this Warrantor be vnder age yet the Law fauoureth widdowes so much that the plaint shal not attend his full age Therefore if the Tenant shew forth any Charter Déed or speciall cause whereby the Court may perceiue that the Infant is bound to Warrantie by the Ancestors act he shall answer presently what age soeuer he be of And though the Infant in ward be aliened by his Gardian or Gardians from hand to hand this shall not preiudice the Voucher for alwayes he shall vouch to warrantie the Heire and not the Gardian who is bound to present his ward so vouched in Court without difference whether it be one or many parceners Thus saith Britton and 48. Ed. 3. fol. 5. agreeth that he which voucheth an heire vnder age must vouch him in ward de vntiel If he be a ward it is said there also that hee which voucheth an heire at full age must shew a Déed quaere But when the lands are in the Gardians owne possession to his owne profit and vse the writ of Dower must â—ée brought against the Gardian and not against the Infant 46. Ed. 3. fol. 19. Where Mowbray saith where an Infant is vouched in ward of the King the woman shall recouer Dower maintenant 3. H. 6. fol. 17. It was agréed per curiam that in Action of Dower if the tenant vouch the heire in the Kings ward within the same Countie where the writ is brought the Demandant shall not recouer before the warrantie be determined but the Law is contra if the Voucher had prayed summons in another Countie for then the Demandant should recouer maintenant yet by the Register fol. 7. if in a writ of Dower the tenant vouch in Durham the Demandant shall abide triall of the warrantie and not recouer presently But by Fitzherbert for a rule in titulo Voucher if the tenant vouch in a forraine Countie shee shall recouer maintenant and neuer attend triall of the warrantie but when Voucher is in mesme lâ— countie If the heire vouched to warrantie aftâ—r â—hee hath appeared and countâ—â— pleaded the warrantie or before appearance being lawfully summoned do 〈…〉 ke default the Defendant shall haue execution against him maintenant if hee haue lanâ—s within the Countie Brooke Dower 5. And also Dower the 6â— when the heire is vouched in the same Countie the woman shall recouer against the heire Dyer 3. Eliz. â—â—â— In Dower the tenant vouch the heire in the same Countie who co 〈…〉 as one that hath nothing by descent in â—ée and renders Dower the tenant auers that he hath assâ—â—â— by descent qu 〈…〉 if he should not say in fée for by Weston and Browne if the lands be in taile it doth not 〈…〉 the tenants lanâ—s And the opinion of the Court was that the Demandant shall haue Iudgement presently aga 〈…〉 the heire if he hath lands c. and if not against the tenant and that before the issue of the assâ—â—s tried 1 Ed. â— fol. 24 In a writ of Dower against Tenant for life if he vouch his Lessor which is heire to the husband the woman shall recouer against the Tenant and he ouer against the Vouchee But when the heire iâ— vouched by Charter of his Ancestor the Demandant shall 〈…〉 couer against the Vouchee and the Tenant shall hold 〈…〉 peace Yet in a Writ of Dower against Lessée for 〈…〉 e of the Barons demise if the heire bee vouched to Warrantie though here the reuersion which is the cause of the Warrantie were made by the Baron the Demand 〈…〉 shall recouer against the Tenant and he against the heire If the tenant vouch in a writ of Dower and the Vouch 〈…〉 counter plead the Warrantie the woman shall recouer maintenant though in other actions it bée otherwise 46. Ed. 3. fol. 25. and 49. Ed. 3. fol. 23. In a Writ of Dower the Tenant vouched himselfe to sâ—â—e the 〈…〉 taile 2. H. 4. fol. 18. in Dower the Tenant vouched the heire Processe went on to sequatur sub suo periculo sicut alias the Vouchée came not it was awarded the Demandant should recouer against the Vouchée if hee had lands in the same Countie If not that shee shall recouer against the Tenant and hee ouer in value But first it was examined if the Vouchee were heire to the Baron 21. Ed. 3. fol. 30. In Dower the tenant voucheth the Barons heire in ward of the demandant per cause de nurture shewing the Ancestors Déed he was compelled to plead in barre because now the woman might be endowed De la plus beale for Gardeine pur nurture hath alwayes intendment to Soccage tenure Vide Brooke Dower 42. 5. Ed. 3. The fathers wife was endowed the Grandmother brought a writ of Dower against her â—he vouched the heire in reuerston the Demandant recouered against the tenant and shee against the heire a third part of two parts remaining but not in value Sée Brooke Dower 79. If the Grandmother die the mother may enter into the first dower and the heire into the second SECT IX Plees in a writ of Dower ADmitting there were no Voucher let vs run ouer other matters vsually pleaded 14. H. 4. 33. in Dower was demanded a third part of two mils of other lands yâ— tenant asked Iudgement of the plaintiffe for they were during the whole time of couerture but the â—â—te of two mills viz. toâ—ts 38. Ed. 3. fol. 13. In a writ of dower against one as Gardian of land and heire of K. de R. the defendant answered that the Infants father was â— de R. Iudgement del briefe and if the writ were good hee was ready to render dower You cannot said Knyuet plead to the writ render dower both at one day so the demandant praying Iudgement seisen was awarded her And because she auerred that the defendant was not touts temps prist to render dower an Inquest of dammages was awarded and that execution should cease till the Inquest were past 13. Ed. 4. fol. 7. In action of dower the tenant pleaded touts temps prist de render Dower vncore est The demandant said that I. S. her husband died seised and that such a day and yeere she required the tenant to indow her at Dale which refused c. he replyed that at the same day he offered to goe with her to the lands and to assigne her dower but she refused sans ceo that he refused The Court held the Issue well taken by this speciall pleading But if hee had said generally and barely hee refused not some thought it had not beene sufficient insomuch as it denies not the request Bryan said the demandant here might not haue seuerall Iudgements of one thing for note shee was to recouer dower vpon the first plea but all the other Iustices were of opinion cleere that shee should haue Iudgement of Dower maintenant and 18. Ed. 3. In action of Dower Iudgement was to recouer dower with an inquest for dammages As in a Quare
by the better opinion 3. Ed. 4. â— 9. 10. such a partition is good enough if it be vpon the ground but see the bookes of 2. Eliz. Dyer 179. 18. Eliz. Dyer 350. There is also a prety case of a mill parted betwéen two brethren ioynt-tenants by an award of a third that one should repaire the mill on the one side of a certaine poste and the other on the other side imperpetuum c. which was awarded a good partition without any writing 47. Ed. 3. 24. â—9 Assi p. 1. It hath béene also much doubted whether iudgement may be giuen to hold in seuerall when in assise of nouell disseisin brought by one ioynt-tenant or tenant in common against another it is found for the plaintiffe as it is cleare it may be if the action were betwixt partners 7. assi p. 10. Herle would not haue giuen iudgement to hold in seueraltie had the parties beéne ioynt-tenants But 10. Assi p. 17. such a iudgement is giuen and no bones made of it yet 28. assi p. 35. R. Thorp in like case would giue no iudgement but generally to hold a moity per my per tont though he were besought in the Country at the assises at West again and again for Iudgement to hold seuerally 7. H. 6. fo 4. Weston glanceth on such a iudgement and Strange denyeth that it may be for it destroyeth the suruiuor But Chine saith that it may be and hath béen often the reason why the Law was more scrupulous in those points betwéene tenants in Common and ioynt-tenants then betwéen partners was as I guesse because coheyres haue their estate by course of law and the other are in either by the act of some body which made the estate or by their own doing so that though for necessity they may alien that which belongeth to them or charge it yet otherwise the Contract made by consent may not without manifest assent be vndone Bract. saith fo 206. sufficit femel voluisse nec dissoluitur mutua voluntas nisi mutua voluntare contraria It is perceiued how the law was before the Statutes 31. 32. H. 8. a summarie of which is set downe already now that it may the better in part be vnderstood how the law hath béene taken since those Statutes obserue the causes following out of my Lord Dyers Reports The puisne of thrée Coparceners of a reuersion vpon estate for life gauel-kind alieneth by a fine the lessée dieth the eldest parcener entreth into all his Inheritance the middlemost and the Alienée bring a ioynt Writt of partition vpon the Statute the eldest pleadeth the generall issue non tenent insimul pro indiviso the case appearing by the euidence it was holden vpon a demurrer cleere that the action was not maintainable for the one ought to haue her Writt by the Common Law and the other by the statute but ioyne they could not Quaere saith Dier if the entry of the eldest giue seisin to the rest that it should giue it to the stranger were hard 2. 3. Phi. Ma. fol. 12. 8. One of three Coparceners alieneth that which to her belongeth one of the other two bringeth a Writt of partition against her fellow parcener and the alienée vpon the statute because in this case she might haue had a Writ by the Common Law this Writ vpon the statute abated But if the two Coparceners had ioyned against the alienée and the one had beene at non-suite she should haue been summoned and seuered and her part beene diuided as well as the others quaere by the Register when the husband vnto one of thrée partners purchaseth one part c. he and his wife may haue a speciall Writt against the third euen so it séemeth if one of thrée Coparceners purchase a fellowes part the purchaser may haue a speciall writt against the third parcener 7. ct 8. Eliz. 243. in Dyer by Anthony Browne and Dyer ioint-tenants cannot at this day make partition by paroll out of the countie where the land lieth for 31. and 32. c. change not the law in this point But the partition must bee by Writt out of Chancery Humfrey Browne and Weston 2. Eliza. Dier 179. a man deuised socage lands to his two daughters and to the heyres of their two bodies loyally engendred and died the two daughters tooke husbands and at full age c. partition was made by paroll one husband had issue by his Wife and shée dyed By the opinion of the whole Court the other Husband and his wife shall haue the whole Land by suruiuor for partition by word onely betwixt ioint-tenants or tenants in Common of estate of Inheritance is voyd yet of a tearme peraduenture saith Dier such a partition is good enough fo 350. in Dier If ye doubt now of any thing somthing more then you did before yée are the better learned and warned to worke surely The manner of partition by Writ c. THe Iudgment vpon a writ de partit faciend if that diuision be made betwéene the parties and that the Viscount in proper person going to the lands and tenements by the oath of 12. loyall men of his Countie make the partition deliuering one part to the plaintiffe or to one of the plaintiffes and another part to another parcener c. making no mention in the iudgement more of the eldest then the youngest Sister The Sheriffe must giue notice to the Iustices of the partition which he hath made aswell vnder the seale of the 12. men as vnder his owne seale And in this partition there is no primer election giuen to any but the second may haue liuery before the eldest or the younger before either of them euen as it pleaseth the Sheriffe And this difference is betweene partition by Writ here and the other partition which is by agreement In the first the Viscount shall make to euery partner her distinct share but in the other they may agrée that one shall hold in seueraltie and the rest shall occupie that which remaineth in common Thus farre Littleton Bractons partition THere is in Bracton a large discourse of partition which I sée not why for the forme at this day should not be good if not of all other the best And this partition is by commission to men either chosen by the parties or appointed by the King as Iustices or extenders with commandement to the Sheriffe to make them come before those Commissioners or extenders tam milites quam alios legales homines nulla affinitate attingentes per quos negotium melius expedire poterit He hath also a precept to the Coroners where the Sheriffe is negligent Tepidus remissus in executione preceptorum domini Regis with a rule for valuation of an aduowsan viz. that a marke annuall to the parson shall be rated a shilling to the parcener to whom the aduowsan shall be alotted And when the extent and diuision is made euery part being written by
