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.
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]
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]
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.
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]
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.
“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.”
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.
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.
“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]
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]
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.
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]
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:
“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:
“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.
“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.”
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.
“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.”
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.
“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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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]
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.
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.
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]
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.
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.
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.