Bracton: Thorne Edition: English. Volume 4, Page 106

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Volume 4, Page 106

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[001] The essoin of bed-sickness ceases to lie, where the matter has come to judgment on
[002] a writ of right, has been concluded on both sides, and the plea remains upon judgment,
[003] [since] neither side has anything further to put forward, [and] though the
[004] judgment [is put] from place to place, since no one can say ‘the record of the case
[005] which is’ since the plea is already completely terminated, but‘which was’; it is
[006] otherwise¹ if the plea is not terminated. Also, according to some, the essoin of
[007] bed-sickness does not lie in the person of a minor in a proprietary action, no more
[008] than that of difficulty in coming in a possessory,² because one under age will not
[009] answer in a proprietary action, [which is true³ unless he has been enfeoffed under
[010] age, in which case, since he is bound to answer, he will have all the remedies which
[011] any adult would have, lest he be in a worse position because of his age,⁴ that is, he
[012] will have an essoin of difficulty in coming and of bed-sickness, and though he cannot
[013] warrant an essoin of difficulty in coming by himself, nor swear, nor in an essoin of
[014] bed-sickness send a responsalis, he may do all these by a guardian, by the authority
[015] of a tutor, so to speak.]⁵ Nor does an essoin of bed-sickness lie in the person of a
[016] warrantor while the plea of warranty is pending, before he has warranted. ⁶<Nor
[017] does it lie where he has not first essoined himself of difficulty in coming, but is
[018] turned into an essoin of difficulty in coming. Nor does it lie where the tenant has
[019] essoined himself in the vill of London, because there he may send to appoint an
[020] attorney, as in the county of Buckingham, [the case] of Hugh de Brok.⁷ Thus it is
[021] evident that the same ought to be done before the justices itinerant if he is essoined
[022] in the county in which they are itinerant; it is otherwise if it is outside.⁸ Nor does
[023] it lie in the writ of quo warranto. Nor in the person of an attorney, as where a husband
[024] and wife are impleaded, or parceners, or two strangers, together or in different
[025] pleas, one of whom is the attorney of the other; though it lies in the person of one
[026] by reason of his own plea, it does not lie in his person with respect to the other plea,
[027] because he is an attorney.⁹ Nor does it lie unless he is essoined on the third day
[028] before the plea.¹⁰ Nor if he is the demandant, but let his pledges be exacted for the
[029] default. Nor does it lie [in a writ] de proparte sororum.¹¹ Nor in an assise of darrein
[030] presentment which remained because of age and was resummoned¹² in the same
[031] state. If one is essoined of bed-sickness and the demandant does not

Notes

1. ‘secus tamen est’

2. Supra 80, 81, 92; om: ‘nec’

3. ‘quod . . . verum est,’ from line 8

4. Supra 81,

5. Supra 92, cf. 81, 312

6. Supra i, 413

7. Infra 107, 144

8. Supra 105

9. Supra 104, infra 145

10. Supra 92, 103

11. Supra 104

12. ‘resummonita est’