DISTRICT COURT.

Globe, Volume XX, Issue 1566, 25 February 1879, Page 4

DISTRICT COURT.

Monday, February 24. [Before His Honor Judge Ward.] The sittings of the District Court were resumed at 11 a m. KLINGENSTEIN V. BALL. For the plaintiff—Mr Joynt. For defendant—Mr Garrick. In this case judgment waß deferred from last sitting to enable His Honor to consider certain nonsuit points. His Honor now gave judgment as follows— From the evidence given and the deeds laid before me in this case, the facts appear to he as follows :—On the 28th November, 1876, Morton demised to Klingenstein, by deed, the Marine Hotel, with stables attached, situate at Sumner. On 14th December, 1876, Klingenstein assigned h's lease of the above premises to Fitzroy. On the 20»h December, 1877, Fitzroy re-assigned the said lease to Klingenstein, the present plaintiff, and on the 17th January last, Klingenstein having surrendered his lease, the original lessor Morton executed a fresh lease to one Hamilton. On the 30bh November, 1876, Fitzroy entered into an agreement with Ball, the defendant letting to him the stables adjacent to the said Marine Hotel for the term of twenty-four months from that date, Ball covenanting (inter alia) that he would "do and use his best endeavors to increase the custom and trade of the said hotel." The hotel in question was deprived of its license on the Ist July, 1877, and remained unlicensed for three months, during which it appears that the defendant set up stables in another, part of the town. Shortly after the re-opening of the hotel as a licensed house defendant closed the stables at the Marine Hotel, and they remained closed until the end of his tenancy, a period of about six weeks. Plaintiff alleges that this closing caused a heavy loss to the trade of the hotel, and claims £SO as damages for a breach of the above quoted covenant. I need not advert to the other causes of action, as they are covered by money paid into Court. There is no evidence before me as to the status of Fitzroy with regard to the premises which he demised to Ball at the date of the agreement, 30th November, 1878, the assignment of the lease to him bearing date fourteen days later. On the 30th November the premises in question wore under lease to Klingenstein. It seems dear that the covenantee, Fitzroy, had no estate in the land to which the covenant could be attached. Consequently the covenant is a mere personal covenant, operative only between the immediate parties thereto and their personal representatives. When a lessor has only an equitable title, the covenants of his lessee are mere covenants in gross, which do not run with the land or convey any right of action to the assignee of the reversion. (Vide Whitton v Peacock, N.C. 411, also Co. Litt 358 A ) There appears no mention of the agreement between Ball and Fitzroy in any of the leases or assignments of lease, nor is any assignment shown of any right or interest arising from or out of the covenant in question. Another point might be raised, which was not touched upon by counsel, viz.—whether the loss of the license of the hotel did not at once release the defendant from his covenant. The house cetmed to be an hotel on the Ist July, and the performance of the covenant became impossible. The closing of the hotel would necessarily cause a loss of custom to the defendant, and he could scarcely be blamed for transferring his business elsewhere. It is, however, unnecessary to discuss this question now. Judgment will be given merely for the amount paid into Court. Judgment for amount paid into Court, costs after payment into Court allowed to defendant. BBAY V HUTCHINSON AND BENNETT. For plaintiff—Mr Geo. Harper. For defendant—Dr. Foster. This was a case in which W. B. Bray was plaintiff, and Hutchinson and Bennett defendants. The plaintiff sought to recover £IOO from the defendants for the wrongful removal of certain fixtures by the defendants from the property of the plaintiff, Wagstaff'b hotel, at Akaroa. These fixtures comprised hydraulic ram, piping, tanks, large range, and copper boiler. The plaintiff also claimed £SO as special damage, for loss sustained by the removal of these fixtures. The defence was that the goods were not the property of the plaintiff, and that the plaintiff had no right to remove the same. The case for the plaintiff was that Wagstaff was tenant of the plaintiff, and had given one of the defendants, Hutchinson, and Louisson a bill of sale over the furniture, &c. In August, 1878, a notice appeared in the Akaroa paper, stating that the furniture at Wagstaff's hotel would be sold by auction, under power of this bill of sale. The articles specifi d were sold at the time by the auctioneer, though there was no mention of the articles in the bill of Palo or schedule. The plaintiff now alleged that he had been prevented from letting the hotel, owing to the absence of these necessary articles for the hotel. Hence he claimed the sum stated in thes* particulars.

For the plan tiff, Mr Harper culled Mr Bray, who deposed to applications having boen made for the lease of the hotol, but that they declined io take it, owing to the things being taken out of it. The property had since been let for £2OO per year, but plaintiff had to remit £IOO on the firrt and £SO on the second in order to compensate the tenant for repairs, Sex, which were necessary. Mr Wagstuff's rent was £3OO. Mr C W. Bridge gave evidence as to the gale by him of furniture of Wagstaff's Hotel, under a bill of sale, in August, 1878. The instructions were given by Mr Hutchinson, one of the defendants, and a list was handed to witness's clerk. Ho sold the articles mentioned in the claim of the plaintiff. They wero situate on Wagstaff's property. Mr Barker, who was acting as clerk to Mr Bridge, gave evidence as to the sale of these articles i>nd the handing to him or a lift of articles for sale, amongßt other things the ram, range, piping, &c. Mr Wagstaff gave evidence of the situation of the tanks and hydraulio ram. He sold the whole of his interest in the lease and all the goods on the premises to Mr Bennett in the June before the sale. Mr Bray was not communicated with on the subject. The articles mentioned in plaintiff's claim wero on the premises whon witness first took the premises from Meesrs Bray and Taylor. Robert Macfarlane was called to show that an offer had been made to rent the proporty, but he declined to do so on account of the bad condition of the premises.

Messrs Charles Louisson and Wm. Henry Bennett were atao examined.

This closed the plaintiff's case. Mr Harper applied for leave to amend the declaration by inserting a claim for the articles mentioned as goods and not as fixtures. Dr. Foster called evidence for the defence.

Mr Alfred Louisson deposed that he spoke about the sale of the range, which he said he thought should not be sold, as he took it that the range was a fixture. Geo-go Hutchinson deposed to the circumstances attending the purchase by Bennett from Wagstaff of the interest of the latter in the hotel. He also deposed that he was unaware of the sale of the articles spoken of in the declaration of the plaintiff. The whole proceeds of the sale were handed by witness to Mr Louisson.

On cross-examination by Mr Harper the witness deposed to the transactions referring to the bill of sale and the sale of the effects of Wagßtaff. This closed the defendant's case.

Counsel on both sides having'addressed the Court.

His Honor granted Mr Harper's application for an amendment, Dr : Foster not objecting. His Honor said he would give judgment at noon next day.