/3/ The case of the lord
taking by escheat has been doubted, /4/ and it will be remembered
that there is a difference between Bracton and later authors as
to whether he comes in as quasi heres or as a stranger.
Then as to the benefit of the use. We are told that the right to
sue the subpoena descended indeed to the heir, on the ground of
heres eadem persona cum antecessore, but that it was not assets.
/5/ The cestui que use was given power to sell by an early
statute. /6/ But with regard to trusts, Lord Coke tells us that
in the reign of Queen Elizabeth [409] all the judges in England
held that a trust could not be assigned, "because it was a matter
in privity between them, and was in the nature of a chose in
action." /1/ Uses and trusts were both devisable, however, from
an early day, /2/ and now trusts are as alienable as any form of
property.
The history of early law everywhere shows that the difficulty of
transferring a mere right was greatly felt when the situation of
fact from which it sprung could not also be transferred. Analysis
shows that the difficulty is real. The fiction which made such a
transfer conceivable has now been explained, and its history has
been followed until it has been seen to become a general mode of
thought.
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