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(H 2.) Ejectment of ward. So, if a guardian be ousted of the body and land of his ward, he may have a writ de ejectione custodiæ. F. N. B. 140.
Or, he may have an ejectment for the land only. F. N. B. 140. A.
And a guardian in socage shall have a writ de ejectione custodiæ for the land, as well as a guardian in chivalry. F. N.B.140, C. So, a grantee of the ward. F. N. B. 140. B.
(H 3.) Ravishment of ward. So, by the st. W.2.35. a guardian in chivalry may have a ravishment of ward, if any one takes the body of his ward. 2 Inst. 439.
So, a guardian in socage, by the equity of W. 2. 24. which gives a writ in consimili casu, shall have a ravishment of ward. 2 Inst. 439. F. N.B. 140. D.
So, every ancestor, male or female, shall have a ravishment of ward against him, who wrongfully takes an heir apparent, male or female. R. 3 Co. 38. b.
So, an executor shall have it for a ward, which was taken out of the possession of his testator. 11 H. 4. 55. a.
But it does not lie by a father, for taking and marrying his son after his full age; for then he may marry without the consent of his father. R. Mar. Pl. 8.
(H 4.) Information. So, by the st. 4 & 5 Ph. & M. 8. if any above fourteen convey away any woman child unmarried under sixteen, out of the possession and against the will of her father, mother, or such person as shall have by any lawful ways or means the order and governance of her, except it be by or for the master or guardian of such woman child, &c. he shall suffer two years' imprisonment without bail.
And if any woman child, above twelve and under sixteen, consent to a contract of matrimony with any who so takes her way against the will, or unknowing of her father, or, if he be dead, of her mother, having the custody or governance of her, the next of her kin, to whom the inheritance should descend after her decease, shall enjoy all her lands, tenements, &c. she had at the time of such assent, during the life of him who so contracts matrimony with her. · An information lies upon this statute in B. R. as well as in the Starchamber, or before justices of assise. R. 2 Lev. 179. - And an information lies, where the woman takes as a real estate, though no goods. R. 2 Lev. 179..
But it shall not be within this statute, if the son of B. to whom the mother intrusts the care of her daughter, marries her in a public manner, without the privity of the mother. Semb. 3 Mod. 85.
Or, if he does not use force or craft to compass the marriage. Semb. 3 Mod. 169.
Or, if the mother assent at any time, though she afterwards disagree. 3 Mod. 169. · So, an information lies against any person, who takes out of another's custody, and marries his daughter and heir. R. I Sid. 387; 1 Lev. 257. Cro. Car. 557, 558. Dub. 5 Mod. 221. Carth. 385.
· (H 5.) Trespass. So, by the common law, trespass lies against him, who takes, detains, or marries his ward. 2 Inst. 90.
So, trespass lies by every ancestor male, or female, against him who wrongfully takes the heir apparent. R. 3 Co. 38. b.
By à father or mother guardian by reason of nurture, against a stranger, who takes the infant from them. R. Mo. 738.
And in an action upon the case by a father for the marriage of his son and heir, it is not necessary to say, that he is within age. Sti. 216.
Nor, cujus maritagium ad ipsum pertinet; for it belongs to him by law. R. Sti. 216, 217. 303.
But trespass does not lie for taking and carrying away a son or daughter who is not heir. R. Cro. El. 770.
Nor, for a battery, or imprisonment. R. Cro. El. 55.770. Vide Trespass, (B.5.)
Nor, an action upon the case for the battery of his heir, being his apprentice, whereby he became decrepit, and the father lost his marriage; for the loss of the marriage of an heir is not a cause of action, except where he is taken and married by a stranger. R. Cro. El. 55.
Nor, for the defamation of his daughter, whereby the father loses her marriage. Cro. El. 770.
So, an action lies by the father for the marriage of his son and heir, after his full age. Jon. 411, 412.
(H 6.) Intrusion of ward. If the ward himself, during his nonåge, had entered upon the land, and ousted the lord, he might have a writ of intrusion of ward against him. F. N. B. 141. A.
