless so expressed, and then the Widow has an Election. 31. Sometimes held a Satisfac tion. 34. A Bequest of Personal Estate is no Bar to Dower. Attainder of the Husband. THE SECTION 1. HE right to dower attaches at the instant of the marriage; nor can it be defeated by the alienation of the husband alone. Still the wife be may barred from claiming dower by several acts subse quent to the marriage. 2. Formerly, if a man was attainted of treason or 1 Inst. 41 a. felony, his wife was thereby barred, not only of her dower at common law, but also of her dower ad ostium ecclesiæ, ex assensu patris, and customary dower: except where the lands were held in gavelkind. Rob. Gav. 230. 3. By the statute 1 Edward VI. c, 12. the rigour of the common law was abated in this respect, it being thereby enacted that in all cases where the husband was attainted of treason or felony, his wife should have dower. But a subsequent statute, 5 & 6 Edward VI. c. 11. revived this severity against the widows 1 Inst. 392 b. of traitors, who are now barred of dower. And the words of the act being general, exclude the wife, as well in cases of petit, as of high treason. 4. In cases of misprision of treason, or attainder of felony only, the statute 1 Edward VI. is still in force; therefore the widows of such persons are entitled to dower. And where offences have been made felony by modern acts of parliament, the wife's dower is in general expressly saved. 5. It was resolved in 3 & 4 Philip & Mary, that the Gate v. widow of a man who was attainted of treason, should Wiseman. Dyer, 140. not be endowed of lands which he had aliened before 1 Inst. 41 a, the treason; though they were not forfeited. n. 3. the Wife. 1 Inst. 33 a. 6. If a woman be attainted of treason or felony, Attainder of she will thereby lose her dower; but if pardoned she may then demand it, though her husband should have aliened in the mean time. For when this impediment is once removed, her capacity to be endowed is restored. 13 Rep. 23. with an 7. It has been stated that a divorce on account of Elopement adultery is not a bar to dower. But by the statute Adulterer. Westminster 2. c. 34. it is enacted, that if a wife wil- 2 Inst. 433 lingly leaves her husband, and continues with an adulterer, she shall be barred of her action to demand dower, if she be convicted thereupon; except her husband willingly, and without coercion of the church, reconcile her, and suffer her to dwell with him; in which case she shall be restored to her action. 8. Lord Coke, in his comment on this statute, 2 Inst. 435. observes on the words si sponte reliquerit virum suum, et abierit, et moretur cum adultero; that although the words of this branch be in the conjunctive, yet if the woman be taken away, not sponte, but against her will, and after consent, and remain with the adulterer, without being reconciled; she shall lose her dower. For the cause of the bar of her dower is not Idem, 436. Idem. 2 Inst. 435. Vol. 1. 146. the manner of her going away, but the remaining with the adulterer, without reconciliation. 9. He also observes upon the words moretur cum adultero, that although she does not continually remain with the adulterer, yet if she be with him, and commits adultery, it is a tarrying within the statute. Also if she once remains with the adulterer, and after he keeps her against her will; or if the adulterer turns her away, yet she shall be said morari cum adultero, within the act. 10. He further observes, that if a woman who has eloped from her husband with an adulterer, is afterwards reconciled, and cohabits with her husband, by coercion of the church, yet she will be barred of her dower. 11. If a woman goes away with another man, with her husband's consent, and afterwards that man commits adultery with her, and she remains with him, without being reconciled to her husband, she shall be barred of her dower. 12. There is a curious case in the rolls of parliament 30 Edward I. where a man by deed granted his wife to another, with whom she eloped and lived in adultery. 2 Inst. 436. It was determined, 1. that it was a void grant: 2. that it did not amount to a licence; or at least was a void licence: 3. that after elopement there should not be any averment quod non fuit adulterium; though she married the adulterer after her first husband's death: therefore that she was barred of dower. A 12 Mod. 232. sentence of purgation of adultery in the ecclesiastical court was also produced, but it was not allowed to have any Coot v. Berty, S. P. Green v. Harvey, 1 Roll. Ab. 680. effect. 13. Where the friends of the husband removed him from his wife, published that he was dead, and persuaded the wife to marry another man, though the wife lived in adultery, yet inasmuch as, non reliquit virum sponte, it was held that she did not forfeit her dower. 14. With respect to the circumstances necessary 2 Inst. 436. to prove a voluntary reconciliation by the husband, Lord Coke says cohabitation is not sufficient, without reconciliation made by the husband, sponte: so that cohabitation only in the same house with the husband will not avail. But in the following case, cohabitation as man and wife appears to have been held a sufficient proof of reconciliation. Herbert, 15. Reconciliation being pleaded, evidence was Haworth v. given that the husband and wife had, after the elope- Dyer, 106. ment, slept together several nights, and in divers places, and demeaned themselves as man and wife. It was objected that they never lived together in one house, but were apart; and the wife continued in adultery, with one or more, during the life of the husband, sed non allocatur; for there might have been 2 Inst. 436. divers elopements, and divers reconciliations: and the defendant ought to take issue on one, at his peril. 15. 16. If in a writ of dower, the tenant pleads that Detinue of the demandant detains the charters of the estate, Charters. Bedingfield's and she denies the fact, which is found against her, Case, 9 Rep. she shall lose her dower. But, 1. the charters ought Dver 250 a. to relate to the land whereof dower is demanded. Hob. 199. 2. He who pleads this plea ought to shew the certainty of the charters; whereupon a certain issue may be joined as that they are in a chest or box, locked or sealed, which imports sufficient certainty. 3. No stranger, though he be tenant to the land, and has the evidences conveyed to him, can plead detinue of charters. 17. In several cases the heir is in the degree of a Idem. stranger, and therefore shall not plead detinue of |