Bracton: Thorne Edition: English. Volume 3, Page 267

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Volume 3, Page 267

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[001] as [in the roll] of the eyre of William of Ralegh in the county of Warwick, an assise of
[002] mortdancestor, about the middle of the roll.¹ The same procedure ought to be
[003] observed, it is submitted, if one of several tenants holding together and in common
[004] dies.² But if the inheritance or tenement, formerly common, has been divided among
[005] the several parceners and one dies, both the assise and the writ fall. What if a man and
[006] his wife are vouched together with respect to a feoffment made by the wife? Though
[007] the husband dies, the writ does not fall on that account, though it does in the converse
[008] case. If the demandant or the tenant or both die, the plea [of warranty] then
[009] falls completely, since it lacks, so to speak, any foundation.³ If one (or several) of
[010] several warrantors dies, we must then see whether he has warranted⁴ or not. If not,
[011] the writ does not fall on his death but let the tenant begin⁵ to vouch his heir de
[012] novo.⁶ If he has warranted,⁷ according to some, since the warrantor is so to speak the
[013] tenant and principal, and since the tenant has put his defence completely in the
[014] hands of the warrantor and cannot resume it again, which is not true in the first case,
[015] and is thus so to speak, dead with respect to⁸ the plea, the writ falls and another will
[016] be needed. If one warrantor, or the last⁹ of several, when several are vouched successively,
[017] denies the warranty, that he need not warrant, no penalty follows, except
[018] that the assise is taken by default, [for] the tenant will always be saved harmless by
[019] escambium since he has once been warranted. And that the assise ought thus to be
[020] taken at once by the warrantor's default is shown [in the roll] of the eyre of Martin of
[021] Pateshull in the county of York in the tenth year of king Henry, an assise of mortdancestor
[022] [beginning] ‘if Walter le Chamberlenger.’¹⁰ To the same intent [a case]
[023] from the eyre of William of Ralegh in the county of Buckingham, an assise of mortdancestor
[024] [beginning] ‘if Simon Hochedez,¹¹ where it is said that if [it is found that]
[025] a warrantor ought not to warrant, no penalty follows except that the assise be taken.¹²
[026] The reason is that a warrantor in an assise ought to defend against the assise, to say
[027] why it ought to remain. But if he knows of nothing to say, the assise proceeds; the
[028] assise takes away or gives in a possessory action. In a proprietary action the warrantor
[029] answers and denies the right; he is bound to show why the demandant does not
[030] have the right. If he is unable to do so the tenant loses, since he is without defence.

If the assise touches the king and the tenant says that he cannot answer without the king, let the assise be taken nonetheless but let judgment be respited until the lord king has decreed his pleasure.

[032] When one has, so to speak, vouched a warrantor in this way, saying that he cannot
[033] answer without the lord king,¹³ because he holds the tenement as to which the assise
[034] is arraigned

Notes

1. Not in B.N.B.

2. Cf. iii, 306, iv, 227

3. Infra iv, 223-4, 225

4. ‘warantizaverit’

5. ‘incipiat’

6. Infra iv, 225, 226

7. ‘warantizaverit’

8. ‘quoad’

9. ‘ultimus’

10. Not in B.N.B.

11. Not in B.N.B.

12. Supra 256

13. Supra 43, infra iv, 197, 217