an issue of ne vnques accople in loyall Matrimonie and that must be tried by the Bishop Therefore for the better direction of Brides take the case verbatim as it is propounded with the solution 22. Eliz. Dyer 369. A woman of full age contracts Matrimonie by words of the present instant with a young man of twelue yeares age and this being solemnized in face of the Church with consummation after a sort the young man being put to bed to her died vnder age quaere if the Ordinarie ought to certifie an accomplement in loyall Matrimonie Solutio doctorum quindecem We be all of opinion that she is to be taken for a loyall wife coupled in loyall Matrimony and in question of Dower that the Bishop ought so to certifie for albeit that in other regards these were but Sponsalia de futuro yet in case of Dower and the priuiledge thereof they are extended to Matrimony consummate Et iudicium datum pro dote heere ye say was the Law as cleere as Christall on your side when supper is done dance a while leaue out the long measures till you be in bed get you there quickly and pay the Minstrels tomorrow SECT II. Baron and Feme one person NOw that Matrimony is celebrated and consummate here is so strait a fellowship or rather identitie of person that if a feoffement bee made to a man and his wife iointly with I. S. the Baron Feme take but a moity and in a feoffement to Baron and Feme and I. S. and T. K. they take but a third part and where a feoffement is made to a man and his wife ioyntly they take not seuerall moities as other ioynt Feoffees doe but the Baron and feme take intirely together and in Law they are said to be seised by intierties and there is no halfing betwixt them For if the Baron charge the whole land or part of it with a rent the wife shall hold it discharged after his death and if he sell all or part and die the wife shall recouer all by Writt of cui in vita See 40. assi pla 7. If a Villeine and his Wife purchase land ioyntly the Lord enter and the Villeine die the Feme or her Heyre shall haue the whole Land Eadem lex videtur where the Husband ioynt-purchaser is an Alien borne or attaint in premunire or of fellonie But the booke of Assises goeth not so farre The videtur is Parliament 43. in Brooke where likewise ye shall see it was holden 5. H 7. fo 31. that if T. infeoffe W. and A. his wife afterward it is by Parliament enacted that all estates made by T. to W. shall bée voyde that the feoffement shall be voyd as well towards the wife as towards the Husband because they are but one person in Law and the Feme taketh nothing but by agréement of the husband And vpon the like reason is the case Dyer 3. Eliz. fo 196. Sir Rob. Catline purchase land held in capite to him and his wife and his heyres without licence and the Queene pardons all offences pro quacunque alienatione sibi facta and doth not speake of the wife in the pardon and yet it was allowed in the Exchequer But if the feoffement had beene to W. and I. S. this I. S. should haue held his moity notwithstanding the Parliaments decrée and this seemeth to bee the better opinion though there were in manner equall number to maintaine That if the feoffement were before couerture the Parliament should voyd it for a moity but if it were after couerture it should voyde for no part against the Feme when shee was discouerte leauing to Parliaments their omnipotencie it is cléere the husband cannot seuer the Ioynture betwixt him and his wife as an other Ioynt-tenant may if the Ioynture were made during Couerture because there is then no moity Otherwise it is if the Ioynture were made before the Marriage And if lands be giuen to a man and his wife habendum one moity to the husband and habendum the other moity to the wife now they bee seised of moities as Tenants in Commom But for this I finde no other authority then the opinion of Knightly in Dyer 28. H. 8. 10. b. SECT III. Baron feme cannot infeoffe one another MOreouer this Conglutination of persons in Baron and feme forbiddeth all manner of feoffing or giuing by the one vnto the other for a man cannot giue any thing vnto himselfe therefore 27. H. 8. fo 27. In action of debt vpon an obligation to performe couenants where it passed for the Plaintiffe because the Defendant had not paid annually seauen pound to his wife it is alleaged in arest of Iudgement that the Couenant was impossible in it selfe c. But Chomeley Shelley and Fitzherbert moued the husband to agrée with the Plaintiffe Car le exception sert de riens for although in strict intelligence of Law money and Chattels paid deliuered or giuen to the wife by the husband are still his owne yet a man may giue his wife a paire of hose saith the booke as a man is bound by honesty so he may be bound by red waxe and parchment to finde his wife sustenance and to bee bound to giue her money for her securitie is all one from this Lanthorne I thinke he tooke his light which bound a gentleman of mine acquaintance to giue his Wife the Obligée his Daughter yearely such and so many gâ—wnes Hertles c. And the meaning must bee taken and obserued in the booke of 4. H. 7. fo 4. is another memorable Cause A man was bound to I. S. by obligation to make a sure estate to a woman in certaine tenements within three moneths after his fathers death The Obligor marrieth the woman in his fathers life time and the Matrimony continueth till the three moneths be expired the obligation is forfeited Vauisor said the husband might well haue performed the condition by fine leuied vpon a writt of Couenant brought by a stranger against the Baron and feme Fisher said he might haue performed it by making a Lease vnto a stranger the remainder to the wife quaere of that Vauisors performance had beene good I thinke if there had beene in the beginning a full purpose and intent of intermarriage betwixt the woman and the Obligor But that appeares not and therefore being that hee hath brought himselfe to an impossibility of performance either of words or meaning the Obligée must néeds be allowed the aduantage If the obligation had béene to the woman her selfe the condition by inter-marriage had béene dispensed with for where the Obligee is a cause that the condition cannot be performed the not performing is without penalitie to the Obligor as if in the old dayes I had béene bound to an Abbot that A. should infeoffe him c. before Christmas if A. had presently entred into Religion my bond had presently beene forfeited not so If A. had béene professed vnder the obedience
Ienny Defendant entred in Banco Regis Hillar 2. Iacobi Rot 571 where the Plaintiffe declared that the Defendant in consideration that the Plaintiffe had formerly married his Daughter at his speciall request the Defendant promised the Plaintiffe to pay him euery yéere during the life of the Defendant ten pound c. and as my report saith the Plaintiffe vpon non assumpsit pleaded had verdict and iudgement in the Kings Bench but vpon a writ of error in Exchequer Chamber the Iudgement was reuersed for that the Marriage was executed before the promise made and yet the declaration supposed that the Defendant requested the Plaintiffe to Marriage c. But let me not run so farre from my Tert as neuer to finde the way backe againe A man may sue for Marriage money in his owne name onely and so is it generally where that which is in demand or to be recouered commeth méerely and onely to the Baron Example 43. Ed. 3. fo 8. The Earle of Arundell brought a Writt of Trespasse against one for chasing in a free Chace that he held in right of his Wife and the Writt awarded good though the Wife were not named in it because nothing was to be recouered by damages Likewise is it if the Baron bring a Writt of Trespasse for strayes taken in Lands holden in right of his Wife And eod anno fo 26. for breaking of a house and carrying away of timber the Husband alone shall haue the action because hee may when hee list pull downe a house or sell timber standing vpon his Wiues Inheritance or make a release to any body vpon such manner of trespasse and the Wiues action is gone for euer There is also the same yeare fo 16. another Case wherein because a decies tantum was brought by Baron and Feme the Writt abated for though the first action concerned the Wiues Interest yet nothing is to be recoueredin a decies tantum but damages c. Sée the Booke of 20. H. 6. fo 1. a Writt of maintenance wherein nothing is recouerable but damages was brought by Baron and Feme vpon maintenance in a bill of fresh force against them by the better opinion they might ioyne c. And the Defendant passeth Ouster but not by award 41. Ed. 3. f. 9. a Writ of Champertie brought by the Baron onely vpon an assise which had passed against him and his wife was allowed good notwithstanding exceptions taken of the wiues Interest c. vpon the reasons before expressed And by Finch if a man haue a Ward in right of his Wife Dower shall be demanded against him onely because the gard is a Chattell vested But if a Writt of Wardship be to be brought it shall be against the Baron and feme c. because of voucher And in trespasse if the Plaintiffe recouer against Baron and Feme by false verdict they both must wyne in the attaint for that must be according to the record 46. Ed. 3. fo 20. a man brought a Writt of rauishment de gard declaring vpon a possession iure vxoris and the Writ held good yet in this case there is more then damages to be recouered for the Plaintiffe shall haue the Infant restored by the very words of his Writt But there againe it was agréed that an action to recouer a Ward must be against them both because of voucher though in a writt of Dower it be vt supra because therein there is no voucher c. If Baron and Feme sell the Wiues Inheritance by fine for twenty pound an action of debt for the money shall bee brought by the Baron onely for the grant was onely the Barons grant and if he die the Executors shall haue the action and not the Feme 48. Ed. 3. fo 18. And a repleâ—â—n must bee brought by the Baron onely because a Feme Couert cannot haue a propertie in any goods or Chattels But for such goods as the Wife hath as Executrix it séemeth the Baron and Feme may ioyne in ar pleuen so shall they for goods of the Wife taken dum sola fuit Fitz. in the title reception In trespasse at Common Law or vpon the Statute Anno 5. Rich. 2. the Baron alone shall haue action of trespasse and so likewise for taking away Charters concerning the Wiues inheritance So is it if he alone deliuer such Charters he alone may haue action against the Bayliffe c. But a Writt of Detinue of Charters of the Wiues inheritance must be sued by both c. because the Charters themselues are to be recouered And therefore vpon recouery of them the Baron and Feme must ioyne for recouery A quare impedit was brought 50. of Ed. 3. fo 13. and the Baron declared of an agréement betwixt thrée Sisters to present by turne to a Church whereof they had the Aduousan and this was the turne of his Wife c. The Defendant demands Iudgement of the Writt because the Wife being still aliue was not named but this Writt also was awarded good because nothing was to be recouered here but onely the Presentment and not the Aduousan And if a Writt should be awarded to the Bishop against the Baron the Wife thereby should not be out of possession because she is not partie to the Iudgement besides that she is ayded by West 2. cap. 3. And for a generall rule where the Husbands release is good the action may be brought in his name onely as vpon cutting of trées grasse Corne c. And such actions may be brought in the name both of the Husband and the Wife An assise of â—arraigne presentment is a mixt action and the Aduousan it selfe shall be recouered in it therefore of necessity it must be brought both by Baron and Feme 15. Ed. 4. fo 9. The Baron Seignior in right of his wife ioyned in a writt of rescous and it was argued that he alone ought to haue brought the writt But it was awarded well brought by them both Though per Littleton it were good enough in nosme le Baron tantum And per Pigot when an obligation is made to Baron and Feme the Baron alone may haue the action or they may ioyne â—adem lex in trespasse c. maintenance c. for alwayes where the action may suruiue to the wife the wife may ioyne in the writt They which shall read these two last Cases argued 50. Ed. 3. and 15. Ed. 4 in the yeares at large shall not néed to repent it SECT XLII When a Wife may sue or be sued alone IT is seldome almost neuer that a marryed woman can haue any action to vse her writt onely in her owne name her husband is her sterne her primus motor without whom the cannot doe much at home and lesse abroad But if her Huusband commit felonie take the Church and abiure the Realme she is now in case as a Widdow inabled to make alienation of her owne land as a Feme sole or to bring a cui in vita for
