Reports of diverse choice cases in law taken by those late and most judicious prothonotaries of the Common Pleas, Richard Brownlow & John Goldesborough ; with directions how to proceed in many intricate actions both reall and personall ... ; also a most perfect and exact table, shewing appositely the contents of the whole book.

Trinity 9. Jacobi 1611. In the Common Bench. As yet Doctor Hūfreys Case, see Hillary 8. Jacobi.

IN the Writ of Ravishment of Ward, between Francis Moore Esquire Plaintiff, against Doctor Hussey and Katharine his Wife, Robert Wakeman Clark, and many other Defendants, Dodridge the Kings Serjeant argued for the Defendant Doctor Hussey, that a marryed Wife is not within the Statute of Westminster 2. chapter 35. By which the Writ of Ravishment of Ward is given, that which be∣fore the Statute was only Trespasse, is by the Statute altered in manner and form of proceedings and in penalty of Judgment, and he thought that this Writ being formed upon the Statute doth not extend to a married Wife, for by the Statute if the Defendant, cannot satisfie for the marriage he must abjure the Realme, or shall have perpetuall Imprisonment, which goes neer to every man next unto his Life, the love of his Country and liberty, and those the makers of the Statute did not intend against a married Wife, and he grounded his argument upon these words of the Statute, by which it appears that the makers of the Statute; did not intend any person which had no property in any Goods nor power to make sa∣tisfaction.

For first the Statute provides, that if he be able to make satisfacti∣on, that then he should satisfy, if not that then he shall abjure the Realme, by which it appears that the Statute intends those that have property, and by possibility may satisfy, but a woman cannot, for her marriage is a gift of all her goods personall to her Husband, see for that Fox and Girtbrookes Case Commentaries.

Secondly, The Statute provides new form of proceedings, for if the Ward or any of the parties dy hanging the Writ, the Writ shall not abate, but it shall be revived by Resummons, by or against the Executors of him that is dead, by this it appears that he which hath no power to make Executors, shall not be intended to be within the Statute, and a married Wife cannot make a Will, and by consequence cannot make Executors, see Coke 6. a. Forse and Hem∣blins case, 3 Ed. 3. Devise 13. 4 H. 6. 6. and if the Executors have no assets, then the statute gives remedy against the Heir.

Thirdly, The Statute intends to give action against him which may have possession of the ward, the which a married Wife cannot have, for her possession is to the use of the Husband, and by the words of the statute, he against whom the Action is given ought to be made Fidei possessor, and to the objection, that though that the Wife married cannot by any possibility have sufficient to make satis∣faction

according to the intent of the statute, yet if the Husband hath sufficient, he shall answer for his Wife, as in 48 Ed. 3. 26. and 17 H. 6. A married wife shall be attached by the Goods of the Husband, he saith that there the reason is, that the Wife is answe∣rable by the Husband, but this is only to make him to appear, but he against whom the action is given, by this statute ought to have property, and in such cases a married Wife shall not be punished, as in the same Parliament Westminster 2. chapter 25. Is provided, that if a Disseisor faile of Record that he shall be imprisoned, in Assise, for this is the speedy remedy, but if a married wife pleads a Record and failes of that to the Jury; she shall not be imprisoned, though that the Assise was brought against the Husband and the Wife or a∣gainst the Husband, and the wife is received, see 1. 3 Ass. 1 44 ass. 3. 17. as. 19. 11 H. 4.

Also the statute of Conjunctim Feoffatis, fol. 99. Which was made in the time of the said King Ed. 3. in which time the statute of West∣minster 2. was made, and is contemporary with the same statute, by which it is provided, that if any plead Joyntenancy, which is found against him in the Assise, that he shall be imprisoned by the space of a yeare, and 16 Assise 8. Husband pleads Joyntenancy with his wife, and maintaines the Exception which is found against them, and resolved that the Wife should not be imprisoned by this statute, 21 Assise 28. 31 Assise a. accordingly, and he said there was not any president nor Book of Record, by which it appears that a Writ of Ravishment of Ward, was maintained against a marryed Wife, for Ravishment after the Coverture, but for Ravishment before the Coverture, see 6 and 8. Ed. 3. and to the Objection that the Plaintiff hath election if he will have the sufficiency come in question, may but admit the Defendants to be sufficient, and then the impri∣sonment, nor the abjuration shall not be inflicted, as it seems to be some opinion, 8 Ed. 3. 52. and to that he saith, that the admittance of the parties cannot alter the Law, for if it were not the intent of the makers of the Statute that this should extend to the Wife, the admit∣tance of the parties will not make that extend over the provision of that, also it seems to him that the Verdict is not perfect, for that it is not fonnd by whom the VVard was married, but only that he ap∣peared marryed, and it ought to be without the consent of the Plaintiff, and for that it might be that he was marryed by the Plain∣tiff, and then there is no cause of action, nor to have the value of the marriage, and it appears by 22 R. 2. Damages 130, that they ought to inquire by whom he is marryed, and also the value of the marri∣age, and if it doth not appear whether he be married or not, then the Verdict shall be conditionall and the Judgment also, and all the Presidents are, he appears married without the assent of the Plaintiff,

