¹ Ante, vol. 8, 274–299.Google Scholar

² To say that one ‘cannot answer without’ X may equally be a prelude to vouching him to warranty: e.g., Exceptiones ad cassandum Brevia, Law Tracts, p. 174Google Scholar (doweress vouches heir); Fitzherbert, , Voucher, 273Google Scholar (1222: tenant vouches lord because another lord tries to exact suit of court from him). This form of words was the customary polite formula for vouching the King to warranty: see Bract, . f. 382bGoogle Scholar; also ante, vol. 8, pp. 288, 292Google Scholar; and contrast Holdsworth, , 9 H. E. L. 10Google Scholar (that one cannot vouch the King but can only pray aid of him).

³ The later Abridgments, however, are well stocked with cases on the subject. Modern text-books on Legal History say little of it; but there are helpful passages in Plucknett, , Concise History of the Common Law, 3rd ed., pp. 364, 496–497.Google Scholar See also 2 P. & M. 9–10.

⁴ Some slight improvement of his position was wrought by statute in 1285; see note 21 post, p. 85Google Scholar

⁵ Y. B. 22 Ed. I (1295), R. S., pp. 468–476, per Metingham and Hertford J J.; Hengham, , Parva, p. 69.Google Scholar

⁶ Contemporary writers merely give instances where aid-prayer is admissible, without a general rule. In Fitz, . Ayde, 175 (1263)Google Scholar, however, a tenant by the curtesy conveyed his deceased wife's inheritance with warranty to X; subsequently X vouched him to warranty in an action in which a third party claimed the land; the vouchee duly warranted and thereupon prayed aid of the wife's infant heir; the Court refused, on tho ground that to defend X in his seisin could not advantage the heir (for X's seisin operates to his disherison). There was also a rule that, to pray aid of a person, one must ‘make oneself privy’ to that person: Fitzherbert, , Ayde, 184 (1306).Google Scholar This seems to imply that one must in some sense ‘hold of’ that person.

⁷ Ante, vol. 8, p. 283Google Scholar; also Hengham, , Parva, pp. 68–69Google Scholar (who adds that if the adverse claim is merely for something appurtenant to her tenement she ought merely to plead that she cannot answer without the heir; and that although this is technically aid-prayer she will get escambium); Fitz, . Voucher, 276 (1231).Google Scholar In Y. B. 22 Ed. I (1295), R. S. pp. 468–476, a doweress perturbed the court by praying aid of the heir instead of vouching him: Hertford J. said that she ought not to pray aid; and Metingham J. said she was foolish in doing so, thereby losing her chance of escambium.

⁸ Bract, , f. 381Google Scholar, § 5; Fitz, . Ayde, 178 (1304)Google Scholar; Fitz, . Voucher, 289Google Scholar (1303: here the lessor had given an express warranty and had then assigned the reversion to R: held: the life tenant can elect whether to vouch lessor's heir or R).

⁹ Hengham, , Parva, 69Google Scholar (one advantage is that the plea will usually be stayed until that heir comes of age); Fitz, . Ayde, 175 (1263)Google Scholar; Y. B. 22 Ed. I (1295), R. S., per Hertford J., at p. 468.Google ScholarFitz, . Voucher, 275 (1230)Google Scholar gives a case where tenant by the curtesy vouched the heir, and the reporter adds (evidently surprised) ‘and this voucher was received by the Court.’ Bract, , f. 383bGoogle Scholar, gives a curious case where the mother's heir is vouched on her warranty, but, having no assets by descent, may say that he cannot answer without the tenant by the curtesy: this appears to be a reversal of the normal aid-prayer.

¹⁰ 2 P. & M. 109 (as regards writ of right or writ of entry); cf. 2 P. & M. 106 (if evicted by a third person he ‘frequently if not always’ enjoys the benefit of a warranty and can claim an equivalent from his lessor). Cf. Holdsworth, 3 H. E. L. 248, 249, that the warranty clause in a lease for years was similar to that in other demises, and developed similarly from the pledge of faith.

¹¹ Glanv, . Bk. 3, c. 1Google Scholar, says that if the defendant lessee discloses that X is his lessor, X must be summoned by another writ and the plea begin afresh against X. This would not be an unfair description, I think, of what happens when a defendant prays aid of X or vouches him to warranty.

¹² E.g., B. N. B. 106 (1222), 1576 (1223). See also ante, vol. 8, p. 288.Google Scholar

¹³ Y. B. 22 Ed. I (1295), R. S. 469: ‘We have seen that those who hold … in fee tail may pray aid’—per Hertford J. In Fitz, . Comen, 29 (1304)Google Scholar, a donee in tail was refused permission to pray aid of his issue in tail, on the ground nemo est haeres viventis—this seems to imply that the judge still thought the fee resided in the issue. See also note ²³, post.

¹⁴ Bracton, , f. 428Google Scholar, § 2. No question of praying aid from one's parceners arose if the inheritance had not been partitioned; for in such a case a parcener, sued alone, would ‘except’ against the writ that it does not name the other parceners, whereupon it would abate: no such exception lay against the writ, however, if the land had been partitioned: Bract, . ff. 429b–430b.Google Scholar

¹⁵ Hengham, , Parva, pp. 67–69.Google Scholar Hengham's two other instances of aid-prayer are tenant by curtesy praying aid of his late wife's heir by him and rectors praying aid of their patrons.

¹⁶ Hengham, , Parva, p. 68Google Scholar: aliter if the plaintiff's claim arose after the partition and through the defendant's own act. In Fitz, . Comen, 29 (1304)Google Scholar, after much argument, it seems that a co-parcener's feoffee (possibly her son) was allowed to pray aid of another parcener's heir. Straithforward cases of one parcener obtaining aid of others include Fitz, . Ayde, 179 (1302), 178 (1304)Google Scholar, Voucher, 303 (1304).Google Scholar

¹⁷ Bracton, , f. 341bGoogle Scholar, seems to imply that such accruer occurred only between coparceners who have not partitioned; but at f. 374 he says that an inheritance, after being divided among co-heiresses or co-heirs, may come together again to a single heir through the death of the other parceners without issue. Glanvill, , Bk. 7, c. 3Google Scholar, says the same. See also Bracton, , f. 375Google Scholar, that such accruer occurs also if a parcener's heir dies without issue, and that the rules are the same for joint feoffees (see also f. 262b). B. N. B. 959 (1224), shows accruer between male parceners in partible socage; so, also, perhaps, does Select Civil Pleas, S. S. 3, pl. 85 (1201). B. N. B. 1708 (1220), shows accruer between co-heiresses.

¹⁸ Hengham, , parva, p. 69.Google Scholar

¹⁹ Bract, , ff. 341b, 430Google Scholar: When a parcenor prays aid of his parceners the latter are summoned by writ: then, whether they come or not, the unity of right (which had been destroyed by partition) revives. The action then proceeds against them all as though they had never partitioned; and, if they lose, compensation in the form of a fresh partition is provided for the original defendant. For this Bracton cites the case of Adam Tusset, 9 & 10 Hen. III, from the Yorks and Lincs Eyre. See also Co. Litt, . 173b, 174aGoogle Scholar, in Coke's day the position was explained by saying that a partition among co-parceners implies bpth a warranty and a condition in law whereby, if a parcener be subsequently evicted from his share by title paramount, the partition is avoided as to the whole inheritance.

