Bracton: Thorne Edition: English. Volume 3, Page 263

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Volume 3, Page 263

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[001] not;¹ if he has, that the tenant have escambium, [and] if not, that the tenant retain
[002] by the assise and the warrantor be quit of escambium. For it would not be just that
[003] the tenant have both the tenement he had before and escambium though the warrantor
[004] defaulted. For that reason the assise must always be taken. It will always be
[005] necessary to ascertain² whether the tenant has just cause for claiming and for
[006] vouching³ a warrantor or not.

Another writ on the same subject ‘while [the tenant] was in seisin.’

[008] ‘The king to the sheriff, greeting. Seize into our hand by the view of lawful men etc.
[009] from the land of A., because of the default of the same A., land to the value of a
[010] third (or ‘fourth’) part of so much land with the appurtenances in such a vill in such a
[011] county which B. in our court etc. recovered against [C.] by assise of mortdancestor
[012] etc., and as to which the same C., while he was in seisin, vouched the aforesaid A.
[013] and D. and E. his parceners to warranty. And summon the aforesaid A. by good
[014] summoners to be before our same justices at such a place at the aforesaid term ready
[015] to answer with the aforesaid D. and E. and to show why he was not etc. (as above).’
[016] If they do not come on that day they will lose the land seized into the hand of the
[017] lord king by their default, according as the assise finds for the tenant or the demandant,⁴
[018] some of them or all, depending on whether they come or not on that day.
[019] [When] the warrantor comes in by distraint, he either warrants immediately or
[020] says that he is not bound to warrant, which in this case is simply to say that he is
[021] not bound to escambium, taking the word ‘warranty’ in one of its senses, because he
[022] cannot warrant in the other sense, that is, defend the tenant in seisin, since there is
[023] now no tenant in seisin for him to defend. Thus the question is only one of escambium,
[024] and if [the warrantor] can defend himself he will withdraw quit of escambium; if
[025] he cannot, let him satisfy his feoffee as to escambium at once, unless he wishes to
[026] vouch over; if so, let the warrantor then be summoned to appear on such a day in
[027] such a place to warrant so much land to such a one by this writ.

The writ for summoning a warrantor to warrant after the assise has been taken by the warrantor's default.

[029] ‘The king to the sheriff, greeting. Summon such a one, A., by good summoners to
[030] be etc. to warrant to B. so much land etc. which C. in our court etc. claimed⁵ against
[031] D. and which the same D. afterwards lost by an assise of mortdancestor taken
[032] between the aforesaid C. and D., as to which

Notes

1. Om: ‘vel’

2. ‘sciatur,’ as 262

3. ‘causam petendi et vocandi’

4. Om: ‘secundum unum sensum’

5. ‘clamavit,’ all MSS