Bracton: Thorne Edition: English. Volume 4, Page 128

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Volume 4, Page 128

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[001] essoined of bed-sickness and the other defaults, proceedings may at once be taken
[002] to default against the absentee,¹ [But the matter cannot proceed to judgment before
[003] both are present. Judgment is therefore suspended until the essoinee again
[004] appears in court.]² because the default of one will be prejudicial to both.³ Suppose
[005] that the demandant is not present on the day on which the attestation is made,
[006] neither in person nor by an essoiner, so as to receive his day, not on the first day
[007] or the second, the third or the fourth or later. It suffices if he appears on any day
[008] within the year and day. But what if, after the year and day, the tenant claims
[009] judgment on the demandant's default? Let him take nothing by the default, a
[010] balance being made, as said above.

How the essoinee ought to keep ‘languor’ and how hold himself.

[012] We must see how the essoinee ought to keep ‘languor.’ It is clear, as was said
[013] above,⁴ that he ought to keep himself in bed somewhere, unbelted and without
[014] trousers and without shoes. Though he may put on clothes if he wishes, he ought
[015] not to go out of the chamber or the house in which he lies, nor walk through his
[016] court-yard in the sight of others, nor go far from it, lest, intercepted by the demandant
[017] while strolling⁵ through the countryside, he lose his seisin by default, because if
[018] the demandant finds him outside his court-yard, or even in it, he may lay hands upon
[019] him,⁶ but with this qualification, that he do him no violence.⁷

If the essoinee has been found wandering, how he ought to be arrested.

[021] The demandant ought, if he can, to take with him the serjeant of the lord king,
[022] together with honest and lawful men of the neighbourhood and arrest him with the
[023] cry, in which case the lord king's serjeant has record, together with the testimony
[024] of the lawful and honest men. If he does not have such persons at hand, let the
[025] demandant come with his own men and arrest the essoinee with the hue and cry,
[026] and let him gather the good men of the neighbourhood together, so that, if there is
[027] need, they may attest what they saw. He ought also to send for the coroners and
[028] king's serjeants so that they, together with the honest men, may testify as to how
[029] he was intercepted, by whose record the matter will be established, until the essoinee
[030] shows the contrary by clear proofs, for the king's sergeant and the testimony of the
[031] honest men may [establish] how and in what place

Notes

1. Infra 143

2. Supra 95

3. Supra 84, 96, infra 142, 163, 166

4. Supra 124

5. ‘vagans per rura’

6. Supra 122; B.N.B., no. 662

7. ‘quod nullum . . . violentiam,’ from line 24