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.
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