William, the Heir of William, against Gwyn
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 601
COURT OF KING'S BENCH
[42] 4. william, the heir of william, against gwyn. Easter, 20th of King Charles the 2d, Roll 260. Our lord the King has sent, to his justices of his Great Sessions in the county of Brecon, his writ close in these words, to wit: Charles the 2d, by the grace of God, of England, Scotland, France, and Ireland, King, defender of the faith, &c. to our justices of our Great Sessions of our county of Brecon, greeting: because in the record and proceedings, and also in the giving of judgment, in a plaint which was in the Court of the Lord Charles the First, late King of England, our most dear father, before Sir Marmaduke Lloyd, Knt. and Walter Rumsey, Esq. late justices of our said Great Sessions, by the writ of him the said late King, between Sibil William, late Sibil Elkin widow, who was the wife of Thomas William, and Jenkin William now deceased, that he the said Jenkin should render to the said Sibil her reasonable dower, which had fallen to her of the freehold which was of the said Thomas her late husband in 602 WILLIAM, THE HEIR OF WILLIAM, V. GWYN 2 WMS. SAUND. 43. Llandevalley, Broyullis, and Crickaderne, whereof she had nothing, as it was said, manifeat error has intervened, to the great damage of William William, gent, son and heir of him the said Jenkin, as by his complaint we are informed : we being willing that the error, if any there be, should in due manner be corrected, and full and speedy justice done to the said William in this behalf, do command you, that if judgment be given thereupon, then you send to us distinctly and openly, under your seal, the record and proceedings aforesaid, with all things concerning the same, and this writ, so that we may have them in five weeks from [43] the day of Easter wheresoever we shall then be in England, that the record and proceedings aforesaid being inspected, we may cause to be further done thereupon, for correcting that error, what of right, and according to the law and custom of our realm of England, ought to be done. Witness ourself at Westminster, the 16th day of February in the 17th year of our reign. The record and proceedings, of which mention is made in this writ, and all things concerning the same, we send to our lord the King, at the day and place within contained, to this writ annexed, as within we are commanded. The answer of Sir Richard Lloyd, Knt. and Arthur Trevor, Esq. the justices within named. Breconshire to wit. The Great Sessions of our lord the King of the county of Brecon, holden at Brecon, in the county aforesaid, on Monday the 19th day of September, in the 12th year of the reign of our Lord Charles the First, late King of England, &c. before Sir Marmaduke Lloyd, Knt. and Walter Kumsey, Esq. Justices of His said late Majesty, of his said Great Session of the said county.-Charles, by the grace of God of England, Scotland, France, and Ireland, King, defender of the faith, &c. to the Sheriff of Breconshire greeting: command Jenkin William, that justly and without delay he render to Sibil William, widow, who was the wife of Thomas William, her reasonable dower, which falleth to her of the freehold which was of Thomas William, her late husband, in Llandevalley, Crickaderne, and Broyullis, whereof (1) she has nothing as she says, and whereof she complains that the said Jenkin (1) This is called a writ of dower wide nihil habet, and lies only against the tenant of the freehold. F. N. B. 346, 347, 7th ed.(o) The form of the writ is in the Register, 170, which varies from the writ in this entry in nothing else but the style of the Court. When a writ of dower is intended to be brought, the first step is to make out a prcecipe for the writ in this form : " Staffordshire, to wit: command A. B. that justly and without delay he render to C. D. widow, who was the wife of T. D., her reasonable dower, which falleth to her out of the freehold which was of the said J. D. late her husband, in the parish of E. [or parishes of E. F. and G.], whereof she has nothing, as she says-returnable in eight days of the Purification of the Blessed Virgin Mary." A writ is thereupon made out, which will not be valid, unless drawn in the form above mentioned; for where it was "command A. that &c. he render to E. F. her reasonable dower, which falleth to her out of the freehold which was of B. F. late her husband, ifcc. " an objection was taken to the writ, because it was not " command A. that &c. he render to E. F. who was the wife of B. F. &c.; " for she ought to be named wife of B. F. in the beginning of the writ, it being the name by which she has any claim to dower: the Court held the objection fatal, and that the omission was not supplied by the subsequent words " of B. F. her husband, &c,. " Cro. Jac. 217, Fulliam v. Harris. When the writ is obtained, the process is a summons, and grand and petit cape. F. N. B. 348. The summons is always made upon the land by two summoners, whether the tenant, or any other person for him, is there or not: and the demandant is not bound to give him notice of the summons. 