² Co. Litt., f. 366a.

³ Bracton, for example, refers to this topic repeatedly throughout his De Legibus, and devotes 20 folios to it exclusively.

⁴ Voucher to warranty was possible also, in the criminal law of this period, as to goods alleged to have been stolen: P. and M. i, 36–37Google Scholar; ibid., ii, 156–164, 207–208, 660; Glanv, . 10, cc. 15–17Google Scholar; Bract, . ff. 150b–151bGoogle Scholar; Britton, , 1, cc. 16, 25Google Scholar; Fleta, , 55, 56Google Scholar; S. S. 56 (Rolls, Eyre, 1218–1219), pl. 393Google Scholar (duty to warrant a hawk). The author of the Mirror of Justices considered this an abuse of the law: S. S. 7, p. 166.

⁵ 2 Blackstone, 's Commentaries, 300–301Google Scholar; 3 H. E. L. 105.

⁶ The lord will have warranted (expressly or by implication) to A and his heirs. A's purchaser will receive from A a warranty binding upon A and his heirs. Consequently, so long as A and his heirs endure, the purchaser can vouch them to warrant him against the lord and they can do so effectively: Britton, , 2, c. 4, § 2Google Scholar. If A's heirs fail, however, the purchaser cannot resist the claim to an escheat, unless the lord's original gift (with warranty) had been to A and his heirs ‘and assigns’—so that A's purchaser had himself a warranty direct from the lord: ibid. 2, c. 6, § 1. The threat of escheat for want of heirs was strongest if A was a bastard; for such can have no heir save an heir of his body: S. S. 3 (1201), pl. 205. Hence it was said that the mention of ‘assigns’ in a gift was invented for the bastard: Bract, f. 20b; Britton, , 2, c. 3, § 5, c. 16, § 3Google Scholar. Cf. Modus Componendi Brevia, Law Tracts, 147Google Scholar. See also note²⁹, post.

⁷ E.g., Bract, . f. 17bGoogle Scholar. Note that the term ‘fee tail’ existed before De, Donis. It was used (as opposed to maritagium) by another chapter of that same statute: Stat. Westm. II (1285), c. 4Google Scholar (as to remedies against lands recovered by default). The term ‘fee tail’ derives from the old theory that a gift ‘to A and the heirs of his body’ gave to A a mere freehold (i.e., life estate), the fee remaining in the donor until the birth of an heir of A's body, whereupon the fee vested in that heir. The fee, therefore, was ‘cut down and in suspense’ until the condition (birth of issue) occurred: Britton, 2, c. 3, § 9; also , Berewike J., Y. B. 22 Ed. 1 (1294)Google Scholar. R. S., at p. 322. Bracton, , supraGoogle Scholar, had said that the heir of the body gets nothing except by succession from A; so also Britton, 2, c. 5, § 1. Nevertheless, the old theory died hard, even after De Donis: Y. B. 20 Ed. I (1292), R. S. 58–60 (counsel contend on the point, and Berewike J. evades it); Y. B. 22 Ed. I (1294), R. S. 570–576 (counsel asserts the old theory, and his opponent and the Court seem to accept it). See Maitland, , B. N. B. i, p. 133Google Scholar, that the theories of Coke and later writers as to the nature of fees conditional at common law seem to be ‘hardly more than guess work’ deduced from the preamble of De Donis.

⁸ The warranty was an integral part of the common recovery. See also Elphinstone, H. W., 6 L. Q. R. 280Google Scholar, for the barring of entails by a warranty without either fine or recovery.

⁹ 7 C. L. J. 238–242, ‘Formedon en Remainder at Common Law.’ The learned author, having found a specimen writ, argues therefrom that Challis was wrong in stating that the writ of formedon en remainder did not exist prior to De Donis. It seems that two points should be added to this, (i) Even if the writ given (at p. 241) was drafted for use by a remainderman, it does not follow that it was at that time a writ de cursu: see , Bereford J., Y. B. 22 Ed. I (1294), R. S., at p. 322Google Scholar, that before 1285 the Chancery was willing to issue special writs for special cases of hardship (e.g., to the issue in tail) which were not covered by any of the writs commonly in use. (ii) It does not seem entirely certain that the writ shown was in fact intended for a remainderman. It may have been merely for the survivor of two joint tenants in tail; for its form and recitals are not inconsistent with this. The word ‘remanere’ at that period signified only that the land ought to continue to remain away from the donor (2 P. and M. 21); and a statement that a plaintiff was entitled ‘performam donationis’ did not necessarily indicate that he was a remainderman.

¹⁰ The frequent efforts of husbands to alienate their wives' inheritance or to deprive them of their dower are by far the most numerous instances of litigation as to warranties during the thirteenth century. The liability of an heir for the debts of his ancestor (if expressly bound by specialty) seems to have been modelled on the liability of an heir to warrant: the rule in Bract, f. 61 shows a striking similarity of reasoning. See also Plucknett, Concise History of the Common Law (ed. 2), 552, note 1, for a suggestion that the modern term ‘assets’ derives from warranty law.

¹¹ The modern rule that the benefit of a covenant concerning land runs at law with the estate, not with the land itself (see 6 Cambridge Law Journal, p. 348)Google Scholar, clearly derives from warranty law: see Holmes, , Common Law, 380et seq.Google Scholar; also note³⁶, post. As regards covenants between lessor and lessee, see also 7 H. E. L. 251, that the modern implied covenant for quiet enjoyment probably derives from the old implied warranty in a gift by subinfeudation (post, §2). Also 7 H. E. L. 290, that that part of Spencer's Oase which required ‘assigns’ to be mentioned is a reversion to Bracton's theories about warranty.

¹² §§6, 7, post.

¹³ 2 Blackstone's Commentaries, 303–304.

¹⁴ 2 P. and M. 311. Probably the desirability of having an express warranty from one's feoffor was one of the important factors which encouraged the use of charters to record that a feoffment had been made. The feoffment with due livery of seisin, not the charter, conveyed the land; and it was an effective conveyance whether followed by a charter or not: Bract, . f. 33bGoogle Scholar; 2 P. and M. 82.

¹⁵ 3 H. E. L. 160–161. This was due to the very limited scope of the implied warranty on a feoffment by way of substitution: ibid.; also § 2, post.

¹⁶ Bract, . f. 37, § 10.Google Scholar

¹⁷ Bract, . f. 380b, § 3.Google Scholar

¹⁸ Bract, . f. 37, § 10.Google Scholar

¹⁹ Ibid. A charter of feoffment ought to state expressly, besides any service reserved to the grantor, any services the donee is to do to the chief lord. Thus, a charter recording a grant in frankalmoign is likely to contain a clause of express warranty and acquittance ‘free of all service and worldly exaction’: see S. S. 56 (Rolls, Eyre, 1218–19), 105–107Google Scholar. for three such charters enrolled in extenso.

²⁰ Bract, . f. 389Google Scholar. See B. N. B. (1226–1227), pl. 1881, for a successful action upon such a warranty. But charters of confirmation or of quitclaim were invalid at this period, unless made by one who had right to one who was in seisin: Britton, , 2, c. 8, § 9.Google Scholar

²¹ Judicium Essoniorum (1267–1275), ch. 8, Law Tracts, 137–138Google Scholar. Woodbine suggests that Hengham probably wrote this tract: ibid. 28–36.

²² See S. S. 53 (Rolls, Eyre, 1219), 396–398Google Scholar, for two such charters (gifts by subinfeudation by a father to his two sons) enrolled in extenso.

