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I am of opinion, that if a man convey land to me and my heirs with warranty, and I make a feoffment or levy a fine, or suffer a recovery without vouching my feoffor, to the use of myself and my heirs, that yet I may vouch my feoffor, as I might do before, for this is my old fee simple, in the same degrees and privity in effect, as before.

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Warrant.Chart.

B. 24. Vouchp. 59. 35. p. 33. er 266. Dy. 12. Br.46. Kel. 32.

143. p. 55. Aid.

b. 71, 122. b.

Count plea de
Counterp.

voucher 51.

d'aid, 7. Assets per B. 1.

102. 13 Co. 5.b.

L. 23. a. 2 Ro.

tion, B. 62.

And therefore if I have lands, that I hold in knight's service, by priority and posteriority, and do make one joint feoffment of them to mine own use, yet the priority shall remain as before, according to the former priority; Apr. 280. 1 Co. for it is actum agere, as it is holden in the case of the Ap. 31, 53. Co. abbot of Bury, for the wardship of the heir of Bokenham. 37. PresentaDyer 288. fo. 11. A. 12. B. But this case of priority is Wast. Br. 112. there cited, as a case ruled between the Lord Ross and Mo. 285. 1 Cr. 24. Dy. 287. p. the Lord Dacres, for the wardship of the heir of Consta- 13. 259. p. 20. bles, for it was holden that the new use and state was in degree the same as before. And so the principal case there is, and if I enfeoff I. S. to the use of himself in tail, the remainder to mine own right heirs, this is a reversion. Quo Warranto, B. 6. Redend, B. 17. Resceit, Alienation, B. 8. Devise, B. S. Devise, B. 8. Statute Mer

B. 57.
chant, B. 5. Tail, B. 32.

Co. L. 22. b.

Livery B. 61.

Sever. Præ

cipes, B. 1.

who had been

before.

This point is clear in case of a recovery upon a title, To the fourth so it is also in case of a state truly in the post, as tenant Osborn in a point of suing in courtesy, dower, lord of a villain, or by escheat. But if Warr. Char. one levy a fine to me in fee, with warranty to me and my vouched once heirs, and I suffer a common recovery against me to mine own use, as before, my warranty remains, for I am in by him, as I was in before; and if the warranty were to me, my heirs and assigns, and I suffer the recovery to the use

of a stranger, he, shall vouch my feoffor as my assignee; Mo. 859. Mod. for common recovery is indeed an assignment.

As to the point of vouching Osborn, or suing warrantia of charters against him, having formerly vouched him, and had judgment and recompense; it is clear he cannot have recompense again, for the warranty is executed, satisfied, and served in the first; as in a scire facias to execute a fine, it is a bar to plead, that it is executed already, and that the demandant, or his ancestors, have been

193.

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Co. L. 393. a. 102. a.

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2 Saund. 180. Ante,3 g. Yelv. 139. 1 Roll. Rep. 25. 1 Roll. 353.

seised by force of the fine. 23 E. 3. F. Garr. 77, express. If I have recovered in value, I shall never vouch again for those lands by force of the first warranty, because it was once executed. And by the same reason, if I once have had judgment to have value upon a warranty, I shall not vouch again upon the same warranty for the same land.

And if you will reply to me, that the warranty in question is by Osborn and his wife, and the former voucher was of the husband only; I answer, that then it must be understood that they are two several warranties, and then in vouching the husband only he renounceth the warranty of him and his wife, as after shall be shewed; but it cannot be said in this case, that the warranty by the wife should be void, or so supposed, as in the case 10 E. 3. 52. where warranty upon a lease being made to the husband and the wife, the husband alone vouched over, and averred that the wife had nothing, and therefore the warranty was void unto her, which is also the reason in the judgment of the case of Eare and Snow, Plow. 540. That the common recovery against tenant in tail, and his wife having nothing, shall bind the tail. But where the woman warrants on the contrary part, she is bound though she hath nothing; yet it is true, that to several respects, a warranty may receive several satisfactions by parcels, but not totally. And therefore, Hill. 5 Jac. Regis, Rot. 941, in the King's Bench, the case was this; that one John Rudge did grant certain lands in South Molton in Com. Devon. unto John Pincombe, for his life, in the fifteenth year of Elizabeth; and in the thirtieth year demised the same unto one William Hunt for twentyone years, to begin after the death of the same John Pincombe, and after, 32 Elizabeth, granted the reversion of these lands unto Amy Pincombe and others for their lives, with this express clause of warranty following, And the said John Rudge and his heirs, all the premises unto the said Amy, against all persons claiming by the said John, his ancestors or heirs, shall and will warrant, acquit, and defend during the said term.' John Pincombe at

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torned and died; Amy and the rest entered, upon whom William Hunt the lessee entered, whereupon Amy and the rest brought their action of covenant against John Rudge, to the damage of £200; and the defendant pleaded in bar, that the plaintiff had formerly brought a warrantia charte against him upon the said warranty for the same land, and that it was yet hanging undetermined; and the plaintiff demurred in law. And it was adjudged for the plaintiff; and upon a writ of error brought in the Exchequer Chamber, the former judgment was affirmed; the reason was, that though the warranty was annexed to the freehold, yet because the impeachment was only by a lease for years, for which there could neither be voucher nor warrantia chartæ, nor if judgment had been given in the warrantia chartæ, could any execution be made in value for such a lease, therefore it was holden as a warranty real, if the freehold were brought in question. But when a lease for years is in question, taken out of the freehold, it is to be used as a personal 1 Saund. 180. covenant, and to be satisfied in damages.

accord.

