Bracton: Thorne Edition: English. Volume 4, Page 72

Harvard Law School Library

Bracton Online -- English

Volume 4, Page 72

Next

Go to Volume: Page:

[001] writ.¹ If he does not have it, let the matter proceed to default against the absentee
[002] as against one who has no excuse. Similarly, the reason of pilgrimage excuses,
[003] whether it is short or long. And here we must also see whether the summons came
[004] first or did not. Serious ill-health also excuses one who has been summoned, for he
[005] does not suffer the penalty for contumacy whose defence is ill-health.² It sometimes
[006] arises from illness on the journey, called of difficulty in coming, [sometimes] from
[007] illness at home, called of bed-sickness.³ One is also excused because he is occupied
[008] in a more important case,⁴ as where one is impleaded in the lord king's court, or
[009] called before it for some reason; he is excused in all inferior courts.⁵ But what is to
[010] be said of court christian, since we must obey God before men? I say that the suit
[011] must still be deferred,⁶ and that the king may warrant [the postponement], because
[012] of the reverence due the prince. ⁷The onset of an overpowering force which cannot
[013] be resisted⁸ excuses the absence of one who fails to appear up to the fourth day,⁹
[014] as where one on the way to court, having no other excuse, is captured by the enemy
[015] and detained by force so that he cannot appear. And so if he falls among thieves.
[016] And so because of accident,¹⁰ because of the force of a river, or because a bridge is
[017] down, or because a heavy gale makes shipping hazardous,¹¹ provided that the person
[018] summoned cannot come in due season by a circuitous route, for if he may come
[019] in time by so doing he is not excused by such accidental occurrence.

The excuses of one who does not come to court after summons.

[021] One is not excused if he leaves home later than is proper, if had [he left] earlier he
[022] could have come without difficulty and the accident would not have hindered him.¹²
[023] And so if he leaves home earlier than he ought and meets with an accident, that
[024] must be imputed to him, because had [he left] at a suitable time he would not have
[025] met with it. And so [though] the person summoned may be in a case by which his
[026] appearance is impeded,¹³ if he sought the disputes and causes whereby he was impeded,
[027] provided it was after the summons and not before. And so if he has fallen
[028] into an accident willingly, when he could easily have avoided it, and here we must
[029] also see whether the accident befell him before the day of summons or after it; if
[030] before, the excuse lies for him, as described above. ¹⁴It will not lie if he puts forward
[031] a reason why he could not come, as¹⁵ because a bridge was down, and on the same
[032] day

Notes

1. Infra 75, 78, 99

2. D. 42.1.53.2: infra 155

3. Infra 91

4. D. 42.1.53.2: ‘vel maioris causae occupatio defendit’

5. Infra 81, 155, 156-7

6. ‘differendum’

7. New paragraph

8. D. 4.2.2

9. Infra 104, 148, 158

10. ‘per casum fortuitum,’ from lines 15-16

11. D. 2.11.2.6-7

12. D. 2.11.2.8

13. Om: ‘ut’

14. New sentence

15. ‘ut’