and so he concluded, and prayed that the Judgment might stand: Harris Serjeant for the Plaintiff prayes Judgment, and he supposed that it is in the choyce of the Plaintiff what Judgment he would have, for he ought to have Dammages and the value of the marri∣age, and it remaines in the discretion of the Plaintiff, what judg∣ment he will have (that is) upon the Statute, for to have the cor∣porall punishment, or allow the Defendants to be sufficient, and so to have judgment for the Damages, and the value of the Marriage, without any Imprisonment or Abjuration; as in 29 Ed. 3. 24. and 8 Ed. 3. 52. where the question was demanded of the Plaintiff, and in 22 Rich. 2. Damages 130. Hankford demanded the question, if the Jury ought to inquire if the Defendants were sufficient or not, and it was resolved that they need not; and in 34 H. 8. Trinity, Rot. 347. there is a President accordingly, where the Husband and the Wife were found guilty; and the Action was founded upon the Statute, and Capias awarded against them both, and to the fayling of the Record, it is reason that the Wife should not be imprisoned, for the Pleas are the Pleas of the Husband and his acts, and in the 11 H. 4 51. and 21 Assis. 4 in Assise the Wife was received, and voucheth a Record, and failed, and no judgment upon that against the Hus∣band, and the Wife was imprisoned; and so upon Allegation of Joyntenancy, the Wife was imprisoned; and so he concluded, and prayed judgment for the Plaintiff; and at another day the Case was argued againe by Montague the Kings Serjeant for the Defen∣dant, that a marryed Wife was not within the Statute of Westminster 2. Chap. 35. And he sayd, that the true course for understanding the Statute, is to consider three things:

First the Common Law before the making of that Statute:

Secondly the mischeife that the Statute intended to remedy:

Thirdly against what persons the Statute intended to remedy such mischeifes: And to the first he intended that at the Common Law, before the making of the Statute, the Remedy for Ravishment of Ward, was an Action of Trespasse, as it appeares by Fitz. Na. Bre. And then it was questioned if the Plaintiff should recover the Body without Dammages, or Dammages only without the Body. See 9. Ed. 4. 48. Ed. 3. 20. 27. H. 6. And then there was no greater punishment, nor other remedy for the taking of the Ward, then of other goods, and for the remedy of that, the Statute of West∣minster 2. chap. 35. was made, by which it is provided, that if the Ravisher restore the Ward unmarried, then the Plaintiff shall re∣cover only Dammages for the Ravishment, and not the value of the Ward: But if the Ward be married, then the Guardian shall re∣cover the value of the marriage, and if he shall not satisfie, then he shall abjure the Kiugdome, or have perpetuall Imprisonment,

and the punishments inflicted by the Statute, being so penall: Then the persons which are within the Statute are considerable, for in all penall Lawes, the persons and the penallties are the things to be considered, and to the persons this Statute saith, that one for anothers Fault is not to be punished, and he said, this is re∣ferred to Dammages, as well as to Imprisonment, and it is not a lost case, and the Plaintiff without remedy, for Action of Trespasse lies against the Husband at the Common Law, for, for all Tres∣passes at the Common Law done by a married Wife, the Husband shall be punished by payment of the Dammages and costs which are recovered: See 14. H. 8. and 9. Ed. 4. But to the Statutes which are penall and inflict corporall punishment there otherwise, and as the Statute of 23. Eliz. made against Recusants for not re∣sorting to Church, should forfeit twenty pounds for every moneth; and resolved that this shall extend to a marryed Wife, and for that the Husband shall be lyable to action: But by the third of Jacobi, there is speciall provision, that the Woman shall not be subject to twenty pounds a moneth, but other punishmrnt provided for her; and he supposed that where a statute gives Imprisonment and Dam∣mages, and a marryed Wife offends the statute, and shall be impri∣soned, but the Husband shall not pay the Damages, as in 8 H. 8. 18. Upon the statute of Westminster, a Woman was Imprisoned for false appeale, for the death of her Husband, who was brought into the Court and living; and in the 11 H. 4. 54. It is marvell that the statute of Westminster 2. gives the action to the Heire, insomuch that Interest appears to the Executor: And for that Hill saith, That the statute was not made by those which were skilled in the Law, but he spake ill, saith the Reporter: Also the words of the statute, If the Ravisher cannot satisfie, he shall abjure the Realme, or have perpetuall Imprisonment, and the Wife cannot, by any possibility; make satisfaction, for she cannot have any Goods; so as this Case is, the statute would make perpetuall separation, either by ab∣juration or perpetuall Imprisonment, if this shall extend to a mar∣ryed Wife, as in 6 H. 7. was the question, whether a marryed Wife shall be Attached for that, and she had no Goods, as it is 48 Ed. 3. 2. the Sheriff returnes (Nihil) against a Monk, for that that he had no Goods, for all his Goods are the Goods of the Abbot, and it is impossible that a marryed Wife should have any Goods, and the Law doth not compell to impossible things: See 3 Ed. 4. 4 H. 6. Also the Statute saith, That if the Ravisher dye, hanging the Writ, let the Law proceed against hi•• Executors by resummons, and a marryed Woman cannot make Executors; and to the like cases, he thought that a marryed Wife was not within the Statute of Offen∣ders in Parks, and this gives the same punishment that the Statute