²⁰ Bract, , f. 393b.Google Scholar By the Statute of Gloucester, 1278, the process was extended so that a lessee might intervene to defend his right in a collusive action. brought by some stranger against his lessor for the purpose of destroying the lease: see 2 P. & M. 109.

²¹ An early example of such collusion by a life tenant is Select Civil Pleas, S. S. 3, pl. 176 (1202), but the Justices in Bench righted the wrong. By Stat. West. II (1285), c. 3 such dangers were minimised by the provision of writs of entry for reversioners whose particular tenants had lost the land by defaulting in litigation, and for a wife whose husband had done so. Apparently this led to interventions, for purposes of delay, by persons who had no right in the land whatsoever: 20 Ed. I (1291–2), St. 3.

²² Fitz, . Resceit, 186 (1303).Google Scholar Similarly the reversioner is received if a lessee or doweress is impleaded and fails to pray his aid or vouch him: Bract, f. 393b).

²³ Y. BB. 20 Ed. I (1292), R. S. 338; 21 Ed. I (1293), R. S. 262–266, 288–290 (part of counsel's plan for securing a maximum delay); Fitz, . Voucher. 267Google Scholar (temp. Ed. 1: a defendant vouched husband and wife; husband defaults); Fitz, . Resceit, 185Google Scholar (1304—customs and services). Normally, of course, a married woman cannot plead without her husband: her words ‘stand in his mouth’ (Henghnm, , Magna, p. 24Google Scholar) and he is her guardian and caput (Bract, , f. 429b).Google Scholar

²⁴ Y. B. 22 Ed. I (1294), R. S. 448; compare note ¹², ante.

²⁵ See B. N. B. 631 (1231). Plaintiffs claim rent-service; defendant denies that he holds any tiling of them and states (without vouching X) that X is in seisin of the rent. X ‘is present and acknowledges this,’ and proceeds to defend the action. Compare Glanv, . Bk. 10, cc. 6–8Google Scholar, as to the procedure where plaintiff claims to hold the land of one lord and defendant claims to hold it of another lord: if the lords are not present each in summoned by writ and may come and plead in place of his alleged tenant.

²⁶ Fitz, . Mordaunc, 54 (1228)Google Scholar; B. N. B. 1857 (1226–7), s.c: defendant comes and says he is a villein and holds the land of X ‘who is present and acknowledges’ the plaintiff's claim: judgment for plaintiff. Compare Fitz, . Voucher, 295Google Scholar (temp. Ed. I), where a villein purchased land from V on terms which expressly preserved his status as X's villein; X and the villein are sued for the land as co-defendants and are permitted to vouch V on the fiction that, since the villein's purchase vested the right in X he is deemed to be vouching on X's behalf.

²⁷ Bract, . f. 194Google Scholar—this where plaintiff alleges that his lord had previously recognised, in the King's Court, that he is free.

²⁸ Bract, , f. 195b.Google Scholar

²⁸ Bract, , f. 294b.Google Scholar

³⁰ Rolls, Eyre, S. S. 56 (1218–19), pl. 315Google Scholar: he says that ho disseised the plaintiff justly, in pursuance of an agreement made between them (as security for a payment in money, horses and hawks) and read before the king and his magnates in the King's Council. The case is adjourned to the Great Court (pl. 1133) which confirms that defendant took seisin by its judgment. Held, therefore, the action fails.

³¹ B. N. B. 861 (1232). Thereupon plaintiff in dower admitted that she had sued the same cause of action against him there before and that judgment had gone against Her: so her plea is dismissed.

^31a Select Civil Pleas, S. S. 3, pl. 250 (1202).

³² B. N. B. 191 (1222): he vouched it because the husband of the plaintiff (who now claims dower against him) lost that land by writ of right in the shire court. Held: let the sheriff cause that plea to be recorded and send the record, by four knights, to the Justices.

³³ Select Civil Pleas, S. S. 3, Nos. 22, 30 (1201): defendant in novel disseisin vouched the Bishop's court alleging that it had adjudged the land to him in writ of right: so twelve come from that court and say that in fact the plea ended by compromise—not by judgment. Compare ibid. (1202), No. 169 (defendant in mortdancestor objected that plaintiff had formerly sued him in Court Baron by writ of right and had lost: held, the objection fails because he did not vouch that court to warranty). Ibid. (1202), No. 227: defendant in novel disseisin vouched the Burghmote of Lincoln to warrant that he entered the land by judgment of that court: it comes and testifies the contrary. Ibid. (1202), No. 234: heir vouches to warranty the Court of the Templars to support his contention, against widow claiming dower, that she quitclaimed it to him in that court for 20/- and a peach coloured cloak.

³⁴ Procedure without writ under Henry III, S. S. 60, pl. 12 (1234–5): his plaint was that he had been distrained on a charge of forging writs when chirographer to the Justices of the Jews, and he vouched them to warrant that all lie did was make, at their order, a new writ to replace one that had been stolen.

³⁵ B. N. B. (1219), 76 (sheriff comes and produces the writ); B. N. B. (1217), 1326 (sheriff sends the writ).

³⁶ Evidently ‘vouching the rolls’ soon developed into a device for delaying a plaintiff in his action. By Stat. West. II (1285), c. 25, a defendant who vouched the rolls in novel disseisin, to support an exception of res judicata or that a higher writ was pending between the parties, was henceforth to be adjudged a disseisor at once, if nothing was found in the rolls to support his allegation—formerly the result had been merely that the assize was taken.

³⁷ Procedure without Writ under Henry III, S. S. 60, pl. 76 (1258)Google Scholar: plaint against Peter of Savoy by the men of Witley alleging that they hold in ancient demesne; he denied this; the court consulted Domesday which proved him to be right.

¹ See also 2 P. & M. 291.

² Ante. vol. 8, pp. 278–270.Google Scholar If one vouched in virtue of homage one had to allege that the vouchee had actually received one's homage: Bract, f. 382. So even if he is one's feoffor: Fitz. Garrantie, 90 (Ed. I).Google Scholar

³ Glanvill, , Bk. 9, c. 6Google Scholar; Bract, , ff. 82b–83bGoogle Scholar (‘quare non capiat homagium’). But the court will not compel him to accept homage if he can prove that the feoffment was void, e.g., for want of seisin in feoffor's lifetime: ibid. See further, B. N. B. 53 (1219), 165 (1222); Co. Litt. 101a (‘de homagio capiendo’).

