Chapter III: Book I

OF PLEAS WHICH BELONG TO THE KING’S COURT, OR TO THE
SHERIFF; AND OF ESSOINS; AND OTHER PREPARATORY STEPS
USUALLY RESORTED TO IN SUITS, UNTIL BOTH PARTIES APPEAR
TOGETHER IN COURT.

CHAP. I.

Pleas are either Criminal or Civil.[31] The former are divided into such as appertain to the King’s Crown, and such as belong to the Sheriffs of Counties. These Pleas belong to the King’s Crown.[32]

[Footnote 31: “Now, as out of the old Fields must come the new corn, so our old Books do excellently expound and express this matter, as the Law is holden at this day; and, therefore, Glanville saith, _Placitorum aliud est criminale, aliud Civile_, where _Placitum criminale_ is _Placitum coronæ_, and _Placitum civile_, _Placitum commune_, named in this Statute.” (Magna Carta.) (Vide 2 Inst. 21.)]

[Footnote 32: LL. Æthelbyrti, c. 1. 2. 3. 4. 5. &c. (Al. MS.)]

CHAP. II.

The crime which, in legal phrase, is termed that of Læse Majesty, as the death of the King, or a sedition moved in the Realm, or Army[33]—the fraudulent concealment of Treasure-trove—The Plea concerning the breaking of the King’s peace—Homicide—Burning—Robbery—Rape—the crime of Falsifying,[34] and such other Pleas as are of a similar nature.[35] These crimes are either punished capitally, or with loss of Member.[36] We must, however, except the crime of Theft, which belongs to the Sheriffs of Counties, and is discussed and determined in the County Courts.[37] It also appertains to Sheriffs, in case of neglect on the part of Lords of Franchise, to take cognizance of Scuffles,[38] blows, and wounds, unless the Accuser subjoin to his charge, that the offence was committed against the King’s Peace.[39]

[Footnote 33: “The Committers of these Crimes,” says the Regiam Majestatem, “may be punished not only for any fact or deed, but also for the intent and purpose.” (Reg. Maj. L. 1. c. 1.)]

[Footnote 34: _Crimen falsi_, an expression borrowed from the Civil Law. (Vide Justin. Inst. 4. 18. 7. &c.) Our author explains its import, L. 14. c. 7.]

[Footnote 35: Cap. 2. Hengham Magna, c. 2. p. 7. LL. Canuti R. secul. c. 61. et Somneri Gloss. in voce _emenda_. (Al. MS.)

The Law of Canute alluded to, is in these words: _Irruptio in domum et incendium et furtum manifestum et cædes publica et domini proditio juxta leges humanas sunt inexpiabilia._ (Vide LL. Anglo-Saxon. Ed. Wilkins, p. 143.)]

[Footnote 36: Among the Laws of Canute, are some inflicting the punishment of loss of members. (LL. Canuti, c. 15. 33. &c.)

From hence it has been inferred, that Canute first introduced this species of punishment into England.

However that may be, the Conqueror’s Law forms too remarkable a feature in his Legislation to be passed over in silence. It forbids the punishments of death and hanging for any crime, but orders, that the eyes of the offenders should be plucked out, or their feet or hands &c. amputated, _ita quod truncus vivus remaneat in signum proditionis et nequitiæ suæ_!! (LL. Gul. Conq. p. 218. Ed. Wilkins.)]

[Footnote 37: “Theft and manslaughter,” says the Regiam Majestatem, “belong to the Sheriff when any certain accuser appears: not so when those crimes are taken up by _dittay_.” (c. 1. L. 1.) “The Sheriff in the Tourn (for that is to be intended) held plea of Theft,” says Lord Coke. But this part of his jurisdiction was taken away by 17. c. Mag. Cart. (Vide 2 Inst. 30-1.)]

[Footnote 38: _Medletis_, or, as in Harl. Cotton. and Bodl. MSS. _melletis_. From Bracton it is to be collected, that some instances of this offence fell under the Jurisdiction of Lords of Franchise, and on their default, reverted to the Sheriff; whilst other instances fell under cognizance of the crown, a distinction confirmed by the Reg. Majestatem (vide Bracton 154. B. Reg. Maj. L. 1. c. 2.) The term is said to be derived from the French _mesler_. (Vide 3 Inst. 66. Spelm. Gloss. and Cowell’s Interpreter.)]

[Footnote 39: The Reg. Maj. makes this allegation a ground of the Sheriff’s Jurisdiction (L. 1. c. 3.) “In this distinction, between the Sheriff’s Jurisdiction and that of the King, we see the reason of the allegation in modern Indictments and Writs, “_vi et armis_,” “_of the king’s crown and dignity_,” “_the king’s peace_,” and “_the peace_,” this last expression being sufficient, after the peace of the Sheriff had ceased to be distinguished as a separate Jurisdiction.” (Vide Reeves’s Hist. Eng. Law. 1. 113.)]

CHAP. III.

