Bracton: Thorne Edition: English. Volume 4, Page 160

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Volume 4, Page 160

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[001] further recourse to the default. If it is not done by the demandant but by the justices
[002] acting ex officio, or by the will of the king, or because of some necessity, or
[003] perhaps at the tenant's procurement, it will be otherwise.]¹ it is to the demandant's
[004] advantage that mention be made of the default and that he take the love-day with
[005] this protestation, that if it comes to nothing recourse to the default be saved him,
[006] the plea and the default remaining in the same state in which they were on the day
[007] the love-day was taken. If this protestation is not made² and the love-day is without
[008] effect, on another day he can hardly save it. The same will be true if the tenant
[009] defaults³ and the demandant essoins himself after the default.⁴

Who may remit a default.

[011] Who may remit a default, the principal lord or his attorney or his warrantor after
[012] he has warranted? It is clear that it is the principal lord who could gain by the
[013] default. There could be doubt as to the attorney and the warrantor, but if they
[014] remit apparently the remission is good;⁵ let him blame himself for choosing such
[015] persons.

If default is made in a mixed action.

[017] ⁶If the tenant defaults in a mixed action, as in an action for the partition of an
[018] inheritance, where co-heir parceners sue to divide an inheritance among themselves,
[019] and where each is actor and reus, though such action is both in personam and in rem
[020] let no attachment be made of the person, [though that could be done for some good
[021] reason, since it is mixed, [in rem] and in personam,] but let the land be seized into
[022] the king's hand by the great cape, as above, as in the action de proparte sororum
[023] and⁷ elsewhere where the thing admits⁸ of division among parceners.

If there is a double action in a single writ.

[025] ⁹An action is double when in one writ two actions run together, that is, the first in
[026] personam, that one appear to answer by what warrant he holds some thing, [and the
[027] second in rem, as where] there is added at the end of the writ ‘which the king
[028] claims as his right (or ‘as his escheat,’ or ‘of the ancient demesne’ or the like).’¹⁰
[029] Though neither action is of value by itself, if taken strictly, for obtaining seisin,
[030] nevertheless if the tenant defaults and both distraints accrue, that is, attachment
[031] [and seizure into the king's hand], since one action is personal and the other real,
[032] that distress is to be applicable which binds more strongly

Notes

1. Supra 60, 129; om: ‘Et si . . . debeat,’ a connective

2. ‘fiat’

3. ‘si tenens defaltam fecerit,’ from line 8

4. Supra 64, 69

5. Supra iii, 142

6. Supra ii, 293, infra 168, 376

7. ‘et’

8. ‘patiatur,’ as infra 163

9. Infra 168

10. Infra 188