Bracton: Thorne Edition: English. Volume 4, Page 104

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Volume 4, Page 104

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[001] [On this matter may be found in the roll of Hilary term in the seventh year of king
[002] Henry on the morrow of the Purification, [the case] between Vitalis Engayngne and
[003] a certain de Ferclis concerning the advowson of the church of Coton.¹ And to the
[004] same intent [in the roll] of Michaelmas term in the seventh and the beginning of the
[005] eighth years of the same king, [the case] of the same Vitalis.]² unless the essoiners
[006] show, by the testimony and record of the constable, that they cast the essoin at the
[007] Tower, or if the essoinee comes on the first day of the suit and disavows the essoiners,
[008] which he may do at any time before³ the essoin of bed-sickness is cast.
[009] When the justices are not resident in the Bench on the day given, the essoin must
[010] always be cast at the Tower. And in the same way in the county court, it must be
[011] cast at the castle.

In whose person an essoin of bed-sickness does not lie.

[013] Let us see in whose person an essoin of bed-sickness does not lie, though suit is
[014] brought by the writs mentioned above. It will never lie in the person of the demandant,
[015] though in such pleas an essoin of difficulty in coming lies for him. Nor in
[016] the person of an attorney, if the tenant has appointed an attorney, one or several,
[017] because though the attorney is ‘languid’ and essoins himself de facto of bed-sickness,
[018] he can no⁴ more send a responsalis than he can appoint an attorney,⁵ though
[019] sometimes, since no essoin lies for him, he may send a messenger to excuse himself⁶
[020] up to the fourth day, because of some supervening impediment, as where he is held
[021] in chains or hindered by enemies or adversaries.⁷ But what if he is ‘languid’? He
[022] ought to be excused in the same way, but only up to the fourth day. For who is
[023] more constrained by chains than he who is ‘languid’ and gravely ill? The essoin
[024] will never lie in the person of a warrantor except after he has appeared in court and
[025] has warranted, since he is thus made the dominus of the suit.⁸ Nor is an essoin of
[026] bed-sickness of advantage to an essoinee, so as to prevent proceedings to default
[027] from being taken against one who has so essoined himself, who lies outside the
[028] power of the lord king where his writs and returns do not run, whether that is
[029] within the realm or without. Though at first sight the essoin lies, it cannot be investigated
[030] because of that deficiency, ⁹<as [in the roll] of Michaelmas term in the
[031] sixth [and the beginning of the seventh years] of king Henry among the essoins in
[032] the county of Suffolk, [the case] of Alan de Sancto Georgio.>¹⁰ Nor does it lie in the
[033] person of anyone in a plea where one once has ‘languor,’¹¹ whether he is the
[034] principal tenant

Notes

1. C.R.R., xi, no. 321; not in B.N.B.

2. B.N.B., no. 1634; C.R.R. xi, no. 722

3. ‘quam’

4. ‘non’

5. Infra 145

6. ‘ad se excusandum’

7. Supra 72, infra 148, 158

8. ‘dominus litis’: D. 2.11.14; 33.30.31 etc

9. Supra, 413

10. Notin B.N.B.; noroll extant

11. Infra 107