created by contract but annexed to ownership. If the burden of restrictive covenants is to run with land, people can practically create new easements and new kinds of tenure to an indefinite extent. Such appears to be the view of legal policy on which the common law doctrine rests: we say of legal policy, for it would be a great mistake to treat the matter as one of merely technical distinctions. On the other hand the Court of Chancery treated the In equity question differently, looking not so much at general policy as at individual rights. An owner of land has bound himself by contract to limit his use of that land in a particular manner: why should his successors in title not be bound also, save in the case of a purchase for value without notice of the restriction? It is no hardship on them; for those who buy the land subject to the restriction will pay so much the less, and the intention of the parties would be frustrated if contracts of this kind were considered merely personal. The history of the doctrine is somewhat curious. Lord Brougham adopted and enforced what we have called the common law theory in an elaborate judgment which seems to have been intended to settle the question (r). But this judgment, though treated as an authority in courts of law (s), has never been followed in courts of equity. After being disregarded in two reported cases (t) it was overruled by Lord Cottenham in Tulk v. Moxhay (u), now the leading case on the subject. The most important of the recent cases are Keates v. Lyon (x) (where the authorities are collected), Haywood v. Brunswick Building Society (y), which decided that the rule applies only to negative covenants, and Harrison v. Good (z). This last decided that when a The question is at bottom one of policy not of law. vendor sells land in building lots and takes restrictive covenants in identical terms from the several purchasers, neither reserving any interest nor entering into any covenant himself, this will enable the owner for the time being of one lot under the title thus created to enforce the covenant in equity against the owner of another lot: nor can the vendor release the covenant to any purchaser or his successors in title without the consent of all the rest. Thus the practical result is that a great variety of restrictions on the use of land which could not be imposed by way of easement or the like may be imposed by way of covenant for an indefinite length of time, purchases for value without notice of the restriction being obviously not probable events. So far as courts of equity have omitted to consider whether such a result is consistent with the general principles of the law concerning the tenure and enjoyment of property, perhaps it may be said that the view they have taken is really the more technical of the two. According to the doctrine of equity, the intention of the parties is to fix a particular restriction on the use of the land not merely on the original contracting party, but on his successors in title: then why not give effect to that intention? The common law doctrine admits that such is the intention, but refuses to give effect to it because it tends to multiply undue restrictions on the freedom of ownership, in contravention of the general spirit of the law (a). But the real question involved in this conflict is in truth of an economic rather than a legal kind: namely whether it is or is not desirable that private persons should have the power of dedicating land to be used in a particular way for an indefinite time. Such questions of Hansard, 4 Ch. D. 718; Renals v. 6 App. Ca. 560. (a) See the observations of the Court of Ex. Ch. in Dennett v. Atherton, L. R. 7 Q. B. 325. public economy cannot be adequately dealt with by means of the rules of ordinary private law concerning ownership and contract, and we need not be surprised if the purely legal discussion of them fails to give satisfactory results (b). (b) It is worth while to note that even if Equity had not refused to follow the law on this subject, the sort of restrictions in question might still be effectually created with little more trouble than at present. For instance, when it was desired to impose such restrictions on a sale of land in lots, long leases at nominal rents might be substituted for conveyances in fee simple. The restrictive covenants would then run with the reversion at law by the statute of Hen. 8, and provision might be made for lessees enforcing them against one another in the name of the reversioner. On the other hand, the Court may at its discretion refuse to enforce restrictive covenants when by lapse of time or change of circumstances they have become obsolete, vexatious, or useless. Duke of Bedford v. Trustees of British Museum, 2 M. & K. 552; per James, L.J., Renals v. Cowlishaw, 11 Ch. D. at p. 868; Sayers v. Collyer, 24 Ch. D. 180. Subject matter or perform ance a CHAPTER VI. UNLAWFUL AGREEMENTS. WE have already seen that an agreement is not in any case enforceable by law without satisfying sundry conditions: as, being made between capable parties, being sufficiently certain, and the like. If it does satisfy these. idden, conditions, it is in general a contract which the law com or part of a transac- mands the parties to perform. But there are many things as a whole which the law positively commands people not to do. The tion which is for- Not positively forbidden but immoral. reasons for issuing such commands, the weight of the sanctions by which they are enforced, and the degree of their apparent necessity or expediency, are exceedingly various, but for the present purpose unimportant. A murder, the obstruction of a highway, and the sale of a loaf otherwise than by weight, are all on the same footing in so far as they are all forbidden acts. If the subject-matter of an agreement be such that the performance of it would either consist in doing a forbidden act or be so connected therewith as to be in substance part of the same transaction, the law cannot command the parties to perform that agreement. It will not always command them not to perform it, for there are many cases where the performance of the agreement is not in itself an offence, though the complete execution of the object of the agreement is: but at all events it will give no sort of assistance to such a transaction. Agreements of this kind are void as being illegal in the strict sense. Again, there are certain things which the law (a) does not forbid in the sense of attaching penalties to them, but which are violations of established rules of decency, morals, (a) i.e. the common law. But qu. whether the common law could take notice of anything as immoral which would not constitute an offence against either common or ecclesiastical law. or good manners, and of whose mischievous nature in this respect the law so far takes notice that it will not recognize them as the ground of any legal rights. "A thing may be unlawful in the sense that the law will not aid it, and yet that the law will not immediately punish it" (b). Agreements whose subject-matter falls within this description are void as being immoral. public policy. Further, there are many transactions which cannot fairly Not posibe brought within either of the foregoing classes, and yet bidden, tively forcannot conveniently be admitted as the subject-matter of but against valid contracts, or can be so admitted only under unusual restrictions. It is doubtful whether these can be completely reduced to any general description, and how far judicial discretion may go in novel cases. They seem in the main, however, to fall into the following categories: Matters governed by reasons outside the regular scope of municipal law, and touching the relations of the commonwealth to foreign states: Matters touching the good government of the commonwealth and the administration of justice: Matters affecting particular legal duties of individuals whose performance is of public importance: Things lawful in themselves, but such that individual citizens could not without general inconvenience be allowed to set bounds to their freedom of action with regard to those things in the same manner or to the same extent as they may with regard to other things (c). Agreements falling within this third description are void as being against public policy. We have then in the main three sorts of agreements Summary. which are unlawful and void, according as the matter or purpose of them is A. Contrary to positive law. (Illegal.) (b) Bramwell, B. Cowan v. Milbourn, L. R. 2 Ex. at p. 236. (c) We have already seen that the specific operation of contract is none other than to set bounds to |