⁴ Bract, , f. 394bGoogle Scholar; B. N. B. 671 (1232), 1100 (1225); Exceptiones ad cassandum Brevia, Law Tracts, pp. 177–178Google Scholar (tenant's heir can plead the bar). That the lord's heir is barred, see further, Fitz, . Garrantie, 90Google Scholar (Ed. I); Bract, , ff. 321b, 322–322bGoogle Scholar (tenant by curtesy alienates for homage—heir barred); also Bracton's treatment of the maxim ‘cannot be lord and heir’ (post, pp. 96–98Google Scholar) invariably assumes it. See also Bract, . f. 79Google Scholar; when either dies the homage holds in the survivor, fails in the deceased, but holds in the person of his heir.

⁵ Ante, vol. 8, pp. 278–279Google Scholar; Fitz, . Garrantie, 90 (Ed. I).Google Scholar

⁶ E.g., F. N. B., 144 O (if lord accept homage of one in possession he is barred from bringing writ of escheat against him); Bract, , f. 78bGoogle Scholar (infant receives homage impliedly salvo jure cujuslibet and so is not barred from reclaiming the land if in fact another has greater right); Hengham, , Magna, pp. 49–50Google Scholar (if one who has right takes homage from a wrongful possessor he is thereby barred but his heirs are not). From this it would seem to follow (i) that even homage received from the feoffee's assignee (Bract, , f. 81Google Scholar) effectively barred the lord, (ii) that the assignee of a seignory was barred on taking the tenant's homage; but in neither case did such homage attract voucher or escambium (ante, vol. 8, pp. 278–279).Google Scholar

⁷ E.g., B. N. B. 671 (1232), homage alleged between their parents; B. N. B. 1100 (1225), same between their ‘ancestors.’ See also Bract, , ff. 322–322b, § 2.Google Scholar

⁸ Bract, , f. 321b.Google Scholar This maxim is also employed, without any express mention of homage, to prove that if A enfeoff B who enfeoffe C, etc. who enfeoffs A this last enfeoffment is void: Bract, , f. 24Google Scholar; Fleta, , Bk. 3, c. 12, § 3.Google Scholar

⁹ Fleta, , Bk. 3, c. 12Google Scholar, § 3 (homage expels the demesne and preserves the service); cf. Bract, . 279bGoogle Scholar (homage and demesne non compatiuntur).

¹⁰ Bract, , ff. 20bGoogle Scholar, § 1 (quia homagium evanescit haeredibus deficientibus ubique), 23, 24, 64, 80–82, § 12.Google Scholar The others include a surrender by the tenant or some act of disherison by him. Bracton emphasises (f. 23) that, on failure of the tenant's heirs, the lord does not take as quasi-heir so as to be bound by the tenant's warranties. See also Fleta, , Bk. 6, c. 1, § 11Google Scholar (evanesctt homagium).

¹¹ Glanvill, , Bk. 7, c. 1.Google Scholar

¹² Even Glanvill said a good deal about maritagium (Bk. 7, cc. 1, 8; Bk. 9, c. 2). He himself had acquired lands in liberum maritagium from his father-in-law on his marriage (Beame's edition, pp. viii–ix). But he seems not to know the estate tail simpliciter.

¹³ The fact that Glanvill does not seem to have Bracton's difficulty about maritagium tends to suggest that maritagium, in Glanvill's day, was for the donee and his (or her) heirs general: see further, note 15, post. When Bracton wrote, the word ‘maritagium’ was presumed to mean only heirs of the marriage unless the gift said the contrary: Bract, . ff. 65, 22–22b.Google Scholar

¹⁴ Bract, , f. 279Google Scholar; B. N. B. 250 (1227), donor took homage from donee in tail who then died without issue: held, donor can recover from donee's brother despite the homage. Cf. Fleta, , Bk. 3, c. 12, § 3.Google Scholar

¹⁵ Bract, , f. 21b, § 3.Google Scholar Bracton's ‘evanescit homagium’ here, makes nonsense of his and Glanvill's rule that, for maritagium, one must be careful not to take homage (until the third heir) lest one be barred of one's reversion on the failure of the donee's issue: see post, pp. 92–93.Google Scholar Perhaps the custom of avoiding the homage of one's tenant in maritagium dates from a time when marriage gifts ordinarily comprised the donee's heirs general (cf. note 13, supra).

¹⁶ Bk. 7, c. 16. He puts this question in the troublesome case of the bastard who dies without issue. The one thing he feels sure about is that the feoffor-lord cannot take, on account of the homage. It is significant, perhaps, that thirteenth century writers were much inclined to associate escheat from a bastard-feoffee with reversions upon entails—e.g., Bract, , f. 20bGoogle Scholar, Hengham, , Parva, p. 62Google Scholar; Fleta, , Bk. 3, c. 12.Google Scholar

¹⁷ E.g., B. N. B. 428 (1230), 671 (1232). Such homage probably operated to preclude the lord both from later alleging bastardy against the heir-apparent by writ of escheat (Bract, ff. 66b, 418), and from withholding seisin from him on the ground that a possible nearer heir exists.

¹⁸ Homage in advance without seisin did not transfer the fee: B. N. B. 428 (1230). But if A's heir-apparent, who had done homage in advance, predeceased A leaving a child of his own, when A died that child would inherit from A to the exclusion of A's younger sons: 2 P. & M. 282. Homage done in advance by an infant heir-apparent who also obtains some sufficient seisin, concurrently perhaps with his father, as in B. N. B. 671 (1232), precludes the lord from subsequently claiming wardship over him: F. N. B. 142 E. Contrast cases in which father enfeoffs younger son for his homage and the feoffee at once does homage to eldest son (as well as to father-feoffor): here the homage in advance served to show, in early times when this was material, that the feoffor had alienated with his heir's consent: Select Civil Pleas, S. S. 3, pl. 56 (1200).

¹⁹ Bract, , ff. 24–24b.Google Scholar

²⁰ B. N. B. 1944(1221): the grand assize comes but is dismissed because of the homage. Compare B. N. B. 838 (1234), and Maitland's footnote thereto: a mesno lord who sues writ of right against his tenant thereby waives his seignory.

²¹ Fet Aasaver, Law Tracts, pp. 82–83Google Scholar: this is a writ issued, after plaintiff and warrantor have ‘put themselves on the country’ as to the homage, for summoning an inquest to determine the point. See also Exceptiones ad Cassandum Brevia, Law Tracts, pp. 177–178Google Scholar (same if warrantor's immediate ancestor did homage to plaintiff.

²² Doweress does not do homage for her dower: Glanv, . Bk. 9, c. 2.Google Scholar But if her husband, having specifically endowed her of Blackacre, conveys Blackacre to X for his homage it seems that the homage will bar his heir (implied warrantor of her dower) from recovering it for her in demesne: B. N. B. 1736 (1226). A fortiori, if she takes X's homage after husband's death: Fitz, . Dower, 63 (1338).Google Scholar

²³ Bract, , f. 321bGoogle Scholar: such a fine would effectively bar her cui in vita. Even without a fine, his conveyance honesta causa hound her—e.g., his grant to their common son or in maritagium with their daughter: ibid.; of. B. N. B. 1569 (1222).

²⁴ An early example is Select Civil Pleas, S. S. 3, pl. 90 (1202): cui in vita by widow for her maritagium.

