[23 b] was brought by his collusion; yet he could have no dama

Object. 5.

[24]

Answer 1.

Plo. 410. b.

Apr. 276. 293.

Plo. 411. b.

353. b. 269. b.

Answer 2.

ges, because he had not lost the land, whereupon he had now brought a writ of deceit upon the trouble and charge that he suffered by collusion and suit, and declared upon the verdict in the warr. charta, finding the collusion as binding the defendant for that point. And so because the defendant could not deny that, the court gave judgment and £20. damages. But note that this foreign action is no ground for the like in other suits of warranties of charters; for this particular warranty grew upon a collusion, which is nothing to other warranties; and such a practice by collusion will bear an action with warranty. The only use of that case was, that they allowed the verdict in one action to be a conviction of collusion in another, which was hard enough.

As to the objection made by my brother Nichols, that by the count itself appears the warranty is lost, by reason that this part of the land is declared upon the fine, to be to the use of the plaintiff, and the rest shall be intended to the use of the defendant, who made the warranty, I answer it three ways.

First, that there can be no inference touching the use of the rest, because there is no mention of it in the count, but a mere omission; neither is there any cause that it should be holden confessed and not denied; for it is in no sort within the count, or the reason of it, which is to demand only warranty of this parcel of land, which was put in suit in the writ in the per, so there is no cause for this purpose to speak of the rest of the lands, saving the necessity of the form in pleading a fine or recovery, which is a record, which must be pleaded entire; whereas if it had been a feoffment, it might have been pleaded for this parcel of land only. 22 E. 4. 8.

Another answer is, that it appears, out of the bar of Osborn, that the whole manor, &c. was demanded in the writ of entry in the post against the plaintiff, Sir Henry Roll being tenant of it, and that he vouched of the whole, and judgment passed, which proved by the confession of Osborn, (that is, to impeach, the warranty) that he was tenant of all, and so he must have the use of all.

[24 a]

Answer 3.

Cr. 371. 370.

152.

5 Co. 76. b. 7.

b.

Another answer is, that a warranty may be extinguished indeed by refeoffment to him that warrants, but it is against nature to say, that any thing can be extinguished, 4 Co. 120. b. that never was; for here the cognisor should make a war- Mod. 183. Dy. ranty, provided that it should be no warranty or void; so the same man, that makes it should kill it in the birth. Therefore I hold it plain that the warranty, which seemeth literally entire, shall, by act of the party and construction of the law, be divided in this case, since it cannot take effect according to the entire word; as if I enfeoff H. of a hundred acres in fee, to the use of himself for fifty acres, and of the feoffee or of a stranger for the other fifty acres certain, and warrant the lands to the feoffee and his heirs, this warranty is clearly divided by the meaning against the letter; for the warranty, for so much as is to the use of the feoffor himself, and his heirs, that doth warrant, never took effect, and when it is divided to two, that word, that seemed entire at the first, is to be taken reddendo singula singulis; for this purpose, the case of the Lord Dacres, 26 Eliz. was resolved thus: William Lord Dacres made a deed of feoffment of lands in divers counties, dated 15 Oct. 4. Mariæ, upon condition the feoffee should enfeoff him of all the lands within twenty days after the date of that deed; and it was resolved, that if William Lord Dacres did make his feoffment but of part within the twenty days, the condition was not broken, though all were not reconveyed within the twenty days, according to the letter of the condition, which is entire as the warranty; the reason was, because it was his own fault that it was not conveyed, without which it could not be reconveyed, and therefore the letter was abridged, the condition being taken that he should reconvey so much. as was conveyed. But now the case standing thus upon the plaintiff's declaration, all the impediments arise upon. the plea of the defendant, which is confessed by the demurrer. But of which arise these points.

That the plaintiff having the whole manor conveyed Now to the unto him by fine with warranty from Osborn,

bar.

1

He hath divided the land.

[24 b]

234

5

[25]

Co. L. 376. b.
Plo. 445. b.
2 Ro. 746.

Next he hath divided and changed the estate. Then he hath done this by common recovery, by which they that come in are in the post.

Again, he hath vouched Osborn once already in that common recovery, and so hath had recompense, or possibility of it, by judgment.

This point is to be understood if the voucher of Osborn, as is already alleged, shall be understood of the same Osborn, because it wants the word prædict.

But if it shall not be understood the same, then it will come to this question. If a man have divers warranties against divers persons, and then, in an action brought against him, voucheth one and omits the other, and so a recovery passeth with a judgment of value, whether he can ever have benefit of the other warranty.

And upon this will arise a question by way of distinction, whether this will be all one, whether the recovery is upon title, and where it is a common recovery, and under what differences. And first, in general, which is a kind of key to the particulars that shall follow, I observe, that a warranty is a great servitude upon him that warrants, and upon his estate, and is a servitude against common right, and hangs like a cloud over him and his inheritance, as Hannibal said of Fabius Maximus, so it is in law taken strictly and literally.

