Bracton: Thorne Edition: English. Volume 4, Page 162

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Bracton Online -- English

Volume 4, Page 162

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[001] if both are present, demandant and tenant, and the writ has not come, if the tenant
[002] offers himself and asks judgment whether he ought to answer without the writ, he
[003] will withdraw quit of that writ, if they have well understood their day. If both have
[004] erred and have appeared earlier than they ought, the summons and writ will be
[005] good nevertheless.

If one of several tenants who hold in common defaults, a second is essoined and a third appears.

[007] Suppose that a demandant has impleaded several tenants, two, three or more, who
[008] hold in common, and one of them defaults, the second is essoined and the third
[009] appears; no one will answer with the other.¹ Another day will therefore be given
[010] personally to him who is present, by his essoiner to him who is essoined, and
[011] against him who defaults let the matter proceed to default, by the great or the little
[012] cape, according as he has or has not appeared in court before his default, not so that
[013] on the default of one the entire thing claimed be taken into the king's hand, only
[014] the defaulter's portion,² that is, half of the thing claimed or a third or a quarter,
[015] whether he is conducting the matter himself or by an attorney, for by the default
[016] of an attorney the lord of the suit loses,³ whether all have appointed the attorney
[017] or one, and one of the several may well lose his portion by default without his parceners,
[018] though at the outset he is not bound to answer without them.⁴ If all the
[019] tenants appoint one attorney, by his default they may all lose. Suppose that one
[020] of several parcener-demandants defaults and all the others appear in person or are
[021] essoined; quaere as to the process against the absentee. I answer: all who are
[022] present or essoined will have another day, and let the absentee be summoned to
[023] appear on that day to sue with his parceners if he so wishes, by this writ.⁵

If a parcener named in the writ refuses to sue or does not appear, let him be summoned to sue if he wishes.

[025] ‘The king to the sheriff, greeting. Summon A. by good summoners to be before the
[026] justices etc. on such a day to sue with B. and C. his parceners in the plea between
[027] the aforesaid A. B. and C. demandants and D. of N. tenant with respect to so much
[028] land with the appurtenances in such a vill, if he wishes so to do, as to which

Notes

1. Supra 83, 84, 95, 127

2. Infra 166

3. Supra 160

4. Supra 84

5. ‘breve’