And it lies after the full age of the heir, as well as during his nonage. F. N. B. 141. E.
(H7.) Valore maritagii. So, if the heir had married himself without the assent of the lord, after convenient marriage tendered to him, the lord might have a ralore maritagii for the value of the marriage, F. N. B. 141. D. F. G.
For more concerning Gardian, vide Accompt, (A 2.- E 3.) — Chancery, (3 0 1, &c.)— Copyhold, (K 5.) — Prærogative, (D 26, 27.)— Prohibition, (G 20.) - Wast, (F 1.)
· GARNISHMENT. Vide ABATEMENT, (I 30.) — ATTACHMENT— PLEADER, (2 X 8, &c.)
GARRANTY. (A) Warranty ; by what words it shall be. p. (396.] (B) Who are bound by warranty. p. [397.] (C) To whom a warranty ertends. p. (397.]
(D) By what conveyance created. p. [398.] (E) To what estates annered. p. [399.] (F) What rights, or titles, are barred by warranty.
p. [399.] (G) What not. p. [400.] (H) what warranties are bars.
(H 1.) Lineal warranty; what shall be. p. [401.]
H 2.) Collateral; what shall be. p. [401.] (H 3.) Collateral in part, and lineal in part. p. 402.7 (H 4.) When lineal warranty shall be a bar. p. 402.7
(H 5.) When collateral warranty shall be abar. p.[402.] (I) Wbat warranties are no bar.
(I 1.) Warranty which commences by disseisin. p.5 403.7 (I 2.) If the warranty does not descend upon him,
who claims the land. p. [404.]
the estate, to which, &c. p.[404.]
(I 5.) When a warranty is not defeated. p. [475.] (K) how a man shall take advantage of a warranty.
(K 1.) By warrantia chartæ. [p. 405.]
(A) Warranty; by what words it shall be. A warranty is a covenant real annexed to lands or tenements, whereby a man and his heirs are bound to warrant the same lands, and to render in value, if they are evicted by a former title. Co. L. 365. a.
Warranty is express or implied. Co. L. 365. a.
No word in law makes an express warranty, except the word warrantizo. Lit. s. 733.
But a feoffment by the word dedi, implies a warranty to the feoffee and his heirs during the life of the feoffor. Co. L. 384. a.
And before the st. quia emptores terrarum, 18 Ed. 1.1. if a feoffment was by dedi tenendum of the feoffor and his heirs, the heirs as well as the feoffor himself were bound to warranty in respect of the tenure. Co. L. 384.a.
So in an exchange, the word eccambium imports a mutual warranty. Co. L. 384. a.
So, in a partition, it is implied that the one warrants the other. Co. L. 384. a.
So, in homage auncestrel, the lord is bound to warrant his tenant. Co. L. 384. a.
So, if a gift in tail, or lease for life, be by or without deed, rendering rent, the donor or lessor is bound to warranty. Co. L. 384. b.
So, if the hein assign dower, he is bound to warranty. Co. L: 384.b. 2 Rol. 738. 1. 50.
But concessi does not imply a warranty. Co. L. 484. a.”
So, dedi, in letters patent of the king, does not import a warranty; for the king is not bound to warranty except by express words. 2 Inst. 269.
So, a grant, cum clausuld warrantiæ, these words do not create a warranty. 3 Rol. 739. I. 17.
What words make a covenant express, or in law, vide Covenant, (A 1, &c.)
(B) who are bound by a warranty. An express warranty never binds the heir to warranty, unless he be named; as, ego et hæredes mei warrantizabimus, &c. Co. L. 383. b. 384.b.
But an exchange, partition, homage auncestrel, which are warranties in law, bind the heir to warranty. Co. L. 384. a. (a)
So, if a father and his heir apparent join in a warranty, the heir is doubly bound, by his own warranty and as heir to his father. R. Mo. 20.
If two join in a warranty, and the one dies, the heir and the survivor may be vouched. Mo. 20. Or, the survivor alone may be vouched at election. Mo. 20.
