What is to be done if a mistake is made in the day given.
[002] When a reasonable day is given, in the Bench or in the eyre, and a mistake is made [003] in the day, and the rolls do not agree but disagree, as where it is said in one roll that [004] the day given is ‘in fifteen days,’ and in another roll, or several, that it is ‘in three [005] weeks’ or later, the day must always be presumed to be that given in the first roll, [006] that is, the roll of the protonotary, whose enrolment all the other subsequent rolls [007] ought to follow and whence they ought to take their origin and authority. And [008] though, when several rolls are to the contrary, the first roll raises a strong presumption [009] against the others, it may be overcome, unless1 the record of the justices agrees [010] with the first. If it disagrees with the first and agrees with the others, the presumption [011] of the first roll is overcome and the day will be established by their record. If [012] they differ from all the rolls let the same be done; it will be established by their [013] record. And what if the justices disagree among themselves? It will be established [014] by the majority. If they are equal in number, then by the more worthy, with the [015] presumption of the rolls. But if there is complete disagreement, because of the [016] failure of proof that day will be taken as not given and let the plea proceed de novo.
The writ for sending four knights to view one essoined of bed-sickness.
[018] After the essoins of bed-sickness and of difficulty in coming [are returned], first of [019] all let a writ ‘of viewing an essoinee of bed-sickness’ issue in this form: ‘Send four [020] lawful knights of your county to such a vill to see whether the infirmity by which [021] A. de N. essoined himself of bed-sickness in our court at Westminster against B. de [022] N. with respect to a plea of land (or the like) is languor or not. If it is languor, let [023] them then set him a day, a year and a day from the day of their view, at the Tower [024] of London, that he then be present there to answer thereto or send instead a sufficient [025] responsalis. If it is not languor, let them then set him a day before our justices [026] at Westminster in the octaves etc., that he then be present there to answer [027] thereto or send instead a sufficient responsalis.2 And instruct these four knights to [028] be present before our justices at Westminster at the aforesaid term to attest their [029] view and what day they set him. And have there the names of the knights and this [030] writ.’ If the land is in one county and the tenant lies in another, let the writ then [031] be directed to the sheriff of the county where the essoinee lies,
Volume 4, Page 113
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