Civil Pleas are divided into such as are discussed and determined in the King’s Court only, and such as fall within the Jurisdiction of the Sheriffs of Counties. In the former Court, are discussed and determined, all such Pleas as concern Baronies, Advowsons of Churches, questions of condition, Dower, when the Woman has been entirely debarred from receiving it; for breach of Fine made in the King’s Court; concerning the performing of Homage, and the receiving of Reliefs, and concerning Purprestures,[40] and Debts owing by lay persons. These Pleas, indeed, relate to the propriety of the thing only: concerning those which refer to the possession, and which are discussed and decided by Recognitions,[41] we shall speak in their proper place.

[Footnote 40: Our author explains this term, B. 9. c. 11.]

[Footnote 41: _Recognitiones._ Upon the words _facere recognitionem_, Sir Edward Coke thus comments.—“_Cognitio_ is knowledge or knowledgement, or opinion, and Recognition is a serious acknowledgement, or opinion upon such matters of fact as they shall have in charge, and thereupon the Jurors are called _Recognitores Assisæ_,” (Vide Co. Litt. 158. b.) Our author treats largely on Recognitions in the 12th Book, to which we refer the reader.]

CHAP. IV.

To the Sheriffs of Counties these Pleas appertain: the Plea concerning the Right of Freehold, when the Courts of the Lords are proved to have failed in doing justice, the nature of which we shall speak of in another place; and the Plea concerning Villeins-born: such Pleas being, in each instance,[42] sanctioned by the King’s Writ.[43]

[Footnote 42: We learn from Bracton, that the Sheriff was in the habit of exercising Jurisdiction over many Pleas which did _not_ belong to him _ex officio_; but, in such cases, he acted by the King’s precept, not as Sheriff, but as _Justiciarius Regis_, (Bracton 154. b.) The distinction is important, and seems not unknown to the Grand Custumary of Normandy. (Vide c. 2.)]

[Footnote 43: _Breve_, a Writ. When causes became so frequent that the king was unable to attend to them, says Craig, he remitted them to the Judge, by means of Instruments containing a brief summary of the chief points. Hence the name _Breve_. (Craig Jus Feud. L. 2. Dieg. 17, s. 24.) So early as Henry the first we find, that _contemptus Brevium_ was an offence, subjecting the person guilty of it to be amerced to the king. (LL. Hen. 1. c. 14.)]

CHAP. V.

When any one complains[44] to the King, or his Justices, concerning his Fee, or his Freehold, if the complaint be such as be proper for the determination of the King’s Court, or the King is pleased that it should be decided there, then the party complaining shall have the following Writ of summons.

[Footnote 44: _Clamat._ Vide Spelm. Gloss. ad voc. Craig Jus Feud. L. 2. Dieg. 17. s. 25. and L. 3. Dieg. 5. s. 2.]

CHAP. VI.

“The King to the Sheriff, Health.[45] Command _A._ that, without delay, he render to _B._ one Hyde of Land, in such a Vill, of which the said _B._ complains, that the aforesaid _A._ hath deforced him; and, unless he does so, summon him by good summoners, that he be there, before me, or my Justices, _in crastino post octabas clausi Paschæ_ at such a place, to show wherefore he has failed; and have there the Summoners and this Writ. Witness Ranulph de Glanville, at Clarendon.”

[Footnote 45: Vide Fitz. Nat. Brev. p. 5. Ed. 1687. As this is the first writ we meet with, it may not be improper to observe, that, in rendering the writs, the Translator has for obvious reasons endeavoured to adhere to the technical phraseology generally used in that species of process.]

CHAP. VII.

The party who is thus summoned either appears at the day appointed, or makes default, or sends a Messenger, or Essoin,[46] or neither. If he neither appear, nor send an Essoin, his adversary, the Demandant, should, on the day appointed, appear before the Justices, and offer to proceed against him in the suit; and he shall thus await in Court during three days. If the Tenant appear not on the fourth day, the summoners being present, and alledging that they had duly cited him, and offering to prove it, according to the course of the Court, another Writ shall Issue to summon the Tenant to appear at the distance of fifteen days[47] at least, in which Writ he shall be required as well to answer to the original Suit, as for his default in disobeying the first summons.[48] In this manner, three Summonses shall issue; and, if the Tenant neither appear at the third summons, nor send, the Tenement shall be taken into the King’s hands, and shall so remain, during fifteen days.

[Footnote 46: _Essonium_, an Excuse. Sir Edward Coke derives the term from the French verb _essonier_ or _exonier_. He tells us, it is all one with what the civilians call _excusatio_. Sir Henry Spelman mentions the same derivation, and adds, _ex_, _privativum_, _soing_, _cura_. The Greek word ἐξὸμνυσθαι has been proposed as another derivation, implying an excuse by means of an oath. The term occurs so early as the Assizes of Jerusalem, (c. 58.) So limited is the doctrine of Essoins in the present day, that it will here suffice to observe, there were five _principal_ kinds in the reign of Henry the second; I say principal, because there were necessarily many others of less importance. These, as enumerated by Sir Edward Coke, were; 1. _de servitio Regis_. 2. _In terram sanctam_. 3. _Ultra mare_. 4. _De malo lecti_. 5. _De malo veniendi_; the two last being the same as those _ex infirmitate de reseantisâ_ and _ex infirmitate veniendi_, so frequently mentioned by our author, in the present book. Essoins are said to have been derived to us from the Normans. (Vide Assises of Jerusalem, c. 58. le Grand Custum. de Norm. sparsim. Bracton 336. b. et seq. Fleta L. 6. c. 7. Mirror, 117. et seq. 2 Inst. 125. Spelm. Cowell. Les termes de la ley, &c. &c.)]