²³ Bract, . ff. 37b, 390Google Scholar. Even if the express warranty was in form absolute, the Courts would construe it as limited by the terms of the grant. Thus a charter of grant made by A to B and his heirs ‘saving the right of the heirs of W. G.,’ with clause of warranty against all men, did not bind A's heir to warrant B's heir when the latter was sued by an heir of W. G.: so held in B. N. B. (1222), pl. 196, and S. S. 59 (Rolls, Eyre, 1222), pl. 1468Google Scholar, which appear to be reports of the same case; also B. N. B. (1225), pl. 714.

²⁴ B. N. B. (1228), pl. 284: the widow of X sued for her dower; held, since she is not the heir of X, the defendant cannot vouch the warrantor. See also B. N. B. (1225), pl. 714.

²⁵ S. S. 53 (Rolls, Byre, 1219), 388–390Google Scholar, a charter of grant enrolled in extenso. See also Bract, , f. 37bGoogle Scholar, for further examples of such restricted warranties.

²⁶ E.g., B. N. B. (1228), pl. 290; ibid. (1233), pl. 748.

²⁷ See Y. B. 22 Ed. I (1294), R. S. 492–494; also post, § 6.

²⁸ 2 P. and M. 311.

²⁹ The form Bracton ordinarily gives is ‘or to whomsoever he may give or assign it’: Bract, . ff. 17b, 20b, 29b–30, 47bGoogle Scholar; see also S. S. 53 (Rolls, Eyre, 1219), pl. 556Google Scholar. The disjunctive was probably due to the fact that originally the assigns contemplated were the assigns of the original grantee only (so that if he died without heirs his assignee might hold as quasi-heir): see ante, note⁶; Holmes, , Common Law, 372–375Google Scholar; but cf. S. S. 56 (Rolls, Eyre, 1218–1219), 421–422Google Scholar, an enrolled charter of gift to A ‘and his heirs or their assigns.’ When Britton wrote (circa 1290), ‘and’ had become fashionable (Britton, , 2, C. 4, § 1, 6, § 1)Google Scholar; and one is recommended to use very extensive phraseology, viz., ‘to have and to hold to the purchaser his heirs and assigns, and to the heirs and assigns of his heirs, and to the heirs and assigns of his assigns’ (ibid.); see also Fleta, , 3, c. 12, § 1Google Scholar. Presumably all this complication disappeared when the effects of Quia Emptores were fully realized. Before De Donis a grant might even be made to A ‘and the heirs of his body and his assigns’: Calendar of Charter Rolls, R. S. 2 (1281), 254–such a grant by the King to A, who subsequently assigned to his brother and his heirs: ibid. (1290), 366. See also ibid. (1271), 175: a gift by a subject to A and the heirs of his body ‘and the assigns of the said heirs.’

³⁰ E.g., S. S. 56 (Rolls, Eyre, 1218–1219), 419–421Google Scholar: an enrolled charter recording that the donor has given certain property to X ‘and his heirs or their assigns,’ and that he and his heirs will warrant it to X ‘and his heirs and their assigns’ against all men for ever. See also Y. B. 20 Ed. I (1292), R. S. 232–238 (warranty to X ‘and to his heirs and to his assigns’); Y. B. 22 Ed. I (1294), R. S. 570–576 (two examples of express warranty to X ‘and his heirs and assigns’). Cf. B. N. B. (1226–1227), pl. 1881 (warranty ‘to the Abbot and his successors’).

³¹ See post, § 7; also Bract, . f. 37b.Google Scholar

³² Bract, . f. 381b.Google Scholar

³³ Bract, . f. 37bGoogle Scholar; Britton, , 2. c. 6, § 1Google Scholar; Fleta, , 3, c. 14Google Scholar, §§ 10, 11. In order to be available to the heirs of such assigns and to the assigns of such assigns and their heirs, the warranty (we are told) must expressly include them.

³⁴ Y. B. 20 Ed. I (1292), R. S., at p. 234: ‘The heir of the assign is the same as the assign… but it would be otherwise of the assign of an assign.’ Even Bracton seemed to say this in one passage: f. 381b, § 1.

³⁵ Bract, . f. 37 b.Google Scholar

³⁸ Sect. 58 of the Conveyancing Act, 1881 (now L. P. A., 1925, s. 78), was enacted in order to render unnecessary the use of the words ‘heirs and assigns’ when drafting a covenant the benefit of which was intended to run with land: see Dyson v. Forster, [1908] 1 K. B. 629, C. A.; also Wolstenholme and Cherry, Conveyancing Statutes, ed. 12, 358–360. The conception that covenants can run with land derives from the law of warranty—note¹¹, ante. Holmes, , Common Law, 380Google Scholaret seq., shows that the doubt that existed in his day as to whether the word ‘assigns’ was (as in warranty) vital in order to enable a covenant to run with land, was due to confusing covenants with incorporeal hereditaments.

³⁷ See e.g., Twiss, Introduction to Bracton, , De Legibus, R. S. VI, pp. ix–xiii.Google Scholar

³⁸ Glanv, ., 9, c. 4Google Scholar; Bract, . ff. 37b, § 11, 48b, 380b, 382, § 4, 389, 390, 390bGoogle Scholar. ‘If one enfeoff me of land to hold by homage and rent, I shall bind him if 1 be impleaded’: Y. B. 21 Ed. I (1293), R. S. 90, per Metingham J. The reason why those who spoke of a homage-warranty usually referred to service done, as well as to homage taken, is to be seen in the rule that homage raises a duty to warrant the tenant in consideration of the services due from him: Bract, . f. 78b, § 2Google Scholar; Britton, , 3, c. 4, § 1Google Scholar. Clergy holding lands in right of their churches did fealty instead of homage; but a like warranty was implied: Britton, , 3, c. 4, § 9Google Scholar; Exceptiones ad cassandum Jirevia, Law Tracts, 178Google Scholar; S. S. 53 (Rolls, Eyre, 1219), pl. 372.Google Scholar

³⁹ Bract, . f. 382, § 4.Google Scholar

⁴⁰ Some statements that homage implies a warranty are ambiguous in that they do not show clearly whether they refer only to homage done between the original donor and donee: e.g. Bract, . f. 389Google Scholar; Judicium Essoniorum, c. 8, Law Tracts, 318Google Scholar. There is also a mysterious statement by Gian vili (Bk. 9, c. 4) to the effect that homage received of an heir as heir implies no duty to warrant. The Statute of Wales, 1284, cc. 7,8, seemed to enact for Wales that anyone seised of another's homage is bound to warrant him; but this informative little statute, enacting for Wales the main concepts of our English Property Law, was probably attempting to do no more than describe in very bare outline those topics of English law which, thereafter, were to be law in Wales also.

⁴¹ E.g., S. S. 53 (Rolls, Eyre, 1219), pl. 556–Google Scholarby action de warrantia cartae. But semble, the donor's heir receiving such homage could expressly exclude any liability to warrant: S. S. 59 (Rolls, Eyre, 1222), pl. 1468Google Scholar–limited homage-warranty by donor's heir held to negative the implied duty to warrant.

⁴² Hengham, Magna, c. 13, p. 49Google Scholar: homage does not oblige nor bar anyone, except in so far as he received it, etc.

⁴³ Fet Asaver, Law Tracts, 95–97Google Scholar, to the effect that a daughter enfeoffed by her father for her homage and service would be safe against his heirs. But contrast the preceding footnote.

⁴⁴ Exceptions ad Cassandum Brevia, Law Tracts, 177Google Scholar. So long as the heir was under age, however, this question did not ordinarily arise; for (unless he held in socage) the lord's right of wardship entitled him to hold the land.

⁴⁶ Bract, . f. 78Google Scholar; but see preceding note.

