[001] or because the lord has no court.] not to superior chief lords but only to the county, [002] since the writ states that if the person named does not do it that the sheriff may immediately [003] take it in hand. Also because of the lack of authority of the chief lord, as [004] where a warrantor is vouched who is resident outside his potestas, or perhaps the deforciant [005] has essoined himself of bed-sickness outside his lord's potestas, so that, though [006] [he is] lord, he cannot send knights. [The king sometimes does this by his writ.] Also [007] where the tenant has put himself on the grand assise. And there are an infinite number [008] of other causes. If the chief lord begins to hold the plea and then dies, though his heir [009] is within age the writ does not fall on that account, because the court will judge. I am [010] unwilling to put into this tractate [a discussion] of the issuing of summonses to the [011] court of the chief lord, how many there ought to be, and how many defaults or essoins, [012] because of the different customs which are differently observed in different courts. [013] But it is clear that in claiming the view and sometimes in vouching to warranty, in [014] putting forward exceptions and waging duels, and in all other matters which can and [015] ought to be determined in the courts of lords, the [practices] observed in the royal [016] court ought to be followed.1
How the default of a court may be proved.
[018] When the chief lord is unwilling or unable to do right and his court has thus failed of [019] right, we must see how the default ought to be proved, so that the plea may be transferred [020] to the county court, and then, when the suit begins to be in the county, up to [021] what time the chief lord may claim his court, since he perhaps has not failed of right. [022] 2After the default of the chief lord's court, let the demandant go at once to the county [023] court and there show that his lord's court has failed to do him right. Proof of the [024] default having been waged in the hand of the king's serjeant, according to some, let [025] the sheriff instruct the serjeant to go at once, taking with him honest and lawful men, [026] to the court of that chief lord, [if he has and holds a court, or if he has no court, to [027] the place where he has his residence, provided that is in the same fee as the land [028] claimed. If he holds no court and has no residence, it then suffices if the demandant [029] proves the default at any place on that fee, according as the lord has the choice of [030] holding his court wherever he wishes on his fee, since he cannot dejure hold it outside.] [031] and see if the court has failed to do the demandant right.
Volume 4, Page 52
Next