²⁵ Holdsworth, , 3 H. E. L. 22Google Scholar: her heir's writ of entry was called sur cui in vita; but for an entailed interest he would bring formedon. Bracton is inclined to think that the heir may be barred by her laches if she outlive her husband and die without having brought cui in vita: ff. 322–322b, § 2.Google Scholar

²⁶ Bract, , f. 321b.Google Scholar

²⁷ Bract, , f. 322Google Scholar (‘as in the iter of the county of York’).

²⁸ Bract, , f. 321bGoogle Scholar: and the homage, once it has been so destroyed by judgment, never revives; so on her death their common heir is in no wise barred. But husband's heir (though also her heir-apparent) if vouched by defendant would be liable to make escambium from any assets descended: ibid.

²⁹ Bract, , f. 322Google Scholar, citing a decision of Martin de Pateshull (1219) where defendant had at first contended (Rolls, Eyre, S. S. 56, pl. 167Google Scholar) that the heir had no right to sue so long as the husband (entitled by the curtesy) was still alive. When tenant by curtesy alienated in fee some thought it gave the heir an immediate right to recover possession: it gave him at least an immediate action in which alienee would be adjudged entitled pur autre vie only: Bract, , f. 31.Google Scholar

³⁰ Bract, , f. 322.Google Scholar

³¹ In B. N. B. 671 (1232), defendant alleged this against her heir.

³² Bract, , ff. 24, 66b.Google Scholar Here is a foretaste of the later system of bar by quitclaim with express warranty.

³³ Bract, , f. 321b.Google Scholar

³⁴ It might be money or goods: B. N. B. 442 (1230), 552 (1231), 646 (1231), 683 (1232), where her father promised also to build a barn. If money or goods it was within the jurisdiction of Court Christian. In Glanvill's day even actions for land-maritagium could be tried in Court Christian if against donor or his heir: Bk. 7, c. 18.

³⁵ Glanvill describes maritagium as a gift with a woman to a man (Bk. 7, c. 1), so sometimes does Bracton (e.g., f. 277b). But whichever form of words was used the effect was the same: Bract, , f. 21.Google Scholar

³⁶ Bract, , ff. 20b, 22b, 277b.Google Scholar The difference, of course, was that even issue of her second marriage might inherit a maritagium which spoke of ‘her’ heirs simpliciter, and her second husband get curtesy therefrom. There was often no documentary record of a marriage gift: Bract, , f. 22Google Scholar; Fitz, . Taile, 30 (1303).Google Scholar Hence there waB much litigation as to what heirs it had comprised. Bracton, , f. 277b.Google Scholar gives such a case (from Pateshull's last iter) where the assize was turned into a jury on the point; other examples are B. N. B. 1921 (1227), 487 (1231), s. c, and 865 (1234), where the doctrine of possessio fratris arose.

³⁷ E.g., Fitz, . Taile, 31 (1304)Google Scholar; Fleta, , Bk. 3, c. 11.Google Scholar

³⁸ E.g., ‘To wife and her heirs if she have an heir of her body’: B. N. B. 948(1224). Bracton even included ‘to husband and wife and his heirs’ (f. 22b), and said (f. 22) that a gift to a girl ad se maritandum is also a kind of maritagium, whether for her life only or comprising her heirs or the heirs of her body. Fleta, , Bk. 3, c. 12Google Scholar, said that it might expressly include the donee's assigns (and so be alienable).

³⁹ B. N. B. 629 (1231), 1008 (1224); Bract, , f. 65Google Scholar; Fleta, , Bk. 3, c. 11.Google Scholar Compare Hengham, Magna, p. 24Google Scholar, who says that, as in gifts to husband and wife jointly, ‘the husband has as much right in the land as the wife or more.’ If they are subsequently divorced, he must return to her any land or money he has had from her father in maritagium: B. N. B. 552 (1231)Google Scholar; Hengham, , Parva, p. 64.Google Scholar

⁴⁰ Select Civil Pleas, S. S. 3, pl. 184 (temp. John); B. N. B. 105 (1220), 487 (1231), 1071 (1225); Fleta, , Bk. 3, c. 12 (like a gift to a bastard).Google Scholar

⁴¹ Bk. 7, c. 18; see also Bk. 9, c. 2; but fealty must be done by all: Glanv, . Bk. 7, c. 18Google Scholar; Bract, , f. 24, § 4.Google Scholar Fealty received by a parson in respect of the lands of his church bars him in the assize utrum, since he cannot take homage for them; but ordinarily fealty is not a bar: Exceptiones ad Caasandum Brevia, Law Tracts, pp. 177–178Google Scholar; Fitz, . Juris Utrum, Nos. 12 (1319), 13 (1319).Google Scholar

⁴² Bk. 7, c. 1.

⁴³ There are other signs that maritagium originally became a fee simple, inheritable by heirs general, once homage had occurred; e.g., Glanv, . Bk. 7, c. 18Google Scholar (an action to recover maritagium from a stranger is like a plea of dower until the third heir has done homage, for one must produce one's warrantor). But possibly Glanvill was thinking primarily of the marriage gift to donee and heirs general: see footnotes ¹³, ¹⁵, ante. Compare Coke's statement, in his discussion of frankmarriage (Co. Litt. 21a–b), that all estates tail, including in libero maritagio, were in fee simple at common law.

⁴⁴ Bract, , f. 21b.Google Scholar See also B. N. B. 295 (1228): donor's son ‘need not’ take homage of doneo's grandson ‘unless he wish.’

⁴⁵ Bract, , f. 23. Even in f. 21bGoogle Scholar, he implies the same thing: if the third heir does homage and his heirs fail thereafter, evanescit homagium.

⁴⁶ Britton's only reference to it is his statement (Bk. 3, c. 4, § 13) that, among the possible defences which a lord may raise when sued by his tenant for refusing homage, is that the tenement ‘was given en mariage and therefore he expects the reversion until the appearance of heirs.’ Fleta, , Bk. 3, c 11Google Scholar, copies Bracton's statement that receipt of homage may repel the reversion, but applies it only to free maritagium (see next paragraph).

