[121] Commodatam, locatam, &c. The Reader will recognise these Terms as borrowed from the Roman Law.
In the [tenth Book], our author resumes the discussion of them.
[122] Warrantum. Sir Henry Spelman is inclined to derive this Term from the Saxon Primitive War, arma, telum, defensio, &c. Dr. Sullivan tells us, it was derived from War, because, in real Actions, the Trial was of old by Combat. Dr. Cowell, however, prefers deriving warrantia from the French garantie or garant. The Doctor notices the stipulatio of the Civilians, but, as he observes, “this reacheth not so far as our warranty.” The term, it seems, is of great antiquity, and is said not to have been unknown to the Longobardi in their original settlements. (Spelm. Gloss. ad voc. and Cowell’s Interpreter, ad voc. and Sullivan’s Lectures, 119.) It does not fall within the scope of these notes, to bring the Law down to the present day.—The translator would otherwise have availed himself largely of Bracton’s 5th book. Fleta L. 5. c. 4. Britton 197, &c. Co. Litt. 364. b. et seq. and Mr. Butler’s admirable annotations.
[123] Escambium, a term used in Domesday. Sir Edward Coke, in speaking of a warranty, observes, that it is a covenant real, annexed to Lands, whereby a man and his heirs are bound to warrant the same “and to yield other Lands and Tenements (which in old books is called in Excambio) to the value of those that shall be evicted by a former title.” (See Co. Litt. 365. a. and 51 b.) It should seem from Bracton, that if the warrantor had not sufficient property to make a full restitution, he was to do so as far as his property extended, and the Tenant was to wait, until better times, for the deficiency. If the Warrantor had no property, he was not, from that circumstance, to be entirely absolved from making restitution, whilst there was any probability of his inheriting property from that person, on account of whom he was called to warrant.
On the other hand, he was not bound to warrant the deed of his ancestor, at the expense of any purchase made by himself.—Nor was the recompense to be estimated, beyond the value of the property at the time it was originally warranted.—Nor was one of many warrantors, required to bear the burthen solely, the others being obliged to contribute, (Bracton 394. b. 395. a. See also le Grand Custum. de Norm. c. 50.)
[124] “At the day assigned to the warrantor for appearance, he may essoin himself, or not essoin himself.
“If he neither appears, nor sends an Essoin, the power and benefit of the Law shall be denied to him which is granted to others: for it is an unseemly thing and an iniquity (that he being summoned, appears not by himself nor by another.)” (Reg. Maj. L. 1, c. 21.)
[125] Having laid down the same doctrine, the Regiam Majestatem adds, “it is so to be understood of all other things debateable, whereof the Warrantor is not called in lawful time.” (L. 1. c. 32.)
[126] Knowledge, according to the Harl. and Bodl. MSS.
[127] Attachiabitur. Attachiare is said to be derived from the French attacher. It differed from arrestere in many respects. An Arrest, say the old Books, proceeds out of the inferior courts by precept; an attachment, out of the superior courts by precept, or writ. (Lamb. Eiren. L. 1. c. 16.) An Arrest lies only against the body of a Man; an Attachment, sometimes against the goods only. Thus Kitch. (fol. 279. b.) says, a man may attach a cow; and, in another case, that a man may be attached by a hundred sheep; and it is sometimes awarded against the body and goods together. An Attachment is said to differ from a capias, because the former is more general and extends to the taking of the goods, a capias extending to the body only. An Attachment is laid down as differing from a Distress, inasmuch as it is a Process enumerated to issue, previous to a distress. Thus far our old law Books, (vide Termes de la ley ad voc. attach. Cowell’s Interpreter and Spelman’s Glossary.)