Mariage encombre

Darell Carey from Petitions and trials, Priaulx Library Collection

A wife had a year and a day after the death of her husband to claim the Writ de Mariage Encombré, which enabled her to allege that her husband had sold or alienated all or part of her personal property, without her consent.

This is an extract from a legal case printed in the 1730s, a copy of which is in Petitions and trials, in the Library collection: Darell Carey¹ (cousin to the late Martha Carey) by his Attorneys, Appellant, and Nicholas Carey Esq., Husband of the late Martha Carey, Respondent: The respondent's case. Darell Carey was a minor when the quarrel between him and his cousin-in-law began. His cousin Martha, daughter of Nathaniel Carey, married Nicolas Carey in 1708. They had no children, so she decided in May 1715 to sell part of her estate in Guernsey in order to reinvest the money gained from the sale in funds in England (she went on to lose half of it in the South Sea Bubble). While they were in London she and her husband sold small parts of her estate to four different purchasers, and in each Deed she swore that the estate was hers to do as she liked with, and that she would never claim mariage encombré, that is, that she had been forced to sell. So keen were Martha and Nicolas to avoid all accusations of coercion, that Martha went before the Lord Chief Justice to swear the same again. But the guardians of Darell Carey and his Coheirs, who were heirs presumptive to Martha's patrimonial estate, objected when Martha tried to register the sale in Guernsey, claiming that the sale was illegal, because she had not had permission to sell from the Royal Court, and that her conversion of property into money had deprived them of part of their inheritance, requiring Nicolas Carey to make up the difference from his own estate. In 1719, after a good deal of wrangling Darell Carey, who had come of age, appeared to accept he had lost the case. After Martha died in 1725, and Nicolas had retired to Bath through ill-health, Darell Carey renewed the suit; but his coheirs had lost their appetite for fighting, and he had to take them to Court to force them to join in his new suit against Nicolas Carey; Martha's aunt, Esther Carey, then waded in and claimed all Martha's 'gold, silver, and mobiliary effects whatever.' The case got incredibly complicated and very unpleasant, but in the end Nicolas Carey won out. However, Darell Carey, backed by his co-heir Peter Carey, Martha Carey's brother, took the case to the Privy Council. The document we have in the Library is a detailed presentation of the argument of Nicolas Carey's case, printed before the actual judgment.

Below is a list of Guernsey precedents quoted by Nicolas Carey's lawyers to back up his case.

'Thirdly, AS to the new informed Custom and Commentators. New Reform'd Custom of Normandy, Article 537. Does (we admit) introduce a new Right, and expressly says, that the Writ de Mariage Encombré may be taken by the Wives, or their Heirs. BUT as this new reformed Custom was made up by the French King, since Queen Elizabeth gave a Body of Laws to Guernsey; AND as it had never been received there, as appears by uncontestable Precedents for near two hundred Years past; it is humbly insisted, that it cannot take place in Guernsey. [Commentators' opinions follow.]

Fourthly, WHAT has ever been the constant and uninterrupted Usage of the Island of Guernsey, in relation to Sales made by Husband and Wife, both in and out of the Island, of the Wife's Guernsey Estate? THE Answer to this Question shall be extracted from authentick Precedents under Seal so high back, as long before Queen Elizabeth gave a Body of Laws to Guernsey, and long before the new reformed Custom of Normandy was compiled or collected, and from that Time down, constantly, to the Time of the Sales in Question, and lower than those Sales.

1566: A Sale whereby Peter Brouart [Brouard], in right of his Wife, conveyed five Bushels and four Denerals of Wheat Rent to Peter Marchant. This Sale was past before the Court in Guernsey, and is extracted under Seal from the Records there, and is No 45.

1568: A Sale from Francis de Vauriouft [Variouf], in right of his Wife, of three Bushels of Wheat Rent to John La Cour. Alike in all circumstances to the foregoing, and is No. 46.

