It seems to have
been thought that such a covenant might go either way, according
as it was made to the tenant of the manor or to a stranger.
Markham, one of the judges, says: "In a writ of covenant one must
be privy to the covenant if he would have a writ of covenant or
aid by the covenant. But, peradventure, if the covenant [399] had
been made with the lord of the manor, who had inheritance in the
manor, ou issint come determination poit estre fait, it would be
otherwise," which was admitted. /1/ It was assumed that the
covenant was not so made as to attach to the manor, and the
court, observing that the service was rather spiritual than
temporal, were inclined to think that the heir could sue. /2/ The
defendant accordingly over and set up a release. It will be seen
how fully this agrees with the former case.
The distinction taken by Markham is stated very clearly in a
reported by Lord Coke. In the argument of Chudleigh's Case the
line is drawn thus: "Always, the warranty as to voucher requires
privity of estate to which it was annexed," (i.e. succession to
the original covenantee,) "and the same law of a use .... But of
things annexed to land, it is otherwise, as of commons,
advowsons, and the like appendants or appurtenances .
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