Bracton: Thorne Edition: English. Volume 4, Page 165

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Volume 4, Page 165

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[001] given against the record of the county court by wager of law. But what if it is transferred
[002] for default from the court of a baron or another because they are unwilling
[003] or unable to do right? If, the default of the court being proved or admitted, the
[004] king's serjeant gave the parties a day in the county court, and the tenant then
[005] defaults, let the land be seized into the king's hand in the same way, by the great
[006] cape, because [until] the summons is attested¹ by the serjeant the tenant may deny
[007] it by wager of law.² The same may be observed where all pleas in the Bench have
[008] been put without day because of an eyre of the justices, or for some other reason,
[009] and are again resummoned. If the tenant defaults after resummons, it seems that
[010] seizure ought to be made by the great cape, because the tenant may deny such
[011] summons by wager of law since he has had no day in court after the plea was put
[012] sine die, and let the same be observed in every case on any new resummons. But
[013] the contrary appears, as where bastardy has been so objected against a person that
[014] the inquest as to bastardy or legitimacy is sent to court christian; after the enquiry,
[015] [when] the inquest is sent back to the court, let the parties (and the plea which was put
[016] without day because of the exception of bastardy) be resummoned to hear their
[017] judgment. In that case, if the tenant does not appear, the seizure into the king's
[018] hand is made by the little cape, that is, ‘that the parties be present to hear their
[019] judgment.’ The reason for the difference may be that when one has proved himself
[020] legitimate, or his adversary a bastard, nothing remains but judgment, which is not
[021] true in the other cases.

The little cape: where one defaults after he has appeared in court.

[023] The little cape lies when one has once appeared in court and has a day before the
[024] justices, no matter at what time or for what reason, so that he cannot deny the day
[025] and the summons nor defend by wager of law, or if the tenant has done something
[026] from which it may be presumed that he has received the summons, as where³ he
[027] has appointed an attorney in the plea because of which he is summoned to court, or
[028] done something of the kind;⁴ he cannot deny the summons thereafter, as will be
[029] explained more fully below [of defaults after appearance.] It is generally true that
[030] seizure into the king's hand by the little cape lies where one defaults in a plea after
[031] he has appeared in court, whether one has been impleaded or several, this distinction,
[032] however, being taken, that if the several impleaded are co-heirs or other parceners
[033] who hold in

Notes

1. ‘testata fuerit summonitio’

2. Supra 54

3. Om: ‘cum summonitus fuerit’

4. Supra 146