[Footnote 47: In affirmance of this period of time, see _Articuli super chartas_, c. 15. and Lord Coke’s comment. (2 Inst. 567.) The Norman code required the same period to render a summons lawful, Grand Custum. de Norm. c. 49. See also Bracton 334. a. and Fleta L. 6. c. 6. s. 11. 12.]

[Footnote 48: It seems from the _Regiam Majestatem_, that if the summons were made by one summoner, in the presence of lawful and sufficient witnesses, it was good. These witnesses were to verify the summons, before the defendant could be compelled to answer. (Reg. Maj. L. 1. c. 6.)]

And, if, within that period, he appear not, the Seisin[49] shall be adjudged to his adversary, so that from thenceforth the Tenant shall not be heard, unless in a suit concerning the propriety, and that authorised by the King’s Writ of Right.[50] If, however, he appear within the fifteen days, and be desirous of replevying the Tenement, he shall be commanded to appear on the fourth day, and he shall have that which he is legally entitled unto; and thus, if he appear, he may recover the Seisin. Should he, however, appear at the third Summons, and confess the former Summonses, he shall instantly lose the Seisin, unless he can excuse his default by the King’s Warrant, and by the Writ, which he should instantly produce.

[Footnote 49: _Seisina_ “is borrowed of the French _seisine_, ‘_possessio_,’ and so it signifieth in our common Law.” (Cowell ad voc.) _Craig_ concludes, that as we had the term, so we had the doctrine from the French. (Craig Jus Feud. L. 2. Dieg. 7. s. 1.) Sir Edward Coke and Sir Henry Spelman coincided with Cowell and Craig in the derivation. (Co. Litt. 17. a. Spelm. Gloss. ad voc.) The term, it seems, was used, both by the canonists and civilians. (Cowell ubi supra: vide also Index ad Anglo-Sax. LL. verb. _saisiare_ and references there.)]

[Footnote 50: Vide Bracton 367. a.]

CHAP. VIII.

“The King to the Justices, Health. I warrant _B._ who was at such a place, by my precept, on such a day, in my service, and, therefore, could not be present before you on that day at your Assizes; and I command you, that you put him not in default for his absence that day, nor that he in any respect suffer loss.

Witness, &c.”[51]

[Footnote 51: Vide F.N.B. 36. 37. Ed. 1687.]

CHAP. IX.

If he should deny all the summonses, he shall, as to each of them individually, corroborate his denial with the oaths of twelve.[52] Should it happen on the day appointed that either of the Compurgators[53] fail, or should the person of either of them be justly excepted to, and the vacancy occasioned by either of these circumstances not be filled up, the Tenant shall, on account of his default, immediately lose his Seisin.[54] But, if the Tenant thus completely disprove the summonses, he shall on the same day answer to the Action.[55]

[Footnote 52: _Duodecimâ manu._ The author of the commentaries renders this expression eleven, besides the principal, an interpretation which is more or less confirmed by the following authorities: Co. Litt. 295. a. 2. Inst. 44, and the Diversity of Courts, p. 324. On the other hand, Les Termes de la Ley, in describing the ceremony as applied to the very object of the text, expressly says, that the principal should be accompanied by twelve. (Ibid. ad voc. _ley_.)

Bracton, when treating of the subject, employs the same expression, and observes, that the land was not to be replevied, before the tenant had waged his law, nor, if he failed in waging it; and he lays it down, that the Tenant could not wage his Law by means of an Attorney constituted for that purpose, but must do it personally. (Bracton 366. a. 410. a.) As to the _origin_ of waging Law, the reader may consult Cowell ad voc. _Law_ and les Termes de la ley _ubi supra_ and Bl. comm. 3. 341. &c.

Before we quit this chapter, it may not be amiss to observe, that Sir Edward Coke refers to it to show, that previous to Magna Carta, he that would make his Law in any Court of Record, must bring with him _fideles Testes_. (Co. Litt. 168. b.)]

[Footnote 53: Bracton tells us, that it was not necessary that the compurgators should be of the same rank as their Principal: it was sufficient if they were trust-worthy, and of good characters. (Bracton 410. a.)]

[Footnote 54: Mr. Reeves observes, that the waging of Law is not mentioned by Glanville, as a mode of proof for the defendant in civil suits. That judicious writer must be understood, as speaking of that proof, which constituted the defence to the Action.]

[Footnote 55: Vide Mirror, c. 4. s. 7. Bracton 366. a. b. 368. a. b.]

CHAP. X.

If the Tenant, being summoned, appear not on the first day, but Essoin himself, such Essoin shall, if reasonable, be received; and he may, in this manner, essoin himself three times successively; and, since the causes, on account of which a person may justly essoin himself, are various, let us consider the different kinds of Essoins.

CHAP. XI.

