chetham versus sleigh mich James rot lev SC I show SC I Lutw Danv pl error of  a judgement in a formedon in remainder c sand Fitzherbert judgement law bro  law h h h dyer h more Litt Fitzherbert essoin h Edward Fitzherbert grand cape  h raze Entr h roll Abr title default error of a judgement in the court of  common plea on a formedon in remainder the case be thus sacred scripture  formedon in remainder against the tenant who be admit by attorney to plead to  issue and on the day of nisi prius a essoin be cast for the tenant which be  challenge by the demandant and thereupon the tenant demurrer and the essoin be  adjourn to a certain day in another term and a special imparlance be take to  that day at which day the tenant appear by his attorney and the appearance be  enter on record and the essoin be quash by the opinion of the whole court  because the tenant in this cause can not be essoined when he be admit by  attorney to plead and so he be out of court but this otherwise where the  attorney be remove and his removal appear on record and thereupon the  demandant pray judgement final against the tenant and judgement be give quod  recupere seisinam upon which judgement error be bring in b r and it be argue  for the plaintiff in the writ of error that the essoin be quash for  insufficiency it shall turn to a default of the tenant and thereupon a petit  cape ought to be award against he to save his default and if he do not Carthew  er p come in upon the return thereof Carthew nor show any cause to save his  default then final judgement shall be give but no judgement at all before the  return of the petit cape and the case in the Edward b Edward pl Edward h h  dyer Rep cro W Jones roll Abr kelw Ho than pl margin be cite to prove that a  essoin challenge adjourn and adjudge against he for who it be cast shall turn  to a default upon which a petit cape shall be award and not a judgement final  moreover this diversity be take that upon the default of the tenant at a  certain day give by a special imparlance a petit cape shall be award if upon  such special imparlance the tenant be out of court and not demandable till the  day appoint but this not so upon a default on a general imparlance without any  certain day for there the tenant be suppose to be in court and demandable at  all time therefore if he make default upon any demand judgement final shall be  give because this be a departure in despite of the court and to this purpose  be the practice and entry of all common recovery videlicet after the vouchee  have enter into warranty and plead to the seize c the demandant petit freedom  interloquend to have c postea thither eoden boundary idem the demandant come  back in curian and the tenant be solemnly drive out non go for sale send in  contempt curiae to go back c therefore to look at closely c quod recupere  afterward in Michaelmasterm follow it be far argue for the plaintiff that a  essoin be in nature of a excuse for the nonappearance of the party at a day  give and a see Inst b where the several excuse to save a default be enumerate  and I Inst b what great favour be show to the possessor of land whereby to  maintain their possession default be the nonappearance at that day and that  there be two sort of default the one before and the other after appearance  there be also another default but improper so call videlicet where upon a  general imparlance the party make default when he be demand now this be a  departure in despite of the court upon which judgement final shall not be give  but a grand cape upon a default before appearance and a petit cape upon a  default after appearance and so it ought to be in this case Carthew beside no  person shall be receive at any time to save his default but upon the return of  a process and therefore the entry that the tenant be demand be insignificant  because he can make no answer till the petit cape be return for if the  contrary shall be allow then a feme or a reversioner will have no time to be  receive to defend their right upon the default of the tenant there be a  difference between a imparlance to a certain day and a general imparlance for  upon default at the day a petit cape shall only be award but in the last case  judgement final shall be give because this a departure in despite of the court  and the reason be because the term be account in law but as one day and  therefore he can appear and likewise make default in one day the case cite in  the margin be to prove that in a writ of right where the issue be join upon  the mere right a default after such issue join be final but the principal case  be upon a formedon and so there be a diversity it be argue for the defendant  that this essoin be illegal and this admit that it turn to a default and that  it be at the day of nisi prius make it different from the common case of this  nature and the case in the margin be cite to prove that a default be final  after issue join and that the judgement shall not be final upon a default at  the day of adjourn the essoin if the party will waive his essoin but if be  will stand to the argue it and the essoin be adjudge insufficient this  otherwise this case be argue again in Hillaryterm year I Willi nariae and for  the plaintiff in error it be further argue that the challenge of the essoin be  ill because it be not aver that the tenant S attorney non to be amotus for the  form of entry in such case be so Carthew er p it be agree that in a writ of  right if the issue be join on the mere right and then the tenant make default  judgement final shall be give which be against the resolution in Penrin S case  but this not so if the issue be join upon a collateral matter and after the  tenant have make default in a writ of right the petit cape shall be award and  to prove this matter the authority in the h Inst f n b a dyer   Ent bro title  law pl margin be cite Carthew then a objection be make to the continuance by  curian advisare vult which be from Trin to octab Hillarii omit all  Michaelmasterm and therefore this a discontinuance and the case in the roll  Abr bendl cro style than pl margin be cite to prove this omission to be a  discontinuance it be far argue for the defendant that it be not necessary to  aver in the entry of the challenge of the essoin that the attorney be not  amotus it be only matter of form which ought to come on the other side as  where a fine be plead it be not necessary to aver that the cognisor be not a  infant nor in prison nor beyond sea at the time of the fine levy for if the  fact be so it ought to come on the other side and as to this point the court  be of that opinion and it be far say that by a judgement on a default in a  writ of right the tenant be not conclude for he may bring a writ of right if  he have any upon the statute of west cap and the case in the h b h ass pl  register a f n b cro sand margin be cite for authority in point and for the  reason aforesaid it be conclude by the counsel that judgement in this case be  well give without any regard have to a petit cape holt chief justice hold that  the entry of the challenge be good without the negative averment that the  attorney non to be amotus and to prove it he cite the case in the   Ent cro  margin and as to the continuances and the adjournment of the essoin from  Trinity to kllaryterm omit Michaelmasterm this may be do by virtue of the  statute h cap h by which this enact that the justice of the king court of  record may assign special day of return in such case and process as have use  to have special day assign and all the court agree that the judgement in the  principal case shall be affirm for this reason videlicet because the tenant  upon the challenge of the essoin bad demurrer and also appear at the day of  the adjournment of the essoin to justify his demurrer and so have betake  himself whole to that justification by which he have Carthew peremptory waive  and refuse the advantage of save his default and therefore they hold that this  default after the demurrer and appearance be not saveable and if so it will be  in vain to award a petit cape to save a default which be not to be save but if  the essoin have be quash upon the challenge without any demurrer of the tenant  in such case they be clear in opinion that a petit cape ought to be award and  not judgement of seize but that be not the case at bar which differ from all  the case cite where upon a default after issue join a petit cape have be award  and thereupon the judgement of the court of common plea be affirm Carthew er p