IN describing the manner of suffering a common Of Voucher. recovery, it has been said, that when the tenant 1 Inst. 101 b. to the præcipe appears in court to answer the demandant's writ, he, instead of defending the title to the land, vouches, that is, calls on another person, who is supposed to have warranted the title to him at the time of the original purchase, and prays that the said person may be called in to defend the title which he warranted, or otherwise to give lands of equal value to those which he shall lose by the defect of his warranty.

2. In all real actions the demandant has a right to Pigot, 15. counterplead the voucher; that is, to show in his replication that the tenant ought not to be allowed such a voucher; and the vouchee may also counter

1 Inst. 265 b.

Jenk. Cent.

100.

plead the warranty, by showing that he was not obliged to warrant the lands to the tenant. But when a person is vouched to warranty, and enters of his own accord into the warranty, the law presumes that he parted with his possession with warranty, and comes in now to warrant the same possession, otherwise he would not enter into the warranty, but would counterplead it, for he may demand the lien; and if the tenant shows a lien, he may counterplead it. But if he enters into the warranty without demanding a lien, no person can afterwards aver that there was no warranty; for when the vouchee, by entering into the warranty, binds himself to render in value, in case the demandant recovers, the cause of warranty is not examinable either by a privy or a stranger, be cause the law will presume that the vouchee was compellable to enter into the warranty, otherwise he would never run such a risque.

3. When the vouchee has entered into the warranty, he comes in loco tenentis, and in judgment of law, is tenant to the demandant; and then the demandant counts against him as he did before against the tenant; and the vouchee may plead all those pleas which the tenant might have pleaded, and also any pleas which may arise after he has entered into the warranty.

4. Thus, if a præcipe quod reddat is brought against A., who vouches B., who enters into warranty, and afterwards the demandant releases all his right to A.; there, although A. cannot plead this release, because from the time when B. entered into the warranty A. was not before the Court, yet B. may plead this release, or may plead a release to himself

from the demandant.

5. The demandant may release to the vouchee, 3 Rep. 29 b. although the vouchee has nothing in the land; for when the vouchee enters into the warranty, he becomes tenant to the demandant, and may render the land to him on account of the privity which is be

tween them. And if a fine be levied by a vouchee Tit. 35. c. 5. to a demandant, or by a demandant to a vouchee, it § 34. will be good, because the vouchee is supposed to have

the freehold.

by Attorney.

6. If the vouchee is present in court, he imme- of vouching diately enters into the warranty; in which case, the in Person or entry in the record is thus:." And the said William, in his proper person, cometh and defendeth his right, when, &c. and thereupon voucheth to warranty Roger Blagrave, Esq. who is present here in court, in his proper person, and freely warranteth to him the tenements aforesaid."

7. It frequently happens, that neither the tenant nor the person vouched can conveniently appear personally in court, in which case they make warrants of attorney to some other person to appear in their stead. The warrant of attorney of the tenant to the præcipe is thus: "A. B. puts in his place C. D. and E. F., his attorneys, jointly and severally, against J. B., to gain or lose in a plea of land, &c." And if he person who comes in as vouchee makes a warant of attorney, it is thus: "J. K., whom A. B. Voucheth to warranty, putteth in his place L. M. and N. O., his attorneys, jointly and severally, against J. B., to gain or lose in a plea of land, &c."

8. These warrants of attorney must be acknowedged either before a judge, who is to sign them, or before the justices of assise where the lands lie; or else before commissioners appointed by a writ of ledimus potestatem de attornato faciendo; who must

Fitz. N. B.

17.

Wynne v. Wynne, infra,

Bolderow v. Futter, infra.

certify the names of the persons whom the tenant and vouchee appoint for their attorneys, under their hands and seals.

9. This writ of dedimus potestatem is not founded on the statute of Carlisle, which only extends to persons intending to acknowledge fines, but is a writ provided by the common law, to enable persons sued in real actions, who cannot appear personally in court, to appoint attorneys in their stead; and where a common recovery is suffered in this manner, the warrant of attorney is the foundation of the recovery, all the subsequent proceedings being, in fact, mere matters of form.

10. If a tenant or vouchee, who has appointed an attorney for the purpose of suffering a recovery, dies before such attorney has actually appeared for him, the recovery will be void: because the death of such tenant or vouchee is a determination of the warrant of attorney; and that circumstance may be averred, it not being contrary to the record.

11. If the warrant of attorney appears to have been given after judgment, the recovery will be void; for the writ of dedimus potestatem de attornato faciendo recites, that the writ of entry is pending, which is not the case after judgment; and the appearance of the attorney before the warrant was made was with out authority, and therefore void.

suf

12. The acknowledgement of a warrant of attorney may be void, and, of consequence, the recovery infra, c. 11. fered pursuant to such warrant, on account of any legal disability in the person who acknowledges it; and such disability may be averred; in which it dif fers from the acknowledgement of a fine before com missioners appointed by a writ of dedimus potestatem: for the acknowledgement of a fine is the assent of

the party to the accommodation of the suit, by which it is absolutely completed, and the entry of the concord is the same as entering up judgment; but the acknowledgment of a warrant of attorney to suffer a recovery, is nothing more than a judicial mode of appointing another person to appear in court for the tenant or vouchee, and is no part of the record hence these two acts are attended with very different consequences.

;

13. By the statute 23 Eliz. c. 3. § 5. it is enactea, that every person who shall take the knowledge of any warrant of attorney, of any tenant or vouchee, for suffering of any common recovery, shall, with the certificate of the warrant of attorney, certify also the day and year whereon the same was acknowledged. And that no person who takes any such knowledge of any warrant for any recovery, shall be bound to certify such warrant, except it be within one year 1 Taunt. 418. next after the said knowledge taken; and that no clerk or officer shall receive any writ of entry whereupon any common recovery was thereafter to pass, unless the day of the knowledge of the warrant appeared in or by such certificate.

Vernon,

14. It has been lately held by the Court of Com- Jennings v. mon Pleas, that where there are several vouchees, 3 Bos. & Pul, they must all join in one warrant of attorney; for 361. though all the vouchees should appoint the same attorney, yet if there are several warrants of attorney, and several captions, the recovery will not be allowed to pass.

15. By a rule of court made in Hil. 14 Geo. III. for the more effectual and certain proof of the due acknowledgement of warrants of attorney taken from the tenants or vouchees in common recoveries, by virtue of any writ of dedimus potestatem, it is ordered VOL. V.

Cc

Rules of

Court respecting Warrants of Attorney,