Ancient prac tice. Of Distress. In those actions in the realty, in which land is not exclusively and properly the subject of the demand, the process, as we have seen, is in general summons, attachment, and distress. (a) Formerly if the defendant neglected to appear on the return of the attachment, a distringas issued against him, in order to compel such appearance, and by the statute of Westminster, c. 45, it was enacted, that if the tenant after the first attachment returned, make default, the grand distress shall be awarded. (b) The grand distress, or distress infinite, is a process to compel the defendant, by repeated distresses, to appear to the action, but by a late statute, the method of procuring an appearance in actions where the process is summons, attachment, and distress, is, as we have seen, much facilitated. (c) Before this statute the plaintiff had no means of proceeding in the suit (d), if the defendant, notwithstanding the repeated distresses, still refused to appear, except in certain actions which were specially provided for by statute, and in which, upon the defendant's neglect to appear on the return of the distringas, judgment was given against him. By the statute of Marlbridge, c. 7, in a writ of ward, in which the process was summons, attachment, and distress infinite, a proclamation is directed to be made, and if the defendant still neglects to appear, judgment may be given against him. (e) And by the statute of Westminster 2, c. 14, in a writ of waste, if the tenant make default at the return of the distringas, a writ of inquiry of the waste done may (a) Ante, p. 146. (b) 2 Inst. 254. (c) See ante, p. 152. (d) Booth indeed appears to think that the statute of West. 2, c.45, which directs the grand distress to issue, entitles the plaintiff, on the tenant's default, at the return of that writ, to judgment, as in the case of a grand cape, Booth, 11, 12, 13; and such appears to be the opinion of C. B. Comyns, Digest, Process, (D. 7.) and see 2 Inst. 255, where Sir E. Coke upon the words of the statute of West. 2, c. 45. "and if he come not" (that is at the return of the distringas) observes "for then judgment is to be given against the defendant." (e) 2 Inst. 113. and see the alteration made by stat. W. 2, c. 35. 2 Inst. 442. and see as to the process in a writ of mesne stat. W. 2, c. 9. 2 Inst. 374. Dr. Foster's Case, 11 Rep. 64, a. issue, upon the return of which, judgment may be given (a); and so in a quare impedit, by the statute of Marlbridge, c. 12, if the tenant make default at the return of the distringas, a writ shall go to the bishop. (b) The distress in these cases is sometimes called distress peremptory; and it is to be observed, that if the defendant appears upon the return of the distringas, and afterwards makes default, the plaintiff is not entitled to judgment by these statutes, but must issue a fresh distringas. (c) It is apprehended that the statute 57 Geo. 3, c. 101, does not operate to prevent the plaintiff from issuing a distringas, and availing himself of the statutes referred to above. A distringas also lies at common law upon a default after ap- For default after pearance in actions in which the process to compel appearance appearance. is summons, attachment, and distress (d), and it is then said to be in lieu of a petit cape; and if the defendant again makes default on the return of the distringas, it seems that the plaintiff, in analogy to the case of an action strictly real, is entitled to judgment (e), and if the defendant should make default in the term of his appearance, it will be a departure in despite of the court, and the plaintiff will be entitled to judgment without further process. (f) The form of the distringas, when it issues before appearance, is that the sheriff distrain the defendant to appear "to answer the said A. B. of a plea, &c." (according to the cause of action). When it issues in lieu of a grand cape, the following words are added, “and also to hear judgment of many defaults;" and when the distringas issues in lieu of a petit cape, the first clause " to answer &c." is omitted.(g) The return of the sheriff is, that he has distrained the defendant by his lands and chattels, to which he adds the amount of the issues and the names of the manucaptors. (h) Sheriff's return. Who may have an essoign. Essoign for the party himself. Of Essoigns. An essoign signifies an excuse for not appearing at the return of process, and in most real actions it lies either for the demandant or the tenant. Essoigns are of five kinds. 1. De servitio regis. 2. In terram sanctam. 3. Ultra mare. 4. De malo lecti. 5. De malo veniendi, or the common essoign. In all, except the last, the demandant is delayed a year and a day. (a) At common law, in order to prevent essoigns from being used as a means of delay, the person casting the essoign was required to swear that the cause of the essoign was just and true, but by the statute of Marlbridge it was enacted that none need to swear to warrant his essoign. Although this act speaks of essoigns generally, yet it has been held only to apply to the common essoign de malo veniendi. (b) As all the other essoigns have been long obsolete, it will be sufficient to notice the practice concerning them in a very cursory manner. With the exceptions which will be afterwards noticed, both the demandant and tenant are allowed at common law to be es soigned. (c) As an essoign is only an excuse for not appearing, if the party who is desirous of being essoigned has appointed an attorney in the cause, there is no ground for excusing his delay, as the attorney is competent to carry on the proceedings. On this account it is a good cause of challenge to an essoign to say that the party has an attorney upon the record. (d) In casting a common essoign, the name of the essoignor, or the person who casts it, ought not to be entered (e), and if the essoign appears to be cast by the attorney of the party, it is bad (f). But (a) Viner Ab. Essoigu. Com. Dig. Exoine. Spelm. vox, Essoniare. 