Bracton: Thorne Edition: English. Volume 4, Page 366

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Volume 4, Page 366

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[001] by C. and D. Judgment. Let him be put by better pledges to appear on such a day,
[002] and let the first pledges etc.’ The form of the writ is as follows.

Writ for attaching by better pledges.

[004] ‘The king to the sheriff, greeting. Put B. of N. by gage and better pledges to be before
[005] our justices etc. to answer A. with respect to a plea etc. (according to the form of the
[006] original writ) and to show why he did not appear before the same justices etc. on such
[007] a day, as he was attached. And summon by good summoners C. and D., the first
[008] pledges of the same¹ B., to be before the same justices at the aforesaid term to hear
[009] their judgment as to this, that they did not have the aforesaid B. in our same court
[010] before our same justices as they pledged him. And have there the names of the second
[011] pledges and this writ.’ If the reus does not come on that day, nor the pledges to show
[012] why they did not have the aforesaid reus, they will all be in mercy, but not the reus
[013] until he appears, because [when] pledges fail him, all the defaults then first begin [to
[014] be] his own, as though he had never found pledges, as may be seen at the end of the
[015] following writ, where it is said that he be present to hear his judgment as to his several
[016] defaults, and from this day all afforcements of pledges will cease.

How and when pledges are to be amerced.

[018] If the reus appears² after the second attachment, only the first pledges, are to be
[019] amerced, unless they come and show why they did not have him at the first attachment,
[020] not the second pledges [unless] at the second³ attachment they do not come
[021] and do not have the reus. And that all the pledges are to be amerced,⁴ but not the
[022] reus until he has been summoned to hear his judgment for his several defaults, is
[023] proved in the roll of Michaelmas term in the ninth and the beginning of the tenth
[024] years of king Henry in the county of York [the case] of Nicholas de Stuteville.⁵ It is
[025] otherwise, as is evident, if one finds pledges for prosecuting and does not prosecute;
[026] all will be in mercy, both pledges and principals. But in truth the cases are not similar,
[027] for in this last all are guilty of culpa; the plaintiff because he does not prosecute and
[028] the pledges because he did not prosecute as they had pledged him, and because they
[029] are pledges for doing, promising the act of another,⁶ and the others in the first case
[030] bind themselves only to have him on the day of summons. If

Notes

1. ‘ipsius’

2. ‘comparuerit’

3. ‘non secundi nisi ad secundum’

4. ‘Et quod . . . sunt,’ from line 23

5. C.R.R., xii, nos. 746, 1362; not in B.N.B.

6. ‘factum alterius promittendo’; om: ‘ad obligationem querentis’