(E) THE PROCEEDING AFTER ESSOIN. p. 251.

(A) EXOINE OR ESSOINE :-THE SEVERAL KINDS.

An exoine or essoine signifies an excuse for non-appearance at the return of process. 2 Inst. 125. (a) Lut. 861. b.

[*]And it lies in real actions for the demandant, or tenant; or in mixt. 2 Inst. 125.

So, in personal actions for the plaintiff, or defendant. 2 Inst. 125.

There are five kinds of essoins. 1. De servitio regis. 2. In terram sanctam. 3. Ultra mare. 4. De malo lecti. 5. The common essoin de malo veniendi. 2 Inst. 125.

In all, except the common essoin, the demandant shall be delayed for a year and a day. 2 Inst. 137. 252..

And the party ought to swear to the truth of his essoin: for the st. Marlb. 19. is to be understood only of the common essoin. 2 Inst. 137.

(B 1.) IN WHAT ACTIONS IT LIES.

An essoin lies, regularly, in all actions real, and mixt. 2 Inst. 125.
As, in writs of right, and entry.

So, if an assise abates by the non venue of the justices, &c. upon a re-attachment the tenant may be essoined.

2 Inst. 249.

So, upon a resummons in an assise of mort d'ancestor.

2 Inst. 249.

Or, if an assise be adjourned from Chester, upon a foreign plea, to C. B. : for the plea there is not the plea of assise. 2 Inst. 249.

So, though the essoin in personal actions was an abuse, yet it was allowed. 2 Inst. 125. 1 Brownl. 193. (b)

(B 2.) By what persons.

An essoin, by the common law, was allowed for the demandant or plaintiff, as well as for the tenant or defendant. 2 Inst. 125.

So, for the vouchee upon the return of the summons ad warrantizandum. And for the prayee in aid, upon the return of the summons ad auxiliandum.

So the attorney of the tenant or defendant may have the common essoin, but none other. 2 Inst. 394.

And if he has two attornies, one may be essoined without the other; for their power is joint, and several.

If the tenant casts an essoin for him and his attorney, it is only surplusage as to one of them. Hob. 47.

(B 3.) At what time.

An essoin, by the common law, may be cast at every day of appearance. Before appearance, or afterwards, before plea.

Before issue, or afterwards upon the return of the venire facias jur. &c. After voucher, at the day given for the appearance of the vouchee. R. Hob. 46.

At the day given by the roll for the return of the venire facias, though no venire be sued. Hut. 69.

But the tenant cannot be essoined after the vouchee has entered into warranty for the matter is then finished by him with the demandant, and also with the vouchee. R. Hob. 47.

So no essoin shall be after issue in dower. R. Hut. 69.

Nor in any real action upon the return of the habeas corpora. [*]Nor in personal actions upon return of the hab. corp. or distringas.

(B 4.) In what manner it shall be cast.

In all, except the common essoin, the tenant or defendant ought to swear to the truth of the essoin: for the st. Marlb. 52 H, 3. 19. that none 2 Inst. 137. juret pro essonio sud, extends only to the common essoin.

If he be assoined de servitio regis, at the day to which it is adjourned, he ought to bring his warrant under the great seal. Dy. 154. b. Vide post, (E).

And the essoiner ought to appear in person in court, that he may he sworn, and have a day for his warrant. 2 Inst. 314. (c)

If the essoin be de malo lecti, he shall have two essoiners, one who casts the essoin, the other who swears that he is sick. 2 Inst. 393. Vide post, (E.)

And it shall be cast only at a day certain: for he ought to appear the first day, and cast the essoin the third day. 2 Inst. 393,

The other essoins ought regularly to be cast upon the first day, which is the essoin-day. Dal. 3.

And if it be not, a ne recipiatur may be entered the next day, which is the day of exceptions.

But if a ne recipiatur be not entered, the essoin may be cast on the fourth day of the return.

Yet to prevent a ne recipiatur, it must be entered upon the essoin-day, though the writ be not returned till quartum diem post. Dal. 3.

When an essoin is cast, if it be not challenged, day shall be always given to the demandant and tenant, upon the common essoin, at the fifth return after. Lut. 862. (d).

And in other essoin, for a year and a day.

If the demandant does not appear at the day to which it is adjourned, he ought to be non-suited. R. 2 Vent. 117.

So, if his attorney does not adjourn the essoin. (e)

The essoin shall be cast between the demandant and tenant, though granted in respect of the plea, that may arise between tenant and vouchee, R. Hob. 47.

(C) WHEN AN ESSOIN DOES NOT LIE.

But, by the common law, an essoin was not allowed in an assise of novel disseisin, for the plaintiff, or tenant. 2 Inst. 249. 418.

Neither was it allowed in B. R. for the plaintiff in any assise. 2 Inst. 249. Nor, for the tenant in an assise of mort d'ancestor. 2 Inst. 249.

