Bracton: Thorne Edition: English. Volume 4, Page 225

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Volume 4, Page 225

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[001] the warranty. ¹<It seems that he is bound to answer with respect to things of which
[002] his ancestor did not die seised as of fee, but conversely, that he is not bound as to
[003] those of which he did die so seised.>² Since before he reaches full age a minor is not
[004] bound to answer as to anything of which his father or mother or other ancestor died
[005] seised as of fee, in demesne or in service, except to a fine made as aforesaid, it seems
[006] conversely that he ought to answer, both as to the warranty and the principal plea,
[007] with respect to everything of which such ancestor did not die seised as of fee, neither
[008] in service nor in demesne, as was said a little above.³ Hence whether the pleas are by
[009] writ of right or are assises, as mortdancestor and the like, in which it can be shown
[010] that the ancestor of the minor vouched to warranty did not die seised as of fee of the
[011] thing claimed, neither in demesne nor in service, he will be bound to answer to the
[012] warranty, and after that to the principal plea, despite his minority.⁴ But if his ancestor
[013] died seised thereof as of fee, in demesne or in service, it will be otherwise. This
[014] matter will be explained more fully below [of exceptions,] where the matters to
[015] which a minor ought and ought not to answer are explained.⁵

A warranty sometimes is suspended by the death of the warrantor.

[017] A warranty is sometimes suspended by the warrantor's death, that is, where one
[018] vouched to warranty dies, before he has warranted, or after he has warranted, no
[019] matter when, provided he dies before judgment and before the plea between him and
[020] the principal demandant has ended. Whether his heir is within age or not, the plea
[021] does not fall on that account, nor will it all have to be begun afresh after the death of
[022] the warrantor when he has once warranted and taken the defence upon himself, by
[023] which he is made tenant, so to speak, since, as said above, the foundation still
[024] endures, that is, the demandant and the tenant between whom the dispute arises;
[025] thus let the heir of the deceased be vouched to warranty de novo. And that the heir
[026] ought to be vouched is proved in the roll of Easter term in the sixteenth year of
[027] king Henry in the county of Kent, [the case] of Alice of Bendenges.⁶ To the same
[028] effect [in the roll] of Trinity term in the eighth year of king Henry, at the beginning
[029] of the roll.⁷ And what is said of an heir ought to be applied to a successor, as in the
[030] case of bishops, abbots and priors, as [in the roll] of Easter term in the seventh year
[031] of king Henry in the county of Devon, [the case] of William Paynel and the abbot
[032] of Dunkeswell.⁸ Thus the suit will not perish though its uninterrupted continuance
[033] perishes.⁹

Notes

1. Not in list of addiciones, supra i, 417

2. Rubric

3. Supra 224

4. Supra iii, 303

5. Infra 311, 312 ff.

6. Not in B.N.B., nor in fragments of the roll noted in C.R.R., xiv, p. v.

7. C.R.R., xi, no. 1461; not in B.N.B.

8. B.N.B., no. 1575; C.R.R., xi, nos. 63, 954, 1806, 2497

9. D. 5.1.73.2.: ‘an vero salva quidem eis est, verum instantia tantum edicti periit’