1568: A Sale from Nicolas Harris and his Wife of a Moiety of her House in Guernsey, to Peter Beauvoir. We have the original Sale which was made at Southampton before the Mayor, and is No 56.

1569: A Sale made by the Attorneys of Nicolas Henry, in right of his Wife, of all the Wife's right to the Moiety of a House in Guernsey. This Sale was past before the Court in Guernsey, and is extracted under Seal from the Records there, and is No 47.

1571: A Sale from the Attorney of Thomas Threkeld and his Wife of 11s Yearly Rent of her Estate unto John Le Cornu. Past before the Court in Guernsey, extracted under Seal from thence, and is No 48.

1572: A Sale from the Attorney of John Allgood, in right of his Wife, of all the Wife's Estates descended from her Mother unto Nicolas Pettevin. Past before the Court in Guernsey, extracted under Seal, and No 49.

1574: A Sale from the Attorney of Walter Cosby and his Wife, of all the Wife's heredital Right, which came from John Bevery unto Nicolas Gaingpain. Past before the Court in Guernsey, extracted under Seal, and No 50.

1575: A Sale from the Attorney of William Branshot and John Andrew, in right of his Wife, of all the Wife's heredital Right unto Peter Beauvoir. Past before the Court in Guernsey, extracted under Seal, and No 52. And this is said in the Deed to be according to an Instrument signed by the parties themselves in the Town of Poole.

1575: ANOTHER Extract from the Records, and under the Seal of Guernsey, of a Sale past before the Court there, whereby the said Peter Beauvoir bought from the Attorney of Robert Mondry and his Wife, Germain Toto and his Wife, and William Laver and his Wife, all the Wives Right of Inheritance to their Mother's Estate in Guernsey, and this said to be according to an Instrument past at the Town of Poole, No 54.

1575: ANOTHER Extract from the Records, and under the Seal of Guernsey, of a Sale past before the Court there, whereby the said Peter Beauvoir purchased from the Attorneys of John Lambert and of Henry Pipett and his Wife, and of William Burt and his Wife, all the said Wives right of inheritance to their Grandmothers' Estate in Guernsey, No 55.

1579: AN original Sale made before a Notary Publick in London, from William Blondell and his Wife, unto Thomas Blondell, of all the Wife's Guernsey Inheritance, which descended from her Father and Mother, and the Wife is examined before the Notary Publick, no 57.

1583: QUEEN Elizabeth gave a Body of Laws to Guernsey as before-mentioned, but all the foregoing Instances which we have, are before that time.

1585: THE French King establish'd the new reformed Custom of Normandy.

1606: AN original Sale under the City Seal of London from Brooke and his Wife to Beauvoir, of the Wife's whole Guernsey Inheritance from her Father and Mother, the Wife being examined before the Lord Mayor, No 58.

1607: A Sale from Peter Careye and his Wife of three Quarters and four Denerels of Wheat Rent of her Estate unto Judith Germain. The Sale past before the Court in Guernsey, and extracted from the Records under Seal there, is No. 78.

1613: A Sale past before the Court in Guernsey, and made by the Attorney of Peter Simon, in right of his Wife, (after they had obtained permission from the Court, and that she had sworn she had not been forced or compelled) unto Nicolas Hue and his Heirs, of four Quarters and three Bushels of Wheat Rent descended from her Father, No. 59. IT appears by an act of Court, that Peter Careye, in right of his Wife, who was Sister and Heir of Mrs Simon the vendor, thought it worth his while to bring an Action after this Sale, but it was an Action of lineal Retreat, and against the Purchaser, to redeem the Estate, (which is the Heir's unquestionable Right) on payment to the Purchaser of the Purchase-Money and Costs, and the Fine for Alienation, and this Action is No 60.

1614: The said Peter Careye and his Wife, released before the Court in Guernsey unto the said Hue the Purchaser, the said Wife's Right to redeem the last-mentioned Purchase, No 61.

