Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author.

CHAP. 41.

Of Apparance.

THus farre concerning pleading. The other meane acts are Ap∣parance, and Continuance, or Iu∣diciall processe.

Apparance is the parties com∣ming into the Court. where vpon (a) 1.1 Cō∣mon day giuen the fourth day after the ve∣rie * 1.2 day is allowed, and so are all entries, obtulit se quarto die post. But so is it not vpon a certaine day giuen vnto him, as Monday, Tuesday, or such like.

When the partie for not appearing * 1.3 should haue some great losse or corporate paine, as to haue a Charter of pardon al∣lowed where one before was outlawed at his suite, at a Sequatur sub suo periculo, when if he appeare not, the land is lost: in a reple∣uin, sicut pluries, when a Capias in Withernam * 1.4 is to go against him, &c. hee may appeare though the officers returne force him not to it, as if in the two first cases hee returne a

nihil, or (that the beasts be esloined) in the latter.

If the Plaintife will not appeare when * 1.5 he is demanded at the day, which is called a non suit, or say in Court that hee will not sue forwards, which is called a retraxit, and alwayes of record, this is peremptorie, and loseth him his action. But in real acti∣ons * 1.6 brought by many, if one will not prose∣cute the rest may alone. Except in the writ De natiuo habendo, that is, fauorem libertati••.

For executors also Sommons & Seue∣rance lyeth in personal actions. * 1.7

If the defendant will not plead, which is a nihil dicit, this in all actions, reall and personall, is peremptorie, and loseth the action.

So in personall actions if hee appeare, and the (a) 1.8 same terme or otherwise, after (b) 1.9 plea or (c) 1.10 demurrer ioyned make de∣fault. And this default shall neuer be saued, how good cause soeuer he haue to excuse it, as fall of waters, imprisonment, &c. for to appeare and plead, and not to maintaine it, is a kinde of nihil dicit. But either of the parties may for once, for ones common es∣soyne * 1.11 lyeth not after another without mesn degrees be excused of apparance, by an es∣soyne which lyeth not for him that appea∣reth in proper person (for it is to excuse his absence, whereunto his presence is contrary) nor that commeth in by exigent, or Cepi cor∣pus (for he abideth in ward, or by mainprise and therefore cannot make default) if they

cast an essoine, that is to say, demand it the * 1.12 first day, or any of the foure dayes, vnlesse the other cast an exception, that is to say, enter an exception that no essoine be recei∣ued. And the fourth day the essoine must ei∣ther be allowed (and then it is said to be ad∣iudged and adiourned) or disallowed. But vpon euery meane apparance a new essoin lyeth, (a) 1.13 though one were cast before (for the Pl and Def. if they list, may fourch in∣finitely by the common Law) As after issue vpon a custome bastardie, or ne unque acō∣ple en loyall matrimony, at the day of the cer∣tifying * 1.14 the defendant may cast an essoyne: After essoine of the demaundant, if the Te∣nant at the second day bee essoined, and at the third day demand the view and hath it. * 1.15 Now at the day after the view, he may bee essoined againe, and at the day after that the demandant vpon a wager of law in debt and day giuen to doe it, if the plaintife be essoined at the day, and at the day giuen by the essoine the defendant bee essoined, now the plaintife at the day may be essoi∣ned againe.

And this is called essoin de male venir, or the common essoine. Beside which essoines for speciall causes, as of being beyond sea, going ad terram sanctam, of the Kings ser∣uice, & d malo lecti are allowed And haue (a) 1.16 a yeare & a daies adiournment, where∣upon an (b) 1.17 oath must bee taken that the cause is true

But no such speciall essoine lyeth in an

assiss (c) 1.18 of nouell disseisin, (d) 1.19 dower, (e) 1.20 assise of darrein presentment, 〈◊〉〈◊〉 Q••••••e impedit, for then the sixe moneths would passe and so the Church come in lappe, for such essoines must haue a yeare and a daies adiournment. But a Common essoyn lyeth in all those cases.

Statutes.

Westm. 2. cap. 12. In an appeale of the death of a man no essoyne shall lye for the Appellor, for whatsoeuer cause in whatso∣euer Court the appeale be.

Westm̄. 1. cap. 41. In assises and Iuris v∣trum after that the tenant hath once appea∣red, he shall be no more essoyned.

Westm̄. 2. cap. 28. In like manner it shall be touching demandants in an assise.

Westm̄ 1. cap. 42. Parceners and Ioynte∣nants in a praecipe against them shall haue but one essoyne.

Glocest. cap. 10. So of a man and his wife impleaded in the Kings Courts.

9. E. 3. cap. 3. Stat. 1. In a writ of debt against executours, they nor any of them shall haue but one essoyne before appa∣rance, that is to say, the summons or At∣tachment, nor but one after apparance.

Westm̄ 2. cap. 27. None allowed after the day giuen by Praece partium, in case where the parties consent to come without es∣soyne.

Marleb. cap. 13. After a man hath put

himselfe vpon an enquest, he shal haue but one assoine.

Westm. 2. cap. 27. After one hath put himselfe vpon an enquest, an essoyne shall be allowed him at the next day, but neuer after, whether he were essoyned before or not.

Mar. cap. 19. None shall need to sweare to warrant his essoine.

Westm̄ 1. cap. 43. The demaundant may auer against an essoyne (before Iustices) of being beyond sea, that the Tenaunt was within the foure seas the day that hee was sommoned, and three weekes after.

Westm̄ 2. cap. 17. In an essoyne De malo lecti, the demaundant may auer by enquest that the Tenant is not sicke, nor in such plight but he may come before the Iustices. Such an essoine shall not lye in a Writ of right betweene two claiming by one des∣cent.

5. E. 3. cap. 7. Essoyne of the Kings ser∣uice, nor protection shall not bee allowed in writs of attaint.

12. E. 2. Stat. of essoines. See many per∣ticular cases where essoynes lye not.

Notes

• (a) 1.1

  12. H. 4. 24. 1. H. 6. 4.
• * 1.2

  (b) F. N B. 25 ••. 1. H. 6▪ ibid.
• * 1.3

  48. E. 3. 1.
• * 1.4

  7. E 4. 15. 8. H. 6. ibid. 3. H. 6. 14.
• * 1.5

  8. H. 6. 8. 3. H. 6. 13. 3. H 6. 50. 8. H. 6 ibid. 3. H. 6. 14.
• * 1.6

  10. ass. Pl. 12. in an assise. Old N. Br. 46.
• * 1.7

  48. E 3. 14. Br Som & Seu. 9. 7. H 6. 39. 41. B••. default. 34.
• (a) 1.8

  7. H. 6. ibid.
• (b) 1.9

  38 H 6. 33.
• (c) 1.10

  18. E. 4. 7.
• * 1.11

  9. H 5. 5. 35. H. 6 33.
• * 1.12

  18. E. 4. 4.
• (a) 1.13

  27. H. 6. 2. 21. E. 4. 16.
• * 1.14

  39. H. 6. 29.
• * 1.15

  27. H. 6. 2.
• (a) 1.16

  27. H. 6. 1.
• (b) 1.17

  2. E. 4. 16.
• (c) 1.18

  21. H. 6. 42.
• (d) 1.19

  44. E. 3. 15.
• (e) 1.20

  27. H. 6. 1.