Bracton: Thorne Edition: English. Volume 3, Page 65

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Volume 3, Page 65

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If no one appears.

[002] On the arrival of the justices, if no one appears, neither the plaintiff nor the tenant,
[003] the assise will be void, so to speak, and all their pledges will be in mercy. If the
[004] tenant appears but not the plaintiff, unless the plaintiff wishes to essoin himself,
[005] which he may well do, he and his pledges will be in mercy and the tenant will withdraw
[006] sine die, but the plaintiff, if he wishes, will have recourse¹ to another writ of
[007] the same kind. If the plaintiff appears but not the tenant, the pledges for the attachment
[008] will be in mercy, and he as well, if he has been attached, and the assise will be
[009] taken by default, as below.² ³<If neither party appears, neither plaintiff nor tenant,
[010] so that they withdraw quit by judgment of the court, all will be in mercy, that is, the
[011] principals and their pledges.> On the arrival of the justices either all appear, both the
[012] plaintiff and he against whom complaint is made, according as there are several or
[013] one, [or they do not. If all appear] let them at once proceed to the assise, unless by
[014] grace of the justices, in a case where that is permissible, they wish to settle the matter
[015] or come to some agreement. Sometimes nothing will happen except that the plaintiff
[016] withdraws himself or the defendant acknowledges the disseisin.⁴[[One] who thus
[017] simply withdraws himself⁵ at the beginning, without lawful cause, whether in an
[018] assise of disseisin or in any other assise or plea, will never have recourse⁶ to a similar
[019] writ. But if the assise or plea of whatever kind has begun, and there is an error in
[020] impetration, so that the writ cannot stand but falls as defective, whether the plaintiff
[021] says that he does not wish to sue that writ, or withdraws simply, or prays license to
[022] retire, or [withdraws] in any other way, he may have recourse⁷ to another writ which
[023] is not faulty, because he does not answer to the action, nor except against the action,
[024] only against the writ, because of defect and error the action being unharmed and not
[025] yet begun. Hence, since nothing is brought before the court but an exception to the
[026] writ, if he simply withdraws from the writ he does not withdraw from the action,
[027] which is not before the court, unless he expressly states that he withdraws himself
[028] from both.⁸ [Error in the writ will be explained below [in the portion] on exceptions.]⁹
[029] But in whatever way he withdraws himself simply whether he says ‘I withdraw (or
[030] ‘retire’) from this writ,’ or ‘I am unwilling to sue further,’ or in some other way, he
[031] will not withdraw with impunity, because he and his pledges for prosecuting will be
[032] in mercy. But when he prays license to retire, and that is freely granted him, he will
[033] withdraw with impunity. If the writ is good and there is nothing which may be
[034] excepted against the writ or against the person, if the thing and the action are before
[035] the court and there is no error in the quantity of the thing claimed, and he then prays
[036] leave to withdraw, [or withdraws] simply, he will withdraw¹⁰ from both and will
[037] never have recourse¹¹ to another similar writ. If it is said, ‘I withdraw against such a
[038] person,’ perhaps because he has nothing, he will nonetheless have recourse¹²

Notes

1. ‘recurretur,’ as infra 211

2. Infra 67

3. Supra i, 394

4. Continued infra 67, n. 6

5. ‘se’ for ‘si,’ all MSS

6. ‘recurretur’

7. ‘recurrere’

8. Supra 37, infra 79, 138

9. Infra 77

10. ‘recedet’

11. ‘recurratur’

12. ‘recurretur’