⁴⁷ E.g., B. N. B. 207 (1222); Fitz, . Droyt, Nos. 52 (1263), 55 (1222), 60 (1231).Google Scholar

⁴⁸ Glanv, . Bk. 7, c. 18Google Scholar; Bract, , ff. 21–21bGoogle Scholar (it may even be partly free: e.g., saving the forinsee service; it implies an undertaking to acquit, since it cannot oust the chief lord's power to distrain unless he confirmed the gift); Co. Litt. 21a, b (if it reserves a rent, that rent is ineffective until tho third heir, e.g., Fitz, . Formedon, 63 (1285))Google Scholar; B. N. B. 241 (1227), 811 (1233); Fitz, . Droyt, Nos. 55 (1221), 60 (1231).Google Scholar Even the third heir need not do homage and service till of age: B. N. B. 207 (1222). Sometimes gifts in liberum maritagium contained words which caused a difficulty, e.g., ‘for their homage and service’ (the homage prevails: Bract, , f. 22bGoogle Scholar; Fleta, , Bk. 3, c. 11Google Scholar, § 3); or perhaps the gift contains an express warranty to the husband and his heirs general and reserves a yearly service to donor and his heirs (the frankmarriage prevails: Fitz, . Taile, Nos. 25 (1305), 31 (1305)).Google Scholar

⁴⁹ F. N. B. 155 K; B. N. B. 664 (1231), 747 (1233); Fitz, . Droyt. 52 (1263).Google Scholar

⁵⁰ E.g., Fleta, , Bk. 3, c. 11Google Scholar (ante, footnote ⁴⁶); Co. Litt. 21b; Challis, , Real Property, 2nd ed., pp. 12–13.Google Scholar Even the Statute De Donis, 1285Google Scholar, specifically mentions only liberum maritagium. Holdsworth, , 3 H. E. L. 111–112Google Scholar, does not misrepresent maritagium except in asserting (at p. 111 ) that, in gifts of ordinary (as opposed to ‘free’) maritagium ‘the donee might be bound to do homage to the donor.’ See also 1 B. N. B. 133, n. ⁵, where Maitland criticised modern misconceptions about ‘frank-marriage.’

⁵¹ 2 P. & M. 261, 274–276.

⁵² Bracton, , ff. 71b–73b, 75bGoogle Scholar, gives the procedure in great detail. Great care was taken to secure equality of treatment for all. And finally, failing an agreed division, one of the equal parcels which the assessors had determined was allocated to each parcener by lot—by Littleton's day Bracton's illiterate layman had given place to little balls ot parchment drawn from a hat held by an indifferent man: Litt. s. 246. There was also a hotchpot rule for any sister to whom deceased had given lands in maritagium: Bract, . ff. 22, § 4, 76b–77Google Scholar; B. N. B. 934 (1224), 1018 (1224); Fleta, , Bk. 3, c. 11, § 3.Google Scholar

⁵³ Bract, , ff. 71b, 78b, 79Google Scholar: B. N. B. 869 (1232). Compare Glanv. Bk. 7, c. 3, that her husband does the homage in her stead. Unlike Bracton, Glanvill did not allow a female heir to perform homage—Bk. 9, c. 1. Bracton allowed her husband to do homage (f. 78); but there was an objection to the husband's homage (the homage-bar ?) unless there was already a child of the marriage to ensure him ourtesy: Select Civil Pleas, S. S. 3, pl. 200 (1201); F. N. B. 257, F; Litt. s. 90.

⁵⁴ Her aesnetia was chiefly a right to the chief messuage, her sisters receiving due compensation: Glanv, . Bk. 7, c. 3Google Scholar; Bract, , ff. 73–73b, 75. 75b–76Google Scholar; B. N. B. 1707 (1226). In B. N. B. 869 (1232) it was pleaded that she ought to do homage for all ‘by reason that she is de aesnecia.’

⁵⁵ Glanv, . Bk.7, c. 3Google Scholar; Bract, . f. 78Google Scholar; B.N.B.441 (1230); Fitz. Droyt, 64 (1226)Google Scholar; Statutum Hiberniae de Coheredibus, 1229–1230Google Scholar (in fact a writ in answer to an Irish enquiry about the English law as to co-parceners).

⁵⁶ Bract, , f. 78.Google Scholar This right of accruer or jus accrescendi means that the share of her whose issue fails is divided equally among the survivors or their heirs, and it applied also among male co-heirs and among co-owners by feoffment: Glanv, . Bk. 7, c. 3Google Scholar; Bract, . ff. 262bGoogle Scholar, § 3, 276, 375, § 5; B. N. B. 1708 (1226). If homage has intervened, the eldest sister cannot retain what accrues to her from the deceased's share: it will pass from her ‘to lower heirs’: Bract, , f. 78.Google Scholar This presumably means the eldest's child if any or (failing such) her surviving sisters or their heirs—as under the ‘lord and heir’ rule (post, pp. 97–98).Google Scholar

⁵⁷ Bk. 3, c. 4, § 13. But perhaps he implies that it is only an excuse where the parcener who offers homage has as yet no issue.

⁵⁸ 2 P. & M. 276: Britton encouraged chief lords to take homage from all the sisters in order to ensure wardships and marriages from each share.

⁵⁹ Co. Litt. 67a, b: each does her own homage to the chief lord.

⁶⁰ Bracton, , ff. 77b, 85bGoogle Scholar, said that it was an abuse that homage was sometimes done for a socage tenement. See also Mirror of Justices, S. S. 7, p. 75 (if done it is void as in fraud of the law). It seems that homage was done for socage lands in Select Civil Pleas, S. S. 3, pl. 192 (1201); also in B. N. B. 1565 (1222). with the purpose of defrauding of his share a younger brother who was abroad ad scolas.

⁶¹ Bract, , f. 78Google Scholar; also f. 21b to the same effect.

⁶² 2 P. & M. 289, n. 7.

⁶³ E.g., (i) the mystery which limited mortdancestor to the ‘degrees’ and so excluded grandsons and cousins of deceased: 2 P. & M. 56; (ii) the rule that, in writ of right between kindred, there was neither battle nor grand assize (unless one claimed by feoffment) if the parties were within the fourth descent from the common ancestor: Fitz, . Droyt, 61 (1285), 62 (1234), 63 (1220)Google Scholar; of. Glanv, . Bk. 2, c. 6Google Scholar, and Bract, , ff. 282, 283bGoogle Scholar, where the rule is given but not its precise limits; (iii) the rule that ‘privies in blood’ cannot sue each other by mortdancestor or cosinage but only by writ of right: Glanv, . Bk. 13, c. 11Google Scholar; Bract, , ff. 281, 282, 261b, 266b–267, 278bGoogle Scholar; (iv) Bracton's rule that the writ of cosinage (de consanguinitate) went as far as the grandchild's grandchild ‘who is called cousin (consanguineus),’ ff. 254, 281Google Scholar; cf. 2 P. & M. 57, n. 2; (v) the almost tiresome thoroughness with which Bracton classifies heirs according to their various degrees of proximity; (vi) the archaic forisfamiliation: Glanv, . Bk. 7, c. 3; 2 P. & M. 282, 436, n. 2.Google Scholar

⁶⁴ The third heir rule appears only where lord and tenant were descendants of a common ancestor. Evidently, therefore, the fear of homage was originally a fear that it would bar the lord from inheriting in the event of the failure of the tenant's lineal heirs.

⁶⁵ Glanv, . Bk. 7, cc. 1, 16Google Scholar; Bk. 13, c. 11; Bract, , ff. 64, 65b–66, 277, 279–279b, 282.Google Scholar Also Hengham, , Magna, p. 49, n. 5Google Scholar (one MS. only); Britton, , Bk. 6, c. 2Google Scholar, § 11; Fleta, , Bk. 3, c. 12Google Scholar, § 3; Bk. 6, c. 1, §§ 15, 16.

