Jurisdictions, Part 143 – Part 144
Common Eſſoin.
Quem redditum reddit, and Scire facias, they are Judicialls, and no Eſsoin lies in them, 33 H. 6. f. 6.
34 H. 6. f. 31. Treſpaſs, Return, Attach, and Precpe, Return ſummoned, the Defendant ſhall be Eſsoined, but when he comes by the great Diſtreſs, he ſhall not be Eſſoined.
34 H. 6. fol. 50. Debt. The Plaintiff at the firſt day may be eſſoined, unleſſe the Defendant appear upon a Capias, Cepi, or upon an Exigent.
9. H. 6. fol. 58. Where one is let to Bail, no Eſſoin of the King, or other Eſſoin lies, for that he is in manner as in Priſon.
11. H. 6. fol. 39. Replegeare at the day of Imparlance, Eſſoin doth not ly for the Defendant.
2 H. 4. fol. 17. Deceit, the Defendant caſts an Eſſoin after the day given, and it was adjudged and adjourned.
Natura Brevium f. 13. If any man be eſſoined of being ſick in his bed in a Writ of Right, if the Demandant will averre, that he is not ſo ill, but that he may well come, and this be found by Inqueſt, his eſſoin ſhal turn him in default.
21. H. 7. fol. 40. Eſſoin doth not lie in Quare uon admiſit, for that it is as a judiciall Writ.
Britton, fol. 281. He is Eſſoined of ſickneſſe, and force of ſickneſſe, he appeals, as it is of thoſe which move themſelves againſt the Court, and are in riding taken with ſickneſſe, and Eſſoin of force is, as it is of thoſe which are hindered by Impriſonment, or by Theives, or of other Enemies by the way, or by broken Bridges, or of other paſſages, or hindered by Tempeſt, or for want of Boats or Ships.
12 H. 4. f. 24. Formedon by Thirn. if no Eſſoin be caſt, and Record the firſt day, it lies not afterwards.
2 R. 3 f. 15. In a Writ of Right and Formedon, which is in his nature, Eſſoin ſhall be caſt the firſt day of Eſſoynes and proffers, and not afterwards.
2 H. 7. f. 4. The Demandant or tenant in a Precipe may be eſſoined the fourth day, and every day before the fourth day, and likewiſe the fourth day, notwithſtanding any challenge taken by his Adverſary, but in a VVrit Judiciall out of the Common Bench, the Partie ought to be eſſoined the firſt day, and otherwiſe not, if that be challenged.
18. Ed. 4. fol. 4. Precipe, Eſſoin of the Kings Service was laid, and it ſeems there, that every Eſſoin ſhall be laid the firſt day, or any day before the fourth day, if there be not an exception entered, and the fourth day ſhall be adjourned, 1 Ed. 5. fol. 2.
2 Ed. 4. fol. 12. Before the Originall be Returned, the Tenant ſhall be eſſoined, and this is a common courſe.
30. H. 6. fol. 1. Eſſoin is Michiel where it ſhould be Michael, and ſhall not be amended, for it is laid before the VVrit be Returned, and hath not the VVrit to ſee it.
Every Return hath four dayes, and the firſt day of them, is called the day of Eſſoins and proffers, and the next day after that, is the day of the Return of the VVrits, the third day is the day, the fourth day is the day of appearance. And it is an uſe if one cauſe the Clark of Eſſoins to enter (ne recipiatur) as he may the fourth day, Eſſoin cannot be laid, after that is entered, but he may caſt an Eſſoin the fourth day, if that be not entered, if one do not lay the Eſſoin the fourth day, then the next day enſuing, the Party may enter exception, that is, (ne recipiatur) and after ſhall be no Eſſoin laid.
4 H. 6. fol. 6. Viſus in Curia.If one caſt an Eſſoin and appear in the Court before it be adjudged, the Eſſoin ſhall be defeated, and this by the Statute of queſtioning Eſſoins, 12. H. 4. fol 24. the ſame.
7. H. 4. fol. 40. Quare impedit by the King againſt R. Felbridge, the Attorney of the Defendant was Eſſoined at the day of the (Venire facias) Returned, and after that the Eſſoin was adjudged, and before the adjournment, the Attorney which was Eſſoined comes into the Court, and was ſeen of the Court: and it ſeems after the Eſſoin adjudged, that he may be ſeen in the Court very well, though that it be not adjourned, and the Eſſoin very good, 11 H. 4. fol. 80. Precipe. 11. H. 6. fol. 53. Eſſoin was caſt for the husband and wife, and the Eſſoin was outed for the Husband, becauſe he was ſeen in the Court, and allowed for the VVife.
