coke b KENNS case mich James a seize of a manor hold by knight service in  capite h take to wife de facto b whohad issue c p and m in the court of  audience between a plaintiff and b defendant sentence be give that at the time  of the contract and solemnization of matrimony the party be not or one of they  be not of a age to contract and that the marriage be a nullity and a divorce  be decree and that the party shall be at liberty ad alian vow convoland after  the divorce a marry d Elizabeth before diverse commissioner ecclesiastical d  libel against a that be before the marriage contract betwixt they have marry b  whereupon process be award against b pro interest and upon due examination c  there be a sentence that the marriage between a and d be lawful and they be  sentence ad exequend species of myrtle yield to and that a be never lawful  marry to b afterward d die and then a marry e by who he have issue one  daughter f and die Elizabeth it be find by office by force of a mandamus after  the death of a that f be daughter and heir of a and that she be within age  know of the age of ten month the queen grant the wardship and custody of f to  g and e then the wife of g c pretend to be daughter and heir of a and her  husband h exhibit their bill in the court of ware against g and e surmise that  c be daughter and heir of a on the body of r his lawful wife allege that they  at the time of their marriage be both of they above the age of consent and  that they cohabit together nine or ten year before the say suppose divorce  during which cohabitation the say c be get betwixt they and pray that say c  and h may traverse the office to which g and e answer and c and h examine  diverse witness and before publication g die c and h exhibit a bill of revivor  against e and afterward c have issue king who marry l die after who death king  and l bring a new bill of revivor to revive the first suit and upon reference  to many of the judge it be resolve that the say divorce so long as it remain  in force be bind and that the say king and l shall be conclude by it the not  find a office for the say king and l disable they to traverse the office find  the bill of revivor on the bill of revivor be not maintainable S c cro James  jenk cent in the court of ware between Thomas Robertson and Elizabeth his wife  plaintiff and Florence lady Stallenge defendant the case be such Christopher  Kenn Esq be seize of the say manor of Kenn in the county of Somerset hold by  knight service in capite a knight service the court of ware c abolish stat car  c a and Henry de facto take to wife Elizabeth stowel and afterward the say  Elizabeth stowel have issue Martha mother of Elizabeth one of the now  plaintiff and afterward and p and mark in the court of audience between the  say Christopher Kenn plaintiff and Elizabeth stowel defendant the judge there  coke report a er p give sentence in these word Prtens pullable contract  sponsalia et marriage quin really copy marriage inter c Kenn et Elizabeth  stowel in those inferior in rank et svan impubertatis state eoundem or the  dawn of one another de fact habit contractetcelebrat Juisseetesse eosdeinque  Christophorum et Elizabeth tam tempore shrinking et solemvizationis dict  prtens marriage how etian continuo postea eiden marriage prtens et  solemnizationi the same dissensiss contraveniss reclamasse et reluctasse ac  eastern prtextu hujusmodi prtens draw contract sponsalia et marriage de jure  no one et no one ineffective et ineffective hunting net et hunting net infirm  et infirm et minus egicax et ine cacia Juisse et be man hasque law to be  without career et career to withhold nec non ante speech Christ Kenn et  Elizabeth stowel quatenus de facto fuer ad in turn matrimon ut prdicitur  copulate ad in turn separand et divorciand before to withhold pronunciamus to  decide et to disclose eosque to disjoin et divorciamus eisdemque Christopher  et Elizabeth freedom et liberaten ad alian vola convoland to go away to assign  et bestow per haec sententam our men definitive sive hoc finale nostrum decree  how sive quod to strike et promulgam in haec scribe etcetera and after the say  divorce the say Christopher Kenn marry and take to wife Elizabeth Beckwith and  afterward year EIiz before diverse commissioner ecclesiastical coke a the say  e Beckwith do libel against the say Ch Kenn that he before the marriage  contract betwixt they have marry with the say e stowel whereupon process be  award against the say e pro interest and on due examination the cause there be  a sentence that the marriage betwixt the say c Kenn and e Beckwith be lawful  and sentence they ad exequend conjugal yield to c and that the say c Kenn be  never lawful marry to the say e stowel and afterward the say e Beckwith die  after who death the say c Kenn marry the say Florence by who he have issue one  daughter e and die and and Elizabeth it be find by office in the county of  Somerset by force of a mandamus after the death of the say c Kenn that the say  e Kenn be his daughter and heir and that she be within age know of the age of  ten month