[001] plea, in which case, if he does not appear on the first day nor essoin himself in the [002] special plea, he will be in default, nor will he be excused though he has been essoined [003] of the common summons. But if in the special plea, he is excused by that essoin with [004] respect to the common summons, though he is not specially essoined of that. We must [005] see, where a special summons ought to be made, what happens if he who is to be summoned [006] is not found. If he is found, let the summons be made him wherever he is found, [007] in his domicile or outside it, with two witnesses at least who may attest it if need be. [008] If he is not found, the summoners are not bound to seek him beyond his domicile. If [009] he is found there, let the summons be made him, as aforesaid, if he is not, let it be [010] made to his household, to be communicated to him when he returns. If he has several [011] domiciles in the county, let the summons be made him at the domicile where he usually [012] lives, or where he has the greater part of his property. If he has neither domicile [013] nor demesne in the county, let the summons then be made at his fee, if he has a fee. [014] When he has thus, in whatever way, been warned by the summons, he cannot leave [015] the kingdom so as to provide himself with the delays of ‘beyond the sea,’ as will be [016] explained below.1 And what if, though so warned by the summons, he leaves the kingdom [017] and on his day is essoined of beyond the sea? Since that essoin does not lie, I ask [018] whether it may be turned into an essoin of difficulty in coming, which would well lie [019] if he had so essoined himself at the outset. It seems at first sight that it may, for if [020] one first essoins himself of bed-sickness where he ought to have essoined himself [021] of difficulty in coming, the order not being observed, the essoin of bed-sickness is [022] turned into an essoin of difficulty in coming: he who does a greater thing does a lesser.2 [023] The same reason seems to be applicable in the case above, that the essoin of beyond [024] the sea is turned into an essoin of difficulty in coming when the person summoned was [025] warned by the summons. But the two cases are not the same, for in one both essoins [026] are available and one is turned into the other because the order was not observed. In [027] the other only one is available, that is, the essoin of difficulty in coming of this side the [028] sea, not beyond it. Hence when one has essoined himself by an essoin of beyond the [029] sea which does not lie, not by an essoin of this side which does, it seems and it is true [030] that he will lose both, because an essoin which does not lie cannot change to an essoin [031] which does not lie though it ought to. We must see who may summon. It is clear that [032] everyone who has jurisdiction and the power to judge, either
Volume 4, Page 62
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