Bracton: Thorne Edition: English. Volume 4, Page 166

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Volume 4, Page 166

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[001] common, and they all default together after they have once appeared in court, at
[002] one and the same time or successively, all lose, and let the little cape issue as to all.
[003] If only one of them, [or] two or several are essoined on the first day of summons,
[004] and some default and some appear, let land be seized into the king's hand from the
[005] land they hold in common for the default of those absent, as much as belongs to
[006] each who is absent, by the great cape, and a day will be given to those who are
[007] present. On that day, if they do not come, since they have a day in court which they
[008] cannot deny, let land be seized into the king's hand from the land held in common
[009] by the little cape, that is, from that part of it which belongs to each of those who
[010] is absent,¹ not the whole, because an inheritance and things held in common admit
[011] of partition and division among parceners and co-heirs. But it is otherwise with
[012] respect to a husband and wife, since the wife's property does not receive partition
[013] or division, since the husband and wife are, so to speak, one body and blood.² For a
[014] woman has nothing which is not the property of her husband. Hence when they are
[015] impleaded, if both default on the first day of summons, before they have appeared,
[016] let the entire land be seized into the king's hand by the great cape. And so if one
[017] of them defaults, though the other appears or essoins himself. If both default after
[018] they have appeared, let the land be seized by the little cape. And so if one of them
[019] defaults, because the default of one will be prejudicial to both.³ Suppose that the
[020] wife defaults on the first day before she has appeared and the husband appears, let
[021] the land be taken into the hand of the lord king by the great cape and let her be
[022] summoned to appear on another day; the husband will have the same day, on
[023] which, if the husband defaults and the wife appears, we must then see, first of all,
[024] whether the wife can cure her default by wager of law or in some other way. If she
[025] cannot, both will lose by the woman's default at once, nor must the husband be
[026] summoned to hear his judgment.⁴ If she cures her default, despite the husband's
[027] absence let the land seized into the king's hand by the great cape on her default be
[028] restored to her. If her husband does not appear within the fourth day, the demandant
[029] presenting himself for the suit on the fourth day, let the land again be taken
[030] into the king's hand for the default of the husband by the little cape and let him
[031] be summoned to be present to hear his judgment, and let the wife have the same
[032] day. The form of the writ is this:

Notes

1. Supra 162

2. Om: ‘et unum corpus’

3. Supra 84, 96, 128, 142

4. Supra 164, n. 2