45. Ed. 3. fol. 24. Mortdanceſter againſt I. which voucheth B. which was Enoined at the Summons to warrant, and at the day by Enoin he was Eſſoined of the Kings Service, and at the day that he hath to bring in his VVarrant, the Tenant was Eſſoined, and the Eſſoin was adjudged and adjourned.
12. H. 4. fol. 14. by Hull, Eſſoin doth not lie after Eſſoin, nor Eſſoin of the Kings Service, after Eſſoin of the Kings Service, but contrary by mean Proceſſe.
9. H. 5. fol. 5. By Strange, common Eſſoin doth not lie after common Eſſoin, without mean degree, but after common Eſſoin, Eſſoin of the Kings Service lyeth, 21. Ed. 3. fol. 13. the ſame.
21. Book of Aſſiſes, 11 Aſſiſe. The Sheriffe Returns that the Plaintiffe hath not found Pledges to proſecute, and the Plaintiffe was Eſſoined, and the Eſſoin adiudged, for otherwiſe the Plaintiffe ſhall be non-ſuited.
2 Ed. 4. fol. 16. At the great Cape returned againſt the Husband and the Wife, the Husband caſts the Eſſoin of the Kings Service, where he had an Attorney in Court, and held that the Eſſoin lies well, notwithſtanding that he hath an Attorney in Court, contrary of a common Eſſoin, for that cannot be, where he hath an Attorney in Court.
4. H. 6. fol. 10. Dower. At the grand Cape the Tenant wages his Law of non-Summons, and at the day Eſſoin is caſt for him, and ſaith that he hath an Attorney in Court, and notwithſtanding this, the Eſſoin lies, for here the Attorney is out of the Court.
7. H. 4. fol. 6. Precipe, at the great Cape Returned, one renders his Law by Attorney, and at the day of the Law the Attorney laid an Eſſoin, and had no day, for it was ſaid to him, to let his Maſter come.
19 H. 6. fol. 30. Debt, at the day that he hath to make his Law, his Attorney was Eſſoined, and he ought not to be Eſſoined, for he is out of the Court.
18 H. 6. fol. 20. Precipe, The Tenant hath two Attorneys, and the one is Eſſoined, and not the other, and good, for their Warrant is ioynt and ſeverall, and excuſes the maſter, 11 H. 4. fol. 53. the ſame.
19 H. 6. fol. 57. The Attorney of one Party cannot be Eſſoined of the Kings Service.
21 Book of Aſſiſes 7. Where the Defendant appears, and anſwers by Attorney, he ſhall not be after Eſſoined, unleſſe his Attorney be alſo Eſſoined.
14 H. 4. fol. 13. Quare impedit, The Plaintiffe was Eſſoined, and the Defendant ſaith, that the Plaintiffe hath an Attorney that is not Eſſoined, and by Hank, that Challenge was entered, and at the day that the Plaintiffe had by Eſſoin that ſhall be ſhewed, and if it be found, then the Defendant ſhall have a Writ to the Biſhop, and in the mean time the Eſſoin was adiourned.
45. Ed. 3. fol. 10. Debt, at the Exigent, the Defendant came by Superſedeas upon Bail, and at the day of the Exigent returned, the Plaintiffe was Eſſoined, and therefore the defendant ſhall have the ſame day without Bail; and there agreed if the Party be Eſſoined, and not his Attorney, that this is a diſcontinuance of Proceſs, for the Attorney onelyonly ſhall be Eſsoined, and every Challenge of Eſsoin ſhall be entered, but it ſhall not be tryed before the day of Adiournment of the Eſsoin, unleſse it be challenged, for that he was ſeen in the Court, which ſhall be tryed forthwith.
11 H. 8. Tit. 41. Formedon, Conuſance of Plea was granted, and the Demandant ſues a Reſummons for failing of Right in the Franchiſe, and the Attorney of the Tenant caſt Eſsoin, where another Attorney was Eſsoined upon the Originall, and by the Court, this matter of Challenge cannot be now tryed: the Eſsoin was adiourned, but not adiudged, and it ſhall be tryed at the Adiournment, and if it be found, ſhall turn him in default.
12 H. 4. fol. 25. A man hath two Attorneys, and after the view the one was Eſsoined, and the other not, and by Hull, By this Challenge, the Eſsoin ſhall be adiourned, but not adiudged, and by Hank, in ſome Caſe Eſſoin ſhall be adiudged, and not adiourned, as the Demandant in Precipe is Eſsoined, and at the ſame day Protection is ſhewed out for the Tenant in this Caſe, the Eſsoin ſhall be adiudged, ſo that the Demandant ſhall not be nonſuited, but it ſhall not be adiourned.