2 Inst. 125, 137. (b) 2 Inst. 137. (d) 12 Ed. 2, stat. 2, sec. 12. 1 Rol. Ab. 825, l. 47. Slay's case cited 1 Ld. Raym. 80. Carth. 45. (e) 1 Rol. Ab. 821, l. 11. (f) Anson v. Jefferson, 2 Wils. 164. It should be observed, that in this case it did not appear on the record that Henzell and Lodge who cast the essoign were the defendant's attornies. The entry was “essoign for John Jefferson, at the suit of Anson, by Henzel and Lodge." That fact appeared on affidavit, there fore quære. where the party has appointed an attorney, who has been subsequently removed, there an essoign will lie. (a) Upon the same ground, an essoign cannot be cast by the party in person, which would be clearly absurd (b); and in a writ against several, the plaintiff cannot be essoigned as against one, and appear by attorney against another. (c) As either of the parties to the suit may excuse himself from Essoign for the appearing, if he has not appointed an attorney to appear for him, attorney. so the attorney, when appointed, may, for the same reasons, essoign himself; for the causes which prevented the party himself from appearing, may also prevent the attorney. (d) This essoign has been long disused, but if it is thought expedient to cast an essoign after a man has appeared by attorney, either this mode must be resorted to, or the attorney must be removed. The attorney can only essoign himself by the common essoign. (e) The vouchee on the return of the summons ad warrantirandum, and the prayee in aid, on the return of the summons ad auxiliandum, may have an essoign. (ƒ) A corporation aggregate cannot have an essoign de malo veniendi, for they cannot come in their proper persons, nor can they be sick (g), nor can they have any other essoign. (h) Regularly an essoign lies in all real and mixed actions. (i) In what actions It is said, that at common law, neither the plaintiff nor the essoign lies. tenant in an assise of novel disseisin was allowed an essoign, because in that action delays are discountenanced (k); but it appears from Bracton, that this disability was only confined to the tenant (), and to the same effect is the rule given by Sir Edward Coke, locum non habet essonium in personâ disseisitoris vel redisseisitoris (m), though he adds, that it is said, that the justices of the King's Bench will not allow an essoign for the plaintiff in any manner of assise. (n) However, if the assise be discontinu (a) Y. B. 19 H. 6, 51. Chetham v. Sleigh, Carth. 45. (b) 1 Rol. Ab. 821, l. 25. (c) 1 Rol. Ab. 820, 1. 21. Br. Ess. 56. (d) 1 Rol. Ab. 818, l. 22. Br. Essoign, 129; but quære, whether both the party and the attorney ought to be essoigned. It seems not, Earl of Clanrickard v. L. Lisle, Hob. 46, 47. (e) 2 Inst. 394. (f) Com. Dig. Exoine, (B. 2). (g) Br. Corp. 28. 1 Rol. Ab. 818. l. 4. (1) Bract. 182, a, and see Br. Ab. (m) 2 Inst. 249. Jehu Webb's case, 8 Rep. 50, a. (n) And see 22 Ass. 79. At what period of the proceed ings essoign lies. ed by the non venue of the justices, on a re-attachment issued, the tenant may be essoigned. (a) In an assise of mortď'ancestor, juris utrum, and attaint, neither the tenant, by stat. Westminster 1, (b); nor the demandant, by stat. Westminster 2, (c) shall be essoigned, after he has once appeared in court; indeed it seems that no essoign lies for the tenant in mortdancestor. (d) These statutes do not apply to the assise of novel disseisin, nor to any other than the common essoign. Tenants in law as the vouchee, and the tenant by receit are within them. (e) The tenant in mortɗ ancestor after a discontinuance may however be essoigned. (f) The common essoign lies in a writ of dower, for the statute 12 Edw. 2, which enacts that an essoign shall not lie in a writ of dower, is to be understood of an essoign de servitio regis. (g) No essoign lies in judicial writs (h) as in scire facias (i), and grand or petit cape (k); but when the tenant wages his law on the return of the grand cape, and a day is given him to make his law, on the latter day he may be essoigned. (1) No essoign de servitio regis is allowed in dower, quare impedit, darrein presentment, or novel disseisin, because the law discountenances great delays in those actions (m); but the common essoign lies in quare impedit, for the defendant as well as the plaintiff. (n) At common law, whenever a person ought to appear in court upon the return of process, he might excuse himself from appearing on that day, by causing himself to be essoigned, but as this practice was used in many instances as a means of delay, it has been restrained in various cases by statute. In general, however, an essoign 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,(o) (a) 2 Inst. 249. (b) Stat. West. 1, c. 42. 2 Inst. 249. (e) 2 Inst. 249, 418. (ƒ) Ibid. but see 12 Ed. 2, st. 2, s. 13. post. (g) 1 Rol. Ab. 822, 1. 22. Bedingfield's Case, 9 Rep. 15, b. But see Hickson v. Hickson, Hutt. 69. (h) 1 Rol. Ab. 822, 1. 25. (i) West. 2, c. 45. 2 Inst. 469. Br. Essoign, 120. (k) 12 Ed. 2, c. 2, s. 1. Com. Dig. Exoine, (C). (1) Com. Dig. Abatem. (H. 5S,) and vide in "Saver default," post. (m) 2 Inst. 124. (n) Rast. Ent. 520. 2 Mall, Quar. Imp. 193. 1 Brownl. 159. 2 Inst. 125. (0) Com. Dig. Exoine, (B 5). |