Bracton: Thorne Edition: English. Volume 4, Page 73

Harvard Law School Library

Bracton Online -- English

Volume 4, Page 73

Next

Go to Volume: Page:

[001] another crossed, either¹ immediately afterward or at the same time that he was
[002] there,² [or] because of flood, and another crosses on the same day and at the same
[003] hour, provided he does so without danger and difficulty³ [or] if a storm has broken,⁴
[004] [if] on the same day and at the proper hour some other person has crossed by boat
[005] or ship.⁵ Hence the reason, the time, the place, the day and the hour are to be considered.
[006] The reasons are infinite by which one may excuse his absence. ⁶When one
[007] of the aforesaid excuses, or some other which is sufficient, lies for a person, whether
[008] the tenant is beyond the sea or this side the sea, whether the summons has been
[009] proved or not, when he cannot come he must send someone to make his excuses,
[010] who is called an essoiner, who alleges that the excuse of the summoned man is such
[011] that he cannot come, by these words,

The words of excuse to be put forward by the essoiner in the essoin of difficulty in coming.

[013] that when his lord was on the journey towards the court (if the essoin is one of difficulty
[014] in coming, whether of beyond the sea or of this side of the sea) that such an
[015] infirmity came upon him after he had begun his journey towards the court from his
[016] own home (or from another's, this side the sea or beyond) that he cannot come for
[017] profit or loss, which is commonly said for ‘neither to gain or lose,’ which let him say
[018] he is prepared to show.⁷ But because proof does not fall on the essoiner but on the
[019] lord, nor does he know whether what the person summoned wishes him to avow is
[020] true or not, nor should he be burdened by sureties, that is, by having to find pledges,
[021] which would be heavy and burdensome to persons of little importance, therefore, lest
[022] the excuse perish, it is established that his faith alone be given credence, a concession
[023] not to be made to persons of greater importance, such as those who hold in barony,
[024] who shall find security by sureties, lest judgments be illusory. For it is easier for
[025] persons of greater importance to find pledges and surety, and especially cautio
[026] fideiiussoria, than for those of lesser. When the essoiners of such persons put forward
[027] the reason and excuse for absence, it does not suffice for them to say it is so unless they
[028] find surety to prove it.⁸ But since he is not the procurator of him who appointed him
[029] essoiner, and therefore it is not for him [but] for an attorney to prove the statement⁹
[030] of the principal lord, [let the lord appoint¹⁰

Notes

1. ‘vel’

2. Om: ‘non excusatur’

3. Infra 148; om: ‘non erit . . . excusationi’

4. Om: ‘tune videndum’

5. Om: ‘et ita . . . excusationi’

6. New paragraph

7. Infra 79

8. Infra 110-11

9. ‘dictum’; om: ‘alienum . . . factum’

10. ‘faciat’