This act doth not take away the evidence of presumption from cohabitation. But if the evidence be clear that the marriage was not celebrated according to the requisitions of the act, it is totally void, and no declaratory sentence in the ecclesiastical court is necessary.-Rer v. Preston next Travasham, M. 33 Geo. II. B. R.

By the same act all marriages shall be solemnized in the presence of two or more credible witnesses, besides the minister who shall celebrate the same, and shall be entered in the register; in which entry shall be expressed whether the marriage were celebrated by banns or licence, and signed by the minister and the parties married, and attested by two witnesses.

The sessions stated in a case reserved by them, that the entry made in the register was not subscribed by the minister and two witnesses, Per curiam.-In a suit of jactitation of marriage in the spiritual court, whilst the parties are alive, they are put to prove all ceremonies: But in all other cases, proof by witnesses who saw the marriage, is primâ facie sufficient; and whoever would impeach it, must shew wherein it is irregular. In the present case the marriage appears by the witnesses, and the register, to have been by banns; and therefore there is no colour for any objection; for the entry of the register is not of the essence of the marriage.-R. v. St. Devereux Inhabitants, E. 2 Geo. III. 1 Blacks.

367.

It is not precisely settled what length of time shall be allowed for a woman to go after her husband's death. T. 18 Ed. I. Rot. 13, because a feme went eleven months after the death of the husband, it was resolved the issue was not legitimate, being born post ultimum tempus mulieribus pariendo constitutum. (a) But in Alsop v. Bowtrell, (1620. Cro. Jac. 541,) where the husband died 23d of March, and the child was born the 5th of January; upon proof of the mother having been hardly dealt with, forced to lie in streets, &c. and upon an examination of physicians, the court held the child might be legitimate.

(a) Pliny, in his Nat. Hist. Lib. VII. c. 5. says, there is no definite time known or set down for women to go with child, and he mentions a case before L. Papyrius, the Prætor, (or Lord Chief Justice) where a sccond heir in remainder made claim, and put in a plea for his inheritance, of the goods, and the Prætor made an award, and gave judgment against him on behalf of an infant, the right

heir, born after the decease of his father; in this case the mother came in and testified how she was delivered of that child within thirteen months after the death of the testator.

Pliny also mentions, that the consul Suillius Rufus, was born at the end of eleven months; his mother was Vestilia, who was married to three roman citizens successively, and had children by all.

Note;

[115]

Note; The rule quod non est justum aliquem post mortem facere bastardum holds place only in the case of bastard eigne and mulier puisne. But if H. marry a woman, and that woman marry again, living H. the last marriage is void without any divorce, and the jury shall try the fact which proves it not a marriage.-Pride v. Earl of Bath, E. 6 W. III. Salk. 120. Co. Litt. 244. (a)

N. B. By 16 & 17 Car. II. c. 8. No execution shall be stayed by writ of error after verdict and judgment thereupon, unless the plaintiff in error became bound to the defendant to pay the damages and costs in case the judgment be affirmed, or the plaintiff discontinue or be nonsuited, and a writ shall issue in such case to enquire of the mesne profits and damages by any waste. (b) ·

(a) And the rule that parents
shall not be allowed to bastardize
their issue, holds only where it is to
bastardize issue born after marriage,
for either parent may prove that a
child was born before marriage, and
a general declaration, or an answer
to that effect, is good evidence; but
as to issue born after marriage, it is
inadmissible. Goodright, d. Stephens
v. Moss, 1 Cowp. 591.

So the reputed father or mother
is competent to prove the illegiti-
macy of the child, by shewing no
marriage, or an illegal one.
Bramley Inhabitants, 6 T. Rep. 331.

Rex v.

But the rule, that a bastard is nullius filius, applies only to cases of inheritance. Per Buller, J. in Rẹx v. Hodnett Inhabitants, 1 T. Rep. 101.

(b) Under this statute the defendant is entitled to his writ of error, if he offer to become bound, as the sta tute directs, which is generally in double the rent, even though it appear by affidavit that he is insolvent, and that the land is mortgaged for more than it is worth. Thomas v. Goodtitle, 4 Burr. 2501. But where defendant afterwards brings error in parliament, he must enter into a

rule and recognizance not to commit waste, pending the writ. Wharod v. Smart, 3 Burr. 1823.

