case nevell against sydenham a immaterial allegation need not he traverse  queen if during the existence of the feudal tenor marriage helonged to the  lord de mero jure without any tender ante   light   b   b cro James dougl  TIalore maritagii against John Sydenham and mary his wife daughter and heir  croak Elizabeth er p of Buckland and declare that the say Buckland hold of the  queen by knight service in capite and die mary his daughter and heir hein  within year of age and that a office be find and the queen seize the ware and  grant it to Edward nevell his father who die possess and make he his executor  whereby he be possess and tender a convenable marriage to the say mary when  she be within age videlicet one Hadger and that she refuse wherefore c the  defendant traverse the tender and it be thereupon demurrer after argument by  the sergeant the justice deliver their opinion several Owen and Beaumond hold  that the plaintiff shall recover because the marriage appertain to the lord de  mero jure without any tender and that there need not any tender to he allege  and when it be allege it be not material for it shall never he traversable and  that there need not any tender they rely upon the statute of Merton that the  marriage helongs to the lord de mero jure whether she will marry herself or  not so as the lord have election to have the marriage or the value of the  marriage and it be quasi a service due to the lord by reason of his tenure  which be due of itself without any other act to he do by the lord as well as  his relief or other duty the difference have always be betwixt the double  value demand and the single value in the first there ought to be a tender of  necessity because he be to have the penalty upon the heir refusal but in the  other not it will also he mischievous to lord if they shall not have it  without tender for it may be the heir may he essoigned br heyond sea at the  death of his ancestor and always after until full age or a close prisoner by  the queen command so as the lord by no possibility can make a tender wherefore  be a duty due unto he it be reason he shall have it without a tender and  therefore the traverse be not good and the plaintiff ought to recover Walmsley  and Anderson very strong to the contrary that there ought of necessity to be a  tender and that it be well traversable for although the lord be to have the  man riage of the heir meroJure as the statute be it be true but there he ought  to do a act to have it videlicet to make tender of marriage for without tender  the heir can make a refusal and it be not reason the heir shall pay for the  value of his marriage where peradventure he will Willing have accept thereof  if it have be offer he Andhere ought two thing to he do to have the marriage  the croak Elizabeth one the lord tender the other the heir acceptance or  refusal and without the first act do by the lord nothing accrue unto he and  the payment of the value of the marriage and that the land shall he retain  until he pay the value of the marriage be a penalty inflict upon he as in case  of the double value and therefore it be as good reason that there shall he a  tender in the one as in the other case and the register and naturan narrow  places and the book of entry be all in point that tender ought to be allege  and therefore there be not any reason to say it shall he vain and idle allege  and the statute of Merton cap which be si hceres pro lord his not see martiare  have be always expound that if upon request he will not marry c so always  there ought to be the lord request and for the mischief they be rather to he  suffer than that the law shall he change and there will on the other side he  as great mischief to the heir for if he shall pay for her marriage without  tender she may peradventure he one of such deformity that none will marry with  her and then what reason be there that he shall pay for her marriage and  Walmsley say in case of a female it be more clear for the word of the statute  of Westminster cap which give the lord two year after she have accomplish her  age of year to tender her marriage the statute there be express that the lord  shall tender her marriage within the time then against a express statute it be  no reason he shall have it without tender wherefore c et adjournatur see the  book cite dyer Henry Edward Temps Henry forfeitur de marriage Edward ass Henry  guard Henry guard Edward Henry a a the tenure by knight service be now whole  take away by car and convert into free and common socage croak Elizabeth er p