continently make a feoffment thereof to others by his deed with warranty, and deliver to them seisin, this warranty commenceth by disseisin, because the disseisin and feoffment were made as it were at one time. And that this is law, you may see in a plea (76) M. 11 E. 3. in a writ of formedon in the reverter.

"Mich. 11 E. 3." This is mistaken, and should be (r) 31 E. 3. and so is the original, which case you shall see in Master Fitzherbert's Abridgment, for there is no book at large of that year. Hereby you may perceive that learned men look not only to the cases reported, but unto records, as you may see Littleton did; for Fitzherbert put this case in print long after, as elsewhere hath been shewed.

This section doth explain that which hath been said before. And albeit Littleton useth the words (and incontinently thereof make a feoffment); and that in this case of Littleton the disseisin and feoffment were made (quasi uno tempore); yet if the disseisin were made to the intent to make a feoffment with warranty, albeit the feoffment be long after, this is a warranty that commenceth by disseisin.

Warranty that commences by disseisin, &c." It is called

366 b.

Why so called.

a warranty that commenceth by disseisin, because regularly (Dr. & Stud. 155a.b.) the conveyance, whereunto the warranty is annexed, doth work a disseisin.

In section 698, Littleton putteth five examples of a warranty commencing by disseisin, viz. of a feoffment made with warranty by tenant for years, by tenant at will, by tenant by elegit, by tenant by statute merchant, and by tenant by statute staple all these, and the other examples that Littleton putteth of this kind of warranties in the succeeding sections, have four qualities.

First, that the disseisin is done immediately to the heir that is to be bound; and yet if the father be tenant for life, the remainder to the son in fee, the father by covin and consent

(76) M. 11-anno, xxxi. L. and M. and Roh.

Exceptions to this rule; in respect of fraud, &c.

(5 Rep. 50 a.)

(2 Rol. Abr. 772, 773. Ante, 32 a. 56 a.

171a. 179 a. F. N. B. 149 c.).

*367 a.

maketh a lease for years, to the end that the lessee shall make a feoffment in fee, to whom the father shall release with warranty, and all is executed accordingly, the father dieth, this warranty shall not bind, albeit the disseisin was not done immediately to the son; for the feoffment of the lessee is a disseisin to the father, who is particeps criminis.

31 F. 3. tit. Garr. 28. So it is, if one brother make a gift in tail to another, and the uncle disseise the donee, and infeoffeth another with warranty, the uncle dieth; and the warranty descendeth upon the donor, and then the donee dieth without *issue, albeit the disseisin was done to the donee and not to the donor, yet the warranty shall not bind him. The father, the son, and a third person are joint-tenants in fee, the father maketh a feoffment in fee of the whole with warranty, and dieth, the son dieth, the third person shall not only avoid the feoffment for his own part, but also for the part of the son; and he shall take advantage that the warranty commenced by disseisin, though the disseisin was done to another.

That the warranty and disseisin be simultane

ous.

(Cro. Car. 483.) (s) 19 H. 8. 12. Lib. 5. fol. 79 b. Fitzl. case. Exceptions to this rule;

The second quality appearing in Littleton's examples is, that the warranty and disseisin are simul et semel, both at one and the same time. (s) And yet, if a man commit a disseisin of intent to make a feoffment in fee with warranty, albeit he make the feoffment many years after the disseisin, notwithstanding, because the warranty was done to that intent and purpose, the law shall adjudge upon the whole (Plowd. 51 a. 3 Rep. matter, and by the intent couple the disseisin and the warranty

as where the disseisin is done with intent to

make a future feoffment with warranty, &c.

78. Ante, 369 a. 371 a.

9 Rep. 81 a. Post,

314 b. 5 Rep. 78.)

collateral warranty.

together.

That it be in nature of The third quality is, that the warranty that commenceth by disseisin by all these examples (if it should bind) should bind as a collateral warranty, and therefore commencing by disseisin shall not bind at all.

That there be a disseisin or abatement, &c.

Abr. 740.)

The fourth quality is a disseisin; but that is put for an ex(10 Rep. 95. Rol. ample; and the rather, for that it is most usual and frequent: but a warranty that commenceth by abatement or intrusion (that is, when the abatement or intrusion is made of intent to make a feoffment in fee with warranty), shall not bind the right heir, no more than a warranty that commenceth by disseisin, because all do commence by wrong. And so it is, if

the tenant dieth without heir, and an ancestor of the lord enter before the entry of the lord, and make a feoffment in fee with warranty, and dieth, this warranty shall not bind the lord, because it commenceth by wrong, being in nature of an abatement. Et sic de similibus (F 2).

(1 Leon. 304, 305.

Vid. sect. 611. 699.

Bract. fol. 216. 223, 224. Fleta, lib. 4. cap. 17.1, 2. Britton, cap. Disseisin.