the Statute of 21. H. 8. hath béene taken A sonne of Charles Duke of Suffolke by a second venter hauing certaine goods by his fathers Will dyed intestate and without wife or issue his mother who was daughter to the Lord Willough by tooke Administration which was afterward reuoked after great argument in the spirituall Court as well by common Lawyers as Ciuilians in the behalfes of the said mother Dutchesse of Suffolke and Lady Francis wife to the Marquis Dorset sister of the halfe â—loud to Henry the Intestate which sued to reuerse the Administration and obteined it her selfe though shee were but sister de demy sanke for the mother is not next of kin to her awâ—e sonne in thiâ—â—aâ—ter but must descend and not ascend either by one Law or the other and children be â—â— sanguine patris matris â—â—â— pater mater non sunt de saâ—gâ—ine puerorum Contrary it is of brethren and sisters 5. Edw. 6. 47 in Brooke titulo Administraton There is also this Case William Rawliâ—s Clericus died inteâ—â—ate administration was committed to Sir Humphrey Browne who had married Rawlins his sister William Shelton and Iohn Shelton sonnes to the Lady Browne by her first husband reuersed the administration and obteined â— for themselues But sée in Sir Edward Cokes 3. Rep. in Ratcliffs ca. fol. 40. it is said that the booke of 5. Edw. 6. haue beene often times resolued to bée no Law and that the goods of the sonne or daughter ought to be granted to the father or mother as the next of bloud and there is Littleton â—ited who saith that although the sonnes lands goe to the vncle yet the father is next of bloud SECT II. Areâ—sonâ—ble part of the goods IF there bée a will proued the widow must take such goods as were bequeathed her by deliuery from the Executors but whether here were a will or none in some places she shall haue a third part of all her late husbands goods For this there is an ordinary writ to the Sheriffe where she cannot haue a third part of that which remaines after funerals discharged and legacies payd and performed to summoâ— the Executors to appeare and make answer why she should not haue as the custome of the Court is that women ought to haue rationabilem partem de bonis caâ—alâ—â—s virâ—rum The like writ is for children whether they be sonnes or daughterâ— or both And this writ speaketh of a custome in the County that children which are not heires nor promoted in the fathers life time shall haue their reasonable part 3. Edw. 3. A Writ of debt was brought by a man Alice his wife against the Executors of his wiues father declaration was vpon custome of the Shire that children not aduanced should haue their reasonable part of their fathers goods the Executors said that Alice was married by her father in his life time iudgement si action c. It is no answer said one to say that she was married by her father except you say also by or with her fathers goods and to her conueniable aduancement and here the husband at time of the marriage or after had neuer any land The Executors said still shée was conueniently married by her fathers procurement c. And in the end the Baron and Feme offered to auerre not married by the father on which point the issue was ioyned Fiâ—zh Dett 156. 40. Edw. 3. In a rationabili parte bonorum brought by a daughter counting on the custome of the Towne that euery son and daughter should haue a reasonable part the defendant pleaded a reuersion discended to her which she might sell for her aduancement in marriage iudgement si action c. Mowbray said the Lords in Parliament would not agrée that this action is maintenable by any common custome or Law of the Realme Doctor and St. fol. 132. a. by the custome of some Country the children the dâ—bts and legacies payd shall haue a reasonable part of the goods of the dead 39. Edw. 3. fol. 9. 10. One brought a Writ of Detinue for certaine goods shewing the custome of Sussex That where the father dyed intestate his heire should haue a reasonable part of his Chattels and vpon this custome hee demanded goods come to the Defendants hands It was argued whether the custome were good or no. Morris such a custome hath béene allowed in Eyre 21. Hen. 6. fol. 1. 2. In fine â—asus a woman brought a Writ of detinew against her husbands Executors for a â—â—ity of his goods as for her reasonable part by custome and the Defendant was compelled to answer 7. Edw. 4. fol. 20. 21. Iâ— a raâ—ioâ—abili parte boâ—â—rum iudgement was asked of the declaration because the custome was that where the Baron dyed sans issue the wife should haue a moity of his goods after debts and â—uâ—erals discharged but if there were issue shee should haue but a third part and here the Plaintiffe had a demanded moity without alleaging that the baron died sans issue c. The Plea was amended by permittance of the Iustices for Daâ—by said the widow had as good title to the goods as to lands at the common Law But Cat. by spied another fault in the Count viz. Continuance of the custome not alleaged 18. Hen. 6. fo â— in a rationabili parte bonorum one Executor appearing confessed the action and the others made default whereupon the Plaintiffe recouered presently by equity of the Statute 9 Edw. 3. cap. 3. by which the Executor comming first must answer Like or the same learning is in the former Booke 7. Ed. 4. where Choke said that alwayes if ne vnques executor ne vnques administrat coÌ„e executor be a good plea vt hic the Executor first appearing must answer I see that many tunes in stead of this writ de rationabili parte bonorum a writ of debt sometimes and many times of detinue hath serued and you may finde further 52. and 56. titulo Detinue in Fitzâ— And the great variance is in this that the action is founded on a custome sometime of the Towne sometime of the County and sometime of the Realme for indéed many haue holden that it is generall like an action of the Case against an Hostler or an action deâ—igne custodiendo So teacheth Glanuil and so Fitzh who relieth vpon magna Charta cap. 18. which prescribiâ—g how the Kings debts shall bée leuied of his goods that is dead willeth the surplussage to remaine for the Executors ad testamentum defuncti pimplend saluis vxori pueris eius partibus rationabilibuâ— which being of a reasonable part may be restrained to places where custome yéeldeth it for ought that I perceiue Bracton in this passage is like a péece of Romane ancient coyne that time hath rusted and defaced If a man saith he make a Testament he ought to remember his Lord of whom hée holdeth his land with the best thing he hath and the Church with the next
del roy 23. 〈◊〉 is the case 4. H. 7. fol. â— Action of Dower was against the Kings Committée during the heires â—onage the Defendant shewed how it was foâ—â—d by office that the husbands father tenant to the King died seised hauing issue the husband which entred sans office and died leauing his heire vnder age all which matter was 〈◊〉 by office whereupon the King seised committed the lanâ— to the Defendant c. Iudgement â—â— actione And the widdow was adiudged dowable Bryâ—â— who at the first was in minde to proceed no further without â—â—d of the King when hee had considered the Statute de Bigamis cap. 3. awarded presently that the woman should recouer Dower The Statute is Vbi custodes hereditatis mariâ—orum suoâ— cuiâ—â—dias habent ex dono vel concessâ—â—ne regis â—â—ue custodes â—â—â—um petitarum â—eneaâ—â— â—iue heredes dictorum â—â—â—â—menâ—orum vocentur ad warrantiam si excipiant quod sine regâ— respondere non possuâ—â— non ideo â—â—persedâ—â—tur quâ—â— in loâ—â—elâ—â—dicta proâ—â— iustus fuerit procedaturâ— Stamford noteth some bookes wherein is â—ound that heâ—reâ— in costodie of Committâ—â—s vouched to Warrantie haue come in and had aid of the King directly contrarie to this third Chapter de Bigaâ—is But whether the Kings grant in those cases were Durante 〈◊〉 or Durante bene placito it appeares not in the â—ookes and that makes a great difference Likewise if the Writ of Dower â—e 〈◊〉 〈◊〉 Committée of a Committee And if Wardship â—â— committed to the widdow without exception or foreprize of Dower she is concluded to claime any Dower during the Wardship In Stamfords opinion the new 〈◊〉 〈◊〉 and the case supra 4. H. 7. doe not agrée Howbeit for â—hy part â— finde not the repugnanâ—ie for as the King may assigne Dower to his widdowes though the heirâ— be of full â—ge Vidâ—a si voluerit so Fitzhorbeâ—â— saith hee may assigne Dower if he will though he haue committed the laâ—â—â—â— And this doth not denie but rather affirme that â—â— some case the Committée may assigne Dower If the Committée as Stamford himselfe confesseth assigne Dower to one that is not dowable or if his assignation excéed iust measure the King may reforme it And if a womâ—n â—â—dowed by the Kings Committée will marrie 〈◊〉 〈◊〉 because she stands vnâ—worâ—e for in the Câ—mmâ—â— plaâ—e is no â—wearing in this point her â—â—nds are neuer â— whitlesse subiect to â—eizure for the contempt therefore in the end he conclâ—deth that where â—â—ard is omitted ouer the woman hath election whether 〈◊〉 〈◊〉 â—â—â— to â—he King in Chanâ—erie or at Common Law against the Committée vnlesse it be where the grant of a Ward is but Duâ—anâ—e bene placito for in that case of necessitie the suit must be to the King Sâ—â— Sir 〈◊〉 〈◊〉 〈◊〉 fol. â—8 the reason why a Writ of Dower is maintenable against the Committee of the King Stamford thâ—â—â—teth Fitzherbert also in that that hée saith a widdow must demand Dower against the heire which hath Liueâ—â—â— without clauâ—â—â—◠〈◊〉 dote pâ—â—â—â—â— assigâ—andâ— for when Liueâ—â—â— is before Assignement of Dower there is commonly a sauing in the Writs of Liuerie if so be the woman were found to be wise c. by the office And if she be not found by the Inquisition then there is a leauing out of Salâ—a Dote c. in suing of generall Liuerie Indeed if she were not found to be the Kings Tenants wise in the office the heire may safely sâ—e Liuerie within 〈…〉 such saying But 〈…〉 agrees with Oâ—slow P 〈…〉 32. in the case of Mynes that for Assignation of Dower if the King haue not expressely relinquâ—shed it though the Liuerie be sâ—mâ—â—lâ—â—se of salua Dote c. yet this makes no such waiâ—ing of the prerogatiue but that the King may assigne Dower to a widdow that by an office is found to haue beene wife to the Kings Tenant at the time of his death for without so much it seemes she can neither demand it in Chancerie of the King nor of the Committee nor of the heire in the Common place quere vide fol. 109. Prerogatiue of not assigning The King hath a prerogatiue aswell of not assigning as of assigning Dower As if the husbands Feoffee in a writ of Dower against him call to Warrantie the heire in the wardship of the King c. the woman shall recouer against the Tenant and no recouerie shall be as yet against the heire But neither any common person nor yet the Kings Committee of wardship shall haue this prerogatiue But for the King himselfe if in the case Iudgement to recouer is value be giuen for the Tenant he must stay for execution till the Kings hands be amoued c. If a woman be endowed by her husbands Feoffee of such lands as the husband did not die seised of whereof also for this reason the King can haue no wardship Stamfords opinion is that she cannot marrie sâ—ns licence For by â—6 Assisarum Pl. 57. it appeareth that where a woman was endowed by Gardian in Chiualrie who was afterward attainted of treason and his Seigniorie forfeited to the King she must hold now of the King and not of the heire which was in reuersion of the land Hee accords with Fitzherbert that the Statute of Prerogatiue is vnderstood onely of lands holden in capite and therefore she must demand Dower of lands holden of a Bishoprick or of Tenant in capite when the temporalities or the heire are in Custodia regis she must be indowed in Chancery but she may marrie when she list and shall take no oath to the contrarie Also if a widdow will relinquish her Dower of lands holden in capite she may marrie â—ans licence And see Dyer 3. M. 123. b. affirmeth that the wife of Tenant parauaile shall not be sworne as widdow of the King in the Chancery when her Dower is assigned to her The reason per Stamford is the copulatiue connexion of Et si se maritauerit to the former words of the Statute of demanding Dower and swearing not to marrie The words si viduae voluerint he takes to imply no more but election of refusall or taking of Dower and that is manifest by the last clause of the Statute But by Fitzherberts writ which hee sets downe for forme of seisure when a widdow is married sans licence it appeares that the King may grant to another the marriage of his widdow or widdowes and for marriage before agreement with such a Grantee the King may seize and composition with such a Grantee by Baron or Feme before or after marriage is as good as if it were with the King himselfe But now by the Statute 32. H. 8. cap. 46. This composition is giuen to the Master of the Wards and Liueries with three of the Councell of that Court who haue also authoritie to tax according to the Statute of Prerogatiue a reasonable fine for marriage sans licence How much it ought to be is plaine by
