Jurisdictions, Part 141
Eſſoyne.
AFter that any hath put himſelfe into any Inqueſt, who hath appeared or might have appeared in theſe VVrits, ſhall have but one Eſſoyne, or one default, &c. Weſt. 2. chap. 27. Marlcbridge chap. 13.
Marlb. chap. 19. Of Eſſoynes it is provided, that in Counry, Hundred, or in Court-Baron, or other Courts, none ſhall have need to ſweare to warrant his Eſſoyne.
Weſtm. 1. chap. 42. For that, that Demandants which bring actions againſt many Coparceners and Joynt-Tenants, they often avoid by Eſſoyne.
It is provided, that thoſe Tenants ſhall not have Eſſoyne but for one day, no more then one ſole-Tenant ſhould have, ſo that now he cannot avoid, but only have an Eſſoyne, ſee Marleb. chap. 9.
Weſtm. 1. chap. 43. If one be eſſoyned as beyond the Seas, where he is in England day of the Summons, it is provided that this Eſſoyne be not allowed, if the Demandant will averr that he was in England, the day that the Summons was made, and three weekes after: But let it be adjourned.
And if the Tenant be attaint which was in England, day of the Summons, and three weeks after, the Eſſoyne ſhall turne to him for a default.
Weſtm. 1. chap. 41. In a Writ of Aſſiſe, of Attaints, and Juris utrum, provided it is for travaile of Jurors, that if the Tenant once appeare in the Court, never after no Tenant can eſſoyne him.
Gloceſter 1. chap. 18. Provided that in other Pleas then Treſpaſs or Attachments and Diſtreſſe lying, if the Defendant make himſelf to be eſſoyned of the Kings Service, and doth not bring his Warrant at the day which is given unto him by his Eſſoyne, he ſhall render to the Plaintif Dammages of the torne of twenty ſhillings, or of more; according to the diſcretion of the Juſtices, and be in the Kings mercy.
Weſtm. 2. chap. 12. There lies not for one that brings an appeale of the death of a man, an Eſſoyne.
Weſt. 2. chap. 17. In the Circuit of the Juſtices, there is no Eſſoine admitted of being ſick in bed, of a Tenement, unleſſe he which makes himſelf to be Eſſoyned, truly be ſick, for if it be excepted againſt by the Demandant, that the Tenant is not ſick, nor in that ſtate that he cannot come before the Juſtices, they will receive a reproach, and if this be diſproved by an Inqueſt, let that Eſſoyne be turned to a default, neither lies that Eſſoyne in a Writ of right between two claimings by the ſame diſcent.
Weſt. 2. ch. 27. After that any hath put himſelf upon any Inqueſt, at the next day let there be an Eſſoyne allowed to him, but at other dayes following by Eſſoyn, let there be no deferring of taking the Inquiſition whether he firſt had an Eſſoyne or not, neither let any Eſſoyne be admitted, after the day given, by the requeſt of the parties, in caſe that the parties conſent to come without an Eſſoyne.
Weſtm. 2. chap. 28. When by the Statute of, Weſtm. 1. chap. 41. It is appointed, that after the Tenants have once appeared in the Court, there ſhall be no Eſſoyns allowed them in VVrits of Aſſiſe, in the ſame manner from hence let it be obſerved of Petitioners.
The Statute of Eſſoynes queſtioned, 12 Ed. 2.
That Eſſoynes do not lie in theſe following Caſes, that is,
There lies no Eſſoyn:
Becauſe, the Land is taken into the Kings hand.
Becauſe, he is reſtrained by Land.
Becauſe, there is granted to him from hence Judgement, if the Jurors come.
Becauſe, he was ſeen in the Court.
Becauſe, at another time he eſſoyned himſelf, as being not able to come.
He ſhall not be eſſoyned, as being beyond Sea.
Becauſe, ſuch a one eſſoyned him ſuch a Day.
Becauſe, it was commanded the Sheriff, that he ſhould make the party to come, 41 Ed. 3 f. 29.
Becauſe, a VVoman is not in the Kings Service, but becauſe a Nurſe, Midwife, or ſent for by a VVrit, to inſpect the Belly.
