wards have a warrantia chartæ, or vouch again, for by the judg- Process against ment, he has got the benefit of the warranty. (a) There must the vouchee. be nine returns between the teste and the return of the summoneas ad warrantizandum.(b) Upon the return of it, the vouchee may be essoigned. (c) If the vouchee be an infant, the parol may demur till his full age. (d) If the tenant allege him to be an infant, which the demandant denies, a writ of summoneas ad visum issues, to which if nihil be returned, and the vouchee do not appear, an alias, pluries, and sequatur sub suo periculo follow, and if the vouchee still neglect to appear, there shall be judgment for the demandant; should the vouchee appear, and be adjudged upon view to be of full age, a summoneas ad warrantizandum goes against him, followed by the usual process. (e) At common law, when the tenant in a real action brought in London, or other particular jurisdiction, vouched, and prayed that the vouchee might be summoned in a county out of the jurisdiction, great delay was occasioned by this foreign voucher; to remedy which it was enacted, by the statute of Gloucester, 6 Ed. 1, c. 12, that the tenant may have a summons out of Chancery, to summon the vouchee to appear in the Common Pleas, and a recordari to remove the record into the same court, and that when the warranty is determined there, the record shall be remitted to the inferior court; and if the demandant recover, the tenant shall have a writ out of the Common Pleas, to extend and value the land, and execution into the foreign county to recover in value. By stat. 9 Ed. 2, the inferior court shall adjourn the parties before the justices of the Common Pleas, at a certain day, and the summoneas ad auxiliandum shall issue out of that court, and not out of Chancery; and if the tenant make default at the day given in bank, a petit cape shall be awarded to the inferior court, to give judgment upon the default. The statute of Gloucester, though it only names London, extends to other privileged places, as Chester, Durham, Salop, &c. If the vouchee Infant. Foreign vouchee. Process against vouches over in bank, the justices of C. P. may award process the vouchee. against the vouchees, toties quoties; the tenant may be essoigned in bank, and the demandant if he make default, nonsuited. If the husband and wife vouch, and the husband make default, the wife may be received in C. P.; but none can plead in chief, exForeign vouchers in Wales are By what warranty, the vou chee after entry may be bound. Proceedings after voucher. cept in the inferior court. (a) regulated by the statute 34 and 35 H. 8, c. 26, s. 88. If a man has been vouched generally, when he comes in, he may be bound to warranty, either by his own deed (b), or by the deed of his ancestor (c), and if he vouched as son and heir of A., yet he may be bound by his own deed (d), or by the warranty of another ancestor than A. (e) If an infant be vouched as heir to J. S., and it is prayed that the parol demur, the vouchee cannot be bound by his own deed, though he may by the deed of another ancestor than J. S. (f) When the tenant vouches and shews cause, he cannot bind the vouchee for any other cause. (g) If two are vouched, and one shews that he was within age at the time of the warranty being made, yet the other may be bound to the warranty alone, for each binds himself to warrant the whole. (h) When the vouchee enters into the warranty, he stands in the place of the tenant, and the demandant counts against him, de novo, as against the tenant. () To this declaration the vouchee may plead in abatement, as that the demandant is outlawed, &c. (k), or he may plead in bar any pleas which were in esse, and which the tenant might have pleaded at the time of the voucher. (1) He may likewise plead some pleas, which the tenant himself could not have taken advantage of, as when a præcipe quod reddat is brought against A., who vouches B., who enters into the warranty, and afterwards the demandant releases all his right to A., the latter cannot plead this release, for the continuance in court is now between the demandant and the vouchee; but when the demandant counts against the vouchee, the latter may plead this release, or may plead a release to him- Proceedings self, made after he entered into the warranty, for he is now after voucher. tenant in law of the land. (a) The tenant also may plead certain pleas in abatement after voucher. (b) voucher. If the demandant counterpleads the voucher according to Judgment upon the statute, and the issue is found for him, it is peremptory upon the tenant, and the demandant shall recover the land. (e) Judg- Upon issue on ment for the tenant is that the voucher stand. (d) counterplea to the voucher. On demurrer to counterplea. If, instead of taking issue on the counterplea, the tenant demurs to it, and it is adjourned to another term, and the counterplea adjudged, the judgment against the tenant is peremptory as it is said, on account of the delay, in the same manner as if issue had been taken, and a trial had, and the demandant shall recover the land. (e) If the counterplea is adjudged good, the same term, the tenant may plead over, for this judgment is not peremptory (ƒ); but it is said that he cannot vouch again. (g) If the tenant vouches, and the demandant instead of counter- On demurrer to pleading, demurs to the voucher, the judgment against the tenant is peremptory, for the voucher is given in lieu of an answer. (h) So it is peremptory, if the demandant demurs, because the tenant has not shewn cause of voucher, when he ought so to have done. (i) voucher. At common law, if the tenant vouched, and the vouchee On issue between counterpleaded the warranty, and issue was taken and found the tenant and 'for the tenant, the judgment was only that the vouchee should vouchee. warrant (k); but by statute Westminster 2, c. 6, the judgment in such case is made peremptory, that the demandant recover against the tenant, and the tenant against the vouchee. (7) So if the vouchee enters into the warranty, and demands of On demurrer bethe tenant what he has to bind him to warranty, and the tenant tween the tenant shews special matter, upon which the vouchee demurs, it is within and vouchee. the statute of Westminster 2, c. 6, and the judgment is peremp tory. (m) (a) Jenk. Cent. 100, Booth, 47. (b) Thel. Dig. 1. 