Bracton: Thorne Edition: English. Volume 4, Page 138

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Volume 4, Page 138

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[001] if he obtains it and then appears, he will be excused the default, not because of the
[002] view, since it is unlawful, but because of the licence, [that is], if the demandant
[003] challenges the view and the viewers. If he does not, let the plea then proceed in both
[004] cases as if the view were lawfully made. But if the essoinee is unwilling to seek
[005] licence to rise, it will then be safer if he sends a responsalis on the day given him by
[006] such viewers; in that case, if the demandant wishes to challenge the view, let the
[007] view be made again lawfully, if the first is not sufficient. If he does not so wish, let
[008] the case then proceed between demandant and responsalis. If the aforesaid persons,
[009] who are unsuitable for making the view, adjudge ‘languor’ to the essoinee, and if,
[010] when they attest the view in the presence of the demandant, he does not except
[011] against them, but receives a day at the Tower without challenge, though at the
[012] beginning the view was unlawful, it will be made lawful by the demandant's consent,
[013] so that no further objection can be made against the viewers or against the
[014] view. And so if he is absent at the attestation of the view when he ought to be
[015] present, which he ought to attribute to his own negligence. In these cases the
[016] tenant-essoinee will have to hold himself to ‘languor,’ and will no longer have
[017] licence to rise. But if the view, though lawful,¹ is not attested within the year and
[018] day, though ‘languor’ was adjudged the tenant may always, within the year and
[019] after it, at whatever time,² have licence to rise, until the view has been attested.
[020] And though the demandant, after the year and day, offers himself at the Tower
[021] against the tenant-essoinee, that will not harm the tenant, because no day at the
[022] Tower was given him in court. And if the constable sends word that the demandant
[023] came on a certain day and the tenant-essoinee did not, and if at the complaint of
[024] the demandant the tenant is summoned before the justices to answer as to why he
[025] did not observe the day given him at the Tower, and the demandant holds himself
[026] to the default, the tenant may answer that he was not lawfully viewed, and consequently
[027] not viewed, and thus that he neither could nor ought to appear there,
[028] and thus the matter must be determined by the viewers when they appear. He may
[029] also say that he had no need to appear there because the demandant³ had no day
[030] at the Tower, [and thus there was no one] to whom he ought or could answer, and
[031] so defend himself from default.

If ‘languor’ is turned into incurable disease so that the essoinee cannot come, let him send a responsalis.

[033] When ‘languor’ is adjudged by such persons, as was said above, and the view is
[034] attested without challenge, and a day given the demandant at the Tower, it will
[035] then

Notes

1. ‘legitimus’

2. ‘quandocumque’

3. ‘petens’