and for that by the lawes of this land if actuall deeds were not there was no remedy for such false compassing imaginations and confederacies had against any Lord or any of the Kings Councell or any of the Kings great Officers in his houshold as Steward Treasurer Controller and so great inconveniences did ensue because such ungodly demeanours were not straightly punished before that an actuall deed was done For remedy whereof it was by the same statute ordained that the Steward Treasurer or Controller of the Kings house for the time being shall have full authority and power to enquire by twelve sad men and discreet persons of the Check-roll of the Kings honourable houshold if any servant admitted to be his servant sworne and his name put into the Check-roll of the houshold whatsoever he be serving in any manner office or roome reputed had and taken under the estate of a Lord make any confederacies compassings conspiracies imaginations with any person or persons to destroy or murder the King or any Lord of this Realme or any other person sworne to the King Councell Steward Treasurer or Controller of the Kings house that if it be found before the said Steward for the time being by the said twelve men that any such of the Kings servants as is aforesaid hath confederated compassed conspired or imagined as abovesaid that he so found by the enquiry be put thereupon to answer and the Steward Treasurer or Controller or two of them have power to determine the same matter according to the law and if hee be put in tryall that then he be tryed by other twelve sad men and discreet men of the same houshold and that such misdoers have no challenge but for malice and if such misdoers be found guilty by confession or otherwise that the said offence be adjudged felony and they to have judgment and execution as felons attainted ought to have by the Common law In the statute made in the second yeare of H. 5. cap. 10. authority is given to the Sheriffe and other the Kings Justices for the better suppressing of Riots and Routs c. to raise Posse Comitatus the power of the County and the same liberty doth the Common law give in many other cases Neverthelesse may not the Sheriffe upon such authority command the person of any Nobleman to attend that service but if the Sheriffe upon a Supplicavit against any Nobleman in that case doe returne that he is so puissant that he cannot or dare not arrest him the Sheriffe shall be grievously amerced for such his returne For by the writ under the Great Seale of the King commandement is to all Archbishops Bishopsi Dukes Earles Vicounts and Barons and to all liege men of the County to be ayding unto him in that which to his office appertaineth And therefore by intendment no person whatsoever can resist the execution of the said writ of the King Also the Sheriffe may by his discretion levie three hundred men if need be to aid him in that behalfe Cromptons Justice 134. 3. H. 7. 1. Cookes 5. part 71. b. The words of the great Charter of the Forrest in the eleventh Chapter are as followeth Every Archbishop Bishop Earle or Baron comming to us at our commandement and passing by our Forrest it shall be lawfull for him to take one beast or two by the view of the Forrester if he be present or else he shall cause one to blow a Horne for him that he seeme not to steale our Deere This statute doth speake but of Archbishops Bishops Earles and Barons yet if a Duke Marquesse or Viscount which be Lords of Parliament be comming towards the King by his commandement they also shall have the benefit of this article So if the King send to any of the Lords aforesaid to come to his Parliament or send to him by writ of Subpoena to appeare in the Chancery before his Councell or send for him by his missive or by Messenger or Serjeant at Armes in all these cases he shall have the benefit of this statute because they came at the Kings commandement The same Law is if a Scire facias goe out of the Chancery or Kings Bench to a Lord of the Parliament but if such processe goe forth for a Lord to appeare before the Justices of the Common Pleas or before the Barons of the Exchequer and he commeth upon that he shall not have the benefit of the statute for he doth not come unto the King and the words be veniens ad nos and all the processe which are made out of the Chancery and Kings Bench are quòd sit coram nobis and so are the Processe out of the Star-chamber Also Lords which come to visite the new King after the death of his Father though not sent for shall have the priviledge and so note this statute is a warrant dormant to such Lords which is also to be understood as well of their returning homewards as of their comming towards the King Manwood Forrest Lawes cap. 181. Cromp Courts 167. b. Note this statute doth give licence to kill or hunt in the Kings Parks though the letter of the statute be transientes per forrestam nostram Passing by our Forrest Cromptons Court 168. Note in certain cases the Law doth give priviledge to the Sons or Brethren of Noblemen though themselves be not of that degree Vide 21. H. 8. cap. 13. 7. E. 6. cap. 5. CERTAINE CASES WHEREIN A LORD of the Parliament hath no PRIVILEDGE THe King may by his absolute power commit a Nobleman to prison durante beneplacito suo from whence he cannot be discharged by bail or mainprise or by the common writ de homine replegiando And by the same power it is if a Noble person bee committed to prison by the Kings Councell for they are incorporate to his Highnesse and do command as with the Kings mouth And the same law is if a Noble be committed to prison by the absolute commandement of the Kings Judges sitting in their places of Judicature Stamf. lib. 2. cap. 18. fol. 72. 1. as you have before when the Prince himself was committed by the chiefe Justice sitting in the Kings Bench and hee was not baileable Also if a Capias and an Exigent may bee awarded by the Iustices out of their ordinary Jurisdiction against such persons upon an Inditement for Felony or Treason as common experience sheweth The statutes of Praemunire are 27. E. 3. cap. 1. 16. R. 2. cap. 5. upon which statutes an Abbot which was a Lord of the Parliament was impleaded and he did pray priviledge to appeare by an Atturney and by the rule of the Court he could not because the statute is generall and against it but by speciall writ out of the Chancery he might And so in case where he doth pray to be received For if a Lord of the Parliament holding lands of another in Fee simple doth forbeare or with-hold to doe and pay his services due to his