Of Essoins, some arise on account of ill health, others from other sources. Of those Essoins which arise from ill health—one kind is that _ex infirmitate veniendi_—another _ex infirmitate de reseantisâ_.[56]

[Footnote 56: _Reseantisâ_, from the French _reseant_, or _resiant_, or when anglicised, resiance, a term which Dr. Johnson explains in his dictionary, as meaning a residence, though, as he remarks, it is now only used in Law. In this, its simple sense, our author has used it, in a subsequent part of his work. (L. 12. c. 7.) Yet it assumes a different meaning, as used by the old English and Scotch Lawyers to denote an Essoin, when it indicated, as Skene expresses it, “a long and old sickness, or a resident, heavy infirmity and sore sickness.” (Regiam Majestatem, L. 1. c. 8.) An observation in the margin of our author informs us, that this Essoin was synonymous with that _de malo lecti_; in other words, this Essoin was resorted to on account of such a severe indisposition as necessarily confined a man to his house or bed.]

CHAP. XII.

If the Tenant, being summoned, should, on the first day, cast the Essoin _de infirmitate veniendi_,[57] it is in the election of his Adversary, being present, either to require from the Essoiner a lawful proof of the truth of the Essoin in question, on that very day,[58] or that he should find pledges, or bind himself solemnly, that at the day appointed he will have his Warrantor of the Essoin; and he may thus Essoin himself three times successively. If, on the third day,[59] he neither appear nor essoin himself, then let it be ordered, that he be forthcoming in proper person on another day; or that he send a fit Attorney in his place, to gain or lose for him. Thus, whoever on the appointed day may appear in the place of the Tenant, offering to undertake his defence, whether authorised by his Letters, or without them, is immaterial, if it be known, that he be allied to the absent Tenant, he shall be received for him in Court, either to gain or lose.[60] It may be asked, what will be the consequence if the Tenant appear at the fourth day, after having cast three Essoins, and warrant all the Essoins? In that case, he shall prove the truth of each Essoin[61] by his own oath and that of another; and, on the same day, he shall answer to the suit. If, on the fourth day, he neither appear nor send an Attorney, let the Tenement be taken into the King’s hands, a Writ being issued by the Court for that purpose, directed to the Sheriff of the County, in which such Tenement is situated, which Writ is in the following words:

[Footnote 57: Or _de via Curiæ_, as it is termed in the Norman code. This Essoin was cast, when the party on his way to Court had fallen suddenly sick, and was thereby prevented attending. (Le grand Custum. de Norm. c. 39.)]

[Footnote 58: “_Or on another_,” according to the Cotton. Bodl. and Dr. Milles’s MSS.]

[Footnote 59: “_Fourth_,” according to Dr. Milles’s MS. and so it undoubtedly ought to be, as the context evinces.]

[Footnote 60: Vide Infra, L. 11. c. 5.]

[Footnote 61: It should seem, from Bracton and Fleta, that such persons only as were inferior in dignity to Barons, were required to prove the truth of their Essoins by their own oaths. (Bracton 351. b. Fleta L. 6. c. 10. s. 15.) By the 19th c. of Marlbridge, even these persons were relieved from the obligation. (2 Inst. 136.)]

CHAP. XIII.

“The King to the Sheriff, Health. I command you that, without delay, you take into my hands the half of the lands in such a will, which _M._ claims, as her Dower, against _R._ concerning which there is a suit between them in my Court, and that you make known the day of the caption to my justices. And summon, by good Summoners, the aforesaid _R._, that he be before me[62] or my Justices at Westminster _a crastino octabus clausi Paschæ in quindecim dies_, to hear his judgment, and have there the Summoners and this Writ. Witness Ranulph de Glanville at Westminster, &c.” In addition, let the Sheriff of the County be commanded to take the Essoiners, as Defaulters, and to detain them, and for this purpose the following writ shall Issue:

[Footnote 62: Vide Madox’s Excheq. c. 3. s. 3.]

CHAP. XIV.

“The King to the Sheriff, Health. I command you that, without delay, you diligently seek, through your County, _A._ who has falsely Essoined _B._ against _C._ in my Court, and that you safely keep him, until you have my other precept. Witness, &c.” The Defendant himself shall also, in the mean time, be summoned to appear before the King, or his Justices, to show why he has not warranted his Essoiner, and to answer to the principal suit. Besides, the Pledges of the Essoiners shall be summoned, by the following Writ.

CHAP. XV.

“The King to the Sheriff, Health. Summon by good Summoners _T._ that he be before me, or my Justices, at Westminster, in fifteen days from the Pentecost, to show why he has not had _I._ before me at Westminster, on such a day, to warrant the Essoin that _I._ made for him in my Court against _M._ as he pledged himself to have him. And have there the Summoners, and this Writ. Witness, &c.”

CHAP. XVI.

But, if the Tenant appear within the fifteen days, and be willing to replevy the Tenement, let him be commanded to attend, on a day appointed, that he may then have justice done him; and, if he appear on that day, and find pledges, he shall recover his seisin, and may retain it. If he deny all the Summonses, and all the Essoins, and disprove them individually with the oaths of twelve, or if he acknowledge the first Summons, and warrant the three Essoins, and save the fourth day by the King’s Writ of warranty, which he should forthwith produce, he may also retain his Seisin. But, if the Tenant appear not within the fifteen days, the seisin shall, on the following day, be adjudged to his adversary, so that the Tenant shall never again be heard concerning it, unless by the King’s Writ concerning the Right.[63] But the Demandant shall be put into the possession of the Tenement, by the following Writ, directed to the Sheriff.

