Book III.
OF WARRANTORS; AND OF TWO LORDS, UNDER ONE OF WHOM, THE DEMANDANT AVOWS, AND UNDER THE OTHER, THE TENANT.
CHAP. I.
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.