Bracton: Thorne Edition: English. Volume 4, Page 157

Harvard Law School Library

Bracton Online -- English

Volume 4, Page 157

Next

Go to Volume: Page:

[001] thus ‘To A.B. and his companions itinerant¹ in such a county’ (or ‘the justices of
[002] the Bench to their beloved friends and companions A.B. and his companions
[003] itinerating in such a county,’ according as they wish to put themselves first or last
[004] in the mandate). ‘Know etc. (as above).’ [And note that neither the lord king nor
[005] any other may so warrant a man or cure a default that he may gain something from
[006] his adversary by his absence, only that he be saved² harmless. Nor so that judgment
[007] be deferred as to anything which is against the peace of the lord king, as [in] outlawry
[008] and the like, as [in the case] of Richard Siward and the earl of Gloucester,
[009] among the pleas which follow the king in the thirty-third year of his reign.]³ And so
[010] it is that a greater court and one of equal standing excuse and protect from default
[011] [in a lesser], but a lesser never in a greater.⁴

How absence is excused in many ways.

[013] Finally note that absence alone makes one contumacious, nor need it be proved
[014] [for] absence alone suffices,⁵ unless it is excused for good reason, because⁶ it is
[015] necessary and not [merely] voluntary,⁷ necessary being used for unavoidable, that
[016] is, not unwillingness but incapability.⁸ Necessity which excuses from default sometimes
[017] precedes the summons, sometimes is concomitant with the summons, sometimes
[018] follows and arises after the summons, and sometimes an excuse arises in the
[019] absence of necessity.⁹ It precedes and excuses where, though one has been lawfully
[020] summoned at his home he cannot come or send, [nor, because of necessity preceding
[021] the summons, could he have provided¹⁰ for himself, as where he could essoin
[022] himself or appoint an attorney,] as where before the summons he has been captured
[023] and imprisoned and so kept in prison that he cannot come or send, according as the
[024] cause is civil or criminal. And so if before the summons he becomes insane, so that
[025] he cannot consent to the summons nor receive it, [nor could he have provided for
[026] himself, as said above.]¹¹ And so if before the summons he is confined by so serious
[027] an illness that he cannot take notice of it, nor think of anything except anguish and
[028] pain. And so if he is detained on the king's service, not fraudulently pretending the
[029] necessity of serving nor procuring the call,¹² since he thus cannot conveniently come
[030] or send, [nor

Notes

1. ‘et sociis suis itinerantibus’

2. ‘conservetur’

3. Not in B.N.B.; (1249): Br. a judge coram rege 1247-51

4. Supra 72, 81, infra 155, 156

5. Supra 147, 149

6. ‘quia’

7. Supra 71

8. Om: ‘et ideo . . . voluntas’; ‘per necessitatem’

9. Infra 159

10. ‘providisse,’ as V

11. ‘nec sibi providisse (as V) . . . est,’ from line 27

12. Supra 71, 76, 79