Bracton: Thorne Edition: English. Volume 4, Page 197

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Volume 4, Page 197

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[001] of the court because he had the tenement specifically bound.> Tacitly, as where a
[002] feoffor at the time of the gift has sufficient land wherewith to warrant; what he then
[003] had remains bound, even without express mention, because a person's obligation is of
[004] no value unless he has the wherewithal to make escambium if that becomes necessary,
[005] and thus the tenement is bound tacitly.¹

The tenement is bound if the land comes to a chief lord as an escheat or in some other way though he is not heir, because the thing passes with its burden.

[007] But what if the tenement thus expressly or tacitly bound falls into the hand of the
[008] lord king or of a superior chief lord as an escheat, because of the feoffor's failure of
[009] heirs or felony? Quaere whether he is bound to warrant when vouched to warranty?
[010] It is submitted that he is, because the thing passes with its burden, no matter to whom
[011] it comes.

Whether the king ought to warrant; it may be said that one cannot answer without the king.

[013] Among others, even the king himself may be bound to warrant for the reasons aforesaid,
[014] but nevertheless he cannot be vouched as private persons are vouched, because
[015] he cannot be summoned by writ.² Therefore he whom the king ought to warrant may
[016] say with a certain courtesy thus, that he cannot answer without the king because he
[017] has his charter of gift or confirmation, by which, if he should lose, the king would be
[018] bound to give him escambium, or for another reason, because the king is in seisin of
[019] his homage and service and the like, [And since that the tenant could not answer
[020] without the king was often alleged in order to delay the suit, it was provided and
[021] granted before the king himself at the dedication of Hayles abbey,³ in the presence of
[022] nine bishops and before earl Richard and many other earls, that in future no one, by
[023] reason of any charter of confirmation put forward in court,⁴ may name the king in
[024] court as aforesaid, except where the king is bound to escambium if the tenant loses, as
[025] was then decided [in the case] between the earl of Gloucester and the abbot of St
[026] Edmund, because the abbot's charters, because of which he said he could not answer
[027] without the king, stated only that the king restored, granted and confirmed, and said
[028] nothing of any warranty whereby he would be bound to escambium if the abbot lost.]⁵
[029] which is nothing other than to vouch him to warranty, though in other words.⁶

Notes

1. B.N.B., no. 748 (margin); B.N.B. i, 87-9; infra 214

2. Supra ii, 110, iii, 43, infra 217

3. Nov. 5, 1251

4. ‘ratione . . . de confirmatione,’ from lines 23-24

5. Infra 217; om: ‘Et sciendum,’ ‘dicere . . . respondere,’ a connective

6. Supra iii, 267