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(where the question was, whether upon a clause of warranty real, annexed to a freehold, an action of covenant to recover damages would lie,) as follows:– “That this action of covenant will lie, because that though the warranty be annexed to a freehold, yet the breach and impeaching was not (in that case) of a freehold, but of a chattel, that is, of a lease for years, for which there could neither be voucher, rebutter, nor warrantia charta: ; so that though there had been a judgment of a warrantia charta in this case, yet neither upon entry nor upon recovery in ejectione firmat upon this lease, there could be neither voucher, nor rebutter, nor value upon the warrantia chartae; and therefore a real warranty is a covenant real, when the freehold is brought in question. But when a lease is in question, or any other loss that doth not draw away the freehold, it may be used as a personal covenant, whereupon damages may be recovered, so it is both a real and personal covenant to several ends and respects.” It will be perceived, that the breach in this case was merely of an antecedent lease for years created by the warrantor, under which the lessee entered, and therefore the tenant was not ousted of the freehold [for life] which was granted to him, and to which the warranty was annexed. And the opinion of the court turned on this point. But it may be inferred, that if the whole freehold had been gone by a superior title, that then the covenant would have been held a real covenant by the court, upon which he could not have had a personal remedy. But chief justice Parsons, in Gore v. Brazier, 3 Mass. R. 523, 545, held that a personal action would have lain in England upon a covenant of warranty annexed to a fee, and where the ouster was of the freehold by title paramount. And he cited 1 Brownl. 21; 2 Brownl. 164, 165, as in point. The case cited, I suppose, is Waters v. Dean, &c., of Norwich, 1 Brownl. 21; S. C. 2 Brownl. 158, &c. But there the plaintiff sued on a covenant to save harmless, &c., during the term, which was for life, and the breach assigned was a disturbance by an antecedent lease to one T. for years. So that the case was not different from that in Hobart, the freehold not being brought in question. It is true, that lord Coke, who was chief justice, in giving his opinion, said, among other things, “that covenant in law extends to lawful evictions, and to estates in being, and not where an estate is determined.” “So also he supposed to express real covenants, which extend to freehold or inheritance, as warrant and defend, upon which a man cannot have an action if he be not ousted by one which hath title.” This last sentence is that upon which chief justice Parsons seems to have relied; but it is manifest that lord Coke was referring to the difference between a covenant in law and an express covenant, and not to the cases in which covenant would lie on a warranty. According to the case of Pincombe v. Rudge (Hob. 3), there is no doubt that covenant would lie, if the ouster by title paramount was not of the freehold, but for a term of years only. For is it to be presumed that lord Coke had any notion in his mind, that, if the ouster was in fee, covenant would lie on a warranty? And the covenant in the case before the court was not a warranty, but a covenant to save harmless and acquit; in short, equivalent to a covenant for quiet enjoyment. Besides, the case in Brownlow was decided in 10 Jac. 1; and that of Pincombe v. Rudge was finally decided in the exchequer chamber by all the judges, in 11 Jac. 1. And, therefore, if there be any discrepancy between them, the principle established by all the judges in the last case is the true one. And it seems to me that there is a necessary implication in this last case against the doctrine of chief justice Parsons. At all events, the authority he relies on, does not support his dictum. Pincombe v. Rudge is also reported in Noy, 131, and Yelverton, 139. S.
ART. VIII. – NEW COMMENTARIES ON THE LAWS OF
The Rights of Persons, according to the text of Blackstone,
The Principles of the Law of Real and Personal Property,
New Commentaries on the Laws of England, (partly founded on Blackstone.) By HENRY John STEPHEN, Sergeant at Law, author of the Treatise on Pleading, &c. First American edition. Wol. I. New York: Halstead & Woorhies, 1841. 8vo.
A chronological account, combined with a full and accurate criticism, of the several editions of Blackstone's Commentaries, would not only constitute a history of the law itself but also of its state and culture as a science, in England, since the first publication of that most popular and successful of legal works. When the Commentaries first appeared, they were deemed altogether too elegant to be made the basis of a professional education, and were subjected to criticism only for their supposed political character and tendency. After some time, however, they began to be more used like other law books, for the law they contained, and then they began to be edited, as other law books were, with copious notes and references. The first, we believe, who published Blackstone, with notes, was sergeant Williams, the learned editor of Sanders's Reports. As new editions became needed, from time to time, new editors appeared; until, at last, their accumulated labors amounted to a most cumbrous and unwieldy mass. Within a few years, a new fashion has been adopted, specimens of which are before us, in the works mentioned above. The general plan now seems to be, to adapt the text of Blackstone, unencumbered with notes, to the wants of modern times. Of the several works, which have been published on this plan, we have seen only those of Messrs. Stewart and Stephen, neither of which has yet been completed. Both these works, we should judge from a short examination, are well executed, though in a different manner. Mr. Stephen's first volume contains the first and second books of Blackstone, and his second will contain the residue ; so that the Commentaries, in his hands, will be cut down about one half. Mr. Stewart's works, which are independent of each other, on the contrary, will somewhat exceed the Commentaries in bulk; each of the volumes above indicated being a few pages larger than the corresponding volumes of Blackstone. This difference of size results from the different mode adopted by the respective authors. Mr. Stewart alters the text of Blackstone, and also makes additions to it, to indicate the changes that have taken place since his time; while Mr. Stephen cuts out the obsolete parts altogether, and contents himself with merely adding the new matter. The work of the former is a compound of Blackstone and Stewart;" that of the latter is a restoration of the Commentaries,
* One of the earliest law books of any pretensions, published in this country, was a Digest of the Laws of Massachusetts, in four volumes, by William Charles White; in which extracts from the elegant pages of Blackstone were somewhat unceremoniously and incongruously mixed up with statutes and reported cases. The only criticism we recollect ever to have heard of this work was, that it was made up of here a little Black-stone and there a little
or a rewriting of them, as the author himself would have done, had he belonged to the present age. In Mr. Stephen's work, the portions of Blackstone retained are included in brackets. In that of Mr. Stewart this has not been done. It, consequently, frequently happens in the latter, that a sentence, which we recognise as Blackstonian, is followed by language which could not have been written by the commentator. Take the following as an example. The words in brackets are Mr. Stewart's ; the residue of the sentence is slightly altered from Blackstone.
“All such donations are, indeed, now out of use; for, since the statute of quia emptores, 18 Edw. I., none but the king can give lands to be holden by spiritual tenure. So that I only mention frankalmoign, and tenure by divine service, because the former is excepted by name in the statute of Charles II., and the latter is not affected by it, and therefore they subsist in many instances at this day. [It may further be observed, that the Real Property Commissioners do not propose to make any alterations either in tenure in frankalmoign, or in tenure by divine service.] Which is all that shall be remarked concerning them ; herewith concluding our observations on the nature of tenures.”
In Mr. Stephen's work, the portion of Blackstone which is retained is carefully distinguished from the residue, by being enclosed in brackets. Mr. Stephen has been long favorably known to lawyers, and especially students at law in this country, by his beautiful work on pleading; of which it is not too much to say, that it is one of the most scientific, elegant, and exhausting treatises ever written on any branch of the English law; and well entitles its author to be called to the high and honorable function of being the restorer of Blackstone.
Our readers are probably aware, that the law of descent has been somewhat altered and amended since Blackstone wrote, by the act of 3 and 4 of William IV., chap. 106,