or imagine the death of the Kings eldest Sonne and Heir is crimen laesoe Majestatis high treason or if a man do violate the Wife of the Kings eldest Sonne and Heir it is high treason and see the Statute 20. Hen. 8. cap. 13. And so was the ancient common Law of England and not a new Law made by this Statute Cooks 8. Part. 28. 6. But this Statute is a manifestation and declaration or publication of the ancient common Law in this Case By a Statute made in the said 25. yeer of King Ed. 3. It is declared because the people be in ambiguity and doubt of the children born in the parts beyond the Sea out of the Kings Legiance of England should be able to demand any inheritance within the same Legiance or not Whereof a Petition was put into the Parliament late holden at Westminster the 17. yeer of the raign of our Soveraign Lord the King assembled in this Parliament and was not at the same time wholly assented Our Soveraign Lord the King willing that all doubts and ambiguities should be put away and the Law in this case declared and put iâ— a certainty hath charged the said Prelates Earls Barons and other wise men of his Councâ—ll assembled in this 〈◊〉 to deliberate upon this point who with one asseur hath said That the Law of the Crown of England is anâ— alwayes hath been such that Les Enfants du Roy the children of the King of England in whatsoeâ—eâ— part they be born in England or elsewhere be able and ought to bear the inheritance after the death of their Ancestors which Law our Soveraign Lord the King the said Prelates Earls Barons and other great mâ—n and all the Câ—â—amons assembled in this Parliament do approve and affirm for ever Note These words in the Statute Les Infants du Roy have briefly set down and in a vulgar manner for loquendum ut vulgus and not in form of exquisite pleading for sentiendum ut docti and therefore ought to be understood largely Cooks 7. part 11. 6. and as the Latine word liberi is with the Civilians Bract. lib. 2. cap. 29. hath these words Item descendit jus vero beredi ubicunque natus fuerit vel in utero matris intra mare vel ultra Nec potest sibi aliquis facere heredem quia solus Deus heredem facit The right doth descend unto the true Heir wheresoever he shall be born in the Womb of his Mother on this side the Sea or beyond no man can make an Heir unto himself because God only doth make the Heir read the Statute and Cook 7. part 18. a. Where you shall see that though generally the birth place is observable yet many times Legiance and obedience without any place within the Kings Dominions may make a Subject born for though we see by experience almost in every Parliament Ambassadors Merchants and the Kings souldiers doth shew there in such causes to have their children naturalized or made denizens yet that doth proceed onely of doubt and needlesse scâ—pulosity and ignorance of the Law even as we see men that are doubtfull desire to be resolved as may appear by sundry covenants in bargaining more then necessary And by renuing of Chartes though there be no forfeitures and by suing forth particular pardons when a generall is granted by Parliament Priests and Ministers sue to the Parliament for legitimation of their children And in the Articles confirmed by Parliament touching the marriage between Philip Prince of Spain and Queen Mary a speciall proviso was to barre him from being Tenant by the courtesie of the Crown in case he should have issue by her and survive which was superfluous because the Common-Law would have denyed this last point See the Lord Cromwels Speech in the case of the Postnati fol. 36 But note that if an Alien Enemy come into this Realm and his Wife Engiish or stranger be delivered of a childe within England this childe notwithstanding his birth-place is an Alien born for want of allegeance in the Parents Ibidem King Henry did create Edward his eldest Sonne the first Prince of Wales and did give unto him the dignity and Dominion of it to be holden of him and his Heirs Kings of England and after that time the eldest sonne of the King of England hath been Prince of Wales and as incident to the State and dignity of a Prince and might make Laws and Statutes and use jurisdiction and authority as amply as any King of that Nation could do Plowden Cooks 7. part 21. 6. Vide Mills fol. 312. 126. For Wales was a Kingdom in ancient time But in a Statute made in the 12. Ed. 1. Wales was united and incorporated into England and made parcell of England in possession And note in Tho. Mylls 112. the devise of the said King was to draw the Welchmen to acknowledge the Kings eldest Son Edward of Carnarvan to be their Prince Also by another Statute made 27. Hen. 8. cap. 24. a generall resumption of many liberties and franchises heretofore taken or granted from the Crown as the authority to pardon Treason murther man-slaughter and fellony power to make Justices in Oyre Justices of assize Justices of peace Goal delivery and such like so that from thenceforth the Kings eldest Sonne hath only the name and stile of Prince of Wales but no other Jurisdiction then at the Kings pleasure is permitted him and granted by his Letters Patents as by the tenour thereof following made by King Henry the eight to Edward his sonne and heir apparent may appear Henry By the grace of God King of Ireland was before 33. Hen. 8. a Lordship and now is a Kingdom and the King of England was as absolute a Prince and Soveraign when he was Lord of Ireland as now when he is stiled King of the same Cooks 7. part England and of France Lord of Ireland c. To all Archbishops Bishops Abbots Priors Dukes Earls Barons Justices Viscounts Governours Ministers and to all our Bailiffs and faithfull Subjects greeting out of the excellency of Royall preheminence like as the beams from the Sunne so doth inferiour honour proceed neither doth the integrity of Royall lustre and brightnesse by the naturall disposition of the light-affording light feel any losse or detriment by such borrowed lights yea the Royall Scepter is also much the more extolled and the Royall Throne exalted by how much more noblenesse preeminences and honours are under the power and command thereof And this worthy consideration allureth and induceth us with desire to the increase of the name and honour of our first begotten and best beloved Sonne Edward in whom we behold and see our selves to be honoured and our Royall House also and our people subject to us hoping by the grace of God by conjecture taken of his gratious future proceedings to be the more honourably strengthned that we may with honour prevent and with aboundant grace prosecute him who in reputation
they may have their writ for their discharge to the Sheriffe Rex Vic ' Com' c. quia barones regni nostri in Assizis Iuratis seurecognitionibus aliquibus poni non consueverâ—nt ut dicunt nisi eorum sacramentum adeo sit necessarium quod sine illis varitas inquire non pâ—test Tibi precipimus quod dilectum fedâ—lem nostram A. B. in Assizis Iuratis seu recognitiâ—nibus aliquibus non ponas seu poni faciat is contra voluntatem suam sine mandato nastro speciali nisi suam presentia ob aliquam causam specialiter exigatur teste c. But it is a rule in Law vigilantibus non dormientibus subveâ—iunâ— Iura For if the Sheriffe have not received any such writ and the Sheriffe have returned any Lords in Iuries or in Assizes c. and they thereupon doe appeare they shall be sworne and if they doe not appeare they shall loose their issues 35. H. 6. 