inquisition aforesaid, in form aforesaid, found; and it is CARESWELL & another v. further considered, that the said William Vaughan do recover VAUGHAN. against the said Eleazer Careswell and Lodwick Owen, 6l. 13s. and 4d. adjudged to the said William Vaughan by the court of and costs. E Careswell and another against Vaughan. RROR brought by Careswell and Owen against Vaughan, to reverse a judgment given, in the great sessions of Merionethshire, in Wales, in which Vaughan was demandant, against Careswell and Owen, by a writ of quod ei deforceat, on the statute of Ruthland of 12 Edw. 1. which is not in print (3), (3) It is now printed in the appendix to Ruffhead's edition of the statutes; the title of the writ is, "Breve commune, quod in aliquo casu tangit jus, et in aliquo possessionem ;" and the form of it is, "Rex vicecomiti salutem; Precipe A. quod juste et sine dilatione reddat B. manerium de N. cum pertin. quod predictus A. ei deforceat, ut dicit, et nisi fecerit, et predictus B. fecerit te securum de clameo suo prosequendo, tunc summoneas per bonos summonitores predictum A. quod sit coram justiciario nostro, ostensurus quare non fecerit. Et habeas ibi sum. et hoc breve. Dat. &c." or thus, "Precipe A. quod juste, &c. reddat B. tantum terræ cum pertin. in N. ut supra." It was said by Needham, who had been justice of Chester, that a quod ei deforceat is usual in Wales, and the demandant may count in the nature of what action he will in a plea of land by custom there. Case 3. S. C. 1 Mod. 7. 2 Keb. 553. 563. 574. 603. Mistakes of reddat and messuagium instead of reddant and me Bro. Quod ei deforceat, 9. cites 2 Edw.4. 11. It is therefore held to be in the nature of a writ of right for tenant in fee simple. 5 Rep. 85. b. Penryn's case. Cro. Car. 179. Gryffyth v. Jenkins. Or of a formedon for tenant in tail. Ibid. 444. Gryffyth v. Lewis; or it may be brought by tenant for life, ante 30. tenant by the curtesy or in dower; for the statute of Ruthland appoints a general writ, and directs the demandant to make his protestation to sue in the nature of what writ he pleases, and extends as well to real actions at common law before the 12 Edw. 1. as to such as are given by statutes since. Cro. Car.445. Gryffyth v. Lewis. S. C. Sir W. Jones, 380. 381. Plow. 126. b. Buckley v. Thomas. And therefore a quod ei deforceat given by the statute of Westminster 2. (13 Edw. 1.) c. 4. to tenant in dower, tenant in frank marriage, for life, or in tail, who lose their lands by default, is VAUGHAN. amendable by the statutes of 8 H. 6. c. 12. and 15. the proviso in the last CARESWELL (see Cro. Car. 445,) and made protestation to prosecute it in & another v. the nature of a writ of entry in the quibus(4), in nature of an assize of novel disseisin at the common law, and counted acsuagium, and a cordingly: the tenants pray judgment of the writ, because superfluous &c. in a writ of quod in the writ it was he render, whereas it should be they render, ei deforceat, are in the plural number; and because there was the word messuage, whereas it should be mesuage; and further, because there was a superfluous &c. in the writ; upon which there was a demurrer; and after several continuances, the writ was adjudged good, and a respondeas ouster awarded: and then the tenants vouch one Snell, of the county of Cornwall, "who has no lands or tenements in the county of Merioneth, but only in the county of Cornwall, summoned in the county of Cornwall by aid of the court of our lord the king, &c." and after some continuances, the demandant said that the tenants ought not to be admitted to such vouching of the said John vouches, and de- Snell to warranty (5), because he says that the said John Snell statute, that it into Wales, being annulled by shall not extend 27 H. 8. c. 26. If in a quod ei deforceat in Wales, in which the tenant ought not to vouch, he nevertheless 66 within it. Ibid. So a common recovery may be suffered of lands in Wales upon this writ of quod ei deforceat. 1 Lev. 130. Winne v. Lloyd. (4) If the writ of entry be upon a disseisin by the tenant himself to the demandant or his ancestors, it is in the nature of an assize, and is called a writ of entry in the quibus. F. N. B. 442. 7th edit. If it be upon a disseisin by any person under whom the tenant claims, it is a writ of entry in the per. Ibid. D. If upon a disseisin by B. to whom A. owes title, by whom the tenant claims, it is in the per and cui. Ibid. If upon a disseisin beyond these degrees, it is a writ of entry in the post. Ibid. See Booth. 