Bracton: Thorne Edition: English. Volume 4, Page 164

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Bracton Online -- English

Volume 4, Page 164

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[001] excepted against her that he is alive, she is bound to prove her assertion. If she fails
[002] in her proof the demandant will recover, and let the woman afterwards have such
[003] recovery as she will have to have. If the demandant, by excepting against the
[004] woman's assertion, alleges that the husband is alive, because of the slight presumption
[005] arising from [his]¹ allegation let the demandant prove the contrary, that is, his
[006] exception, that is, that he is alive. If he fails, his writ falls, but the action will be
[007] good against the wife [by herself]. Hence it appears that when one proof suffices
[008] recourse need not be had to two. ²<But what if the husband defaults first and the
[009] wife appears? If the husband fails in defending himself by his law both will lose;
[010] if both fail together, the same is true. But quaere whether both ought to defend
[011] themselves separately and make two laws, and if so, by the same jurors or others,
[012] or whether both may defend by one law, since they are one body? Also if the wife
[013] after [he] has defaulted, or the husband, may³ appoint an attorney before the law
[014] is made. If the husband defaults first and the wife⁴ appears, and then the wife defaults
[015] and the husband appears, they will lose⁵ by the first default and the second
[016] without defense by wager of law.>

If one defaults before he appears [and] if the plea has been transferred to the great court.

[018] Among other matters we must see when the writ called the great cape lies and when
[019] that called the little cape lies. It is regularly true that [the great cape] lies wherever
[020] one may deny the summons made him and defend by wager of law, that is, before
[021] one has appeared in court, that is, at the beginning of the suit, whether the plea
[022] is in the king's court or elsewhere, in the county court or in the courts of barons or
[023] others who have courts. If the plea is transferred from the county court to the
[024] king's court, though one has so put himself on the grand assise in the county court
[025] that the four knights are summoned to choose twelve,⁶ and the tenant defaults in
[026] the king's court after summons made him by pone, let the land then be taken into
[027] the king's hand by the great cape, as [in the roll] of the last eyre of Martin of
[028] Pateshull in the county of Kent in the twelfth year of king Henry, [the case] of
[029] Engelram of Shoford, who pleaded in the county by writ of right.⁷ The reason is
[030] because though he had pleaded for a long time in the county, which is one court,
[031] he never appeared in the king's court, which is another; that is why he may deny
[032] the summons and the default and the day

Notes

1. ‘petentis’

2. Supra i, 414; belongs infra 166 at n. 4

3. ‘possit’

4. Om: ‘postea’

5. ‘amittent’

6. Supra 154, 161

7. Not in B.N.B.; roll extant