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Westm̄. 1. cap. 39. In mortdauncestor nu∣per obijt, intrusion, or other such like writs in which land is demanded which should defend, couert, remaine, or eschete, after the death of any ancestor or otherwise, if the tenant vouch, it is a good counterplea to say that the tenant or his ancestor was the first
that entred after the death of him of whose seisin he demands, vnlesse the vouchee bee readie, who if he vouch ouer, the demaun∣dant shall haue his counterplea.
Also in a writ of Entrie in the degrees none shall vouch out of the line. Also in writs of right or of possession (as before) that is a good counterplea, that the vouchee nor his ancestor had neuer seisin of the land or any thing in the seruices by the hand of the Tenant, or his ancestors from the time of the seisin whereof the defendant de∣clares till the writ purchased, so that hee might a feoffement make vnlesse the vou∣chee be present, who if he vouch ouer, the demaundant shall haue his Counterplea. But warrantie of charters lyes in these cases.
20. E. 1. Stat. de vocat̄. ad warrant̄. This Counterplea of voucher that the vouchee nor his ancestors had neuet any thing, so as he could a feoffement make with warranty shall be receiued, although the vouchee be readie to enter into warrantie.
14 E. 3. cap. 18. If the tenaunt voucha dead man, the demandant may auerre he is dead, or there is none such.
Westm̄. 2 cap. 6. If the vouchee counter∣plead the warrantie, and it be found against him, he shall lose the land. Where the vou∣chee * 1.1 losing the Tenant shall recouer in va∣lue
against him any hereditaments that he had at the time of the voucher. And there∣fore a voucher is in liew of an action where the originall processe is Somons ad warran∣tizandum (or (a) 1.2 if one bee vouched within age a Somons ad habendum visum first, and being awarded of full age, then a Somons ad warrantizandum, if he be awarded within * 1.3 age the parroll shall demurre) and a Grande Cape ad valentiam. If the sommons ad war∣rantizandum or habendum visum, alias, and pluries, be not serued, then a sequatur sub suo periculo is to goe forth. And if the tenant cannot get that serued, he loseth his war∣rantie. Therefore it is sub periculo of the te∣nant. And if vpon vouching of an heire the * 1.4 Sequatur sub suo periculo be returned nihil in the land by descent, but that he was som∣moned in land that he had purchased, the tenant loseth his warrantie, for the som∣mons must be in lands descended. But if the Sequatur sub suo periculo, or the Cape ad valen∣tiam * 1.5 bee returned serued, there the Tenant shall recouer in value.
But in exchanges the hereditaments are lyable from the verie time of the Ex∣change.
In partition among coperceners, from the death of their ancestor. So as the wiues dower whom he taketh before any voucher by reason of such an (a) 1.6 exchange, or whom a (b) 1.7 coparcener in gauell kind marrieth at any time, shall be defeated vpon a reco∣uerie in value or pro rata, for so is the reco∣uerie
in value called in the case of copar∣ceners.
F. N. B. 134. k. 22. H. 6. 22.
45. E. 3. 23. 14. H. 6. 2. Br. Seq sub, &c. 3.
(b) Old N. B. 1•• Old N. B. ibid.
13. E. 3. Iudgement 117
3. H. 7. 13. Br. re∣c••••. en value 40.
Park. 61. ••.
Park. ibid.