Bracton: Thorne Edition: English. Volume 4, Page 168

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Volume 4, Page 168

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[001] his day but defaults on the first, second, third and fourth days, the tenant being
[002] present? The demandant will lose his writ by his default and the tenant will retain
[003] his land which he was to lose by his default, as [in the roll] of Michaelmas term in
[004] the third and the beginning of the fourth years of king Henry, near the middle of
[005] the roll.¹ If neither appears, then, one default balancing the other,² the demandant
[006] will obtain on another day, when he appears³ by the tenant's default.

If one defaults in a mixed action.

[008] ⁴Mixed actions are those which are both in rem and in personam, where both are
[009] actor and both reus, [but he is the actor who first brings the matter to court,]⁵ as
[010] between co-heir parceners, where a parcener claims his reasonable share against a
[011] co-heir parcener, as where the inheritance is partible either by reason of the thing
[012] or the persons. Also where a thing held in common is partible among parceners who
[013] are not co-heirs, and one sues against his parcener to have the common property
[014] divided. Also where a dispute arises between neighbours as to the boundaries of
[015] holdings, and one of the neighbours asks that reasonable boundaries be fixed between
[016] him and his neighbour.⁶ All these mixed actions ought to be counted among
[017] actions in rem, not in personam. For that reason, if one defaults in these three
[018] actions or others like them, let the process against him be that against those who
[019] default in a real action. In all actions where two distraints run together, that is, in
[020] rem and in personam, that distraint is to apply which is more coercive and binds
[021] more strictly.⁷

If two actions, one personal the other real, lie against a man in one writ.

[023] ⁸When two actions are contained in one writ, one in personam and the other in rem,
[024] as where one is summoned to appear and show by what warrant he holds such land,
[025] and it is then added ‘which the lord king claims is his escheat (or ‘of his ancient
[026] demesne’)’ since here two distraints run together, that one is to apply which binds
[027] more strictly, as was said above, that is, that the land be seized into the king's hand,
[028] though some do the contrary. If [the actions are] in different writs, the distraint⁹ as
[029] to each of them would be made by itself. If default were made in the writ of quo
[030] warranto, the matter would proceed to attachment, not to seizure of the land, and
[031] conversely in the other writ. If one impetrates a writ of quo warranto or quo jure

Notes

1. Not in B.N.B.

2. Supra 125, 135

3. ‘comparuerit’

4. Supra ii, 293, iv, 160

5. D. 10.3.2.1; supra ii, 293, infra 376

6. Infra 376

7. Supra 161, infra 209

8. Supra 160, infra 376

9. ‘districtio’