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.
CHAP. III.
“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.”
CHAP. IV.
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.