2 Inst. 253. The manner of summoning the tenant, the reader may see in Dalton, Sheriff, 149, 151. Hob. 133, Allen v. Walter. And for the avoiding of such summons in real actions, without convenient notice to the tenants of the freehold, it is enacted by stat. (a) [The writ of right of dower and writ of dower unde nihil habet are excepted from the abolition of real actions by stat 3 & 4 W. 4, c. 27, s. 36. The writ of right of dower is the proper remedy where a woman is endowed of parcel of her dower, and is deforced of the residue in the same vill by the same tenant by whom ahe was endowed of part.] 2 WMS. SAUHD. 43. HIL. 21 AND 22 CAR. II. REGIS 603 delorceth her; and unless he shall do so, and if the said Sibil shall give you security to prosecute her claim, then summon by good summoners the said Jenkin, that he be before our justices of our Great Sessions of your county, on Monday in our next Great Sessions 31 Eliz. c. 3, s. 2, "that after every summons upon the land in any real action, fourteen day* at the least before the clay of the return thereof, proclamation of the summons shall be made on a Sunday immediately after divine service and sermon, if any sermon there be, and if no sermon there be, then forthwith after divine service, at or near to the most usual door of the church or chapel of that town or parish where the land, whereupon the summons was made, doth lie; and that proclamation so made as aforesaid shall be returned, together with the names of the summoners ; and if such summons shall not be proclaimed and returned according to the tenor and meaning of this Act, then no grand cape to be awarded, but alias and pluries summons as the cause ahall require, until a summons and proclamation shall be duly made and returned according to the meaning of this Act." Hence it appears that the summons and proclamation must be at least fourteen days before the return of the summons, that is, of the writ of dower, the summons being returnable on the day of the return of the writ. The sheriff, upon the receipt of the writ, makes his warrant in this form: "J. W. Esq. Sheriff of Staffordshire, to M. N. and 0. P. my bailiffs for this time only, greeting; by virtue of a writ of dower of our lord the King unde nihil habet to me directed, I command you that you command A. B. that justly and without delay he render to C. D., who was the wife of J. D., her reasonable dower, which &c. (as in the writ) deforceth her; and unless he shall do it, then summon the said A. B, that he be before the justices of our lord the King at Westminster, in eight days of the Purification of the Blessed Virgin Mary, to shew wherefore he will not do it; and that after the said summons is made, you do, at the most usual door of the parish church of the parish of E on Sunday next after the said summons, immediately after divine service is ended proclaim the same summons according to the form of the statute in such case made and provided.-Given under the seal of my office, &c. " The form of the summons, in consequence of this warrant from the sheriff, is this, " by virtue of His Majesty's writ of dower unde nihil habet to the Sheriff of Staffordshire directed, and by virtue of the said sheriff's warrant to us directed, we do hereby require and command you, that you render to C. D. &c. (as in the writ) as she alleges, and complains that you the said A. B. keep her out of the same ; and if you refuse so to do, then we do hereby summon you, that you be and appear before His Majesty's Justices at Westminster, in eight days of the Purification, to shew cause why you do not." Afterward* the sheriff returns the writ thus indorsed : " Eeceived, 1st January, 1797. Pledges of prosecution, John Doe and Richard Roe. Summoners of the within named A. B. Thomas Norris and James Syrapson; and after the aforesaid summons made, to wit, at the most usual door of the parish church of E. within specified, within which the tenements within mentioned do lie, upon the Lord's Day, to wit, the 5th day of January, in the year of our Lord 1797, immediately after divine service and sermon in the said church was ended, I made proclamation of the aforesaid summons according to the form of the statute in such case made and provided. J. W. Esq. Sheriff." It has been held, that the proclamation of the summons must be at the parish church door, though it lies in another county; Cro. Eliz. 472, Register's case; and it must appear on the return, that the land lies within the parish where the proclamation of the summons was made, and that the proclamation was made after the summons. 1 Mod. 197, Fumis v. Waterhouse. Where the lands lie in several parishes or townships, it seems that a proclamation made at the church or chapel door of one parish or township is sufficient within the Act. Hob. 133, Allen v. Walter. But a return that the...
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