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Of those who are contumacious and do not appear in court after lawful summons.

[003] Let us return, therefore, to the day of summons in a real action. We have explained
[004] above how one may be excused by essoins if he does not appear in court when lawfully
[005] summoned. Now we must turn to those who are contumacious and do not
[006] appear, and explain how they are to be proceeded against in a real action, according
[007] as it is single, mixed or double.1 Thus we must see who ought to be called contumacious
[008] and what punishment follows [contumacy] when an immovable is claimed by
[009] an action in rem. A defendant may be called contumacious, whether he goes into
[010] hiding or not, if after having been summoned to court he does not make himself
[011] available and has no excuse. To go into hiding is to wrongfully conceal one's self;2
[012] to fail to make one's self available is to act in such a way as to prevent one's adversary
[013] from proceeding against him,3 though he is present in court. Whether the
[014] reus is contumacious or not, it suffices for proceedings to be taken against him that
[015] he is absent, without more, no matter for what reason.4 Hence if he does not come
[016] on the first day, or the second, third or fourth, the demandant presenting himself
[017] in court on some day before the fourth day, let the land or the thing claimed be
[018] seized into the hand of the lord king because of his default, to which seizure a
[019] moderate penalty or none at all attaches, [for] if the reus, appears within fifteen
[020] days after the seizure and claims it by replevin, and if on the day given him in
[021] court he can defend his default, [that is], if the demandant claims judgment on the
[022] default, possession will be returned to him so that he may answer to the principal
[023] plea. But what if the tenant does not appear on the first day, the demandant presents
[024] himself and is seen in court by justices who have record, [and both]5 present
[025] themselves on the morrow? 6If [the tenant] cannot cure his default, he may lose
[026] seisin; and so if it is on the third day or the fourth. What if neither of them appears
[027] on the first day but both on the morrow? Let the defaults then balance one another,
[028] since both sides are equally at fault, as said above.7 And let the same be done if both
[029] appear on other days, up to the fourth. But if they are not equals, as was said, as
[030] where the demandant appears on some day and the tenant does not, or conversely,
[031] then let it be done as above. If the demandant appears on the first day and the
[032] tenant does not, and


1. Infra 160, 168, 363, 376

2. Cf. D. ‘latitare est non turpis occultatio sui’

3. D. ‘Potestatem autem sui non fecit qui id agit ne adversarium eius copiam sui habeat’

4. Infra 149, 157

5. Om: ‘Si petens’

6. New sentence

7. Supra 125, 135

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