A great part of the case turns upon the manner in which the pleading should be conducted, but it is determined that, unless for want of proper pleading, the person who is liable under the warranty shall not be answerable for the value of the wardship beyond what it was worth when the warranty was made, although lands had descended in the mean time to the infant, which rendered the wardship at the time of the recovery of much greater value, than it was at the time when the conveyance of the wardship and warranty was made.

The case as reported is as follows: (Here is inserted the original.)

(Translation,)

" In a case where Philippa, queen of England brought a writ of ward against Simon Simeon and Maud his wife, who vouched to warranty the lady Bardolff; during the process against the vouchee, Maud the wife of Simeon died. And afterwards the lady Bardolff came into court, and alleged the death of Maud. But this was not admitted an excuse for her by reason of which she should be excused from entering into the warranty. And if she had entered into the warranty she could not have been received to have said this, because she would have warranted also to a per son who was alive.

Wherefore she demanded what they had to bind her (to warran ty). Simon produced a deed by which lady Bardolff had granted the wardsihp to the wife of Simon, that is to Maud, while she was sole, and said he had taken her to wife, by which as it (the wardship) was but a chattel, it was vested in the person of the husband; and so by that deed he would bind the lady.

And the lady demanded judgment whether she was obliged to enter into war. ranty; and notwithstanding it was the opinion of the court that she should warrant, and inasmuch as she has counterpleaded the warranty in the manner whether she ought to warrant, and had on this demurred in judgment, it was awarded that the queen recov. er against Simon, and that Simon recover against lady Bardolff; and a writ issued to the sheriff to extend the wardship and the marriage, who returned that they were worth 200l. Whereupon

a writ came from the chancery to bring into the chancery the record and process by reason of error, &c.

Wich: Appeared at the bar in behalf of lady Bardolff, and said she had sued against the queen by petition, and prayed that the record might not be sent into chancery. And he further said that though the sheriff had returned the wardship to be worth 2001.it was at the time when lady Bardolff was seized of the ward and leased to Simon worth no more than 10/-and that the value now returned by the sheriff is because of lands which have descended to the infant since said lease, and while the infant was in the wardship of Simon, which was an advantage to Simon, but not to lady Bardolff; wherefore he prayed that the reference should be to no other time but that when the wardship passed from the possession of the lady, and that only so much as it was then worth, should be accounted for, and no more.

Stouf: Did the remainder of the land of which you speak descend after the judgment of the recovery in value, or before?

Burt: Whether before or after we consider that the payment can only relate to the value which passed by our deed; for if land shall become more valuable by buildings being erected thereon, or in any other manner, he who recovers in value shall recover only according to that which the land was worth at the time of the con veyance and no more; so here.

Fish: In the case you mention if you enter into warranty sim. ply, without protestation that the land is worth more now than it was formerly, when the alienation was made, you would be bound by the value as it now is, for of any other value neither the court nor the sheriff can have any authority to enquire, unless it is alleged by plea."

I have here translated as much of the case asis particularly pertinent to the question.

Passing from the year books, I find in Brooke's Abridgment, a book of great authority, under the title Recouvrie in Value, Pl. 59.

That

(Here follows the original French.)

(Translation.)

" In a precipe, when the tenant of the land vouches to warranty, when the heir of the feoffee has much increased the value of the land by building upon it, an enquiry shall be made, what was the value of the land at the time of the warranty."

So in Brooke, title Voucher, Plac. 69. it is stated: (Here follows the original.)

(Translation.)

" An assize by Newton. A man makes a feoffment with warranty of lands of the value of 10. a year, and the feoffee improves it by building thereon, or in any other way, so that it becomes worth 40l. a year, and he is impleaded and vouches the feoffer: there, if he says at the time of the feoffment the land was worth only 101. a year, and so far he is ready to enter into warranty, this is good and he shall not render in value beyond 101. a year. And otherwise, (that is if he doth not so plead) he would render 40l. a year. And in the same year in assise in folio 61 per Newton ;If a man aliens land with warranty, which is worth 40 shillings a year, and afterwards in consequence of a mine of lead or tin being found thereon, it becomes worth 40l. a year, if the tenant is impleaded and vouches me, and at the grand cape ad valentiam, I come in and cannot bar the demandant from recovering, I may take issue with the tenant of what value the land was at the time of the warranty, and I shall not render more in value; which is not denied."