And therefore if a man convey land with warranty against him and his heirs, his heir on the part of the mother shall not be vouched by this, as long as there is an heir on the part of the father; 19 R. 2. ff. Garr. 100; 49 E. 3. 11; except it be by reason of a signiory of lands of the part of the mother. 5 E. 2. Fitz. Avowry 207. And if he that warranted have no lands but gavelkind, yet the tenant may vouch the very heir alone; 38 E. 3. Charge of heirs 22; but it is true, that he may vouch also the other heirs may vouch, together with the brother, which is heir unto the father warrantor, the sister, who hath the land by possessio fratr.; 32 E. 3. ff. Voucher 94; 42 E. 3. 3. But if the land warranted comes unto a sister by possessio fratris, or to a younger

upon warranty,

or upon obliga- for possession, and so he

tion differ. Co.
L. 376. a. b.
2 Ro. 746.

very heir.

[25 a]

225. b. Co. 3. a. 1 Inst. 376. b. Co. 3. 52. b.

Yel. 56.

brother by borough English or gavelkind, she is without remedy; for she cannot vouch as heir alone, except she comes in as vouchee for possession with the 32 E. 3. Fitz. Voucher 94, and 35 H. 6. 33. Yet note, 2 Cro. 218. Co. that if a man bind himself and his heirs in an obligation, and leaves land at common law and land in gavelkind, Co. L. 102. b. the creditors must sue all the heirs. 11 E. 3. F. Debt. 7. 11 Hen. 7. 12. And so in that case, if he have one heir on the part of the father, and another heir on the part of the mother, and both have land by descent, he shall have several actions, and executions shall cease till he may take it against both; so it appears that the construction 2 Cro. 218. of law is stricter where the heir is charged with warranty real, than where he is charged with a chattel. Upon the same reason the case is adjudged 18 H. 3. ff. Voucher 281. and 23 E. 2. ff. Gar. 77. If a man grant a signiory with Inst. 392. t. warranty, and the lands escheats, the warranty is utterly lost, and not only for the over value, though it come by act in law; for the book of 23 E. 3. says, that a covenant shall be taken strict. (per Welby); and that the warranty is lost is adjudged 18 H. 3.

Apr. 287.

2 Ro. 742.

the lands. Apr.

193. b. 4 Le.

Co. 12, 13.

Now to the first objection, that the demandant hath To the first objection, viz. divided the land by his own act, viz. the recovery after the dividing of the warranty created. It is to be observed, that the war- 235. Co. L. ranty must remain entire as it was created, without the 385. a. 187. a. voluntary division of the party. And therefore if land be 251. given to two jointly with warranty, if the one made a feoffment of his part, he hath lost his warranty, but the other may vouch for his moiety; but if they make partition, both have lost it by the common law. And if the 6 warranty were to the joint tenants and their assigns, the 187. a. assignment must also be joint. 29 E. 3. ff. Garr. 70. E. 4. 8. Coke lib. 4. fol. 36, Terringham's case. man have a common appendant in forty acres, belonging unto twenty acres, if he sell ten of his acres, or buy part of the forty acres, the common may be divided and apportioned pro rata; but if it be a common appu because it is against common right, it is lost.

11

Mo. 203. Co.L.

If a Co. L. 122. a.

enant, Apr. 235. Hutt.

58. 8 Co. Wyat Wild's case.

[25 b ]

To the second objection, viz. the changing of

the estate. Co.

L. 193. b. 185.

b. 5 Co. 6. b.

If a man have a rent charge granted of twenty pounds. a year, and he grant five pounds a year of it to a stranger by fine, the tenant is not compelled to attorn.

So in these, and the like cases against common right, I must not be made subject to divers vouchers, or suits of warranties of charters, or to sundry distresses, where my grant made and meant but one.

Now secondly, where he hath changed his estate, the case is worse; for the estate must remain the same in the privity, or must be made the same in representation, that a. b. Co. 3.6. a. it was in the time of the warranty created, when you come to vouch, or to bring your warrantia charta; and therefore, if the husband and wife be joint tenants, and a release be made to them with warranty, and then the husband alone makes a feoffment over with warranty, and is thereupon vouched alone, he cannot vouch over. 10 E. 3. 52. Fitz. Counterplea of Warranty, 15.

[26]

1 Co. 122. b.

Co. L. 191. b.
Co. 3. 6. a. b.

Co. L. 165. a.

Co. L. 174. a.
Deut. 21.

Co. 3. 6. a. b.
Co. L. 174.

Ap. 480.

So if a woman, tenant in tail, and her husband make a lease pour auter vie, if in an action they be received, they cannot vouch over. 45 E. 3. 18, and 46 E. 3. 24. But if the lease had been only for the life of the woman, upon the receipt they might have vouched, for by representation they are in of the first estate.

As when lands and warranties descend to two parceners, and they make partition, and one of them is impleaded, he shall not vouch alone, but shall pray aid of his fellow, and so shall put themselves in representation of one heir, and then vouch together. But if one parcener alien his part, or make default upon aid prayed, the other shall vouch alone. 27 H. 8. 58. 4 H. 7. 20 H. 6. 2. and 43 E. 3. 23.

If two coparceners be, and one of them alien with warranty, and comes in as vouchee, now he shall pray in aid of his fellow, and either have pro rata upon the loss, or vouch over with him upon the warranty paramount.

But note in these cases, that the vouchee (when he will avoid the warranty by change of estate), he must show how the estate is changed. 3 E. 3. 51. And so hath the defendant done here in the principal case.