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time to time, for the benefit of the appellants the Countess of Buckinghamshire and Jocosa Catherina Drury; and all parties were to be paid their costs of the suit to that time, to be taxed by the Master, out of the intestate's estate; and his Lordship reserved the consideration of subsequent costs, until after the Master should have made his report.

Soon after pronouncing this decree, viz. on the 14th of July 1761, the appellants the Earl and Countess of Buckinghamshire intermarried; and the cause having been duly revived on that occasion, the present appeal was brought to reverse the decree.

On behalf of the appellants it was argued (C. Yorke, G. Perrot), that the right of dower which a wife acquires by marriage in the lands of her husband, does not arise from contract, but is given by the law, and is exactly the same whether she be of full age or not. It is a freehold estate for her own life, in one third of all the lands in which her husband was at any time seised of an estate of inheritance, during the marriage. This provision for the wife, being a freehold interest, no provision can bar it, by way of collateral satisfaction; for by the rules of the common law, a release or confirmation, or an act enuring to those purposes, can alone bar a right of freehold. But a release she could not give before marriage, because she had then no title to dower; and a fine she could not be compelled to levy after marriage, because that conveyance must be her voluntary act The consequence was, that she must at all events be entitled to one third of her husband's estate, be it ever so large, and her own fortune ever so small. Such an inequality was one of the reasons which induced men to infeoff others in their lands to uses, and the common law taking no notice of the use, it frequently happened that wives had no provision at all. Hence arose the practice of making jointures, by the husband procuring the feoffees to convey part [497] of the lands to husband and wife, in such manner as to give the wife an estate for life at least; but after the jointure made, if the husband became seised of an estate of inheritance in other lands, the wife became entitled to dower out of such new-acquired lands, and to her jointure also; so that no contract could stipulate one fixed provision for the wife. But by the statute of uses, 27 Hen. VIII. which transferred the legal estate to the owners of the use, a rule better adapted to the convenience of families was established. It was necessary to insert clauses in that law, to prevent wives who had jointures already made upon them, from taking any further provision by way of dower out of those lands, in consequence of the legal estate or possession executed to the use in their husbands, by force of the statute; and the same rule which was established for that age, was made perpetual; namely, that no woman having a jointure settled upon her before marriage, should claim or have title of dower. So that in all cases where jointures are made, the subsequent marriage, which at common law gave a title of dower, after this act gave no such title; and the jointure is made a statutable provision for her, in lieu of the provision at the common law. It does not therefore depend upon the consent of the wife, that the jointure takes away her right of dower; but having the jointure, she never gains any title to dower. That this act gives no colour for the constructive exception of infants, insisted on by the respondent. The words are general; every woman married having jointure made, shall not claim nor have title to any dower. This includes infants as well as adults; and if the parliament had meant to distinguish between the two cases, it would have been necessary to except infants in express terms, and not have left it to construction only. For at the time of making this law, there must have been numerous instances of jointured infants; and the single case in which it was probable that the wife might be injured by the influence and power of her husband, to bar her of dower by a jointure, was that of a jointure after marriage, which case is expressly provided for by the act, that the wife, after the death of the husband, may elect between the two rights. But if infants were not bound by their jointures, no special provision being inserted in the statute to compel them to an election, where the husband was seised of the legal estate in his land, they would take not only their dower, but their jointure also, which is contrary to the whole spirit of the act. It was never meant, that any woman should have jointure and dower both; if infants had been excepted, that exception would have been to their disadvantage, by preventing their marriages. At that time most ladies of fortune, especially landed fortunes, were married before they were of age, by reason of the advantages which accrued from their marriage, to the lords under whom the tenure was derived; and in fact, women are most frequently married under age; but if they could