He
says, "And that warranty must be made to assigns according to the
form of the gift is proved [by a case] in the circuit of W. de
Ralegh, about the end of the roll,"&c. /2/ It is not justifiable
to assume that a contemporary explanation of a new rule had
nothing to do with its appearance. Again, the fact is clear that
the assign got the benefit of the warranty to the first grantee,
not of a new one to himself, as has been shown, and Bracton's
explanation of how this was worked out falls in with what has
been seen of the course of the German and Anglo-Saxon law, and
with the pervading thought of the Roman law. Finally, and most
important, the requirement that the assign should be in of the
first grantee's estate has remained a requirement from that day
to this. The fact that the same thing is required in the same
words as in prescription goes far to show that the same technical
thought has governed both.
I have said, Glanvill's predecessors probably regarded warranty
as an obligation incident to a conveyance, rather than as a
contract. But when it became usual to insert the undertaking to
warrant in a deed or charter of feoffment, it lost something of
its former isolation as a duty standing by itself, and admitted
of being [378] generalized.
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