46. and in such case they must purchase a writ out of the Chancery reciting their priviledge directed to the Iustices before whom such noble persons are so impannelled commanding them to dismisse him or them that were so impannelled out of the said pannell Fitz. na br 165. This priviledge hath restraint in two cases first if the Enquiry concerne the King and Common-wealth in any necessary or important degree or busines of the Realme then this priviledge is not allowed nor taketh place and therefore divers Barons of the marches of Wales were impannelled before the Bishop of Ely and after Commissioners of Oyer and Terminer to enquire of a notable out-rage committed by Gilbert de Clare Earle of Gloucester against Humphery de Bohâ—n Earle of Hereford and Essex and his Tennant in Wales the 12th yeare of Ed. 1. where John de Hastings Edmond de Mortimer Theonald de Bordmor and others Barons of the Marches challenged their Priviledges aforesaid and much insisted upon the same but it was afterwards answered by the Courts as by the words in the Records appeareth Domino quod res ista Dom. Regem Coronam dignitatem suam tangit dictum fuâ—â— Dominum Regis Johâ—n de Hastings omnibus aliis magnatibus sâ—pra nominatis quod per statu Iure Regni per conservatione dignitatis Coronae pacis suae apponunt manum â—d librum adfaciendum idquod eis ex perte Dom. Regis in jungeretur The Baronâ— aforesaid did neverthelesse persist in the Challenge and in the end both the said Earles between whom the said outrage had been perpetrated submitted themselves to the Kings grace and madâ— their Fines Secondly this Priviledge hath no place in case of necessity where the truth of the case cannot otherwise come to light for the words of the Writ in the Register before mentioned are Nisi sua presentiae ob aliquam causam specialiter exigatur c. Register 179. If a Nobleman doe bring an Action of debt upon an Accompt in case where the Party is to be examined which is alwayes intended to be upon Oath upon the truth of his cause by vertue of the Statute of 2. H. 4. cap. 8. â—t shall suffice to examine his Artorney and not himselfe upon Oath 3. H. 6. 48. Cooke 6. part 53. And this Priviledge the Law doth give to the Nobility that they are not to be arrested by any Warrant oâ— any Justice of the Peace for the peace or for the gooâ— behaviour nor by a supplicavit out of the Chanceâ—y â—â— called because it issueth out at the supplication of the partie or from the Kings Bench for such an opinion hath the Law conceived of the peaceable disposition of Noblemen that it hath beene thought enough to take their promise upon Honour in that behalfe Lamb. Iustice of Peace lib. 2. cap. â— Fol. 17. E. 44. 24. E. 3. 33. subpenae Fitz 20. And as in civill causes the like rule doth the Court of Equity observe in causes of conscience for if the defendant be a Peere of the Realm in the Star-Chamber or Court of Chancery a Subpena shall not be awarded but a Letter from the Lord Chancellor or Lord Keeper in liew thereof and if he doe not appeare no attachment shall go forth against him For in the 14. Yeare of the late Queene Eliz. the Order and rule was declared in the Parliament Chamber and so to be inrolled in the Parliament that attachment is not to be awarded by Common Law custome or president against any Lord of the Parliament Dyâ—r 315. â— and if he doe appeare he may make his Answer to the Bâ—ll of complaint upon his Honour onely and is not compelable to be sworne By the Statute 5. Eliz. chap. 1. â—t is enacted that all Knights and Burgesses of the Parliament shall take their Oath for the Supremacy and so shall Cittizens and Barons of the Cinque-ports being returned of the Parliament before they enter into the Parliament House which Oath shall be according to the tenour effect and forme of the same Oath â—erbatim which is and as it is already set forth to be taken in the Statute 1. Eliz. provided alwayes that for so much as the Queenes Majestie is otherwise sufficiently assured of the faith and loyalty of the temporall Lords of her high Court of Parliament Therefore this Act nor a any thing therein contayned shall not extend to compell any temporall person of or above the degree of a Baron of this Realme to take or Pronounce the Oath abovesaid nor to incurre any Penalty limited by this Act for not taking or refusing the same If any Peere of the Realme be sued in the Common Pleas in an Action of debt or trespasse and Processe are awarded against him by Capiaâ— or by Exigent then he may sue a Certiâ—rare in the Chancery directed to the Justices of the Common Pleas testifying that he is a Peere of the Realme and the Writ is thus Rex c. Iusticiariâ—s suis de banco salutem mandamuâ— vobis quasi G. F. miles corum nobis ad sectam alicujus per Actionem personalem in placitatus existat talem processum non alium versus ipsum in actionem predicta scire faciat qualem versus Dominos magnates Comites seu Barones Regni nostri Anglium qui ad Parl. nostra de suâ—inicionem nostra venire debent aut eorum aliquem secundum legem consuetudinem regnum nostri Anglfieri faciendum quia pred G T. vnius Baronum Regnum in pred ad Parliamentum nostri de suminiâ—ionem regia venient record hoc vobis mandaâ—us alijs quorum interest inâ—atescimus teste est Fitz. H. N B fol. 247. For unlesse the Court be judicially certified by the Kings Writ out of the Chancery that the defendant is a Lord of the Parliament Jf a Capias or Exigent issue forâ— against him no errour neither is it punishable in the Sheriffes his Bayliffes or Officers if they execute the said processe and Arrest the body of the said
for the same Reason in the Queene being his wife Plouden 23. 1. a. Coâ—kes 8. Repl. 28. A man seised of divers Lands in Fee holden by Knights service some by Prioritie that is by ancient Feofment holden of others and some other parts holden by the same tenure of the King by posteritie the King granteth his Seigniory to the Queene and afterwards the Tenant dyeth the sonne within age in this case the King shall have the Wardship of the Body and have the Prerogative even as the King himselfe should have had 3. E. 3 4. vide etiam Stamford Prerog Reg. cap. 2. The Queene wife unto the King or widdow shall not be amerced if she be non-suited in any Action or otherwise in which cases any other subject of what degree soever shall be amerced for in this case the Queen shall participate the Kings Prerogative Cookes 6. Report 62. But the Queene shall not in all cases have the same Prerogatives that the King shall have in the same case as for Example Petition is all the remedy the Subject hath when the King seizeth his Lands or taketh away his Goods from him having no title by order of Law so to doe contrary to the opinion of some ancient Bookes as you may see Stamfords Prerog cap. 19. But in such suit shall be made to the Queene but actions against other Leiges of the King according as the case shall require for by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason he shall be Defendant or Tenant without pertaking such Prerogatives as doe appertaine to the King 11. H. 4. 64. B. Stamford Prerog cap. 22. in fine Against the King by his Prerogative Nullum tempus occurit Regi but time shall runne against the Queen H. 18. E. 3. 2. a. and aplenarty by sixe mouthes is a good plea in a Quare Imp. brought by Philippa Regina Angliae ibid. fol. 1. et 13. b. Stamford Prerog cap. 18. prope finem In 21. E. 3. 