⁶⁶ Throughout Bracton's treatise, for instance, it is evident that when he speaks of a gift or sale he means a subinfeudation, apart from very occasional exceptions. See also Maitland, , 1 B. N. B. pp. 133–134.Google Scholar

⁶⁷ Bract, , f. 22Google Scholar (the wife and her issue are in themselves a sufficient charter); also ante, vol. 8, p. 281.Google Scholar

⁶⁸ The pedigree and descents in many of the cases in Bracton's Note Book are problems in themselves. See e.g., Maitland's footnote to B. N. B. 657 (1231).

⁶⁹ Glanvill said the contrary: Bk. 13, c. 11. But Bracton is very emphatic (ff. 65b, 66, 277) and so is Fleta, , Bk. 6, c. 1, f 16Google Scholar; see also B. N. B. 1105 (1225), and footnote 71, post. There has evidently been a recent change in the law. Likewise, if the land is vacant, A is entitled to take the first seisin, being lord of the fee: Bract, , ff. 252–252b.Google Scholar If the next heir (ignoring A) has already taken seisin, A can perhaps bring writ of right against him (Bract, , ff. 65b–66Google Scholar, dubitante) but cannot forcibly disseise him: B. N. B. 1224 (1238–9).

⁷⁰ See 2 P. & M. 284–293, for Maitland's account of the rule ‘cannot be lord and heir, and his theory that it was responsible for ‘the curious doctrine’ that ascendants cannot inherit: he sees in it (ibid. 290) ‘a struggle against the effects of primogeniture.’ See also Woodbine's note to Glanv, . Bk. 7, c. 1, at pp. 224–225.Google Scholar Another form in which the rule was sometimes expressed is ‘Homage expels the demesne and retains the service’: Bract, , f. 24Google Scholar; Fleta, , Bk. 3, c. 12Google Scholar, § 3. Bracton, , f. 77Google Scholar, even used the theory by analogy when dealing with co-heiresses and the rule (ante, pp. 94–95Google Scholar) that they did no homage in order to preserve their jus accrescendi—‘lest they be quasi lords and heirs.’

⁷¹ That the next heir's proper remedy is writ of right against A, see Bract, , ff. 66, 277Google Scholar (citing a decision of 1219), 282; Fleta, , Bk. 6, c. 1, § 16Google Scholar; Rolls, Eyre (1221), S. S. 39, pl. 560Google Scholar (cannot bring mortdancestor against A's feoffee); B. N. B. (1226), pl. 1694 (can bring writ of right against A's feoffee who will then vouch A); B. N. B. (1231), pl. 564 (cannot bring mortdancestor against stranger—writ of error); B. N. B. (1224), pl. 949 (nor writ of right against stranger); B. N. B. (1233), pl. 774 (cannot sue A by entry sur instrusion). His action against A is not mortdancestor, because that does not lie between parties of one stock: Select Civil Pleas, S. S. 3, pl. 139 (1203); ante, footnote 63Google Scholar; yet he in fuet recovered by mortdancestor in Fitz, . Mordaunc, 54 (1228)Google Scholar, and in B. N. B. 1857 (1226–7), and Bracton annotated the latter decision as erroneous.

⁷² If B obtains judgment against A he is safe, even if A subsequently has a child: aliter if a child is born to A before judgment, for that child would be a nearer heir than B: Bract, , ff. 277, 279bGoogle Scholar; B. N. B. 637 (1231). B is likewise safe if A takes his homage before any such child is born: Fitz. Avowrye, 235 (1285).Google Scholar Cf. Select Civil Pleas, S. S. 3, pl. 47 (1200), where A tries to evade C's writ quod capiat homagium and would prefer to waive his seignory.

⁷³ B. N. B. 774 (1233), shows the plea ‘cannot be lord and heir’ raised by B's greatgrandson against A's grandson. Fitz, . Droyt, 62 (1234)Google Scholar, between A's grandson and B's grandson was probably a case of ‘lord and heir’ but does not specifically report that it was such.

⁷⁴ Glanv, . Bk. 7, c. 1Google Scholar; Bract, , f. 66Google Scholar; Fleta, , Bk. 3, c. 12. § 3.Google Scholar

⁷⁵ It applied also, e.g., where eldest brother enfeoffed a younger brother: Glanv, . Bk. 7, c. 1Google Scholar; Bract, , f. 24.Google Scholar It would operate to preclude eldest son in favour of a daughter, failing younger sons or their issue: Bract, , f. 66bGoogle Scholar; B. N. B. 774 (1233). But it did not apply to land given in maritagium (whether liberum or not) so as to repel the donor's heir from his reversion: B. N. B. 61 (1219), and Bracton's annotation thereto. Nor did it apply to any gift for fealty and service without homage: Bract, , f. 279Google Scholar; Fitz, . Eschete, 13 (1318?).Google Scholar The most striking case of all was where father enfeoffed eldest son for homage and died whereupon this son inherited the homage; immediately, the title to the land (as opposed to the homage) shifted to the second son because (i) eldest cannot be heir and lord of this land he had acquired by purchase, (ii) homogium expellit perquisitum: Bract, , f. 65bGoogle Scholar; Fleta, , Bk. 6, c. 1, § 15.Google Scholar

⁷⁶ Bract, , f. 279.Google ScholarFleta, Evidently, Bk. 3, c. 12, § 3Google Scholar, made an unintended slip when he gave as his illustration of ‘lord and heir’ a feoffment to one's younger son or brother ‘and the heirs of his body.’

⁷⁷ Ante, vol. 8, p. 280.Google Scholar

⁷⁸ Modus Levandi Fines (Statute of uncertain date: 1289?). Herein it resembled judgments in writ of right: Bract, , f. 435bGoogle Scholar; and semble, judgments in formedon: Fitz, . Taile, 24.Google Scholar As to how one should enter one's claim, etc., see Bract, . ff. 435b–437.Google Scholar

⁷⁹ E.g., Judicium Essoniorum (1267–1275), Law Tracts, p. 138Google Scholar, includes fines made by chirograph among the ‘exceptions’ that will destroy the whole cause, and adds ‘satis est notorium.’ A conveyance by fine bars the grantor's heir even from alleging that the grantee and his heirs never obtained seisin thereby: Statutum de Finibus Levatis, 27 Ed. I (1299)Google Scholar, c. 1 (stating that this was the ancient law, but cf. Bract, , f. 270Google Scholar, § 4); Britton, , Bk. 4, c. 4Google Scholar, § 2. It bars grantor's heir even if grantor had no seisin and even though it contain no express warranty: Y. B. 21 Ed. I (1293), R. S. pp. 58–60, per Bereford J.

⁸⁰ But the homage-bar could be used effectively for this purpose (ante, pp. 90–91)Google Scholar, so also could bar by express warranty (post, p. 104).Google Scholar

⁸¹ Unless the dower was nominata (specific dower) the problem hardly arose, for so long as his heir can provide her with escambium his feoffee will be safe. But dower nominata she could recover in specie against the feoffee and this, it seems, even where husband had conveyed by fine: B. N. B. (1222), pl. 156 (heir warrants feoffee and at first seeks to plead the fine in bar, but later admits her right to dower). Aliter, it would seem, if the wife was a party to the fine: B. N. B. 1459 (1220); or where it was levied by a stranger: B. N. B. 1011 (1224).

