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usual method of barring dowers is by jointures, as regulated by the statute 27 Hen. VIII. c. 10.

A JOINTURE, which, strictly speaking, signifies a joint estate, limited to both husband and wife, but in common acceptation extends also to a sole estate, limited to the wife only, is thus defined by sir Edward Coke'; "a competent livelihood "of freehold for the wife, of lands and tenements; to take "effect, in profit or possession, presently after the death of "the husband, for the life of the wife at least." This description is framed from the purview of the statute 27 Henry VIII. c. 10. before mentioned; commonly called the statute of uses, of which we shall speak fully hereafter. At present I have only to observe, that before the making of that statute, the greatest part of the land of England was conveyed to uses; the property or possession of the soil being vested in one man, and the use or profits thereof in another; whose directions, with regard to the disposition thereof, the former was in conscience obliged to follow, and might be compelled by a court of equity to observe. Now, though a husband had the use of lands in absolute fee-simple, yet the wife was not entitled to any dower therein; he not being seised thereof: wherefore it became usual, on marriage, to settle by express deed some special estate to the use of the husband and his wife, for their lives, in joint-tenancy, or jointure; which settlement would be a provision for the wife in case she survived her husband. At length the statute of uses ordained, that such as had the use of lands should, to all intents and purposes, be reputed and taken to be absolutely seised and possessed of the soil itself. In consequence of which legal seisin, all wives would have become dowable of such lands as were held to the use of their husbands, and also entitled at the same time to any special lands that might be settled in jointure: had not the same statute provided, that upon making such an estate in jointure to the wife before marriage, she shall be for ever precluded [138] from her dower. (17) But then these four requisites must

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(17) There were more reasons than one for this according to the circumstances of the settlement, being made before or after marriage, or before or after the husband's death. They were all sufficiently strict and technical;

but

be punctually observed: 1. The jointure must [be limited to] take effect immediately on the death of the husband. 2. It must be for her own life at least, and not pur auter vie, or for any term of years, or other smaller estate. 3. It must be made to herself, and no other in trust for her. 4. It must be made, and so in the deed particularly expressed to be, in satisfaction of her whole dower, and not of any particular part of it. If the jointure be made to her after marriage, she has her election after her husband's death, as in dower ad ostium ecclesiae, and may either accept it, or refuse it and betake herself to her dower at common law; for she was not capable of consenting to it during coverture. And if, by any fraud or accident, a jointure made before marriage proves to be on a bad title, and the jointress is evicted, or turned out of possession, she shall then (by the provisions of the same statute) have her dower pro tanto at the common law'. (18)

These settlements, previous to marriage, seem to have been in use among the antient Germans, and their kindred nation the Gauls. Of the former Tacitus gives us this account. "Dotem non "uxor marito, sed uxori maritus offert; "intersunt parentes et propinqui, et mu

nera probant.” (de mor. Germ. c. 18.) And Cæsar (de bello Gallico, 1.6. c.18.) has given us the terms of a marriage settlement among the Gauls, as nicely calculated as any modern jointure. "Viri, quantas pecunias ab uxoribus do"tis nomine acceperunt, tantas ex suis

"bonis, aestimatione facta, cum dotibus "communicant. Hujus omnis pecuniae "conjunctim ratio habetur, fructusque

servantur. Uter eorum vita superavit, "ad eum pars utriusque cum fructibus "superiorum temporum pervenit." The dauphin's commentator on Cæsar supposes that this Gaulish custom was the ground of the new regulations made by Justinian (Nov. 97.) with regard to the provision for widows among the Romans; but surely there is as much reason to suppose, that it gave the hint for our statutable jointures.

but one general reason applied to all the cases, which it will be enough to state; it was this, that "a right or title which any one has to any lands or tenements, of any estate of inheritance, or freehold, cannot be barred by acceptance of any manner of collateral satisfaction or recompence." This was a strict rule, and the example which Lord Coke puts, shows that it was not confined to dower. " As if," says he, "A disseises B tenant for life or in fee of the manor of Dale, and afterwards gives the manor of Sale to B and his heirs in full satisfaction of all his rights and actions which he has in or for the manor of Dale, which B accepts, yet B may enter into the manor of Dale, or recover it in any real action. See Vernon's case, 4 Rep. 1. &c. (18) As to the 1st requisite, I have ventured to insert two or three words in the text, because Lord Coke, from whom the passage is taken, (Co. Litt. 56.) is express that it is not enough, that in fact and by accident the jointure takes effect immediately on the death of the husband, as if an interposed