13. b. It is thus to be read note that a protection was sued forth against the Queen in a Writ which she brought and it was allowed though shee be a person exempt Neverthelesse by this short case following may bee observed that the Justices doe not easily suffer any proceedings in Law against the Queene wife or widdow but will hold with their Inmities as much as they may by Law A Writ of dower was brought against Isabel Queene of England mother of the King that then was and the Couâ—t said to the Plaintiffe the Queene is a person of dignitie and excellencie and we are of opinion that she shall not answer to the Writ but it behooveth you to sue to her by Petition and thereupon the Demandant dixit grat and shee prayed the Court to grant a continuance of her Action untill another day so that in the meane time she might sue to speake with the Queen but the Court would not agree to make a Continuanâ—e but said that upon her request they might give day precepart and so it was done for the Queenes Couneell would not agree to a continuance for thereby the Queene should bee accepted as answerable 10. E. 3. 379. The wife of the Kings eldest sonne also hath some Prerogative in regard of the excellencie of her Husband which the wives of other Noblemen have not for by the Statute of 25. E. 3. it is high Treason to violate the wife of the Kings eldest sonne and heire Dutchesses also and Countesses have speciall Honour appertaining to their Estates as kneeling and tasting and such like which things as appertaining more properly to the Heraulds then to this legall discourse I leave unto them By the Statute made 7. Iac. cap. 6. intituled An Act for the Administring the oath of Allegiance and Reformation of Women recusants if any person or persons of or above the age of 18. yeeres and degrees aforesaid must and hereafter shal stand and be presented indicted or convicted for not comming to Church or not receiving the holy Communion or Sacraments of the Lords Supper according to the Lawes and Statutes of this Realme before the Ordinary or other having lawfull power to take such presentment or indictment then 3. of the Privie Counsell of the King his Highnesse his Heires or Successours and no other whereof the Lord Treasurer the Lord Chancellour Lord Privie Seale or principall Secretary to be one upon knowledge shall require such person or persons to take the said Oath but it shall be lawfull to and for every Bishop within his Diocesse to require any Baron or Barons of the age of 18. or above to take the said Oath Also in cases of indictment of Felony or Treason a Baronesse shall have the same tryall by Peeres as doth appeare by the Statute of 20. H. 6. cap. 9. which any other Noble woman of higher degree shall have which priviledge is denyed to all of a lower degree then a Baronesse Ladies in Reputation The wife and widdow and widdow of the sonne and heire of a Duke or Earle in the life of his Father is a Lady by courtesie of speech and honour and taketh place according as in ancient time hath been permitted by the Soveraign Prince and allowance of the Herauld but in legall proceedings they are not to have priviledges nor to be named according to such sirnames of dignity but the King may at his pleasure create such men in the life time of their Ancestors into degrees of Lords of his Parliament and then the Law is otherwise If a Noblewoman of Spaine come into the Realme by safe conduct or otherwise by the King shee be stiled by such her forraign stile of dignity yet in the Kings Courts of Justice she shall not be named by such title though by common speech she be a Lady in reputation An English woman borne doth take to her Husband a Spanish or French Duke though he be made a Denizen yet he shall not beare his title of dignity in legall proceedings A German woman is married to the Earl of Northam or to other the Nobility of England unlesse she be made a Denizen she cannot lawfully claim the priviledges or title of her husband no more then she can to have dower or any jointure from him An English Woman doth take to Husband the Earle of Kildare in Ireland or if a Lord of Scotland though he be a post natus take an English woman to his wife their wives shall not participate their husbands Titles of Dignitie But if the King do create one of his Subjects of Scotland naturalized here by Act of Parliament to be Viscount Rochester within England and after by his Writ of Summons under his Great Seale doe call him to his uper House of his Parliaments and assigne him a place there in his great Councell amongst the Lords and Peeres of
remember that in our Law books I have read any thing concerning the Order of Knights with addition viz. Knight of the Honourable Order of the Garter Knight of the Bath Knight Barronet Knight Banneret But in the statute of 21. H. 8. cap. 13. where it is thus enacted Every Knight of the Garter may have three Chaplains wherof every one may purchase license or dispensation and receive have and keep two Benefices with tare of souls and they of this Order wherof I have now writ are called Knights of the sput and Butcher Knights And so it is used in the statute of 13. R 2. cap. 1. and in the statute of 3. Ed. 4. cap. 5. Hereof see Cambden 176. and M. Seldens Title of Honours fol. 336. Between Doctors of the Civill law and Knights have â—ver bin question for precedency and Serjeants at law since either of them have obtained credit in the Common-wealth as may appear by the comparison that Tully maketh between Mucius Maurena a Knight of Rome and Publius Sulpicius a Lawyer either of them standing for the Consulship In his Eloquent Oration mâ—de for Murena and many Disputes of Bardell and Bardus arguing the Case to and fro which although it be yet disputable in forreign Countries where the civill law is in credit yet here amongst us in England it is without controversie and so the precedency thereof is undoubtedly in the Knight and Sergeant at law in regard of their Callings But if they both are of equall degree of knighthood or a Serjeant at law not Knight then it goeth otherwise as by Knighthood by Seigniority and by Serieantship by the Kings Writ and degree allowed thereupon Dr. Ridley 95. and so Selden his Titles of Honour fol. 55. touching part of this Discourse not all The opinion of some men hath lately bin that Knights Lieutenants that is to say such as have beene Ambassadours to forraigne Princes or Judges within the Realm may and ought to have during their lives precedencie above men of their owne rankes after these their Offices expired and many of them doe stand strongly hereupon sub judice lis est not determined by judgement but admitting it to be so by way of Argument in that case yet all the Heraulds doe utterly deny that priviledge to the Maior of London and Aldermen or Justice of the peace who have their limited Jurisdiction of Magistracie confined within the compasse of their owne walls and divisions But touching the former they are generall Magistrates throughout the Realme and their imployment concerneth the whole Common-weale and having the publike Justice of Honour of the whole estate committed unto them do more meritoriously draw from thence a greater respect of honour according to the generallitie of their administrations and imployments which an inferiour and more confined Magistrate may have The name of a Knight is the name of Dignity and a degree as is the name of a Duke Earle c. But in all actions he shall be named Knight otherwise the Writ shall abate See Thetwall lib. 3. cap. 3. A Knight also must be named by the name of Baptisme and by his sirname as Sir Ierome Bowes Knight but those of degree honourable who are made by pattent may be named onely by their Christian name and by their title of honour as Iohn Earle of Clare and that for two causes first because of their solemne creations it is notorious et nomen dicitur a noscendo Secondly there is but one of that title of honour within England and therefore it is certaine what person he is but otherwise of Knights as it is certainely knowne in Anno 8. Edw. 4. 