Bracton: Thorne Edition: English. Volume 4, Page 198

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Volume 4, Page 198

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The warrantor ought to be described by his proper name if possible, or by what amounts to the same.

[002] When one vouches a warrantor he ought to designate him by his proper name if he
[003] can, [if he is in being. If in his mother's womb it is another matter,] for if there is an
[004] error in the name [or the person] the tenant may easily lose. For if he vouches¹ thus,
[005] ‘I vouch the son of such a one’ without giving his name, the voucher is invalid, [that
[006] is], when he has several sons, but valid if he has only one. But if he vouches thus, ‘I
[007] vouch such a one the son and heir of such a one,’ the voucher is good though he has
[008] many heirs near and remote, because this must be understood to mean the nearer
[009] heir. But what if there are several who claim to be heirs and which of them is the
[010] nearer is not evident? It seems that the warrantor must be vouched disjunctively, as
[011] ‘I vouch such a one or such a one, whichever of them is the heir of such a person,’ or if
[012] [there is an heir apparent and] an heir in the womb, that is,² where a wife claims to be
[013] put into possession ventris nomine, ‘I vouch such a one, the heir apparent (in his own
[014] name) or him who is in the womb, unless he turns into a monster or dies in the womb.’³
[015] The reason for the doubt or uncertainty ought always to be expressed, as where one
[016] says ‘this one or that, whichever of them obtains the inheritance,’ as between an
[017] uncle and a nephew, or a legitimate son and a bastard and the like. For it suffices,
[018] when there are two who claim as heir, if one does as well as the circumstances permit.
[019] This may be done,⁴ it seems, by analogy to disinheritance, for if one ought to be disinherited,
[020] he ought to be disinherited by name, just as a warrantor ought to be
[021] vouched by name, as where it is said ‘Titius my son, be thou disinherited.’ An exheredation
[022] is also valid and sufficient if he says ‘My son be thou disinherited,’ no
[023] name being added, especially if there is no other son,⁵ since it does not matter whether
[024] a thing itself is done or its equivalent. But when there is one who claims to be heir
[025] and seeks the inheritance and a woman also claims to be put into possession in the
[026] name of her unborn child, or when several claim as heirs and which of them is the
[027] more rightful heir cannot be ascertained, because of the uncertainty, since no one is
[028] bound to warrant before the inheritance is taken up, it is safer and better to suspend
[029] the warranty until certainty can be achieved and the truth established,⁶ by analogy
[030] to this case,

If a warrantor of dower commits felony and there is a dispute between two chief lords as to the escheat.

[032] for suppose that one is impleaded as to two parts of a manor and a woman of the third
[033] part which she holds in the name of dower, and as to which he

Notes

1. ‘vocaverit’

2. ‘scilicet’ for ‘sic et’

3. Supra ii, 201-3; infra 227

4. ‘possit’

5. Inst. 2.13.1

6. Infra 227