DE MALO VENIENDI

Definition

De malo veniendi (Latin: "of infirmity in coming") is a historical form of essoin — a formally recognized excuse for non-appearance in court — available to a defendant in English common law who fell ill or suffered some disabling misfortune while actually traveling to court. The essoin applied specifically to incapacity that arose during the journey itself, distinguishing it from illness that preceded the departure from home. Upon proof of the excuse, the defendant's case would be continued to a later day rather than proceeding to judgment by default.

Common Confusion

De malo veniendi is one of three principal essoins recognized in early English common law and is easily conflated with its close relatives. De malo lecti (of bedridden infirmity) applied when a defendant was too ill to leave home at all. De ultra mare covered absence overseas. The practical and legal distinctions among these essoins mattered because each carried different procedural consequences, different time allowances, and different methods of verification. A researcher encountering any of the three in a medieval or early modern record should not assume they are interchangeable; the specific essoin cast governed what happened next in the proceeding.

Why It Matters in Research

This term will appear almost exclusively in sources dealing with pre-modern English common law procedure, particularly records and treatises from the medieval period through the early seventeenth century. By the time of the major systematic treatises of the eighteenth century, the essoin system had substantially withered in practice, meaning the term's primary habitat is Year Books, early plea rolls, and procedural manuals such as Glanvill and Bracton rather than reported case law of the kind that dominates later common law research. Researchers should be alert to variant spellings and Latin forms. Burrill's entry uses de malo veniendi; older sources may render the same concept as essoin de infirmitate veniendi, reflecting the Norman French procedural vocabulary that layered over Latin in English court records. The French form de mal de venue appears in parallel. If you are working from original plea roll transcriptions or early printed abridgments, any of these forms may denote the same excuse. The more critical research trap is anachronism: do not expect to find this term operative in American legal sources. The essoin system did not transplant to colonial or early American courts in any meaningful procedural form. If this phrase appears in an American legal text, it is almost certainly a learned citation back to English common law history, not a live procedural device. The term also signals broader research pathways. Encountering de malo veniendi in a source is a reliable indicator that the surrounding procedural context is one of the older common law forms of action — real actions especially — since essoins were most elaborately developed in the real property litigation context where possessory and proprietary claims moved slowly through the courts over months or years. The essoin system was itself a structural feature of a court culture in which delay was regulated rather than simply penalized.

Historical Dictionary Support

Burrill's Law Dictionary provides the most accessible entry point for this term among the standard historical legal dictionaries. Burrill identifies de malo veniendi as a species of essoin, traces its alternative name essoin de infirmitate veniendi, and specifies the critical factual element: the infirmity must have arisen while the defendant was en route (in veniendo, or in itinere), not beforehand. The entry gestures toward the procedural detail that would govern what followed such a plea, though the surviving text in the source material is incomplete at the point of greatest procedural specificity. What the historical dictionaries as a class tend to underserve is the practical verification mechanism. Medieval procedure required that an essoin of this kind be sworn to by essoin-bearers and was subject to challenge; the rules governing how long a court would wait and what proof was required were worked out in the common law treatises, particularly Glanvill's Tractatus de Legibus et Consuetudinibus Regni Angliae and Bracton's De Legibus et Consuetudinibus Angliae, rather than in the dictionary literature. Researchers who need the operational rules, not just the label, should move directly to those treatises.

Jurisdictional Note

De malo veniendi is a term of English common law with no operative American jurisdiction. It belongs to the historical procedural system of the English royal courts and has no parallel in any modern American state or federal procedural code. Its relevance to American legal research is exclusively historical and comparative.

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