Bracton: Thorne Edition: English. Volume 4, Page 142

Harvard Law School Library

Bracton Online -- English

Volume 4, Page 142

Next

Go to Volume: Page:

[001] if they wish, or appear. If they appear they may well receive another day, and so
[002] from day to day until it is clear as to the ‘rising’ of those essoined or their ‘languor,’
[003] so that, if ‘languor’ is adjudged and attested, they may then receive the same day,
[004] together with the demandant, at the Tower, lest, if they received a day at the
[005] Bench and in court, the unitary nature of the cause should be lost. When before
[006] the justices in the Bench they thus receive a day with the essoinee at the Tower, a
[007] single essoin of difficulty in coming lies for them, at the Tower or before the justices
[008] in court.¹ If they do not come there nor essoin themselves, they may be in default,
[009] like the demandant. If the infirmity is adjudged a passing illness, and a day certain
[010] is given the essoinee to appear in court, on that day the others, who were not
[011] essoined before, may then first begin their essoins, one or all, together or successively,
[012] as was said above at the beginning.² One or some may lose their essoin by
[013] tacit renunciation. Suppose that A. appears and B. essoins himself of difficulty in
[014] coming; he appears on another day and A. essoins himself; though at the beginning
[015] B. had the choice of coming or essoining himself of bed-sickness, by choosing to
[016] come he tacitly renounces the essoin of bed-sickness. Thus when he appears and
[017] receives a day, on the second day he will not have an essoin of bed-sickness by
[018] reason of the preceding essoin of difficulty in coming because of the interruption,
[019] because he appeared, and because of tacit renunciation, and because the essoin of
[020] bed-sickness does not immediately follow the essoin of difficulty in coming.³ [If an
[021] essoin of service of the lord king is cast between the two, the matter is disputable.]⁴
[022] Nor will he have [another] essoin of difficulty in coming, he who thus appears, before
[023] all appear in court, because he has all his essoins or what amounts to them for
[024] the reason aforesaid.⁵ All or some of them may default, in accordance with what
[025] was said of the one above. One may lose his part by default, because of his negligence,
[026] and the other save himself from default by his diligence, because the thing
[027] sought, though it is common, admits of partition and division.⁶ That is not so in
[028] the case of husband and wife, because a wife's property does not admit of division
[029] between husband and wife. For the whole belongs to both, as a whole and not in
[030] common, since husband and wife are one flesh though different souls. For that
[031] reason, if one of them defaults it will be prejudicial to both.⁷ When a default has
[032] been committed, let the land be seized into the lord

Notes

1. Supra 137

2. Supra 141

3. Supra 91, 96

4. Supra 103

5. Cf. supra 95

6. Supra 84, infra 166

7. Supra 84, 96, 128, infra 163, 166