24. a. And Priscot Chiefe Justice saith in 32. H. 6. fol. 26. b. that if an Esquire be made a Knight hee loseth his name of Esquire but albeit a Knight may be made a Nobleman or of any high degree he still retaineth the name of Knight and so ought to be stiled in the making of all Writs See Milles fol. 81. Also if a man do recover in an action by the name of Iohn Stibes Esquire and afterwards he is made a Knight he must sue out his Scire facias by the name of Knight Vide Long. anno 5. Ed. 4. fol. 19. And this name shall not dye with him for if hee were bound by an Obligation by the name of Gentleman or Esquire and afterwards is made Knight and dyeth the Plaintiffe in the Action to be brought against his Executors must name him Knight otherwise the Writ shall abate Vide anno 7. H. 4. 7. 6. 26. Ed. 3. fol. 64. a. Thomas Ormond was attainted by Parliament by the name of Thomas Ormond Knight whereas hee was no Knight he shall not forfeit any thing by that attainder because it cannot be intended the same person for this word Knight is parcell of his name 21. E. 4. fol. 17. a. If a Grant be made to H. Knight when he is no knight it is a void Grant But if it be a Feofment in Fee with livery of seisin the livery it maketh good Vide Brock titulo Grants 50. Anno 4. H. 6. If the Plaintiffe or Demandant do in his Writ name the Defendant or Tenant Esquire when he is a Knight the Writ shall not only abate but also the Plaintiffe or Demandant may not have another writ by Iournier account Finches book 59. Vide Cooks b. part de les Reports 1. b. But by the statute Anno 1. Ed. 6. cap. 7. It is amongst other things Enacted that albeit any person or persons being Justices of Assise Justices of Goal delivery or Justices of the Peace within any of the Kings Dominions or being in any other of the Kings Commissions whatsoever shall fortune to be made or created Duke Arch-Bishop Earl Marquesse Viscount Baron Bishop Knight Justice of the one Bench or on the other or Sergeant at Law or Sheriffe yet notwithstanding he and they shall remain Justices and Commissioners and have full power and Authority to execute the same in like manner and Form as he or they might or ought to have done before the same By the statute of Anno 5. H. 5. cap. 5. It is enacted as followeth That every Writ originall of accounts personall appeals and Indâ—ctments shall be made with the addition of their Estates and Degrees c and a little after it is provided That if the said Writs of accounts personall be not according as the record and deed by the surplusage of the additions aforesaid that for this cause they are not Iohn a Stile Gent. is bound by obligation to one A. B. the Obliger is afterwards made Knight the Bond is forfeited A. B. by his Attorney draweth a note or title for an originall Writ according to the defendants degree though it vary from the originall specially as it ought to be made by the statute But the Curfitor mistaking did make the originall only according to such addition as was specified in the Obligation omitting his degree
of one and twenty yeares he shall be in ward but if the King had made him Knight in the life of his Father he should not have beene in ward after the death of his Father neither for the lands descended or for his marriage though he be within age Cooks 6. part 74. in Druries case Nobility and Lords in reputation onely THere are other Lords in reputation and appellation who neverthelesse are not de jure neither can they enjoy the priviledge of those of the Nobility that are Lords of the Parliament The sonne and heire of a Duke during his fathers life is onely by curtesie of speech and honour called an Earle and the eldest sonne of an Earle a Baron but not so in legall proceedings or in the Kings Courts of Iustice Brook Treason 2. But the King may at his pleasure create them in the life of their Ancestors into any degree of Lords of the Parliament Cook 8. part 16. b. A Duke or other of the Nobilitie of a forraigne Nation doth come into this Realme by the Kings safe conduct in which the Kings said Letters of Conduct he is named Duke according to his Creation yet that appellation maketh him not a Duke c. to sue or to be sued by that name within England but is onely so reputed But if the King of Denmark or other Soveraigne King come into England under safe conduct he during his aboad in England ought to bee stiled by the name of King though hee have not merum imperium out of his owne Kingdome yet he shall retaine honoris titulos Cook 7. part 15. b. sequentia All the younger sonnes of the Kings of England are of the Nobility of England and Earles by their birth without any other Creation and onely Lords in reputation And if an English man be created Earle of the Empire or of other title of honour by the Emperour he shall not beare the title in England and therefore is an Earle onely in reputation A Lord of Ireland and Scotland though he be a Postnatus is not a Lord in England in legall Courts of Iustice though he be commonly called and reputed a Lord. NOBLE VVOMEN ALthough Noble women may not sit in Parliament in respect of their sexe yet they are in the law Peeres of the Realm and all or most of the Prerogatives before mentioned which to Noblemen are belonging doe also appertaine to them Cook 8. part 53. But the opinion of some men hath been that a Countesse Baronesse or other woman of great estate cannot maintaine an action upon the statute de scandalis Magnatum because the statute of 2. R. 2. cap. 5. speaketh but of Prelates Dukes Earles Barons or other Nobles and other great men of the Realme and of the Chancellour Treasurer Clarke of the Privie Seale Steward of the Kings house Iustice of the one Bench or of the other great officers of the Realm by which words they conceive the meaning of the makers of that statute was onely to provide in that case for Lords and not for women of honour Crompton Justice of Peace 45. b. Also if any of the Kings servants within his Check-roll doe conspire the death of any Noble man it is not felony within the compasse of the statute 3. H. 7. cap. 13. Honourable women are of three sorts By creation by Descent or by Marriage King Henry the eighth created Anne Bullen Marchionesse of Pembrook and so may the King create any woman into any title of honour as to his Highnesse shall seem good As the King by by his Letters Patents openly read in the Parliament did create Widow the sole daughter of late Baron of Abergavenny Baronesse De le Spencer Cambden 63. 