Bracton: Thorne Edition: English. Volume 4, Page 367

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Volume 4, Page 367

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[001] on the first day of the summons or the attachment the person summoned or attached
[002] does not appear, nor does the plaintiff, since the person summoned or attached did
[003] not offer himself for the suit nor withdraw without day¹ the writ does not fall and the
[004] action may be continued; the plaintiff may sue when he wishes, [but] if he appears
[005] on another day and asks judgment on the default on the first day, it will not avail
[006] him, one default balancing the other, because equal offences are nullified by one
[007] another as above.² When one attached by better pledges does not come on his day,
[008] nor within the fourth day, the plaintiff offering himself for the suit, let the enrolment
[009] be in this form. ‘A. offered himself on the fourth day against B. and B. did not come
[010] etc. and made several defaults, so that he was first attached by C. and D., and secondly
[011] by E. and F.; therefore all the pledges are in mercy.’ The reason is that they are no
[012] longer to be summoned to be present to show why they did not have him as they had
[013] pledged. Let the sheriff then be ordered to have his body on another day by this writ:
[014] ‘The king to the sheriff, greeting. We order you to have before our justices etc. on
[015] such a day the body of A. to answer B. with respect to such a plea (according to the
[016] form of the original writ).’ And at the end let this clause be added: ‘And to hear his
[017] judgment for his several defaults. And have there this writ. Witness etc.’ If he comes
[018] on that day, and cannot save [his defaults], all the defaults are carried back to that
[019] day and he will be amerced for them all; let him then answer to the principal plea. If
[020] he does not come on that day, but maliciously withdraws and hides himself so that
[021] his body cannot be found, or removes himself outside the county, beyond the sheriff's
[022] power, and the sheriff sends word that he cannot be found in his bailiwick, let the
[023] enrolment be in this form. ‘A. offered himself on the fourth day against B. with
[024] respect to such a plea etc. (as above) and B. did not come and made several defaults,
[025] so that the sheriff was ordered to have his body, and the sheriff send word that he was
[026] not found in his bailiwick. Therefore let the sheriff distrain him by his lands and
[027] chattels to appear on such a day.’ Let a simple distress then be made, so that his
[028] lands and chattels are taken simply into the hand of the lord king, by this writ:

Writ that he be distrained by his lands and chattels, and further distresses, in order.

[030] ‘The king to the sheriff, greeting. We order you to distrain B. by his lands and chattels
[031] in your bailiwick so that he be before etc. on such a day to answer A. with respect
[032] to such a plea etc.’ And at the end let this be added: ‘And to hear

Notes

1. ‘ex quo . . . recessit,’ from line 4

2. D. 24.3.39: supra 125, 135