husband till his death then by his death the widdow is made sole Tenant of them so little needing either assignation or other circumstance that without new entry claime or challenge shee may haue action of her owne possession against any other that shall enter If the husband aliened intirely any lease for yéeres of his wiues it is gone irreuocable and if hee make no sale and the wife dyes hee shall haue the leafe except shee bee ioyntly possest with another and the seruing ioyntenant shall haue Commentar vpon Fitzherbert 185. If he aliened part of the estate as for ten yéeres next ensuing where the terme was for twenty the widdow may enter when ten yéeres expired But sée in that Case that if the husband rested a rent and dyes the Executors of the husband shall haue the rent for it was not incident to the reuersion yet the wife shall haue the resioue of the terme Sir Edw. Cokes Commentar vpon Fitzherbert fol. 57. b. if he aliened for the ten last yéeres shee may continue possession till those ten yéeres be commenced If the husband deuise away by his last Testament a terme for yéeres which he hath by right of his wife I suppose the deuise is â—â—id as well as if it were made of some higher estate as it appeares by Perkins chap. Dâ—â—â—ses and Plowd 419 in Bra 〈…〉 gâ—â— case And the Law is all one in all respects where the Baron and Feme are possessed of lease for yeares by intâ—eâ—ties that if the estate be made to them during their couerture or by moyties that is to them ioyntly before marriage or where the Baron is possessed of a lease iure vxoris Sée Dame Haâ—â— case Plowd 260. And if the Baron possest of a lease for yeares in the right of his wife charge the land with a rent and die the rent is gone Plowd 4â—8 in Bracebridges case for shee is remitted And if Feine Gardian in Socrage be and her Baron alienateth it and die the wife may enter And sée Dyer 8. Eliz. 25 the same is of Coppy holds per 〈…〉 der to the vse of a Feme for yeares the wife die the estate rests in the husband without a custome be to the contrary If an husband be possest of a terme for yeares in the right of his wife and Iudgement is had against him and the terme is extended and the husband dieth it shall be good against the wife as appeares by Sir Edw. Cokes 8 Rep. 96. in Maâ—â—ing case And see the 9. case of 50 E. 3. lib. Ass note Sir Edw. Cokes Rep. in â—ulwoods case and Plowd 26â— in Damè Hales casâ— where a lease made to Baron and Feme is extended for the debt of the King after the wiues drath If a man possest of a te me deuiseth it to one for his life the remainder to a woman for her life who takes an husband the husband may release that to the particular tenant although it be but a possibilitie Sir Edw. Cokes 10. Rep. 47. Lampeâ—â—s case And if a woman hath a lease for yeares as Executâ—iâ— and takes an husband hée may sell it per â—oâ— curi 〈…〉 pr 〈…〉 r Fitzherbert Dyer â—8 H. 8. 7. A woman hath a terme 〈…〉 trir the husband s 〈…〉 wits to 〈…〉 vâ—â—n which a moytie is awarded to the pretendor of the title the wife is bound thereby but because the defendant in detinue brought by the wife for the Indenture of lease plead non dâ—tinet and not the speciall matter Iudgement was against him Dyer 2. E 〈…〉 183. 21. H. 7. 6. agrees If the husband discontinue the Franck tenement of his wife the apt instrument whereby to recouer it when she is a widdow is a Cu 〈…〉 vita Which though it be not so necessarie and néedfull perhaps since the Statute of 32. which disableth husbands to discontinue as it was before yet I. perceiue not by what reason the vse of it is forbidden euen in those cases where the entrie is â—ongeable for the vertue of the Writ is not decayed by lawfulnesse of the entrie neither doth free libertie to take possession prohibit the resort to Iustice and action at Law when perhaps a woman cannot or dares not enter By Common Law therefore if the Baron alien in fée the heritage of his wife or her Francktenement by Feoffment or by Demise for terme of life or in taile she may haue remedy after his decease by this Writ Of which the generall forme is Praecipe A. quod â—â—d â—â—â— Bâ—quae fuit vxor Câ—â—â—um messuagium 〈…〉 quod clamat esse ius hereditat suam Et in quod A. noâ— habet ingressum nisi per C. quondam virum c qui illud â—â— de 〈…〉 isit cui in vita contradicere non pot 〈…〉 Th 〈…〉 may be in the per â—ui and post and some varietie it hath according to title of the Demandant as Quâ—â—â— clamat 〈…〉 ius haereditatem or Vt ius maritagium or Vt ius exâ—onâ— I. qui ipsaâ— B. C. virum suum feofavit in quo c. or Quam clamat tenere sibi haeredibusde corpore suo de 〈◊〉 C. quondam viri sui exâ—untibus â—â— d 〈…〉 ne I. or Quam clamat essâ— dotem suam ex dono E. pri 〈…〉 vel secundi c. If Baron and Feme lose the wiues landâ— by de 〈…〉 shée may haue this Writ when shee is a widdow But if the wiues lands be recouered in a Cessauit perâ—de 〈…〉 â—â— Baron and Feme vpon a C 〈…〉 during esp 〈…〉 shall neuer haue a Cuâ—â—â— vita 4. Ed. 2. If Baron and Feme and a third person being Ioyntenants in Fée the Baron alien the intiertie and die his widdow shall haue a Cui in vita of a inoytie during the life of the third person for it séemed the alienation was a seuerance of Ioynture saith Fitzherbert But hée sends vs to 36. Ed. 3. in his Abridgement titulo Cui in vita By which booke the wife in this case cannot haue a Cui in vita for any part so long as the third person suruiueth because they two may ioyne in a Writ of right and if hee die she may haue a Cui in vita of all Vide Librum Of lands which a man and woman purchase ioyntly before couerture the Cui in vita shall be but of a inoytie but of lands purchased ioyntly during coâ—eâ—â—ure the Cui in vita is of the in 〈…〉 e and being brought of a inoytie the Writ is not good 39. H. 6. 45. for in the one case they are seised by inoyties in the other by intireties A woman by excepting lands which she and her late husband tooke in exchange or by excepting rent reserued out of it shall be bâ—â—â—ed in a Cui in vita or any other action Fitzherbert and â—6 Ed. 4. 8. Idem ius if shée accept parcell â—â— her owne land in Dower but 17. Assisarum pl. 3. Brooke 24. Cui in
it is great pâ—â—ulancie in any widdow that slippeth to second wedlocke wâ—ilst she yet nourisheth in her wombe the pledge of vnâ—â—n and loue betwixt her and her late husband I thanke God I cannot say that I haue knowen in my life time any widdow so wantâ—n In old time women vsed now and then to saine themselues left with childe and to bring forth borrowed brats to depriue the Deceaseds right heire of his inheritance sometimes of their owne mischieuous malice and deceitfulnesse and sometime by consent and combining with the Lords of whom the lands were holden Bracton in his second Booke cap. 32. hath a large discourse De partu supposito and there is a Writ to the Sheriffe to call before him and the Kéeper of Pleas of the Crowne the woman that pretendeth to be enseint to haue her examined by tractation and search of good and lawfull women per vbera per ventrem whether she be pregnant or no and if the matter he found doubtfull to commit her to a Castle and warie custodie without accesse of any suspected woman Quâ—usque de partu suo corstare possit But this is a péece of learning so obsolete and worâ—e out that I thinke since I was borne and a long time before there neuer was any such Writ put in â—re I conclude therefore that our widdâ—wes now adayes are honester than they were in Henry the thirds time in the fifth yeare of whose reigne Mariell widdow of William Constable de Mauton in Comitat. N. rff practised this cousenage widdowes of this age are nothing so deceitfull though deceiued sometimes by bad husbands THE WOMANS LAWYER The fifth BOOKE THe widdow married againe to her owne great liking though not with applause of most friends and acquaintance But alas what would they haue her to haue done she was faire young rich gracious in her carriage and so well became her mourning apparrell that when shee went to Church on Sundayes the casements opened of their owne accord on both sides the stréets that bachelours and widdowers might behold her Hic trahebatur â—lle erâ—â— cunctis amor vnus habendi Her man at home kissed her pantables and serued diligently Her late husbands Physitian came and visited her often The Lawyer to whom shee went for councell tooke opportunity to aduise for himselfe If shée went to any feast there was euer one guesâ— sometimes two or thrée the more for her sake If she were at home suitors ouertooke one another and sometimes the first commer would answer the next that she was not within All day she was troubled with answering ê‘etitions And at night when she would go to rest her maid Marion was become a Mistris of requeâ—â—s and humâ—le supplications This kinde of life the widdow liked not I aske againe what she should haue done he to whom she gaue a denâ—all would not take it if shee denied him twise hee said two negations made an affirmation and hée challenged promise therefore to set mens haâ—ts and her owne at rest shee chuse amongst them one not of the long robe not a man macerate and dryed vp with study but a gallant gulburd lad that might well be worthy of her had hee béene as thrifty as kind hearted or halfe so wise as hardy and aduâ—nturous This youth within lesse than a yeere had set the Nuncios which his predecessor kept in prison at liberty round about the Countrey the bags were all empty the plate was all at pawne all to keep the square bones in their amble and to relieue Companions One of which notwithstanding that had cost hâ—m many a pound for none other quarrell but vous meâ—tes challenged him one day into the field which was appointed and there my new married man was slaine Now his wife will bring her Appeale SECT I. Appeale of the husbands death BY Bracton li. 3. cap. 29. A woman can haue an Appeale but only in two cases per quod alicui lex debeat apparens adiudicari As in case where iniury and force is committed against her person by rauishment or when her husband is killed imer Brachia iua This forme of appeale therefore is A. late wife of B. appeales â— that whereas B. her husband was at such a place such an houre such a day and such a yéere C. came with force â—equiter in felonia contra pacem regis and killed him betwixt her armes and that he did this against the Kings peace and fellonioâ—sly shee will proue and maintaine as the Court shall thinke good Againe the same A. appeales E. of this that at the same place the same yéere day and hâ—wer E. â—ame with C. felloniously and against the Kings peace and held B. till C. killed him c. If hée which is appealed de facto were taken vpon the fact with his knife or sword all bloudy and this veryâ—â—ed by Testimony of good and lawfull men non erit vâ—terius â—â—quirenâ—â—â— Thus Bracton Now let vs â—â—â— how shee shall be vnderstood there is no doubt but a woman may haue other Appeales besides thâ—se twâ— of rape or death of her husband 11. Hen. 4. fol. 9â— An Appeale of Robbery was brought by a woman the defendant said the Appealant was his 〈◊〉 iudgement si el â—erra respondue and to the robbery non culpaâ—le So that hee pleaded to the fellonie and the â—â—â—fty admitted a good plea And a woman may haue an appeale of may hem 13. Hen. 7. 14. Hussey saith it was demanded of him for a doubtfull question where parish Clarke â—ell out with another man and threw the Church â—â—re keyâ—s at him with such force that they â—â—ang out at the Chamber window and put out a womans eye whether it were may hâ—â— or no And for the euill intent of the Clarke it was déemed may hâ—â— but consideratiâ—n ought to be had in aâ—â—eâ—â—â—ng â—aâ—â—ages But true it is a woman shall not haue appeale of any mans death saue only of her husbands therefore if a man bee killed that hath neither wiâ—â— nor sonne but his next heire is either daughter sister or female Cosâ—â— albeit he hath many other â—â—â—red Eâ—siâ—s or Vâ—eâ—es the proâ—â—â—ity of a female heâ—â—e â—â—â—es away the Appeale quite and cleane for of â—â—â— Ancestors death if he had no wife the Appeale belongs ouer to the heire who here cannot haue it because it is a female for Mag. Char. doth directly dâ—ny it â—ap 34. Nâ—llus câ—pictuâ— aâ—â— imprisonetâ—â— propter apellum â—eminae de moâ—â—e aâ—â—â—â—â—uâ— quam viri sui And vpon such an Appeale brought by an heire female the Defendants cannot bee arraigned at the Kings suit because the Appeale was neuer good Neither shall the Defendants recouer dammages because as Shard maketh the reasoâ— hee may bee arraigned and condemned otherwise ad Sectam regis for any thing yet done to the Contrary 27 Aâ—â— p. 25. A daughter or sister c. can haue none Appeales of a fathers or brothers death no more can a mother haue Appeale