[Footnote 63: The severity of this Law was mitigated by 9 Ed. 3. c. 2. whereby none were to lose their land, by reason of _non-plevin_. A note to this effect is inserted in the margin of our Author; but the reference to the chapter is erroneous.]

CHAP. XVII.

“The King to the Sheriff, Health. I command you that, without delay, you deliver possession to _M._ of so much land in such a Vill, of which there was a suit in my Court, between him and _R._; because the Seisin of such Land is adjudged to the said _M._ in my Court, for the default of _R._ Witness, &c.”

CHAP. XVIII.

If any one desire to cast the _Essoin de infirmitate de Reseantisâ_, he may thrice do it.[64] Yet should the Essoiner, on the third day preceding that appointed, at a proper place, and before a proper person, present his Essoin. If, on the third summons, the Tenant appear not, the Court should direct, that it may be seen whether his indisposition amount to a languor,[65] or not. For this purpose, let the following Writ issue directed to the Sheriff.

[Footnote 64: “_And by two Essoiners_,” according to Cotton. and Dr. Milles’s MSS.]

[Footnote 65: Skene explains a languor by “a vehement sickness of body, or of mind.” (Reg. Maj. L. 1. c. 8.)]

CHAP. XIX.

“The King to the Sheriff, Health. I command you that, without delay, you send four lawful men[66] of your County to see of the infirmity of which _B._ hath essoined himself in my Court, against _R._ be a languor or not. And, if they perceive that it is a languor, then, that they should put to him a day of one year and one day, from the day of the view, to appear before me, or my justices, or that he send a sufficient Attorney to answer for him. And if they see that it be not a languor, then, that they put him a certain day, on which he shall appear, or send a sufficient Attorney to answer for him. And Summon, by good Summoners, the aforesaid four Knights, that they be then there to testify their view, and the day they put him; and have there the summoners and this Writ. Witness, &c.” It should be observed, that two Essoiners, at least, are necessary to cast this Essoin.

[Footnote 66: The text is _Homines_. The Translator submits that it should be _milites_, a reading warranted by the latter part of this very writ; and authorised by the concurring testimony of Bracton, Fleta, Grand Custum. of Norm. &c. See also chapter 28. of the present Book—where, a similar object being in view, four _Knights_ are directed to be sent.]

CHAP. XX.

It should also be remarked, that the two first essoins may be cast _de infirmitate veniendi_, and the third _de reseantisâ_.

Should that course be adopted, the Court should send to ascertain, whether the indisposition amount to a languor, or not. If, however, the two first essoins should be _de reseantisâ_, and the third _de infirmitate veniendi_, it shall be ordered as if they were all _de infirmitate veniendi_, because the judgment must always follow the nature of the last essoin.

CHAP. XXI.

Should it upon any of these occasions happen, that the party himself should answer in Court, and whilst he was present, a future day should have been appointed him; if, at that day, he neither come nor send an Attorney, let his land be taken into the King’s hands, and let him be debarred the power of replevying it. And he shall be summoned to appear and hear the judgment at an appointed day—and thus, whether he appear or not, he shall lose the Seisin, on account of his default; because he cannot afterwards deny the summons, unless by the King’s Writ, which he should forthwith produce, and by which he may save his default. But although on any of the days appointed for his appearance, the Tenant should answer in Court, if he lawfully depart, he may recur to his three Essoins, unless he has precluded himself by an agreement to waive them. If, on the first day, the party should essoin himself, but, on the second, should neither appear nor essoin himself, let the Sheriff be commanded to attach the Essoiner, as a defaulter, and for this purpose let the foregoing Writ be directed to him.

CHAP. XXII.

But it should be observed, that when a party to a suit has Essoined himself, the Essoiner may also avail himself of a reasonable Essoin. For if any one desirous of casting a reasonable Essoin, should commission a person for this purpose, and the Essoiner meets with some reasonable impediment in the way, by which he is prevented being present at the appointed day, he shall be awaited until the fourth day, as his Principal would have been; and if within that period he appear, his Essoin shall be received, on whatever day he should come; and he may thus save the days which are past for the same causes for which his principal[67] could.

[Footnote 67: _The Tenant_, according to Dr. Milles’s MS.]

CHAP. XXIII.

The principal Essoiner is also at liberty, if so disposed, to essoin himself by another Essoiner. In this case the second Essoiner must state to the Court, that the Tenant, having a just cause of Essoin, had been detained, so that he could not appear at the day appointed, neither to lose nor gain, and that, therefore, he had appointed a certain other person to essoin him; and that the Essoiner himself had met with such an impediment, which had prevented his appearance on that day:—and this he is prepared to prove according to the practice of the Court. By these means, such Essoiner shall be received, and a day shall be granted to the Tenant, through the medium of such Essoiner, upon his undertaking to produce his Warrantor on such a given day, when the Tenant ought to guarantee his principal Essoiner, and to prove his Essoin in the usual manner. In the same manner, the first Essoiner is to guarantee the second, unless on the first day he himself has proved his Essoins, upon the requisition of the adverse party.

