A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

APPEAL.

Appeal cometh of the French word Appeller,* 1.1 that signifieth to accuse or appeach, it is an accu∣sation, or of appeller to call, because appellans vocat reum in judicium, He calleth the Defendant into judgement.

There are three sorts of Appeals.

• 1. Of wrong to his Ancestor, whose Heir male he is, and that is only of death.
• 2. Of wrong to the Husband, and is by the wife* 1.2 only of the death of her Husband to be pro∣secuted whilest she is a widow.
• 3. Of Wrongs done to the appellants themselves, as robbery, rape, and may∣hem.

The Law prohibireth not counsell in an ap∣peal,* 1.3 as it doth in an Indictment, became there is no appeal brought, but that of common pre∣sumption, the appellant hath great malice against the Appell••e. As when the Appeal is brought by the wife of the death of her Husband, or by the Sonne of the death of his father, or that an appeal of robbery is brought for stealing of goods: but when that man is indicted at the Kings suit, the King intendeth nothing but justice with fa∣vour.

If he that is attainted of Treason or Felony be slain by one that hath no authority, in this Case his eldest son can have no appeal, for he must bring his appeal as Heir; which being ex provisie∣ne hominis, he loseth ••▪ by the attainder of his fa∣ther, but his wife shall have an appeal, because she is to have her appeal as wife, which she re∣maineth, notwithstanding the attainder, because maris & faeminae conjunctio est de jure naturae, and therefore ••s indissoluble. The reason why a wo∣man hath appeal de morte viri, is because by his death she is thought less able to live and main∣tain her self; if she marry again, her appeal is* 1.4 determined, though the new married Husband be dead within a year and day after his death that was slain. The appeal must be within the year and a day after the Deed, Cook 4 Rep. Cases of Ap. &

Indict. It shall be brought within a year after the stroke, and not the death, Stamford.* 1.5

An appeal of Mayhem is in manner but a tres∣pass, for he shall recover but damages, yet the in∣dictment shall say quod felonete mahemavit.

Notes

• * 1.1

  Cook on Lit. l. 2. c. 11. sect. 180. Cook on Lit. l. 3. c. 8. sect. 500.
• * 1.2

  Cook ubi supra.
• * 1.3

  An Appeal is called but a suit of revenge, ergo not much sa∣v ured. 11 H. 4. 1••. Dr. and Student. c. 48.
• * 1.4

  Womans Lawyer. 8 H. 4. 18. Ter••tes of Law.
• * 1.5

  T. of Law. T. of Law.