So Bracton says an action is in
rem "whether it is for the principal thing, or for a right which
adheres to the thing, ... as when one sues for a right of way,
... since rights of this sort are all incorporeal things, and are
quasi possessed and reside in bodies, and cannot be got or kept
without the bodies in which they inhere, nor in any way had
without the bodies to which they belong." /3/ And again, "Since
rights do not admit of delivery, but are transferred with the
thing in which they are, that is, the bodily thing, he to whom
they are transferred forthwith has a quasi possession of those
rights as soon as he has the body in which they are." /4/
There is no doubt about the later law, as has been said at the
outset.
We have thus traced two competing and mutually inconsistent
principles into our law. On the one hand is the conception of
succession or privity; on the other, that of rights inhering in a
thing. Bracton seems to have vacillated a little from a feeling
of the possibility of conflict between the two. The benefit of a
warranty was confined to those who, by the act and consent of the
[387] grantee, succeeded to his place. It did not pass to assigns
unless assigns were mentioned. Bracton supposes grants of
easements with or without mention of assigns, which looks as if
he thought the difference might be material with regard to
easements also.
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