Bracton: Thorne Edition: English. Volume 4, Page 209

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Volume 4, Page 209

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[001] the great cape lies and with respect to him who did the little cape. But since they are a
[002] single person and their rights do not admit of division, nor may both writs lie at the
[003] same time, if we adhere to the rigour of the law, since suits are to be restricted¹ and
[004] those rules enforced which are more rather than less severe, recourse must then be
[005] had to the little cape. But if we look to its more benign side, then the great cape will
[006] lie, where summonses, defaults and essoins may be denied which is the better view.²
[007] When only one of them defaults let the great or the little cape issue according as he
[008] has or has not previously appeared in court.

When the warrantor defaults on the first, second, third or fourth day and has no excuse.

[010] When the warrantor appears, if he has no excuse, [for] he may put forward an excuse
[011] and cure his default, that he did not come on the first, second, third or fourth day, let
[012] the enrolment then be made thus: ‘A. claimed against B. so much land with the appurtenances
[013] so that the same B. vouched C. to warranty, who after he appeared in
[014] court and had a day in the Bench (or ‘after he had warranted’) defaulted, so that the
[015] land was seized into the lord king's hand and he was summoned to hear his judgment
[016] on this day. The said C. came but could not cure the default. It was therefore decided
[017] that A. recover his seisin against B. and B. be in mercy. And let him have escambium
[018] to the value from the land of the same C.’ The writ for giving seisin to A. is this:

Writ for giving seisin to the demandant and escambium to the value to the tenant.

[020] ‘The king to the sheriff, greeting. Know that when A. in our court etc. claimed against
[021] B. so much land etc. as his right (or if it is a woman, ‘as her dower,’ or some other
[022] thing, according to the form of the original writ) the same B. came into the same court
[023] before the same justices etc. and vouched C. to warranty thereof, who likewise came
[024] into the same court and warranted that land to the same B. and afterwards in our
[025] same court lost by default against the same A. Therefore we order you without delay
[026] to cause the same A. to have full seisin of the said land with the appurtenances, and
[027] the same B. without delay to have escambium to the value of the said land, by the
[028] view of lawful men, from the land of the same C. in your bailiwick. Witness etc.’

Notes

1. Drogheda, 127; D. 48.19.42

2. Supra 67, 163-5, 166, 204