Bracton: Thorne Edition: English. Volume 4, Page 68

Harvard Law School Library

Bracton Online -- English

Volume 4, Page 68

Next

Go to Volume: Page:

[001] falsehood he caused such a one [B.] to be disseised of so much land with the appurtenances
[002] etc. as to which, though the same B. had no summons, the same A. offered
[003] himself against him, so that the land was taken into our hand once and twice, by
[004] which default A. recovered that land, whereas there was no such default, as [B.]
[005] says. And cause the chattels of the same B., found on the same land and then taken
[006] from him, to be returned and restored to him without delay. We also order you to
[007] have before etc. and at the same term A. and B., by whom the first summons was
[008] made and attested in our court, and also the four by whose view the land was taken
[009] into our hand, and by whom that seizure was attested in our court etc., and also
[010] those by whom the second summons was made and attested, to certify our justices
[011] with respect to the aforesaid summonses and seizures. And have there this writ.
[012] Witness etc.’ When they appear on that day, let them be carefully examined. First
[013] the first summoners with respect to the first summons, then the four by whose view
[014] the land was taken into the king's hand, and finally the last two summoners. If the
[015] first summoners agree in everything and prove that the first summons was properly
[016] made, and the aforesaid four, by whose view the land was taken, prove that the
[017] seizure was properly made, and the last summoners that the last summons [was
[018] properly made], and thus they agree in everything, a defense by wager of law will
[019] still lie against both summonses in the manner described above.¹ ² <On this matter
[020] may be found [in the roll] of Michaelmas term in the third and the beginning of the
[021] fourth years of king Henry in the county of Surrey, the case of Robert de Basinges
[022] plaintiff.>³ If the two first summoners do not agree, though all the others agree, as
[023] to the seizure and the second summons, [the proceedings] will not be valid, since the
[024] first summons is lacking. A fortiori if all disagree about everything. The judgment
[025] will then be withdrawn and possession returned to the first possessor. The fault
[026] cannot in every case be imputed to the summoners, but sometimes to the sheriff's
[027] negligence. Thus inquiry must be made as to where the fault lies, with the sheriff or
[028] the summoners; if the summons failed to be made because of the sheriff's default,
[029] because he never ordered anyone to make it, he will be in the mercy of the lord king,
[030] unless he has excuses by which to defend himself, which may be these, that he received
[031] the writ so late and outside the county that he could not enjoin anyone to
[032] make the summons, or that another more important order supervened touching the
[033] business of the lord king, where it was necessary that he be personally present.⁴ In
[034] which case the demandant

Notes

1. Supra 67

2. Supra i, 411

3. B.N.B., no. 10 (Trin. 2 H.3)

4. Infra 369