12 H. 7. fol. 8. Formedon, The Tenant makes two Attorneys, and at the day upon the view granted, the Tenant and one Attorney makes default, and the other Attorney was Eſsoined, and it was held clearly that the Eſſoin of one Attorney excuſeth the default of the Tenant, and the other Attorney, for they were Attorneys Joint, and ſeverall.
2 H. 5. fol. 2. Formedon, After the view the Tenant was Eſsoined, and notwithſtanding that he had an Attorney not Eſsoined, the Eſsoin was allowed, ſub Calumnia, for the Attorney peradventure is removed, and agreed, if he have no Attorney in Court, he himſelf may be eſſoined.
11 H. 7. fol. 42. Eſsoin was amended in Precipe of Rent where the Eſsoin was entered in a Plea of a yearly Rent, where it ſhould have been in a Plea of Land.
18 Ed. 4. fol. 4. The Writ was J.S. and the Eſsoin was J.S. of Dale in the County of Kent, and for this variance it was quaſht, and ſhall not be amended, for the Clerk had no fight of the VVrit, for the Eſſoyne was before the VVrit returned.
30 H. 6. f. 1. At the Pone in a Quare impedit, the Incumbent was Eſsoined, and was varying from the name in the Writ, for the Eſsoin is Mich. and the Writ Michaell, and adiudge that it ſhould not be amended, for that the Eſsoin was put in, before the Writ came in.
10. H. 7. f. 6. Precipe, The Tenant hath view where it was not grantable, and at the day of the Habere facias viſum, The Tenant would have been Eſsoined, and could not, in ſo much as the view was not grantable.
19 H. 6. fol. 80. Debt, The Defendant came by Cepi Corpus, and the Plaintiffe is Eſsoined, by this the Defendant ſhal have the ſame day without Bail; but if the Plaintiffe had appeared, the Defendant ſhould anſwer in cuſtody, and after ſhall be by Bail till the end of the Plea.
12 Ed. 3. tit. 58: B. VVaſt, the Venire facias was abated, and a new one went out and was returned, the Defendant caſt Eſſoyne and it was adiudged and adiourned, though there were the ſecond Venire facias, for the firſt was as none.
19 Book of Aſſiſes 12 Aſs. The Plaintif was eſsoyned, and the VVrit indorced Tarde, and notwithſtanding that the Juſtices adiuged, and adiourned the Eſſoin.
21 Ed. 4. f. 79. It ſeems that Eſſoin doth not lie for a Corporation, for the Eſſoin de malo veniendi, nor the Eſſoin de malo lecti, doth not lye, for it is to excuſe the Defendant, and a Corporation cannot appear in perſon, but by Attorney, nor an Eſſoin of the Kings ſervice, nor of beyond the Seas, for all cannot be together by common Intendment, and Protection doth not lie for a Corporation.
10 H. 6. f. 1. Scire facias by three and two were Eſſoined, the Eſſoin quaſht by the Court, for that delayes are outed by Weſtm. 2 Chap. 45. 2 H. 7. f. 10. the ſame.
11 H. 6. f. 31 At the day of Imparlance the Plaintiffe ſhall not be Eſſoined, alſo he ſhall be nonſuited, if he do not appear.
45 Ed. 3. f. 19. Precipe, the Tenant vouches, and Proceſs continue untill the Sequatur, at which day the Tenant is eſsoyned, and it lies well.
10 Ed. 4. fol. 15. Formedon, the parties were at Iſſue, and after diſcontinuance by Demiſe upon re-ſummons, ſaid, that the Tenant ſhall not be eſſoyned: See the Statute is, that Eſſoyn doth not lie, becauſe re-ſummons was in the laſt Preſentment, 1 H. 6. f. 6. the ſame, 1 R. 3. f. 4.
34 H. 6. f. 34. Treſpaſs upon re-attachment, the Tenant was eſsoyned, and ſaid, that it lies.
44 Ed. 3. fol. 4. Aſſ. Diſcontinued for not coming of the Juſtices, and upon re-attachment the Plaintiff is eſsoyned, and it lies, and yet the Statute of Weſtm. chap. 41. is, who hath once appeared in Aſſiſe ſhall not be afterwards eſſoyned, 44. Book of Aſſiſe, 24. the ſame.
22 Ed. 3. fol. 10. At the Venire facias returned, the Defendant put the Paroll without Day by Protection, and at the re-ſummons he was eſsoyned of the Kings Service, and had it.