gives, as it is resolved, 13 Assis. So if a marryed Wife fayle of a Record in Assise, she shall not be imprisoned, and the Husband is joyned onely for conformity, and for no other cause; and to the President of 34 H. 5. which hath been cyted here against the Hus∣band and Wife, and Judgement by default against both, and upon this, Capiatur is awarded against them both, but this is onely for the Imprisonment but not for the Damages; and also this Case dif∣fers from that, for here the Husband is found Not guilty: Also it seems that the Book of Entrys, 366. 15. lyes against Husband and Wife, and there they both plead, but if the Wife onely be condem∣ned, the Husband shall not pay the Damages recovered against her, 44 Ed. 3. 25. As a Lease is made to the Husband and Wife, the Hus∣band makes waste, and an Action of waste is brought against them both, and the Husband dyes, and the Writ abates, for the wrong dyes with him, and the Wife shall not be punished; and so prayed that the judgment might stay, and Doctor Hussey not punished.

Hutton Serjeant for the Plaintiff prayed that the Judgment might be entred, and first ••ee considered the Common Law, and after that the Statute, and at the Common Law hee a∣greed that a Trespasse lyes against the Husband and the Wife, for Ravishment made by the Wife, and in this hee should recover Damages against the Husband and the Wife, and the Husband shall be charged with the Damages, though it be but for words proceeding from her tongue, or any other Trespasse, and if the Husband make default, his body shall be imprisoned, so that it appears that there was remedy at the common Law by a∣ction of trespasse, and that the Husband was subject to that, then by consequence it was intended, that all persons which were char∣geable by the common Law shall be chargeable by the Statute, and by the action which is formed upon that, and by the common Law the Husband was chargeable, and by consequence shall be charge∣ble by the Statute; and he intends that there would be difference be∣tween actuall wrongs, and others which are come by omission, and if the VVife be the person which did the wrong, then she shall be punished as well by Statute, as she was before by the common Law, also she shal be out-lawed, and it hath been agreed that Ravishment of Ward shall be maintainable against the Husband and the wife, if they both are Ravishers, and also if the wife be Ravisher before mar∣riage, and after takes a Husband, the Husband shall be charged with the damages, and his Body shall be imprisoned, and by consequence shall be abjured, also shee may make an Executor by the con∣sent of her Husband, but admitting that she could not, then the remedy is given against the Heir, and she shall be within this Sta∣tute as well as other Statutes made in the time of the said King, as

the Statute of Westminster 1. 37. And shall be a Disseisor with force, and shall be imprisoned, whether the Husband joyn with her or not, as it is adjudged 16 Assise 7. for all Statutes which provide for actu∣all wrong, a married VVife shall be intended within them, as it is 9 H. 4. 6. But the pleading of Joyntenancy, there the Plea is the act of the Husband, and so fayling of Record, upon the Statute of 34 Ed. 3. as it is 16 Assise 8. for the Husband propounds the excep∣tion, but if the VVife propounds the exception, then she shall be within the Statute and shall be imprisoned, 21 Assise: So if a married VVife make actuall disseisin with force she shall be imprisoned, 9 H. 4. 7. b. 8 Ed. 3. 52. 22 Ed. 2 Damages 20. 27 H. 6. Ward 118. And so the President, Trinity 33 H. 8. Rot. 347. in a case between Thomas Earle of Rutland against Lawrence Savage and his VVife in Ravish∣ment of Ward, at the Nisi prius the Defendants make default, and the Judgment was, that the Husband and the VVife should be taken, and upon that he inferred, that the Husband should be subject and charged with the damages, and so it is taken upon the statute of 35. Eliz. That the Husband shall be charged with Debt for the Recu∣sancy of the VVife, and shall be imprisoned for the not payment of it, as to the verdict it seems that this is good, and it shall be inten∣ded the VVard was marryed by the Defendants, as in 33 Ed. 3. Ver∣dict 48. It is found by verdict, that Mulier enters, and resolved that this shall be intended in the life of the Bastard, or otherwise it is nothing worth, and in Fulwoods case 4 Coke, the Jury found that the Defendant acknowledged himself to be bound, and that shall be intended according to the statute of 23 H. 8. and so here though that it be not found, that the VVard was married by these Defendants, yet it shall be so intended, notwithstanding that no∣thing is found, but only that he appeared married, and so he con∣cluded and prayed Judgment for the Plaintiff. This case was sol∣lemnly argued this Tearme by all the Justices, that is, Coke and Wal∣mesley, Warberton and Foster, and upon their selemn arguments, Coke and Walmesley were of opinion that a married wife is not with∣in the statute, and Warberton and Foster were of the contrary opinion, and so by reason of their contrariety in opinion, the Judgment was staid.

Notes

• Harris.
• Montague.
• Hutton.