1651: WILLIAM BEAUVOIR and his Wife sold ninety Quarters of Wheat Rent of her Inheritance, unto Launcelot Grainger at London. We have no copy of this Sale, because it was not past before the Court, and besides the Estate was afterwards resold, for a full Consideration, to the Heirs at Law of the Wife; but we have the following Acts of Court under Seal, which not only prove that there was such a Sale, but likewise make, of themselves, such a great and remarkable precedent, as the Respondent humbly hopes, is alone sufficient to overthrow the present Appellant's demands.

1651-1661: Details of lengthy and expensive case brought by Thomas Le Marchant against Lancelot Grainger,an Englishman, [lineal Retreat.] [William Le Marchant. son of Josias, in right of his Wife, Daughter of John Fautrart; William de Beauvoir and Elizabeth Fautrart, his Wife.]

1656: Charles Andros and Wife. No 114. 1660: Peter Simon and Wife. No 115. 1663: James Russe and Wife, to Daniel Beauvoir. No 67. 1667: Richard Guille, Anne his Wife, to John Fougin. No 79. 1668: Thomas Le Page, Esther his Wife, to Nicolas Carey. No 80. 1670: John Mandonel and Wife. No. 116. 1670: Thomas Navetel and his Wife. No 117. 1698: Peter Quetteville and Ann his Wife, to Nathaniel Carey. No 118. 1701: As previous; and Peter Carey, wife's lineal relation. No 119. 1702: As previous, 81. 1705: London then Guernsey: and John Le Gros and his Wife to John Mauger. No 68. 1705: Samuel Le Febvre and his Wife. No 82. 1708: Samuel Le Febvre and his Wife to Thomas Gosselin. No 69.1711 (in Jersey): William Wright and his Wife, to John Le Messurier. No 71. 1712 (in Jersey): Edward Mauger and Mary his Wife. No 70. 1715: Charles Molet from Thomas Massey and Rachel his Wife (3000 livres of mortgage). No 73. 1717 (in Jersey): Mary Le Perre authorised by her Husband to Mary Herrivell. No 74. [See Matthew Herivel wastes his time.] 1720: John Falla and Wife to Michael Falla. No 75.

Remède de Justice, no date: on behalf of Elizabeth Perrin, widow (although a minor) of Pierre Le Marchant for her to receive her inheritance 'a very notable example of a case of mariage encombré'. From transcriptions in Le Marchant deeds &c, E. Carey, p. 108, Vol. XXII, Staff, in the Library. Elizabeth Perrin married Pierre Le Marchant in 1657, and had five children by the time he died, despite her youth.

For an actual example of an affidavit made to prevent the possibility of a future claim of mariage encombré by a widow, see that of Elizabeth Guille Lovic, wife of Andre Lovic, dated 8 October 1721, of a sale she made in August to Nicholas Reserson; the affidavit made in London and witnessed by Thomas Gosselin and Elie Perchard; document in the Guille family file in the Library.

Pierre Brouard, François de Variouf, Jean La Cour, Nicholas Harris, Pierre de Beauvoir, Thomas Threkeld, Jean Le Cornu, John Allgood, Nicolas Le Poidevin, Walter Cosby, John Bevery, Nicolas Gagnepain, William Branshot, Jean Andros, Robert Mondry, Germain Toto, William Laver, John Lambert, Henry Pipet, William Burt, William Blondel, Thomas Blondel, Brooke, Pierre Carey, Judith Germain, Pierre Simon, Nicolas Hue, Guillaume de Beauvoir, Elizabeth Fautrart, Lancelot Grainger, William Le Marchant, Josué Le Marchant, Jean Fautrart, Jacques Rousse, Thomas Naftel, Jean Maindonald, Pierre de Quetteville, Charles Mollet, Marie Le Perre, Marie Herivel.

¹ For Darell Carey (1697-1746), merchant and small-scale armateur, see Raban, Canon P, 'Clandestine trade in the mid-eighteenth century,' in Rep. & Trans. Soc. Guernesiaise, 1987, p. 304.