for no warranty was ever a bar, until it defcended on a perfon, that is, unul after the death of the war rantor. Rot. Parl. 1.27. § 18. Collateral warranty was fo great a grievance, v. 2. p. 332. that in 50 Edw. 3., the commons petitioned the king to declare that no collateral warranty fhould thenceforth be a bar, unlefs where affets defcended from the warranting ancestor; to which, his Majefty answered, that he would confider of it until the next par liament. Statute of $ 19. There have been feveral ftatutes made to reftrain the operation of warranties. The firft of these is the ftatute of Gloucester, 6 Edw. 1. c. 1., by which it was enacted, that if a tenant by the curtesy aliened, I Inft. 365 a. the estate which he held by the curtefy, with warranty, his son should not be barred by fuch warranty, unless he inherited lands of equal value from his father. 2 Inft. 291. Statute de Lit. f. 708. Gilb. Ten. 142. § 20. The next ftatute by which the operation of warranties was qualified, was the ftatute de Donis Conditionalibus, the object of which being to fecure the continuance of the estate tail to the iffue of the donee, and the reversion to the donor, upon the determination of the eftate tail; it was held by the judges, that a tenant in tail could not bar his iffue by a lineal warranty. But by a kind of analogy to what the legiflature had done, by the ftatute of Gloucester, they held, that fuch a warranty would bar the iffue, if they inherited from the warranting ancestor an estate of 1 Inft. 384. equal value to that which he had warranted; that is, that that a lineal warranty by a tenant in tail, was no bar to the issue without allets. § 21. This reafoning may be extended to the reverfion of the perfon creating the intail, for the statute de Donis is as precife in its protection of the donor's reverfion, as of the estate tail itself; and, therefore, it may be concluded, that no warranty of the tenant in tail will rebut the donor from claiming the reversion, upon the determination of the eftate tail. § 22. William Vefey devifed the lands in queftion to John Vefey his eldest fon for life, and, after, to the heirs male of his body, remainder to Robert Vefey and the heirs male of his body, remainder to William Vefey and the heirs male of his body, remainder to Mathew Vefey and the heirs male of his body, and died, john entered and died without any male iffue, leaving two daughters, Elizabeth and Sarah. After the death of John, Robert entered, and died feifed without male iffue; upon which, William entered, and Mathew died without iffue male in the lifetime of William, William made a feoffment of the lands, with warranty to the use of himself for life, remainder to the ufe of Ann his wife for life, remainder over. William died without leaving any male issue, and Ann his wife entered. Elizabeth and Sarah, the daughters and coheirs of John, brought a formedon in the reverter against Ann the widow of William, who pleaded the warranty of William William, whofe coufins and coheirs they were; and the question was, whether Ann could rebut them by the warranty. Lord Chief Juftice Vaughan argued, that the ftatute de Donis reftrained the warranty of tenant in tail from barring the donor's reverfion, by exprefsly providing, that the donee in tail fhould not have it in his power to bar the donor of his reverfion. Ita quod non habeant illi, quibus tenementum fic fuit datum fub conditione, poteftatem alienandi tenementum fic datum, quo minus ad exitum illorum quibus tenementum fic fuerit datum remaneat post eorum obitum, vel ad donatorem vel ad ejus hæredem (fi exitus deficiat) revertatur. By these words, the donee or tenant in tail is reftrained from all power of aliena tion, whereby the lands entailed may not defcend to the heir in tail after his death; therefore, by these words, he is reftrained from alienation with warranty, which doubtlefs would hinder the lands fo to defcend, if it were not reftrained by the words of the ftatute. By the fame words, the donee in tail is reftrained from the power of alienation, whereby the land intailed may not revert to the donor for want of iffue in tail. Therefore, by thefe words, he is reftrained from fuch alienation with warranty, whereby the lands may not revert to the donor or his heirs, for want of iffue in tail; for the fame words of the ftatute must be of equal power and extent to restrain the donee's aliena-' tion from damaging the donor, as from damaging the iffue in tail. Admit the words of restraint in the ftatute de Donis had been rex ftatuit, &c. Iia quod non habeant illi, quibus tenementum fic fuit datum fub condi fione, poteftatem alienandi tenementum fic datum, per warrantiam, vel aliter quo minus ad exitum eorum remaneat, vel ad donatorem revertatur; it had then been clear to every understanding, that the warranty of the donee or tenant in tail, by the exprefs words of the ftatute, did neither bar the donor nor the iffue in tail, and then obferve what confequences had been rightly deduced from fuch restraint made by the ftatute. The ftatute expressly reftrains the warranty of tenant in tail from barring his iffue; whence it follows, that, by the statute, the issue in tail is not barred by the lineal warranty of the tenant in tail, becaufe his warranty upon the iffue in tail cannot poffibly be any other than a lineal warranty. It may be faid, in like manner, that the statute de Donis reftrains the warranty of te nant in tail from barring the donor, or his heir, of the reverfion the confequence, thence deducible, is, that the statute restrains the collateral warranty of tenant in tail from barring the donor or his heirs, because his warranty falling upon the donor, or his heir, can be no other than a collateral warranty. Now, it is true, the word warranty is not, in fyllables, within the restraint of the ftatute; but it is neceffarily implied in it, else the iffue in tail would be barred by the warranty of tenant in tail, without affets, contrary to all the books fince the making of the statute. But thofe general words of the statute restraining the donees power of alienation in exprefs terms equally and pari paffu for the benefit of the donor, as for the benefit of the issue in tail, can never be understood to restrain the warranty of tenant in tail only, for the benefit of the issue in tail, but not for the benefit of the donor. But the ftatute must necef A collateral Warranty bars Eftates Tail. Gilb. Ten. 142. 145. Sect. 708. to 716. farily reftrain his warranty indefinitely from hurting either; and, by confequence, his lineal warranty is reftrained from hurting his iffue, and his collateral warranty from hurting the donor, to whom his warranty can never be but collateral, as it can never be but lineal, to the iffue in tail. And if the warranty be neceffarily understood and implied in the ftatute, its operation must be the fame as if it had been exprefsly inferted in the ftatute. Then, to fay, that by the restraint of the ftatute, the donees have not power to alien the land intailed quo minus ad exitum illorum remaneat poft illorum mortem, but they have power to alien quo minus ad donatorem revertatur deficienti exitu, would be to make the ftatute contradictory to itfelf, No judgment was given in this case, the court being divided; Vaughan and Archer for the demandant; and Wylde and Atkyns for the tenant: but Vaughan's opi nion is generally held to be law, § 23. A collateral warranty is not prohibited by the ftatute de Donis; for, as that ftatute only declared that the will of the donor fhould be observed, the judges would not extend it to collaterals, who did not take by the gift, and who, therefore, could not be forbidden from barring by their warranty. Thus, Littleton fays, that if a tenant in tail hath iffue three fons, and difcontinues the eftate tail in fee, and the second fon releases by deed to the difcontinuee with warranty, and dies without iffue, this warranty will rebut |