an instrument of grant. 2 The result of all this was that not only a right created by covenant, but the action of covenant itself, might in such cases go to assigns, although not mentioned, at a time when such mention was essential to give them the benefit of a warranty.  Logically, these premises led one step farther, and not only assigns not named, but disseisors, should have been allowed to maintain their action on the contract, as they had the right arising out of it.  Indeed, if the plaintiff had a right which when obtained by grant would have entitled him to covenant, it was open to argument that he should be allowed the same action when he had the right by prescription, although, as has been seen in the case of rent, it did not follow in practice from a man’s having a right that he had the contractual remedies for it. 3 Covenant required a specialty, but prescription was said to be a sufficiently good specialty. 4 Where, then, was the line to be drawn between covenants that devolved only to successors, and those that went with the land?

The difficulty becomes more striking upon further examination of the early law.  For side by side with the personal warranty which has been discussed hitherto, there was another warranty which has not yet been mentioned [395] by which particular land alone was bound. 1 The personal warranty bound only the warrantor and his heirs.  As was said in a case of the time of Edward I., “no one can bind assigns to warranty, since warranty always extends to heirs who claim by succession and not by assignment.” 2 But when particular land was bound, the warranty went with it, even into the hands of the King, because, as Bracton says, the thing goes with its burden to every one. 3 Fleta writes that every possessor will be held. 4 There cannot be a doubt that a disseisor would have been bound equally with one whose possession was lawful.

We are now ready for a case 5 decided under Edward III., which has been discussed from the time of Fitzherbert and Coke down to Lord St. Leonards and Mr. Rawle, which is still law, and is said to remain still unexplained. 6 It shows the judges hesitating between the two conceptions to which this Lecture has been devoted.  If they are understood, I think the explanation will be clear.

Pakenham brought covenant as heir of the covenantee against a prior, for breach of a covenant made by the defendant’s predecessor with the plaintiff’s great-grandfather, that the prior and convent should sing every week in a chapel in his manor, for him and his servants.  The defendant first pleaded that the plaintiff and his servants were not dwelling within the manor; but, not daring to [396] rest his case on that, he pleaded that the plaintiff was not heir, but that his elder brother was.  The plaintiff replied that he was tenant of the manor, and that his great-grandfather enfeoffed a stranger, who enfeoffed the plaintiff and his wife; and that thus the plaintiff was tenant of the manor by purchase, and privy to the ancestor; and also that the services had been rendered for a time whereof the memory was not.