Descending from Brooke to Rolle's Abridgment, we find under the title Voucher letter T. Plac. 1.

" Home recovera en value selonque le value d'el terre al garrantie fait."

"A man shall recover in value according to the value at the time when the warranty was made" - So Plac. 2d.

(Here follows the original.)

(Translation.)

"As if land becomes of greater value than it was when the warranty was made, as by the discovery of mines of tin, &c. he shall not be answerable for this increased value, but only for the value at the time when the warranty was made."

Plac. 4. (Here follows the original.)

(Translation.)

" If a man grants a ward, which creates a warranty in law, and after the grant other lands descend to him, by which the ward is of much greater value, yet he who granted the ward shall not be answerable according to this increased value, but only according to the value at the time when the warranty was created; although the whole ward and right of marriage passed to the grantee at the time when the warranty was first created; and the reason is because the increase in value arises from a descent after the creation of the warranty."

In Viner's Abridgment, title Voucher (Tb.) page 145 in the placita 1. 2. 3. & 4. and the notes thereto, we find the same principles recognized. And in page 147 of same vol. pl. 3. at the top of the page, it is there stated that (supposing the land of the same value at the time he enters into the warranty, as it was when the warranty was made) if the land warranted becomes of greater value after the entry into the warranty, the voucher shall only render in value according to the value at the time when the warranty was made, because he had no opportunity to plead the special

matter.

Hence it appears that so clear is the principle, that unless there is default in pleading, the person who is bound by the warranty, shall only be answerable for the value of the land at the time when the warranty was made: that if any thing happens, after he has appeared and entered into warranty, by which the value was encreased, he shall not be answerable according to the value at the time of the recovery; but as he had not, at the time, when he appeared and entered into the warranty, an opportunity of showing this increase of value by then pleading it, for the case supposes the increase to have happened afterwards; yet he shall have a right to show what was the value when the warranty was made, and shall only be answerable according to that value.

It will appear clearly that, with regard to the value to be recovered, the authorities make a distinction between the value of the thing when the warranty was made, and the value when the warranty was entered into, and in my argument I have uniformly stated, that the time when the warranty is entered into is the time when the vouchee comes into court, and offers to warrant the land : and I refer to Booth's Real actions 46, plac. 9, to prove me right, should it be doubted.

Before I leave the subject of warranty and its consequences, it may not be amiss to suggest, that in case of partitions by coparceners, tenants in common or joint tenants, and in exchange of property, the effect of that condition in law, or warranty arising from these transactions, is very different from the warranty in case of lands, &c. belonging to one person and sold for money to another. I

Coparceners, tenants in common, and joint tenants are all equally interested as owners of the property to be divided. If then upon a division made, the part allotted by one is recovered by an elder title, it shows that it was no part of the property to which they had mutually a right; and therefore as the residue of the property only was that to which they were equally entitled, a new partition shall be made of such residue of property, as if no division had been made.

So also in case of dower, the widow is entitled to the one third of the lands belonging to her husband in fee simple or fee tail ;if she is endowed of certain lands which are recovered from her by an elder title, this proves they were no part of the lands to which her husband was entitled at the time of his death, and that it is only in the residue she was entitled, and of that residue she shall be endowed in the same manner as if the first endowment had never been made.

Co. Lit. 173b. 174a. Noy's Maxims 61. 4 Coke 122, 123. In the case of Exchange, one tract of land belonging to the one, is given or exchanged for another tract of land which belonged to the other; (it makes no difference whether land is exchanged for land or for other real inheritance).

In this case, suppose the two persons to be A. and B; if the whole or any part of the land received by A. in exchange from B. be recovered from him by elder title; A. has a right to enter upon and take possession of the whole lands which B. received from him in exchange, in which case the exchange is defeated, No. XIII.

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