⁸² Bract, , f. 321bGoogle Scholar; see also Modus Levandi Fines (1289?).

⁸³ Stat. West. II, 13 Ed. I (1285), c. 1: every such fine to be levied hereafter shall be null in law, so that issue and reversioner (though of full age, within the realm and out of prison) shall have no need to put their claim. The statutes extended specifically to gifts in liberum maritagium.

⁸⁴ B. N. B. 566 (1231). Her father had settled maritagium on her and the issue of her first marriage. Her first husband had then died leaving issue of that marriage. She then re-married and, with her second husband, levied a fine which reserved life interests to herself and to him with remainder to the reversioner in fee. Then she died, leaving no issue of this second marriage. Now the heir of her first marriage comes of age and ejects the second husband. But the latter recovers seisin from him by judgment on the grounds that (i) she ‘was able to make a tine and to give and sell her inheritance (sic)’; (ii) the fine holds ‘until it be annulled according to the law of the land.’ This will depend, presumably, upon whether the heir is now too late to enter his claim.

⁸⁵ Ante, vol. 8, pp. 280–284.Google Scholar

⁸⁶ Bract, , ff. 399–399b.Google Scholar

⁸⁷ There is a clear hint in chapter 8 of Judicium Essoniorum, Law Tracts, pp. 136Google Scholaret seq. The chapter is entitled ‘What answers and exceptions destroy the writ or the process on the writ,’ and it proceeds forthwith to an account of who is bound by warranties express or implied. Other probable hints of it are Bract, , ff. 17b, 322bGoogle Scholar; also Fleta, , Bk. 5. c. 5Google Scholar, § 52 (but this perhaps refers to express warranties).

⁸⁸ I. e., the fact that homage could bar even when not ‘ancestral,’ ante, p. 88.Google Scholar

⁸⁹ Bract, , ff. 17bGoogle Scholar(feoffment by tenant in tail or maritagium bars his heirs but not reversioner), 31b (gift of reversion, with attornment of life-tenant, bars donor and his heirs against donee and his heirs), 270b (heir of feoffor is barred in mortdancestor), 320b (plaintiff's charter bars his writ of entry), 322b, § 2 (feoffor's heiris bound to warrant his gift and so is barred). See also Modus Componendi Brevia, Law Tracts, pp. 146, 149Google Scholar (donor is barred by his gift in fee).

⁹⁰ Bract, . ff. 322–322b.Google Scholar This is a very involved and obscure passage about husband alienating wife's inheritance or maritagium. If its true meaning is as stated in the text, we have here the reason for the Statute of Gloucester, 1278, c. 3 (post, p. 104)Google Scholar, which enacted that henceforth alienation of tenant by the curtesy does not bar heir unless assets descend. In B. N. B. 1683 (1225). a father shielded his son from his warranties by conveying all his remaining land to X to the use of the son, so that X might reconvey to the son in maritagium with X's daughter.

⁹¹ Ante, vol. 8, pp. 293–294.Google Scholar

⁹² E.g., Eyre Rolls, S. S. 53 (1219), pl. 371 (vendor fails in novel disseisin against purchaser who, a month later, obtains a judgment that vendor is bound to warrant him, ibid. pl. 666); B. N. B. (1233), pl. 750 (in quo warranto, brought ostensibly by the King, defendant produces King's charter of gift and prays that the king warrant him); B. N. B. (1224), pl. 1000 (de warrantia cartae brought by donee against donors who are evidently suing him elsewhere by assize).

⁹³ E.g., Select Cases in King's Bench, S. S. 55 (1274), pl. 3 (donor's heir alleges against donee that he had disseised donor before the charter of alleged feoffment); B. N. B. (1224), pl. 979 (de warrantia cartae brought by donee against donor's heir who is suing him elsewhere by writ of right); B. N. B. (1223), pl. 1648 (same); Eyre Rolls, S. S. 56 (1218–19), pl. 1127 (donor's heir brings cui in vita against donee who answers that plaintiff ought to warrant him; plaintiff replies that his mother made the charter on her death-bed while under her husband's rod); B. N. B (1225), pl. 1685 (donor's heir claims advowson against donee who ultimately admits that he was never seised by presenting); Select Civil Pleas, S. S. 3 (1200), pleas 41, 134 (donor's heir claims advowsun against donee).

⁹⁴ Ante, vol. 8, p. 281.Google Scholar

⁹⁵ Y. B. 22 Ed. I (1294), R. S., pp. 565–568: the heir of her body now sues formedon in the descender against her feoffee's heir.

⁹⁶ Fitz, . Droyt, 41 (temp. Ed. I)Google Scholar: such a deed of gift, whether in tal or for life or for years, bars plaintiff's action though not his ultimate right in reversion—per Metingham J.

⁹⁷ Fitz, . Dower, 204 (1303).Google Scholar See also ante, vol. 8, pp. 282–283.Google Scholar

⁹⁸ B. N. B. 564 (1231). Osbert had himself enfeoffed this son for homage. This son then died without issue. Then Osbert enfeoffed the Prior, whereupon Osbert's eldest son brought mortdancester (as deceased son's heir) against the Prior. The Prior vouched Osbert to warranty, whereupon Osbert at once took to religion (and so was civilly dead) so that the burden of his implied warranty descended at once upon the plaintiff (as his heir) and barred his action. Next, a younger son of Osbert brought mortdancestor against the Prior and obtained judgment by pleading that eldest son cannot be lord and heir. That judgment is now reversed by writ of error (see ante, p. 97Google Scholar, footnote 69 ). Cf. B. N. B. 949 (1224).

⁹⁹ Ante, vol. 8, p. 276Google Scholar, note²⁰.

¹⁰⁰ Bract, , f. 24.Google Scholar A common case is the gift, without livery of seisin in donor's lifetime, perfected by confirmation from donor's heir after his death: Bract, , ff. 27b–28Google Scholar (death-bed gift to a religious house), 58; Modus Componendi Brevia, Law Tracts, pp. 146, 149.Google Scholar Another is confirmation or quitclaim by widow whose late husband had purported to convey her maritagium or inheritance: Bract, , f. 321b.Google Scholar The reversioner who confirms a gift in fee made by life-tenant (f. 31) or tenant in tail (f. 66b) is barred from disputing its validity. Lord who confirms his tenant's subinfeudation (e.g., Select Civil Pleas, S. S. 3, 1200, pleas 45, 66) is barred from the demesne if tenant's heirs fail:- Bract, , f. 66b.Google Scholar See also ibid. ff. 58–58b, 64–67 (true owner confirms gift made by another); Britton, , Bk. 2, c. 3, § 10 (same).Google Scholar

¹⁰¹ Bract, , ff. 58b–59b.Google Scholar Hence, confirmation from heir-apparent is null; and confirmations are unlikely to assist donee of an advowson who has never yet presented (e.g., Select Civil Pleas, S. S. 3, 1200–1202, Nos. 41, 134, 248; B. N. B. 1222, pl. 199). See also Mirror of Justices, S. S. 7, p. 74; Britton, , Bk. 2, c. 8Google Scholar, § 9 (charters of quitclaim and confirmation should therefore be dated); ibid. Bk. 3, c. 22, § 4; Fitz, . Confirmation, 19 (1285).Google Scholar

¹⁰² Britton, , Bk. 3, c. 22Google Scholar, § 4; compare Bract, , f. 270bGoogle Scholar, § 1 (can be proved by charter or assize). Quitclaims in court seem in practice to have been incorporated in charters: they are not always easy to distinguish from fines: see footnotes^{103, 107}, infra.

