Bracton: Thorne Edition: English. Volume 4, Page 98

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Volume 4, Page 98

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[001] [I answer: by such count and interrogation it does not survive in its original strength
[002] nor retain the force of a writ of entry, but rather exceeds it, and when, by a count
[003] contrary to its proper nature, it begins to be what it was not, it will have the nature
[004] of that which it begins to be, and have all the remedies of a writ of right, especially
[005] as to essoins, as was said above.]¹ The two essoins also lie in writs of boundaries, if
[006] some parcel of land remains in dispute and the action is like that by writ of right;
[007] they only lie when the land has been specified.² They also lie in writs of services and
[008] customs after the deforciant has answered and brought a thing certain before the
[009] court, because he cannot proceed to the duel or the grand assise unless the thing is
[010] certain and specified. Similarly in any writ where one goes beyond the form of the
[011] writ and speaks of the right, [or] in which a count as of right is inserted, as sometimes
[012] happens in a writ of quo jure and others, where the matter may come to the
[013] grand assise, the essoin of bed-sickness lies, as will be explained more fully below.³
[014] [It is clear that an essoin of bed-sickness does not follow upon every writ which is
[015] called and begins with the word ‘praecipe,’ for there are many which so begin but
[016] in no way touch the mere right, because they are writs of entry for a term, or the
[017] writ which follows after novel disseisin when the jurors have been chosen and a view
[018] of the land made, which is brought by the disseisee or his heir against the disseisor
[019] or his son and heir, or another.]⁴

Where a writ of right is turned into a writ of entry by the count and conversely.

[021] In writs of right called ‘praecipe,’ where the two essoins lie, the plea may sometimes
[022] be so changed that no essoin of bed-sickness will lie after that change. For example,
[023] suppose that a demandant claims land on the seisin of his grandfather and says all
[024] the words that pertain to the duel, and adds that his grandfather died seised thereof
[025] as of fee and right and that the tenant has no entry into that land except in this
[026] way, that he intruded himself into it after the death of the demandant's grandfather
[027] while he himself or his father was below age, or in another way, as where he
[028] says ‘and into which he has no entry except in this way, that he put himself into
[029] that land as chief lord after the death of such a one, his grandfather, on the day he
[030] died.’ [If] a jury is awarded by judgment of the court and by consent of the parties,
[031] that is, if both demandant and tenant agree to it, for otherwise it ought not to be
[032] awarded, unless both put themselves on a jury, the essoin of bed-sickness will then
[033] cease at once, as said above.⁵ Similarly the essoin of bed-sickness may be obstructed

Notes

1. Supra 22, 48, 91

2. Supra 91, infra 105, 108

3. Infra 105, 108

4. Supra iii, 157, 173, 174

5. Supra 91