Bracton: Thorne Edition: English. Volume 4, Page 147

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Volume 4, Page 147

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OF DEFAULTS

Of those who are contumacious and do not appear in court after lawful summons.

[003] Let us return, therefore, to the day of summons in a real action. We have explained
[004] above how one may be excused by essoins if he does not appear in court when lawfully
[005] summoned. Now we must turn to those who are contumacious and do not
[006] appear, and explain how they are to be proceeded against in a real action, according
[007] as it is single, mixed or double.¹ Thus we must see who ought to be called contumacious
[008] and what punishment follows [contumacy] when an immovable is claimed by
[009] an action in rem. A defendant may be called contumacious, whether he goes into
[010] hiding or not, if after having been summoned to court he does not make himself
[011] available and has no excuse. To go into hiding is to wrongfully conceal one's self;²
[012] to fail to make one's self available is to act in such a way as to prevent one's adversary
[013] from proceeding against him,³ though he is present in court. Whether the
[014] reus is contumacious or not, it suffices for proceedings to be taken against him that
[015] he is absent, without more, no matter for what reason.⁴ Hence if he does not come
[016] on the first day, or the second, third or fourth, the demandant presenting himself
[017] in court on some day before the fourth day, let the land or the thing claimed be
[018] seized into the hand of the lord king because of his default, to which seizure a
[019] moderate penalty or none at all attaches, [for] if the reus, appears within fifteen
[020] days after the seizure and claims it by replevin, and if on the day given him in
[021] court he can defend his default, [that is], if the demandant claims judgment on the
[022] default, possession will be returned to him so that he may answer to the principal
[023] plea. But what if the tenant does not appear on the first day, the demandant presents
[024] himself and is seen in court by justices who have record, [and both]⁵ present
[025] themselves on the morrow? ⁶If [the tenant] cannot cure his default, he may lose
[026] seisin; and so if it is on the third day or the fourth. What if neither of them appears
[027] on the first day but both on the morrow? Let the defaults then balance one another,
[028] since both sides are equally at fault, as said above.⁷ And let the same be done if both
[029] appear on other days, up to the fourth. But if they are not equals, as was said, as
[030] where the demandant appears on some day and the tenant does not, or conversely,
[031] then let it be done as above. If the demandant appears on the first day and the
[032] tenant does not, and

Notes

1. Infra 160, 168, 363, 376

2. Cf. D. 42.4.7.4: ‘latitare est non turpis occultatio sui’

3. D. 42.4.2.1: ‘Potestatem autem sui non fecit qui id agit ne adversarium eius copiam sui habeat’

4. Infra 149, 157

5. Om: ‘Si petens’

6. New sentence

7. Supra 125, 135