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The difficulty becomes more striking upon further examination of the early law. For side by side with the personal warranty which has been discussed hitherto, there was another warranty which has not yet been mentioned by which particular land alone was bound. /1/ The personal warranty bound only the warrantor and his heirs.
Once more it was May, when in the populous but silent court-room the clerk announced the case of Miller versus Louis Belmonti, and John F. Miller, warrantor. Well-nigh a year had gone by since the appeal was taken. Two full years had passed since Madame Karl had found Salome in Belmonti's cabaret. It was now 1845; Grymes was still at the head of one group of counsel, and Roselius of the other.
And now to prove the fact. In a newspaper of that date appears the following: Hon. A.M. Buchanan, Judge. Sally Miller vs. This cause came on to-day for trial before the court, Roselius and Upton for plaintiff, Canon for defendant, Grymes and Micou for warrantor; when after hearing evidence the same is continued until to-morrow morning at 11 o'clock. Salome's battle had begun.
But this also is unimportant, because his liability on the oath of witness came to an end, as well as that of the warrantor, before the foundations were laid for the rule which I am seeking to explain. A writing soon came to be required, as will be seen in a moment.
This last provision, and the clause declaring that each man shall know his warrantor, inserted in a five-clause treaty, where nothing but what the contracting parties must hold to be of the very first importance would find place, are another curious proof of the care with which our ancestors, and all Germanic tribes, guarded against social isolation the doctrine that one man has nothing to do with another a doctrine which the great body of their descendants, under the leading of Schultze, Delitzsch, and others, seem likely to repudiate with equal emphasis in these latter days, both in Germany and England.
If any man accuse a man who is of less degree than king's thane, let him clear himself with eleven of his equals and one king's thane. And so in every suit which be for more than four mancuses; and if he dare not, let him pay for it threefold, as it may be valued. "Of Warrantors. And that every man know his warrantor, for men, and for horses, and for oxen.
Another rule on which there are vast stores of forgotten learning will show how exactly the fiction fell in with the earlier law. Only those who were privy in estate with the person to whom the warranty was originally given, could vouch the original warrantor.
"It is therefore ordered, adjudged, and decreed, that the judgment of the District Court be reversed; and ours is that the plaintiff be released from the bonds of slavery, that the defendants pay the costs of the appeal, and that the case be remanded for further proceedings as between the defendant and his warrantor." So ends the record of the court.
In a single clear, well-compacted paragraph the court states Salome's claim and Belmonti's denial; in another, the warrantor Miller's denial and defense; and in two lines more, the decision of the lower court. And now "The first inquiry," so reads the chief-justice "the first inquiry that engages our attention is, What is the color of the plaintiff?"
A disseisor was no more bound by the confidence reposed in his disseisee, than he was entitled to vouch his disseisee's warrantor.
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