Law, Book 4 · Chapter 42
CHAP. 42.
Of Continuance.
COntinuance is from day to day till the end of the ſuite, elſe (a)24. E. 3. 48. 11. H. 7. 5.if the Plaintife do nothing, it is called a diſcontinuance: if any errour bee in the continuing, as by awarding a Capias where … diſtreſſe ſhould bee, it is called a miſcontinuance.
Statutes.
21. H. 3. De anno Biſsextili. The day increaſing in the leape yeare ſhall bee reckoned of the ſame monethmonth wherein it groweth, and that and the day going before ſhall be accounted for one day.
51. H. 3 Dies communes in Banco. Dayes ſhall bee giuen in writs nine returnes, as comming in Michalmas terme, from Octab. Mich. to Octab. Hillarij, &c.
51. H. 3. Dies communes in Banco, and 32: H. 8. cap. 21 Common dayes ſhall be giuen in reall actions nine returnes. In writs of dower v. returnes.
Marleb. cap. 12. In dower vn de nihil habet, foure or ſixe dayes ſhall be giuen in the yeare.
In Aſſiſes of Darrein preſentment and Quare impedit, from xv. to xv. dayes, or from …. weekes to 3. weekes, as the place ſhall be neere or farre.
5 E 3 cap. 6. and 7. In an attaint v. dayes ſhall be giuen at the leaſt.
The ſuite of an excommunicate perſon ſhall be put without day, terme paroll … 3. H. 6. 40. Litlet.Iour till he be abſolued And ſo is it in all … ther caſes which happen without the Plaintifes folly, as by the demiſe of the King (ſo we call the death of the King, becauſe in Law hee neuer dieth, but leaueth his Crowne to another) non venūt. of the Iuſtices, ceſſor of the eyer, protection, &c.
Statutes.
1. E. 6. cap. 7. By the death of the King no action, ſuit, bill, or plaint ſhall bee diſcontinued, or put without day. But the proceſſe pleas; demurrers, continuances, ſhal ſtand good, and be proſecuted in ſuch manner and forme as if the ſame King had liued. After continuance taken, the defendant may for once leaue his former plea, & plead any thing growing ſince this latter continuance, which wee call a plea puis darrein continuance. As if the defendant in an action of account plead receit of parcell by the 21. E. 3. 49.plaintife who wageth his Law: now at the day which the plaintife hath to performe his law, the defendant may plead a releaſe puis dairein continuance.
Continuance is by proceſſe, or vponupon the Roll. That vponupon the Roll is a Dies datus, 21. E. 4. 16. 7. H. 6. 39. 41. Br. defaut 34.or Emparlance. Dies datus when the Court giueth the parties day, and therfore in a perſonall action the defendant ſhall not bee condemned by default after ſuch a continuance: for it is the act of the Court, and he doth not demand day as vponupon an Emparlance, … this is alwaies before the Count.18. H. 8. 6. 41. E. 3. 1.
Such a continuance by aſſent of both the parties is called a Praece partium. So as if the defendant come vponupon the exigent Br. Contin. 14.by a reddit ſe, and be by mainpriſe, yet the plaintefe may hauehave day by prece partium, notwithſtanding that thereby the defendant ſhall be let out of ward, fot it is by aſſent of the parties.
But in aſſiſes the continuance is by a Iuſticiarij nondum auiſantur, and not by a Dies 22. H. 6. 12.datus.
Emparlance is when the defendant demandeth day to ſee if he may end the matter 7. H. 6. ibid.without further ſuite, which he may do once, but not oftner without the plaintifes conſent: and is alwayes after the Court. After which he cannot plead to the Iuriſdiction, perſon, or in abatement either of 18. H. 8. 6.the Count or writ. For (a)22. H. 6. 7.after emparlance a Superſedeas of priuiledge out of the Chancerie ſhall not be allowed: he cannot plead that the land is within the fiue (b) ports or (c) antient demeſn, &c. or that the Pl is a villein, or (d)4. H. 6. 67. 16. E. 44. 32. H. 6. 33.outlawry in the Plaintife in debt vponupon a ſimple contract, or in treſpaſſe of batterie, or falſe impriſonment. (But in debt vponupon an obligation he may, for that is to the action, inaſmuch as the King is to hauehave the debt) or that the plaintife is an alien, viz to the perſon in an action of treſpaſſe 13. H. 7. 17.to his houſe broken downe, but to the action he may: Nor miſnomer as no ſuch Towne of D. where he is named I. S. of D. But where a praecipe quod reddat is brought of the mannor of D. in D. there he may, for 32. H. 6. 27.there it is in barre, or in an action of debt againſt an Executor that he is an adminiſtrator and not an executor. But that he neuer was executor, neuer adminiſtred as executor he may, for that is to the action, nor demand oyer of the obligation, or ſuch like, 4. H. 7. 10.but he may plead variance after, and ſo come to hauehave a view of the Obligation and Condition thereof, whereby to plead any matter in barre.
But after a ſpeciall empariance, Saluis 4. H 6. 67. Br, Contin. 6.omnibus aduantagijs, hee may plead to the Count or writ and hauehave oyer, but yet not in that caſe plead to the Iuriſdiction or perſon.
In an appeale of Robberie, or ſuch like, 22. E. 4. 1….that toucheth life, if the defendant plead a plea whereby his life ſhould come in ieoperdie, the Plaintife ſhall not empatle vntounto it, but muſt anſwer Sedente curia.
Default after emparlance, that is, at the day giuen by the emparlance is perēptorie, and loſeth the action in all actions whatſoeuer, 38. H. 6. 33. 1. H. 7. 11. Br. defaut 34. 39. H 6. 16. 38. H. 6. 33.real or perſonal, for it is a departure in deſpight of the Court. As in debt, treſpaſſe, or ſuch like, the Plaintife in this caſe ſhall recouer his damages in a praecipe quod reddat, if the Tenant appeare and emparle, and after make default, ſeiſin of the land ſhall be awarded, and not a petit cape. In a writ of right if the tenant vouch, and the vouchee enter into the warrantie and emparle, and after make default, the demaundant ſhall recouer ſeiſin of the land againſt the tenant, and the tenant ouer in value againſt the vouchee.