Bracton: Thorne Edition: English. Volume 4, Page 96

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Volume 4, Page 96

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[001] are essoined together on the first day of difficulty in coming, and on the second day
[002] the wife appears and the husband is essoined of bed-sickness, and at the day given,
[003] when the essoinee has been viewed and the knights attest that it is a passing illness,
[004] the wife essoins herself of bed-sickness, quaere whether the essoin is to be allowed
[005] after appearance, since she has once appeared in court after the essoin of difficulty
[006] in coming. It must not be allowed, because an essoin of bed-sickness always follows
[007] the essoin of difficulty in coming immediately, and is barred completely by an
[008] appearance¹ in the interim, or² by another intervening essoin, as of the service of
[009] the lord king.³ After an essoin of bed-sickness an essoin of difficulty in coming will
[010] never lie, the time having passed,⁴ not unless the plea is summoned and put before
[011] the justices itinerant by a new summons, so to speak, [or by a new resummons after
[012] the eyre of the justices,] when on the last day one is essoined in the Bench and
[013] ‘languor’ has not been awarded him, and he has licence to rise because of the eyre
[014] of the justices.⁵ Suppose that a husband is essoined of bed-sickness, the knights do
[015] not come on the day given, and the wife has essoined herself of difficulty in coming
[016] and has a day by her essoiner, and the knights, who are attached, have the same
[017] day. If the knights do not come on that day, the wife must appear; if she defaults
[018] her default will be prejudicial to both, so that both will lose by the default of one,
[019] whichever of them defaults,⁶ because the property or tenements of the wife do not
[020] admit of division, as between co-heirs and parceners. On this matter may be found
[021] [in the roll] of Hilary term in the eight year of king Henry in the county of Devon,
[022] [the case] of Thomas de Tingelande.⁷ If she essoins herself a second time, then let
[023] what was said above be observed.⁸ ⁹<She must appear on all days without essoin,
[024] after she has once had an essoin of difficulty in coming, until the view has been made
[025] of her husband, because she may not have more until husband and wife appear together.
[026] The same may be said of the husband when the wife is essoined of bed-sickness.>
[027] When one has vouched several warrantors, whether there is one tenant
[028] or several, if the plea and the writ are such that essoins of bed-sickness ought to
[029] follow, we must then see whether the tenants who vouch to warranty have ‘languor,’
[030] some or all, or have not. If they have, the warrantors will not have ‘languor.’¹⁰
[031] The tenants will have an essoin of bed-sickness until the warrantors have warranted,
[032] and the warrantors none before they have warranted. When they have warranted

Notes

1. ‘per apparitionem’

2. ‘vel’

3. Supra 91, but cf. infra 103, 142; om: si praecedat . . . dicendum’

4. Om: ‘de’

5. Infra 122

6. Supra 84, infra 128, 142, 163, 166

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

8. Supra 80, 94

9. Supra i, 412

10. Supra 94