Bracton: Thorne Edition: English. Volume 3, Page 265

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Volume 3, Page 265

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[001] found in the roll of Hilary term in the sixth year of king Henry in the county of
[002] Middlesex, an assise of mortdancestor [beginning] ‘if Aluric Huse,’ which land Maud
[003] of Whitechurch held, who vouched William of Whitechurch to warranty.¹ What
[004] is said of the default of one warrantor, when only one is vouched, may be said of the
[005] default of one or two of several warrantors, that the assise must be taken if one of
[006] the several defaults.² From the foregoing it is perfectly clear that when a warrantor
[007] defaults on the first day, and it is adjudged that the assise be taken by default, if
[008] it cannot be taken on that day and is postponed to another, and the warrantor then
[009] comes (by distraint or without it) and wishes to warrant before the assise is taken, he
[010] may well do so, but not for defence, that he defend the tenant or say something
[011] against the assise, but that he give escambium if the tenant loses by the assise;³ this
[012] is true a fortiori after the assise has been taken, since there will then be no one in
[013] possession for him to defend, though he is bound to escambium because of the warranty.
[014] If, in as much as he has so warranted with respect to escambium, he wishes to
[015] vouch over a warrantor, it will be of no advantage to him, as appears by the example
[016] above, since by his own fault he is not in seisin or quasi-seisin, nor is his feoffee,
[017] whom his warrantor can defend in seisin. And that the assise ought to be taken by
[018] default of the warrantor immediately after the default may be found [in the roll]
[019] of Michaelmas term in the twelfth and the beginning of the thirteenth years of king
[020] Henry, in the county of Southampton, an assise of mortdancestor [beginning] ‘if
[021] Robert son of Eilric,’ touching a tenement in Denemede,⁴ whereof Herbert son of
[022] Richard who held that land vouched the prior of St. L@3o⁵ of Rouen to warranty,
[023] who after his essoins ‘of beyond the sea’ and ‘this side’ made default. It was adjudged
[024] that the assise should proceed by the default of the prior. And because
[025] Herbert lost by the assise he had his recovery against the prior. Thus it is true that
[026] the assise must not be taken until the warrantor has defaulted. And so if the tenant
[027] defaults after he has vouched a warrantor, whether the warrantor comes or not the
[028] assise will be taken [as in the roll] of Trinity term in the seventeenth year of king
[029] Henry in the county of Buckingham, an assise of mortdancestor [beginning] ‘if
[030] Roger of Estwike.’⁶ The same may be said if both the warrantor and tenant default.
[031] If only the tenant defaults it makes no difference whether the warrantor is present or
[032] absent,⁷ because he is quit of the warranty since there is no one who sues against him.

Notes

1. Not in B.N.B.; no roll extant

2. Supra 260, infra 266

3. Supra 261, 263

4. Denmead in Hambledon; C.R.R., xiii, no 1854; not in B.N.B.

5. ‘Laudo,’ OA, MA, MC

6. Not in B.N.B.

7. ‘absens’