by the Chancellor, upon a certificate of the captain, (or commander of the forces) under whom the person essoigning himself serves, and is directed to the justices. (a) It is said that as the delay by this essoign (a year and a day) is so great, the essoigner who essoigns the party, must appear in person in court, inorder that he may be sworn and have a day given him for bringing in his warrant. (b) The name of the person who casts this essoign ought to be entered; and it is not sufficient for him to swear that he is informed that his master is in the king's service, but he must affirm that fact positively (c); the essoign may be cast by one who is within age. (d) By the statute of Westminster 1, c. 44, the demandant may challenge the essoign of ultra mare; and aver that the tenant was in England the day of the summons, and three weeks after, and at the adjournment day this shall be tried by the country or otherwise, as the court shall award, and if it be found for the demandant, the essoign shall be turned to a default. (e) At common law, if a man was essoigned de malo lecti, which only lies in a writ of right (ƒ), the adverse party could not take issue on the health or sickness, and try it by a jury, but it was inquired into by four knights returned for that purpose by the sheriff, si fecerit languidus aut non, and if they found he was not languidus, he had fifteen days given him to appear in, so that there was a delay of fifteen days, in addition to the time lost before. To remedy this inconvenience, the statute of Westminster 2, c. 17, provided that the party might take issue, that the person essoigning himself was not languidus, and that if so found, the essoign should turn to a default. If he was found languidus he had a year and a day given him. (g) By the same statute it was enacted, that such essoign should not lie in a writ of right, between two claiming by one descent.(h) (a) Ibid. (b) Ibid. Br. Essoign, 44. (c) 1 Rol. Ab. 821, l. 42. (d) 1 Rol. Ab. 821, I. 19. soign, 55. Br. Es (e) 2 Inst. 252. (ƒ) 1 Rol. Ab. 823, l. 1. (g) 2 Inst. 393. 1 Reeves' Hist. 415. Com. Dig. Exoine, (B. 4. E). (h) 1 Rol. Ab. 823, 1.4. Of the Grand Cape. Ir the tenant, having been duly summoned, neglects to appear on the return of the writ, or to cast an essoign, or, in case of an essoign being cast, neglects to appear on the adjournment day of the essoign, the next process for the demandant is a judicial writ of grand cape, so called from the words cape in manum nostram, by which the Sheriff is commanded, that he take into the king's hands, by the view of good and lawful men of his county, the lands, &c. for the default of the tenant, and make known the day of the taking to the justices at Westminster'; and also that he summon, by good summoners, the tenant, that he be before the justices at Westminster on the return day, to answer to the principal plea, and to shew wherefore he was not before the justices, according to the former summons; or if the default be for not appearing on the adjournment day of the essoign-to shew wherefore he did not keep the day given him by reason of his essoign, before the justices at Westminster, &c., and that the sheriff have there the names of those by whose view he shall do this, of the summoners and the writ. (a) The grand cape must be served at least fifteen days before the return day; it is not sufficient to serve it fifteen days before the quarto die post (b), and where the writ is general, as in dower, where the demandant only demands her reasonable dower of the freehold, which was of her husband, without specifying the quantity, there must be a demand, in nature of a count, before the grand cape can issue, in order to ascertain the particulars and acres, &c. (c) Sheriff. The duty of the sheriff in executing the writ of grand cape Duty of the is, first, by the view of honest and lawful men of his county, to seise the tenements into the king's hands, and, secondly, to summon the tenant. For this purpose, the bailiff should take with (a) Br. Ab. Gr. Cape, 3, &c. 2 Saund. 43, c, note. Booth, 20. Bracton, 365, Gilb. Hist. C. P. 11. Com. Dig. Pleader, (B. 10). a. 22. In Cheshire one, two, or three (c) Booth, 21. Rast. Ent. 235, a. (b) Br. Ab. Gr. Cape, 29, 36. Booth, 237, a. Service disputed. Return. Tenant's ap pearance. him four inhabitants of the county, two as viewers, and two as summoners. The process of taking the tenements into the king's hands is a mere formal proceeding, the sheriff in the presence of the viewers, verbally seising them into the king's hands. (a) As early as the time of Bracton the words cape in munum nostram were considered as words of form, and the tenant was not turned out of possession (b), and where in dower, upon a writ of grand cape, cape in manum nostram tertiam partem rectoria, the sheriff took the tithes, and carried them away, the court said, that this was not such a seisin as was intended by the writ, and that the sheriff, by virtue of such a writ, ought to seise generally, but to leave them where he found them. (c) The summoners should then proceed to summon the tenant in the same manner as upon the first summons. (d) If the due service of the grand cape is disputed, and the tenant brings a writ of deceit, the service must be proved, as has been stated, by the examination of the viewers and summoners (e) and it may, therefore, be proper, at the present day, to adhere to the old form of service. If the sheriff makes no return to the first grand cape, an alias must issue before judgment. (f) The sheriff's return is, that he has taken into the king's hands by the view of A. B. and C. D., good and lawful men, &c., the lands mentioned in the writ, and that he has, by E. F. and G. H., given notice to the tenant to be before the justices at Westminster, at the time and place in the writ mentioned. (g) The names of the viewers and summoners ought to be returned by the sheriff, but, if the tenant appears and pleads, the omission is not error. (h) The tenant, after being summoned upon the grand cape, cannot be essoigned by the common essoign, because he ought to answer immediately to the first default. (i) At the return of the grand cape the tenant may appear, and save his default, by waging his law of non-summons, or alleging (a) According to Sir E. Cake, Co. Litt. 259, b, the pernors were the persons who seised the land, but quære this, for then they should have been examined on the writ of deceit. See ante, p. 137, and see Dalt. Sh. 61, b. (b) Bract. 