Bracton: Thorne Edition: English. Volume 4, Page 244

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Volume 4, Page 244

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[001] at the first session when they come into those parts’) to show why he has not done so.
[002] And have there the summoners and this writ. Witness etc.’ To such summons a single
[003] essoin will well lie, before the person summoned appears, if he so wishes.

If he does not come, let the order of attachments be observed.

[005] If he neither appears nor essoins himself, no land will be taken into the lord king's
[006] hand because of his default, as in the warranties described above, but let him be
[007] attached by gage and safe pledges to be present on a certain day to warrant or to show
[008] why he ought not to do so, just as was said above. And let the order of attachments be
[009] observed, as it is observed elsewhere [of attachments,]¹ until he appears. When he
[010] appears in court he may answer against the charter [or] that he is not bound to warrant
[011] according to the form of the writ, either because the plaintiff does not hold the
[012] land as to which he claims warranty, or because he does not show a charter or other
[013] matter by which the person summoned ought to warrant, or because the plaintiff is
[014] not the heir, near or remote, of him in whose name the warranty is claimed. And there
[015] are many other answers, as may be seen above by an example [of vouching a
[016] warrantor.]²

If the person summoned to warrant has harassed his tenant; according to some this writ does not lie against a lord-feoffor but the writ of right of services and customs.

[018] If it is he who is summoned to warrant [who] has vexed and oppressed his tenant
[019] contrary to his charter, by exacting other or more services than he ought to do, there
[020] are some who say that the writ of warranty of charter does not lie against [him] but
[021] the writ of right of services and customs, by which the matter may be brought to the
[022] duel or the grand assise,³ though it may be objected and maintained that he who is
[023] bound to defend his tenant against others ought not himself, contrary to his own
[024] charter, to oppress him or do him an injuria. Thus it seems that he is liable for the
[025] injuria by this writ, because he who is bound to defend ought not to destroy, and
[026] because what one has the duty to prevent others from doing he ought not to do
[027] himself.⁴

Notes

1. Infra 365

2. Supra 217

3. The action ‘Ne vexes’: supra ii, 119

4. D. 8.5.15: ‘quia quod alium facientem prohibere ex officio necesse habuit, id ipse committere non debuit’. ‘quod,’ ‘ipse’ as D; supra ii, 305