[166] “Si enim mulier, quando ducta fuerit in uxorem, concessit et consensit se dotari del mobili vel de terra specificata, illud ei debet post decessum mariti sui sufficere, quod in contractu matrimonii concessit se pro dote recipere et consensit.” (Le Grand Custum. de Normand. c. 102.) “Because she was first content therewith,” is the reason the Reg. Maj. gives why she should afterwards be confined strictly to the original designation. (L. 2. c. 16.)
[167] Mulier is the expression which our Author generally uses, to designate the Wife: but, as Lord Coke informs us, this Term was anciently taken for a wife. (2. Inst. 434.)
[168] For which Rule Bracton gives two reasons: 1st. Because the woman has no freehold in her Dower, previously to its being assigned. 2ly. Because she cannot gainsay her Husband. (Bracton 95. b.)
[169] I have followed all the MSS. and the Edition of Glanville published in 1604, in admitting not into the text. I submit, that this Reading is sanctioned not merely by the previous part of this present chapter, but also by the [13th chapter of the present Book]. Yet the Regiam Majestatem makes the validity of such a sale to depend upon the wife’s consent—but, if she made no opposition to it, it seems to have been tantamount to a positive consent. (L. 2. c. 15. 16.) From considering the [13th Chapter of the present Book], one thing seems clear—that in case the Husband disposed of his Wife’s dower, the Heir was bound to render an equivalent to the Purchaser, if the Land was recovered from him, or to the Wife, if it was not so. As to the Heir, therefore, it was immaterial; and so it perhaps might be considered with respect to the Wife and the Purchaser, in case the Heir, as Heir, were solvent; but if otherwise, it was highly material to ascertain, whose right, that of the Wife or that of the Purchaser, was paramount. Bracton is more explicit than our Author; and from him we collect, that a distinction should be made, whether the Dower was originally named, or not. In the former case, the woman could pursue the identical Dower, and wrest it from the hands even of a Purchaser. In the latter she was obliged to resort to the Heir for an Equivalent. In the first case, from the moment the dower was named, the woman acquired a certain jus et dominium as Bracton expresses it, in the property, which accompanied it into whatever hands it afterwards went, and gave her the right of following and reclaiming it. But, if the endowment were general, and no particular land specified, the Wife did not acquire any immediate right, on account of the uncertainty; it being questionable, what identical allotment would fall to her share, until the assignment took place. (Bracton 300. b.)
[170] It seems, that the Widow took possession of the property in the same state in which it existed at the death of her Husband, whether in cultivation, or otherwise, with the fruits, returns, and all other things appertaining to it. (Bracton 98. a. Fleta L. 5. c. 24. s. 2.)
[171] Namely, the Heir of her Husband. (Vide Reg. Maj. L. 2. c. 16.)
[172] Vide F.N.B. 18.
[173] Among the Constitutions of the Ancient kings, the Mirror informs us, “it was ordained, that after a Plaint of wrong be sued, that no other have Jurisdiction in the same place, before the first Plaint be determined: and from thence came this clause in a Writ of Right, Et nisi feceris vicecomes faciat.” (Mirror c. 1. s. 3.)
[174] V. Infra [L. 12]. [c. 7].
[175] “The Feme, who is Demandant, may remove the same by a Tolt into the County; and also may remove the same out of the County into the Common Pleas by a Pone, &c. without shewing any cause in the Writ, as the Demandant shall do in a Writ of Right Patent.” (F.N.B. 15.)