172, 173. and 3 Black. Comm. 180, 181, 182. (5) A warranty is defined by Lord Coke to be a covenant real annexed to lands, whereby a man and his heirs are bound to warrant the same, and either upon voucher, or by judgment in a writ of warrantia carta, to yield other lands to the value of those that shall be evicted by a former title: Co. Litt. 365. a. Warranty is either express or implied. An express warranty can only be made by the word warrantizo. Lill. sect.733. Co. other great sessions, it is petenant, though the voucher was illegal. remptory on the * [ 39 ] is not named in the said writ, wherefore he prays judgment CARESWELL if the said (tenants) ought to be admitted to such voucher to & another v. VAUGHAN. warranty, &c." upon which plea the tenants demurred in law and after several continuances the court below gave a murs to a counperemptory judgment against the tenants, viz. that the de- ter-plea to the voucher, and the mandant recover seisin of the land, and the tenants should be demurrer is ad*in mercy; and a writ of habere facias seisinam, and a writ of journed to aninquiry of damages for the mesne profits was also awarded. And thereupon the tenants (the now plaintiffs) brought a writ of error in this court, which was argued several times by Williams and Saunders, for the plaintiffs in error; and they contended that the original writ was bad for the exceptions above mentioned, and cited some cases where original writs had been abated for similar faults, as 18 Edw. 2. Fitz. Assize, 375., where a writ was debet and solet instead of debent and solent, and abated for that cause, which is the same case with the present, for here it is reddat instead of reddant; and in 27 H. 6. 2. 6. pl. 37. † a writ of assize was abated for the + Fitz. Brief omission of the word tunc; so 9 H. 7. ‡ 16. habeas ibi hac breve instead of hoc breve made the writ vitious, and it could not be amended; and they also urged that the statute 8 H. 6. c.15. for amending defects in records, &c. has an express proviso that it shall not extend to any process in Wales, so that it remains at common law; wherefore the justices in the great sessions had erred in awarding a respondeas ouster, for they ought to have abated the writ; but this objection was dis Ibid. But where two are jointly bound in an obligation, and one dies, the whole charge falls upon the survivor. Ibid. So with respect to the person to whom a warranty is made, it is held, that unless it be to another and his heirs, or in words which relate to heirs, as where lands are given to A. and his heirs, and the warranty is to him in formá predictâ, it extends only for life. Co. Litt. 47. [b] Where B., in a release, covenanted for himself and his heirs with A. and C., their heirs and assigns, that he and his heirs would warrant the land to A. and C. (omitting the words "their heirs and assigns,") against himself and 105. Bro. Brief 22. Bro. faux Latin 78. Ibid. Ibid. Obligation 71. Amendment 62. a. 384.b. 385. b. If a man warrant to B. his heirs and assigns, it extends to all assigns and their assigns toties quoties for ever. Co. Litt. 384. b. [b] So a warranty extends to an assignee of part; as where there is a feoffment in fee of two acres, with warranty to the feoffee, his heirs and assigns, if he make a feoffment in fee of one acre, the feoffee shall vouch as assignee. Co. Litt. 385. a. his heirs, and all other persons, and that A. and C. their heirs and assigns should peaceably hold, &c. this was held to be a warranty to A. and C., their heirs and assigns. 4 M. & S. 178. Doe v. Prestwidge. [ 40 ] CARESWELL allowed, for by the court it is amendable by the statute & another v. 8 H. 6. c. 12. by which it is enacted, "That for errors asVAUGHAN. signed or to be assigned in any record, process, or warrant of attorney, original writ or judicial, panel or retorn in any places of the same razed or interlined, or in any addition, subtraction or diminution of words, letters, titles, or parcel of letters found in any such record, process, warrant of attorney, writ, panel or retorn, which razings, interlinings, addition, subtraction or diminution at the discretions of the judges of the courts and places, in which the said records or process by writ of error or otherwise, be certified, do appear to be suspected, no judgment or record shall be reversed or annulled. And that the king's judges of the courts and places in which any record, process, word, plea, warrant of attorney, writ, panel, or retorn, which for the time shall