Bracton: Thorne Edition: English. Volume 3, Page 386

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Volume 3, Page 386

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[001] court christian before such judges, judgment went against her. The replication may
[002] be made that she¹ appealed from such judgment to other judges, so that the first
[003] judgment was revoked as void, and in consequence she remained with her husband
[004] until his death and he was seised of her as of his wife. If this is proved, the woman
[005] demandant will recover,² unless [the other] can show that nothing came of the appeal,
[006] either that it was not prosecuted, or if prosecuted and judgment given for the
[007] appellant, it was reversed by other judges. If she has proof of this, judgment will be
[008] for her in the royal court, or because of difficulty of investigation let the inquest be
[009] sent to court christian.

An exception lies against a woman by reason of her silence.

[011] An exception arising from the silence of the woman-demandant may also be given
[012] the woman-tenant or the heir, the marriage being void, so to speak,³ as where the
[013] woman, though she is present in the church (or elsewhere, where she cannot be
[014] ignorant) when the banns, the three public announcements⁴ in church, are made
[015] before marriage, is then silent; though she is in truth married, she will be prejudiced
[016] if she [afterwards] claims the man as her husband.⁵ If she cannot prevail in claiming
[017] the man, a fortiori she cannot in claiming dower.⁶

If two women claim dower it does not much matter about priority.

[019] If two women claim dower, it will not much matter which first impetrated, but we
[020] must see which ought to be called actrix as against the other. It is clear that she
[021] may be called actrix who first came before the court,⁷ that is, she who first uses her
[022] writ, though she did not first impetrate, unless the other woman, by excepting, is
[023] made actrix,⁸ for just as he who alleges it is bound to prove the action, so he who
[024] excepts, either by affirming or denying, provided the negative contains an implied
[025] affirmative, [is bound to prove] the exception, [and thus] is called actor.⁸ On this
[026] matter may be found [in the roll] of the eyre of the abbot of Reading and Martin of
[027] Pateshull in the county of Gloucester in the fifth year of king Henry [the case] of
[028] Clementia of Doudeswell.⁹ When they are sent to court christian, let the tenant
[029] always hold in peace until illegitimacy is established, [that is], which of them is
[030] lawful and which not. When both are required to produce proof, one of them,
[031] though she is in truth lawful, may fail in her proof, since proof may fail though there
[032] is no absence of right,¹⁰ as where a man first marries one woman in France or in the
[033] Holy Land, or elsewhere outside the realm, and then another de

Notes

1. Om: ‘vir’

2. Om: ‘nihil’

3. ‘quasi nullo matrimonio,’ from line 18

4. ‘denuntiationes’

5. Om: ‘quia’

6. ‘dotem’

7. D. 10.3.2.1; supra ii, 293

8. Supra 371

9. Selden Soc. vol. 59, no. 267; not in B.N.B.

10. D. 26.2.30; supra 91, 186