Whether the usual remedies for securing a rent-charge in fee are void for remoteness.

(t) See above, pp. 648, 666.

(u) It is not equally necessary in all casts, as the burden of restrictive covenants will in equity run with the land, and they may be enforced by action for injunction against any one acquiring the land with notice thereof; while covenants to build are only enforceable by action at law on the covenant against the covenantor personally and his representatives in law; see above, pp. 491 sq.

(x) See Expte. Ralph, De G. 219.

(y) Stat. 44 & 4.-> Vict. c. 41.

(z) Above, p. 673, n. (m).

Power of re-entry to satisfy arrears.

(a) Litt. as. 216 - 218.

(b)The writer is not aware that its validity has ever been attacked: bu1 in view of the modern extension of the rule against perpetuities, and the alarm inspired thereby amongstl the weaker brethren, he has thought it worth while to state the reasons for maintaining the validity of such a power.

Hater gill v. Han , Cro. Jac. 510; see Wms. Real Prop. 338, 368, 402, 21st ed.; Sug. Pow. 43, 44.

(d) The rent-owner entering under such a power may indeed demise the land, but can only confer on the tenant an interest co-extensive with his own, that is to gay, determinable on pay-ment or satisfaction of all arrears: see Litt. s. 327; Hacergill v. Hare, Cro. Jac. 510: Jemmot v. Cooly, 1 Lev. 170. (e) Co. Litt. 203 a.

43 (2)

Power to limit a term.

(f) See Third Report of Real Property Commissioners, 37; Sug. Gilb. Uses, 178, 179; Lewis on Perpetuities, 618; Gray, Rule against Perpetuities (Boston, 1886), Sec. 303, p. 216; and observe that the practice sanctioned by the most eminent conveyancers has long been to limit such powers of entry as security for the payment of a rent-charge in fee 'without confining the time of their possible exercise within the period allowed by the rule against perpetuities and without expressing any doubt as to their validity: Davidson, Prec. Conv. vol. ii. pt. i. 508 and n., 4th ed: Wms. Real Prop. 337, 13th ed.; 1 Key & Elph. Prec. Conv. 335, n., 603, 4th ed.; Davidson's Concise Precedents, 206, 207, 18th ed.

(g) The opposite course is now recommended in 1 Key & Elph. Prec. Conv. 365, n. (a), 498, 634, 9th ed. It is submitted, however, that notwithstanding the case of Re Hollis' Hospital and Hague, 1899, 2 Ch. 540, the better opinion as to the law and proper practice is that expressed in the authorities referred to in the previous note.

(h) See above, p. 675, n. (d).

(i) Such a power, it must be remembered, could not be conferred by any common law dis-poisition, but could only be created under the law of shifting use or executorv devise: see Wms. Real Prop. 376 sq., 21st ed.

(k) Stat. 44 & 45 Viet. c. 41, which is thought to confer no greater power of limiting a term than the landowner has without it.

Power of re-entry by way of forfeiture.

(l) Above, p. 673.

See Litt. ss. 325, 347, 348: Co. Litt. 201, 214, 215; Butler's notes to Co. Litt. 203 a, b: above, p. 675, and n. (c).

Third Rep. of Real Prop. Commrs 37. Re Hollis' Hospital and Hague, 1899, 2 Ch. 540, 549.

(o) Above, p. 674.

(p) Sec above, p. 675.

(7) Litt. s. 325; Co. Litt. 201, 202.

(r) See their Third Report, pp. 29, 36, 37. Their opinion was and it was long considered by very eminent lawyers that the rule against perpetuities related only to future interests created by way of shifting use or executory devise: see Wms. Real Prop. 276, 277, 819 sq., 13th ed.; Davidson, Prec. Conv. vol. iii. pt. i. 336, 3rd ed.

(.s) North, J., Down v. Flood, 25 Ch. D. G29; Baggallay, L. J., S. C., 28 Ch. D. 592: Re Hollis' Hospital and Hague, 1899, 2 Ch. 540. In the former case the opinions expressed were obiter dicta; and according to the report the power of entry was created by covenant only and in favour of the vendors, without mentioning their heirs and assigns. If this be correct there could have been no objection on the score of perpetuity; for the power of entry would only have been exercisable by the vendors themselves in their lifetime. In the latter case the point was not precisely determined. It was a vendor and purchaser summons raising the question whether it was an objection to title that the land sold was subject to a common law condition of reverter to a former owner's heir in an event which might occur at an unlimited time after the creation of the condition. Byrne, J., expressed the opinion that the condition was void, but decided that the title was too doubtful to be forced on an unwilling purchaser, since the person who would be entitled under the condition (which if valid would have come into effect on the conveyance completing the sale) was no party to the proceedings and threatened litigation against the purchaser. The learned judge must therefore have considered that it was reasonably open to doubt whether the person entitled in case of the validity of the condition had not a good cause of action. It should be noted that the opinion of the Real Property Commissioners (3rd Rep. p. 37) was not cited in either of these cases. Byrne, J., in the latter case, admitted that there was no authority on the point and simply adopted the view maintained in Lewis on Perpetuities, 616, saying that, except in Challis on Real Property, 174 - 177, 2nd ed., he could find no definite statement of a contrary opinion. It is submitted that on such a question the opinion of the Real Property Commissioners is of greater weight than that of Mr. Lewis. But of course, as Mr. Justice Byrne well pointed out, instancing the analogous progress of the law as to contracts in restraint of trade, the boundaries of the rule against perpetuities have been of late considerably extended, and several interests which formerly were only within the policy of the rule have been drawn definitely within the ambit of the rule itself: see London and South Western Rail. Co. v. Gomm, 20 Ch. D. 562; Re Front, 43 Ch. D. 246; Wms. Real Prop. 406 - 417, 21st ed. If, however, covenants for the perpetual renewal of leases are to be considered as outside the rule because their validity was established before the modern development of the perpetuity rule (and it is submitted that their exception cannot be well founded on any other principle: see an article by the writer in 42 Sol. J. 628), surely common law conditions, which are of much greater antiquity, might be allowed a similar immunity. One very strong argument in favour of the validity of common law conditions of re-entry, though unrestricted as to time, is that by the common law, if an estate be given to a man and his heirs upon some condition subsequent, a right of re-entry on breach of the condition is implied in favour of the donor and his heirs; Litt. ss. 328, 329, 331. It does not appear that the law has been altered in this respect. But if common