CHAP. XXIV.

But if the Tenant, desirous of proceeding in the cause, should, after his Essoin cast in Court and within the fourth day, appear, then, if the day was in the first instance fixed through the intervention of the Essoiner, and the adverse party has under these circumstances left the Court, the Demandant[68] cannot recover, as he might on the day past.

[Footnote 68: According to the Bodleian MS. it would stand, he (the Tenant) cannot recover, &c.]

CHAP. XXV.

There is another species of Essoin; which is permitted from the necessity of the case; and this happens when any one casts the Essoin _de ultra mare_.[69] In that case, if the Essoin be received, the period of forty days, at least, shall be given to the party essoined. But if, by means of this or any other reasonable Essoin, a man would essoin himself for a longer period, the usual course of the Court shall be followed in giving time.

[Footnote 69: “There is,” says the Regiam Majestatem, “another kind of Excuse or Essoin which is necessary, that is, when any one is essoined because he is beyond the water of Forth or of Spey; and, if this Essoin is found lawful, forty days shall be granted to him who is excused.” (Vide Reg. Maj. L. 1. c. 8.) The inconveniences resulting from the abuse of the Essoin in our text were remedied by West. 1. cap. 44. Vide Sir Edward Coke’s Comment. 2 Inst. 251.]

CHAP. XXVI.

There are other Essoins which eventually may be resorted to, in order to save the four days, or one of them, by means of which Essoins the adverse party should be awaited in Court: as, for Example, a sudden inundation, or any other unexpected event which could not be foreseen.

CHAP. XXVII.

The service of the King is also another reasonable cause of Essoin,[70] and when this Essoin is proved in Court and allowed, the Suit shall stand over _sine die_, until it appear that the party has returned from the King’s service. Hence those who are continually in the King’s service, as his Servants,[71] shall not avail themselves of this Essoin; but, with respect to their persons, the ordinary course of the Court, and the order of the Law, shall be observed. We must, however, make a distinction, with respect to the foregoing Essoin. The party desirous of availing himself of the Essoin _per servitium Regis_, will either have been summoned by his adversary previously to entering into such service, or he will have entered into such service in the first instance, and have afterwards been summoned.

[Footnote 70: And, as this was founded upon a political _obligation_, it did not extend to excuse the Defendant, if in the service of any other person. (Bracton 336. b.)]

[Footnote 71: _Servientes._ This term was received in many different senses. Sometimes it meant, persons holding military rank—Sometimes, Vassals or Tenants only—Sometimes, Esquires. It is, in this latter sense, that Lord Littleton and Dr. Brady seem inclined to think it was more generally used (Litt. Hist. Hen. 2. Vol. 3. p. 87.) Mr. Selden, however, has, in his Treatise on Titles of Honor, proved, that there were some very material distinctions between the terms, and that they were far from being synonymous. Dr. Sullivan, when he meets with the word in a Law of the conqueror, explains it as meaning “the lower soldiers, not knighted, who had not yet got lands, but were quartered on the Abbies.” (Lectures on Laws of England, p. 266.) Sir John Skene interprets, what I presume is the same Term, as meaning domestic servants. (Reg. Maj. L. 1. c. 8.) This is, I apprehend, the true meaning of the text, notwithstanding that _Servientes_, when connected with the terms _domini Regis_, sometimes meant a particular description of officers, residing in every County, and possessed of an authority, perhaps, not altogether unlike that of Sheriffs or Coroners, after whom, they are enumerated by Bracton. (L. 3. Tr. 2. c. 32.)]

If he were in the first instance in the King’s service, and in the mean time be summoned to answer the suit, the Rule we have above laid down must unquestionably prevail. On the other hand, if a party be impleaded in the first instance, and he afterwards cast the Essoin _per servitium Regis_, it is material to ascertain, whether he act by a mandate of the King, or a general or special precept, and be from necessity in such service, or otherwise. If he were called by a precept of the King into his service, then, indeed, the same Law prevails, as in the former instance. But if, on the other hand, voluntarily and without any such precept, he has recently entered into the King’s service, it must be distinguished, whether he has gone beyond sea in that service, or remains within the Realm. If he has gone beyond Sea, a respite[72] of forty days, at least, shall be allowed him, but, if he should not return within that period, the accustomed course of the Court, and the order of Law shall be observed. At whatever period he appears in Court, and whether personally, or by his Attorney, he must immediately produce the King’s Writ, to warrant his preceding Essoins. But if, on the other hand, the Defendant be within the Realm, and in the service of the King, in that Case it must be regulated by the will and pleasure of the King’s Justices, whether a less or a greater period[73] be allowed him to appear and answer, according as it may best suit the King, and may be consistent with the course of Justice.

[Footnote 72: _Respectus, pro mora, dilatione vel continuatione temporis._ In this sense, the term frequently occurs in our old law books. (Vide Reg. Maj. L. 4. c. 20. and Spelm. Gloss. ad voc.) There is in the Register a writ _respectu computi vicecomitis habendo_, for the respiting a Sheriff’s accounts. There was also _respectus Homagii_, delaying of Homage. (See Cowell ad voc.)]