Becauſe, ſhe ſeems to be deceived in her Dower, and deferring of Right.
Becauſe, ſuch a Complaint hath not found Sureties to proſecute.
Becauſe, the Attorney was eſſoyned.
Becauſe, he hath an Attorney in his Complaint.
Becauſe, he is eſſoyned, witneſſed, &c. that he is not in the Kings Service.
Becauſe, the Summons is not teſtified, or part of the Return not attached.
Becauſe, at another time he was eſſoyned of the Kings Service, and now did not ſend his VVarrant.
Becauſe, re-ſummons was in the laſt Preſentment, or Death of his Anceſtor, 30. Book of Aſſiſes 51.
Becauſe, ſuch a one is not named in the VVrit.
Becauſe, it was commanded the Sheriff, that he ſhould diſtrain him to come by his Land and Chattels.
Becauſe, it was commanded the Biſhop, that he ſhould make him come.
Becauſe, the time was paſt.
But it is to be known, that an Eſſoyn of the Kings Service is allowed after the great Cape, and the ſmall Cape.
1 H. 6. f. 4. Treſpaſſe, Iſſue was if the Land were the Freehold of the Plaintiff, or of the Leſſor of the Defendant, and after Iſſue the Defendant prayed aid of his Le or, and at the Summons returned, the Prayee was eſſoyned, and at the Day which he had by the Eſſoyn he joyned, and at the (Venire facias) returned, the Prayee caſt Eſſoyn, and it lies, for that that the Statute is, Por…quam, &c.
44 Ed. 3. fol. 38. Precipe, the Tenant tenders his Law, and this is at Iſſue, for that after he ſhall have but one Eſſoyn, 37 H. 6. f. 2. The Plaintiff was eſſoyned at the Day of the Law, 9 H. 5. f. 5 the ſame.
48 Ed. 3. fol. 21. One is eſſoyned after Iſſue in London, and at the Day in Bench upon a forreign matter, is there eſſoyned again, for it is the firſt Day in Bench.
21 Ed. 4. f. 19. Debt, Iſſue was upon the cuſtome of London, and upon VVrit to certifie that, Defendant eſſoyned, and lieth after Iſſue by the common Law, for after every mean Appearance, it lies by the common Law, though the Statute be (after Inqueſt) which is not here, and for that the Eſſoyn is allowed.
21 Ed. 4. f. 19. Debt, Iſſue was upon the cuſtome of London, and upon a VVrit to certifie that, Defendant is eſſoyned, and it lieth after Iſſue by the common Law, for after every mean Appearance, it lies by the common Law, and though the Statute be after Inqueſt, this is not here.
34 H. 6. f. 18. Precipe, the Tenant prayes aid of him in Reverſion, and had it, and at the Summons to aid him returned, the Prayee was eſſoyned, and had a Day of that Eſſoyn, and at the Day of that Eſſoyn the Tenant was eſſoyned, and had it.
22 Ed. 3. fol. 4. Quare impedit, the Plaintiff was eſſoyned at the (Diſtringas Juratores) and the Inqueſt came and adjourned, but it ſeems that the Defendant ſhall not be eſſoyned at this Day.
25 Ed. 3. f 38. Scire facias, the Tenant pleads to the Iſſue, and at the next Day would have been eſſoyned, and could not, for it is delay, which ſhall not be in a (Scire facias) by the Statute of Weſtm. 2. chap. 45.2 H. 7. fol. 10.39 H. 6. f. 53.
1 H. 7. fol. 8. There was an Eſſoyn caſt upon an (alias venire facias) where the firſt was not ſerved.
1 Ed. 3. f. 38. VVaſte, Venire facias was abated firſt, and at the ſecond Venire facias, Defendant was eſſoyned, and that allowed, for the firſt was as nothing.
9 H. 5. fol. 12. Dum non fuit compos…mentis, Venire facias awarded, and not returned, and Sicut alias returned, the Tenant was eſſoyned, and it doth not lie, for it is not the firſt Day after the Iſſue.
