Bracton: Thorne Edition: English. Volume 4, Page 155

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Volume 4, Page 155

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[001] anticipated by the summons, as was said above. But we must see by what writ,
[002] because, when this is done by the ignorance of the summoners who testify that they
[003] made lawful summons, the justices are not at fault, nor the demandant. The better
[004] way, so it seems, is for the tenant to say that he was wrongfully disseised, [wrongfully]
[005] though with a judgment, because by a wrongful judgment.¹ Then, when the
[006] demandant who recovered answers to the assise, he may vouch the king's court to
[007] warranty, which was deceived, by which the process and the judgment may be
[008] revoked.

How a default may be cured by the service of the lord king.

[010] Before judgment a default may be cured in many ways, just as the judgment, when
[011] it has been given, may be revoked. First of all, by the service of the lord king, if he
[012] is so in his service that he cannot send or come, for the service of the lord king
[013] ought not to be prejudicial to anyone,² nor so to his advantage that it is harmful to
[014] another.³ Writs of warrant for the king's service are drawn in this form, for the kinds
[015] of default are various. [If] the default is⁴ before the itinerant justices, sometimes for
[016] the common summons, sometimes for a plea of land,⁵ let the writs be drawn in this
[017] form.

Writs which excuse because of the service of the lord king.

[019] ‘The king to his beloved and faithful justices itinerant in such a county, greeting.
[020] Know that such a one was in our service on such a day at such a place, so that he
[021] could not be before you in your eyre on such a day for the common summons.
[022] Therefore we order you not to put him, or permit him to be put, in default because
[023] of the common or general summons made before you of knights and free tenants
[024] and others in your eyre, because as to that we warrant his absence to him.’ Or in
[025] another way: ‘that such a one was in our service etc. (as above) so that he could not
[026] appear before you in the plea pending between him and such a one with respect to
[027] so much land with the appurtenances in such a vill. Therefore we order you not to
[028] put him in default because of his absence on that day before you, nor to allow him
[029] to lose in any way, because we warrant that day to him,’ And just as a day is warranted,
[030] a term may be warranted, for good reason, that is, from such a day to such
[031] a day. Thus engagement in a more important matter excuses a man and protects
[032] him from the penalty for contumacy,⁶ as does ill health. For he does not suffer the
[033] penalty for contumacy whom ill health or engagement in a more important matter
[034] protects.⁷ As a warrant by the king's

Notes

1. Supra iii, 121

2. Supra 76

3. Supra 71, 76

4. ‘Si sit’

5. Supra 112

6. Supra 72, 81, infra 156-7

7. D. 42.1.53.2: supra 72