OF WARRANTORS; AND OF TWO LORDS, UNDER ONE OF WHOM, THE DEMANDANT AVOWS, AND UNDER THE OTHER, THE TENANT.
When the presence of the Tenant only happens to be requisite, and in itself precludes the necessity of any other person appearing to answer, the order of Pleading which is observed in Court is such as we have described.
But the presence of another party becomes no less necessary than that of the Tenant, if the latter declare in Court, that the subject in dispute is not his own, but that he merely holds it, as a Loan,[121] or a Hireing, or a Pledge, or as committed to his Custody, or in some other mode entrusted to him by another; or if he should allege, that the property were his own, but that he had a Warrantor[122] from whom he had received it, either as a Gift, or Sale, or in Exchange, or, generally, found his Title to the thing upon any other cause of this nature.
If the Tenant should declare in Court, that the property is not his own, but belongs to another, then, such other person must be summoned by another Writ, but yet of a similar nature—and thus the plea shall be commenced anew against him. And when such other person at last appears in Court, he in the same manner will declare, either that the property belongs to him, or not. If the latter, then, the party who had first asserted in Court, that the property did belong to him, shall thereby lose the Land irretrievably, and he shall be summoned to appear in Court, and hear his Judgment; and thus, whether he appear or absent himself, his Adversary shall recover possession. When the Tenant call a person into Court to warrant the Land, then, a reasonable day shall be given him in Court to produce such person there; and thus he may anew recur to three Essoins, with respect to his own person, and to the same number, with regard to the person of his Warrantor. The person cited to warrant having at last appeared in Court, he will either enter into the warranty of the subject in dispute, or decline it. If he adopt the former course, he then becomes a Principal Party in the suit, so that the remainder of the cause shall be entirely carried on in his name; but if, previous to this step, he essoin himself, the Tenant cannot excuse himself by an Essoin, but, if absent, shall be adjudged in default. If, however, the person called to warrant, being present in Court, should fail in entering into the warranty, then, the plea must altogether be continued between him and the party who has called him—and thus, by means of pleading conducive to such an end, the matter may come to the decision of the Duel, and that, whether the Tenant can produce his Charter of Warranty, or not, if he be prepared with an unobjectionable Witness to make proof, and he is willing to undertake it. It should be observed, that when it is once ascertained, that the person cited to warrant ought to take that obligation upon him, the Tenant shall not afterwards lose the property in dispute, because if such property should be recovered in Court, the Warrantor shall be bound to make the Tenant a competent equivalent[123] if he possess sufficient means so to do.
But it sometimes happens, that the person called to Court to warrant is unwilling to appear there, either for that purpose, or to shew that he ought not to warrant to the Tenant the property in question. In that case, upon the petition of the Tenant, and by the order and indulgence of the Court, the reluctant party shall be compelled to do so, and he shall be summoned by the following Writ.
“The King to the Sheriff, Health. Summon, by good Summoners, N. that he be before me, or my Justices, there on a certain day to warrant to R. one Hyde of Land, in such a Vill, which he claims as his Gift, or the Gift of M. his Father, if he will warrant it to him, or to shew wherefore he ought not to warrant it to him; and have the Summoners and this Writ. Witness Ranuph, &c.”
On the day appointed, the Warrantor can either essoin himself, or not. If not, then, that indulgence which is allowed to another would be denied him, not being culpable; which would be no less inconvenient than unjust.[124] If he may essoin himself, let us suppose that he has properly essoined himself three times successively, it should on the third day, according to the Law and practice of the Court, be ordered, that he appear on the fourth day, or send an Attorney. If, on that day, he neither appear nor send an Attorney, it seems a question what steps are to be pursued. Because were the Tenement to be taken into the King’s hands, such a step would seem an injustice committed on the right of the Tenant, since he has not been adjudged in default.
