A writ and count in a warrantia chartæ must have four [21 a] points complete in them, that is to say, First, he that brings it must be tenant of the land the Point 1. day of the writ purchased. It must be by a conveyance, whereby the land, where- Point 2. unto the warranty is annexed, must pass, or at least, if right be released, or confirmation made with warranty, he must be tenant of the land, to whom it is made in warranty. Point 3. This writ must be brought hanging the principal plea. It must contain the specialty of the warranty and lien. Point 4. All these parts this writ and count doth contain; and yet, being these rules receive distinctions, I will explain them, that it may appear how they stand with their distinctions. And as to the first point. The plaintiff is made tenant of the land in demesne; Explanation of for of that there hath been great question, whether the the first point. vouchee or defendant in the warrantia charta, that hath a warranty over, may have a warrantia charta; whereof I make the resolution upon all the books thus. That it is a good plea in the warrantia charta, that the plaintiff was not tenant of the land the day of the writ purchased; and so are the books of the 24 E. 3. 25. 7 E. 4. 12. & 17 E. 3. 44. 16 H. 3. F. Garrantie des Charters 29. Bracton tractatu de warrantiis chartæ 18. Thus in warrantia charta, defendens potest excipere quod querens non tenet terram, de qua petit warrantiam. But it seems to be a plea but prima facie, for it is allowed also 7 H. 4. 18. And yet it is concluded that the vouchee may have the writ, when he cannot vouch, even as a second or third mean lord may have a writ of mesne, as well as the tenant in demesne, and so 3 E. 3. Fitz. Warrantia Charta 4. the defendant pleaded, that the plaintiff was not tenant the day of the writ, and issue upon it. But Fitz. abridging the case saith, that if he had pleaded himself tenant by voucher, the day of the writ purchased, it would have served; and 31 E. 3. Fitz. Warrantia Charta 22. In fine, Burton saith, that the defendant in warrantia charta shall have a writ of warranty of charters over 4 Le. 223, 317. 2 Ro. 810. 2 Ro. 810. 2 Ro. 810, [21 b] Co. L. 174. a. 2 Ro. 809,744. Mo. 860. [22] 2 Inst. 245. Explanation of Godb. 151. N. hanging the writ against him; and reason and justice requires it, since this writ is supplementary in place of voucher, where that cannot be had; therefore is this writ as well to be allowed after alienation, as voucher is allowed; for alienation cannot be imputed unto folly; for as a man may vouch, coming in as vouchee, so this writ, as it is in nature of a voucher, is equally to be allowed. And therefore 41 E. 3. 7. If the tenant by the curtesie grant his estate with warranty unto I. S. and comes in as vouchee, he shall have aid of him in reversion, as if he were tenant in possession. And 43 E. 3. 23. If a copartner make a feoffment with warranty, and comes in as a vouchee, he shall be able to dereign the warranty paramount, as if he were in possession; but where it hath been said, that upon a release or confirmation with warranty, a man cannot vouch, and therefore he shall have a warranty of charters; 12 H. 7. 12. It is clear, as to him that warranted, he may. 4 E. 2. Fitz. Voucher, 244. & 1 H. 4. 19. 38 E. 3. 13. But the cause may be so, as the demandant may counterplea the voucher, and then the tenant is driven to his warranty of charters, for default of his voucher in deed. And so the book 12 H. 7. is in that sense true; for if the defendant should vouch, as he may, against the warrantor, and be counter-pleaded by the demandant, truly he should lose his land and the aid of voucher too; for he were passed the requiring of a new plea of the warrantor, when he had been, by the voucher, counter-pleaded before. As to the second point, see 24 E. 3. 35. where the plaintiff in warranty of charters counted, that the defendant infeoffed him by the charter with warranty, the defendant pleaded riens passa per le fait. And Bracton tractatu de warrantia, cap. 9. sec. 5. Excipere potest warrantus quod licet charta de feoffamento sufficiens fuit, tamen donum fuit insufficiens, quia donatus nunquam habuit seisinam in vita donatoris, sed post mortem suam intrusit. Also 44 E. Fitz. Garr. Char. 18. upon a release with warranty pleaded, that the party, to whom the lease was made, had nothing at the time of the release made. Explanation of Mo. 860. And to the third point, the Register 158. affirms that [22 a] rule; and addeth, si judicium inde redditum sit, non valet hoc breve. But this must be well understood; for clearly the 3d point. it may be brought before any principal plea, and after the plea take any other, and then by judgment, or by discontinuance, and the like. And I am of opinion, that before execution it may be brought, if the party prayed his plea in time, for till execution, he is in of the estate warranted. But if the execution be had, then the warranty fails with the estate. To the fourth point, this writ and count is in place not Explanation of the 4th point. of the voucher, for this is general, but of the dereigning 2 Ro. 810. of the warranty in case of a voucher; and yet in some cases it shall not need to be so special as the dereigning; and therefore if a man bring a warrantia chartæ upon a warranty of land, and shall obtain judgment, he shall use that judgment after for rent demanded or recovered, if the warranty did extend unto the rent. 31 E. 3. Fitz. Garr. Chart. 