Les termes de la ley; or, Certain difficult and obscure words and terms of the common laws and statutes of this realm now in use, expounded and explained Now corrected and enlarged. With very great additions throughout the whole book, never printed in any other impression.

Garranty.

GArranty is, when one is bound to another who hath Land, to warrant the same to

him; which may be two ways: that is, by Deed of Law; As if one and his Ancestors hath held Land of another and his Ancestors, time out of mind, by Homage, which is called Homage Auncestrel: Or by Deed of the party, who grants by Deed or Fine to the Tenant of the Land to Warrant it to him; upon which, if the Tenant be impleaded by him who ought to warrant or his Heirs, the Tenant shall bar the Deman∣dant by pleading the Warranty against him, which is called Rebutter; or if he be implead∣ed by another in an Action wherein he may vouch, he shall vouch him who warranted; or his Heirs, and if the Plain∣tiff recover, the Tenant shall recover in value against the Voucher.

Garranty is of three sorts; that is, Garranty Lineal, Garranty Collateral, and Garranty that be∣gins by Disseisin.

Warranty Lineal, is, where a man seised in fee or in tail, makes a Feoffment to another, and binds him and his heirs to Warranty, and hath issue a son, and dies, and the warranty dis∣ceuds to his son. For if no Deed with Warranty had been made, then the right of the Lands should have discended to the son, as heir to his father, and he shall convey the Discent from the fa∣ther to the son.

But if Tenant in tail dis∣continues the tail, and hath is∣sue,

and dies, and the Vncle of the Issue releases to the Dis∣continuee with Warranty, &c. and dies without issue; this is a Collateral Warranty to issue in tail, for that the Warranty di∣scends upon the Issue, who may not convey himself to the tail by mean of his Vncle.

And in every Case where a man demands Lands in Fee∣tail by Writ of Formedon, if any Ancestor of the Issue in tail makes a Warranty, and he that sues a Writ of Formedon, by possibility of matter that may be done, conveys to him Title by force of his Gift that made the Warranty, &c. that is then a Lineal Warranty, whereby the Issue in tail shall not be bar∣red, except he have Assets to him discended in Fee-simple. But if he may not by any possibility convey to him Title by force of his Gift that made the warranty, then that is a Collateral Warranty, and there∣by the Issue in tail shall be bar∣red without any Assets. And the cause that such a Collateral Warranty is a Bar to the Issue in the tail is, for that all War∣ranties, before the Statute of Gloucester, which discended to those who are Heirs to the war∣rantors, were Bars to the same Heirs to demand any Lands, except the warranties that be∣gan by Disseisin; and for that the said Statute hath ordained, That the warranty of the Fa∣ther shall be no Bar to his

Son for the Lands which come by the Heritage of the Mother, nor the Warranty of the Mo∣ther shall be no Bar to the Son for the Lands which come by the Heritage of the Father; and neither the Stat. 11 H. 7. cap. 20. nor any other Statute, hath ordained any remedy against a∣ny other Collateral Warranty; therefore such Warranty is yet in force, and shall be a bar to the Issue in tail, as it was before the Statute.

And it behoves that every Warranty, whereby the Heir shall be barred, discend by course of the Common Law to him who is Heir to the War∣rantor; else it shall be no Bar: for if the Tenant in Tail of Lands in Borough English, where the youngest son shall Inherit by the Custome, dis∣continues the tail, and hath Is∣sue two sons, and the Vncle re∣leases to the Discontinuee with Warranty, and dies, and the younger Son brings a Formedon; yet he shall not be barred by such Warranty, causa qua su∣pra. And if any man make a Deed with Warranty, where∣by his Heir should be barred, and after the Warrantor be attaint of Felony; his Heir shall not be barred by such Warranty, for that such Warranty cannot di∣scend upon him, the blood being corrupt.

Warranty beginning by Dis∣feisin is, if the son purchase Lands, and let them to his

Father for years, and the Fa∣ther by the Deed infeoffs a stranger, and binds him and his Heirs to Warranty, and the Fa∣ther dies, whereby the warran∣ty discends to the son; yet this warranty shall not bar the son, but the son may well enter not∣withstanding, because this Warranty began by Disseisin, when the Father made the Feoffment, which was a Dis∣seisin to the son. And as it is said of the Father, so it may be said of every other Ancestor. And the same Law is, if the Ancestor be Tenant by Elegit, or by Statute-Merchant, and make a Feoffment with war∣ranty, such Warranties shall be no Bars, because they begin by Disseisin.