Bracton: Thorne Edition: English. Volume 4, Page 85

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Volume 4, Page 85

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If there are several demandants.

[002] If there are several demandants, whether there is one tenant or several, the same
[003] procedure must be observed in essoins as in the case of several tenants, that is, let
[004] all have a single essoin, together and on one day or separately and successively,
[005] [because in this matter nothing will be permitted the reus which is not permitted
[006] the actor,]¹ which does not occur except for some important reason, since a demandant
[007] ought to desire advancement of the suit rather than its delay, and if one
[008] of the several demandants essoins himself, all the others are subject to postponement
[009] and delay. If one of the several defaults, after awaiting the fourth day the
[010] tenant will withdraw quit of the writ, as though all had defaulted. Thus the negligence
[011] of one will be prejudicial to all the others, for either all sue or none.² The same
[012] must be said of a husband and wife who are demandants, that the absence of the
[013] husband will be prejudicial to the wife and conversely. If some of the several,
[014] whether they are demandants or tenants, are present and some essoin themselves
[015] and have a day, those who were present will always have the same day lest the
[016] unitary nature of the plea be divided.³ And let there always be added in the essoin,
[017] as a precaution, who has essoined himself to one day or another, so that at the end
[018] it may be known⁴ whether they have had all their essoins or not.

If a tenant has appointed an attorney.

[020] Suppose that a tenant cannot sue in his own person, or though he can, on the chance
[021] that he may not, appoints an attorney as a precaution. The essoin then lies in the
[022] person of the attorney, not in the person of the lord, whether it is the demandant
[023] who has appointed the attorney or the tenant,⁵ because the attorney represents the
[024] person of his lord in [almost] all matters. [I say ‘almost’ because of the essoin of
[025] bed-sickness as will be explained below.]⁶ And though [when] one has appointed an
[026] attorney he may sue in his own person whenever he wishes,⁷ and may [remove him],
[027] because this is a matter of will, the appointment as attorney always continues until
[028] the lord removes him, and as long as it continues an essoin will never lie in the
[029] person of the lord, except when both essoin themselves⁸ as in the case of two
[030] attorneys or several, because if the lord cannot come in person he may come by
[031] attorney, but not conversely, which is not true in the case of the two attorneys. But
[032] what if the lord, when he has appointed an attorney and has not

Notes

1. D. 50.17.41.pr.: ‘Non debet actori licere quod reo non permittitur’; infra 100

2. Infra 89

3. C. 3.1.10: ‘causae continentiam dividere’

4. ‘sciri’

5. Supra 79

6. Infra 104, 145

7. Infra 112

8. Supra 82, infra 86