of the death of her sonne If a woman haue issue a sonne which is murdred and there is no heire to him on the fathers side by Billing chiefe Iustice Needham and Choke none vncle nor other kinsman which must coâ—â—â—y as heire by the mother can haue the Appeale because the Statute before remembred excludeth her from whâ—m they must deriue Briaâ— Littleton Nâ—ale and the chiefe Baron are contra For said they the Vâ—cle on the â—â—ther side may haue Appeale of the Nephewes death which the father from whom the Vncle must conueigh 〈◊〉 haue any more than the mother But Billing tels them the Cases are nothing like for a father may haue an Aâ—peale of his Ancestors death but so cannot another iâ— any case the bridge therefore being once broken â—d eâ—â— the meane of conueyance stopped and disabled the Appeale is altogether and for euer taken away â—7 Eâ—â— 4 fol. 1. And so is it adiudged likewise â—0 Hen. 6. fol. â—â— where there was grandfather mother and sonne the mother died the grandfather was murthered the sâ—nnâ— might not haue Appeale because hee conueyed by a woman scilicet by his mother and there it was stood â—â—â— that an Appeale shall neuer discend but hee to whom it first falleth shall haue it and if he dye the Aâ—tion dâ—â—â—â— It is a good case well argued in the booke at large Sée the booke of 11. Hen. 4. 1â— It appeares that in Appeale oâ— Rape by the husband ne vnques accouple c. nest pâ—â—â— for the husband in Act or possession shall haue that wâ—erâ— the marriage is not void and yet that plea is good in Appeale by the wife of the death of her husband for there shée shall not râ—uenge his death to whom she was not lawfully married and see 50. E. 3. 15. Brâ—â—â—on agrées with Bracton qui null â—ee puisseare appeller de felonie de mort â—orsque de mort son baron â—uâ— deins â—â—â— lâ—â—our enter ses braâ— And it is true that by the ancient Law neither woman or other person might haue appeale of death vnlesse the appellant â—â—â—â— prâ—sâ—nâ— or did sée the dead man at the tiâ—â— when hee was slaine But the Law is changed by â—loâ— cap. 9. which willeth that no Writ henceforth shall goe out of Chaâ—â—â—ry for the dâ—â—â—â— of man to enquire whether a man killed another by â—â—â—aduenture or in his owne defence or â—therwiâ—e â—eâ—â—niouâ—â—y but he shall remaine in prison till the comming of Iustices errants or gaiâ—â— deliuery and before them put himsâ—lfe to the country for triall of good and euill And if it â—e â—ound by the couâ—try that what he did was â—â— his owne defence or by â—â—sadâ—enture the Iâ—â—â—â—â—es â—â—â—ll dâ—e the King to wit and thâ— King doe the party grace â—â—luy pleiâ—â— Also it is prouided that no Appeale shall be â—â—â—ted si le gâ—â—r menâ— come 〈◊〉 aâ—â—eâ— â—uâ— if the Appeal ouâ— shew tâ—â— dâ—â—d the yâ—â—re the day and â—oâ—â—â— â—â—â—â—mps lâ—â—â—y the Towne where and the weapon wherewith the sâ—aughter was committed â—he appeale shall stand goâ—d and â—â—â—â—e appeale shall bee abated for want of â—resh â—uâ—â— iâ— it bee perâ—â—ed within a yâ—â—re and a day after the â—â—â—t coâ—â—iâ—â—â—d Before this Statute the Appellâ—nt alwayes 〈◊〉 oâ—â—â—s proper view â—ow â—â— nâ—â—ds not The 〈◊〉 â—hat â—â—â—ll â—â—ing â—his appeale 〈◊〉 be wiâ—e to thâ—â—aâ—â—◠〈◊〉 â—◠〈◊〉 〈◊〉 â—or â—â—enâ— accouple in loyall matrimony is a good plea in barre oâ— her appeale as before is said But this plea is not so perâ—mptory but that after the Bishop hath â—â—◠〈◊〉 â—â—yâ—â—ment â—ccoâ—â—â—e c. the Defendant may afterward â—â—â—ad non culpable and this in 〈◊〉 in vitâ—â— but he cannot â—â—â—ad on to the fellony immediately vpon the â—â—rst plea. Therefore here is requisâ—te two trials as it séemeth 50. â—â— â—â—â— Idem 27. 〈◊〉 p. â— Furthermore it is requistâ—e that she be sole and vnmarried married that made this Appeale for if she marrie again 〈…〉 her Appeale is gone though the new married husband be dead within the yeare and day after his death that was slaine Yea and not onely a widdow which hath an Appeale hanging abateth her Appeale and loseth it for euer by new marriage but also if after Iudgement and before execution she take an husband she loseth execution of the Iudgement 11. H. 4. fol. 48 By Brian and Hussey 2â— F. 4 fol. 72 72. If a woman pursue her Appeale till the Defendant be outlawed and then marrie she may sue execution And so did Skrâ—â—nâ— hold the Law to be in the 〈…〉 â— â— â— â—ut Gaseoâ—gâ—e Chiefe Iustice denyes it And â— or 2. Mariae Brooke Appeale 100 the Iustice of the Kings Bench did all agrée that a widdow loseth her Appeale by taking of a second husband Et idem videtuâ— saith Brooke de executione for the reason wherefoâ—â— this Action is giuen to a widdow is not as Glanuell makes it Quia vna caro est v 〈…〉 vxor For then the Baron might haue an Appeale Dâ— morte vâ—oris which is neuer granted but her heire shall haue it And if the wiâ—â— kill the husband his heire shall haue the Appeale And I hearâ— saith Stanford Pleeâ— de Coron fol. 5â— it hath been adiudged If she King pardon the woman all manner of treasons the heires Appeale is gone But the true reason why a woman hath the Appeale De morte viâ—i is because by his death shee is thought lesse able to liue and maintaine her selfe so said the Iudges in Q 〈…〉 ne Maâ—â—â—s dayes and that therefore when she taketh another husband ccâ—â—ante causa ceâ—â—at effectus and her Appeale is gone like as a widdowes Quarentine is determined when she is once remarried But where a woman continueth sole she 〈…〉 d â—â—ne other shall haue this Action either in her life or after though she dye within the yeare and before Appealâ— commenced 20. H. 6. 42. It is not requisite that the Appellant here â—e dowable of his possessions which is slaine for though a woman â—lope from her husband and neuer be reconciled yet 〈…〉 may haue Appeale of his death per Iâ—glibie 50. â— â— 15. Sir Edw. Cokes Comment vpâ—n Littleton fol. 3â— saith That if the Baron be attainted of treason c. his wife shall not be indowed and yet if any doe kill him the wife shall haue an Appeale So likewise agrées the Booke of 35. H. 6 58. where in an Appeale de morâ—â— viri the Defendant said the Baron wâ—s indicted arraigned forâ—d culpable and iudgement to be hanged c. and to the felonie nient culpable It was agréed that there is no such corruption betwixt a man and his wife by Attainder as is the corruption of bloud betwixt a man and his heire for the heire of a man attainted shall not haue an Appe 〈…〉 e and she is his wife notwithstanding the Attainder but the other is not heire And per Markham If an Appeale bee not good the Defendant shall not bee arraigned
at the Kings suit when the Plaintiffe is at non suit Also in this case it was deliuered that the Marshall of the Kings Bench the Viscount or such Officer that is commanded to execute a man condemned is a Felon if hee execute him in other manner than he is commanded as if he cuts off his head where the iudgement was he should be hanged But if he doe execution according to the iudgement then he may iustifie in an Appeale and néeds not plead non culpable Yet in Appeale against a Iudge for adiudging a man to death he cannot iustifie but must néeds plead non culpable and giue the matter in euidence Simile 27. assi p. 41. where in Appeale de morte viri the Desendant pleaded vtlagary de felonie Iudgement si c. Shard said it was no more lawfull to kill an Outlaw than to kill another man and therefore the Defendant pleaded non culpable Ludd said that one was excused of the death of the Baron of Woodhall by the Outlawrie c. It appeares now what wife and of what husbands death she may haue an Appeale Stanford in his third Booke cap. 15. notes that in ancient time there were certaine presumptions so vehement that they were a condemnation of the partie without other triall they â—oe not so at this day but euerie man shall haue his triall how great soeuer the presumption were But the vehemencie of presumption may oust battaile For 6. H. 3. The Coroner and others testified that the Defendant was taken cum cultello sanguinolento c. ideo consideratum est quod se non defendat per duellum SECT II. How a woman shall sue this Appeale IT séemes that all Appeales ought to be sued in proper person and not by Atturney as Appeale of Mayhem must be in proper person 21. E. 4. 7â— 73. A woman which was grossment enseint sued this Appeale and the Defendant was attainted the womans appearance was recorded for the whole terme and yet by the better opinion she might not pray execution by her Councell but ought to come in proper person therefore one of the Iudges did ride to Islington to her to sée if she were aliue and desired execution which she required and the Defendant had iudgement An Appeale is called but a suit of reuenge and therefore is not much fauoured Dver 5. M. 152. If one of the Defendants in an Appeale makes default the Court cannot procéed but otherwise in an Inâ—itement as it is there said This by Common Law If any Liege subiect be slaine by another subiect in any forreine Realme the wife of him which was slaine may haue an Appeale in England before the Constable and Marshall c. And this is by Statute 1. Hen. 4. cap. â—4 Stanford fol. 65. Feme auerâ— appealâ— de mort viri tue in escoâ—e per commen Lâ—y comme semble 13. H. 4. Brooke 153. By the said Statute it is also ordained that none Appeales from henceforth bee pursued in Parliament Likewise I finde by Statute vâ—z 15. R. 3. cap. 2. That of the death of a man anâ— of Mayhem done in great ships being and houering in the streame of great riuers onely beneath the bridges of the same nigh to the sea and in none other places of the same riuers the Admirall shall haue conusance c. sauing to the King all manner of forfeitures c. SECT III. The Statute 3. H. 7. cap. 1. BVt for the ordinarie course of suing of Appeales 3. H. 7. cap. 1. layeth the best foundation This Statute reciteth the Law of the land to be that if any man bée slaine in the day and the Felon not taken the Township shall bee amerced If any man bee wounded and in perill of death the offender should be arrested and put in suretie till knowledge be had whether hée which is hurt will liue or no. And where any man is found dead the Coroner vpon view of the body should enquire who were the murderers their abettors consenters and who were present at the murder committed whether man or woman and he ought to inroll and certifie their names The vse had béene also as saith the Statute that within a day and years after any death or murder the felony should not bée determined at the Kings suit and that for sauing of the parties suit or else the partie was agréed with by which it is the more chargeable and thereby murders were increast and also he that will sue in Appeale must sue in proper person The constitution of this Law therefore is that euerie Coroner henceforth doe his office and that if any man be slaine or murdered the slayers murderers their abettors maintainers and comforters should bée indicted arraigned c. at the Kings suit within the yeare after the felony or murder done without tarrying a yeare and a day for any Appeale And if any either principall or accessarie thus arraigned bée acquited at the Kings suit withâ—n the yeare and day the Iustices before whom he is acquite shall not suffer him to goe at large but either remit him againe to prison or let him to baile till the yeare and day be past And the wife or next heire of the partie slaine may take their Appeale within the yeare and day after the felony or murder done if the benefit of Clergie be not yet had with all aduantages that acquitall or Attainder at the Kings suit notwithstanding Furthermore the wise or heire of the person slaine or murdered may commence their Appeale in proper person any time within a yeare after the felonie done before the Sheriffes and Coroners c. or before the King in his Bench or Iustices of Gaole deliuerie And the Appellant in any Appeales of murder of death of man where battaile by the course of Common Law lieth not may make Atturney and appeare by the same in the said Appeales after they bée commenced to the end of the suit and execution of the same And if the murderer doe escape vntaken the Township c. shall be amerced and the Coroners shall deliuer their inquisition afore the Iustices of the nâ—xt Gaole deliuerie which Iustices shall procéed against the murderer if they bee in Gaole or else the said Iustices shall put the Inquisition before the King in his Bench. The Statute also giueth the Coroner thirtéene shillings and foure pence for taking inquisition super vâ—sâ—m corporis By this Statute and the other of Gloc. cap. 9. a womon perceiues that within a yeare and a day she commeth timely enough with her Appeale Stanford notes that though the Law haue béene taken otherwise if hée which is robbed make fresh suit albeit he commence not his Appeale two or thrée yeares after the robberie yet his Appeale is good for if the partie robbed haue his endeuour to take the Felon he may commence his Appeale at any time at the Iustices discretion For Gloc. if it be rightly vnderstood seemeth to speake only of Appeales de mort And