[Footnote 73: _Terminum._ “In the Civil Law,” says Spelman, “it signifieth a day set to the Defendant, and in that sense doth Bracton, Glanville, and some others sometimes use it.” (Reliquiæ Spelmannianæ p. 71.)]

CHAP. XXVIII.

It may also happen, that a party is essoined in Court, on account of some indisposition by which he is confined in the same Town where the Court is sitting, having arrived there to prosecute his plea. In this case, let the Court direct, that he appear on the morrow; and thus let him be awaited during three successive days—and for this cause, he shall have a delay of three successive days. If, on the third day, he then so essoin himself, then four Knights should be directed by the Court to attend him for the purpose of ascertaining, whether he is in such a state as to be able to make his appearance in Court, or not; and, should they be of opinion that he is able, then, they should command him, to attend in Court, and do that which he ought. But, if they should think him unable, and should testify this to the Court, then shall a reasonable time, a delay of fifteen days at the least, be allowed him.

CHAP. XXIX.

There is also another Essoin, which is sometimes presented in Court—I allude to that, _de esse in peregrinatione_. But here a distinction must be made, whether the party who would thus essoin himself was impleaded before he undertook his Voyage, or not. Because, in the former case, the course of the Court and the order of Justice shall be observed. But, if he was not summoned previously to his beginning his Travels, then again it must be distinguished whether he went to Jerusalem, or to another place. If to the former place, then a year and a day, at least, is generally allowed him; but with respect to other Travels, the time allowed must be regulated by the Will and pleasure of the King, or his Justices, who, keeping in view the length or shortness of the Journey, are to temper the Rule as they may think proper.[74]

[Footnote 74: The Regiam Majestatem lays down the doctrine of Essoins, nearly word for word with Glanville: but adds one species of Essoin not taken notice of by our author—the being absent at a public fair. (L. 1. c. 8.)]

CHAP. XXX.

In the Writ directed to the Sheriff, for the purpose of summoning the party, there is the following clause inserted, “and have there the summoners and this Writ.”

When, therefore, the Demandant offers himself in Court on the appointed day, the first inquiry is, whether the Sheriff has the Summoners, and the Writ there present or not; if he have, and the Summons be proved, the Suit must be proceeded in, in the manner we have mentioned. But, if the Sheriff should neither be present on that day, nor appear within the fourth day, to which time the Tenant must be awaited, then let the Sheriff be again commanded by the King’s Writ, to summon the Tenant, concerning the principal cause, by a Writ of second Summons, and that he himself appear to shew why he neglected to make the Summons, as enjoined him by the first Writ. The Writ of second Summons contains that which first issued, with the addition of the following clause: “_and be you yourself then there present to shew wherefore you did not summon him, as it was commanded you by my other Writ, and have there this Writ, and that other Writ_.” At the day appointed, the Sheriff appearing, either says that he executed the King’s precept, or confesses that he has not done it.

Should he acknowledge the latter, then he shall be amerced to the King. But, in this case, the Demandant shall lose his first day, and the Tenant must be again summoned. But should the Sheriff allege that he had injoined lawful Summoners to execute the first Summons—and they, being present, acknowledge the fact, then not only the Sheriff, but the Summoners shall be amerced,[75] if they have not executed such Summons as it was their duty to do; and thus again the first day will become useless to the Demandant.

[Footnote 75: It should rather seem that in Bracton’s time the Summoners only would be amerced. (Bracton 336. a.)]

But if those whom the Sheriff nominated as Summoners, being present, should assert that the Sheriff did not injoin them to summon the Tenant, we must then distinguish, whether the Sheriff delivered his order to them in the County Court, as he always ought to do, (in order that, if the complaint be presented some time before a County Court, the party may be attached until the County Court, and then there may be a full Summons,) or in any other manner. If the Sheriff gave his orders to them in the County Court, and this be properly proved, the Summoners shall be amerced, because they cannot contradict a fact, which has been transacted in a County Court.[76] But if the Sheriff, being out of the County Court, and less publicly than he ought, injoin them to summon the Tenant, and they deny that he did so injoin them, the Sheriff shall be amerced for not having executed the King’s Writ in the manner that he ought. For public Acts of this nature, such as, the injoining Summoners—the taking of Pledges for the prosecuting of Actions—and for Appearances,[77] ought to be publicly transacted, lest concerning these steps, which are merely preparatory to a final determination, a difficulty should arise, in itself the occasion of procrastinating the decision. But if, on the first day, the Summoners should not appear and assert that they had in a legal way executed the first Summons, but should send their Essoiners on the first day, who essoin them, and add, that they had properly executed the first Summons, then the Demandant shall not lose his first day, and they shall be amerced, because they have not appeared at the first day to prove that they had executed the Summons as was injoined them, unless they can excuse their default on that day, by the King’s Warrant. We must, however, not forget, that either the one or the other of the Summoners is permitted legally to excuse himself on the first day, and in that case the Demandant shall not lose the day in question.

[Footnote 76: Because, says Bracton, the County Court has for this purpose a Record (Bracton 336. a.) The force of Bracton’s remark will be seen in the sequel.]