. (C) To whom a warranty ertends. If a man warrant land without saying to whom, it shall be intended to the feoffee. Co. L. 383. b.
If he warrant to B. without more, this extends only for his life, for default of the words, his heirs. Co. L. 47. a. 384. b.
Though he warrant to B. against him and his heirs. Cro. El. 602.
So, if a man warrant, without saying, for him and his heirs, it will be a warranty for his life only. R. Cro. El. 602.
But if a man warrant to B. and his heirs, the warranty extends to the heirs. Vide Co. L. 47. a.
So, dedi extends to the feoffee and his heirs, during the life of the feoffor. Co. L. 384. a.
So, an exchange, partition, homage auncestrel, import a warranty to the party and his heirs. Co. L. 384. a.
So, if there be a feoffment to A. and his heirs, and a warranty to him in forma predicta, that extends to his heirs. Co. L. 385. b.
So, if a warranty be to A. and his heirs, it shall be general against all persons, though it does not say, against all persons. R. 2 And. 118.
So, if a man warrant to B. his heirs and assigns, this extends to all assigns and their assigns toties quoties for ever. Co. L. 384. b.
If to A. and B. et eorum hæredibus et assignatis, it extends to an assignee of the heir of the survivor, &c. Co. L. 384. b.
So, it extends to an assignee of part of the land. Co. L. 385. a.
So, if a feoffee makes a gift in tail, or a lease for life, remainder in fee, the donee or lessee may vouch as assignee; for his estate and the remainder make but one estate. Co. L. 385. a.
If there be a feoffment to A. and B., and A. assigns his part, B. might vouch for his moiety. Co. L. 385. a.
If there be a feoffment to three, and one releases to the two others, they may vouch. Co. L. 385. a.
If there be a feoffment to A. who enfeoffs B., who re-enfeoffs the heir of A., he may vouch as assignee. Co. L. 385. b.
But generally a warranty does not extend to assigns, unless they are named. Co. L. 384. b.
If there be a feoffment to A. and B. their heirs and assigns, and one of them assigns, it does not extend to such assignee. Co. L. 385. b.
So, a warranty to one, his heirs and assigns, does not extend to an assignee of part of the estate; as, if the feoffee makes a gift in tail or a lease for life, the donee or lessee is not an assignee, but he may vouch his donor or lessor, and so take advantage of the warranty. Co. L. 385. a.
So, if the donee make a feoffment, the feoffee cannot vouch as assignee, but must vouch his feoffor. Co. L. 385. a.
If there be a feoffment to A. who enfeoffs B., who re-enfeoffs A., he or his heirs cannot vouch; for he cannot be assignee to himself. Co. L. 385. b.
Yet by an exchange, or feoffment with the word dedi, the assignee may rebut, though he cannot vouch. Co. L. 384. b.
So, if there be a feoffment with warranty, without saying, to the assigns, yet an assignee, or any tenant of the land, may rebut. Co. L. 385. a.
So, though a disseisor, abator, intruder, &c. cannot vouch or have a warrantia charta, because he has no privity, yet he may rebut. Co. L. 385. a.
So, cestuy que use may rebut, though he comes in the post. R. Sal. 685.
But a man who claims paramount, and not under the warranty, cannot vouch or rebut; as, if a feoffment be to two brothers, with warranty to the eldest and his heirs, who dies without issue; the youngest cannot vouch or rebut, for he does not claim as heir, but by the feoffment. Co. L. 385. a.
If there be a gift in tail with warranty to the donee, his heirs and assigns, who makes a feoffment and dies without issue; the feoffee cannot vouch or rebut, for the estate to which the warranty was annexed, is determined. Co. L. 385. a.
When a covenant binds or extends to heirs or assigns, vide Covenant, (B1, &c.-C 1, &c.)
(D) By what conveyance created. Warranty may be created by any conveyance of lands, tenements, or hereditaments; as, by fine, feoffment, &c. Co. L. 371. a.
By gift in tail, or lease for life. Co. L. 371.