Bracton: Thorne Edition: English. Volume 4, Page 196

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Volume 4, Page 196

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[001] cannot deny this he will warrant, even without a charter. This is so unless he can show
[002] that the homage was conditional, that is, ‘saving the right of any other,’ [that is],
[003] when such condition is proper.¹

If the vouchee denies the homage.

[005] If the vouchee completely denies and transverses the homage, let the justices then
[006] hear the tenant's proofs. If he can prove that he is the man of the vouchee and that
[007] the latter has taken his homage, or that of his ancestors, in the form aforesaid,² the
[008] vouchee will warrant by judgment. But when one is vouched to warranty because of
[009] a homage which cannot be denied, may not the lord waive at will his tenant's homage
[010] and so escape the warranty? No. For if he could this inappropriate result would follow,
[011] that for a small service he would [never] warrant any large property to his tenant.³
[012] A tenant; however, may waive his tenement whenever he wishes, or restore it to
[013] his lord with the homage for good reason.⁴

By a chirograph and fine levied.

[015] One is also bound to a warranty by a chirograph and a fine made, so that if A. puts
[016] forward the chirograph of a fine made in the lord king's court between himself and B.,
[017] or between their ancestors whose heirs they are, then, in accordance with that chirograph,
[018] which cannot easily be impugned, let judgment be given⁵ on the warranty, but
[019] with the qualification stated above with respect to a minor, if a minor is vouched to
[020] warranty, that is, ‘if in the year and on the day etc.’⁶ But is not a minor within age
[021] bound to answer to a fine made even though [his ancestor was not seised] in the year
[022] and on the day? [This will be discussed below [in the portion] on exceptions.]⁷

[A warranty may bind] tacitly or expressly.

[024] Not only is the person of the feoffor bound, as aforesaid and for the reasons aforesaid,
[025] [but his] tenement may also be bound with his person, tacitly or expressly. Expressly,
[026] as where one says in a charter of gift that he and his heirs will warrant his gift out of
[027] some particular tenement which he then holds,⁸ no matter into whose hands it may
[028] afterwards come; the thing will remain expressly bound to the warranty, ⁹<as is
[029] proved in the roll of Easter term in the sixteenth year of king Henry in the county of
[030] Middlesex, [the case] of Alice de Ayler and Richard Reinger,¹⁰ where Alice¹¹ warranted
[031] by judgment

Notes

1. Infra 219-20

2. Supra ii, 232

3. Supra ii, 83, 234

4. Supra ii, 237

5. ‘fiat’

6. Supra 194

7. Infra 224, 311 ff.

8. ‘tenet’

9. Supra i, 416

10. B.N.B., no. 748 (Hilary 17)

11. R. Cappellanus, the tenant