[19 a] Obligation. Mich. 3 & 4 147. Ap. 75. Ant. 18, 116. In an obliga tion, octigentas for octoginta. Co. 133. a. Yelv. 95, 96, 105. FITZHUGH'S CASE. Obligation in Octigenta libris, not good. EDWARDUS BRIDGE de, &c. Gen. et Francisca uxor ejus, alias dict. Francisca Fitzhugh de, &c. Gen. summum. fuer. ad respond. Nichol. Fitzhugh, Gen. de placito quod reddant ei octoginta libras, quas ei debent et injuste deti1 Cr. 419. 10 nent, &c. Et unde, &c. Et count sur obligation fait per femme dum sola fuit. Mando, &c. Et petunt auditum scripti præd. et eis legitur in hæc verba. Noverint universi per præsentes me Franciscam Fitzhugh de Goodwick in Com. Bed., Gen., teneri et firmiter obligari Nichol. Fitzhugh de Eaton in dicto Com., Gen., in octigent. libris bonæ et legalis monetæ Angliæ, solvend. eidem Nicholao aut suo certo attornato vel executoribus suis in festo St. Mich. Archangeli prox. futuro. Ad quam quidem solutionem bene et fideliter faciend. obligo me, hæredes, executores, et adm. meos firmiter per præsentes sigillo meo sigillat. dat. vicesimo tertio die Novemb. Anno regnor. Phil. et Mariæ, Dei gratia Regis et Reginæ Angliæ, Hispaniæ, Franciæ utriusque, Ciciliæ, Jerus. et Hiberniæ, Fidei defensor., Archiduc. de Austriæ, Duc. Bugundiæ, Mediolan, Brabantiæ, Comitum Hausburg, Flandriæ et Tyrol quarto et quinto; quo l' co et audito iidem Edw. et Francisca petunt judicium de brevi et narr. præd., quia dicunt quod præd. N. per. br. et narrationem suam præd. suppon. quod præd. E. et F. debent præfato N. octogint. libras quas eidem N. redderent, ubi revera non habetur aliquod tale verbum in scripto præd. continens et warrantizans hoc verbum in br. et narratione præd. specificat, viz. octogint. et in eodem scripto obligatorio præd. hæc duo verba, viz. 'octigenta' sunt script. et content. Quæ quidem duo verba 'octigenta' nullam habent in se significationem de aliqua summa certa, sicq; br. et narratio præd. non warrantizant de et super script. præd. per præfat. N. hic in Curia probat. Per quod iidem E. et F. petunt judicium, et de breve et narr. præd. &c. Et quia præd. N. exceptionem præd. q. per inspectionem brevis narr. et script. præd. 1 Co. 22. a. Cur. hic satis constat non dedicit, ideo concessum est præd. N. nihil capiat per billam suam, sed sit in misericordia pro falso clamore suo &c. Et quod præd. E. et F. eant inde sine die, &c. Concessum est etiam quod præd. E. et F. recuperent versus præfat. N. dampna sua occasione premissorum ad tempus eisdem E. et F. per discretionem justitiariorum ad requisitonem suam promisis et custagiis suis in ea parte sustentat. juxta formam stat. &c. per Curiam his adjudicat. [196] PARKER US. KENEDAY. Obligation in Sessanta libris, is good for £60. Obligation. 2 Rot. 1020. Ses Italian. 2 Cro. NARR. per Parker versus Keneday, et sa femme sur 62. Tr. 6. Jac. deux obligations, un de 60 lib. et l'auter de 40 lib.; defen- santa libr. Bone obligadens petit auditum præd. primi scripti et ei legitur in hæc tion qua in verba ; Noverint, &c. in sessanta libris, &c.; quoad præd. 203. Ro. 2. 60 lib. de præd. 100 lib. defendens demurre ; et quod alter- 147, 116. Yelv. 96. 105. Ap. am obligationem non est factum; et judicium sur demur- 119. rer pro quer. MASDAME Vs. JOLLY. Obligation in Sexaginta libris is good for £60. [20] Obligation. 1830. 1 Co. NARR. per Masdame versus Jolly, sur bond pro 60 lib.; Hill. 10 Jac. R. defendens petit auditum scripti, &c. et ei legitur, &c. Noverint, &c. in sexaginta libris, &c. ; et sur ceo demurrer, et judicium pro quer. 47. 15. 2 Ro. 338. Cr. Car. 418. Styl. 242, 257. 147. 2 Cro. ROLL vs. OSBORNE. Warrantia Charta is either provisional, quia timet, wherein no damages are given, though the plaintiff must declare ad damnum; or it is remedial, to recover for loss already sustained. In the writ and count these four points must, in general, appear. 1st. The plaintiff must, in general, be tenant of the land whereto the warranty is annexed, the day of the writ purchased; but the defendant or vouchee may have it when he cannot vouch, pending the writ against him. 2d. It must be by a conveyance Warr. Chart. [20 a] which passes the land whereto the warranty is annexed; or if the right be released or confirmation made with warranty, the releasee must be tenant; and it is a good plea that nothing passed by the deed, or that the releasee had nothing in the land at the time of the release made.