the wardship and custody of who the queen grant to sir n Stallenge  and the say Florence then his wife whereupon the say Martha pretend herself to  be daughter and heir to the say c Kenn with her husband Silv William exhibit  their bill in the court of ware against the say sir n and Florence surmise  that the say Martha be daughter and heir of the say c Kenn on the body of e  stowel his lawful wife as she pretend allege that they at the time of their  marriage in a h be both of they above the age of consent and that they do  cohabit together nine or ten year before the say suppose divorce during which  cohabitation the say Martha be get betwixt they and pray leave that the say  Silv and m may traverse the say office to which the say sir n and Florence  answer and the plaintiff examine diverse witness and before publication sir n  die and thereupon the say Silv and m exhibit a bill of revivor against the say  Florence and afterward m have issue Elizabeth wife of the now plaintiff die  after who death the say t Robertson and Elizabeth his wife bring a new bill of  revivor to revive the first suit in which the witness be examine and this case  be refer to Fleming and coke chief justice and to Tanfield chief baron and to  Yelverton and William justice and sing and Altham baron of the exchequer and  in this case three question be move if against the first divorce the plaintiff  shall be receive so long as it remain in force to aver that they do agree and  consent to the marriage or that they shall be conclude by the say divorce the  second question be if they shall have a traverse to the say office before a  office find for they if they shall have a bill of revivor upon a bill of  revivor as this case be and the justice hear many argument before they at  several day and in several term at sergeant inn and as to the first it be  object that it appear by light lib fol and by the stat of Merton c and h b c  that the commonlaw and parliament have take notice of the age of consent of  the male to be a light sect   light a b Inst a fourteen and of the female coke  b to be twelve and therefore it be triable at the commonlaw and if in truth  the husband and wife be of age of consent at the time of the marriage no  divorce after pretend that they be within age of consent shall conclude the  party or their heir but they may prove the contrary at the commonlaw and chief  in the case at bar because it concern inheritance and the true descent coke  report a er p thereof et opinion contramatrimon never transit in remember  judge admit that they be within age of consent and after age of consent they  assent or cohabit and have issue although a divorce for impuberty and minority  of year he have yet it be but evidence and shall not conclude the party in any  action at the commonlaw to prove the assent for in as much as the divorce be  have for that cause and the cause be triable by the commonlaw the divorce  shall not conclude and h a be cite that he who plead a divorce ought to show  the cause of the divorce and if the cause be triable at the commonlaw as it be  in the case at bar there it shall not conclude but if it be a thin not triable  at the commonlaw as a precontract profession c there it be otherwise but as to  that it be resolve by all the say justice and baron that the say sentence  shall conclude as long as it remain in force b where in civil cause the  temporal court find the question of marriage direct determine by the  ecclesiastical court they receive the sentence as conclusive proof of the fact  it be a authority accredit in a judicial proceed by a court of competent  jurisdiction they receive it upon the same principle and subject to the same  rule by which they admit the act of other court a sentence of nullity  therefore and a sentence in affirmance of marriage have be receive as  conclusive evidence on a question of legitimacy arise incidental upon a claim  to a real estate so a sentence in a cause of jactitation have be receive as  evidence against a marriage upon a title in ejectment and in personal action  immediate find on a suppose marriage in all these case say CJ de grey the  party to the suit or at least the party against who the evidence be receive be  party to the sentence and have acquiesce under it or claim under those who be  party and who have acquiesce judgement of de grey CJ state trial Phillips on  evidence that edit Sinclair v Sinclair I Hagg Rep a marriage establish by the  sentence of a foreign court have proper jurisdiction be also conclusive per  Lord Hardwicke Ves but a sentence in a cause of jactitation although it be  evidence against a marriage upon a title in ejectment and in personal action  immediate find upon a suppose marriage be not like a sentence of nullity  conclusive saint Tr b and that for diverse cause the ecclesiastical Cr James b  judge have sentence the contract and marriage to be void and of no effect and  although they be of the age of consent yet if the original contract be void  and of no effect then there be just cause of divorce there be word of divorce  and separation