Law, Book 4 · Chapter 41
CHAP. 41.
Of Apparance.
THus farre concerning pleading. The other meane acts are Apparance, and Continuance, or Iudiciall proceſſe.
Apparance is the parties comming into the Court. where vponupon (a)12. H. 4. 24. 1. H. 6. 4.Cō mon day giuen the fourth day after the verie (b) F. N B. 25 …. 1. H. 6▪ ibid.day is allowed, and ſo are all entries, obtulit ſe quarto die poſt. But ſo is it not vponupon a certaine day giuen vntounto him, as Monday, Tueſday, or ſuch like.
When the partie for not appearing 48. E. 3. 1.ſhould hauehave ſome great loſſe or corporate paine, as to hauehave a Charter of pardon allowed 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 repleuin, ſicut pluries, when a Capias in Withernam 7. E 4. 15. 8. H. 6. ibid. 3. H. 6. 14.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 8. H. 6. 8. 3. H. 6. 13. 3. H 6. 50. 8. H. 6 ibid. 3. H. 6. 14.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 actions 10. aſſ. Pl. 12. in an aſsiſe. Old N. Br. 46.brought by many, if one will not proſecute the reſt may alone. Except in the writ De natiuo habendo, that is, fauorem libertati….
For executors alſo Sommons & Seuerance lyeth in perſonal actions.48. E 3. 14. Br Som & Seu. 9. 7. H 6. 39. 41. B…. default. 34.
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)7. H. 6. ibid.ſame terme or otherwiſe, after (b)38 H 6. 33.plea or (c)18. E. 4. 7.demurrer ioyned make default. And this default ſhall neuer be ſaued, how good cauſe ſoeuer he hauehave 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 eſſoyne 9. H 5. 5. 35. H. 6 33.lyeth not after another without meſn degrees be excuſed of apparance, by an eſſoyne which lyeth not for him that appeareth in proper perſon (for it is to excuſe his abſence, whereunto his preſence is contrary) nor that commeth in by exigent, or Cepi corpus (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 18. E. 4. 4.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 receiued. And the fourth day the eſſoine muſt either be allowed (and then it is ſaid to be adiudged and adiourned) or diſallowed. But vponupon eueryevery meane apparance a new eſſoin lyeth, (a)27. H. 6. 2. 21. E. 4. 16.though one were caſt before (for the Pl and Def. if they liſt, may fourch infinitely by the common Law) As after iſſue vponupon a cuſtome baſtardie, or ne unque acō ple en loyall matrimony, at the day of the certifying 39. H. 6. 29.the defendant may caſt an eſſoyne: After eſſoine of the demaundant, if the Tenant at the ſecond day bee eſſoined, and at the third day demand the view and hath it. 27. H. 6. 2.Now at the day after the view, he may bee eſſoined againe, and at the day after that the demandant vponupon 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 eſſoined 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 ſeruice, & d malo lecti are allowed And hauehave (a)27. H. 6. 1.a yeare & a daies adiournment, whereupon an (b)2. E. 4. 16.oath muſt bee taken that the cauſe is true
But no ſuch ſpeciall eſſoine lyeth in an aſſiſs (c)21. H. 6. 42.of nouell diſſeiſin, (d)44. E. 3. 15.dower, (e)27. H. 6. 1.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 hauehave 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 whatſoeuer Court the appeale be.
Weſtm̄. 1. cap. 41. In aſſiſes and Iuris vtrum after that the tenant hath once appeared, 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 Ioyntenants in a praecipe againſt them ſhall hauehave 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 hauehave but one eſſoyne before apparance, that is to ſay, the ſummons or Attachment, 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 eſſoyne.
Marleb. cap. 13. After a man hath put himſelfe vponupon an enqueſt, he ſhal hauehave but one aſſoine.
Weſtm. 2. cap. 27. After one hath put himſelfe vponupon 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 deſcent.
5. E. 3. cap. 7. Eſſoyne of the Kings ſeruice, nor protection ſhall not bee allowed in writs of attaint.
12. E. 2. Stat. of eſſoines. See many perticular caſes where eſſoynes lye not.