⁴⁶ This was evidently a burning question towards the end of the century. Britton says that the lord must warrant in such a case, even though the terms in which he received the homage purported thus to exclude any warranty, unless he did not know and had no reason to befieve that there was a nearer heir: Britton, , 3, c. 6, § 2Google Scholar; also Fleta, , 5, c. 1, § 6Google Scholar; Y. B. 21 Ed. I (1293), R. S., 440–448. The author of the Mirror of Justices says that it is an abuse that the lord of a fee should ever be liable to warrant by the receipt of homage from one who is not the right heir: S. S. 7, p. 176. See also Bract, . f. 390 b, § 10.Google Scholar

⁴⁷ In one passage Bracton (f. 17) gives an illustration of a gift for homage and service followed by a charter containing an express clause of warranty from the donor and his heirs to the donee and his heirs. This suggests that the limitations of the pure homage-warranty were thought to be a disadvantage.

⁴⁸ That the tenant's feoffee obtained no warranty by doing homage, see Hengham, , Magna, c. 13, pp. 48–49Google Scholar; Britton, , 3, c. 4, § 2Google Scholar; Y. B. 21 Ed. I (1293), R. S. 440–448. That homage done to the lord's assignee implied no warranty, see B. N. B. (1224), pl. 945 (seignory assigned by attorning the tenant); Y. B. 21 Ed. I (1293), R. S. 90 (to issue as to whether the lord's father enfeoffed the tenant's father for homage and service out of his own seisin, or whether the lord's father took that homage merely as lord). Although an assignment of the seignory by a fine followed by an attornment in Court ordinarily discharged the original lord and his heirs from the burden of the warranty (see note¹³⁵, post) and perhaps raised a warranty from the assignee (see annotation to Britton, 3, c. 4, § 2), he did not escape from it when his lordship was extinguished through his failure to acquit the tenant in a writ of mesne: Stat. Westm. II, 1285, c. 9Google Scholar. Aliter if the tenant voluntarily adhered to the superior lord of the fee: B. N. B. (1233), pl. 734. If the lordship was extinguished by escheat, it seems that the superior lord was bound both to take the tenant's homage and (by implication) to warranty: Bract, . ff. 80b, § 12, 389.Google Scholar

⁴⁹ This confusion evidently developed from ambiguous or evasive statements to be found in the earlier books: e.g. ‘Homage Ancestral implieth a warranty,’ Fitzherbert, , Natura Brevium, 134FGoogle Scholar. Littleton, Bk. 2, c. 7, includes it in his classification of tenures. Hargrave and Butler's note 315 to Co. Litt., f. 365a, and 2 Blackst. Comm. 300, give the same impression, but do not specifically say that it is a distinct tenure. Holdsworth described it as a tenure (2 H. E. L. 576), but adds a footnote: ‘it really seems to be a case, not of a separate tenure, but of a tenure of one of the recognized kinds which has existed before the time of legal memory.’

⁵⁰ This, the simplest variety of Fine, is, I think, the commonest type in the thirteenth century. The fictitious action at this period is usually founded either upon a previous covenant to give the land or upon the warranty contained in the charter of feoffment that the grantor has already made. The grantor-defendant admits in Court that the land belongs to the grantee-plaintiff by virtue of his former gift or grant. This kind of fine was therefore described as ‘sur cognizance de droit come ceo que il ad de son don.’ An example is Y. B. 21 Ed. I. (1293), R. S. 3—4. See further 3 H. E. L. 238 et seq.

⁵¹ Bract, . ff. 435b–437Google Scholar; Modus Levandi Fines (statute of uncertain date: 1289?).

⁵² Bract, . f. 382Google Scholar, § 6. See, e.g., B. N. B. (1223), pl. 1652: the heir of a grantor (whose grant had been confirmed by a fine) is here compelled, by an action on the fine, to take the grantee's homage and acquit him against the superior lords.

⁵³ Bract, . f. 389Google Scholar; also Hengham, , Magna, c. 13, p. 44Google Scholar (one who has both a warranty by charter and a fine, can vouch on the chirograph of the fine if he have lost his charter by fire or other misfortune). But the chirograph of a fine sometimes contained an express warranty clause, e.g., S. S. 55 (1279, K.B.), pl. 37.

⁵⁴ Bract, . f. 48Google Scholar. He does not say specifically that the warranty avails against all men; but this is clearly implied, I think. See also ibid. f. 38; B. N. B. (1224), pl. 1000.

⁵⁵ Bract, . f. 48Google Scholar; B. N. B. (1226), pl. 1752.

⁵⁶ Bract, . ff. 22, 48Google Scholar. A gift ‘in maritagium’ was the customary form of marriage settlement made by a father upon his daughter's marriage: usually to her and her husband and the heirs procreated of the marriage. If ‘in liberum maritagium,’ the father thereby bound himself and his heirs to acquit, of all services due to the superior lords of the fee, both the donees and the heirs of the marriage until the third heir inclusive: ibid. f. 48.

⁵⁷ Bract, . ff. 38, 48Google Scholar. One gets from the cases an impression that such phrases as ‘proomni serviciio’ are equally important: B. N. B. (1224), pl. 1000; ibid. (1227), pl. 1900; ibid. (1231), pl. 531; ibid. (1231), pl. 657.

⁵⁸ B. N. B. (1226), pl. 1717: the gift here was not in consideration of homage, nor was there an express warranty.

⁵⁹ B. N. B. (1226), pl. 1717 (heir must warrant heir); ibid. (1227), pl. 1811 (heir need not warrant heir, because the charter of gift did not ‘make mention of’ the heirs of the donee). This latter case perhaps implies that even the donee's assigns could claim an implied warranty, if the charter mentioned his assigns; sed qu.

⁶⁰ E.g., B. N. B. (1235–1236), pl. 1162: the King not bound to warrant his grant of a market against one who complains that it is a nuisance to his market, since the King's grant said ‘unless it be to the nuisance of neighbouring markets.’ See also Bract, . f. 394Google Scholar (if donor had only a life interest and did not purport to convey the fee, the warranty would end at his death); also note⁶⁴, post.

⁶¹ 4 Ed. I, st. 3, c. 6.

⁶² Consequently, when Quia Emptores abolished subinfeudation in 1290, the word ‘dedi’ became powerless to bind the feoffor's heirs to warranty. Thereafter clauses of express warranty thus became essential: 3 H. E. L. 160.

⁶³ The form of the statute itself perhaps implies this, at least as regards feoffments by subinfeudation: ‘it is agreed by the same [i.e., by the King's justices and others] that the donor and his heirs are bound to warranty.’

⁶⁴ Bract, . f. 388bGoogle Scholar, § 1; Judicium Essoniorum (1267–1273), c. 8, Law Tracts, p. 137Google Scholar. Hengham, , Magna (1272–1275), c. 13, pp. 45–46Google Scholar, says precisely the same, though written after the Statute of Bigamy.

⁶⁵ Bract, . f. 388b, § 1Google Scholar. Bracton adds that otherwise there would be no implied warranty by the lord. Hengham, writing after the Statute of Bigamy, argues that the lord ought to warrant in such a case whether his charter said dedi or confirmavi: op. cit., p. 46Google Scholar. In fact it usually said both.

⁶⁶ See note 64, ante; and cf. note 63, ante.

⁶⁷ This problem seems insoluble, for Bracton seldom distinguished a subinfeudation from a substitution. For him practically every conveyance was a ‘donation’; but one gets the impression that he usually had in his mind conveyances by subinfeudation. The same can be said also of the reports and of other authors of this period. The solution may be that Hengham, Magna, was written earlier than is supposed, or that the great Hengham nodded.

⁶⁸ See notes 62, 67, ante.

