A treatise of the principal grounds and maximes of the lawes of this nation very usefull and commodious for all students and such others as desire the knowledge and understandings of the laws / written by that most excellent and learned expositor of the law, W.N.

The clause of warranty.

Et ego & haeredes mei, &c. warrantizabi∣mus, &c. defendemus, &c.

WArrantizo, is a verb used in the Law, and onely appropriated to make a

Warranty. Littleton in his chapt. of Warranty saith, Que cest parol, &c. that this word War∣rantizo, maketh the Warranty, and is the cause of Warranty, and no other word in our law, and the argument to prove his asser∣tion, is produced from the form and words u∣sed in a fine, as if he should say, Because the word defendo, is not contained in fines to create a Warranty, but the word warrantizo onely, ergo, &c. which argument deduced and drawn à majori ad minus, is very forcible, for the greater being inabled, needs must the les∣ser be also inabled: Omne majus in se continet quod minus est, & quod in majori non valet, nec valet in minori. But certainly Littleton is to be understood only of an express warranty indeed, and of a warranty annexed to Lands, for there may be, and are other words, which will extend and inure sufficiently to warrant chattels, &c. and which will imply a warran∣ty in Law, as dedi, &c. and excambium (as I have heard say) implyeth a warranty in Law, which from Glanvil's vel in excambi∣um, or escambium datione lib. 3. cap. 1. may receive some confirmation: And Littleton in his Chapter of parceners, teacheth that partition implyeth a warranty in Law, &c. And lest some may here say, that defendemus stands for a cypher, I will tell them what

Bracton declareth of it, speaking about a war∣ranty in deed, from the Feoffor and his heirs, whose words are these: per hoc autem quod di∣cit (scilicet Feoffator) defendemus, obligatse & haeredes suos ad defendendum fi quis velit ser∣vitutem ponere rei datae contra formam dona∣tionis, &c. Lawyers in their Books make mention of three kindes of Warranties, viz. Warranty lineall, Warranty collaterall, and Warranty which commences by disseisin. The first is when one by Deed bindeth both him∣self and his heires to Warranty, and after death, this warranty discendeth to and upon his Heire. The second is in a transverse, or o∣verthwart line, so that the party upon whom the warranty descendeth, cannot convey the title which he hath in the Land, from him that was the maker of the Warranty. The third and last is, where a man unlawfully en∣treth upon the Freehold of another, thereof disseising him, and conveyeth it with a war∣ranty, but this last cannot barr at all. Of these, you may read plentifull and excellent matter and examples in Littletons Chapter of Warranty, and Sir Ed. Coke, learnedly com∣menting upon him, to whom for further il∣lustration hereof, I referr you, as also unto Master Cowels interpretation of words in the title Warranty, who there remembreth divers

things very worthy observation concerning it. Before I come to the fifth part of the Deed of Feoffament, give me leave to observe that a Warranty alwayes descendeth to the Heire at the Common Law, and followeth the E∣state (as the shadow the substance) and whensoever the Estate may, the Warranty may also be defeated, and every Warranty (as saith Sir Ed. Coke) which descends, doth descend to him that is Heire to him which made the Warranty, by the Common-Law.

And moreover it is to be noted, as may be gathered from what hath been formerly said, that an Heire shal not be bound to an express Warranty, but when the Ancestor was bound by the same Warranty, for if the Ancestor were never bound, the Heire shall never be charged. And I remember I have read a case in Br. abr. 35. H. 8. pl. 266. to this purpose. Si home dit en son garrantie, Et ego tenementa praedicta cum pertinentiis praefato A. B. le donee warrantizabo, & ne dit, ego & haeredes mei, il mesme garrantera, mes son heire nest tenus de garranter, pur ceo que (Heires) ne sont expresse en le garran∣ty. B. garr. 50. So I will forbeare to speake any further herein, being a very intricate and abstruse kinde of learning, requiring the pen of a most cunning and experienced Law∣yer

and now I address my self to the fifth orderly, or formall part of the Deed of Fe∣offament