() If an attorney appear on the face of the entry to have cast an esşoin for a defendant, it is void. 2 Wils. 164.

(d) Cro. El. 367. Gilb. C. P. 13.

(e) Where an essoin is cast, and neither quashed nor adjourned to a particular day, the plaintiff in the king's bench, may declare the first day of the next term, and the defendant is not entitled to an imparlance. 2 T. R. 16.

By the stat. W. 2. 12. An essoin shall not be allowed for the appellant in an appeal of death.

Neither shall it be allowed for the plaintiff, or defendant, in a scire facias. By the stat. W. 2. 45. 2 Inst. 470.

[*]Nor in other judicial writ: as, upon a grand, or petit cape, or resummons. R. Jon. 331.

So, by the stat. W. 1. 42. In an assise of mort d'ancestor, attaint, or juris utrum, the tenant shall not be essoined after appearance. 2 Inst. 248. Though he be only tenant in law; as, a vouchee, &c. 2 Inst. 249. Nor the demandant. By the st. W. 2. 28. 2 Inst. 418.

The tenant, or demandant, shall not have the common essoin; for every statute, which speaks in general, shall be understood of the common essoin only. 2 Inst. 249.

So an essoin de servitio regis, or any other than the common essoin shall not be allowed in dower. 2 Inst. 124.

Nor in a quare impedit, or darrein presentment. 2 Inst. 124, 125.

So an essoin de malo lecti shall not be allowed in a writ of right in its nature, but in a writ of right only. 2 Inst. 394.

Nor, by the stat. W. 17. Between parceners, who claim by the same descent. 2 Inst. 493. 394.

So an essoin shall not be allowed after appearance by attorney, except where the attorney is removed. R. Carth. 45. (f)

And if there be a challenge of the essoin in such case, there is no need to say quod attornatus non fuit amotus. Per Holt, Carth. 48. (g)

(D) WHEN A MAN SHALL HAVE ONLY ONE ESSOIN.

So, by the stat. Marlb. 52 H. 3. 13. After issue to be tried by inquest, there shall be only one essoin.

And by the stat. W. 2. 27. The essoin shall be at the next day.

And therefore, in all personal actions, the defendant, after issue joined by him, to be tried by an inquest, shall have only one essoin, and at the next day of appearance.

1 Sal. 216. 454.

Or, if the first process is not served, or abates, it may be upon the alias : for the first was null.

If the first process was not actually sued, as in the case of a venire facias, it shall be at the day given by the roll. Hut. 69.

So, in personal actions, if the defendant was essoined before issue, he shall not have any essoin after issue. Godb. 235. 6.

So, by the stat. W. 1. 3 Ed. 1. 43. Parceners or joint-tenants cannot fourch; but shall have only one essoin.

And therefore, where each has one essoin after appearance, they cannot afterwards vicissim essoniare. 2 Inst. 250.

So, by the st. Glo. 6 Ed. 1. 10. Husband and wife after appearance cannot fourch, viz. in real actions.

2 Inst. 321.

(f) 1. And therefore as a corporation cannot appear except by attorney, they are not entitled to an essoin. Bro. Abr. Corporation, 28. Ca. Pr. C. B. 8. 2 T. R. 16.-2. And as at this day the defendant is in general at liberty to appear by attorney, no essoin is allowed in any personal action whatever, even where a peer or member of parliament is defendant. 2 T. R. 16.

(g) 1. No essoin was ever allowed in personal actions, on the return of a capias. 2 Str. 1194.-2. Nor even on a summons, where the defendant was seen in court, or appeared by attorney. 2 Wils. 165. supra.

So, in a personal action against several, they all shall have but one essoin. 1 Brownl. 193.

[*]But the plaintiff is not restrained by the stat. Marlb. or W. 2. but that he may have all essoins, as at common law. 2 Inst. 126.

So, if there are several tenants or defendants, each may have one essoin. 2 Inst. 126. 250. R. 2 Vent. 57.

So, if the defendant or tenant in an inferior court be essoined after issue, and then the plaint is removed; he may have another essoin at the day in bank; for the proceeding before is not of record there. 2 Inst. 127.

So, if a prayee in aid, or to be received, after issue be essoined at the day of the return of the summons, he may have another essoin afterwards; for the statute says, siquis posuerit se in inquisitionem, &c.

So, if issue be joined not to be tried by an inquest, the defendant shall have another essoin; as, if issue be upon the custom of London, which shall be tried by the certificate of the recorder. 2 Inst. 126.

So, before appearance, parceners or joint-tenants may have each one essoin for the stat. W. 1. 43. relates to essoins after appearance. Semb. 2 Inst. 250. 251. 2 Vent. 57.