⁶⁹ See Britton, , 3, c. 11, § 22Google Scholar, for the rule that when the King was vouched to warranty on a charter which contained no warranty clause, the judgment was to be deferred so that he might consult his justices as to whether he was bound to warrant ‘by virtue of some special words’ therein. Note also that no warranty seems to have been implied (though it could be expressed) in an assignment of a wardship—B. N. B. (1226), pl. 1744; nor in a charter of Quitclaim—S. S. 59 (Eyre Rolls, 1221), pl. 170.

⁷⁰ B. N. B. (1231), pl. 633; ibid. (1238–1239), pl. 1268; Statute of Wales, 1284Google Scholar, cc. 7, 8.

⁷¹ But, pending the recovery of that land, the warrantor or his heir must provide other compensation which will be returnable: B. N. B. (1231), pl. 633.

⁷² See, e.g., the judgment in Bustard's Case (1603), 4 Co. Rep. 121Google Scholar; also Co. Litt. 384b; 2 Blackst. Comm. 323.

⁷³ § 5, post.

⁷⁴ Y. B. 22 Ed. I (1294), R. S. 398; Hengham, , Magna, c. 13, p. 49Google Scholar. This was a useful rule, for when the lands were exacted from W as compensation, he did not ordinarily make any charter in which he might warrant them. D, however, would be likely still to have the charter of the original gift whereby W or his ancestors had warranted that gift. That a donee and his heirs had the right to have possession of the charter of their gift, see Bract, . f. 33b.Google Scholar

⁷⁵ The ambiguity of the word escambium, in the writings and records of this century, is a difficulty in this subject.

⁷⁶ Bract, . ff. 98, 325b, § 5Google Scholar. See also Fet Asaver (before 1267), Law Tracts, 74Google Scholar: to the general rule that one cannot vouch an infant without producing a charter, some MSS. add: ‘not so in dower, for in dower the woman has by nature a charter.’

⁷⁷ When the husband (e.g., a bastard) leaves no heir, his lord taking by escheat must act as warrantor of her dower: Bract, . ff. 297b, 299Google Scholar. It seems also that any feoffee to whom the husband had conveyed land in his lifetime was in some senses warrantor of her dower—so far as that land was concerned: Bract, . ff. 298, 299Google Scholar; Britton, , 5, c. 10, § 12.Google Scholar

⁷⁸ Bract, . ff. 297, 297bGoogle Scholar. Incidentally, this enabled a defendant, who was lord of the fee and so entitled (subject to her dower) to hold the inheritance and the person of the heir during the latter's infancy, to force the widow to produce an infant heir whom she was hiding from him: ibid.

⁷⁹ Thus if the heir be absent on a crusade, her plea must await his return: Bract, . f. 298Google Scholar. If she name the wrong person as her heir and warrantor, she will lose her action: accordingly she is sometimes compelled to submit to an adjournment whilst, by due process of law, the true heir is found from a number of candidates. But the Court had power, should her plea ultimately succeed, to award her damages in compensation for the period of exclusion that had elapsed since her husband died: Provisions of Merton, , 20 H. III, c. 1Google Scholar; Britton, , 5, c. 3, § 2.Google Scholar

⁸⁰ If the widow could not herself produce the heir, the Court would issue a writ to the sheriff to summon him: Bract, . f. 298Google Scholar, § 3. The same applied where a defendant was unable to produce his warrantor.

⁸¹ As to warranty in dower, see further note 154, post. As to the difficulty when a defendant's warrantor would not come, see § 4, post.

⁸² Bract, . f. 280bGoogle Scholar, § 2: ‘To warrant is nothing else than to defend and acquit in his seisin a tenant who has vouched a warrantor, nor anything else except the defence of the thing claimed.’ If he defends the tenant successfully, the latter will, of course, remain in seisin: Bract, . f. 394b.Google Scholar

⁸³ That the obligation to compensate was only a secondary obligation, see 1 P. and M. 286.

⁸⁴ Bract, . f. 379b, § 4Google Scholar. See also B. N. B. (1225), pl. 1054 (quitclaim as a bar); Fet Asaver, Law Tracts, 82–83Google Scholar (homage and service as a bar); Judicium Essoniorum, c. 8, Law Tracts, 138Google Scholar (fine as a bar: ‘satis est notorium’).

⁸⁵ Glanv, . 13, c. 38Google Scholar; also § 4, post. A natural assumption would be that the action failed because, on proof that the plaintiff had conveyed all his right in the land to W, who had then conveyed it to the defendant, it would follow that the plaintiff has no claim against the defendant. But this process of reasoning is not of the thirteenth century. The plaintiff failed because (i) by coming into Court as warrantor, W himself became defendant, (ii) the warranty (express or implied) that the plaintiff had given when he conveyed the land to W prevents him from suing W. That warranty would not have prevented him from succeeding against the original defendant unless it had expressly extended to W's assigns: see also § 7, post.

⁸⁶ Bract, . f. 261bGoogle Scholar; Hengham, , Magna, c. 13, 40–41Google Scholar. See also Exceptiones ad Cassandum Brevia, Law Tracts, 177–178Google Scholar (receipt of homage as a bar); S. S. 53 (Rolls, Eyre, 1219), pl. 371 (feoffment as a bar).Google Scholar

⁸⁷ Glanv, . 3, c. 5Google Scholar; Bract, . ff. 379b, 380Google Scholar; Fitzherbert, , Natura Brevium, 134 IGoogle Scholar; B. N. B. (1222), pl. 1559; Y. B. 20 Ed. I (1292), R. S. 176–180. Moreover, it was at least arguable that a failure to vouch discharged the warranty for ever, though, if in a mere possessory action, only so far as concerned the warranting of possession (as opposed to right): Y. B. 20 Ed. I (1292), R. S. 176–180. See also Britton, , 3, c. 9, §§ 15, 17.Google Scholar

⁸⁸ See p. 289, post; also note 126, post.

⁸⁹ Bract, . ff. 175b–176Google Scholar (disseisor's feoffee had no need to sue de warrantia cartae unless he was enfeoffed immediately after the alleged disseisin); Y. B. 20 Ed. I (1292), R. S. 176–180. In Glanvill's day the position was rather different: Glanv, . 13, c. 38Google Scholar. See also post, note 125, for other cases in which voucher was disallowed.

⁹⁰ Glanv, . 3, c. 1Google Scholar. See further, § 5, post.

⁹¹ S. S. 56 (Rolls, Eyre, 1218–1219), pl. 1147Google Scholar (sergeanty conveyed without royal licence); B. N. B. (1225), pl. 1665 (same); B. N. B. (1223), pl. 1648 (donor a leper); B. N. B. (1224), pl. 1000 (non est factum); B. N. B. (1223), pl. 1659 (same); B. N. B. (1227), pl. 1881 (confirmation by married woman).

⁹² B. N. B. (1231), pl. 495 (gift); Y. B. 21 Ed. I (1293), R. S. 196–204 (quitclaim); Y. B. 22 Ed. I (1294), R. S. 316–320 (same). At first this rule applied even to a conveyance made by fine; but this was altered by the Statute de Finibus Levatis (1299), 27 Ed. I, see 2 P. and M. 104Google Scholar; and it had been doubted by Bereford J. as early as 1293: Y. B. 21 Ed. I, R. S., at p. 60Google Scholar. Although a release or quitclaim (and any warranty it gave) was invalid at this period unless made by a person who already had a right in the land (Britton, , 2, c. 8, § 9)Google Scholar, this rule was changed early in the next century (Plucknett, Concise History, etc., ed. 3, 552), whereupon a great extension in the use of warranty as a bar became possible.