6. Noble women by descent are those to whom either the lands holden by such dignity do descend as heir and they are said to be honourable by tenure or those whose Ancestors to whom they are heires were seised of an estate descendable unto them in their titles of Dukedomes Earldomes or Baronies or those whose Ancestors were summoned to the Kings Parliament for thereby also an inheritance doth accrue to their posterities Noble women also are those who do take to their husbands any Lord or Peere of the Realme although they of themselves were not of any degree of Nobility Fortescue de laudibus legum Angliae fol. 100. Question and doubt hath been made whether if a man be summoned to the Parliament and afterwards die without issue male the dignity and title of honour may descend to the heire female and many arguments have beene made pro contra in that which at this time â— doe purposely omit because I have before discoursed thereof in the title of Barons in this Treatise Concerning the title of honour descendable to the heire female by reason of a tenure in her Ancestor there need no more doubt to be made than of offices of honour the which doe much import the publike wealth and being of estate of inheritance doe descend to the heire female if there be no heire male as the office of high-Constableship of England challenged in the time of H. 8. by the Duke of Buckingham and judged by the advice and resolution of the Judges as by a note of that case extant whereof my Lord Dyer in his Reports hath a memoriall is most evident Dyer 283. b. Kellaway 6. H. 8. 170. b. which descended to the daughters of Humphrey de Bohun Earle of Hereford and Essex as afore is declared the office of a Lord Steward descended to Blanch daughter of Henry Earle of Lancaster in whose right John of Gaunt her husband enjoyed the same The like may be said of the office of Earle Marshall which descended by an heire female unto the house of Norfolk all which offices are as unfit to be exercised by a woman as it is unfit for a woman to be summoned to the Parliament as Baronesse by writ as before is written And when the title of honour doth descend to a woman if question in Law doe arise betweene the noble woman and any other person whether she be of that degree of noblenesse or no the issue shall be tried by the Record thereof and by the Kings writ it shall be certified and not by a Jury of twelve men even as it should be in case her Ancestors had beene party Cooks 6. part 53. 7. part 15. Although the Lawes of this Realme regularly doe make all the daughters where there are no sonnes equally to inherit Lands and Tenements and to be but one heire to their Ancestor yet it is not so in the descent of dignities and titles of honour for inheritances concerning matters of honour being things in their nature entire paticipating of superiority and eminency are not partable amongst many and therefore must of necessity descend unto one and that is to the eldest daughter sister aunt or cosin female inheritable where there is no heires males that may lawfully challenge the same and so in
the Realme hee is now also a Peere of this Realme and shall be partaker with them in all Priviledges and by consequence his wife widdow and children after him 32. E. 3. 35. in le case de Gilbert Humfrevill But if an Englishman by the Emperour be made Earle of the Empire his wife shall not beare that title of Honour either according to Law or in Reputation All the Daughters of Dukes Marquesses and Earles are by custome of long time used in the Kings Houses or palace named Ladies and have precedencie and place according to the degrees of their parents and so of this custome the Law doth take notice and give allowance for the honour and decencie but neverthelesse in the the Kings Courts of Justice they beare not these titles of Honour no more then the sonnes of such Noble person may doe brothers to such Ladies Finis Nob. litatis A TREATISE OF KNIGHTS AND Matters incident to the Degree of Knighthood according to the Lawes of England THE particular kinde of services by which lands of Inheritance are distinguished be two viz. Knight service and socage vide Littletons Soccage c. 26. In ncient time Tenure by Knights service was called Regale Servitium Cooke in his Preface to his 3. Book fol. 3 a. because it was done to and for the King and the Realme and formi secum servitium as appeareth in Anno 19. Edw. 2. Title Avowry 224. 26. ass p. 66. 17. H. 4. 19. Cookes 7. part 8. a. Calvins case because they which doe hold by soccage ought to doe and performe their services out of the Realme Littleton 35. Et ideo formi secum dicipoterit quia sita capitur foris Hum. Servitiam persolvuntur ratione tenementarum non personarum Bracton fol. 36. And as Knights service land requireth the service of the tenement in warfare and battell abroad so Soccage tenure commandeth his-attendance at the plough the one by manhood defending the King or his Lords life and person the other by industry maintaining with rents corne and victuals his estate and family See Lambert Customes of Kent fol. 389. For they did thus order their owne lands and tenements one part they kept and detained in their owne hands and in them stately houses and Castles were erected and made for their habitation and defence of their persons and the Realme also Forrests and Parkes were made there for their pleasures Solace and Delight One other part hereof was given to the Nobles and others of their Chivalty reserving tenure by Knights service The third part was bestowed upon men of meaner condition and quallity with reservation of soccage tenure and in this manner the Dukes and other the Nobles with their menialls and followers dissipate to a great part of their lands viz. to their Gentlemen of quality to hold by Knights service and to others of meaner condition by Soccage tenure Gervasius Tilburiensis a learned man who flourished in the dayes of King Hen. 2. in his Dialogue of the observation of the Kings Exchequer hath in effect as followeth Untill the time saith he of King Hen. 1. the King used not to receive money of their lands but victuals for the provision of their house and towards the payment of their Souldiers wages and such like charges Mony was raised out of the Cities and Castles in which Husbandry and Tillage was not used and exercised But at length when the King being in the parts beyond the Seas needed ready money for and towards the Furniture of the warres and his Subjects and Farmers complained that they were grievously troubled by carriage of Victuals into sundry parts of the Realme farre distant from their dwelling houses the King directed Commissions ro certaine discreet persons who having a regard of those Victuals should reduce them into reasonable summes of Money the leavying of which summes they appointed to the Sheriffe taking order withall that he should pay them at the scale or beame that is to say That hee should pay sixe pence over and above every pound weight of money because that they thought that the money in time would waxe so much the worse for the wearing Cambdens Perambulation of Kent fol. 172 173. Vide Littleton libro 2. fol. 26. Note also Gervasius Tilburiensis who lived Anno 11 60. Anno 6. Hen. 2. And Cambden fol. 178. It was anciently ordained that all Knights Fees should come unto the eldest Sonne by succession of Heretage whereby hee succeeding his Ancestours in his whole Inheritance might bee the better enabled to maintaine the warres against the Kings Enemies or his Lords And that the Soccage Fee should be partable betweene the Male Children to enable them to encrease into many Families for the better furtherance in and increase of Husbandry See Cookes Preface to the Reader in his Ninth Booke Fol. 2. 