22. And yet upon a voucher in like case it should have been more special; the reason is apparent, for the rent is demanded when he vouched; but it may be it was not foreknown that rent would be demanded, when the writ of warranty of charters was brought. But if it were, he Inst. 366. ought to declare specially the rather, if he cannot vouch in the principal plea of the rent; for there must be a means to discuss, whether the rent in demand be to be warranted as a rent suspended, when the warranty was made, so as the land was warranted, as discharged of rent. Now to the objections, that have been, or may be, made against the count. First, it may be objected, that he makes the cause of Object. 1. action, because he was impleaded in a writ of entry in le per, in which action he may vouch; and then by Fitz. N. Br. 134. D. & I. it may seem he cannot have this writ. To this I answer, that the writ of entry in le per doth admit a voucher indeed, but that must be within the line; but the writ of entry in le per in the declaration is laid generally; and so might in the per by some other, and not [22 b] Ans. 2 Ro. 810. Inst. 102. a. [23] by Osborn, and then by that means being deprived of voucher, he must be admitted to this writ; for so it is provided by the Stat. of Westm. 1. cap. 40. expressly. But my plain answer is, that the writ of warranty of charters will lie upon all actions real, and may be brought either before, or hanging those actions, though a voucher lie in the actions; and so it is resolved 9 E. 2. Fitz. Warr. Char. 30. 19 Edw. 3. 42. Fitz. Garr. Chart. 8. though it be in a formedon; (this is best in the abridgment.) And 2 E. 3. fol. 6. in a warranty of charters against the heir, he pleads that the formedon is hanging of the same land; et non allocatur, although he may rebut. 41 E. 3. of Garr. Char. 19. in formedon, and Fitz. Nat. 135. D. where his words are, that a man shall have a writ of warranty of charters, though he may vouch in the action that is brought against him; and if he recover, and after lose in the action wherein he vouched, he shall have a writ of habere facias ad valentiam within the year after a recovery in warrantia charta, and the reason of this is clear, for he shall bind the land from the teste of the warrantia charta, (though he cannot have execution until he take loss.) And upon the voucher he shall have it but from the time of the voucher, which may be delayed; and therefore I am of Co. L. 187. b. opinion, that he may bring it even after voucher, because that action may be discontinued and fail many ways, and so the warranty of charters be necessary; and this reason is expressly given both in 9 E. 2. and by Fitz. Nat. Br. ; and Fitz. Nat. Br. in other places 135. A. must be understood that he must not rely upon this warranty of charters, but he must also vouch and request plea according to his case, as he said 135. A. And so is 19 E. 3. F. Garranty Chartes 9. 31 F. Garranty Chartes 22. 18 E. 3. 42. F. Garranty Chartes 8. best in the abridgment as before I have said. And it is the best for him that is to warrant, to make entry of the plea that he tenders in the record of the action, in which he is to plead; per Brian 16 H. 7. 6. yet I see not well how that can be, for both request and tender and matter of fact. Object. 2. And thereupon another objection may be made, that since he ought to vouch and hath not, he can have no benefit of warrantia charta. This is already answered in part by the nature of the voucher in the lieu, and also it appears not that it was come so far as he might vouch. [23 a] Answ. If it be objected that he hath laid that he did request Object. 3. to have a plea in bar ministered, where the vouchee may plead in abatement, as well as in bar as an entry of the demandant since the voucher; for if it were before, it must be pleaded by him to retort the warranty, because the tenant did not plead it himself. hurts not in the count, or the It is answered, that he counts that he did require the Surplusage defendant to warrant the land, which is enough; and so in the book of precedents; for that imports that he shall like. warrant according to the nature of the case; by the voucher, if he be vouched, or otherwise by plea, and therefore the adding of request of plea in law is surplusage. H. 7. 13. It is objected, that he hath declared to his damage, Object. 4. where no loss appears; it is true that he shall recover no damages but where he hath taken loss by recovery already had against him; 41 E. 37; 3 E. 3. 21. and 18 E. 3. 42; Ap. 217. 39. 10 F. Gar. Char. 8; and therefore he shall not have damage, where the warranty of charters is brought before the action quia timet. And so is 21 H. 6. 22. and therefore if it be pleaded by the defendant, that the plaintiff is not impleaded, the plaintiff shall presently have his judgment, 6 Co. 51. b. but no damages; but yet he shall declare to damage according to the form; which is not strange in many cases, as in a quare imped. for the king. The loss, whereupon the plaintiff may have damage, is not only wherein the principal action damages were recovered against him, as in an assize or the like; but also where the land hath been recovered only, as in a formedon or the like; 41 E. 3; F. Gar. Char. 19; 42 E. 3. 7; 43 E. 3. 20. But yet the case of 43 E. 3. 20. is inter anomala; for there the case was, that where one Charnel had made a warranty against himself and his heirs, and all others suing by his collusion,-upon a warrantia charta, it was found that the principal action, (a formedon) Inst. 343. b. |