Parker v. 4 Bro. Parl. to the Court, which might send it to be tried at law, upon a quantum damnificať. 18. Where lands settled for a jointure are covenanted to be of a certain clear yearly value, and after the death of the husband they prove deficient, the jointress is entitled to have the deficiency made good, out of the other lands; and to come in as a specialty 4 Bro. Parl. creditor, upon the husband's estate, for the arrears of the deficiency, with interest. Eustace v. Ca. 588. Glegg v. Ca. 614. 19. Where, in marriage articles, the lands agreed to be limited in jointure are expressed, but not covenanted, to be of a certain yearly value, and afterwards prove deficient; this amounts to an agreement that they were of that value; and is a sufficient foundation for making up the deficiency.. TITLE VII. JOINTURE. CHAP. III. What will operate as a Bar or Satisfaction of a Jointure. 1. Fine or Recovery by the Wife. 7. A Devise is no Bar to a Jointure. 3. Not barred by Attainder of 13. Unless so expressed, and then the Husband. 4. Nor by Elopement of the Wife. the Widow has an Election. 15. A Devise sometimes held a Satisfaction. SECTION 1. I' Fa wife joins with her husband in levying a fine, or suffering a common recovery, of the lands settled on her as a jointure, or out of which the jointure is issuing; she will be thereby barred of her jointure: upon the same principle that a fine or recovery, in which she joins with her husband, will bar her from claiming dower. But where a jointure is settled on a woman before marriage, pursuant to the statute, it so far resembles dower, that it cannot be defeated by the alienation of the husband alone, or be charged with any incumbrances created by him after the marriage. 2. If the jointure whereof the wife levies a fine, 1 Inst. 37 a. or suffers a recovery, be made before marriage, the Dyer, 358 b. wife will then be barred, not only of the jointure, but also of her claim to dower. If the jointure be made after marriage, a fine or recovery by the husband and wife, of such jointure, will not bar the wife of her right to dower. For, in the first case, the jointure Not barred of the Hus being made before marriage, was not waivable; whereas in the second case her estate was originally waivable, and the time of her election came not till after the death of her husband; so that she may claim her dower in the residue of his lands. 3. A jointure is in several cases more favoured in by Attainder law than dower. For although the husband commit treason or felony, yet his widow will be entitled to her jointure. But if the wife be attainted of either of these crimes she will lose her jointure. band. Nor by of the Wife. 4. A jointure is not barred or forfeited by the Elopement elopement of the wife from her husband, and her living in adultery; nor will these acts even preclude her from obtaining relief in equity. Sidney v. 3 P. Wms. Tit. 6. c. 5. $7. 5. A woman brought a bill against her husband, for a specific performance of her marriage articles, whereby he had agreed that a jointure should be settled on her. The defendant answered, that the plaintiff had withdrawn herself from him, lived separately, and very much misbehaved herself. It was proved that the plaintiff did elope from her husband, and went with another man to a cottage about three miles from her husband's house; since which there had been no pretence of a reconciliation. So that this was a bar of dower at common law; therefore equity ought not to assist such a woman. Lord Talbot observed, that the fact of adultery was not put in issue, the accusation being only general, and uncertain. But the articles being that the husband should settle such and such lands in certainty upon his wife, for her jointure, this was pretty much in the nature of an actual and vested jointure; as what was covenanted for a good consideration to be done, was in most respects considered in equity as actually done; consequently this was a jointure, and not forfeitable, either for adultery or elopement. The reason why a wife forfeited her dower by an elopement with an adulterer; and yet the husband did not, by leaving his wife, and living with another woman, forfeit his estate by the curtesy; was, because the statute of Westminster 2. does by express words create a forfeiture in the one case, and not in the other. Decreed that the husband should perform the articles. 3 P. Wms. 6. In a modern case, where a bill was filed by trus- Blount v. tees, praying a performance of marriage articles, the Winter, cited husband resisted, so far as the articles made a provision 277. for the wife; alleging and proving that she lived separate from him, in adultery. Lord Thurlow was of opinion that this was not a reason for nonperformance of the articles, as to the wife. Decreed accordingly. a Jointure. 7. The principles laid down in the preceding title, A Devise is as to the effect of devises in barring dower, have been no Bar to adopted with respect to jointures. So that a general devise of other lands, or of personal property, by a husband to his wife, will not operate as a bar to a jointure, settled on the wife, either before or after marriage. 8. Upon the proposal of a marriage between Sir Hele Hook, who was then only seventeen years of age, and Esther the daughter of Edward Underhill, Esq., certain articles were entered into by Mr. Underhill, and Mr. Thompson, who was Sir Hele's guardian, and one of his father's executors, whereby Underhill covenanted to pay 1000 7. on the day of marriage, and if Sir Hele should, within six months after he attained his age of 21, settle lands of inheritance of 500 1. per annum in Warwickshire, to the use of himself for life, remainder to the said Esther his intended Grove v. Parl. Ca. 593. Hook, 4 Bro. wife for her life, in lieu of dower, remainder to their first and other sons in tail male, remainder to the right heirs of Sir Hele, that then Underhill would pay Sir Hele the further sum of 3000 l., and would also convey a farm in Worcestershire, and several houses in London, of the yearly value of 220 l., to certain uses therein mentioned. The marriage was soon afterwards had; and when Sir Hele came of age, he, by indentures of lease and release dated in 1687, conveyed all the said manors and lands in Norfolk, Warwick, and Gloucester, to trustees, to the following uses; viz. As to Shelford and other particular parts of the premises, to the use of himself for life, remainder to dame Esther for life, for her jointure, and in bar of dower; remainder to their first and other sons in tail male; remainder to Sir Hele in fee. Mr. Underhill at the same time executed a conveyance of the Worcestershire estate and houses in London to the uses of the articles; and also paid Sir Hele the S000 7. in performance of the covenant. The yearly value of the lands so settled on dame Esther for her jointure was 783 l., which was considerably more than what was stipulated for by the articles. Some years after, Sir Hele, looking over his father's settlements and will, discovered that the demesnes of Shelford, part of his lady's jointure, were settled upon his mother, who was then living. He was also advised that in case of his death without issue, the whole of his lady's jointure might become void; and therefore he, by a deed poll dated 1705, in pursuance of a power reserved to him in a settlement made by his father, appointed certain lands of about 240 l. per annum, to the use of dame Esther for life, as an additional jointure; but expressly declared the same to be in recompence of all deficiencies either in |