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bly from there having been originally no remedy to compel performance of such services； except a distress executed on the servient land。 /1/ But any conjectured distinction between obligations for which the primitive remedy was distress alone； and others； if it ever existed； must soon have faded from view； and the line between those rights which can be deemed rights of property； and those which are mere contracts； is hard to see； after the last examples。 A covenant to repair is commonly supposed to be a pure matter of contract。 What is the difference between a duty to repair； and a duty to fence？ The difficulty remains almost as great as ever of finding the dividing line between the competing principles of transfer； succession on the one side； and possession of dominant land on the other。 If a right in the nature of an easement could be attached to land by prescription； it could equally be attached by grant。 If it went with the land in one case； even into the hands of a disseisor； it must have gone with it in the other。 No satisfactory distinction could be based on the mode of acquisition； /2/ nor was any attempted。 As the right was not confined to assigns； there was no need of mentioning assigns。 /3/ In modern times； at least； if not in early law； such rights can be created by covenant as well ＇394＇ as by grant。 /1/ And； on the other hand； it is ancient law that an action of covenant may be maintained upon an instrument of grant。 /2/ The result of all this was that not only a right created by covenant； but the action of covenant itself； might in such cases go to assigns； although not mentioned； at a time when such mention was essential to give them the benefit of a warranty。 Logically； these premises led one step farther； and not only assigns not named； but disseisors； should have been allowed to maintain their action on the contract； as they had the right arising out of it。 Indeed； if the plaintiff had a right which when obtained by grant would have entitled him to covenant； it was open to argument that he should be allowed the same action when he had the right by prescription； although； as has been seen in the case of rent； it did not follow in practice from a man's having a right that he had the contractual remedies for it。 /3/ Covenant required a specialty； but prescription was said to be a sufficiently good specialty。 /4/ Where； then； was the line to be drawn between covenants that devolved only to successors； and those that went with the land？
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 ＇395＇ by which particular land alone was bound。 /1/ The personal warranty bound only the warrantor and his heirs。 As was said in a case of the time of Edward I。； 〃no one can bind assigns to warranty； since warranty always extends to heirs who claim by succession and not by assignment。〃 /2/ But when particular land was bound； the warranty went with it； even into the hands of the King； because； as Bracton says； the thing goes with its burden to every one。 /3/ Fleta writes that every possessor will be held。 /4/ There cannot be a doubt that a disseisor would have been bound equally with one whose possession was lawful。
We are now ready for a case /5/ decided under Edward III。； which has been discussed from the time of Fitzherbert and Coke down to Lord St。 Leonards and Mr。 Rawle； which is still law； and is said to remain still unexplained。 /6/ It shows the judges hesitating between the two conceptions to which this Lecture has been devoted。 If they are understood； I think the explanation will be clear。
Pakenham brought covenant as heir of the covenantee against a prior； for breach of a covenant made by the defendant's predecessor with the plaintiff's great… grandfather； that the prior and convent should sing every week in a chapel in his manor； for him and his servants。 The defendant first pleaded that the plaintiff and his servants were not dwelling within the manor； but； not daring to ＇396＇ rest his case on that； he pleaded that the plaintiff was not heir； but that his elder brother was。 The plaintiff replied that he was tenant of the manor； and that his great…grandfather enfeoffed a stranger； who enfeoffed the plaintiff and his wife； and that thus the plaintiff was tenant of the manor by purchase； and privy to the ancestor； and also that the services had been rendered for a time whereof the memory was not。
It is evident from these pleadings that assigns were not mentioned in the covenant； and so it has always been taken。 /1/ It also appears that the plaintiff was trying to stand on two grounds； first； privity； as descendant and assign of the covenantee； second； that the service was attached to the manor by covenant or by prescription； and that he could maintain covenant as tenant of the manor； from whichever source the duty arose。
Finchden； J。 puts the case of parceners making partition； and one covenanting with the other to acquit of suit。 A purchaser has the advantage of the covenant。 Belknap； for the defendants； agrees； but distinguishes。 In that case the acquittance falls on the land； and not on the person。 /2/ （That is to say； such obligations follow the analogy of easements； and； as the burden falls on the quasi servient estate； the benefit goes with the dominant land to assigns； whether mentioned or not； and they are not considered from the point of view of contract at all。 Warranty； on the other hand； is a contract pure and simple； and lies in the blood；falls on the person； not on the land。 /3/）
Finchden： a fortiori in this case； for there the action ＇397＇ was maintained because the plaintiff was tenant of the land from which the suit was due； and here he is tenant of the manor where the chapel is。
Wichingham； J。： If the king grants warren to another who is tenant of the manor； he shall have warren； &c。； but the warren will not pass by the grant ＇of the manor＇； because the warren is not appendant to the manor。 No more does it seem the services are here appendant to the manor。
Thorpe； C。 J。； to Belknap： 〃There are some covenants on which no one shall have an action； but the party to the covenant； or his heir； and some covenants have inheritance in the land； so that whoever has the land by alienation； or in other manner； shall have action of covenant； ＇or； as it is stated in Fitzherbert's Abridgment； /1/ the inhabitants of the land as well as every one who has the land； shall have the covenant；＇ and when you say he is not heir； he is privy of blood； and may be heir： /2/ and also he is tenant of the land； and it is a thing which is annexed to the chapel； which is in the manor； and so annexed to the manor； and so he has said that the services have been rendered for all time whereof there is memory； whence it is right this action should be maintained。〃 Belknap denied that the plaintiff counted on such a prescription； but Thorpe said he did； and we bear record of it； and the case was adjourned。 /3/
It will be seen that the discussion followed the lines marked out by the pleading。 One judge thought that ＇398＇ the plaintiff was entitled to recover as tenant of the manor。 The other puisne doubted； but agreed that the case must be discussed on the analogy of easements。 The Chief Justice； after suggesting the possibility of sufficient privity on the ground that the plaintiff was privy in blood and might be heir； turns to the other argument as more promising； and evidently founds his opinion upon it。 /1/ It would almost seem that he considered a prescriptive right enough to support the action； and it is pretty clear that he thought that a disseisor would have had the same rights as the plaintiff。
In the reign of Henry IV。； another case /2/ arose upon a covenant very like the last。 But this time the facts were reversed。 The plaintiff counted as heir； but did not allege that he was tenant of the manor。 The defendant； not denying the plaintiff's descent； pleaded in substance that he was not tenant of the manor in his own right。 The question raised by the pleadings； therefore； was whether the heir of the covenantee could sue without being tenant of the manor。 If the covenant was to be approached from the side of contract； the heir was party to it as representing the covenantee。 If； on the other hand； it was treated as amounting to the grant of a service like an easement； it would naturally go with the manor if made to the lord of the manor。 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 accordi