6. But as nothing is more unconstant then the estate we have in Land and livings if at least I may call that an estate which never standeth even so long since These tenures have been so indifferently mixed and confounded in the hands of each sort that there is not now any note of difference to be gathered by them See Lamberts perambulation of Kent fol. 10. Et quia tale servitium formi secum non semper manet sub eadem quantitate sed quandoque praefat ad plus quandoque ad mâ—nus Ideo qualitate Regalis Sencitii quantitate fiat mentio in charta ut tenens vectu tenere possit quid quantum persolvere tentatur Bracton fol. 36. And therefore the certainty of the law in this case is That he that holdeth by a whole and entire Knights fee must serve the King or other Lord fortie dayes in the warres well and sufficiently arrayed and furnished at all points and by twenty dayes if he hold but the moitie of a Knights fee and so proportionably vide Littleton fol. 20. Aâ—no 7. E. 3. 1333. fol. 246. It was demurred in Judgement whether the 40. dayes should be accounted from the first day of the muster of the Kings Hoast or from the day that the King doth first enter into Scotland but it seemeth that the dayes shall be accounted from the first day that the King doth enter into Scotland because the Service is to bee done out of the Realme And they who hold per regale servitium are not to performe that service unlesse the King doe also go himselfe into the warres in proper person and that by the opinion of Sir William Hall Chiese Justice of the Court of â—ommon Pieas Term. Trin. Anno. 7. Ed. 3. fol. 246. but see Anno 3. H. 6. Titulo protec 2. In which case it was observed that seeing the protector who was pro Rex went the same was adjudged a Voyage Royall vide Cook 7 part of his reports and in Fitz-â—erbert Natura brevia 28. fol. 83. Also when before the statute De quia emptores terrarum made Anno 18. Ed. 4. the King or other Lord had given
he shall be out of ward and custody both for his Land and for his body vide Cook 6 part 74 a. And therfore it is provided by the statute of Magna Charta Cap. 3. Ita tamen quod si ipsâ— dum infra atatem fuerint fiat miles nihil ominus terra remaneat in custodia dominorum suorum So that although such an heir within age be made a Knight and therby to this purpose is esteemed of full age yet the Laws shall remain in the custody of the Lord till his age of 21. years by the provision of the said Act. Quere if the son and heir of the Tenant of the King by Knight-service c. be made Knight in Paris by the King of France whether he shall be out of wardship after the death of his Father or no for therby he is a Knight in England Cook 7. par a. 2. E. 4. fo b. tamen vide Cooks 6. par 74. b. Mention is only made of Knights made by the King himself or by his Lieutenants in Ireland But when the King doth make an heir apparent within age of a Tenant by Knights service a Knight in the life time of his Ancestor and after the death of his Ancestor the said heir being within age shall in this case be out of ward and shall pay no value for his marriage neither shall the Lord have the custody of the Land for in that case by the making of him Knight in the life of his Ancestor he is made of ful age so that when his Ancestor dyeth no Interest in the body nor in the Land shall invest but the Knight may tender his livery as if he were of full age and in this case the King shall have primer seisin as if he had bin 21. years old at the time of the decease of his Ancestor and not otherwise Cooks 8. part fol. 171. a. for the statute of Magna Charta doth not extend unto it For the purpose of it doth extend only when the Heir is in ward infra etatem is made Knight then remaneat terra in Custodia But when the Heir is in ward being Knight in the life of his Ancestor then the Custody cannot remain or continue which had never any inception or essence Also when the Heir after the death of his Ancestour within age is made a Knight if after tender made unto him he within Age doth marry else-where yet he shall not pay the Forfeiture of his Marriage For by the making of him Knight he is out of ward and custody of his Lord for then he ought to be sui juris and may imploy himself in Feats of Arms for defence of ths Realm and therfore may not be within the Custody or keeping of another but none shall pay any Forfeitute but when after refusall he doth marry himself during the time when he is under the Custody or keeping of his Lord. And this doth appear by the statute of Merton cap. 6. Si maritaverit sine licentia Domini sui ut ei auferat Maritagium suum c. Which Words cannot be understood when he is out of Ward and Custody no more then when he is married after his age of one and twenty years Note hereby may appear that the King may present his Grant or other Lords of the double value by Knighthood yet in such a Case presently after the Heir is made Knight after the Death of his Ancestour the Lord may have a Writ de valore Marigii for the single Cooks 6. part 74. and 75 and note Plowden f. 267. Also by the ancient Common-law of this Realm if a Villain be be made a Knight he is immediatly enfranfranchized Olanvile lib. 5. cap. 5. f. â—7 and Bracton lib. 4. cap. 198. b. Or if a Ribauld or man of base Birth and Condition had strucken a Knight he should by the ancient Laws have lost his hand wherwith he offended Britton 19. in his appeales But in France it was judged antiently that when a Lord of a villain had Knighted his villain being a Gentleman he became Free and had the Honor lawfully but if another Lord had Knighted him nothing had bin wrought by it For none could mannue him but the Lord and till Mannumission or till Knighthood had civill Freedome for his ground he was not capable of it except by the King only vide Seldens Titles of Honour fol. 318. It was enacted in Parliament Anno 6. Ioh. Regis in hec verba Rex vicecom c. Sciatis quod consensum est cum assensu Archieporum Comit. Baronium omnium fidâ—lium urum Angl. quod Novem milites per totam Angl. invenient decimum militem bene paratum equis Armis ad defensionem Regni nostri vide Cook before his ninth Book b. There hath ever bin and still is great use of the service of Knights even in civil affairs and concerning matters of Iustice as in a Writ of right which is the highest writ in the law for the trials of titles touching the inheritance of lands the Tenant is at election to have his tryall by a grand assize or else by battle if by the great assize then Wâ—â—t de magna assiza Elegenda shall be taken out And upon the return of that Writ those four Knighâ—s nominated must appear Gladiis cinctis Dyer 79. f. 103. If the Tenant make his election by Battle each parties are to choose their Champions and the Court shall award the Battle and the Champions shall be a mainprise and sworn to perform the Battle at a certain day in the Term and idem dies shall be given to the parties at which day and place a List shall be made in an even and plain ground their Squadrant that is to say every square 60. foot East West North and South and the place or Court for the Justices of the Common Pleas without and upon the Lists furnished with the same Cloths which belong to their Court at Westminster and a Barre there shall be made for the Sergeants at Law and the Robes of the Justices and Sergeants shall be of Scatlet with their Coifes as it was Anno 13. Eliz. and then was made Proclamation with three O. yes c. and the Demandant was first solemnly demanded and did not appear Wherupon the Mainprise of the Champion was demanded to bring forth the Champion of the Demandant who came to the place apparelled with red Sandalls upon his black Armour bare legged from the knee downwards and bare headed and bare Arms to the Elbowes being brought in by a Knight namely by Sir Ierome Bowes who carryed a Red Baston of an Ell long typt with horn and a Yeoman carrying the Target made of double Leather and they were brought in at the North side of the Lists and went about the sides of the Lists and then came towards the Bar before the Justices with their solemn Congies and there was he made to stay on the Southside of the place being the right side of
