Bracton: Thorne Edition: English. Volume 4, Page 228

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Volume 4, Page 228

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[001] who is appealed of life and members, until it is established whether he can or cannot
[002] defend himself of felony, for he is no more bound to answer to the warranty, while the
[003] accusation is pending, than to the principal plea, because after condemnation everything
[004] done with him after the felony committed must be invalidated and revoked,¹
[005] and even his offspring begotten after the felony disinherited.² The warranty is therefore
[006] suspended until it is clear who ought to succeed him because of the felony,³

Of him who ought to stand in the place of the heir.

[008] [and so if the warrantor dies without an heir pending the plea of warranty, until it is
[009] clear to whom his land ought to revert as his escheat,]⁴ since that person ought to
[010] stand in the place of the heir with respect to gifts made before the felony.⁵ If the warrantor
[011] is hanged or outlawed let the plea then be begun again, in the same state in
[012] which it was when the tenant first vouched the warrantor, when it has been established
[013] whose escheat that inheritance ought to be, as [in the roll] of the eyre of William
[014] of Ralegh in the county of Warwick, [the case] of a certain William son of Robert.⁶

We must see whether the warrantor who died held in fee or for life.

[016] We must also see whether the warrantor who died held in fee or only for life, as in
[017] dower or in some other way, as a free tenement which after the warrantor's death is
[018] to revert to the owner of the property. If in fee, let what was said above be done; if for
[019] life, and the owner has impleaded [the tenant], neither the writ nor the principal plea
[020] then falls, only the plea of warranty, which cannot begin again in the persons of the
[021] [deceased's] heirs, and let the principal plea proceed as though the tenant had not at
[022] the outset vouched a warrantor.

One may enter into a warranty of his own will, though not vouched, to protect his own right.

[024] Though not vouched to warranty, one may enter into a warranty for the protection
[025] of his own right, as where one [who] holds land for life, as a woman in the name of
[026] dower, or in some other way, or for a term, which after the life estate or the term, was
[027] to revert to the owner, fraudulently and to the disherison of the owner allows himself
[028] to be impleaded by another, and though he could vouch the owner to warranty in his
[029] defence fails to do so; the owner, when he sees danger threatening him therefrom, may
[030] well enter into the warranty in order to defend his own right, on his own initiative and
[031] though not vouched, [since it is better and more useful to take action in time than to
[032] seek a remedy after one's cause has been lost,⁷ and so overcome men's wickedness,]

Notes

1. Supra ii, 319, infra 292, 329

2. Supra ii, 366

3. ‘propter delictum,’supra ii, 195, 234

4. ‘ut de eschaeta,’ from rubric

5. Supra ii, 100

6. Not in B.N.B.

7. C. 3.27.1.pr.; supra iii, 406, infra 280