[54] Mr. Reeves observes, that the waging of Law is not mentioned by Glanville, as a mode of proof for the defendant in civil suits. That judicious writer must be understood, as speaking of that proof, which constituted the defence to the Action.
[55] Vide Mirror, c. 4. s. 7. Bracton 366. a. b. 368. a. b.
[56] Reseantisâ, from the French reseant, or resiant, or when anglicised, resiance, a term which Dr. Johnson explains in his dictionary, as meaning a residence, though, as he remarks, it is now only used in Law. In this, its simple sense, our author has used it, in a subsequent part of his work. (L. 12. c. 7.) Yet it assumes a different meaning, as used by the old English and Scotch Lawyers to denote an Essoin, when it indicated, as Skene expresses it, “a long and old sickness, or a resident, heavy infirmity and sore sickness.” (Regiam Majestatem, L. 1. c. 8.) An observation in the margin of our author informs us, that this Essoin was synonymous with that de malo lecti; in other words, this Essoin was resorted to on account of such a severe indisposition as necessarily confined a man to his house or bed.
[57] Or de via Curiæ, as it is termed in the Norman code. This Essoin was cast, when the party on his way to Court had fallen suddenly sick, and was thereby prevented attending. (Le grand Custum. de Norm. c. 39.)
[58] “Or on another,” according to the Cotton. Bodl. and Dr. Milles’s MSS.
[59] “Fourth,” according to Dr. Milles’s MS. and so it undoubtedly ought to be, as the context evinces.
[60] Vide Infra, [L. 11]. [c. 5].
[61] It should seem, from Bracton and Fleta, that such persons only as were inferior in dignity to Barons, were required to prove the truth of their Essoins by their own oaths. (Bracton 351. b. Fleta L. 6. c. 10. s. 15.) By the 19th c. of Marlbridge, even these persons were relieved from the obligation. (2 Inst. 136.)
[62] Vide Madox’s Excheq. c. 3. s. 3.
[63] The severity of this Law was mitigated by 9 Ed. 3. c. 2. whereby none were to lose their land, by reason of non-plevin. A note to this effect is inserted in the margin of our Author; but the reference to the chapter is erroneous.