So, if the tenant be essoined after a view, he may afterwards have an essoin in another respect; as, at the day given for the appearance of the vouchee for the tenant may say, that the vouchee is not the same person. R. Hob. 46.

So, in a real action, if the tenant be essoined upon a process, which is of no effect, he may be afterwards essoined; for the first essoin was null as, if he be essoined upon a summons which was returned tarde, wherefore an alias summons issued, he may be essoined upon the alias. Dy. 252. a.

So, if the first summons was not well returned, so as that a grand cape might issue by the stat. 31 El. 3. by reason whereof an alias summons is taken. R. Hut. 43. Jon. 7.

Though the first essoin was adjourned. Hut. 43.

So, in a real action, the tenant shall have an essoin after issue, though he had an essoin before for the stat. Marlb. does not extend to real actions. R. Godb. 235, 236,

(E) THE PROCEEDING AFTER ESSOIN.

After the essoin cast, if all the defendants appear, except him who cast the essoin, the same day shall be given to the other defendants, to which the essoin was adjourned. Jon. 331.

If the other defendants do not appear, the same day cannot be given; but there shall be a default, and a resummons shall be awarded returnable the same day, if they may save their default. R. Jon. 331.

If the tenant casts an essoin of ultra mare (which comprehends in terram sanctam,) or de servitio regis, by the course of the common law, the demandant or plaintiff shall have a writ out of chancery, reciting that the tenant, &c. is not ultra mare, &c. and commanding the justices to proceed; whereupon the essoin shall be immediately quashed. 2 Inst. 253.

And by the stat. W. 1. 44. If the essoin ultra mare be adjourned, and the demandant avers by the country that the tenant was within the realm on the day of the summons and three weeks after, it shall turn to a default. [*] So, if the demandant or plaintiff, essoined de servitio regis, does not bring his warrant under the great seal, testifying that he is in the king's service, he shall be non-suited. 2 Inst. 314.

And it must be by a writ under the great seal, directed to the justices, which testifies his employment in the king's service: which is most commonly done upon a certificate of the captain, under whom he serves, to the chancellor. 2 Inst. 314. Dy. 154. b.

So, if the tenant in a real action does not bring his warrant at the day, it shall turn to a default. 2 Inst. 314.

And by the st. Gloc. 6 Ed. 1. 8. in personal actions, if the defendant does not bring his warrant, he shall render twenty shillings or more, at the discretion of the justices, to the plaintiff for his journey, and shall be in the king's mercy.

And if it be after issue, the inquest also shall be taken by default. 2 Inst.

314.

So by the common law, if an essoin de malo lecti was cast, four knights were returned by the sheriff to inquire si fuerit languidus, and if found that he was not, he had fifteen days for his appearance; if found that he was, then he should have a year and a day, and before his appearance there was to be a writ de licentia surgendi. 2 Inst. 393.

But now, by the st. W. 2. 17. the demandant may insist quod non est languidus, and if found by inquest that he is not, it shall turn to a default. 2 Inst. 393.

So, in all cases, where an essoin ought not to be allowed, the demandant may challenge it. Lut. 862.

If the challenge be for such cause as appears to the court to be true, the essoin shall be adjudged immediately. Lut. 862. b.

If a demurrer be to the challenge, and the challenge is allowed, it shall be a default in the tenant. Carth. 48, 49.

And there shall be judgment against the tenant upon his default without a petit cape: for when he has relied upon that matter by demurring to the challenge, he cannot afterwards save his default; and then the petit cape would be vain. R. Carth. 48.

But where the party can show good cause for maintaining his essoin, it shall not be adjudged immediately, but ought to be adjourned. Lut. 862. b. And if it be not adjourned, it will be error. Lut. 862. b.

At the day to which it is adjourned, the tenant may disavow. Lut. 865. Or may demur to the challenge, and if it be adjudged for him, the plaintiff shall be nonsuited. Semb. Hut. 69.

If it be not adjudged for him, it shall be a default. R. Lut. 865.

If an essoin be disallowed, when it ought to be granted, it will be error. Hob. 47.

Otherwise, if granted when it need not. Hob. 47.

So, if an essoin be adjourned, and judgment at the day given by default, when no essoin was entered, it will be error. Dy. 330. a.

Though the entry of the essoin be upon the plea-roll; if, upon a certificate of the essoin-roll, it appears that no entry was there. Dy. 330. a, Vide Copyhold, (R 10.)

[*]EXPOSITION OF WORDS.

Vide AGREEMENT, (C)-CHANCERY, (3 A 8.-3 Y 1, &c.)-Covenant, (D 1, 2.—G 2.)—DEVISE, (N 1, &c.) Pardon, (C-D)-PARLIAMENT, (R 10, &c.)-PAROLS, (A 1, &c.)-POIAR, (B1, &c.)— USES, (N 12.)