⁹³ Mirror of Justices, S. S. 7, 74–75Google Scholar; B. N. B. (1220), pl. 116; B. N. B. (1222), pl. 199 (confirmation by the King). Similarly, it was a good objection to an alleged warranty that the donor himself was never so seised that he could validly give: B. N. B. (1224), pl. 966; B. N. B. (1222), pl. 199. These rules caused special difficulty in conveyances of advowsons, where a seisin by presenting was so seldom possible: Bract, . ff. 54, 54bGoogle Scholar (warranty invalid because donor never seised); Britton, , 4, c. 4, § 4Google Scholar (same if donee never seised).

⁹⁴ B. N. B. (1230), pl. 399; B. N. B. (1223), pl. 1648; B. N. B. (1227), pl. 1835.

⁹⁵ Bract, . f. 13bGoogle Scholar; S. S. 59 (Rolls, Eyre, 1221), pl. 1134Google Scholar (husband conveys wife's property with warranty).

⁹⁶ Bract, . ff. 37b, 242b, 243Google Scholar; Britton, , 4, c. 4, § 4Google Scholar; Fleta, , 3, c. 14, §§ 10, 11Google Scholar; B. N. B. (1222), pl. 1559.

⁹⁷ This is presumably a reason why the action de warrantia cartae was sometime brought in advance: e.g., S. S. 53 (Rolls, Eyre, 1219), pl. 666Google Scholar; ibid. pl. 759.

⁹⁸ Bract, . f. 391Google Scholar: A feoffor is only bound to warrant “against persons who had right in the thing given before his feofment.” See also Britton, , 3, c. 11, § 25Google Scholar; Fleta, , 5, c. 4, § 16Google Scholar; S. S. 59 (Rolls, Eyre, 1222), pl. 1471Google Scholar; B. N. B. (1231), pl. 600. If a person, vouched to warranty, took care to counterplead as above, and was nevertheless unlawfully compelled by the Court to make escambium, that escambium was recoverable by bringing an action quare cepit escambium: Bract, . f. 391bGoogle Scholar; B. N. B. (1231), pl. 512; ibid. pl. 612 (s.c.).

⁹⁹ See ante, pp. 280–281.Google Scholar

¹⁰⁰ In such a case, therefore, if the donee or his successor in title was sued by one claiming in demesne and thereupon vouched the donor or his heir to warrant, the demandant or the vouchee could counterplead the voucher: B. N. B. (1222), pl. 164; also Bracton's annotation to this plea to the effect that one cannot vouch in demesne except for a gift in demesne, nor in service except for a gift in service. See also B. N. B. (1234), pl. 836; B. N. B. (1226), pl. 1717.

¹⁰¹ E.g., B. N. B. (1227), pl. 1900. Here the donee sought to compel the donor to warrant and acquit him against the local parson, who was demanding from the donee 6s. p.a. The donor alleged, by way of defence, that before making the gift he had attorned two of the tenants of the property (whose rents together amounted to 6s. p.a.) to this same parson, and that when he gave the property to the donee he gave it ‘in eodem statu quo terram illam tenuit.’ The jurors found, however, that no such attornment had ever occurred: on the contrary, the donor had himself paid the parson this 6s. every year. Held, therefore, the donor must warrant and acquit his donee against the parson's claim.

¹⁰² E.g., as to what amounts to an ‘incumbrance’ within the meaning of (i) the modern implied covenants for title, (ii) the modern rule that a vendor must disclose latent defects: see Dart, , Vendors and Purchasers (8th ed.), 109et seq., 666et seq.Google Scholar

¹⁰³ This was not the case, I think, with a mere exception to the writ; nor even with a more fundamental exception, so long as it was withdrawn in time.

¹⁰⁴ Y. B. 21 Ed. I (1293), R. S. 468, per Berewyke J.

¹⁰⁵ E.g., sometimes even a plaintiff may vouch, as though defendant: Stat. Westm. 11, 13 Ed. I, c. 4Google Scholar (action to recover land lost by reversioner's default). Sometimes one can even vouch oneself: Y. B. 21 Ed. I (1293), R. S. 14–16 (donee vouches himself as heir of donor); also note 116, post.

¹⁰⁶ Can a husband vouch his wife, when sued by a stranger for land that he holds in her right? This was clearly permissible in 1202 (S. S. 3, pl. 233) and in 1221 (S. S. 59, pls. 129, 172, 219, 220, 714). Bracton, , f. 381Google Scholar, § 7, is of opinion that he can if she is not named in the writ, but ‘according to some the writ should abate’; and it seems that this latter view ultimately prevailed, since the two ought to be sued as co-defendants. As to wives vouching their husbands, see Bract, . f. 381, § 7Google Scholar; Y. B. 20 Ed. I (1292), R. S. 338.

¹⁰⁷ See p. 292, post. His liability to warrant was usually determined by the King in Council. See B. N. B. (1234–1235), pl. 1108, where the King himself seemed to declare the law on the point, viz., he is not compellable to warrant, since no one vouched need answer without the King's writ, and the King has no superior within his realm: he then admitted liability, and escambium was awarded against him.

¹⁰⁸ See notes 120, 132, post; also the final paragraph of this section.

¹⁰⁹ Bract, . ff. 168, 385Google Scholar (‘though reason suggest the contrary’); S. S. 3 (1202), pl. 232 (tenant ‘from year to year at pleasure’); B. N. B. (1231), pl. 658; Y. B. 22 Ed. I (1294), R. S. 446. The assignee of a wardship may vouch his assignor when another claims the wardship from him: Bract, . f. 91bGoogle Scholar. But, when a real action is brought against him by a widow claiming her dower, as a rule he cannot do so (possibly because the gift of a wardship would not ordinarily imply any guarantee against dower): see B. N. B. pls. 712, 1700 (s.c.), 714, 1744; also Statute of Bigamy, 1876, c. 3Google Scholar (King's assignee cannot vouch him).

¹¹⁰ Bract, . f. 380b, § 3.Google Scholar

¹¹¹ Glanv, . 13, c. 38Google Scholar; Bract, . f. 380b, § 4Google Scholar; Mirror of Justices, S. S. 7, 91 (instead, ‘averments by records or by muniments and evidence are available’). A like rule was napplied to actions founded upon the Dictum of Kenilworth, whereby rebels who had forfeited their lands were pardoned and enabled to recover them—e.g., from the King's assignees: S. S. 57 (K. B. 1290), pl. 5.

¹¹² Bract, . f. 175bGoogle Scholar. The feoffee is himself regarded as a disseisor if his feoffment occurred immediately after the disseisin: ibid.

¹¹³ S. S. 53 (Rolls, Eyre, 1219), pl. 371Google Scholar. See also Bract, . ff. 175b, 177bGoogle Scholar, that this would secure to him his escambium, as also would a finding by the assize that he was the disseisor's feoffee; Britton, , 2, c. 22, § 7Google Scholar. See also Y. B. 20 Ed. I (1292), R. S. 2–4, and the Latin addendum thereto.

¹¹⁴ See also 2 P. and M. 659, n. 2, that despite Glanvill's doubt whether voucher could be allowed in any of the possessory actions, voucher in mortdanoestor soon became very common.

¹¹⁵ Fitzherbert, , Natura Brevium, 134 DGoogle Scholar. (‘writ of entry in the nature of an assize’).

¹¹⁶ In none of the eleven pleas of entry sur disseisin indexed by Maitland in Bracton's Note Book did the defendant vouch to warranty: most of these were against the heir of a disseisor who had died pending an assize of novel disseisin. In one case the defendant answered that he derived his title not through the alleged disseisor but from X, and he proffered X's charter of gift but did not vouch him: B. N. B. (1235–1236), pl. 1133. Compare a curious case where the deceased disseisor had enfeoffed his infant heir who, on being sued, vouched himself (as heir of his donor) presumably in order to achieve delay, and was apparently permitted to do so: Y. B. 21 Ed. I (1293), R. S. 234–236.

