Bracton: Thorne Edition: English. Volume 4, Page 129

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Volume 4, Page 129

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[001] the essoinee was arrested,¹ but not whether he came there of his own accord or was
[002] brought against his will,² for the essoinee may show the contrary and say that when
[003] he was in his house on such a day, at such a place and in his bed, as one to whom ‘languor’
[004] was awarded and in the peace of the lord king, the demandant came and wickedly
[005] and feloniously dragged him from the house and from his bed,³ and in robbery
[006] took from him so much against the peace of the lord king, and this he offers etc. In
[007] which case we must proceed in the manner of an appeal, and the matter will be determined
[008] by the duel or by an inquest. According as judgment finds for one or for the
[009] other, one of them will lose in perpetuity, the tenant because he stupidly rose or the
[010] demandant because he maliciously dragged him out. Let him lose because of
[011] malice, by the same means by which he wished to gain. When one so essoined
[012] by the law of the land is arrested, not by malice, if the demandant holds himself
[013] to the default and claims judgment on the default, let him hold himself firmly
[014] to the default, lest he tacitly renounce⁴ it by consent. For he may renounce it
[015] tacitly if he takes a loveday with the tenant, whether the day is given at the
[016] prayer of the tenant or the demandant or both.⁵ For a day will be given thus: ‘A
[017] day is given to such a one, the demandant, and to such a one, the tenant, with
[018] respect to a plea of land until such a day at the prayer of the parties.’ Since the
[019] demandant intimates by this that there is a plea between them, he is taken to have
[020] tacitly renounced the default, and the plea abandoned by the tenant is renewed.
[021] Similarly, the tenant is taken to have tacitly renounced the default if he sues to
[022] remove the plea from one court to another by pone. For the writ contains the
[023] words: ‘Put before the justices etc. the plea which is in the county court,’ or ‘before
[024] you,’ or ‘before such justices.’ Since he says in his own impetration ‘the plea which
[025] is,’ he is taken to intimate that the plea is re-established as before, and the same
[026] may happen in many similar cases.⁶ But if the tenant⁷ sues to have the plea⁸ transferred
[027] from one court to another, or that is the act of the justices and not the demandant,
[028] or [if] a day is given [the parties] for hearing judgment on the default
[029] because of difficulty [in giving] judgment,⁹ so that it is the act of the justices and
[030] not of the party, it will be another matter, because by that the demandant does not
[031] renounce the default, tacitly or expressly. When the tenant-essoinee has thus been
[032] arrested, with

Notes

1. ‘essoniatus arrestatus fuerit’

2. Om: ‘testificari non possunt’

3. B.N.B., no. 662

4. ‘renuntiet’

5. Infra 159

6. Ibid.

7. ‘tenens,’ as infra 160

8. ‘loquela’

9. Supra 60, infra 160