eosd divorcimus et to disjoin and give each of they liberty ad  alian vow convoland if the marriage have be infra a nubile the ecclesiastical  judge be judge as well of the assent as of the first contract and what shall  be a sufficient assent or not and although the ecclesiastical judge show the  jenk cent a cause of his sentence yet forasmuch as he be judge of the original  matter see of the lawfulness of the marriage we will never examine the cause  whether it be true or not for of thing the cognizance whereof belong to the  ecclesiastical court we ought to give jenk cent   a roll   a Caudrys case b  credit to their sentence as they give to the judgement in our court also the  rule of their law be quod male indeed adult fmin man to be able matrimon  consentir to be able and the determination thereof do belong to their  cognizance and as to the case of h a it be true that the cause of the divorce  ought to be show because some divorce dissolve the marriage know a chain  marriage bastardize the issue and bar the wife of her dower and some a month  et thoro which do not dissolve the marriage nor bar the wife of dower nor  bastardize the issue but in the case of deprivation the c side Acc Skinn  corbet case c cause need not be show for be it right or wrong upon cause or  without cause it stand and every deprivation disable and remove the party  deprive as well for one cause as for another as long as the deprivation remain  coke a in force vide ass d Br plead Fitzherbert brief d e a e e Fitzherbert  bar Br AbbeetPrior Br plead e a h h and coke CJ cite the case coke report b er  p in e title resolution corbet case where the case be that sir r Corbet have  by Elizabeth his wife two son Robert the elder and Roger the young and die  Robert the elder be within the age of fourteen year take one Maud to wife and  at full age they cohabit together et to have carnal copulan et  cognitietreputati pro man et wife openly and afterward the say Robert put away  the say Maud his wife have no issue by her and marry one lettuce c live the  say Maud and have issue Robert by her and afterward Robert who so marry  lettuce die and lettuce declare public that she be the lawful wife of Robert  and her son a mulier for which the say Roger the son of the say sir Robert  Corbet sue in the spiritual court to reverse the marriage between Robert his  brother and lettuce and that lettuce be put to silence for which cause lettuce  sue a prohibition and in that case three pointswere resolve that if Robert and  Maud have have issue and have be unjust divorce and afterward Robert have  marry lettuce and have issue and die the issue of Robert and Maud may sue in  the ecclesiastical court to avoid the divorce for so long as the divorce stand  in force the commonlaw give so great credit f jenk cent   roll   a Candrys  case   b Ventr Cawly f to it the issue can not have remedy by the commonlaw  and note in the case no cause of the divorce do appear but because the  marriage be have when the party be infra aged nubile and in the say case of  divorce the issue shall have his suit to reverse it original in the spiritual  court for the divorce be a spiritual judgement and ought to be reverse in the  spiritual court but in the case of Corbet there be no divorce nor other  spiritual judgement that shall disable the say Roger and therefore he ought  original to begin at the commonlaw as heir and he shall have all action in the  temporal court as heir and all benefit as heir against the issue of lettuce  notwithstanding the second marriage for that be void in all law temporal and  spiritual and the action and original to bastardize any shall not be move  original in the spiritual court when no spiritual sentence do disable he but  he shall begin in the temporal court and then if need be they shall write to  the spiritual judge if general bastardy be allege and the reason thereof be  because a man may be a bastard in the temporal law and mulier in the spiritual  law and e turning as a man who be beget in adultery during the coveture be  mulier by the temporal law and bastard by the spiritual law and if a man d f n  b king t h a   b   a d beat a clerk if he sue in the spiritual court to  excommunicate he for the offence be do well but if he sue there to have amends  he shall have a prohibition it be resolve in the say case of Corbet that when  the spiritual court shall have jurisdiction the whole cause ought to be  spiritual as if a parson libel against a layman for take away his tithe the  temporal court shall have jurisdiction for it be mix with the temperality and  in the same case the matter coke b be mix by consequence with the temporal  know that the one be heir and that the other be a bastard but if the say case  of tithe he between parson and parson or between a parson and a layman if the  right of tithe come in question the spiritual court shall have the  jurisdiction c Acc Cheeseman v Hoby will drake v tailor strange Com dig  prohibition g c see the statute de circumspect to put in motion where it be  say that a Inst a mere spiritual belong to the