It is evident from these pleadings that assigns were not mentioned in the covenant, and so it has always been taken. 1 It also appears that the plaintiff was trying to stand on two grounds; first, privity, as descendant and assign of the covenantee; second, that the service was attached to the manor by covenant or by prescription, and that he could maintain covenant as tenant of the manor, from whichever source the duty arose.

Finchden, J. puts the case of parceners making partition, and one covenanting with the other to acquit of suit.  A purchaser has the advantage of the covenant.  Belknap, for the defendants, agrees, but distinguishes.  In that case the acquittance falls on the land, and not on the person. 2 (That is to say, such obligations follow the analogy of easements, and, as the burden falls on the quasi servient estate, the benefit goes with the dominant land to assigns, whether mentioned or not, and they are not considered from the point of view of contract at all.  Warranty, on the other hand, is a contract pure and simple, and lies in the blood,—­falls on the person, not on the land. 3)

Finchden:  a fortiori in this case; for there the action [397] was maintained because the plaintiff was tenant of the land from which the suit was due, and here he is tenant of the manor where the chapel is.

Wichingham, J.:  If the king grants warren to another who is tenant of the manor, he shall have warren, &c.; but the warren will not pass by the grant [of the manor], because the warren is not appendant to the manor.  No more does it seem the services are here appendant to the manor.

Thorpe, C. J., to Belknap:  “There are some covenants on which no one shall have an action, but the party to the covenant, or his heir, and some covenants have inheritance in the land, so that whoever has the land by alienation, or in other manner, shall have action of covenant; [or, as it is stated in Fitzherbert’s Abridgment, 1 the inhabitants of the land as well as every one who has the land, shall have the covenant;] and when you say he is not heir, he is privy of blood, and may be heir:  2 and also he is tenant of the land, and it is a thing which is annexed to the chapel, which is in the manor, and so annexed to the manor, and so he has said that the services have been rendered for all time whereof there is memory, whence it is right this action should be maintained.”  Belknap denied that the plaintiff counted on such a prescription; but Thorpe said he did, and we bear record of it, and the case was adjourned. 3

It will be seen that the discussion followed the lines marked out by the pleading.  One judge thought that [398] the plaintiff was entitled to recover as tenant of the manor.  The other puisne doubted, but agreed that the case must be discussed on the analogy of easements.  The Chief Justice, after suggesting the possibility of sufficient privity on the ground that the plaintiff was privy in blood and might be heir, turns to the other argument as more promising, and evidently founds his opinion upon it. 1 It would almost seem that he considered a prescriptive right enough to support the action, and it is pretty clear that he thought that a disseisor would have had the same rights as the plaintiff.