be, shall have power to examine such records, process, words, pleas, warrants of attorney, writs, panels, or retorn, by them and their clerks, and to reform and amend (in affirmance of the judgments of such records and processes) all that which to them in their discretion seems to be misprision of the clerks in such records, processes, word, plea, warrant of attorney, writ, panel and retorn, (except appeals, &c.) so that by misprision of the clerk, no judgment shall be reversed or annulled." And though it was urged that this matter was not amendable in the great sessions, and the party there might take advantage of it by a plea in abatement; and that this court ought to give the same judgment as the great sessions should have given, which ought to be that the writ should abate, yet the court over-ruled the objection as already mentioned. Yet quare of this, for the court did not pay much regard to it; and the court further said, that now the statute of 8 H. 6. c. 15. was in force in Wales, by the statute 27 H. 8. c. 26. s.2. by which it is enacted, "that the laws, ordinances, and statutes of this realm of England for ever, and no other laws, ordinances, nor statutes, from and after the feast of All Saints next coming, shall be had, used, practised, and executed in the said country or dominion of Wales, and every part thereof, in like manner, form, and order as they be or shall be had, used, practised, and executed in this realm," by which statute the court thought that now the said proviso in the statute of 8 H.6. c. 15. was annulled, and that original writs may now be amended in Wales as well as in England, by force of the statute of 8 H. 6. c. 15.: and this seems to me the better rea case, 2 Bulst. therom. Plow. † Ante 32. note (1). son*; but the court did not pay much regard to any of the CARESWELL said matters, but over-ruled the exception as aforesaid. Then & another v. VAUGHAN. it was argued, that the court of great sessions ought not to have given a peremptory judgment on the demurrer to the 5 Rep. 49. b. counterplea of voucher; and this depends on the statute of Vaughan's Westminster 1. c. 40. which prohibits vouchers out of the 54. Hall v. Rolien (6) and gives a counterplea of voucher; and if it be 126. b. Buckley adjourned over to another day, it is peremptory against the v. Thomas. tenant, if the counterplea be adjudged against him; but here, they said, was no voucher at all, for in an assize of novel disseisin, or in a writ of entry in the quibus, which is in nature of an assize of novel disseisin, no voucher lies. F. N. B. Warrantia Chartæ, 134. 33 H. 6. 23. a. Bro. Voucher, 121. † And the reason is because the tenant is supposed to be in of his own wrong; and therefore the tenant is not suffered to put in such frivolous voucher; but if he do, it ought not to be peremptory any more than where a defendant delays the plaintiff by one or two general imparlances, or pleads a dilatory plea in abatement which is over-ruled, and a respondeas ouster awarded, and then puts in another dilatory plea in abatement, which ought not to be received by the court, for only one dilatory plea is allowable; yet if the court receive it, and there be a demurrer to it, and the plea awarded bad, it is not peremptory on the defendant; neither is it in this case. And it was further argued, that here there was no counterplea of voucher; for a counterplea of voucher should contain some matter of fact, in order to oust the voucher, but in this case nothing was said but that Snell is not named in the writ, which appears judicially to the court, without the shewing of the party; and therefore there was no counterplea of voucher, and the demurrer to it was not peremptory on the tenants. But if it had been a good counterplea, yet, it seems it is not peremptory, though it be adjourned to another term, as appears from the books of 40 Assize. pl. 2. Bro. Peremp (4) 11 H. 4. 23. (§) 26 H. 6. 40. (1) 8 H. 7. 7. 10 H. 22. and therefore it was prayed that the judgment should be reversed. Sed non allocatur; for the statute was made to prevent delay, and there has been as great a delay by this illegal voucher, as could have been if the voucher had been legal. (6) Lien is properly the binding of the vouchee by force of the warranty; for the vouchee says, "Que aves vous à lier a garranty?" the tenant then 7. [ 41 ] torie, 60. This seems an authority to the contrary of what it is cited to prove. shews the lien, that is, the deed or fine, &c. which binds the vouchee to warranty. See 2 Inst. 243. |