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That one may lose by a default made on the first day just as by one on the second, third or fourth day; proof of this.


[002] That one may lose by a default made on the first day, that is, if he does not appear on
[003] the first day, just as by one made on the second, third or fourth day, if he acknowledges
[004] the summons or cannot deny it, when he has a day in the Bench after he has
[005] once appeared in court, is proved [in the roll] of Michaelmas term in the sixteenth and
[006] the beginning of the seventeenth years of king Henry in the county of Middlesex, [the
[007] case] of William of Ralegh and one of his tenants, John Pigun, who held of a certain
[008] prebend of St. Paul's.1 And that a default made on the first or2 second day of the plea
[009] is prejudicial is proved [in the roll] of Hilary term in the eighth year of king Henry in
[010] the county of Berkshire, [the case] of Henry Buqueynte,3 who held himself to the default,
[011] because the tenant did not come on the first or the second day, but afterwards
[012] remitted the default for the sum of fifteen marks in silver. But what if the tenant
[013] appears before a justice on the first day and defaults on the second, third of fourth?
[014] The same must be said as before when the vouchee does not appear. And so if he is
[015] absent by licence on one day and on another absents himself without licence. And
[016] note that if one is impleaded by writ of right and loses by default, he will seldom regain
[017] his seisin by a like writ, unless he who lost has a greater right in the land sought
[018] than he who claims.4 If he has less, or none, he will never recover, as where the case
[019] is between an older and a younger brother and the younger has lost by default.

Where [the vouchee] departs quit of the warranty and the land claimed is taken into the lord king's hand.


[021] But what if the tenant defaults when the demandant and the warrantor are present
[022] and offering themselves for the suit? If the warrantor has not yet warranted he will at
[023] once depart quit of the warranty; and let the land claimed be seized into the lord
[024] king's hand by the little cape and the tenant be summoned to appear on another day
[025] to hear his judgment. If he does not appear on that day, or though he appears
[026] cannot cure his default, he will lose his seisin because he did not proceed against his
[027] warrantor, whom he vouched by aid of the court, or without it. On this matter may
[028] be found [in the roll] of Michaelmas term in the fourth and the beginning of the fifth
[029] years of king Henry.5



Notes

1. B.N.B., no 886; C.R.R., xiv, no. 2398: no mention of Ralegh in the case: he held the prebend of Kentish-Town. Elias Pigun mentioned supra ii, 427

2. ‘vel’

3. B.N.B., no 235; no roll extant; supra p. x

4. Cf. supra 154

5. C.R.R., ix, 225; not in B.N.B.


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