fused notions of restrictions. In L. & N. W. Ry. Co. v. Gomme, 1 Jessel, M. R., says, "This is an equitable doctrine establishing an exception to the rules of common law, which did not treat such a covenant as running with the land, and it does not matter whether it proceeds on an analogy to a covenant running with the land, or an analogy to an easement." And similar statements are found in other jurisdictions. 2 It seems to the writer that the two analogies suggested above are entirely misleading. The distinc- tions between restrictions and covenants running with the land are numerous and radical. A covenant must of course be under seal : a restriction may be created by simple contract. 3 Any kind of an agreement, affirmative or negative, is binding byway of a covenant : as will be noticed hereafter, restrictions are practi- cally limited to negative agreements. Again, the question whether a covenant runs with the land at law depends on questions of privity of estate between the contracting parties : equity takes no cognizance of such questions. But given this privity, a covenant runs regardless of notice to the purchaser, while notice is essen- tial in case of a restriction. The analogy between a restriction and an easement is more striking, and has been adopted as the deciding principle in numer- ous cases. According to this view, restrictions grew out of the limitation upon easements. Easements are restricted to a few sub- jects, such as rights of way, support, etc. ; the need was felt of a right that should cover a wider range, and equity invented that right. This view treats a restriction as a right, purely equitable, yet distinct from all other branches of equity jurisdiction, pro- ceeding on the analogy to easements, borrowing its rules from the law of easements and adapting them to suit the procedure in equity. It assumes that the decisions in Whatman v. Gibson and Tulk v. Moxhay were pieces of judicial legislation, although the judges had no idea they were doing more than applying established rules of equity. Such a theory will not be accepted, if any other ex- planation can be offered. If it be true, a restriction is an anomaly. When a new case presents itself, a lawyer cannot turn for prece- dents to other branches of equity jurisdiction. He must see what legal rule is most analogous, and guess whether a court of equity 1 20 Chan. Div. 583. 9 Norcross v. James, 140 Mass. 188, at 193; Columbia Coll. v. Lynch, 70 N. Y.440, at 447. 8 Tulk v. Moxhay, 2 Phil., at 778.
