Bracton: Thorne Edition: English. Volume 3, Page 261

Harvard Law School Library

Bracton Online -- English

Volume 3, Page 261

Next

Go to Volume: Page:

[001] demandant must show his right and the reason¹ why it belongs to him.² If the demandant
[002] does not appear, after awaiting the fourth day the tenant will withdraw
[003] quit of that writ, as will the warrantors. If the demandant and tenant are present and
[004] the warrantor defaults, then before all else let the assise be taken on the warrantor's
[005] default. We must not proceed³ against the warrantor, to distrain him⁴ by the taking
[006] of land or in any other way, before the taking of the assise, until it is clear whether
[007] the tenant has lost or retained by the assise. If he retains, there will be no need to proceed
[008] against the warrantor in a plea of warranty. Hence if the assise cannot be taken
[009] on the first day but another day is given, or perhaps several, for lack of recognitors or
[010] by the tenant's essoin, and on that day, before the taking of the assise, the warrantor
[011] appears and wishes to warrant and defend, he ought not to be heard before the assise
[012] is taken in the manner of an assise; not only because he has no day for warranting,
[013] but because by his default he lost all his exceptions and answers,⁵ so that he cannot
[014] defend, and because before the assise is taken it is not yet clear whether he need
[015] defend or not. ⁶<And that when the warrantor appears after a default the assise
[016] ought to be taken before he answers to the warranty is shown [in the roll] of Michaelmas
[017] term in the third and the beginning of the fourth years of king Henry in the
[018] county of Essex, an assise of mortdancestor [beginning] ‘if Brian the father of
[019] Henry.’⁷ And because the demandant recovered by the assise, the tenant proceeded
[020] against the warrantor for escambium and the warrantor warranted and gave escambium,
[021] and so elsewhere in many places.> Thus his presence is not necessary before he
[022] comes in by distraint after the tenant has lost. ⁸Hence when [the warrantor] has
[023] no day and says ‘I warrant and return and restore the tenement to the demandant,’
[024] he commits an obvious disseisin to the tenant if he does this against the tenant's will,
[025] for since he is bound to defend the tenant in his possession he cannot disseise him
[026] and restore the property to the demandant, for to defend and to restore against the
[027] tenant's will are hardly consistent with one another.

If the warrantor defaults let his land be seized.

[029] If that the assise be taken by default has been decided, and it has been taken and
[030] the tenant has lost by the assise, we must then first proceed against the warrantor
[031] on the warranty, that land belonging to him to the value of the land lost by the
[032] tenant be seised into the hand of the lord king, not in the sense that he may warrant
[033] the tenant, that is, defend him in his seisin, according as ‘warranty’

Notes

1. ‘ius et rationem’

2. Infra 262-3

3. ‘Non procedendum erit,’ as below

4. ‘ad eum distringendum’

5. Cf. infra 262

6. Supra i, 403

7. B.N.B., no. 47; C.R.R., viii, 14; infra 268

8. New paragraph