¹¹⁷ In a writ of entry that makes mention of ‘degrees,’ one cannot vouch anyone not mentioned in the writ (i.e., cannot ‘vouch out of the line’) unless one first traverse the entry alleged—a rule inapplicable, of course, to writs of entry in the post: Bract, . ff. 219b, 320b, 321Google Scholar; Fet Asaver, Law Tracts, 66–68Google Scholar; Stat. Westm. I, 1275, c. 40Google Scholar; Britton, , 5, c. 15Google Scholar, § 1. Apparently the same rule applied to the analogous writ of Aiel: Y. B. 20 Ed. I (1292), R. S. 298. Instead of merely traversing the alleged entry and vouching a warrantor, one could except against the writ: S. S. 56 (Rolls, Eyre, 1218–1219), pl. 154.Google Scholar

¹¹⁸ Unusual instances include B. N. B. (1228), pl. 296 (voucher in de. fine facto); S. S. 57 (1290, K. B.), pl. 19 (voucher in action begun by a special writ of the Chancery witnessed by the King). Apparently one could not vouch in a darrein presentment: Britton, , 4, c. 3, § 1Google Scholar; nor in a nuper obiit unless one claimed by feoffment: Fet Asaver, Law Tracts, 95.Google Scholar

¹¹⁹ A note in Y. B. 22 Ed. I (1294), R. S. 564–S66, states that whereas the demandant can only counterplead the voucher itself (‘Vouch you cannot, because,’ etc.), the vouchee can only counterplead (i) the form of the voucher, and (ii) the alleged duty to warrant. Examples of (i) are that vouchee has co-parceners who ought to be vouched with him (Fet Asaver, Law Tracts, 97)Google Scholar; and that the vouchor had vouched at large, thereby implying that he claimed to be warranted in fee simple, whereas his gift was only a life interest or fee tail: Y. BB. 21 Ed. I (1293), K. S. 134; 22 Ed. 1 (1294), R. S. 570–576. Examples of (ii) include the objection that the vouchee himself has a right to sue for that land: Y. BB. 20 Ed. I (1292), R. S. 18–20; 21 Ed. I (1293), R. S. 8. After warranting in Court, it is too late to counterplead the voucher: Y. B. 20 Ed. I (1292), R. S. 30–32, per Cave J.

¹²⁰ Bract, . ff. 381b, 389Google Scholar. The vouchee may then deny the validity of this charter on various grounds (e.g., forgery, disability, duress or fraud): ibid. ff. 389b–390, 396–398b. If one desired to vouch an infant, one had first to show the charter to the clerk of the Court, before he would issue the necessary writ to summon the infant vouchee: Fet Asaver, Law Tracts, 74.Google Scholar

¹²¹ Bract, . f. 389Google Scholar. But if the counterplea involved some very difficult point, delay could be avoided by postponing a decision on the counterplea and hearing the verdict of the assize at once: Bract, . f. 261Google Scholar; S. S. 56 (Rolls, Eyre, 1218–1219), pl. 27.Google Scholar

¹²² In Mortdancestor this would mean that the verdict of the assize would be heard at once: Bract, . ff. 260b, 261Google Scholar; Britton, , 3, c. 11, §§ 4, 7–9, 11, 16Google Scholar; B. N. B. (1233), pl. 734; B. N. B. (1222), pl. 196 (also S. S. 59, pl. 1468, s.c.); S. S. 59 (Rolls, Eyre, 1222), pl. 1471Google Scholar. In a Writ of Right, however, judgment would be given at once for the plaintiff: Bract, . ff. 260b, 261Google Scholar; B. N. B. (1231), pl. 600; B. N. B. (1224), pl. 945; B. N. B. (1226), pl. 1717. So also in pleas of dower: e.g., B. N. B. pls. 284, 558, 560, 573, 714, 748, 836; S. S. 2 (Manorial Courts, 1288), 110. See also Stat. Westm. II, 1285, c. 6Google Scholar, reciting that when a vouchee successfully counterpleads the warranty the tenant who vouched him ‘loses the tenement demanded,’ and enacting that henceforth a vouchee who, after counter- pleading unsuccessfully, is held liable to warrant shall likewise lose the tenement to the plaintiff.

¹²³ y. BB. 21 Ed. I (1293), R. S. 262–266 (scribe's note); ibid. 440; ibid. 468 (‘you cannot vouch to warranty and answer as well’); 22 Ed. I (1294), R. S. 470–472, per Hertford J. Aliler, if he withdraw the voucher before the vouchee has actually warranted in Court: Y. B. 21 Ed. I (1293), R. S. 272.

¹²⁴ Glanv, . 3, c. 1Google Scholar; Bract, . ff. 260, 260b, 380b, § 2. 387bGoogle Scholar; Hengham, , Magna, c. 13, p. 44Google Scholar; Fet Asaver, Law Tracts, 82Google Scholar; Britton, , 3, c. 11Google Scholar, §§ 18, 21; ibid. 5, c. 5, § 1; S. S. 57 (1292, K. B.), pl. 42—‘tenant by his warranty.’

¹²⁵ Bract, . ff. 260–260b, 387bGoogle Scholar. See also Britton, , 3, c. 11, §§ 7–9, 11, 15, 17Google Scholar. At one time, this process of warranting and ‘vouching over’ could be repeated ad infinitum (Bract, . ff. 260, 260b)Google Scholar; but it was checked by Stat. Westm. I, 1275, c. 40Google Scholar, so that in future one could not safely vouch anyone who or whose ancestors had not been seised since the date of the seisin on which the plaintiff rested his claim; for henceforth the Courts must allow a demandant to counterplead such a voucher—unless (a reservation repealed by 20 Ed. I., st. 1) the vouchee was already in Court and willing to warrant at once. This enactment was directed against false vouching for purposes of delay. But it expressly preserved the right to enforce one's warranty by an action de warrantia cartae in every such case.

¹²⁶ Semble, he cannot challenge the validity of the writ: Y. B. 20 Ed. I (1292), R. S. 44–46; yet in Y. B. 21 Ed. I (1293), E. S. 468, Berewyke J. seems to argue the contrary. And, of course, after warranting, he cannot now counterplead the voucher: ante, note ¹¹⁹.

¹²⁷ The mysterious justification given for this rule is that a vouchee ought to know what land he is bound to warrant: Bract, . ff. 377b, 389, 394bGoogle Scholar; Hengham, , Magna, c. 10, p. 36Google Scholar; Judiciuin Essoniorum, Law Tracts, 131–132Google Scholar. See also Hengham, , Parva, c. 4, p. 58Google Scholar; B. N. B. (1231), pl. 534; and S. S. 56 (1218–1219), pl. 299 (appeal from Shire Court, which had allowed the view). In S. S. 53 (1219), pl. 666, a view was allowed in an action de warrantia cortae, and Bracton put a mark against the roll.

¹²⁸ Fet Asaver, Law Tracts, 66–68, 72Google Scholar; Hengham, , Magna, c. 10, pp. 36–37Google Scholar. Each gives an anonymous case (probably identical) wherein the plaintiff claimed one-half of the defendant's land, and defendant vouched a warrantor who was only bound to warrant the other half.

¹²⁹ The risk is even greater if one is vouching one's lord, on grounds of homage and service, without a charter of warranty: here one should vouch discreetly, having first made certain that he will admit the warranty or homage or that he has previously acknow ledged it in Court: Judicium Essoniorum, c. 8Google Scholar, Law Tracts, 138.Google Scholar

¹³⁰ E.g., B. N. B. (1222), pl. 144—vouchee comes and warrants, but raises no exception. See also Fet A saver, Law Tracts, 72, as to the vouchee unwilling to vouch over.

