Amicus reipublicæ. = The Common-Wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. With many other things very considerable for the good of the publick. All which are fully controverted and debated in law. By John March of Grayes-Inne, barister.

Whether Collateral Warranty stands with reason and conscience, or no?

ANd first I shall let you know what a collateral Warranty is; that you may the better understand the reason of this question. A col∣lateral Warranty is thus; where a collateral Ancestor; as an Uncle, re∣leases to the discontinuee or disseisor of Lands in tail, with Warranty and and dyes, this barres the Heir in tail, because the Warranty descended up∣on him, who cannot derive any title from the Uncle; and though the Warranty descends lineally; yet it is said to be collateral, because the An∣cestor is collateral to the title.

But to make the case more plain, I shall put one case out of Littleton. Sect. 709. If Tenant in tail discon∣tinues the tail, and hath issue and dies, and the Uncle of the issue re∣leases to the discontinuee with War∣ranty,

&c. and dies without issue, this is a collateral Warranty to the issue in tail, because that the Warranty de∣scended upon the issue, who cannot convey himself to the tail by means of his Uncle. And you must know, that this Warranty is a barre with∣out any assets, or Estate descended from him that made the Warranty, which is the great extremity of the case.

The reason that my Lord Cook gives, why the Warranty of the Un∣cle, having no right to the Land in∣tailed, shall barre the issue in tail is, because that it is presumed that the Uncle would not unnaturally dishe∣rit his Lawfull Heir being of his own bloud, of that right which the Uncle never had, but came to the Heir by another mean, except that he would leave him greater advancement. Ne∣mo praesumitur alienam posteritatem

suae praetulisse. No man is presumed to preferre anothers posterity before his own. And in this case he fur∣ther saith, that the Law will admit no proof against that which the Law presumes. And so of all other col∣lateral Warranties, for no man is presumed to do any thing against na∣ture. It is well that my Lord Cook will offer some reason for it; it is more than I find in D. S. lib. 1. cap. 32. for he saith, it is a barre in Law and conscience, because that it is a Maxim.

But now let us examine the rea∣son of my Lord Cook, and see whe∣ther it doth stand with conscience, reason, and the good of the Com∣mon-wealth; for my part, I judge not that to be Law, nor worthy so to be considered, that is unreasona∣ble, unconscionable, and against the common good.

It is an unreasonable and uncon∣scionable Law, that a collateral An∣cestor who cannot claim any right to the Land, should have power to barre me that am the Heir to it by his release, and this is a case much more extream then that of recove∣ries, in some sence, because the Uncle is a meer stranger, as to the Estate, and this is against the rule of Law, that Acts done by strangers should prejudice a third person.

Yes, but saith my Lord Cook it is presumed, that the Uncle would not disherit his Heir of that, which he had nothing to do with, nor could not pretend any right to, except that he would leave him a greater ad∣vancement, and no proof must be against this presumption.

A very strange presumption, How many Uncles might a man find in this age, who for a small sum of mo∣ney,

would not care to disherit twen∣ty Heirs, if possibly so many could be, without the least scruple of con∣science; who neither have, nor con∣sider of any other advancement to leave them.

But there is a strong block in the way; for against that presumption there must be no proof; so that if he leave no Estate or other advance∣ment, it is all one as if he did, it is presumed he will, though happily it is known, he neither doth, nor can; and that is sufficient to disherit his Heir.

Yet the rule of Law is, Stabitur praesumptioni donec probetur in contra∣rium, the presumption is to be al∣lowed, till the contrarie be preved, but no longer: and certainly if ever there were an unreasonable ex∣ception to any rule, this may pass for one.

My Lord Cook saith, that it hath been attempted in Parliament, that a Statute might be made, that no man should be barred by a collateral Warranty, but where assets descend from the same Ancestor, but it ne∣ver took effect, because saith he, that it would weaken common assu∣rances, Rot. Parliament. 50. E. 3. Num. 77.

This is a reason urged in defence of common recoveries likewise, the English of it is but this, I may barre another man of his just and Lawfull right, to fortifie a wrongfull title; otherwise it would weaken common assurances; I know no reason, but mens rights should be as much fa∣voured as common assurances; an Heir as much as a purchasor. To conclude, I wish a second attempt were made in this present Parlia∣ment, against these collateral War∣ranties;

and then I should not despair of redress of so unreasonable a Law, The next thing I am to treat of, is, Pleadings, and therein I shall pro∣pound this question.