Bracton: Thorne Edition: English. Volume 4, Page 136

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Volume 4, Page 136

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[001] defaults, because he had no day in court but at the Tower. Therefore though it is
[002] a greater thing to appear in court than at the Tower, he is undefended, since he
[003] must return to court by the same way he turned from it.¹ Suppose that both appear
[004] in court on the lawful day on which they ought to have appeared at the Tower; let
[005] the defaults be set off against one another, as was said a little above.² When both
[006] appear at the Tower on the lawful day, the demandant either appears by himself
[007] or by attorney or by essoiner, and the tenant either appears himself or by a responsalis
[008] when he cannot come himself.

Of the duty of the constable.

[010] In whatever way³ they come and on whatever day, it is the duty of the constable
[011] to enroll everything in order, for he has record as to the things he sees; but he cannot
[012] judge, because there is no judgment at the Tower, since there the third element of a
[013] judicial proceeding is lacking, namely a judge and jurisdiction.⁴ He has record as to
[014] matters of fact, not matters of judgment and law. The enrolment ought to be
[015] made thus: that ‘such a one who essoined himself of bed-sickness against such a
[016] one in such a county with respect to a plea of land, came on such a day to the Tower
[017] of London and offered himself against such a one, the demandant, and the demandant
[018] did not come, but came on the morrow and said that he came on the lawful day and
[019] the tenant had not, and claimed judgment on the default.’ And conversely, if the
[020] tenant says that he came at the lawful day and the demandant had not, and claims
[021] judgment on the default, let the parties be sent to judgment in the Bench that the
[022] default may there be judged. And so if the demandant or his attorney essoins himself
[023] at the Tower, let the tenant and the essoiner be sent before the justices, that the
[024] essoin may there be judged. But let us see for whom an essoin at the Tower lies. It is
[025] clear that no essoin lies for the tenant who essoined himself of bed-sickness, because
[026] since he had all his essoins in court, of difficulty in coming as well as of bed-sickness,
[027] he will have no essoin before he again appears in court.⁵ Court, in truth, is before the
[028] justices in the Bench and not at the Tower, and therefore, from an appearance at
[029] the Tower no essoin follows. We must see whether an essoin lies for the demandant
[030] or his attorney at the Tower or at the Bench. Here we must see whether, when the
[031] view was attested before the justices of the Bench, he had a day by himself or by his
[032] essoiner,⁶ because he may essoin himself before the justices in the Bench several
[033] times if he appears several times, after every appearance, as where the knightsviewers
[034] have made several defaults before they appear to testify. Thus if

Notes

1. Supra 116, infra 137

2. Supra 125, 135

3. ‘Qualitercumque’

4. Supra ii, 302

5. B.N.B., no. 735 (Mich. 17 H. 3)

6. Supra 112