But if this course be not pursued, then the right of the Demandant, supposing he possesses any, would be unjustly deferred. And, indeed, the course mentioned shall be adopted, as most consonant to the Law and Custom of the Realm. Because, if any one should lose his Land, or merely the possession of it, through the default of his Warrantor, the latter shall be compelled to make him an equivalent recompense, and may, therefore, by means of the foregoing Writ, be distrained to appear in Court, and warrant the Tenement itself, or shew some reason on account of which, he should be exempt from the obligation of warranty.
It sometimes happens, that the Tenant, although he has a Warrantor, does not call him into Court, but takes upon himself entirely to dispute the Demandant’s claim.
If the Tenant should pursue this course, and should lose the Land in question by the Duel, he cannot afterwards recover any thing against the Warrantor.[125]
But, according to this, a question may be proposed, whether, as any one can defend himself by the Duel, without the assent and presence of his Warrantor, he can put himself upon the King’s Grand Assise, without the assent and presence[126] of the Warrantor? And, indeed, he may defend himself by the Assise upon a parity of reason as by the Duel.
But it sometimes happens, that the matter is deferred on account of the absence of the Lords, when, for example, the Demandant claims the Tenement in question, as belonging to the fee of one Lord, and the Tenant, as belonging to that of another. In such a case, both the Lords must be summoned to Court, in order that, in their presence, the Plea may be heard, and, in the accustomed manner, decided, least any injustice should seem to be done to them when absent.
But upon the day on which they are summoned to appear in Court, both or either of them may lawfully cast an Essoin, and this three times in the usual manner. Should the Lord of the Tenant have recurred to three Essoins, it should be ordered, that he appear personally in Court, or send his Attorney.
If after this, he neither appear, nor send his Attorney, let the Tenant be directed to Answer and take the defence upon himself; and, if he should prevail, he shall retain the Land to himself, and from thenceforth shall do service to the King, because his Lord shall lose his service through his default, until he appear and perform there that which he ought to do.
In the same manner, may the Lord of the Demandant essoin himself; but, when he at last appear in Court, it may be asked, whether the Lord of the Tenant can again essoin himself? He may, indeed, until he has once appeared in Court; because it is, then, incumbent upon him to allege some reason, why he ought not to wait any longer; and this Rule equally prevails with respect to the person of either Lord. But if, after having availed himself of three Essoins, the Lord of the Demandant should be absent, it may be a question, what the Law is? If, indeed, he should have first essoined himself, the Essoiners themselves shall be taken into custody, and the body of the Demandant himself shall be attached,[127] on account of his contempt of Court; and thus he shall be distrained to appear in Court, that it may be heard what he has to allege.
When both the Lords appear in Court, the Lord of the Tenant will warrant the Land in question, as in his Fee, or he will deny that it is so. If he adopt the former course, it remains for him, either to take the defence upon himself, or entrust it to the Tenant, as he may feel disposed; and whichever course he pursues, the right of each of them will be saved, as well that of the Lord as of the Tenant, if their party should prevail in the contest. But, if the contrary should be the result, the Lord shall lose his services, and the Tenant his Land irretrievably. If the Lord of the Tenant, being present in Court, fail in the Warranty, the matter may be interpleaded between them, provided that the Tenant declare, that his Lord had unjustly failed in the Warranty, and, therefore unjustly, because he or his Ancestors had performed such and such specific services to the Lord or his Ancestors, as Lords of that fee, adding that of this fact he has those who have heard and seen it, and, in particular, a proper witness to prove it, or some other adequate and sufficient testimony ready to be adduced, as the Court shall direct.
A similar distinction must be made, in respect of the person of the Lord of the Demandant. When he appears in Court, he will either claim the Land in question, as in his fee, or not. And thus if he warrant the Title of the Demandant, and claim the Land as within his Fee, it is at his option, either to hold himself to the proof made by the Demandant, if he be so inclined, or to take upon himself to prove his Right against the other, saving the Right of both of them, namely, as well his own as that of the Demandant, if their party prevail in the suit. If, however, it happen to be unsuccessful, both the Demandant and his Lord shall lose their right. On the other hand, if the Lord decline to warrant the claim of the Demandant, then, the latter shall be amerced to the King on account of his false claim.