Instances of different kinds are these. A parson might be bound by custom to keep a bull and a boar for the use of his parish. /1/ A right could be attached to a manor by prescription to have a convent sing in the manor chapel. /2/ A right might be gained by like means to have certain land fenced by the owner of the neighboring lot. /3/ Now, it may readily be conceded that even rights like the last two, when attached to land, were looked at as property, and were spoken of as the subject of grant. /4/ It may be conceded that, in many cases where the statement sounds strange to modern ears, the obligation was regarded as failing on the land alone, and not on the person of the [393] tenant. And it may be conjectured that this view arose naturally and reasonably 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