to be remedied by the Statute in Appeales which are of death but other Appeales are left as they were before The Common Law therefore vnchanged is that if a man be indicted of robberie whereof there is an Appeale hanging and the â—ppeale is proceeded so farre that the Iustices may perceiâ—â—â— the felome is all one they ought to surcease triall vpon the Indictment as it is 1. 31. H. 6. fol. 3. For note that in Appeale of robberie when it is by Writ the robberie cannot be certainly knowen before Declaration Otherwise it is if it be commenced by bill or that the Appeale be of death of a man any SECT XIII Auterfoits attainted THis is a sore saying which some men haue to plead for themselues viz. that they are already condemned to be hanged and aske Iudgement whether during the Attainder they should answer to the felony whereof they are condemned or to any other And this plea serueth where the partie condemned hath already forfeited as much as he can forfeit so that it is to no purpose to traâ—â—â—â— him any further But in some speciall cases when there is some end of it a man already condemned may bée arrâ—igned againe As if a man attaint of felony were guiltie of treason also at the time of the felony committed hée may now bee put to answer the treason because thereby the King shall haue the â—scheat of his land of whomsoeuer it were holden 1. H. 6. 5. Otherwise it is if the treason were committed after the felony or at the least if it were after the attainder had of felony for then the title vested in the Seigniors before the Kings title might not be deuested by matter accruing ex post facto And if diuers men haue diuers Appeales of robberie against one to the end that euerie man may haue againe his goods whereof he was robbed by making fresh suit he shall bee attaint at euerie one of their suits But note saith Stamford in cases where the Defendant will discharge himselfe of answering by attainder of any other felony than that whereof he is arraigned it may be replyed either for the King or the partie that since the Attainder the King hath pardâ—ned him the said Felonie and Attainder whereby he is now restored to the Law and ought to answer to all other felonies though they were perpetrated before the felony whereof he saith he was attainted Titulo Coronae in Fitzherbert 227. 10. H. 4. c. But to the felonie whereof a man is attainted hée shall answer no more after he hath his pardon of it Thus far Stamford Sée Brooke Titulo Coronae 11. Quaere Whether a man attainted of felony and pardoned shall answer at the Kings suit to other felonies before committed and whereof he was not indicted at the tune of the Attainder per aliquos videtur quod ita as well as at the suit of the partie in Appeale yet some held otherwise 10. H. 4. That a man can die but once at the suit of the King and he that is pardoned is as a new man all former Iudgements as against the King being determined Quaere de Appeales Cor il estâ—foredure de maintainer Appeale in le case For all Appeales were determined once by the Iudgement vpon Indictment Note that it was resolued in Wrote case Sir Edw. Cokes 4. Rep. fol. 45. That Auterfoits conuict of manslaughter vpon an Inditement of murder and Clergie allowed is a good plea in an Appeale of murder and that although the conuiction was had hanging the Appeale But it was also there resolued that if the Inditement vpon which the conuiction was had were insufficient the offender may notwithstanding that conuiction bée indited or appealed againe for that his life in iudgement of Law was neuer in ieopardie and so it was resolued also in Vauxes case in the same Report SECT XIV Clergie IF the Defendant in Appeale craue his Clergie and the Plaintiffe say that he is Bigamus if he be so certified it is peremptorie and he shall be hanged without pleading Ouster to the felony Sée 11. H. 4. fol. 10. That Clergie is allowed in Appeale de morte viri In the Booke of Entries wherein scil fol. 5. is the Kings writ to certifie whether the partie appealed were Bigamus as E. which appealed him of the death of A. her husband alleaged But at this day Bigamus shall haue his Clergie by the Statute of 1. Edw. 6. SECT XV. The Kings pardon IF a woman which bringeth an Appeale de morte viri let fall her suit the Kings suit is not preiudiced thereby and if the wife release all Appeales and afterward by verdict in Appeale brought by her the release is found the entrie is De appello praedict ' quoad sectam praedictae Aliciae sit quietus quod ipse eat inde sine die c. Sed quoad sectaÌ„ Dom. Regis in hac parte instante allocutus est qualiter se velit acquietare dicit quod in nullo estinde culpabilis c. Sée the Booke of Entries fol. 47. b. So likewise in Appeale Dè morte patris or De morte viri the Kings pardon cannot take away execution 13. H. 4. But it is a good plead against the King when an Appeale is once determined And if the Appeale be determined not by act of the Appellant but by act of Law the Kings pardon shall not be allowed without the Appellants priuitie As if the Plaintiffe pursue her appeale till the Defendant be outlawed by this Outlawrie the appeale is ended and now if the King pardon the felonie c. this pardon shall not bée allowed without Scire facias against the partie at whose suit the Felon was outlawed And at the day of Scire facias returned the partie may appeare and pray execution which is grantable the pardon notwithstanding But if the Sheriffe returne that hée warned her to appeare and she make default the pardon shall be allowed without more adoe And this Scire facias vpon pardon granted may be required against the Appellant though the Appellée neuer desire it and though hee shew no release or other matter in discharge of the Appeale For he shall come timely enough with that when the other appeares vpon the Scire facias Also the Scire facias is grantable though the Charter of pardon haue not the clause Ita quod stet rectus in curia Vide Fitzherbert p. 17. titulo Charter 11. R. 2. In appeale against Principall and Accessarie the Principall was pursued till Outlawry and Exigent went out against the Accessarie and at the day of the returne the Plaintiffe was at non suit in his Appeale and then came the Principall with his Charter of pardon and prayed it might be allowed because the Plaintiffe was at non suit Gascoyne made answer That the non suit could not help him for the Appeale had run his full course and was determined as towards him by the Outlawrie SECT XVI Dammages in Appeale NOw to
quit hee shall recouer dammages So if the Appellée haue both the Kings pardon and the Appellants release and yet he will waiue them and plead riens culpable hee shall recouer dammages if the Country acâ—uit him yet hee hath done a matter of record which by implication acknowledgeth the felony quoeâ—e for if the pardon were by Parliament sans question hee might not waiue it Sée thereof 11. Hen. 4. fol. 40. He is not acquited debito modo that is acquited erroniously without dew processe As 9. Hen. 5. fol. 2 the Defendant câ—me in by exigent vpon which the Viscount had returned ceâ—â— corpus whereas he should haue returned exigifeci and the Defendant appearing vpon the exigent without taking aduantage of the processe pleaded riens culpable to the appeale and so was found but yet he could not get iudgement to recouer dammages for the cause aforesaid quaere for 19. E. 3. Titulo Corone in Fitzherbert 444. is contra that errour in the processe is not materiall so long as there is no errour in the Writ of appeale Declaration or pleading for the Defendant is arraigned vpon the originall and not vpon the meane processe The Statute speakes thus vel ad sectam domini Regis vel appellatoris The Kings suit here is vnderstood in appeale when after arraignement of the Defendant the Appellant hauing declared is at non suit fâ—r if the Defendant bée acquit at the Kings suit vpon an Indictment of the same felony he shall recouer no dammages And the manner of recouering dammages when acquitall is at the Kings suit differeth some what â—â—em recouery vpon suit of the party c. for in the first â—ase hée which is acquited shall recouer no dammages till he haue sued scire fac to bring the Plaintiffe into Court which by non suit was become out of Court But in the other case hee shall recouer dammages without other processe Titulo Dammages in Fitzherbert 7. 7. Whore the Caâ—e was that the Appellant tooke a husband after non suit and yet scire facias was awarded against the woman onely The Statute is further that the Iustices before whom c. shall punish the Appellâ—ur c. this cannot bée vnderstood by Iustices of Nisi prius though by the Statâ—te 14. Hen. 6. cap. 1. they haue power to giue Iudgement in treason and felony tried before them and that â—s well where the Defendant is acquited as where hee is attainted But yet within this Statute they are not 〈◊〉 the plea of the whole appeale is not heard before them nor any more saue only the triall as you may â—ée 10. E. 4. â—o 14. The Statute is further that the dammages shall bee considered hauing respect to the imprisoâ—â—â—nt c. Therefore if appeale bee against diuers men and they all are acquited dammages shall be taxed to them seuerally because perhaps one is more damniâ—ied than another for one may be appealed as principall and anâ—ther as accessary and one may be a Gentleman and another nâ—â—â— â— Hen. 5. fol. 1. and 40. E. 3 titulo Dammages in Fitzherbert p. 77. But note that this recouery of dammages is not for euery one for if an appeale â—ee against a Monke â—â— Feme couert without the ioyning the Soueraigne or â—â—â—band as it must bee except the Soueraigne with his Monke or the Baron with his wife commitâ—â— the â—â—lâ—ny the Monke or Feme couert shall recouer no dammages though they bée acquit Titulo Corone in Fitzherbert 276. 22. E. 3. The principall Case was an appeals against a Monke and the Iustices said it was all one for Law if it had boene a Feme couert quaere for if an appeale bee against Baron and Feme which are acquited dammages shall bee taxed and recouery seuerally viz. The Baron sole shall recouer for his owne imprisonment and the Baron and Feme ioyntly for the impâ—â—sonment of the wife The Statute is moreouer versus Dominum regem grauiter redimantur This fining to the King is neuer but where the Defendant is to haue dammages also for otherwise the Plaintiffe shall not fiâ—e but only beeamerced as 9. Hen. 5. fol. 1. the appeale abated for misâ—oâ—mer and the Plaintiffe was but only amerced vide 41. Assis Corone 219. the appellant was at non suit after Declaration and the Court presently awarded processe against the Appellant to câ—me and make fine agréeing that if the party were afterward acquit at the Kings suit so that hée recouered dammages against the Appellant yet shée should not pay a new fine Put the caâ—e therefore that at the Kings suit the Defendant had béene found culpable of the felony what remedy there might be for the Plaintiffe to recouer his fine againe which hee payd before noone as it sâ—â—meth for it séemes the Plaintiffe which is at non suit in the appeale shall pay a fine by the Common Law and this was the cause why they awarded it to bée payd maintenant Then for enquiry of Abbettours c. Cum appellatores non habeant vnde praedicta damâ—a restitueâ—â— inquiratur per quorum abettum These words imply that if dammages be not by Law recouerable against the Appellours there shall be none enquiry of Abbettours And where the Statute is that if the Appellants are not able to restore dammages it is intendible all the dammages for if the Appellant bee sufficient to render part but nâ—t all the dammages enquiry shall be of the Abbettors and they shall be charged 8. E. 4. fol. 3. 8. Hen. 5. 219. â—itulo Corone in Fitzherbert The Statute is shoppellatus hoc petat Of office only therefore and without request as it should séeme the Court cannot enquire of Abbettors And â—8 Assis 222. titulo Corone where they â—ad enquired of Abbettors at the desire of one Defendant and they found none and afterwards another of the Defendants being acquited prayed enquiry likewise it might not bee obtained because it appeared by the first verdict that there were none Abbettors there rem ined therefore no more to be enquired oâ— but what dammages were susteined This Stamford affirmes to bâ—e in appearance against Law for saith hee it is against the words of the Statute and against reason for what reason is it that a man should bee bound by an enquest whereunto he is not priuy and against which hée can haue no remedy because it was but an enquest of offiâ—e for albeit that commonly the enquiry of Abbettors is by the same enquest that acquited the Defendant yet their enquiry in this point is but of office for if they finde Abbettors these Abbettors when they come may trauerse all that is found in this point As if it be found that the Appellant is not sufficient and A. and B. were Abbettors A. and B. may come and say by protestation not knowing the felony for plea that the Appellant is sufficient or that they neuer abetted 8. E. 4. fol. 3. and the words Sâ— legitimo modâ— conuictus fuerit de huiusâ—odi abbeâ—to