14, c. 7. Com. Dig. Abatement, (1. 28). (c) Br. Ab. Voucher, 102, but see 2 Rol. Ab. 769, 1. 33; and quere. (d) 2 Rol. Ab. 770, 1, 3. (e) 2 Inst. 243. 2 Rol. Ab. 769, 1. 36, but see Jenk. Cent. 306. (f) 2 Inst. 243. Br. Ab. Peremp. 82. (g) 2 Inst. 243. (h) 2 Rol. Ab. 769, l. 46. (i) Ibid. 1. 50. (k) 2 Rol. Ab. 770, l. 8. (1) Ibid. 1. 14. 2 Inst. 366. (m) 2 Inst. 366, but see 2 Rol. Ab, 770, l. 16. Judgment upon voucher. In dower. Recovery in value. If the tenant in a writ of dower vouches the heir of the demandant's late husband in the same county, who enters into the warranty, the demandant may, as it seems, suggest that the heir has assets by descent in the same county, and pray a conditional judgment against him, if he has such assets, and if not, against the tenant. (a) So if the heir enters into the warranty, and pleads that he has no assets by descent, upon which issue is joined, the demandant is, as it seems, entitled to the same conditional judgment (b); but she must, it is said, wait until the issue is tried before she can have her dower. (c) If the issue is found for the tenant, she may then have execution against the heir; if found for the heir, against the tenant. If the heir, who is vouched, has no assets in the county in which the action is brought, the demandant can only have judgment against the tenant. (c) Whenever a man has bound himself to warrant lands, he may be compelled to render to the party, to whom he has warranted them, a recompence in value, or, as it has been expressed, warranty implies in itself recovery in value (d); and in a real action in which damages are recoverable, they also shall be recovered from the vouchee. (e) It has been said, that in certain cases an implied warranty is created by tenure and rent. On this account the tenant for life, rendering rent, may vouch the reversioner of whom he holds, and recover in value against him. But if he vouches the remainderman, he cannot recover in value, for he does not hold of him, and it is not reasonable that the latter should render in value to one, who performs no services to him, nor can the tenant by the courtesy recover in value, for he does not hold of the heir, but of the lord paramount. (f) It seems, however, that in the two latter cases, though there can be no recovery in value, voucher will lie in lieu of aid-prayer. (g) Execution cannot be sued by him, who (a) Bedingfield's case, 9 Rep. 17, b. (b) Gray v. Williams, Dyer, 202, b. vouches, against the vouchee, before execution is sued against Recovery in himself. (a) If two are vouched as heir, and one has lands by descent in possession, and the other has nothing, the tenant shall recover all against him, who has by descent (b); and if two coparceners are vouched, and the one makes default after default, by which the demandant has judgment against the tenant for a moiety, and the tenant over against her who made default, if the other coparcener afterwards loses, and has no assets, the tenant shall recover in value against her, who first made default, so that the first judgment shall charge her. (c) It is a general rule, that when the process against the vouchee has not been served, the tenant cannot recover in value against him, because never having been summoned, it does not appear that he has any assets; but if any one writ in the process to bring him in has been served, and he has made default, the tenant may then recover in value. (d) value. Against one when two are vouched. When the pro cess served, and when not. recovered. The tenant is only entitled to have execution of the land, What shall be which the vouchee had at the time of the voucher, and therefore it may be expedient to bring a writ of warrantia chartæ which will bind the vouchee, in case he shall afterwards alien the lands. (e) The heir is only bound to render a recompence in value to the amount of the lands descended to him from the ancestor, who made the warranty. Therefore, where the father makes a warranty and dies, and the grandfather dies, seised of other lands in fee, the son is immediate heir to the grandfather, and shall not be bound by the warranty of the father, to render these lands in value, of which the father was never seised. (f) Where the warranty arises upon an exchange, no other lands can be recovered in value, but those which were given in exchange. (g) If a warranty be made to tenant for life, to him and his heirs, yet he shall recover in value an estate for life only, for the warranty cannot enlarge the estate, and the recovery ought to be according to the estate. (h) So if the warranty had been to him and his heirs for his life (i), but if a man is seised in fee, and (a) Co. Litt. 376, b. (b) 2 Rol. Ab. 770, 1. 38. Vin. Ab. Voncher, (L. b). (c) 2 Rol. Ab. 770, l. 40. (d) Br. Ab. Sequatur s. s. p. 5. Recovery, 40, 56. Ante, p. 268. (e) F. N. B. 134, K. 2 Rol. Ab. 772, T 1. 3. Ante, p. 143. (f) Br. Ab. Assets, 19. (g) Bustard's case, 4 Rep. 121, a. (h) Br. Ab. Recovery in value, 9. |