50 E. 3. 12 b. 8 H.7.

5. 7 E. 3. 11. 14 E. 3.

Feoffments et Faits 67. 18 E. 3. Issue 36.

4

E. 2. Briefe 790.

19 E. 2. Ass. 400.

43 E. 3.7. 17 E. 3. 41.

43 E. 3. Diss. 5.

"Shall not bar the heir, &c." For, by the authority of Warranty by disseisin binding between the our author himself, a lessee for years may make a feoffment, parties, though not as and by his feoffment a fee-simple shall pass; so as albeit to those that have right. as to the lessor it worketh by disseisin, yet between the parties Cro. Car. 388.) the warranty annexed to such estate standeth good; upon which the feoffee may vouch the feoffor or his heirs, as by force of a lineal warranty. And therefore if a lessee for years, or tenant by elegit, &c. or a disseisor incontinent make a feoffment in fee with warranty, if the feoffee be impleaded, he shall vouch the feoffor, and after him his heir also; because this is a covenant real, which bind him and his heirs to recompence in value, if they have assets by descent to recompence; for there is a feoffment de facto, and a feoffment de jure: (*) and a feoffment de facto made by them that have such interest or possession as is aforesaid, is good between the parties, and against all men but only against him that hath right. And therefore if the lord be guardian of the land, or if the tenant maketh a lease to the lord for years, or if the lord be tenant by statute merchant, or staple, or by elegit of the tenancy, and make a feoffment in fee, he hereby doth extinguish his seignory, although, having regard to the lessor, it is a disseisin.

3

E. 4. 17. 12 E. 4. 12.

10 E. 4. 18. F. N. B. 201. Lib.3. fol. 78.

in Fermor's case. terplea de Voucher, 126. 50 E. 3. Ibid.

(*) Temps E. 1. Coun

124. Vid. W. 1. cap. 48. in the second part

of the Institutes.

365 a.

6. What use may be

Rebouter, is a French word, and is in Latin repellere, to repel or bar; that is, in the understanding of the common made of a warranty. law, the action of the heir by the warranty of his ancestor; and this is called to rebut or repel (G 2).

(F2) As to the distinction between actual disseisin and disseisin by election, see the notes to Chap. 47. Of Injuries to real Property.—[Ed.] (G2) Where a lineal or collateral warranty is a bar, there if the party be impleaded by him who made the warranty, or his heirs, the party impleaded, who is tenant of the land, may plead and shew forth his war ranty against him, and demand judgment, whether, contrary to his own warranty, he shall be received to demand the thing warranted; and this in pleading is called a rebutter. Terms de la ley, tit. Garranty.

But, if the party be impleaded or sued by another for the land in an action wherein he may vouch, then he to whom the warranty is made or his heirs may vouch, that is, call in the warrantor or his heirs to warrant the land. And this is an interpleader in the nature of an action brought

Rebutter.
(Post, 303 b. 2 Rol.
Abr. 775, 776. Cro.
Jac. 4.)

S04

101 b. Voucher.

Avoucher, (in Latin vocatio, or advocatio) is a word of

(t) Mirr. cap. 5. sect. art, made of the verb voco, and is in (t) the understanding of 1 & 5. Bract. lib. 5. the common law, when the tenant calleth another into the fol. 580, 381. Britt. court that is bound to him to warranty, that is, either to defend the right against the demandant, or to yield him other

cap. 75. de Garr.

Vouch. Fleta, lib. 6.

cap. 23, 24, 25, 26, &c. optime Lamb. Expli. Verb. Advo

care.

land, &c. in value, and extendeth to lands or tenements of an estate of freehold or inheritance, and not to any chattel