per maâ—â—â—iam proue also that answer is allowed to that which is found by the enquest And note that it is a good answer for the Abbettor to shew matter wherefore the Defendant ought not to haue dammages or to shew that hee was acquited not lawfully buâ— erroniously But the Abbettors shall not take exception against the Inquisition for that it is not found at what day yeere or place they abetted for the Abeâ—nent simply found satisfieth the Statute which willeth vâ— inquiratur per quorum abeâ—â—um And when that it is once found the Defendant may supply that which wanteth adding to the inquisition the yéere day and plaâ—â— â—iâ—ulo Corone in Fitzherbert 45. 22. E. 4. By the words per brâ—ue de iudicto ad sectam appellati distringantur all veniâ—ndum coram Iusticiariis c. And the processe should séeme to bee distresse infinite But Titulo Corone 102. the Court awarded first a Venire facias then Disâ—resse which course hath little authoritie for it for all the other Bookes giue a Dâ—string as for the first Processe which is alwayes sued out by him which is acquited And for his better spéed he may pursue this if he will though the Appellant bée not in Court. As if the Appellant bée at non suit and the Defendant arraigned at the Kings suit is acquited his dammages taxed and his Abbettors found now he may haue Processe against the Abettors maintenant though the Iudgement of dammages bée suspended till Scire facias â—e sued and returned against the Appellant and note if the Defendant which is acquited in an Appeale be non suit in his Processe against the Abettors this is not peremptorie but he may commence processe againe of new if he will Corone 386. And 3. E. 2. titulo Action sur le Statute 28. An originall Writ brought for Abetment and Declaration against the Abettors for greater dammages than were assessed in the Appeale is awarded good For of dammages taxed in Appeale there lyeth no attaint because the Enquest as to the dammages is but of office and the Defendant cannot compell the Iustices to encrease dammages therefore it is reason that he aid himselfe by Action So saith Stamford SECT XVIII Of the old Law I Haue waded further into this vindicatiue Action than I thought to haue done and yet not touched what the Princes warrant of a mans life may auaile him against the instant appeale of a widdow I know one or two that are thought to be buckled against Appellants by a lease of their owne liues from the King but how trâ—â— it is or how contording with Law I know not Howsoeuer it be I aduise a widdow that is full of spléene for the slaughter of her husband to read ouer mine instructions here to aâ—â—aâ— choller and then if composition be offered not to refuse it For first I doe you to wéet that appeales dâ— morâ— are but slipperie Actions Be iudged by the case 33. H. â— Dyer â—ol 50 Warnforo of the Temple was sued in an appeale of murder the Writ was Ad respondendum A. B. alias dict A. B. fraâ—â—â— haetedi to him that was murdered and the Defendant was discharged because the Plaintiffe was not named brother and heire in the substance of the Writ but onely in the Alias dictâ— for it ought to haue bâ—â—ne Ad respondendum A. B fratri â—â—â—â— redi alias dâ—ctâ— c. This was the chiefe cause why the Defendant was discharged Then I say it is a more Christian thing to take fiue hundred poâ—nds of a mankiller for a release leauing him to agree with the King for his necke as good cheape as he can than to séeke bloud and death though of one which hath deserued it in anger malice and reuengefulnesse Last of all I affirme that it agréeth with the eldest custome and ancientest English Lawes For that which learned M. Lamberd in one place speaketh but as coniecturall is me thinketh true without all peraduenture Id â—st that this forme of procéeding against an homicide giuen to the dead mans heire or widdow is a â—euengefull Action first giuen to appease such quarrels and capitall enmities of families and kindreds as the Northerne men yet vse and call Fâ—awds which heretofore but a long time since were generall and ouerspread the Realme So that an Appeale du mort is but an image of deadly Feawd The inducements to thinke so are these The action of Appeale is preferred before the Kings action the offer of triall by the Appellant by Bracton is per corpus c. si de eo male contigerit per corpus fratris c. And the ancient vse was when the Appellée condemned went to execution that all they which were of bloud to him that was murdred should draw the man-flayer to the gallowes by a long rope or cord to shew loue to their kinsman and desire of reuenge per Bromley in Plowdens Commentarie 306. And 11. H. 4. fol. 12. When Tâ—rwit had affirmed that by the ancient Law in Appeales de mott the dead man kindred and his wife should draw the Felon to execution Gasâ—olgne added Hoc â—uit in diebus nostris By these dayes Appeales de mort shewed by their outward face and phisnomie from whence they sprung But by the old Lawes of King Inas King Edmunâ— and the rest yee shall plainly perceiue that Feawd was their mother and that money was the quencher of the quarrell verie often if not alwayes See therefore in M. Lamberds Booke Depriscis legibus the Law 7â— of Inas If a bond man kill an Englishman his Lord shall deliuer him into the hands of the Lord or kinsman of him which is slaine or redéeme him at sixtie shillings If the Lord will not pay the money he shall at the least emancipate his bondman and the kinsman of the murderer so emancipate may vndertake for him to pay the price of him which is dead If hée haue no kinsman that will doe so much for him Metuat sibi malum ab aduersarâ—is Let him be at the hazard of his enemies And I haue read an old Law which I cannot finde againe Parentibus occisi fiat emendatio vel guerra eorum portetur But in the same booke De priscis Legibus yée may finde that King Edmund which reigned an hundred yeares and more before the Conquest by the aduice of Odo of Canterburie and the Archbishop Wolstan of Yorke with many other of the Clergie and Laytie made Lawes amongst which one hath this Preface Etenim nos omnes harum taedet pugnarum quotidianarum and therefore we ordaine as followeth SECT XIX King Edmunds Law IF any man hereafter doe kill another man hée alone shall take vpon him and sustaine the deadly enmitie of the dead mans kindred vnlesse he can by the helpe of his friends pay the whole price and estimation of his head whom he hath killed what condition soeuer he were of and that within the space of twelue moneths If his
second branch of the Statute shall bee expounded father or mother after the death of the father And it was resolued in that Case that there bee two manners of custodies or wardships the one by the Common Law the other by the Statute And that also at the Common Law there are foure manners of Gardians namely Gardian in Chiualry Gardian in Soâ—age Gardian in nature and Gardina for nurture and now the Statute makes a new Gardian namely by assignation but the mother in that case cannot be Gardian for nurture because her daughter was past 14. yéeres of age But she had the custody of her within the prouisâ—on of the Act â—ure naturae and the assent of Raph Ratcliffe the mothers husband was not materiall for the custody of a child is an inseparable incident to the parent and marriage may not transferre that to a husband And that was resolued that although the issue was whether Elizabeth had the custody of Martha at the time of the contract and that did appeare that shee departed from her mothers house six houres before the contract yet in iudgement of Law her mother had the custody of her at the time of the contract And that was resolued that in that Case Edward Ratcliffe and Martha his wife had good title to the land against Andrewes and his wife for the one daughter as that Case is shall not take benefit of forfeiture of the other for the statute giues the forfeiture to the next of kin to whom the inheritance should descend or come after her decease during the life of such person that so shall contract matrimony so that first hee ought to be of the bloud and secondly to whom the inheritance should descend or come c. and although the wife of Andrewes bee of the bloud yet in that Case by the death of Martha the land if shee hath issue shall deseend to her issue and if shee hath not issue that shall reuert to her mother c. but iudgement was against the Plaintiffe for that the issue was found against him These are the Lawes whereby rapes and rauishments of women are repressed which if they bee well looked vnto will proue that there is now no cause why lying Lâ—onicus Chalcondilus should be beleeued who writing of Englishmen affirmeth that we haue no care what becomes of our wiues and children That in our peregrinations and trauels wee interchange and vse one the others wiues mutually That we count it no reproch by whom soeuer our wiues or daughters bee got with â—hild That with vs if a man come to his friends house hee must lye with his wife the first thing that he doth vt deinde benigue hospitio accipâ—arur And though some of the last recited Lawes were vnmade when Chalcondilus did write aboue one hundred yéeres since yet there were then Lawes enough to proue him a déepe lyer and had hée â—éene in England to haue trussed him vp too perhaps for lechery had his learning steaded him no better than his honesty this is no lesse cause why I should be thus bitter against Chalcondilus a dead man for that it may séeme he wrote by hearesay nullo odio gentis and in other matters hee reporteth honourably of vs. But it is strange that a man writing not a great while since but euen the other day not at Athens neither at Rome or Reams where they vse to belie vs head and foot but here at London should be bold to wrâ—te and put in print matter to this effect That beggers and the poorest sort of our women we doe vse to punish and to whip them when they are taken for leachers and dishonest liuers But Gentlewomen and Ladies of honour and worship they are neuer pâ—nished for incontinency but rather for their amorous wantonnesse and lubricity the more estéemed and magnified This follow deserueth plainly better to bee hanged than to bee beléeued For neither is it true that any womâ—n with vs can better her reputation by dissolute life and manners Neither can any woman learne a more deuillish lesson than so to be perswaded And seeing the Lawrs themselues declare what detestation they haue of bruitish concupiscence by punishing consent with lâ—sse of inherâ—tance I would I could perswad all women to eschew not only these gulfes but also the ecclesiasticall Censures which I meddle not with together with the â—â—â—â—my which they purchase sometime with outward laâ—â—â—â—iousnesse from the report of them which iudge a careâ—â—ssâ— liberty in behauiour an infallible argument of sensuality whereby some men haue béene imboldened to offer â—orâ—â— because they thought it was expected SECT XXIX Appealâ— of rape NOw let vs consider a little how these Lawes 〈◊〉 to bee put in practice if any virgin widdow or â—â—gle woman be rauished shee her selfe may sue an Appeale of rape prosecute the feâ—on to death and the Kingâ—â—â—â—don as it séemeth cannot helpe him If a Feme coâ—â—â—â— be rauished shee cannot haue an Appeale without her husband as appeares 8 Hen. 4. fol. 21. But if a Feme â—ouert be rauished and confent to the rauisher the husband alone may haue an Appeale and this by the Statute 6. Rich. 2. cap. 6. The husband that this Statute speaketh of which may sue the Appeale must be a lawfull husband in right and possession for ne vnques accouple in loyall matrimony is a good plea against â—im 11. Hen. 4. fol. 13. So doth Iustice Stanford affirme the booke to proue without question and that the Law is so too where Appeale is brought by Baron and Feme Brooke abridging the case 11. Hen. 4. séemeth to incline to the contrary opinion The case at length is thus Thomas Hausegle sâ—â—th Appeale de rauishment sa feme against Thomas V. and others according to the Statute 6. Rich. 2. reheaâ—â—â—â—â— in his Declaration the order of the Statute and that they had rauished her against the forme of the said 〈◊〉 The Appellâ—â—â— said the Plaintiffe had another Writ hanging returnable the same tearme of the same rape and because the Writ was not serued he had obtained a sicut alias Ergo this Writ of the same nature should abate Haâ—â—said he might pursue which Writ â—e would And by their writ a Praecipe quod reddat or an Assise for the like cause shall abate for of one land a man cannot haue two recoueries But in this case it may bee there were two rapes at seuerall times c. and also the first Writ was not entred in the roll nor the â—â—cut alias in the Record then the Declaration was challenged as insufficient because it was â—elonice rapuit and not carnaliter cognouit but to that it was answered that felonious rape implied carnall knowledge for rape without such knowledge is buttrespasse Another exception to the Declaration was that two had rauished as principall c. which Rolfe said could not be therefore the Plaintiffe ought to haue declared against one as principall and against the other as accessary or