A writ of error cannot issue in the name of the casual ejector. George, d. Bradley v. Wisdom, 2 Burr. 756. Nor can any thing be assigned for error, which can render it necessary to enquire into the title. Wilkes v. Jorden, Hob. 5.

As it may be that this writ is only brought for delay, plaintiff in ejectment may, pending the writ, bring his action for mesne profits; but if it be not brought for that cause, the sum which plaintiff re covers may be given in evidence in mitigation of damages, on a writ of enquiry. Donford v. Ellys, 12 Mod. 138.

And plaintiff may enter, pending this writ, if he find the premises vacant. Badger v. Floyd, Holt, 199, cited in Withers v. Harris, Raym,

808.

The above-mentioned statute however does not extend to any writ of error brought by an executor or ad ministrator. Runn. on Eject. 423. (ed. 1795.)

CHAPTER

CHAPTER III.

OF THE WRIT OF RIGHT.

BY the 32 H. VIII. c. 2. No person shall have a Writ of Right of the possession of his ancestor, but within threescore years, nor of his own but within thirty years. (a)

A claim or entry to prevent the statute must be upon the land, unless there shall be some special reason to the contrary.-Ford v. Grey, H. 2 Ann. Salk. 285. (b)

Note; The possession of one joint-tenant is the possession of another, so far as to prevent the statute. (c)

(a) Vide etiam Herne v. Lilborne, 1 Bulst. 159. 162.

By this writ the property, as well as the possession, are recoverable, and it is the only remedy for the owner, or his ancestors, after they have neglected to bring a writ of entry, or assize, or mort d'auncestor, or of novel disseisin within thirty years. F. N. B. I. 12.

(b) Et vide Herne v. Litborne, sup. Co. Litt. 15. 3 Com. Dig. 137. (c) A writ of right is usually a writ close. William v. Gwyn, 2 Saund. 45 d. n. 4, and not a writ patent, as it is called in reporting the case of Tyssen v. Clark, 3 Wils. 419. 541. 558 and it is to be observed, that

in prosecuting it, the smallest error will be fatal. Dumsday v. Hughes, 3 Bos. & Pull. 453; especially where the demandant has dealt unfairly with the tenant. Almsgill v. Pierson, 1 Bos. & Pull. 103: and unless the verdict be flagrantly wrong, no new trial will be granted. Tyssen v.Clark, sup. and 2 Bla. 941. S. C. But almost any collateral bar may be given in evidence on the general issue. S. C.

For the practical proceedings under this writ, and further authorities, vide Lee's Dict. of Pract. 1051, where this subject is very ably treated, and the forms are supplied.

CHAPTER IV.

OF THE WRIT OF FORMEDON.

BY 21 Jac. I. c. 16. All Writs of Formedon shall be sued within twenty years next after the title or cause of action first descended, or fallen, with a proviso that if the person entitled to such writ be, at the time of the said writ first descended or fallen, within twenty-one years, feme covert, &c. then such person and his heirs may, notwithstanding

the

the said twenty years be expired, bring his action, so as it be within ten years, &c. (a)

If the tenant plead that A. ne done pas, it is not sufficient for the demandant to prove the gift by another: (2 Rol. Abr. 676. pl. 13.) So [116] if the demandant* count of a gift in frank-marriage, a gift with a remainder in fee is not sufficient evidence.--Ibid. pl. 14.

In a formedon in discender the demandant must make himself heir to him who was last seised by force of the intail; but he need not mention an ancestor who happened to be inheritable, but never was actually seised by force of the intail.-Buckmere's Case, 7 Jac. I. 8 Co. 88. Anon. Dy. 14.

In a formedon in reverter the demandant need not alledge that all the issue inheritable are dead, but it is sufficient to say the donee is dead without issue; for he is a stranger to the pedigree: But he must not omit any of his own ancestors who were seised of the reversion.-. Booth, 153.