3 H. 6. fol. 57. Debt, the parties were at Iſſue, and a Diſtringas Juratores returned, at which Day the Defendant caſt an Eſſoyn of the Kings Service, and that Eſſoyn was not allowed.
14 H. 6. f. 20. The Plaintiff caſt an Eſſoyn, at the Habeas corpora Juratorum, and this turned upon him in Default, for the Eſſoyn doth not lie at the ſecond Day, neither for the Plaintiff, nor for the Defendant, but is outed by the Statute, Weſtm. 2. chap. 27. which is Poſtquam aliquis, &c. And this Statute is intended as well for the Plaintiff as the Defendant.
12 H. 4. fol. 24. VVhere an Eſſoyn de malo veniendi, was before the Statute of Marlebridge, chap. 19. The Eſſoyner ſwears, that he was ſick.
2 Ed. 4. f. 16. VVhere Eſſoyn of Service of the King is caſt in, it ſeems that the Eſſoyner ſhall be ſworn, for that, 19 H. 6. f. 51. the ſame.
20 H. 6. f. 22. VVhere one is eſſoyned of the Kings Service, the Eſſoyner ſhall be examined, and ſworn upon a Book, if he be in the Kings Service or not, and not as he is informed, otherwiſe the Eſſoyn ſhall not be allowed.
27 H. 6. fol. 2. Debt, the Defendant offers to wage his Law, and had Day, &c. and at the Day the Plaintiff was eſſoyned, and after at that Day the Defendant was eſſoyned, and after at that Day the Plaintiff caſt in another Eſſoyn, and it lieth well by the Court, for ſo long as the Plaintiff and Defendant agree, they may fourch by Eſſoyn.
9 H. 6. fol. 21. Quem redditum reddit, againſt two, held that they cannot fourch by Diſtreſſe or Eſſoyn: Note, that by 33. H. 6. f. 6. Eſſoyn doth not lie in this Action, for that that this is Judicial.
2 Ed. 4. fol. 20. Dower, againſt A.B.C. and at the Day A. makes Default, and B. was eſſoyned, and C. appears, and the ſame Day given to C. and at the Day A. made another Default, and B. appeared, and C. caſt the Eſſoyn, VVell, for every one ſhall have an Eſſoyn, notwithſtanding the Statute of Marlebridge, chap. 19. but after they ſhall not have more Eſſoynes.
48 Ed. 3. fol. 20. Precipe, againſt the Husband and his VVife, before Appearance, each one may be eſſoyned after other, but not after again, 4 H. 6. f. 6.9 H. 6. f. 44.
3. H. 7. f. 13. Precipe: the Tenant was eſſoyned, and after vouched, and the Vouchee was eſſoyned, at the Day the Tenant was eſſoyned, and it doth not lie, 22 Ed. 4. f. 14.
22 Ed. 3. fol. 5. Precipe, againſt three at the Summons, one was eſſoyned, and others have the ſame Dayes, at which Day another was eſſoyned, and the ſame Day, &c. and the Eſſoyn adjourned, but after they have all appeared, they cannot fourch or avoid.
29 Ed. 3. fol. 25. Formed on, againſt a Husband and his VVife, and at the firſt Day the Husband appeared, and the VVife was eſsoyned, and at the ſecond Day the VVife appeared, and the Husband is eſſoyned and allowed, but after that they have appeared they cannot fourch by Eſſoyn, for the Statute is, that Coparceners and Joint-tenants cannot at any time fourch or avoid, and ſo of the Husband and the VVife, 30 Ed. 3. f. 25. See 38 Ed. 3. f. 1. for fourching by Diſtreſſe, 4 H. 6. f. 6.
3 H. 6. fol. 36. Debt againſt a Parſon of the Arrerages of an Annuity, the Defendant prayed aid of the Patron and Ordinary, and there were four Patrons, and at the Summons to aid, one was eſſoyned, and the three have the ſame Day, and at the Day he eſſoyned appeared, and another eſſoyned, &c. and now, after every other was eſſoyned one after another, the firſt caſt the Eſſoyn, and could not fourch, 33 H. 6. f. 28.