21 Ed. 3. Tit. 35. B. Paroll was put without Day in a Precipe againſt a Prior, for that that the King had ſent a Superſedeas, that he had ſeiſed the Land for Warr, for that the Tenant was a Prior ſtranger, and after Demand at the Procedendo, and re-ſummons where the Paroll was put without Day before, after Venire facias returned, and the Jury appeared, and at the Day of the re-ſummons returned, the Prior was eſsoyned, and was challenged, for that, that the Prior was another time eſsoyned upon the Venire facias in the firſt Action, and it was not allowed, but the Eſsoyn admitted.
30. Book of Aſſ. 51. Mortdanceſter, at the re-ſummons the Tenant caſt an Eſſoyn, and it was quaſht by the Statute De Calumniandis.
Wardens of Churches.
Though the Statutes for high-wayes, not repaired, give all Forfeitures of thoſe Statutes to Church-wardens, yet they are no Corporation, and it is fit to ſee what things they may take, and what not, and what Intereſt they have in things of the Church, and where they may be removed, and where not, and what Intereſt the Parſon hath.
PAriſhoners ſhall have no Action of Account againſt Wardens, but they may chooſe other Wardens, which may have Account againſt the firſt Wardens, 8 Ed. 4. f. 6.
37 H. 6. fol. 32. If a Book be given to the Pariſhoners of ſuch a Church, to the uſe of the Church, the Wardens ſhall have Treſpaſs againſt him which takes this out of the Church.
10 H. 4. fol. 9. Church-wardens ſhall have Treſpaſs of Bells taken, though the Defendant hangs them in the Steeple, and though they are annexed to the Church, they are no parcell: Parſon ſhall have Treſpaſs of Windows, and Trees in the Church-yard cut, and the Wardens ſhall have Treſpaſs of the Ornaments taken.
8 H. 6. f. 9. Parſon brings Treſpaſs of entering in a Cloſe and Houſe, which was the Church-yard, and the Church; and it ſo feems that he hath intereſt in that.
38 H. 6. fol. 19. Parſon ſhall have Aſſiſe of Church-yard, or Glebe.
8 H. 7. f. 12. The Free-hold of the Church is to the Parſon, and the Pewes are Chattels, unleſs they be fixt, but ſome have Pewes there by Preſcription, but the Pewes fixt there are Free-hold to the Parſon.
21 H. 7. f. 21. Church-yard and Church are to the Parſon, and he ſhall have Treſpaſs of Trees cut in the Church-yard. Abridgement of Aſſiſes, fol. 112. Aſſiſes. It is a good Plea for the Defendant at the Juriſdiction of the Court to ſay, that he is Parſon, and that it is parcell of his Church-yard.
15 H. 7. f. 8. Church and Church-yard are to the Parſon, that is, the Free-hold of them.
30 Ed. 3. Tit. Account, Statham. See there that the Church is to the Pariſhoners.
Brit. fol. 84. Church-yards, burying-places, Church or Chancels are to none. Seek.
9 Ed. 4. fol. 15. Indictment by the Church-wardens, why by force of Armes, the Goods of the Chappell, &c. being, it ſeems good, and it ſeems, if it were the Goods of the Pariſhoners it were better.
8 Ed. 4. f. 6. Treſpaſſe by the Church-wardens, and it is to the loſs of the Pariſhoners, and it ſeems they are a Corporation for perſonal things.
9 Ed. 4. fol. 15. Treſpaſs was brought by Dame wiche againſt the Parſon, for taking a Coat-armor, certain Pendants with the Armes of Sir Hugh Wiche her Husband. And it ſeems that a Parſon ſhall not have that, nor the Church-wardens, for they are hung there for the honour of the Body of him that was buried there.
37 H. 6. f. 32. Church-wardens ſhall have Treſpaſſe of the Goods of the Pariſh taken, and an Appeal of Robbery.
12 H. 7. fol. 32. Wardens of the Church cannot let Lands, nor take Lands, but they may have Goods.
Abridg. of Aſſ. fol. 76. Church-wardens may have an Appeal of Robbery of the Church Goods.
13 H. 7. f. 9. Church-wardens cannot let Lands, for the Law gives them Authority to receive Goods, but not to depart with any thing, and may have Treſpaſs of Goods of the Church taken.
8 H. 5. fol. 4. To the Wardens of the Church are the Books, and Bells, and Goods of the Church.
Doct. and Student, f. 118. For not incloſing the Churchyard, and for not ſufficient repairing the Church, ſhall be a Complaint to the Ordinary.