Bracton: Thorne Edition: English. Volume 3, Page 262

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Volume 3, Page 262

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[001] means defence, [but] in the other sense, according as the warrantor is bound to
[002] escambium when he does not or cannot defend his feoffee. let him be distrained in
[003] this way, if he has land in the same county, that the sheriff seize into the king's
[004] hand, from the warrantor's land, land to the value of that lost by the tenant, by
[005] this writ:

The writ ‘while [the tenant] was in seisin.’

[007] ¹‘The king to the sheriff, greeting. Seize into our hand by the view of lawful men of
[008] your county from the land of A. in your bailiwick, because of his default, [land] to
[009] the value of so much land with the appurtenances in such a vill which B. in our court
[010] before our justices etc. recovered against C. by an assise of mortdancestor there taken
[011] between them, as to which the same C., while he was in seisin, vouched the aforesaid
[012] A. to warranty against the same B. And summon the aforesaid A. by good summoners
[013] to be before our same justices at such a place at the aforesaid term ready to
[014] answer and show why he did not appear before our same justices at such a place
[015] on such a day, [that is, [the day] of the principal plea of warranty,]² as he was summoned.
[016] And have there the summoners etc.’ If the land lost and the land bound to
[017] escambium are in different counties, let an extent then first be made of the land lost,
[018] that as much may be taken into the hand of the lord king from the warrantor's land
[019] bound to escambium, [as will be explained more fully below [in the portion] on the
[020] distraint of a warrantor,]³ If there are several warrantors, as was said above,⁴ then,
[021] an extent having been made, let land be seized into the hand of the lord king from
[022] the lands of each to the extent that the warranty falls upon each, according to the
[023] value of the land which the tenant lost by the assise taken by the warrantor's default.
[024] ⁵[The writ says ‘why he did not appear etc.’]. Thus it is evident that [the warrantor]
[025] may have an excuse for his default, because of hindrances, and⁶ will be restored by
[026] making his law as in a proprietary action, and thus the assise may not be taken
[027] because of any default, for a default which can be denied by making one's law will be
[028] null, and as⁷ he who vouched will not be in default, because he sued according to the
[029] law of the land and is thus not guilty of culpa, the warrantor will not be guilty of culpa
[030] because he may deny the summons by his law, and therefore he who decides that the
[031] assise be taken by a default which is of no effect acts wrongly. It will be unjust for
[032] the warrantor to lose his answers⁸ against the demandant and give escambium when
[033] he has defences and is not at fault. [Thus] only when the warrantor does not come at
[034] all, or when he comes cannot excuse his default, let the assise be taken on the default,
[035] in order to ascertain whether the demandant has the right to claim or

Notes

1. Infra iv, 202

2. ‘scilicet . . . warantiae,’ from lines 14-15

3. Infra iv, 202

4. Supra 259

5. New paragraph

6. ‘et’

7. ‘sicut’

8. Cf. supra 261