OUR "TIED HOUSE" CASE.

Evening Star, Issue 10212, 14 January 1897, Page 3

OUR "TIED HOUSE" CASE.

New Zealand being the birthplace, par excellence, of social surprises, it is fitting no doubt that the latest thing in legal surprises should come from there also. The Chief Justice of New Zealand has, it seems from newspaper files recently received, held that a covenant in an agreement between a brewer and a licensed victualler by which the latter agreed, for a period of seven years, to take all his beer from the former, is void as being in restraint of trade. lb is, of course, impossible to suggest that the war cries of the Prohibitionist can, even unconsciously, have influenced the minds of the local judiciary, and one must therefore accept the i ulicg as a deliberate utterance, binding, at any rate for the present, in tbe sister colony. And inasmuch as Sir James Prendergast'a opinion is based upon a common law doctrine, it affects in principle all similar agreements throughout the colonies. The hostility of the Courts to restraints upon trade dates back to the thirteenth century or thereabouts, and has been developed into many and wide-spread-ing ramifications since. So far as we know, however, the New Zealand Court is the first that has placed its foot upon the customary "brewer's covenant." Whether Sir' James has discovered a " mare's nest" or a genuine legal treasure-trove can hardly be considered as settled until the point shall have been further debated. The fundamental principle in the avoidance of restraints upon trade is the unreasonableness of the restriction, and the unreasonableness is measured by the effect which it is calculated to produce in depriving a man of the means of livelihood, and thus throwing him upon the State. How an obligation to bny beer at market rates from a particular producer can be said to fall within this rule does not exactly appear. But it may be shrewdly suspected that, even if the Chief Justice of New Zealand is right, the general result, apart from any direct enactment by the Legislature, will be to leave things as they are. There Are more ways of killing a hare than by scotching it, and whilst brewer and licensed victualler are left free to contract ingenious devices can always be resorted to in order to accomplish a given end. The perpetual but futile struggle to make mortgagees pay' taxes which they are determined that the mortgagor shall bear, as illustrated by a recent income tax decision in our own courts, is an instance in point. And, on general grounds, it may be hoped that freedom of contact will win, even as between brewer and publican.—'Argus.'