-3d. The writ must be brought either before, or pending the principal plea, or at least before execution.-4th. It must specially set forth the warranty and lien, but it need not be so special as the dereigning of the warranty in the case of voucher. Warrantia charte will lie in all actions real, whether voucher or rebutter lie in those actions or not; and it will lie even after voucher. It binds the land from the teste of the writ, though the plaintiff cannot have execution till he takes loss. The plaintiff can recover damages, only when land and damages or land alone have been recovered against him, and not when damages alone have been recovered. A fine and recovery, which is a record, must be pleaded entire; but a feoffment may be pleaded for parcel of the land only. (1) A warranty may be extinguished by refeoffment to the warrantor; and though it seem literally entire, it may be divided by act of the party and construction of law. It is a great servitude upon the warrantor and his estate, against common right, and must be taken strictly and literally. If a man convey land with warranty against him and his heirs, the heir on the part of the mother cannot be vouched so long as there is an heir on the part of the father, unless by reason of a seignory of lands on the part of the mother; and if the warrantor have no lands but gavelkind the tenant may vouch the heir at common law alone, or the other heirs for possession. A warranty annexed to a seignory is lost by escheat of the land. If a warranty be made to two jointenants and one make a feoffment of his part, he loses his warranty, but the other may vouch for his part; if they make partition, both lose it by the common law; if made to two jointenants and their assigns, it extends only to a joint assignment. If the tenant make any change in the estate to which the warranty is annexed, he cannot vouch or have warrantia chartæ. If a stranger who has right of entry, enter without action brought, after judgment in warrantia charta, the plaintiff may have execution. If a man enter into a general warranty, yet he is bound to warrant only such esstate as the tenant has; but if the tenant prays warranty of a certain estate, e. g. a fee simple, and the vouchee admits it, he must make it good, though it was, in truth, but a less estate. A warranty annexed to the freehold may be sued as a personal covenant for the recovery of damages, when the feoffee's title is impeached only by a term for years, upon which neither voucher nor warrantia chartæ lies. If a feoffee recovers judgment on a warrantia charta, and a stranger afterwards recovers against him an estate for life, the feoffee shall have execution for recompense for that estate; and so several executions successively for any other estates less than fee simple. But if a fee simple is once recovered and recompense had, the warranty is satisfied and so extinct. If a man have several warranties of the same land, he cannot take advantage, by way of voucher, of both, but must rely upon one, and cannot afterwards resort to the other; but he may have several writs of warrantia chartæ and judgment upon them; and if he afterwards lose the land by entry without action upon an eigne title, he may have several executions on those judgments and full recompense upon each. (1) 5 Mass. 516, Smith v. Drew, acc. If a feoffee be sued in an action where he cannot vouch but may require plea, and his warrantors advise the same plea and he plead it and fail, he may have remedy against either; but if they advise different pleas, he can have recompense only of him whose plea he followed. [20 b] Trin. 9. Jac. R. Leo. 250. Mes 839. 1 Co. 2 Plo. 333, 411, The learning warranties gen Judgment was defendant. reported here of Hobart Sir HENRY ROLL the younger, knight, brought a war- 2205. Winch's rantia charta against Sir Robert Osborn and Margaret his Ent. 11, 27, 4 wife, that they should warrant unto him one messuage, me Ca. Mo. forty acres of meadow, and seven hundred acres of pas- Brownl. 