365, b. (c) Michell v. Hyde, 1 Leon. 92, and see Jenk. Cent. 122. Atkins v. Gage, Noy, 152. Keilw. 117, a. (d) See ante, p. 146, and Countess of Rutland's Case, 6 Rep. 54, b. (e) See ante, p. 137. (f) Keilw. 54, b. (g) See the form in 2 Saund. 43, note. (h) Br. Ab. Retorn. de Br. 86. (i) Fleta, l. 6, c. 14, s. 7. Com. Dig. Exoine, (C). Booth, 15. Ante, p. 158. some other lawful excuse, and it is now usual for the demandant, instead of insisting upon judgment for his default, to waive it, and accept an appearance. (a) If the return to the summons be contrary to the 31 Eliz. c. 3, the grand cape may be superseded (b), or, if the judgment has been signed, it may be set aside. (c) default. Where there are several tenants, judgment cannot, in general, Judgment upon be given against one of them for a default, at the return of the grand cape, until the process is determined against the others, some of whom may, it is possible, appear and take the entire tenancy of the lands upon themselves, and after saving their default, bar the demandant for the whole. Thus, in a præcipe quod reddat against several, if two have appeared, and a third has made default, and a grand cape has issued against him, and there is idem dies given to the two who have appeared, and, upon that day, one of the two who have appeared makes default, and a petit cape issues against him, and he who originally made default again makes default, the demandant cannot have judgment and seisin of the land against the latter, because, on the return of the petit cape, the tenant, who had appeared and afterwards made default, may appear and save his default, and take the entire tenancy upon himself. (d) In a præcipe by two, if one of the demandants and the tenant make default, and a summons ad sequendum simul issues against the demandant who has made default, and a grand cape for the whole land against the tenant, who again makes default, and the demandant who made default appears, judgment shall be given for both the demandants, for the whole land; but, if one of the demandants be summoned and severed, judgment shall be given of the moiety for the other demandant. (e) If a tenant in a real action vouches, and a summoneas ad warrantizandum issues against the vouchee, who makes default at the return, a grand cape ad valentiam lies against him. (f) (a) 2 Saund. 43, a, note, and see post, in "Saver default." (b) Furnis v. Waterhouse, 1 Mod. 197. Freeman v. Canham, Barnes, 1. (c) Searle v. Long, 1 Mod. 248, the distringas in this case is analogous to the writ of grand cape. (d) Br. Ab. Grand Cape, 1. Booth, (S) See post, in "Voucher." Of Saver Default. In real actions, in which land is demanded, and in which the process to compel appearance is summons and grand cape, it has been shewn, that if the tenant makes default on the return of the summons, and a grand cape issues, and he again makes default on the return of the latter writ, the demandant is entitled to judgment by default, and the tenant will lose his lands, if such default be insisted on. Nor can the tenant save his land by merely appearing on the return of the grand cape, but he must also, if the demandant insists upon it, save his default, that is, he must shew some valid matter of excuse for his neglect, in not appearing at the return of the summons. If he succeeds in saving his default, the demandant's writ will abate; if he fails, the demandant will recover seisin. But the demandant may, if he please, release the default, and accept an appearance from the tenant, in which case the suit will go on in the regular course. It should be observed, that it is only in those real actions in which the process before appearance is summons and grand cape, and after appearance petit cape, that it is ever necessary either to save or release a default. In those actions, in which the process is summons, attachment, and distress infinite, the defendant need not save his default at the return of the grand distress, but may simply enter an appearance; nor, as it seems, can it be necessary to save a default in those actions where by particular statutes, if the defendant neglects to appear at the return of the grand distress, the plaintiff is entitled to judgment, as in quare impedit. (a) Saver default may be either on the return of the grand cape, which is for a default before appearance, or of the petit cape, which lies for a default after appearance. An infant shall not be put to save his default, for he cannot (a) Br. Ab. Sav. Def. 7. Booth appears to be mistaken, when he says, (p. 24,) that in real actions a default for non-appearance must be saved at the return of the grand cape in real præcipe quod reddats, and at the grand distress in other real actions, where the process is summons, attachment, and distress peremptory; but quære as to a distringas in lien of a petit cape, ante, p. 154, note (d), |