| 1311.104ss |
1311 |
Common Pleas |
Dower |
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| Pasch. |
4 |
Edw. 2 |
14 |
26 SS 161-167, 42 SS 190 |
Passelewe, Edmund de Sjt (for D)
Friskeney, Walter de Sjt (for P)
Westcote, John de Sjt (for D)
Malberthorpe, Robert de Sjt (for P)
Scrop, Henry le JCP
Malberthorpe, Robert de Sjt Malm
Bereford, William de CJCP
Scrop, Geoffrey le Sjt (for P?)
Herle, William Sjt (for D)
Bereford, William de CJCP
Malberthorpe, Robert de Sjt (addressed)
Bereford, William de CJCP
Passelewe, Edmund de Sjt
Staunton, Hervey JCP Hervi
Staunton, Hervey JCP Hervi
Friskeney, Walter de Sjt Frisqen (version II) (for P)
Ingham, John de Sjt Hengham (version II)
Hampton, Richard de Sjt Hamton (version III) (for D?) |
Rus (A.) |
Agnes (Alice or Juliane de), widow & second wife of John le |
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Rus, John (I) (Robert) le, deceased husband of plaintiff
Agnes (Alice), first wife of John le Rus
Rus, John (II) le, son and donor |
C., manor of |
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| Fitzherbert Taile 22 |
same case 1311.347ss = Mich. 5 Edw. 2, pl. 100, 63 SS 278
same case 1311.344ss = Mich. 5 Edw. 2, pl. 20, 63 SS 274
later proceeding 1311.135ss = Trin. 4 Edw. 2, pl. 8, 42 SS 33-34
same case 1312.027ss = Hil. 5 Edw. 2, pl. 27, 31 SS 120-122
cross-referenced in 1312.191ss = Mich. 6 Edw. 2, pl. 12, 34 SS 43-44
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statute (ley especial) = Westminster 2nd (1285), 13 Edw. 1, ch. 1 (de donis) |
| Une dame porta son bref de douwer etc. Pass. Sire, nous vous dioms qe son baron etc. si purchaca |
56 |
Sjt Passelewe (for D): une forme taille (trans. estate tail) ove sa primere femme; La volente le donour; ceo serreit encountre sa volente expressement, 'que quidem uoluntas secundum formam don obseruetur in omnibus'
Sjt Friskeney (for P): Tant amonte qe
Sjt Westcote (for D): Nous pledoms en leye
Scrop JCP: ele voet fee taille e pus fee pure e pus fee taille, e pur ceo veez sur queux vous voletz demurrer
Bereford CJCP: (to Sjt Malberthorpe) A la comune ley dames avoient dower de cele manere de purchaz les barouns, ne ne sont unqore ostez par ley especial (statute); Par la fei qe jeo dei (by the faith that I owe, oath) (version II); si ceo soit fee taille ou fee simple; par fey (by faith, oath), nous ne
Sjt Herle (for D): encontre la volunte le donour |
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Gilbert de Clare (third of that name) was Earl of Gloucester from 23 Apr. 1307 to 24 Jun. 1314. s.v. Clare, Gilbert de, eighth Earl of Gloucester and seventh earl of Hertford, 1291-1314, in Oxford DNB. |
plaintiff's counsel wanted the Court to judge what estate plaintiff's husband had from an ambiguous charter; the Court refused to answer the counsel's question
headnote: (I) A case of Dower in which a second wife brought her writ of Dower for tenements, which her husband bought for himself and his first wife in fee tail, and she took nothing etc. (II) Where a second wife brought her writ of Dower to recover tenements, which were given in fee tail, and she recovered nothing, as appears etc.
Turner: a woman brought a writ of Dower against an infant as guardian of the land of another infant. The infant guardian appeared by his own guardian and said that the husband of the widow and his first wife purchased the tenements in demand jointly to themselves and the heirs of their two bodies with reversion to the donor in fee. He asked if the second wife could demand dower. She replied that before the statute De donis condicionalibus (1285) the husband could have alienated on the birth of issue, and that by this statute the second wife so jointly enfeoffed was not precluded from an action of Dower. The case was adjourned until the following Michaelmas when the demandant was nonsuited.
Sjt Westcote (for D): we are pleading as to law (Nous pledoms en leye); therefore you will not arrive at traversing us simply, without answering what we have said
Sjt Malberthorpe (for P): Sir, we tell you that our husband purchased; it is necessary that you (the Court) tell us what estate he (plaintiff's deceased husband) had; it is for you to judge the charter and not for us; Sir, at the common law in a case of fee tail the second wife would have dower, and the husband after issue begotten (engendrure) could alienate, and the statute does not defeat her right in the case of dower (version II)
Scrop JCP: your charter is contradictory, because it says fee tail and then fee simple (fee pure) and then fee tail, and so consider upon which point you will take your stand
Bereford CJCP: if we had adjudged the charter to give fee tail, you would have begun your pleading again, and that is not the order of pleading (ordre de plee), so choose one of the two courses (fee simple or fee tail) at your peril, and then we will judge, etc.; at common law ladies (dames) had dower of this kind of purchase by their husbands, nor are they ousted by statute (ley especial) (presumably Westminster 2nd (1285), ch. 1, de donis conditionalibus); Bereford CJCP said privately (dit 'priuatim') that she (plaintiff widow) wouldnot gain the day, when he left the Court (Turner noted that the record seemed to show that Bereford CJCP later changed his mind); by the faith that I owe, you will not have a judgment from us upon what point you would take your stand (demorir); where have you (Sjt Friskeney (for P)) seen the second wife have dower in such a case at the common law?, Nowhere I think (quasi diceret, etc.); it is for you (plaintiff) to say what kind of fee he had, fee tail or fee simple (ou taille ou simple) (version III); the way to plead is ... not to put forward the deed and say 'we claim by this deed' and leave the Court to judge it
Sjt Scrop (or Scrop JCP): that is only a error of a clerk (mesprision de clerk, clerical error)
Sjt Herle (for D): each is in the place of a peremptory (exception), but you will not arrive at taking your stand (a demurrer) upon two peremptory exceptions (deux peremptories); besides you have taken the pence etc. (vouz avetz pris les deners) (part of a proverbial saying?)
Sjt Passelewe (for D): the will of the donor; if you were now endowed, it would be against his express will
Sjt Friskeney (for P): you have no statute that defeats her right (version II)
Sjt Hampton (for D?): the lady (La dame) cannot be a party to this charter made to her husband, nor can you be a party to grant or to deny it, because in both cases you are altogether a stranger (version III)
some (Quidam) are of the opinion that where one gives a tenement to a husband and his wife and to the hers of their bodies etc. (fee tail), that a second wife will have dower etc. (Hale Rep.) |
LI MS 139
BL MS Harl. 3639
BL MS Add. 35116, fol. 143 r (version II)
CUL MS Ff. 2, 12 (version III)
BL MS Harl. 835 (version IV)
LI MS Hale 137(2) (Hale Rep. version)
BL MS Harl. 739 (Hale Rep. version) |
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Version II had 56 lines. Version III had 47 lines. Version IV had 25 lines. Hale Rep. version had 3 lines. |
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G.J. Turner, Year Books of Edward II, vol. 6: 4 Edward II (1310-1311), 26 SS 161-167 (London 1914)
G.J. Turner, Year Books of Edward II, vol. 9: 4 Edward II (1311), 42 SS 190 (London 1926)
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| De Banco Rolls, Pasch. 4 Edw. 2 (No. 185), r. 36d, Essex |
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2006-01-02 |
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