169. ture in Kill-March, and declared that Robert Osborn, 325. b. Margaret, and one John Gobert did levy a fine, anno 2 of the of warrantia king, unto the said Henry Roll of the said tenements, inter charta, and of alia, by the name of the manor of Kill-March, and divers eral at large. other quantities of lands; and by that fine Robert Osborn given for the and Margaret did grant for them and the heirs of Robert, Note, the case that they should warrant the manor and the other prem- is the argument ises to the said Henry and his heirs, against him and his Chief Justice heirs, and against all men; which fine, as to the messuage in this case, only. But yet and lands in question, was to the use of Henry Roll and divers points his heirs; and then shews, that he being so seized, Ralph Perne did implead him by writ of entrie sur dissei- that cometh insin in le per, in the Common Pleas, for the house and shall never lands in question, (but doth not tell otherwise when); hang- tia chartæ. 29 ing which plea, Henry Roll required the said Robert and Ass. 34. The Margaret to warrant unto him the said messuage and comes in by lands in question, or to minister unto him a plea in bar of 6. A disseisin, the said action, which to do they refused, to his damage 10 H. 7. 10. of one hundred pounds. were resolved one by the justices. 1. That he to an estate have a warran lord who escheat. 21 H. 19 H. 6. 25. & Tenant by the curtesie made chartæ. 2. That chartæ did not said lie in this case, because by the es- recoveror Sir was in of an and a warranty an estate con To this the defendant pleaded, confessing the fine, war- a warrantia ranty and use, but further saith, that Henry Roll being the warrantia seized of the tenements in question by force of the fine, that one William Gibbs and Thomas Stephens, quires, before the purchase of this writ of warrantia chartæ, scilicet the seventh day of November in the second other estate; year of the king, did sue a writ of entry in the post, against lieth only upon the said Henry Roll, of the said messuage and land in tinued, and no question, inter alia per nomina maneriorm Kill-Marsn &c. it was resolved retor. xv. Martini. At which day the demandants, and R. in Kemp the said Henry Roll, ad tunc tenens liber tent. manerio- ham's case, and rum, &c. existens, did appear. And the writ was return- 41 Eliz. Bained, and the demandants declared, and demanded all the ter's case. altered; and s 34 Eliz. in B. and Henning ton & Ches [20 c] manors, &c. And, Henry Roll the tenant called to warranty Robert Osborn, knight, without saying præd. RobMoor's Rep. ert Osborn, and he the common vouchee. And so the 59. &c. Bract. tr. de warran. chartæ cap. ult. [21] Bracton. recovery passed, and a writ of seisin of all the manors, &c. And that the same recovery, as to the messuage and lands in question, was to the use of Sir Henry Roll for his life, and after his decease, if a marriage should be had between him and one Katharine Haselwood, then to the use of her for life, and after to the use of any other woman that he should marry, and then to the use of the first son of his body by Katharine Haselwood, and so to the tenth, one after another, and then to the use of such person as should be heir male, of the body of the said Henry Roll, and the heirs males of his body, and after to the use of Henry Roll, father of the said Henry the plaintiff'; and avers, that Henry the plaintiff is yet alive, and so demands judgment of the action; and the plaintiff thereupon demurs in law, and so the demurrer is joined. I will handle this case so, as besides the points concluding, I will by the way discuss all incidents to a writ of warranty of charters. The case is rare and of importance; for a suit is pugna civilis, whereof Bracton speaks prettily, Tractatu de warSicut actores armantur rantiis charte, capitulo ultimo. actionibus et quasi gladiis accinguntur, ita res muniuntur exceptionibus et defenduntur quasi clypeis. The writ of warranty of charters, as to the fixing of the warranty, and binding the possession of the warrantor, is either provisional or remedial. The first is in case of fear and provision. The second in case of loss already suffered, and to be recompensed by value per excambium, as Bracton speaks. I hold therefore first, that nothing appears in the count in the principal cause, but that the plaintiff ought to have judgment. I hold again, that upon the bar confessed by the plaintiff's demurrer, judgment is to be given against the plaintiff. |