Definition
A writ of medieval English law available to a tenant in frank-marriage who had been wrongfully deprived of — or "deforced" from — the lands or tenements held under that tenure. The writ's function was remedial: it allowed the dispossessed tenant to recover the specific property to which they were entitled by virtue of the frank-marriage grant. The phrase translates roughly from Latin as "maritagium lost by default," signaling that the action arose where the tenant had been put out of possession, typically through the default or wrongful act of the grantor or a third party claiming through them.
Common Confusion
The writ is sometimes loosely grouped with other possessory writs of the medieval period, but it is specifically tied to the tenure of frank-marriage (liberum maritagium), a form of conditional fee by which land was given to a man and woman upon their marriage and to the heirs of their bodies. Researchers should not conflate this writ with the broader writs of entry or novel disseisin, which operated across tenures generally. The maritagio amisso per defaltam writ was tenure-specific and presupposed the existence of a valid frank-marriage grant as its foundation.
Why It Matters in Research
This term is an extreme rarity in surviving legal literature and presents several research challenges:
First, the name itself appears in variant forms across historical sources. The truncation "per de" in some indexes or abridgments is shorthand for "per defaltam" — researchers encountering the abbreviated form in manuscript or early printed sources should be alert to this compression. Searching only for the full phrase will miss references keyed to the abbreviation.
Second, the writ belongs to the largely extinct body of real actions — the formal land-recovery proceedings abolished in England by the Real Property Limitation Act 1833 and the Common Law Procedure Acts. Any primary source materials referencing this writ will predate or be contemporary with that abolition. Researchers working in records from the thirteenth through seventeenth centuries are most likely to encounter it; later references will almost always be antiquarian.
Third, frank-marriage as a tenure had already become obsolete in practice well before the statutory abolition of most remaining real actions. The writ therefore appears primarily in the Year Books, Bracton, Fitzherbert's Natura Brevium, and similar pre-modern authorities. It is unlikely to appear in American materials at all, as frank-marriage tenure was not transplanted meaningfully into colonial or post-colonial American land law.
Fourth, the connection between this writ and dower, curtesy, and other marriage-related property rights means that researchers tracing the legal history of marital property will occasionally encounter the writ in comparative discussions, even when their primary focus is not on real actions as such.
Historical Dictionary Support
Rapalje & Lawrence describe the writ as "obsolete" and define it concisely as available to "the tenant in frank-marriage to recover lands, &c., of which he was deforced." This entry, brief as it is, captures the essential function accurately. The characterization of the writ as obsolete was already established by the time Rapalje & Lawrence compiled their dictionary in the latter nineteenth century, and no later standard legal dictionary appears to have given the term substantial independent treatment.
Historical sources that predate modern legal dictionaries — particularly Fitzherbert's Natura Brevium and Coke's commentary tradition — treat the writ as part of the broader family of real actions tied to conditional fees and frank-marriage grants. Bracton's De Legibus et Consuetudinibus Angliae addresses frank-marriage tenure at length and provides the doctrinal substrate from which the writ derives, though Bracton does not isolate this specific writ under the abbreviated name that later compilers used.
What historical dictionaries largely miss is any systematic treatment of how the writ interacted with the reversion of frank-marriage land in the fourth degree of inheritance — the point at which frank-marriage became a fee simple and the conditional character of the tenure dissolved. Whether the writ remained available after that conversion is a question the brief dictionary entries do not address.
Jurisdictional Note
This writ is entirely a product of English common law and has no recognized American counterpart. Researchers working in any American jurisdiction will encounter the term only in historical, comparative, or treatise contexts, not in operative legal sources.