Out of which judgment it appears, that it was allowed 2 Ro. 810. by both courts, that a warranty of charters will give remedy for a state of freehold defeated by entry; and that a warranty may have a double execution for several estates, and that a warranty of itself real may be used as a covenant to recover damages; and by the same reason, if a man convey lands in fee with warranty, and the tenant bring a warrantia charte, and hath judgment pro loco et tempore, and then a stranger recovers an estate for term of life, he shall sue an execution for recompense for such estate; and if he die, and another recover another estate Co. L. 383. for life, he shall sue another execution for like recompense; for his recompense shall be according to his loss, as the books before cited do prove; for he loseth not the land warranted, but some less estates out of it, and so the inheritance of the warranty remains still with the inheritance of the land. But if once a whole fee simple be recovered, and recompense for it, then the warranty is wholly executed and satisfied, and so extinct,

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Point to the

fifth, viz. of di

vers warranranties.

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This is true in case of a recovery and voucher proper and bona fide; but if the case be, for example, that tenant in tail, the remainder or reversion levy a fine to me and my heirs with warranty, and then I suffer a recovery to bar the remainder, and vouch the tenant in tail as I must, and so the recovery passes with his ordinary judgments, and after a stranger sues me for the land upon title; in that case and the like, I hold that I may vouch my conusor again, for the other is known in law and to the court to be a feigned recovery, and by consent, and to be but part of the assurance of the land between the parties, to bind the remainder or supposed remainders, and not in execution of the true intent of the warranty. So there are covenants for recoveries with double or single voucher, and such would be admitted though there were no warranty at all.

But now of the other point.

If the Osborn vouched in the common recovery shall be understood another Osborn, and not the same Osborn, then it must be understood, that Rolle the plaintiff had several warranties against several persons, and then, when an action was brought against him, he could not have advantage of both, but must hold himself to one. And therefore, 9 H. 5. 12. one brought a scire facias upon fine, as heir to two parceners; the tenant pleaded in bar a fine levied by the two parceners with warranty, and relied upon the warranty, and the plea was holden double, and he forced to rely upon the warranty only of one. And so likewise 31 E. 3; Fitz. Voucher 25. If one have divers warranties, and they fall by descent upon a person, heir unto them both, yet he must be vouched only as heir unto one; and the reason is apparent, (whether you regard the demandant or the vouchee ;) for as to the demandant it is a kind of plea in bar, and therefore ought to be single, for the demandant may counterplead the possession of the vouchee and his ancestors, which they cannot do if they be divers.

And again, the voucher of the tenant against the vouchee is a kind of demand or suit, and therefore ought

to be single, and the vouchee may counterplead the lieu, which he cannot do if they be divers. Hereof it followeth, that when he hath his choice of vouchers, and takes him to be one, and thereupon proceeds to judgment, he loseth the other and can never resort to it again. As in case of divers pleas in bar, where the actions come to a final judgment upon one. But if a man have divers warranties for the same lands, he may have several writs of warranty of charters, and judgment upon them; and so is Fitz. N. Br. 135. I. and that may give him double remedy, or not, as the case may be; for if he be after sued for that land in an action wherein he may vouch but one, then he can never take advantage against the other, because he did not vouch him according to the former rules. But if he be sued in an action, wherein he cannot vouch, but may require plea, and he doth require plea of them both, and they both advise one plea, and he plead that, and lose, he shall have several recompense against either; but if they advise several pleas, he can have no recompense but against him whose plea he followed. But if the land be not recovered against him by action, but by entry upon an eigne title, then he may sue several executions upon the several judgments in the writ of warrantia chartæ against either of them for full récompense, and so he shall have double value for his loss for either of them warranted the whole, and neither of them hath color to pray aid, or make use of the recompense that the other hath yielded for his own ease.

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COUNDEN VS. CLERKE.

A devise to the testator's son and heir, and if he die without issue, then over, passes an estate tail to the son.

He who would take by a devise to the right heirs male and posterity of the testator and his name forever, must be both heir and male.

A devise in fee simple to a person who is the devisor's next heir and his heirs, or to his son and heir and his heirs, is void, and the land passes by descent.

Warranties and estoppels always descend upon the right heirs general, and not to the heirs in gavelkind, Borough English, &c.

If a man having land in Borough English, or on the part of his mother, make a feoffment to the use of himself and his heirs, or upon such feoffment reserve a rent to himself and his heirs, it will descend to his heirs at common law.

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