In a formedon in reverter the taking the profits must be alledged both in donor and donee: So in a formedon in remainder, if a fee

(a) This writ was granted by statute de donis, (Westm. 2. 3 Ed. I.) and lies for one who is entitled to lands by virtue of an entail; it is in nature of a writ of right, and is the highest action a tenant in tail can have, where upon alienation the estate tail is discontinued, and the remainder is by failure of the particular estate turned into a mere right. Co. Litt. 316. Finch's Law, 267.

Of formedon there are three species: 1. In the discender it lies where a gift in tail is made, and the tenant in tail aliens, or is disseised, and dies, in which case his heir shall recover the lands against the actual tenant of the freehold, but he must prove himself heir, secundum formam doni.

F. N. B. 211, 212.

2. In remainder it lies upon a gift for life, or in tail, or in fee, and he who has the particular estate dies without issue inheritable, whereupon a stranger intrudes on the remainderman, and keeps possession. The remainder-man shall then have this writ, stating the form of the gift, and

the happening of the event on which the remainder depended. F. N. B. 217.

3. In reverter it lies where, by the death of the donee in tail, or his heirs without issue of the body, the reversion falls into the donor, his heirs or assigns. The reversioner in such case shall, by this writ, suggest the gift his own title minutely from the donor, and the failure of issue, which lets in his reversion, and thus recover the lands. F. N. B. 219. Buckmere's Ca. 8 Co. 88.

Formedon in discender lies also by the heir of a coparcener in tail, who after partition aliens her part, and then, by reason of her sister's death, takes the other part. For a coparcener lies also formedon insimul tenuit against a stranger on the ancestor's possession, and it may be brought without naming her companion in possession. And it lies also for one heir in gavelkind of lands intailed, and where the lands are held without partition. N. Nat. Brev. 476. 481.

simple be demanded; but if an estate tail only be demanded (as in a formedon in discender) it is sufficient to alledge explees in the donee only.-Hunloke v. Petre, H. 3 W. III. 2 Lutw. 963.

In a formedon in discender by husband and wife in right of the wife, the discent must be made to the wife alone; but in a formedon in reverter it may be laid either to the wife, or to the husband and wife.— E. Clanricarde v. Sydney, M. 11 Jac. I. Hob. 1.

The defendant pleading never tenant of the freehold, in abatement, the plaintiff refused to accept the plea; but upon motion the plea was ordered to be received, for it cannot be pleaded otherwise than in abatement.-1 Barnes, 238. (a)

(a) Non-tenure special may be pleaded where the tenant shews what estate or interest he hath in the land demanded, and therefore this plea must always state who is tenant. Bishop v. Cossen, 1 Brownl. 153. Booth, 29.

Non-tenure of parcel of an entire thing abated the whole writ at common law, but by statute 25 Ed. III, c. 16, no writ shall be abated by the exception of non-tenure of parcel, save only as to that parcel whereof non-tenure was alledged.

Fowle v. Doble, 1 Mod. 181. Booth, 29.

But on non-tenure of the whole pleaded, defendant need not shew who was tenant, but of parcel. S.C.

After a general imparlance the tenant cannot plead non-tenure of part, though of the whole he may. Barrow v. Haggett, 3 Lev. 55.

A tenant may plead both in bar and abatement in this action, and there are several pleas, but non-tenure can only be pleaded in abate

ment.

CHAPTER V.

OF THE WRIT OF DOWER.

DAMAGES in Dower are given by the statute of Merton, c. 1. (a) (Vide Co. Litt. 32 b. for an exposition of this statute), but it extends

(a) This writ lies where a woman has received only part of her dower, to recover the residue against the same tenant in the same term, and dower unde nil habet lies where a wife has received no part, nor has her husband made any assurance thereof, so that she is driven to sue the heir or his guardian. F. N. B.7. Co. Litt. 32. Wood's Inst. 568.

At common law, before the statute of Westm. 1. c. 39, if a woman

received even the smallest part of her dower of any one tenant, she had no remedy for the rest, but by this writ; for if she brought dower unde nil habet, the acceptance of part was a good plea in abatement, but now it shall be no plea in abatement for defendant to say, she has received part of any other person, and this extends as well to a guardian in chivalry, as to the tenant of the land. 2 Inst. 261.

only