Bracton: Thorne Edition: English. Volume 4, Page 86

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Volume 4, Page 86

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[001] removed him, acts or answers on some day without the attorney and receives a day
[002] in his own person? Quaere who ought to essoin himself on the second day, the lord or
[003] the attorney? Not the attorney, as is evident, because he was not present in court,
[004] nor did he receive the day. Not the lord, because he appointed an attorney and did
[005] not remove him. It is safer if both essoin themselves,¹ though it suffices to the extent
[006] of excusing [the lord] if the attorney essoins himself, since the lord has not
[007] removed him. If the lord does so by himself it will not be valid, as long as he has an
[008] attorney. And what is said of the tenant's attorney ought to be said of the demandant's.
[009] Suppose that a demandant or a tenant appoints several attorneys, that
[010] is, two or more; one of the several, if he is present in court, may sue or defend for
[011] the lord without the other, for attorneys are appointed disjunctively so that if one
[012] does not or cannot come the other may.² [But] unless both lawfully excuse themselves,
[013] it does not suffice to excuse his absence, so as to prevent proceedings to default
[014] from being taken.³ The reason is because if the lord cannot appear by one
[015] attorney, he may by the other⁴ and if one essoined himself and the other did not,
[016] [and] if the demandant should receive a day against the attorney's essoiner and
[017] withdraw, the other attorney could appear, offer himself for the suit, and put the
[018] demandant or tenant in default, which would be unjust. On this there is matter [in
[019] the roll] of Michaelmas term in the sixteenth and the beginning of the seventeenth
[020] years of king Henry, [the case] of Joscelin, bishop of Bath and the prior of Bath.⁵
[021] To the same intent [in the roll] of Hilary term in the eighteenth year of the same,
[022] [the case] of John de Karun.⁶ Suppose that one appoints two attorneys against a
[023] single tenant or plaintiff, or several, both essoin themselves, and the tenant or the
[024] plaintiff defaults; quaere whether one attorney's essoiner or both ought to await the
[025] fourth day. It seems necessary for both to wait, because it seems not to suffice if
[026] one waits, no more than if one had excused [himself]. On the other hand, it seems
[027] that it suffices if one waits, because with respect to the essoin and excuse he takes
[028] the place of an essoiner or excuser, and with respect to awaiting the fourth day he
[029] takes the place of the actor, so to speak. It seems therefore that one suffices. But in
[030] truth, since the tenant may appear within the fourth day, nor ought an essoin to
[031] be returned before the fourth day, it is proper that both must wait, because it does
[032] not suffice if one essoins himself unless he awaits his day.

Notes

1. Supra 82, 85, infra 112

2. ‘constituti . . . veniat,’ from lines 15-16

3. Om: ‘sine aliis’; ‘ac si . . . fecissent.’

4. Om: ‘et sic . . . vel nullus’

5. B.N.B. no. 866; C.R.R., xiv, no. 2128 (sidelined)

6. Not in B.N.B.; no roll extant