by the warrantor against the warrantee, wherein he that vouches, who is called the voucher, is demandant; and he that is vouched, who is called the vouchee, is made tenant or defendant to the action, and the voucher is as it were out of the suit; and this second tenant, the vonchee, is called the tenant by the warranty; and hereupon a writ issues to the sherifi, to summon the vouchee to appear, which writ is called a summon as ad werrantizandum. Infra, 101 b. 393 a. If the vouchee appears, he must plead to the voucher: and if he shews cause why he should not warrant, that must be tried; and this shewing of canse is called a counterplea to the voucher. But if he pleads in avoidance of the warranty, it is called a counterplea to the warranty and if he cannot defend himself against the warranty, the stranger shall recover the land demanded against the voucher, and he shall recover as much other land against the vouchee of the lands he has or had at the time of the voucher: and this recovery of other lands is called a recovery in value. If the vouchee at the time of the voucher and recovery has no lands descended to him to answer the warranty, but has afterwards lands falling to him by descent from that ancestor, then the voucher may have a re-summons, and recover the land which afterwards falls. But if the sheriff returns upon the summons that the vouchee is summoned, and he nevertheless makes default, then he shall have a magnum cape ad valentiam; when if he makes default again, the judgment shall be given against the voucher, and he shall recover over the value against the vouchee: and if the vouchee appears and then makes -default, the voucher shall have a parrum cape ad valentiam; and then if he makes default, judgment shall be given as before. But if the sheriff upon the summons returns that he has nothing whereby he may be summoned, then, after writs of alias and pluries, a writ called sequatur sub suo periculo (because the tenant shall lose his land without any recompence in value, unless he upon that writ can bring in the vouchee to warrant the land unto him) shall be awarded; and if the like return be made, the demandant shall have judgment against the first tenant, but he cannot recover in value against the vouchee, because he was never warned, and it appears that he has nothing. If the vouchee had a warranty from some other for the land, he may deraign, that is, maintain the warranty over, and shall recover in value also against his vouchee in the same manner as before. If the warrantee to whom the warranty is made, or his heirs, be impleaded in any action in which he may vouch, then he ought to vouch to warranty; and if he will not, then he shall not afterwards have a writ of warrantia charta.

But if the warrantee or his heirs be impleaded in an assise, or in a writ of entry in the nature of an assise, in which actions they cannot vouch, then they shall have a writ de warrantia chartæ against the warrantor, who made the warranty, or his heirs. F. N. B. 34. Likewise, the warrantee or his heirs may, at any time before they be impleaded for the land, bring a warrantia charta upon the warranty in the deed against the warrantor or his heirs, and thereby all the land the heir of the warrantor has by descent from the ancestor, who made the warranty, at the time of the writ brought, shall be bound and charged with the warranty into whose hands soever it afterwards goes. So, if the land warranted be afterwards recovered from the warrantee, he shall have so much land over again of the other land of the heir of the warrantor, or of the warrantor himself, if he be living: and although the warrantee or his heirs recover in this writ, yet upon occasion he may notwithstanding afterwards vouch the warrantor or his heirs. And Lord Coke hereafter observes, that it is advisable to bring this writ of warrantia charta betimes, because it binds all the lands of the warrantor from the time of the writ brought, but it does not bind any land which he had previously aliened. Post, 101 b. $95 a. Et vid. ante, p. 246. n. (A).—[Ed.]

Hob. S. 23. Noy. 131.

real, personal, or mixed, saving only in case of a wardship (Ante, 365 a. 389. granted with warranty (H 2); for, in the other cases concerning 2 Rol. Abr. 738.) chattels, the party, if he hath a warranty, shall not vouch,

but have his action of covenant, if he hath a deed, or if it be by parol then an action upon his case, or an action of de

(Cro. Jam. S07.)

(u) V. Reg. Jud. for all these judicial

writs.

(w) V. Vet. N. B. 179.

186. 39 E. 3. 28.
17 E. 3.

14H. 6. 7.
41.3 H. 4. 4.

11 H. 4. 72. 45 E. 3.
F. N. B. 134,

19.

135.

(Post, $93 a.)

ceit, as the case shall require. Now seeing that one Latin, Proceedings thereon. French, or English word, can have this particular signification, therefore the common lawyer (that I may speak once for all) is driven, as the professors of other liberal sciences use to do, to use significant words framed by art, which are called vocabula artis, though they be not proper to any language. He that voucheth is called the voucher, vocans, and he that is vouched is called vouchee, warrantatus. (u) The process whereby the vouchee is called, is a summoneas ad warrantizandum, whereupon, if the sheriff returneth that the vouchee is summoned, and he make default, then a (w) magnum cape ad valentiam is awarded; when if he make default again, then judgment is given against the tenant, and he over to have in value against the vouchee. If the vouchee do appear, and after make default, then parvum cape ad valentiam is awarded; and if he make default again, then judgment as before. But if the sheriff return, that the vouchee hath nothing, then after writs of alias and pluries, a writ of sequatur sub suo periculo shall be awarded; and if the like return be made, then shall the demandant have judgment against the tenant; but he shall not have judgment to recover in value, because the vouchee was never warned, and it appeareth that he hath nothing. But in the grand cape ad valentiam it appeareth that he hath assets, and his making default after summons is an implied confession of the warranty. And as it is called a sequatur sub suo periculo, because the tenant shall lose his land without any recompence in value, ualess he upon that wiit can bring in the vouchee to warrant the land unto him; and if, at the sequatur sub suo periculo, the tenant and the vouchee make default, and the demandant hath judgment against the tenant, and after brings a scire facias to have execution, the tenant may have a war

(H 2) For in a writ of ward, though a chattel were only demanded, yet the tenure of the inheritance, which is in the realty, was the ground of the action. Hawk. Abr. 155.-[Ed.]

102 a.

(Post, 393.)