the Court. And after that the other Champion was brought in like manner at the South-side of the lists with like congies by the hands of Sir Henry Cheney Knight and was placed on the Northside of the Barre and two Serjeants being of the counsell of each party in the midst betweene them this done the Demandant was solemnly called againe and appeared not but made default Burham Serjeant for the Tennant prayed the Court to record the non-suite quod factum fuit and then Dyer chiefe Iustice reciting the Writ and Count and issue joyned upon the battaile and the oath of the Champion to performe it and the prefixion of his day and place did give Iudgement against the Demandant and that the Tennant should have the Land to him and to his heires for ever And the Demandant and his pledges de prosequendo in miserecordia Reginae and afterwards solemne Proclamation was made that the Champions and all other there present which were by estimation four thousand persons might depart in the peace of God the Queen Et sic fecerunt magna clamore vivat Râ—gina vid. Dy. 30. Also if false Iudgement bee given in the county in the Sheriffes Court then the Writ shall be directed unto the same Sheriffe and the writ shall bee thus viz. Henricus c. vic Lincoln ' saltum si Jo Afec ' tunc in pleno Comitat. tuo recordari fac ' loquar que est in eodem Comitatu tuo per bre ' nostri de rectâ— inter Iohannem a pretend W. B. tenent ' de vno messuagio centum acres terrae cum pertinend in Com unde idem Io acqueritur falsum sibi factum fuisse Iudicium in eodem recordo illud litter ' coram Iustic ' nostris apud Westm ' tali die sub figillo tuo et legales milites ejusdâ—m Com' illis qui record ' illi interfâ—enunâ— som ' per bonos somonon ' pred ' B. quod tunc et ibi auditurae recordum illud et habeas ibi sun ' nostra quatuor militum et hoc â—re ' Fitz. H. Nat. bâ— ' et ibid and these foure must be Knights indeed Also the Iustices upon consideration of the usuall words in every Writ of Venire facias which by precipimus tibi quod venire facias câ—ram c. 12. tam milites quamalios liberos et legales homines c. Say that these words tam milites were not at the first put into the Writ without effect Plowden fol. 117. b. For it seemeth that in diebus illis some Knights were returned upon every Venire facias By the Statute of Magra Charta cap. 12. It is ordained that Assizes of Novell diseisin and Mort. Dancestor should not be taken any where but within the Connties where they happen If a Tennant doe lay an essoyne de malo lecti he may have a Writ out of the Chancery to warrant it by which it shall bee commanded to foure Knights to view him and if they see himsicke then they are to give him day to the end of a yeare and a day Finches booke 87. b. note the Register fol. 117. b. quod corceraiur non obligatur nisi sit miles c. juxta fornam statuti Westm 1. cap. 10. Stamfords pleas fol. 40. It is a received opinion that Knights are excused from attendance at Leets Britton â—9 and 36. is cited to p rove it and by a large understanding of the intent and meaning of the Statute of Marlbr cap. 10. For the ancient Common-law hath such respect unto the degree of knight-hood that they or their eldest sonnes were not compellable to find pledges in the Leet or Law-dayes For the Statute of Marlbr aforesaid was not introductive legis For it was before the Conquest vide the Lord Chancellors speech fol. 77. and the Common-law by this Statute is not alleadged and to that effect vide Finches Booke fol. 132. a. and Bro. tit fol. 39. and to the booke called the Mirrour of Iustice mentioned in the Preface to Cooks uinth part it is said that Knights are excepted and so it appeares that the practise was as well before as immediatly after the making of that Statute of Marlb and interpretation practica a ptinciple way and forme of interpretation of Lawes The Lord Chancellors speech in the case of Post-nati 34. and in Divinity Propter sanctorum est interpretes preceptorum â—bidem 66. But a Knight and superiours and inferiours are bound by Law to take notice of the proceedings there For if a man be out-lawed for felony at a Countie Court and one of the same County not knowing of the felony doth receive him hee is accessary 13. 14. Eliz. Dyer 355. a. et Stamford 96. et 41. Eliz. Also when the King doth summon to his Parliament Writs shall bee sent to the Sheriffe to make choice of Knights for every shire in this forme Rex vic' c. saltim quia nostri Consilii pro quibusdam arduis urgentihus negotiis nos statum et defensionem regni nostri Angliâ— Ecclesiae Anglicanae concernen ' quoddam Parliamentum nostrum apud civitatem nostram Westm 12. die Novembr prox futur ' teneri ordinavimus et ibidem prefatis magnatibus Proceribus dom ' regni nostrâ— colloquium habere et tractare tibi precipimus fiâ—miter iujungentis quod facta proclamatione in proximâ— tuo poâ—t receptionem hujus litteris nostris tenen â—â— die loco praedict ' dâ—os milites gladiâ— cinctis magis idoneos discret ' com' praedict ' c. electionem illam in distâ—ncte aperte sub sigillo tuo sub sigillis â—orum qui electioni illi interfuerint nobis in Cancellaria nostra locum certisices indilate Cromptons Courts 1. b. vide Stat. de Aâ— 23. H 6. cap. 15. Where amongst other things it is enacted that the Knights of the Shires for Parliaments hereafter to bee chosen shall bee naturall Knights of the same County for the which they shall bee so chosen or otherwise such naturall Esquiers or Gentlemen being of the same County as shall bee able to bee Knights vide Plowden fol. 121. Peeres are by intendment of Law sufficient of Freehold and that is one of the reasons whereof no capias or exigent lyeth against him for debt or trespaâ— but the Law hâ—th not that opinion of the Knights sufficiency of Freehold for â—ee may bee a Knight Sans terrae therefore 26. H. 8. 7. a. Brooke Exigent 72. and then hee is to bee returned of any jury or inquest howsoever hee may bee worthy and sufficient to serve the Common-wealth in Marshall affaires The wives and widdowes of Knights in legall proceedings and in Courts of Iustice have not the titles of Ladies as the wives or widdowes of Noblemen have but that title by the curteous speech of England And if in any action they be not called Ladies for that cause the writ shall not abate for that surplusage