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.
CHAP. VI.
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.