¹³¹ gee y. B. 21 Ed. I (1293), K. S. 288–290, showing how a pleader, acting both for the defendants and for the vouchee, thus prolonged an action of entry cui in vita. Sec also 2 P. and M. 660, for Maitland's theory that the reason why the main plea was thus delayed pending questions as to warranting was that the action for land was originally a punitive action, seeking primarily to find and punish the real wrongdoer. A warrantor or other defendant who loses to the plaintiff is amerced: e.g., B. N. B. (1222), pl. 144; S. S. 2 (Manorial Pleas, 1249), p. 19.Google Scholar

¹³² Bract, . f. 381b, § 2Google Scholar. This was the reason for the rule stated ante, note ¹²⁰: ibid.

¹³³ A nice example is B. N. B. (1217), pl. 1306, where defendant vouched the infant King and prayed his age—so seeking to secure a two-fold delay. His voucher was disallowed because, when questioned, he had to admit that he could not give any good reason why the King ought to warrant him. See also note ¹⁰⁷, ante.

¹³⁴ Delay by vouching the King was reduced by the so-called Statute of Hayles, 1251 (Bract, . ff. 382b, 389bGoogle Scholar; also Twiss, Introduction to Bracton, , R. S. VI, xiii–xx)Google Scholar, and by the Statute of Bigamy, 1276, cc. 1–3. Dilatory vouchers in general were reduced by Stat. Westm. I, 1275, c. 40Google Scholar; and, more specifically, by 20 Ed. I, 1291–1292, stat. 1. As to these, see ante, note 126; also Mirror of Justices, S. S. 7, 191. They were specifically attacked also by Stat. Westm. II, 1285, c. 6Google Scholar (as to which, see ante, note 122).

¹³⁵ See the penultimate paragraph of § 2, ante; also Bract, . f. 37bGoogle Scholar; B. N. B. (1222), pl. 144. This rule applied whether the duty to warrant arose expressly or by implication —e.g., from a gift for homage and service. See Bract, . f. 80bGoogle Scholar, to the effect that a lord, if he could, would willingly waive his seignory in order thereby to escape the liability to warrant or make escambium. By law, however, such a waiver did not have that effect, ibid. ff. 81b, 82b; but it seems that an assignment of the seignory in the King's Court, by a fine and a compulsory attornment of the tenant, did so: ibid.; also Britton, 3, c. 4, §§ 33, 36. See also notes ⁴⁸, ante, and ¹³⁶, post.

¹³⁶ Bract, . ff. 260b, 387b–388Google Scholar; Hengham, , Magna, c. 13, p. 43Google Scholar (where it seems that the word primus should in fact read postremus); Britton, , 3, c. 9, § 19Google Scholar. As regards the process of execution for escambium, by Cape ad Valentiam, see Bract, . ff. 258–259, 387bGoogle Scholar; Y. B. 20 Ed. I (1292), R. S. 24; also B. N. B. (1222), pl. 96 (writ de habende escambium).

¹³⁷ Bract, . ff. 394b, 395Google Scholar: e.g., the escambium covers only the lands lost by the judgment, although the warranty be larger; and it is estimated according to the state in which the lands were when they and the warranty were originally given, subsequent improvements being ignored.

¹³⁸ Bract, . f. 388Google Scholar: e.g., if he had originally divided land into two plots and sold one plot to A and then the other to B, and both plots are subsequently lost in the same action, A.'s priority of feoffment carries priority of escambium.

¹³⁹ Hengham, , Magna, c. 13, p. 49Google Scholar; of. Y. B. 22 Ed. I (1294), R. S. 570–576 (a conveyance in tail). But see B. N. B. (1231), pls. 512, 612, as to the return of escambium exacted by a false judgment.

¹⁴⁰ Glanv, . 3, c. 1Google Scholar; Bract, . ff. 321b–322b, 394b–395Google Scholar. Thus he was not bound to warrant his father's conveyance out of lands inherited from his mother, or vice versâ: Bract, . ff. 322b, 394b–395Google Scholar. The rule applied to homage-warranty as to other warranties: Bract, . f. 322b.Google Scholar

¹⁴¹ Bract, . f. 383bGoogle Scholar; also Y. BB. 21 Ed. I (1293), R. S. 250; 22 Ed. I (1294), R. S. 536, and scribe's notes thereto.

¹⁴² Bract, . ff. 322–322b.Google Scholar

¹⁴³ Y. B. 21 Ed. I (1293), R. S. 250, and scribe's note thereto. Earlier dicta as to the heir's position, failing assets by descent, seem to evade the point. This interpretation of the law became very important in later centuries, on the subject of warranty as a bar.

¹⁴⁴ Bract, . ff. 388Google Scholar (citing a case), 395; also scribe's note to Y. B. 21 Ed. I (1293), R. S. 250. Whatever little the heir had inherited was taken at once: B. N. B. (1224), pl. 944; ibid. (1225), pl. 1102, s.c. An example of assets to be subsequently acquired by inheritance from one's deceased mother is land which her surviving husband is holding by the curtesy: Bract, . f. 383bGoogle Scholar. When such assets ultimately passed to the heir, he would be re-summoned by a judicial writ issuing out of the rolls of the justices: see the recital in c. 3 of the Statute of Gloucester, 1278; also Metingham J., Y. B. 22 Ed. I (1294), R. S. 492–494.

¹⁴⁵ S. S. 3 (Select Civil Pleas, 165, 244, 255), at p. 102: a prioress vouches her donor's heir and ‘craved the advice and help of the Court, for God's sake’; for the heir has carefully dispersed his inheritance among his brothers and sisters. See also Fitzherbert, , Natura Brevium, 134 KGoogle Scholar, that land alienated by the heir before he is vouched is not liable for escambium.

¹⁴⁶ Y. B. 22 Ed. I (1294), R. S. 492–494. See also Y. B. 21 Ed. I (1293), R. S. 210, where counsel's opinion was taken (and very forcibly given) about an heir-vouchee who had alienated his inheritance after being vouched. The plaintiff, conspiring with the heir, then withdrew his action with the intention of starting it afresh—eo that the heir, when vouched anew, would be able to say that he had alienated before he was vouched.

¹⁴⁷ Y. B. 22 Ed. I (1294), B. S. 446, where the apprentices are speaking of escambium and Metingham J. of the primary duty to warrant.

¹⁴⁸ B. N. B. (1234), pl. 852.

¹⁴⁹ B. N. B. (1228), pl. 290 (escambium to be given in Devon); B. N. B. (1231), pl. 633 (escambium to be given in Bucks or Oxon); B. N. B. (1231), pl. 638 (lessee's escambium to be given out of lands at Toft); Y. B. 22 Ed. I (1294), E. S. 492–494 (vendor binds all his purchased lands; heir alienates them and so evaded escambium). See also S. S. 56 (Kolls, Eyre, 1218–1219), pl. 97Google Scholar, which resulted in a concord—ibid. pl. 128; also S. S. 57 (1292 K. B.), pl. 35, an Irish clause of warranty restricting the amount of escambium to ‘50 librates of land only.’

¹⁵⁰ Fitzherbert, , Natura Brevium, 134 K, 135 A.Google Scholar

¹⁵¹ See B. N. B. (1219), pl. 36, for an action on such a covenenat (summarized post, note ¹⁵⁵). See also 2 P. and M. 215–216, that before the Statute of Wales, 1284, it was thought that a covenant not to alienate enabled one to recover the land from the covenantor's feoffee. There are hints in the cases that men make feoffments with warranty and then, instead of allowing their remaining lands to pass by inheritance to their heirs, convey those lands to the heir by feoffment inter vivos, so that the heir will be able to say (when vouched) that although he has lands by purchase he has nothing by descent: e.g. Y. B. 22 Ed. I (1294), E. S. 536.