[Footnote 77: _Tam in civili negotio, quam criminali._ (Bracton 336. a.)]

CHAP. XXXI.

We have spoken concerning the absence of the Tenant, when he is merely summoned, and no Pledges are given. But, if the suit be of a nature to make it requisite, that the Tenant should find Pledges for his appearance, and the Justices or the County Court have recorded them, (which happens in the civil matter of a breach of a Final Concord made in the King’s Court before the King or his Justices, and in Novel Desseisins) then, if the Tenant neither appear at the first day, nor essoin himself, the Pledges are adjudged to be amerced to the King; and the Pledges shall be increased as to the principal Cause; and thus, should the Tenant absent himself on all the three days, the Suit must be proceeded in; and if at the third Summons he should not appear,[78] let his Tenement be taken into the King’s Hands, and retained in the manner before expressed; the Pledges being amerced, who are to be summoned to be present in Court on a certain day, to hear their Judgment. Should, however, the Plea be of a criminal nature, as, for example, concerning a breach of the King’s Peace, then, the proceedings must be according to the course of the Law, as in the above case, with this only difference, that as the party is accused,[79] if he fail to appear at the third Summons, his body shall be taken, and his Pledges shall be amerced.[80]

[Footnote 78: There is in the original a marginal reference to the 44th, for the 45th, chap. of West. the 1st.]

[Footnote 79: “_Rectatus_,” ad rectum vocatus. (Spelm. Glossar. ad voc.) _Rectum_ not unfrequently meant an accusation.]

[Footnote 80: _Misericordia_, a fine arbitrarily imposed upon offenders, and so called, says Spelman, _quod lenissima imponitur misericordia_, heavy fines being contradistinguished by the significant term, _redemptiones_. (Gloss. ad voc. see also Co. Litt. 126. b. and Madox’s Excheq. c. 14.) In our progress through Glanville, we meet with the _misericordia_—_misericordia domini_—_misericordia vicecomitis_, and _misericordia domini regis_—Vide Infra. L. 9. c. 11. et not.]

CHAP. XXXII.

Having discussed those points which more frequently arise, in consequence of the absence of the Tenant, it remains to speak, concerning the Demandant’s not appearing. If the Demandant indeed appear not on the first day, he may avail himself of the same reasonable Essoins as the Tenant, and that by the same means.

If, however, he neither appear nor essoin himself, then, the Court should award, that the Tenant, if present, either personally, or by another, as he ought to be, should be unconditionally dismissed. Yet this is not to preclude the Demandant from recovering, under certain restrictions, the same property, if he feel inclined to institute another suit concerning it.

And, if the Demandant be again inclined to implead the same Tenant, it may be questioned, what the Law is in that case, and how his default should be punished? As to this, opinions differ. For some say, he shall lose nothing but his Cost[81] and his Expenses, and his first Writ, but not his cause of Action; but merely be obliged again to begin his suit. Others say, that he shall forfeit his Action against the Tenant totally, and irrevocably, and, on account of the contempt he has been guilty of towards the Court, that he shall likewise be amerced to the King. Others again are of opinion, that he must be amerced to the King, and that it afterwards depends upon the King’s pleasure, whether he will be admitted again to institute that Action, or reinstated either unconditionally, or subject to certain restrictions. Thus far it will suffice to have treated, where the Action is prosecuted without any Pledges being given. But, if the Demandant find Pledges for prosecuting his Suit and fail to appear, either personally or by another, on the day appointed, then the Tenant shall be unconditionally dismissed. And the Demandant shall lose his Writ, according to the opinion of some, and the whole of his Cost; and his Pledges shall be amerced, as before stated.

[Footnote 81: _Custum._ Sir Edward Coke, in his Commentary on the Statute of Gloucester, observes, that “before that Statute at the common Law, no man recovered any costs of suit, either in Plea real, personal, or mixt:” and again, “this Statute was the first that gave costs,” (2 Inst. 288.) In support of this position, he cites the present chapter of our author. It is extremely difficult to discover, how this chapter corroborates Lord Coke’s position. Our author merely recites the opposite and floating opinions of others, and drops the subject, without giving any thing like an opinion of his own. Lord Coke’s doctrine may be correct; but, assuredly, Glanville cannot be cited as one of the authorities, on which that doctrine is built.]

But others think, that he shall forfeit his Action, and his Pledges, &c. But this is the consequence when the suit belongs to the Demandant only, as it generally does in civil cases. When, however, the Suit does not belong to him only, but the King has an interest in it, as in a criminal Plea, concerning a breach of the King’s peace, then, as the Demandant cannot lose the suit, unless as to himself, but is bound to prosecute it, his Body shall afterwards be imprisoned and kept safely, until he chuses to prosecute his Appeal,[82] and, in addition, his Pledges shall be amerced.

[Footnote 82: Upon the word _Appeal_, as designating a criminal proceeding, it will suffice to refer those readers not connected with the profession to 4 Black. Comm. p. 312. et seq.]

CHAP. XXXIII.

When it happens that the Demandant and Tenant are both absent, then the King or his Justices may at their pleasure, if so disposed, punish both parties, the one for his contempt of Court, and the other for his false claim.