Bargain and sale with warranty is no discontinuance to him in remainder. 3 Lev. 16. 10 Co. 65. 95. Warranty in this case will not bar, because the particular estate to which it is annexed determines upon the death of the tenant in tail without issue. Co. Litt. 329. Vide 2 Burr. 707. Bro. Diss. de Poss. pi. 20. 27. Co. Litt. 327. vide 601. 3 Co. 85. Latch. 64. 72. A discontinuance takes away entry. Co. Litt. 327. 339. 325. If an intruder dies seised, entry is tolled. Co. Litt. 238.
Sincere. Whether warranty can toll entry at this day? Whether the reason of the law is not changed, as the warranty may be given in evidence in ejectment, and is not lost by entry. 10 Co. 95. Salk. 244.
A descent cast when the heir, who hath right of entry, is within age, shall not toll the right of entry; but contra, If the infant had no right of entry at the time of the descent cast. Co. Litt. 245. b. 3 Bac. Abr. tit. Infant. See Co. Litt. 327. 329. why a warranty binds. It is not the warranty alone which makes the discontinuance; but the warranty and descent. Co. Litt. 329. A warranty has the effect of a discontinuance in taking away entry. Co. Litt. 339.
*279A warranty will work the effect of a discontinuance, in snany instances, where a mere deed of feoffment will not. Co. Litt. 340. 391. sect. 743. If tenant in tail makes a lease for the life of the lessee, and afterwards bargains and sells the reversion in fee, it is a discontinuance. Co. ■Litt. 333.
By a bargain and sale by tenant in tail, a base fee passes determinable upon the entry of the issue in tail. Salk. 619. 1 Saund. 260. 2 Raym. 778. Comyns, 110. Gilb. Ten,. 119, 120.
Objection. Bargain and sale by tenant in tail, conveys no more than the tenant may lawfully convey, which is for the life only of the tenant in tail, and the warranty in this case, extends only to the estate conveyed, which being determined upon the death of the tenant in tail, the issue may enter, no warranty descending. 10 Co. 96. Seymour1 s case.
Answer. All grants, confirmations, releases, &c. by tenant in tail, convey only what he may lawfully convey. Co. Litt. 330. sect. 600.606,607, 608. comment on section 610. 612, 613. and yet when a warranty is annexed to these conveyances, it works a discontinuance. Co. Litt. 339, 340. 329. sect. 640, 641. 601. 637. 606, 607, 608. Co, Litt. 325. 373.
A feme covert may bind herself by a warranty', in a fine suffered by Baron and Feme. 1 Mod. 66. 290. 2 Saund. 180. 2 Saund. case 177. 2 Keb. 684. 703.- 709. 723. Hob. 20. and so in a bargain and sale, Baron and Feme, 174, 175.1 Lev. 301. 1 Sid. 466. 1 Danv. Ab. 708. 2 Danv. SO, 1 Brownl. 90. 2 Brownl. 169. Bob. 20. Moor, 859. 4 Led. 250. Winch. Ent. 427.
The issue in tail could not enter against warranty', but was put to his formedon, in order that the defendant might plead assets in bar. At this day the issue in tail is not barred without assets. ^ucere. Whether warranty works a discontinuance so as to toll entry ? Anszuer. Assets or no assets must come in question, upon suit brought as well now as before, and it would be strange to allow the entry *280before that question is determined ; a suit, therefore, must be brought, of such a nature, as would lie without an entry: so at common law, if assets descended, the issue in tail was bound, and if there be a release with warranty, the issue jn could not enter, but would be put to his suit, in order to bring the point, assets or no assets, in question. Co. Lilt. sect. 6QO. He must brin 'gformedon. Co. Litt. 326.
Though the reason of the law be changed, yet if it be once introduced as the rule of property, it is not to be departed from, 2 Burr. 110/.
A bargainee may vouch to warranty. Shep. Touch. 222. Though a bargainee be jn the post, he may rebut, and vouch, if there be warranty.' Shep. Touch. 222. 200. 529. J99, Moor, case 1180.3 Co, 62. Woods's Convey, 651.1 Modf 192. 2 Mod. 14. Gilb, Ten, 128. 136. What is rebutter and voucher, see Jacob's Dictionary, and Termes de la Ley.
Upon confirmation, or release with warranty, releasee or confirmee cannot vouch but may rebut. Llob. 20. 22. Warranties are favourably expounded. 5 Bac. 57. A bargain and sale is upon a footing with a release. Gilb. Ten. 119. Where a deed passes an estate, subject to the entiy of the issue in tail, it is no discontinuance ; but if there be a warranty, it works a discontinuance, Gilb. Ten, 126. Co. Litt. 340, 339. A release alters the estate of the disseisor, Gilb. Ten, 55. Co. Litt, sect. 466. Confirmation may bind the estate, but not alter it, Popham 51.
The Provincial Court gave judgment for the plaintiff