Writ because it was not felonice rapuit but the Defendant durst not stand vpon it but pleaded ouer rien culpable for rapuâ—t implyâ—th felony But in euerie Appeale of rape if the Writ want the word rapuit it shall abate though it haue words amounting to as much as carâ—â—â—â—ter cognovit or any such â—tâ—â—e 9. E. 4. â—ol 26. SECT XXXIV Pleas to the Action THough it bee true that where â—â—â— shall bee charged with rape in Appeals or otherwise it â—ust be by the Word rapâ—it and â—â—t carnaliter cognouit onely yâ—t by Bracton it is a gâ—â—d plea in Appâ—ale of rape to say Non abstullt eâ—â—ucellagiumâ— suum quâ—a aâ—â—uâ—h vâ—â—go est veâ—iâ—â—â— probabâ—â—uâ— pâ—â— aspâ—câ—â—â—â—oâ—poâ—iâ— peâ— quatuoâ— legales femâ—nas iuratâ—s de veâ—itate dicenda quaere Stamford saith it is a good plea for the Defendant though hâ—e lay with the woman yet hée did not carnally know her for the force of the Declaration resteth in that And by â—â—iâ—ton fol. 45. If at the time of rape supposed the womâ—n conceiue childe there is no rape for none can concâ—â—â—e without consent Also by Bracton it is a good plea to say that before the rape supposed he kept the Plaintiffe and vsed her as his Concubine But by the same Bracton it was no plea to say she was another mans Concubine or Harlot Quia licet meretâ—â—x fuerit aâ—ea cerâ—â—â—â—â—c â—emporis non fuit cuâ— nequiâ—iae eius reclamando consentiâ—e noluit And note if she which is rauished assenâ— for feare of death at the time of the rauisâ—â—ent â—t â—s a rape against her will notwithstanding such consent for assent must â—e voluntarie per curiam 5 E. 4. Crompton 44. SECT XXXV A question what is meant by rauishment with force in Wâ—st 2. cap. 34. STamford leaueth it doubtfull and to be learned what the difference is betwixt rauishment with force and without force M. Lambard thinketh the word to be but declaratorie signifying all rauishment to bée forcible And it is true that no woman is rauished in this sort only by parroll or influence of Rhetoricke But in mine opinion the Statute must néeds intend two kinde of rauishments because it maketh one more odious than the other and propoundeth death ineuitable to him which rauisheth with force though the woman forgiue hâ—â— and consâ—â—â— to him A more detestable villany I thinke therefore was meant in this parase of him which being himselfe ouercome with concupisâ—â—nce ouercommeth a woman hand to hand by length of breath and strength of his owne sinewes You shall vnderstand thâ—refore that about those dayes there was an Appeale of â—orâ—e in vse as it were against the rauishers yeomen of the stirrâ—p viâ— against him or them which were holders and assisters to the principall carnall oppressour as appeareth about the end of the 28. Chapter of Bracton Lib. 3. Eadem A. appellat C. quod eadem die eodem anno c. quo praedict B. eadem hora dum idem B. abstulit pucellagium suum fuit idem C. in fortia ita quod tenuit eandem A. dum idem B. absâ—ulit pucellagium suum vel concubuit cum ea postquam c. Such fellowes were termed appellati de fortia and they which take such Coadiutors might verie well be called rauishers with force and aid of all other most hatefull in iudgement of all indifferent honest women SECT XXXVI De muliere abducta cum bonis c. THis Statute toucheth also the most couetous rauishment that is when a mans wife and his goods are rauished together so much against womans minde that she is loth to leaue either money or plate behinde her and because some men vsed in those dayes to let their goods goe lest otherwise they might perhaps call their wiues home againe the suit is giuen to the King if the husband neglect it 44. Assi p. 12. A man brought a Writ of trespasse against a Knight and his Lady and two others in Banke le Roy for taking away the Plaintiâ—â—es wife and his goods and they all came by Capias in custodie of the Viscount and the Plaintiffe counted of rauishment of his wife and his goods carried away c. a protection was shewed forth for the Knight and his wife and allowed and Iudgement was demanded of the Writ because the Plaintiffe and his wife were diuorced Iustice Kniuct said that though the woman were dead the husband might haue the Action of rauishment notwithstanding aâ—d so is it if they were diuorced For he was not to recouer his wife by the Action nor any thing else saue dammages for the trespasse Then it was said the diâ—orce was causa frigiditatis Kniuet said the weather might wax warmer with him Il poet recouerer son nature ouerer come home reauer sa feme and therefore answered to the Writ Then Iudgement was asked againe of the Writ because it was against a man and his wife and one woman cannot rauish another sed non allocatur for a woman may be assenting or aiding to any rauishment therefore the Defendants pleaded non culpable The verie same or verie like case is againe 23. E. 3. 23. Sée 21. H. 7. fol. 13. The opinion of Finâ—ux that it is lawfull for a man to trauell with another mans wife to London at her request and to carrie her behinde him when shee will ride to sue a diuorce or a reuersment of Outlawrie or for a warrant of the peace against her goodman Yaxley was of contrarie opinion And where the partie which taketh another mans wife cum bonis c. is indited at the Kings suit of trespasse onely the Indictment is Quod vi armis Mariam vxorem cuiusdam A. B. apud S. rapuit â—am cum bonis cattallis viz. c. ipsius A. B. cepit abduxit â—a â—idem A. B. adhuc iniuste detinet contra pâ—cem c. contra formam statuti c. So likewise at the husbands â—â—it the Writ is Attachias B. quod sit coram nobis c. ad respondendum prefato A. quare vi armis vxorem prefati A. apud N. rapuit â—am cum bonis cattallis c. ad graue dâ—mnum contra formam statuti c. as appeares by Fitzherbert So that you see the differâ—nce betwixt rapuit in Trespasse and in Appeale or Indictment of felony Presidents whereof are in M. Laâ—â—bards Booke and M. Cromptonâ— SECT XXXVII The case of Elizabeth Venor NOw that women may learne to stand vpon their owne guard partly and not trust altogether to defence or courtesie of Lawes which are not more rigorously penned than sometime put in execution against them let them markâ— this caâ—e Lands were giuen in â—aâ—le to William Veâ—or and to Elizabeth his wife and to the heires of their two bodiâ—s the remainder to the said Elizabeth and the heires of her body the remainder to Robert Babbington in taile the remainder to the right heire of T. S.
impedit the Plaintiffe may haue one writ to the Bishop and another to the Sheriffe to enquire of dammages Likewise 14. H. 8. fol. 25. in a plea of dower vpon confession the demandant recouered Iudgement and after Iudgement auerring that her husband died seised shee prayed a writ to enquire of dammages habuit for if the demandant in dower will recouer dammages shee must euer surmize that her husband died seised though the Tenant confesse the Action or plead but onely to the Writ and in the end of her Demise shee may maintaine the Writ for sur plee briefe the dying seised appeares not without surmise c. 22. H. 6. fol. 44. SECT X. Deteiner of Euidence BY Perkins none may deteine Dower for deteining of euidence but only the heire to whom the euidence belongeth and the heire when he pleads must shew what the euidence is c. And they must concerne the lands discended vnto him whereof Dower is demanded for hée may not deteine Dower of land which the Charters concerne not or for Charters concerning his purchased lands or those whereof he hath no seisin Aliter if they concerne some reuersion descended But if the heire come in vouched to warranty by the Barons feofée hée cannot plead this Deteiner of Euidence because in verity the land is another mans to whom most rightly the Charters belong But one copercener may haue this plea after partition against her mother or other Demandant in Dower though the euidence concerne the other parceners and her all alike see 41. Titulo Dower in Brooke If a widdow that is with child deteine euidence against her husbands daughter and heire or other heire collaterall it shall bée no sufficient plea to delay Dower 1. Perkins 70. 71. 18. Hen. 8. fol. 1. The heire said the Demandant deteined a bagge ensealed with the euidence concerning the land which if hée would deliuer hee was ready to render Dower bone plee per Curiam 33. Hen. 6. fol. 51. The Tenant pleaded for part of the land whereof Dower was demanded non tenure for another part detinue of Charters for another part Ioyntenancie which his father for a fourth part demanded view but it might not be granted because he tooke notice to himselfe of that part by pleading to the rest And the Plaintiffe to his plea of suruiuor pleaded his release made to the father her husband in his life time Issiâ—â— seisi que Dowre c. The plea of Euidence detained as Littleton said went to the whole action quod fuit negatum vâ—de Brooke â—y Dower 4 but he was forced to shew what euidence he deteineth viz. a speciall Charter 4â— Ed. 3. The Tenant pleaded a withholding of Euidence certaine conceâ—ning his inheritance and shewes what Et qâ—e il aâ— estre toures temps prist si c. the woman made title to two deeds by gift to her husband and her selfe and for the other Euidence shee said whereas the Defendant claimed as brother and heire to her husband shee kept it to the vse of her child si ouâ—sqÌ„ soit inseint qÌ„ serra â—eure si dien luy done nostre and issue was taken whether she were insâ—int die obitus mariti not whether shee were inseint per son baron die obitâ—s And that booke of 41. Edw. â— is cited for law in Sir Edw. Cokes 7. Rep. fol. 9 that a woman may deteine Charters for the heire in ventre â—a mere And 22. Hen. 6. fol. 16. It was agréed that deteiner of Euidence is no plea in an Action of Dower vnlesse it concerne Inheritance discended Et siâ— videtur ibidem saith Brooke that if it concerne inheritance though it be not the very land whereof Dower is demanded the plea is good 9. Edw. 4. to plea of Charters deteined the Demandant answered veies cyâ—le fait prâ—â— dower the Court reading and perceiuing it to bee the déed c. gaue iudgement for Dower 14. Hen. 6. fol. 4 The Tenant pleaded detinue of a chest with two fines and other Charters ê‘ Martin Iustice if the Chest were open he ought to declare euery déed specially by it selfe and so it is likewise in action of detinue for a Chest open with euidence quod curia concessit 2. Hen. 7. fol. 6. Is set downe the reason why the certainty of euidence deteined must bee showne viz. That the Iury may be more able to make their verdict and the Court to iugde to whom they appertaine for if they belong to the Defendants purchase he is put to a Writ of detinue And 6. Eliz. Dyer 230. sée a man seised of foure acres soccage land and of one déed or Charter concerning those lands by his last will in writing deuised thrée of his acres to his youngest sonne in fée the fourth acre to his wife for life the remainder to a stranger in fee hâ— died his wife got the déed entred into her acre and the sonne into the three acres deuised to him the woman brings a Writ of Dower for a third of these thrée acres The sonne pleads detinue of the Charter which if she would deâ—â—uer he is and alwayes had beene ready to render Dower shee shewed the whole cause by way of replication vpon that the other side demurred It seemeth saith Dyer that this plea serueth for none saue only the Barons heire and for no land but that which is descended And not for the heire himselfe if he come in by voucher or â—s Tenant by receipt in default of Tenant for life Where hee is no more but tenant per admittance for such a one cannot say that he hath béene toutes temps prist a render Dower si c. Neither can gardian in chiualry haue this plea for he cannot haue a writ of detinue of the heires euidence And this plea is a bar for no lands but those which the Charters deteined do concerne 22. H. 6. Where Newton saith the reason of this barre is because the euidence being séene and looked into may yéeld matter to barre the Demandant of her Dower for such lands therefore as the Charters doe not touch Dower shall be granted of them this plea notwithstanding Also certainty must euer bee alleaged in this case if the euidence bee not in some bag boâ— or chest sealed or locked vp And note the Defendant supra was not named heire by the demandant neither had he inabled himselfe to this plea as heire therefore the Court might take it indifferently As in a quare impedit if the incumbent bee named Clericus the Court takes him for a Disturber if hee inable not himselfe as incumbent or person impersonée Another fault was found in this Tenants conclusion of his plea because hee said vncoâ—e prist a render Dower but in very déed hee relied not againe on the condition if the Demandant would deliuer the Charter according to the ancient booke of entries And at the last iudgement was giuen pro dote Sée Sir Edw. Cokes 9. Rep. in Anna Beddingfelds case 1.