¹⁵² Calendar of Eolls, Charter, R. S. II (1290), p. 356Google Scholar: an inspeximus and confirmation of this charter by the King; for John held both manors direct of the Crown. That he held the manor of Great Wilbraham, is seen from another entry; ibid. (1281), p. 252; which shows the King granting him the right to hold there a weekly market and an annual fair. There is another instance in S. S. 56 (Eolls, Eyre, 1218–1219), 105–107Google Scholar, where three charters made by one Alexander Fitz William were enrolled in full: the first two witness that he has granted various lands to a certain prior and convent in frankalmoign; the third witnesses that he has ‘granted’ to that prior and convent that he will not sell or pledge any of his remaining lands in that locality without their consent and that of his superior lord. The obvious purpose of this ‘grant’ is at once to secure to the convent an escambium and to ensure that, should he fail to discharge the services due to the superior lord, there will be sufficient land whereby the latter may distrain him without disturbing the convent.

¹⁵³ Holdsworth considered this topic to some extent (3 H. E. L. 163–165)Google Scholar as a background to the decision in Austerberry v. Oldham. But he did not appear to distinguish between the two distinct questions: (i) is the assignee of such land bound to warrant (i.e., defend); (ii) is be bound to give up the land as escambium? Moreover, he assumed (at p. 164) that a covenant not to alienate was void: contrast Maitland's opinion, ante, note ¹⁵¹.

¹⁵⁴ Bract, . f. 382Google Scholar, § 7. Bracton then proceeds to argue that all the land retained by a donor is impliedly bound to his warranty, since a warranty may be useless if the warrantor has nothing wherefrom escambium can be taken. He repeats this argument later (Bk. 6, Tract. 4, c. 7, § 7)Google Scholar, and cites a case of 9 & 10 Hen III. But that case was a plea of dower; and the fact that the widow there recovered from her husband's feoffee (the heir having nothing wherewith to endow her) was nothing unusual. One feels that Bracton was here suggesting what the law ought to be, not what it is. And he is contradicted by Hengham, , Magna, c. 13, p. 46.Google Scholar

¹⁵⁵ B. N. B. (1233), pl. 748. Compare B. N. B. (1219), pl. 36, where A sued B for breach of a covenant not to sell or pledge certain lands, and the Court similarly ordered that B's alleged assignees be summoned to show by what means they had entry into those lands contrary to the covenant.

¹⁵⁶ B. N. B. (1231), pl. 638.

¹⁵⁷ Hengham, , Magna, c. 13, p. 46Google Scholar, merely says that lands retained by a donor are not bound by his warranty if his charter of gift does not say that he and his heirs and assigns ought to warrant. The reactionary author of the Mirror of Justices (S. S. 7, pp. 188–189) seems to disagree: he contends (somewhat ambiguously) that, if the donor's heir cannot warrant for want of assets, ‘then the tenant must have recourse to the tenements that were bound by the warranty’; and he argues that, by ancient law, the fees of those that confess a debt [in Court?] remain bound as security for that debt into whosesoever hands they may come, and that an express warranty ought to have a like effect.

¹⁵⁸ Fleta, , 6, c. 23, § 17Google Scholar: if X says in an express warranty that he and his heirs will warrant the gift out of certain land to whomsoever it may come, the tenement passes cum onere; hence subsequent possessors will be bound. He is evidently summarizing Bract, . f. 382.Google Scholar

¹⁵⁹ Y. B. 20 Ed. I (1292), R. S. 302. The sense of this note is obscured by a mistranslation (what should be ‘vouchor’ is translated as ‘vouchee’) and by an incomprehensible summary in the index (at p. 505). See also note 146, ante, as to this aspect of the matter.

¹⁶⁰ Y. B. 20 Ed. I (1292), B. S. 358–360. The form of voucher here approved was to vouch W ‘as tenant of Blackacre which is bound to warranty.’ The unfortunate W was apparently the plaintiff, suing for her dower.

¹⁶¹ Y. B. 22 Ed. I (1294), R. S. 492–494. Presumably the reason why the defendant would not vouch thus was that, when one vouches land, one is only asking for escambium and so is impliedly admitting that the plaintiff's claim is unanswerable.

¹⁶² ‘Nullus potest obligare assignates ad warrantiam, quia warrantia semper se extendit ad haeredes qui clamant per suocessionem et non per assignationem’: Y. B. 32, 33 Ed. I (1304), R. S. 516.

¹⁶³ E.g., 3 H.E.L. 163Google Scholar; Holmes, , Common Law, 395Google Scholar. Jenks, , Short History of English Law (2nd ed.), 111Google Scholar, even said that every warranty had the effect that ‘not merely the original warrantor and his heirs but all purchasers from him could be vouched to warranty’; but no authority was cited for this statement.

¹⁶⁴ Presumably the tenant of Blackacre (specifically bound) would vouch, in turn, his own donor or his heir. The latter was usually the very person whom the defendant could have elected to vouch. Clearly, therefore, there was sense in the system; for it brought into the chain of vouchers the bound land. The net result, therefore, was that the bound land would be taken in escambium if the defendant's donor (or that donor's heir) did not duly defend him in the action and had no other land wherefrom to make escambium to the defendant.

¹⁶⁵ §§ 1, 2, ante.

¹⁶⁶ Bract, . f. 17bGoogle Scholar. See also note ²⁹, ante; and Holmes, , Common Law, 373–374.Google Scholar

¹⁶⁷ Bract, . ff. 390–391Google Scholar; also Fleta, , 3, c. 14, §§ 6, 10, 11Google Scholar; Britton, , 2, c. 8, § 8.Google Scholar

¹⁶⁸ Britton, , 2, c. 8, § 8Google Scholar; Fleta, , 3, c. 14, § 6.Google Scholar

¹⁶⁹ E.g., B.N.B. (1233), pl.748; Y. B. 20 Ed. I (1292), R. S. 232–238; Y. B. 22 Ed. I (1294), R. S. 570–576.

¹⁷⁰ E.g., B. N. B. (1233), pl. 804; B. N. B. (1227), pl. 1771. These two are actions de warrantia cartae. In the former, the plaintiff-assign sued at the same time a writ of covenant as assignee of a lease. He succeeded in both.

¹⁷¹ Britton and Fleta gave this advice and for this reason: see note ¹⁶⁸, antc.

¹⁷² Y. B. 20 Ed. I (1292), R. S. 232–238. Here Cave J. added obiter that it would not include the assign of an assign; but see the final paragraph of § 1, ante.

¹⁷³ B. N. B. (1227), pl. 1771; but the judgment indicates that he would have been an ‘assign’ had the donee enfeoffed him.

¹⁷⁴ Y. B. 22 Ed. I (1294), R. S. 570–576. Perhaps one should assume that, had the form of his voucher been correct, the opposition would then have contended that he was not strictly an ‘assign.’ But there is no hint of this in the report.

¹⁷⁵ Holmes, , Common Law, 375–376Google Scholar, argues strongly that it can. He relies upon Bracton's frequent dicta that the assign is quasi-heir (see notes ²⁹, 166, ante), and upon the fact that Bracton cites a case for it, at f. 381. But Bracton's description of that case (ibid.) says nothing indicative of estates; and see note ¹⁷⁶, post.

¹⁷⁶ Maitland, 1 B. N. B., p. 134Google Scholar: ‘It should be remembered the whole learning and oven the very conception of “estates” belongs to a later time: Bracton had not the word “estate,” nor any equivalent for it.’

¹⁷⁷ See Holmes, , Common Law, 375–376.Google Scholar

¹⁷⁸ See the dictum quoted ante, note ¹⁶².