Bracton: Thorne Edition: English. Volume 4, Page 67

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Volume 4, Page 67

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[001] wandering about the country¹ and denying the essoin,² they then cannot give him
[002] a day, or if they do, he may not be willing to accept it, or he may not be found in
[003] the place where he ought to be lying so that they may give him a day. Hence when
[004] [they appear] in court on the day given them, whether the demandant has sued
[005] against them on several days or one, and attest their view, according as they found
[006] him or did not, if the tenant does not come, let the land be taken into the king's
[007] hand and let the matter proceed exactly as said above.³ If he comes, he may deny
[008] the summons, and the essoins both of difficulty in coming and of bed-sickness,⁴ and
[009] the delays, both for the first default to the first taking and for the second to the second,
[010] until judgment. After judgment there will be no opportunity for defence by wager of
[011] law against the proof of the summons, since judgments must be firm. ⁵<If [he denies
[012] the summons, and] the demandant holds himself to the default, after examination of
[013] the summoners,⁶ if the summons is attested, let him immediately wage his law and
[014] have a day for making it; when he has made it, after his essoins, let him immediately
[015] make his answer⁷ without other summons, as may be found on the roll of [Easter] term
[016] [in the eighth year of the reign of king Henry].>⁸ If there was no summons at all
[017] and the demandant caused the tenant to be falsely essoined, by some essoin, one or
[018] several, though the tenant knows nothing of it, and after the summons, which was
[019] alleged to be made, and the essoins, the land is taken into the king's hand, and after
[020] the first and second defaults seisin is adjudicated to the demandant, though there
[021] ought to be no default, at the complaint of the tenant he is aided in this way: let
[022] the summoners and those by whose view the land was taken into the king's hand
[023] be summoned, that a careful examination may be made; if the summons is not
[024] proved or attested there will be no default, nor would it be necessary to deny a
[025] summons which is void for lack of proof. Since there is neither summons nor default,
[026] no seizure ought to follow, and since the seizure is void, no loss of possession
[027] ought to follow. Therefore when from the outset there was no summons, no loss of
[028] possession follows, because where the first and principle thing, which is the summons,
[029] does not exist, the things which follow upon it ought to have no validity. At
[030] the complaint of the person wronged let a writ issue to the sheriff in this form:

A writ to produce before the justices a man who has fraudulently essoined his adversary.

[032] ⁹‘The king to the sheriff, greeting. We order you to have before our justices etc.
[033] such a one [A.], the demandant, to hear his judgment and the decision of our court
[034] with respect to this, that through malice and manifest

Notes

1. Infra 128

2. Infra 124

3. Supra 63-4, infra 123, 125

4. Infra 124, 148, 150, 151

5. Supra i, 411

6. ‘summonitoribus’; supra 65, infra 68

7. respondeat’; supra 65

8. Not in B.N.B.; no roll extant

9. This is the writ in B.N.B., no. 10 (Trin. 2 H.3)