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The only point remaining to make the analogy between covenants
for title and warranty complete was to require assigns to be
mentioned in order to enable them to sue. In modern times, of
course, such a requirement, if it should exist, would be purely
formal, and would be of no importance except as an ear-mark by
which to trace the history of a doctrine. It would aid our
studies if we could say that wherever assigns are to get the
benefit of a covenant as privies in estate with the covenantee,
they must be mentioned in the covenant. Whether such a
requirement does exist or not would be hard to tell from the
decisions alone. It is commonly supposed not to. But the popular
opinion on this trifling point springs from a failure to
understand one of the great antinomies of the law, which must now
be explained.
So far as we have gone, we have found that, wherever [381] one
party steps into the rights or obligations of another, without in
turn filling the situation of fact of which those rights or
obligations are the legal consequences, the substitution is
explained by a fictitious identification of the two individuals,
which is derived from the analogy of the inheritance. This
identification has been seen as it has been consciously worked
out in the creation of the executor, whose entire status is
governed by it.
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