ecclesiastical cognizance and  Linwood cap de door competent foe say mere Of such dictam because non to have  to mix of a time and where the say Act say de mortal sin Linwood expound it  and say non b Inst b understand de omni sin mortal send de tali pron   interrog  a punishment de svan naturan observe ad forum ecclesiast nam si de  ration cujuslib sin mortal understand church such to pass away temporal gladii  jurisdiction cum vix be dare cause quin ration sin to be able to bring away ad  eccles it be resolve in the say case of Corbet that when the whole cause be  original spiritual yet if after in the spiritual court they be to try a  temporal conusance a prohibition shall issue as if one parson say that the  place be within his parish and the other contrary after such matter show a  prohibition shall coke report a er p issue d Acc butler v yateman side SC lev  Com dig prohibition f d and therewith agree e et c Fitzherbert jurisdiction Br  law c h b note reader a good difference between a repeal of a sentence of  divorce give in the life of the palties and to give sentence of divorce after  the death of the party for it appear by the say case of e that a sentence of  divorce may be repeal in the spiritual court by a suit there after the death  of the party but if any of the party be dead before any divorce sentence in  the ecclesiastical court there they can sue in the spiritual court to declare  the marriage void and to bastardize the issue e Acc   Litt a morris v Webber  more Hinks v Harris salk SC comb Mod Elliot and Sugden v gurr Phill the reason  why the spiritual court can give sentence to annul a marriage after the death  of the party be say to be because the sentence be give only pro salute animre  and then it be too late pride v earl of bath and Montague salk although the  ecclesiastical court can pronounce sentence of nullity after the death of one  of the marry party yet it may punish the survivor for the offence Brownsword v  Edward Ves hem v price Mod in the temporal court there be a difference between  voidable marriage and marriage void ab beginning the former be esteem valid to  all civil purpose unless sentence of nullity be actual declare during the  lifetime of the party and consequent after the death of one of the party the  issue can be bastardize but the latter be a meretricious and not a matrimonial  union no sentence of avoidance be necessary and the issue may he bastardize  after the death of one or both the party by prove that the suppose marriage be  void ab beginning Philips v bury Skinn pride v earl of bath and Montagu Elliot  and Sugden v gurr ub sup and vide Haydon v gold salk   Litt a e for the trial  do original belong to the king court where no disability be by sentence in the  spiritual court and therewith agree ass p e and h title bastardy b that a  divorce after the death of any of the party or a sentence declaratory that the  marriage be void after the death of any of the party shall not bind they for  it be but in effect to bastardize the issue of which they have not original  cognizance as have be say vide ass p that if two be marry infra aged nubile  and after the full age a divorce he between they it dissolve the marriage for  there the wife bring a assize against her husband see bury case in the five  part of my report fol and see Cawdrys case in the same book and see bunting  case in the four part of my report fol and h h h as to the second point it be  object that the plaintiff shall have a traverse without any office find for he  for when a direct and sufficient office be find in one county by force of a  diem to shut extremum or mandamus after the death of the ancestor there shall  never be a office find again for the same land as long as that stand in its  force for otherwise the law will never have a end and therewith agree h or e e  e and therefore it will be hard to compel he to find a office for he coke a  before he can traverse where by the law he can find in such case any office it  be object that the statute of e c have remedy it if any office be requisite by  the commonlaw the word of which Act be and whereas one person or more be or  shall be find heir to the king tenant by office where any other person be or  shall be heir or if one person or more be or shall be find heir by office in  one county and another person or person be or shall be find heir to the same  party in another county c be it enact that every person grieve by any such  office shall and may have his or their traverse to the same immediate or after  at his or their pleasure and proceed and have like trial and advantage as in  other case of traverse by which it appear that the party grieve shall have a  traverse without speak of any office and proceed and have such advantage as in  other case of traverse and in other case of traverse there needs not any  office but it be resolve that as this case at bar be the plaintiff ought to  have a office find before he can traverse and as to the coke report b er p  first objection it be answer and resolve that in such special case of find a  heir he who be