THERE are some advantages attending tenants in dower that do not extend to jointresses; and so vice versa, jointresses are in some respects more privileged than tenants in dower. Tenant in dower by the old common law is subject to no tolls or taxes; and hers is almost the only estate on which, when derived from the king's debtor, the king cannot distrein for his debt; if contracted during the coverture". But, on the other hand, a widow may enter at once, without any formal process, on her jointure land; as she also might have done on dower ad ostium ecclesiae, which jointure in many points resembles; and the resemblance was still greater, while that species of dower continued in its primitive state: whereas no small trouble, and a very tedious method of proceeding, is necessary to compel a legal assignment of dower", And, what is more, though dower be forfeited by the treason of the husband, yet lands settled in jointure remain unimpeached to the widow °. Wherefore sir Edward Coke very justly gives it the preference, as being more sure and safe to the widow, than even dower ad ostium ecclesiae, the most eligible species of any.

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interposed remainder-man for life should die before the husband; but that the limitation of the deed must be to the wife immediately after the husband's death, where the estate is not joint. As to the 3d, though the position is true at law, yet it is now settled that a trust estate being equally certain and beneficial as a legal estate, is a good equitable jointure to bar dower. (Hargrave's Note, 226. Co. Litt. 36.) As to the 4th, Lord Coke says it must either be expressed, or averred to be so; and in 4 Rep, 3. it is laid down, that it need not be expressed, but may be averred to be, &c.; that is, the deed being pleaded, and being silent as to its object, or stating one not inconsistent with this, this may be stated and averred supplementally to have been the object, or part of the object.

140

CHAPTER THE NINTH.

OF ESTATES LESS THAN FREEHOLD.

OF

F estates that are less than freehold, there are three sorts: 1. Estates for years: 2. Estates at will: 3. Estates by sufferance.

I. AN estate for years is a contract for the possession of lands or tenements, for some determinate period; and it takes place where a man letteth them to another for the term of a certain number of years, agreed upon between the lessor and the lessee, and the lessee enters thereon". If the lease be but for half a year or a quarter, or any less time, this lessee is respected as a tenant for years, and is styled so in some legal proceedings; a year being the shortest term which the law in this case takes notice of. And this may, not improperly, lead us into a short digression, concerning the division and calculation of time by the English law.

THE space of a year is a determinate and well-known period, consisting commonly of 365 days; for, though in bissextile or leap-years it consists properly of 366, yet by the statute [141] 21 Hen. III. the increasing day in the leap-year, together with the preceding day, shall be accounted for one day only.

a We may here remark, once for all, that the termination of "or" and "ee" obtain, in law, the one an active, the other a passive signification; the former usually denoting the doer of any act, the latter him to whom it is done. The feoffor is he that maketh a feoffment; the fcoffee is he to whom it 14

is made: the donor is one that giveth
lands in tail; the donee is he who re-
ceiveth it; he that granteth a lease is
denominated the lessor; and he to whom
it is granted the lessee. (Litt. §57.)
b Ibid. 58.
Ibid. 67.

That of a month is more ambiguous: there being, in common use, two ways of calculating months; either as lunar, consisting of twenty-eight days, the supposed revolution of the moon, thirteen of which make a year: or, as calendar months of unequal lengths, according to the Julian division in our common almanacks, commencing at the calends of each month, whereof in a year there are only twelve. A month in law is a lunar month, or twenty-eight days, unless otherwise expressed; not only because it is always one uniform period, but because it falls naturally into a quarterly division by weeks. Therefore a lease for "twelve months" is only for forty-eight weeks; but if it be for "a twelvemonth" in the singular number, it is good for the whole year. For herein the law recedes from its usual calculation, because the ambiguity between the two methods of computation ceases; it being generally understood that by the space of time called thus, in the singular number, a twelvemonth, is meant the whole year, consisting of one solar revolution. (1) In the space of a day all the twenty-four hours are usually reckoned, the law generally rejecting all fractions of a day, in order to avoid disputes. Therefore, if I am bound to pay money on any certain day, I discharge the obligation if I pay it before twelve o'clock at night; after which the following day commences. But to return to estates for years.

THESE estates were originally granted to mere farmers or husbandmen, who every year rendered some equivalent in money, provisions, or other rent, to the lessors or landlords: but, in order to encourage them to manure and cultivate the ground, they had a permanent interest granted them, not determinable at the will of the lord. And yet their possession

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(1) If it should appear clearly in a statute that calendar months were intended, the word "month" would be so understood. Lacon v. Hooper, 2 T.R.224. On this principle partly, and partly because in a matter relating to the church the canonical computation ought to be adopted, the six months, which make a presentation lapse, are held to be calendar months. (See post, 276, & 6 Rep. 61.) The adoption of the law merchant makes another exception in the case of bills of exchange and promissory

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