Bracton: Thorne Edition: English. Volume 3, Page 266

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Bracton Online -- English

Volume 3, Page 266

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[001] Suppose the warrantor comes on the first day and successfully denies the warranty;
[002] there will then be no one, neither the tenant nor the warrantor, who may speak
[003] against the assise, why it ought to remain. Not the tenant, because he has put his
[004] defence on the warrantor¹ and cannot take it up again. The warrantor is not bound to
[005] speak against the assise nor to defend [the tenant] because he denies the warranty.
[006] Nothing remains therefore but that the assise be taken by the default of both. If
[007] the warrantor does not default but appears on the first day after essoins and delays,
[008] both demandant and tenant being present, he either warrants immediately or shows
[009] why he ought not to warrant. If he warrants immediately, he can answer against
[010] the assise and show why it ought to remain, forever or for a time, since he has all the
[011] exceptions and defences the principal tenant had, and perhaps more, as will be
[012] explained below,² since he is, so to speak, the tenant, since he is bound to defend the
[013] tenant in his seisin. Thus he may make his defence at once, unless he has a warrantor,
[014] one or several, whom he wishes to name in his own defence. For when a warrantor has
[015] warranted and is so to speak master of the suit, he may vouch over, and that warrantor,³
[016] after he has warranted, may vouch another, and so ad infinitum, one after
[017] another.⁴ How they ought to be summoned, with or without the aid of the court,
[018] and the distraint which ought to follow the summons, is sufficiently clear from what
[019] has been said above,⁵ but with this addition, that he who warranted will always be
[020] regarded as the tenant in the writs of summons and distraint. Let no mention be
[021] made of him who is warranted, who will remain at home until the plea between the
[022] demandant and the warrantor who has undertaken the defence is determined.⁶ If
[023] several warrantors are vouched, from warrantor to warrantor, and the last defaults,
[024] the assise ought to be taken by default,⁷ and the same procedure ought to be observed,
[025] as was said above. And so when there are several warrantors and the last is unable to
[026] defend the tenant, or if the assise is taken by default, the last warrantor cannot
[027] defend himself against giving escambium to his feoffee and that same escambium will
[028] come to the first tenant, from hand to hand, from warrantor to warrantor, as will be
[029] explained more fully below [in the portion] on warranties.⁸ If one or several [of
[030] several] warrantors [vouched as one] are within age, the full age of all will be awaited.⁹
[031] If one of several demandants claiming in common dies before the assise is taken,
[032] the writ does not fall on that account nor will the assise remain,

Notes

1. ‘warantum,’ as 267

2. Infra iv, 231

3. ‘warantus’

4. Infra iv, 211

5. Supra 259

6. Infra iv, 211

7. Supra 260, 265

8. Infra iv, 212, 226

9. Infra iv, 227