¹⁰³ E.g., Select Civil Pleas, S. S. 3 (1201), pl. 26 (A's quitclaim by charter to B in lord's court bars A's heir from suing B's heir); B. N. B. (1225), pl. 1054 (same in King's court because charter quitclaimed for A ‘and his heirs’); Select Cases in King's Bench, S. S. 55 (1274), pl. 3 (same, for himself and his heirs to disseisor and his heirs); Y. B. 20 Ed. I (1292), R. S., pp. 298–300 (same, to B and his heirs and assigns, but not stated to have occurred in court). That the heirs were barred is implied also in Bract, , f. 270bGoogle Scholar, § 1, and in the Statute of Wales, 1284, c. 8 (one may plead in bar a charter of quitclaim from anyone in the descent).

¹⁰⁴ Charter of confirmation implies a warranty only if it purports to give as well as to confirm: Bract, , ff. 388b–399.Google Scholar Most early charters of gift used the formula ‘I have given and hereby confirm; for they were evidencing a previous feoffinent.

¹⁰⁵ See e.g., footnote¹⁰³, ante.

¹⁰⁶ Y. B. 22 Ed. I (Eyre, 1294), R. S., pp. 316–320.

¹⁰⁷ Per Cave J.: All one has to. do is say ‘Yes, Sir’ when asked ‘Do you wish this charter to be enrolled?’ It is not like levying a fine, where the court examined one's condition. ‘And this enrolling is only useful for fear that the deed may be denied or destroyed.’

¹⁰⁸ Bract, , f. 37b:Google Scholar Does an express warranty ‘against all persons’ bind donor and his heirs to warrant against themselves? No: ‘all persons’ must be construed as excluding them, because if they claim the land in demesne their action is evaded by the exception of the donation, (he does not say ‘of the warranty’), since those cannot claim who ought to warrant against others. I have noted only one passage which may indicate that Bracton attached any importance to express warranty as a bar: at f. 394b, he lists ‘donation or sale with express warranty or for homage’ among those exceptions which may avail to a warrantor though not available to defendant (hence the desirability of vouching a warrantor if one can). I have not noted any case of an obviously express warranty pleaded in bar in Bracton's Note Book; compare B. N. B. (1231), 633 (husband and wife conveyed with express warranty and she subsequently sued successfully for dower—married woman's deed does not bind her).

¹⁰⁹ Fleta, Bk. 3, c. 14, § H: by saying in the warranty ‘against all men’ he excludes himself and his heirs, so that they cannot claim in demesne that which they are bound to warrant against others (contrast Bract, , f. 37bGoogle Scholar, see preceding footnote). See also Fleta, Bk. 3, c. 14, § 6: if an express warranty extends to donee and his heirs and assigns, and the donee does assign, the donor's heirs ‘are bound to warrant the gift more strongly than to revoke it.’

¹¹⁰ Britton, Bk. 3, c. 22, § 5: defendant may plead by way of exception that plaintiff's ancestor ‘enfeoffed him and bound plaintiff to warranty and-therefore if he were impleaded by another he should vouch him to warranty.’ Here, be it noted, there is no longer any reliance upon the phrase ‘against all men’; cf. notes^{108, 109}, supra.

¹¹¹ Ante, pp. 91Google Scholar (homage), 101, notes^{80, 93} (charter). Lack of assets by descent had long excused an heir from making escavibium for his father's warranty, though not from his duty to warrant if vouched: ante, vol. 8, p. 293.Google Scholar

¹¹² Stat. 6 Ed. I, c. 3.

¹¹³ Fitz, . Ayde, 175Google Scholar (1263): grantor is still alive and is vouched by grantee; grantee prays aid of heir; aid refused because heir has no interest in the outcome of the action.

¹¹⁴ Fitz, . Garrantie, 87Google Scholar (temp. E. 1); ibid. 95, (1303).

¹¹⁵ Fitz, . Garrantie, 86Google Scholar (temp. E. 1). But another chapter of the statute (c. 7) improved the heir's position in such a case by giving him an immediate writ of entry (so that he can sue before her warranty descends upon him); see also Modus Componendi Brevia, Law Tracts, pp. 149–150.Google Scholar

¹¹⁶ Fitz, . Garrantie, 87 (temp. E. 1).Google Scholar

¹¹⁷ Even donor's own express warranty ceases to bar him and his heirs if the gift fails for breach of condition: Fitz, . Feffements & FaitsGoogle Scholar (1284), No. 114 (Joan gives with express warranty to William, causa matrimonii prelocutiGoogle Scholar: she can recover the land from him if he fails to marry her).

¹¹⁸ Fitz, . Garrantie, 89Google Scholar (temp. E. 1); Garrantie de Charters, 32, s.c.Google Scholar

¹¹⁹ Y. B. 20 Ed. I (1272), R. S., pp. 302–304. ProfessorPlucknett, , Concise History of tht Common Law, 3rd ed., p. 552Google Scholar, n.¹, appears to regard this as a judicial decision upon the construction of the Statute of Gloucester. A second negative seems to be needed in line 14 of p. 552, op. cit.

¹²⁰ 13 Ed. I, Stat. West. II, c. 1. The statute clearly enacts that no tenant in tail shall have power, henceforth, to alienate the entailed land away from his issue, even by a fine. See Y. B. 30 Ed. I (1292), R. S., pp. 300–302, for the scribe's note that a confirmation is lower than a fine, and that therefore an attorney was wrong who contended that, if husband alienated wife's maritagium before De Donis and she subsequcntly confirms his alienation in her widowhood after De. Donis, the issue arc barred irrespective of assets by descent.

¹²¹ Fitz, . Garrantie, 88 (1306)Google Scholar: heir in tail held to be barred, even without assets by descent, on the ground that his father had in fact enfeoffed him of an adequate compensation, which would otherwise have descended to him, and had done this in fraud of the law.

¹²² Holdsworth, , 3 H. E. L. 117Google Scholar, n.⁷; Elphinstone, , 6 L. Q. R. 285–286Google Scholar; 2 Blackst. Comm. 302–303. The only obvious point of contact between the two statutes was husband attempting to alienate his wife's maritagium. The notion of ‘assets by descent’ (as a pre-requisite of escambium from the heir) was much older than either statute: ante, vol. 8, p. 293.Google Scholar