Bracton: Thorne Edition: English. Volume 4, Page 221

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Volume 4, Page 221

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Because of the variance, if the tenant once acknowledges that he held the tenement only for the life of or at the will of the lord who is vouched to warranty.

[002] One is not bound to escambium or to warranty where there is a variance, as where he
[003] once acknowledges that he holds the land only at the will of such a one, his lord, and
[004] afterwards says that he holds in fee; he falls from his intentio because of the variance,
[005] as [in the roll] of Hilary term in the eighth year of king Henry.¹ And so where one
[006] having been asked in a plea of purparty whether he holds as heir, admits that he does
[007] and afterwards says that he was enfeoffed thereof and vouches a warrantor; he will
[008] not be heard because of the variance, since this variance is contrary to the writ and to
[009] the demandant's intentio, to which he first agreed. But if he had first admitted that he
[010] held as feoffee, not as heir, in contradiction of the writ, and afterwards varies and
[011] admits that he is heir, such variance must be allowed, because it is not prejudicial to
[012] the demandant; but not the first, because that is prejudicial.

One is not bound to warranty or to escambium with respect to his tenant's feoffment and incumbrance, nor to his injuria and wrongful detention.

[014] One is not bound to warranty, with respect to his tenant's injuria and wrongful detention,
[015] against one enfeoffed by that tenant,² as where A. enfeoffs B. of a tenement
[016] and B. enfeoffs C.; C. dies, leaving infant heirs and B. takes the tenement into his
[017] hand by reason of wardship; when the heir comes of age he brings the assise against
[018] B. who vouches A. to warranty. He will not be bound to warrant with respect to B.'s
[019] injuria and wrongful detention, because it would follow that if the heir recovered his
[020] tenement, that A. would be bound to give escambium to B., which would be unjust.
[021] On this matter may be found in the roll of Hilary term in the fourteenth year of king
[022] Henry, an assise of mortdancestor [beginning] ‘if Galfrid the father of Gilbert,’³ which
[023] land the prior of Colne held, who vouched one William de Muntcheseney against the
[024] said Gilbert and where the same William came and acknowledged that the house of
[025] that prior of Colne was enfeoffed by his ancestors of the tenement as to which the
[026] assise was arraigned, but said that the prior's predecessors had enfeoffed the said
[027] Galfrid on whose death the assise was arraigned; whereupon it was there decided that
[028] William was not bound to warranty

Notes

1. B.N.B., no. 1627; C.R.R., xi, 668 (Mich. 7-8): sidelined

2. Supra iii, 268

3. B.N.B., no. 387, C.R.R., xiii, 2539 (sidelined)