Bracton: Thorne Edition: English. Volume 4, Page 87

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Volume 4, Page 87

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[001] Suppose that when an attorney has been appointed he dies before the day given in
[002] court and the principal lord essoins himself on the day given, no mention made of
[003] the death of the attorney, and the justices in ignorance of his death decide that the
[004] essoin is void because he appointed an attorney, and so proceed to default. If the
[005] lord afterwards [appears] on his day, by excusing his absence on the other day and
[006] alleging the death of the attorney as the reason for his absence, he will not be excused,
[007] though he could be if together with his own essoin he had caused the attorney
[008] to be essoined ‘of death.’ Thus it may be seen that an essoin does not lie in the person
[009] of the lord when he has appointed an attorney except after he has removed the
[010] attorney or it is established that he is dead. Suppose that when one has appointed
[011] an attorney he essoins himself on the first day of summons and the attorney does so
[012] on the second or third; the essoin of the lord will be void, because he appointed an
[013] attorney and proceedings will have to be taken on the default of the attorney on
[014] the day given him by the essoiner, if the demandant holds himself to the default,
[015] because the essoin of the lord does not defend the first day, since it is null.

If the attorney dies while the principal lord of the suit is upon pilgrimage.

[017] A certain person anticipated by a summons when he wished to set out upon a pilgrimage
[018] to the Holy Land in a general passage appointed two attorneys or several,
[019] and while he was upon his pilgrimage the attorneys die, the demandant offers himself
[020] for the suit on the day and the tenant does not come nor does he have an
[021] attorney; quaere what the law is, since there is nothing which may be blamed on the
[022] tenant. The counsel of the court was that the attorneys be essoined ‘of death,’ and
[023] so the plea will remain sine die until the return of the principal lord. The case of
[024] Peter des Roches, late bishop of Winchester, who set out for the Holy Land in a
[025] general passage.¹ And what was said of a pilgrimage of this kind ought to be observed
[026] in other pilgrimages, as to St. James or elsewhere. Suppose that someone
[027] fraudulently essoins himself or his attorney ‘of death’ though he is alive; if it is
[028] afterwards established that he is alive, let the case be resummoned in the same state
[029] as it was on the day the essoin was interposed, by these words, ‘so that that plea
[030] then be there in the same state in which it was when it remained without day since
[031] the aforesaid fraudulently essoined himself of death who is still alive as it is said.’
[032] In that case, unless he can cure the default he will lose by judgment, as [in the roll]
[033] of Michaelmas term in the fifteenth and the beginning of the sixteenth years of king
[034] Henry in the county of Cambridge, [the case] of one Osbert.²

Notes

1. C.R.R., xiii, no. 551 (?). Bp. returned to Winchester on 1 Aug. 1231; d. 12 June 1238

2. B.N.B., no. 663; no roll extant.