BEER COVENANT QUESTION.

New Zealand Times, Volume LXIX, Issue 3736, 10 May 1899, Page 2

BEER COVENANT QUESTION.

FURTHER ARGUMENT. In the Court of Appeal yesterday, argument was continued in the special case stated, J. Staples and Co., Limited, v. P. W. Corby, in which suit it is sought to have enforced a beer covenant with reference to the Prince of Wales Hotel. Sir Robert Stout, with him Mr H. D.. Bell and Mr Skerrett, appeared for the plaintiff company, and Mr Morison, with him Mr Young for the defendant. Sir Robert Stout, in concluding his opening argument, submitted that the case did net depend on the plaintiff company's having an interest in adjoining land—dominant tenancy was not a necessary condition. Section 35 cf the Alcoholic Liquors Sale Control Act, 1895, had no. bearing here. In this case there was a contract dr covenant, not an easement. Mr Bell, also for the plaintiff company, submitted the joint argument of himseu and Mr Skenett. He submitted that it was an established' rule of the Courts of Appeal in England that they would not, even if they dissented from it,'disturb a determination of a conveyancing question of old-standing, the reason being that the case would have'been acted upon by'conveyancers, and therefore to disturb the decision would be to disturb the effect of those which had been prepared and founded upon that decision. His propositions were as follow ; —l. That the principle in equity is that ah assignee of property with notice of a restrictive covenant (the restriction being emphasised), will be restrained from using the property so as to contravene that covenant. * H. That in the Application of the principle there is no distinction between land and any other kind of property. 3. That it is not necessary that the covenant should be one which in law runs with the land, that is, which touches the thing conveyed. 4. That it is established by authority that the covenant now in question does run with the land. 5. That it is established by authority that the covenant now in question is restrictive. 6; That the suggestion that some estate in the covenantee is necessary to support the covenant is in effect the doctrine sought to be established by the case of Keppell and Bailey, which doctrine is over-ruled. 7. That the distinction suggested by Lord Selborne in the case of Zetland and Hislop does not exclude the case of Catt and Tourle; if necessarily includes the case of Catt and Tourle, unless this Court also over-rules the decisions in the case of Clegg and Hands and the case of White and the Southend Brewery Company. 8. That the common law doctrine that the burden- of the covenant does not run against the assignee of a grantee does not apply in equity in the case of a restrictive covenant. 9. That there is no discretion in the Court in granting or refusing an injunction in the case of a restrictive covenant

Mr Morison, for the defendant, submitted that a purchaser in fee simple with notice of a covenant is bound onl r if the covenant is a. negative one, or if it is a covenant to abstain from the use of the land of the covenantee in a particular way, or if it is entered into in regard to some property which at the time the covenant is sought to be enforced is owned by the person claiming the bench j of the covenant. Counsel claimed chat the covenant in this case is not a covenant to abstain from using the land in a particular way; also that as an injunction is discretionary, the Court will not grant ,one here in view of the provision of the 'Alcoholic Liquors Sale Control Act forbidding beer covenants. The Court adjourned till this morning, when Mr Morison will resume his argument.