delivered the opinion of a majority of the Court:
The two questions presented hy the record are, as to the admissibility of the book in evidence; and, whether the deed from Michael to John Hill operated a discontinuance of the estate tail.
1. The registry of births, marriages and burials, is directed to be kept by tlie register of the precinct, where there is no clerk, by the act of 1715 : and as the hook produced was proved to he tlie original one which had been thus kept, it affords legal evidence of the marriages and births, at least on a question of pedigree. A book kept by public authority, is necessarily evidence of the facts recorded in it, for the convenience of the public.* And the law *53will guard tlie, purity of such a memorial by making it indictable, to insert a false entry.* It is very possible to prove a marriage or pedigree by general reputation ; but where precision is required in dates, it is extremely d fficult to arrive at it, more especially in a country and climate, where, from various causes, the population undergoes frequent changes.
The registry book, confirmed as it was in this case, by proof of its authenticity, aflore!ed to the jury a simple and satisfactory method of tracing the pedigree for nearly a century ; and excluded all that doubt, confusion and uncertainty, which usually hang over such investigations, when depending upon the memory of witnesses. It would tend greatly to the public advantage, if the directions of the act of 1715, on this subject, were more generally observed.
2. The other question is not free from difficulty ,• but after mature reflection upon it, the decided preponderance of our judgment is, that the covenant contained in the deed of Michael Hill did not discontinue the estate of the. heir in tail. The. law has made a clear distinction between a covenant real and a covenant personal; and to a warranty alone, in the original and proper sense of the term, has it imparted the effect of intercepting the descent to the heir ; because he and not the.executor is bound to warrant and secure the land to the covenantee and his heirs. The use and adoption of the form in which the ancient warranty is expressed, would indicate the intention of. the parties to avail themselves of such remedies as appertain to the warranty only and the change of that form will justify the reasonable inference that they designed to abide by the security which is afforded by a covenant. A general warranty extends to all mankind: the usual covenant is only for the acts of the grantor and his ancestors: but a covenant will bin'd the persona) assets, which makes such security better than a warranty.† The various covenants contained in this deed further shew that the parties meant to *54re]y upon the modern covenants ; for ail are contained in except that for further assurance, which there were no means of the tenant in tail giving. It is then right that the purchaser should have the full benefit of the remedies which the deed furnishes ; but we can find no authority for the Court to superadd to a covenant which is clearly personal, the remedy by rebutter, which exclusively belongs to that real covenant which is called a warranty. The words which bind the executors and administrators of Michael Ilill, must bo rejected, before this can be done, or the clause he construed as a warranty. That would be altering the contract of the parties, and, as it appears to us, frustrating their intention.
The words in this deed are similar to those in Williamson v. Codrington,* where it was held by Lord Hardwicke that if a person obliged himself, his heirs, executors and administrators to warrant and forever defend the lands, negroes cattle, and stock conveyed, it amounted to a covenant, and not to a warranty.†
The disuse of real actions has from necessity, given the warrantee a right to bring an action of covenant, in which he recovers damages according to the value of the land at the time the warranty was entered into. If he could not bring this action, he would be without any remedy -, but the same necessity does not exist for rebutting the heir ; because if the ancestor left real or personal assets, the purchaser may be recompensed. Our opinion consequently is, that this warranty did not descend upon the heir 5 and that John Hill had nothing more than a base fee simple, determinable on the death of Michael Hill, by the entry of his issue in tail 5 and that the Plaintiff is entitled to judgment.
Daniel, Judge.‡ It appears from the case, that the lessor of the Plaintiff is the grand-daughter and heir at *55law of Micliael Hill, who was seized in fee-tail of the land in question. Michael Hill, for a valuable consideration, conveyed the land by deed of bargain and sale to John Hill in fee simple. It is admitted that real assets descended from Michael Hill to his issue in tail of greater value than the land in dispute.
If tenant in tail release to his disseisor, and bind himself and his heirs to warranty, and die, and this warranty descend to his issue, it is a discontinuance by reason of the warranty.* Lord Coke, in his Commentary on this section of Littleton, says, “ The reason why the addition of the warranty in this case maketh a discontinuance, is that which has been said, to wit: If the issue in tail should enter, the warranty (which is so much favored in law) would be destroyedand therefore to the end if assets in fee simple do descend, he to whom the release is made may plead the same, and bar the demandant; by which means all rights and advantages are saved.† It is by virtue of the warranty, with assets descended,, that a discontinuance is effected, whether the conveyance be by bargain and sale, lease and release, or release to a disseisor.
It is said, if the clause in the deed from Michael Hill to John Hill had been in the words following, to wit: “ I, the said Michael Hill, for myself and my heirs, do warrant, Sec.” they would certainly have made a warranty; but that the clause as it. stands is not a warranty ; that there is only a covenant to warrant, which has not the operation in law to work a discontinuance. I know of no distinction, in a deed which conveys the fee, between a warranty and a covenant to warrant and defend, if the heirs he bound. What is a warranty ? Lord Coke says “ a warranty is a covenant real annexed to lands or tenements, whereby a man and his heirs are bound to warrant the same; and either upon voucher, or by judgment in a writ of warrantia charlee, to yield other lands and tenements to the value of those evicted by a former title, or *56else may be used by way of rebutter.* So “ I and my h^rs s,ia^ ’warrant,” &c. doth create a warranty.† Little-ton says “ that tliis word and verb warranlizo maketh the warranty, and is the cause of warranty, and no other word in our law.” But he has not confined us down to any particular part of this verb; he has not pointed out the mood or tense, which shall be used in the warranty clause of a deed. In the present case the words “ covenant and engage to warrant ” &c. are as clear a declaration of the intention of the parties, as the words “ I and my heirs shall warrant,” which we have seen is a warranty good in law. Lord Hardwicke labored to make the case of Williamson v. Codrington ‡ a personal covenant; but he does not intimate an opinion that it might not have well been construed a warranty. In the case of Minge v. Gilmore,§ the clause of the deed from Minge to Gilmore is very much like the one now under consideration. In this case it was held to be a warranty, which barred the tenant in tail. This was so determined in the State Courts, and also in the Federal Court. I think a new trial should be granted.