Definition
Latin: "of illness" or "of misfortune." A phrase used in early English common law pleading to designate a class of essoins — formal excuses for a party's failure to appear in court — grounded in sickness or physical incapacity. De malo did not stand alone as a plea; it functioned as a prefix identifying the specific type of illness-based essoin being claimed.
The principal recognized forms were:
1. De malo lecti — "of illness in bed." The most severe category, asserting that the party was bedridden and wholly unable to travel to court.
2. De malo veniendi — "of illness (or misfortune) in coming." Asserting that the party fell ill or suffered some mishap in the course of traveling to the place where the court was held.
3. De malo villae — "of illness in the town." Asserting that the party arrived at the town where the court sat but was then struck by illness and unable to appear before the court itself.
Recognized Forms
/SUBTYPES
The three forms above were formally distinct in practice. De malo lecti carried the heaviest procedural weight: because it implied the party might be near death, it could give rise to further proceedings — including the sending of knights or commissioners to verify the illness at the party's bedside (a procedure known as the viewing). De malo veniendi and de malo villae were treated as less severe and triggered different procedural consequences. The distinctions mattered because each form was subject to different rules governing how long a continuance might be obtained and what proof was required.
Why It Matters in Research
De malo is an archaic term encountered almost exclusively in historical sources dealing with early English common law procedure. Researchers will meet it in treatises and case reports from the medieval and early modern period, particularly in discussions of essoins — a procedural institution that had largely disappeared from English practice by the nineteenth century and was never transplanted in any meaningful form into American law.
The principal research trap is treating the three subtypes as interchangeable. Historical sources, including the Register of Originals (Registrum Omnium Brevium) and Fitzherbert's Natura Brevium, distinguished them precisely, and the procedural consequences differed. A researcher reading a historical Year Book entry or early equity record who encounters de malo without the qualifying noun needs to look for context to identify which species of essoin is intended.
De malo also appears in adjacent procedural vocabulary. Burrill's entry for de malo runs directly into an entry for de manucaptione — the writ of mainprise — reflecting how closely illness-based essoins, bail procedures, and pretrial detention overlapped in early common law practice. A researcher tracing pretrial detention or surety history may find de malo entries as incidental but contextually important neighbors in historical dictionaries.
No modern American procedural analog exists. The concept of excused non-appearance survives in contemporary civil procedure, but the formal essoin system — with its taxonomized categories of illness — does not. Researchers using de malo as a search term in digitized historical corpora should expect to find it only in pre-nineteenth century English legal literature.
Historical Dictionary Support
The four source dictionaries are in close agreement. Black's (both editions) and Rapalje & Lawrence give nearly identical entries, listing the three named forms and their translations. Rapalje & Lawrence preserves the parenthetical "(or misfortune)" for de malo veniendi, a nuance the Black's entries omit, and one worth noting: malo in classical Latin carries the sense of evil or misfortune as well as illness, and de malo veniendi may have covered travel accidents or other mishaps beyond sickness alone.
Burrill's entry is the sparest of the four, giving only the translation "of illness" and cross-referencing related material within its own pages rather than elaborating on the subtypes. This reflects Burrill's general practice of economy, but it means the Burrill entry alone is insufficient for understanding the procedural distinctions between the three forms.
None of the historical dictionaries address the viewing procedure triggered by de malo lecti, nor do they explain the relationship between these essoins and the larger system of default judgments and continuances. Researchers needing that depth should consult Bracton's De Legibus et Consuetudinibus Angliae or Fitzherbert's Natura Brevium directly.
Jurisdictional Note
De malo is a term of English common law procedure with no surviving American jurisdictional application. It appears in American legal dictionaries as a historical record entry rather than as operative law. Researchers working in Louisiana civil law sources or other mixed-jurisdiction materials are unlikely to encounter it outside purely historical contexts.