Short Studies in the Early Common Law. and the issue were still living; and therefore (eo prcetextu) said Richard has the estate and honor of earl of Salisbury, and ought to have it for the term of his life. Littleton (§ 90) is also express that, the conditions being fulfilled, the husband does homage for the wife's lands because he has title by curtesy,if he survives the wife. The distinction between the husband's en joyment of the wife's freehold from marriage to the birth of issue, and his own freehold thenceforward, is again clearly marked by Lord Hale's rule : — "So nota that till issue the husband can not use the title of his wife's dignity; but afterward he may. So adjudged by Henry VIII. in the case of Wimby, who claimed the title of Lord Talboys in right of his wife." (Hale MSS., quoted by Butler, note 1 to Co. Litt. 29 b.) Butler refers to Coll. Claims of Bar. 11,44, 72, for the par ticulars of Wimby's case, and shows that the husband's right to curtesy in the wife's dignities had since fallen into disuse. So, too, it was held that the lord could not avow for homage on baron and feme seised in jure uxoris [could not distrain for lack of such homage?] until birth of issue. The birth need not be alleged in the avowry, but plaintiff in replevin may reply the want of it. (Brooke, Fealtie and Homage, 3, citing 44 Edw. III. 41.) Before issue born the husband shall render fealty only. (Ib. pi. 10, citing Register.) The husband's power over the freehold, but not over the inheritance, is well shown by a case, Y. B. Liber Ass. fo. 222, 38 Edw. III., pi. 6: — Novel disseisin was brought against the Dame of Gilden in Dorsetshire. Tank. pleads for the dame that she was seised of the lands until she took husband, one A, who leased the land to B for the term of A's life, and afterward granted the reversion to the plaintiff. Then A died, B died, the
dame entered, the plaintiff claiming under the grant of the reversion abates in her possession and she ousts him, and she de mands judgment whether he ought to have the assize. Pcrs. [for plaintiff]. We protest that we knew not that the land was the said wife's right; but say that A leased to B for A's life, saving the reversion to himself and his heirs, and then granted the reversion to plaintiff and his heirs, by virtue of which grant the tenant attorned and then died, and after his death we entered, as into our rever sion, and were seised until disseised by you; and we pray the assize. Tank, then asks judgment on the ground that the dame's right is admitted, and that as B survived the husband plaintiff never had the posses sion in the husband's lifetime, and the grant of the reversion could not prevent her lawful entry on the husband's death, so that there was no disseisin. And this was the opinion of the Court, that the plaintiff was barrable of the assize. Notice that the husband's express limita tion of the reversion to himself and his heirs, at the time of the lease, and his subsequent grant of it, were thus held merely null as to the wife. The wife's inheritance was unaffected by the marriage so completely that if husband and wife sued for waste of the wife's inher itance, and laid the disinheritance to be of both, instead of ad exhercditationem of the wife alone, the brief abated; as was held in 1430. (Y. B. Mich. 8 Hen. VI. pi. 19, fo. 9.) The application of the same principle to other forms of property, chattels real and things personal of all kinds, in possession or in action, need hardly be made at length. To point out its bearing on many modern conflicts of doctrine would extend this article beyond reasonable limits; and if it awaken sufficient interest to be worth doing at all, it must be done in another article.
