After the case of Radwell from the Record of E. 1. Lord Hale thus gives the four following cases.
“Rot. Parl. 9 E. 2. M. 4. Gilbert de Clare comes Glouc. obiit 30 Junii 7 E. 2. In parliamento tent. quindena Hil. 9 E. 2. _the sisters and coheirs pray livery. Matilda_, quæ fuit uxor comitis, _pretends to be big by the earl, which was accordingly found_ per inquisitionem. _The coheirs reply, that_, si comitissa prægnans esset, tantum tempus elapsum est, ut secundum cursum pariendi non potest dici imprægnari a comite. _Yet they could not obtain livery till_ Pasch. 10 E. 2. _but the question hung in deliberation_.
“Note 18 R. 2. _where a woman in such a case immediately after the death of the first husband took a second husband, and had issue born forty weeks and eleven days after the death of the first husband, and it was held to be the issue of the second husband_.
“M. 17. Jac. B. R. _Alsop and Stacey. Andrews dies of the plague. His wife, who was a lewd woman, is delivered of a child forty weeks and ten days after the death of the husband. Yet the child was adjudged legitimate and heir to Andrews; for_ partus potest protrahi _ten days_ ex accidente.
“M. 4. Car. in Cur. Ward, _and afterwards_ P. 5. Car. B.R. _Thecar marries a lewd woman; but she doth not cohabit with him, and is suspected of incontinency with Duncomb: Thecar dies: Duncomb within three weeks after the death of Thecar, marries her: two hundred and eighty-one days and sixteen hours after his death she is delivered of a son. Here it was agreed, 1. If she had not married Duncomb, without question the issue should not be a bastard, but should be adjudged the son of Thecar. 2. No averment shall be received that Thecar did not cohabit with the wife. 3. Though it is possible, that the son might be begotten after the husband’s death, yet, being a question of fact, it was tried by a jury, and the son was found to be the issue of Thecar._”
Lord Hale’s case of E. 2. appears very extraordinary, the time from 30 June from 7 E. 2. when the Earl of Gloucester died, to the _quindene_ of Hilary, or 29 Jan. 9 E. 2, when the livery to his sister was further postponed in parliament, being _within one day of a year and seven months_; which is a much later date for the delivery of a live child, than the most liberal in their calculations have hitherto assigned. However, on reading the printed copy of the original record, in the rolls of parliament lately published, we find Lord Hale’s note quite accurate. See Rot. Parl. v. 1. p. 353.—As to the case of R. 2. it confirms the doubt we have elsewhere stated of the opinion, that, if a widow marries again and has a child within nine months after the death of the first husband, the child may choose his father; and is an authority for deciding according to the proof of the woman’s condition when her first husband died. Ante fo. 8. a. note 7. Terms of the Law, first edit. tit. _Bastard_, and Cowel Inst. lib. 1. t. 9.—Lord Hale’s two other cases are reported in several books, Alsop and Stacey being in Cro. Jam. 541. Godb. 281. Palm. 9. 1 Ro. Abr. 356. and Thecar’s in Cro. Jam. 685. Winch. 71. Litt. Rep. 177.[179]