right heir and grieve by the office shall have a new writ of  diem to shut extremum or mandamus for he be a stranger to the say office and  therefore the office shall not conclude he and the say rule and the book be to  be intend that the same person shall not have a new diem to shut extremum or  mandamus after a office once duly find but another person shall have one in  that case to prove himself heir and therewith agree ass p f n b h b r livery  Stamf Prrog b and that there ought to be a office before he can traverse the  commonlaw therein have great reason for when the king be sure of wardship or  primer seize by the office it be not reason that any one who pretend himself  heir shall traverse the first office that the other be not heir until the king  be sure to have profit by he either by wardship or primer seize for then after  the first office avoid by traverse he may show matter to bar the king of  wardship and primer seize which will not be reasonable also at the commonlaw  interpleader lie where by two several office in one and the same county  several person be several find heir to one and the same person to one and the  same land ergo the party grieve may have a writ to find a office for he for  otherwise no interpleader can be for the heir who be first find heir shall  have a to know facias in the chancery against he who be find heir by the  second office because the king be in doubt to who to make livery upon which if  he appear and justify the second office for the trial of the privity of the  blood then he ought to traverse the first office for all the interpleading  shall be thereupon and upon the trial thereof he who be find heir shall have  livery so that it clear appear that he who traverse the office in such case  ought to have a office find for he by the commonlaw and therewith agree e  travers e Fitzherbert nat Br for he who ought to sue coke b livery ought to  have a office before be traverse otherwise of a stranger who destroy the king  title vide e traverse e b e a ass h e h e Bre as to the second objection it be  answer and resolve that the say Act of e give not a traverse to he who pretend  himself to be heir against a office find for another heir without a office  find for he for that be incident to it which be not take away by the general  word of the Act for then all interpleaders will be thereby also take away  which never be the intention of the Act but the intention of the maker of the  Act be to take away a great doubt that be at the commonlaw if one be find heir  within age by one office and afterward another be find heir in the same county  of full age if any traverse and interpleader shall be immediate or if the  traverse and interpleader shall stay until the full age of the infant to be  shake qustio as appear in our book sure e traverse e h a f n b and therefore  to oust that doubt be the stat of a e c Inst c a e make by which it be enact  that the party grieve shall have a traverse immediate aich word immediate  prove the intention of the say Act to provide for the say doubt and to give he  who be grieve in such case a traverse present but not to alter the foundation  of the traverse know office which ought to be find for the party grieve before  he can traverse and where the statute say that he shall have a traverse  present it be intend that he ought to observe all b Inst b incident to a  traverse for the office be the ground and foundation of his traverse as to the  three point it be resolve by the great part that a bill of revivor on a bill  of revivor shall not be admit f accord to the present practice of the chancery  court there may be a bill of revivor on a bill of revivor to revive the first  bill Vid attorneygeneral v Barkham hard f for the infiniteness for c   a   b    Inst hob c infinitum in jure reprobator and no writ of journey account on  journey account shall be bring but it be resolve by all that as this case be  the last bill of revivor be absurd for it pray that the coke report b er p  first bill may be revive and the first bill pray that Martha may traverse and  Martha be dead and therefore the bill of revivor ought to have pray that her  heir may traverse and so first the divorce so long as it do remain in force do  bind the right the not find of a office do disable the plaintiff to traverse  the office and last the bill of revivor on the bill of revivor as this case be  be not maintainable coke report a er p coke report volume the eight part of  the report of sir edward coke Knt Lord chief justice of the common plea of  diverse resolution and judgement give upon solemn argument and with great  deliberation and conference of the most reverend judge and sage of the law of  case in law which be never resolve or adjudge before and the reason and cause  of the say resolution and judgement publish in the nine year of the most high  and most illustrious james king of England France and Ireland and of Scotland  the XLIV the fountain of all piety and justice and the life of the law with  note and reference by John Farquhar Fraser Esq of Lincoln inn BarristeratLaw