RESIDENT MAGISTRATE’S COURT.

Evening Star, Volume IX, Issue 2605, 23 June 1871, Page 2

RESIDENT MAGISTRATE’S COURT.

This Day. (Before A. C. Strode, Esq., R.M.) Civil Cases. Fredc-ick Stone was charged with with wife desertion, and was ordered to pay 12s weekly for her maintenance in future. Gollar v. Hawkins.—A claim fora balance of L 24 6s. for goods sold and delivered. Mr Harris for the plaintiff, Mr Bathgate for the defendent. Mr Bathgate moved for a nonsuit on the ground that [the defendant had not been supplied with a copy of the items claimed for. The case was adjourned to Wednesday, the 28th instant. Lawson v. Lumb.—Lso, a claim for damages. in consequence of loss of time, trade, reputation, and beer through proceedings instituted against him on a charge of a breach of the licensing ordinance. Mr Harris for the plaintiff, Mr Bathgate for the defence, Mr Hams having stated the case, Alexandsr Lawson, the plaintiff, in his evidence said he was the holder of a wholesale and a bottle license for the sale «f fermented and spirituous liquors. On the 7th of the month he had in his store a 27-galhm cssk containing a quantity of ale, bought of Mr Strachan, brewer. Perhaps a gallon had been bottled, 'Ahile in bed on the morning of the 7th, he heard some one say to his wife, who'was in the shop, “I order that cask of beer to be taken away, in the Queen’s name.” She said, “Do not take it away until Mr Laivson cnm*s in”—when defendant replied, “Oh ! I. cannot wait till he comes in ”; and addressing a drayman, he said, “ Take it away.” Plaintiff asked Lumb why he was taking it away, when he said he “charged him with the 43rd clause.” The defendant then took the cask, offered a receipt, which plaintiff refuged, and turned back to take the tap, which had been taker) out of the barrel and left behind. He was summoned to answer the charge of committing a breach of the Ordinance at fhe Mayor’s Court, He had to attend twice, and the result was that the defendant was ordered to pay one guinea costs. Defendant offered then to restore tjie beer, which plaintiff refused to receive. Since the action taken by the defendant plaintiff had suffered in his trade, because people were afraid to go to his store, under the idea that he had no right to sell liquors. In answer to Mr Bathgate, the plaintiff said he had no other license than that authorising him to sell beer in bottles. The cask was in the store behind the counter. The cask was among the goods he had in the store for sale. He was in the habit of bottling the beer in the shop and selling it. He drew off about a dozen or eighteen bottles at a time. About a gallon hj d been taken out of the cask. Defendant declined to say whether any of the ale had been soil retail. The time lost was three days in looking after a lawyer and other things. He lost time through his friends interrogating him in his business. The Court: He lost time in receiving sympathy, Mr Bathgate. Cross-examination continued : Through the action of the defendant plaintiff had lost custom. W. Strachan said early iu the month he supplied the plaintiff with a 27 gallon cask of ale, worth L2 ss. The cask would be returned, and was not included in that amount. If a cask is not full it great injury to beer to roll it about. He believed the beer in question would be injured by removal; but if only a gallon were taken out, it might not be very seriously injured. In cross-examination the witness said he was not aware that any persons followed bottling Colonial brewed beer as a trade.

Mr Bathgate, in stating the case for the defence, said that under the 43rd section of the Licensing Act, the defendant, being a revenue officer, would not have been justified in doing otherwise than seizing beer on such circumstances, as it must be plain it was exposed for sale. He had no doubt the registration clause of the Distillation Act had been evaded. As for damage none had been proved, and it was a combination by five different parties to break down the Licensing Ordinance. The defendant (Lumb), in his examination, stated that the plaintiff (Lawson) held a bottle license, not a general one, and in the exercise of his duty as a revenue officer ho entered the shop on the 6th inst., and found a barrel of beer exposed in the shop iike other goods for sale. There was no necessity to lock round a corner. On inquiring what the cask contained, the defendant’s wife said “vinegar.” Ho asked for a tumbler to taste it, when she corrected herself, and said “That’s ale.” [''otbing more was then said, but on the following day be went with a dray and took it away, on the ground of its being exposed for sale contrary t<v the 43rd section of the Licensing Ordinance. No objection was made to its removal. He called a witness as to its position, and on being tp give a receipt, he gave one. Lawson offered to draw him a bottle out of the cask and “capsule ” it, if he wished to purchase one. Half an hour after the adverse decision of the Mayor’s Court, he took the beer back to Lawson, who refused it. In cross examination by Mr Harris, Lumb said there was a>-other bam 1 iu the shop, the contents of which he did not ascertain. The barrel was placed iu the custody' of the police and no one had access to it. S. J. Jackman, cus-tom-hoine guager, by instruction of the Collector of ('iistoms. guaged the cask shewn him. There were were five casks there, and iu the one numbered four there were seventeen gallons (The cask was admitted to be Lamb’s.) The plaintiff was called by Mr. Baihgtto and asked how the deficient ten gallons was disposed of. In reply to Mr. Harris the witness denied asking for a receipt. The vinegar and beer were about a foot apart. R. Johnson, carter, proved taking the cask away by

Lamb’s directions. .7. Smith said he drew off a bottle from a cask without capsule at Mrs Lawson’s request to help himself to a bottle off the shelf. There was no bottle on the shelf, so he went at once to the cask and drew it off. He had seen ale drawn from the cask into a jag and bottles tilled from it. Mr Bathgate remarked that if the plaintiff was justified in the coursi taken il would be so easy to evade the licensing Act that it must fall. Mr Flarris considered the point was mistaken, on the part of the defence. If the plaintiff were justified in keeping beer in bulk on the premises for bottling, it did not matter in what part of the premises it was kept. His Worship said ho had not the smallest doubt in his own mind from the evidence that the defendant had made a mistake. He had misconceived his duty. The 43rd section of the licensing ordinance was very plain to his mind. As Mr Harris had pointed out, it only empowered the persons nara d, justices of the peace, police constables, or constables to seize under certain circumstance, and the special circumstances were that fermented or spirituous liquors were exposed for sale by persons not licensed to soli. On turning to the bottling licensing clauses, the define tion of the terras used are “ bottles, corked, sealed, capsu'ed, or wired,” and not to be drunk on the premises for which such license has been granted. There was nothing to prevent holders of bottle licenses bringing liquor in bulk on to thrir promises and bottling it for sale, and capsuling those bottles. If it was intended to hedge in holders of bottle licenses further, the law must be altered, Mr Bathgate had asserted that the defendant was right in assuming or inferring that the liquor was on tap for tho purpose of drawing on for sale. He had no right to so assume or infer. He ought to have had evidence of the fact before making a seizure. It was a serious thing to seiz‘ a man’s goo’s, and he would find that out. He bad done it unadvisedly, and he (the Magistrate) could come te no or,her conclusion than that there was no probable cause. The cask was there no doubt. Being on tap had nothing to do with it. Plaintiff tnght have had twenty casks on tap. But the defendant should hj ive had reason in his own mind that that man had been offending against the law before seizing. There was no reason to think the seizure was made maliciously, hut unquestionably the plaintiff was entitled to be compensated for the loss he had sustained by the act of the defendant. Judgment for tho plaintiff, LIO and costs. Mr Bathgate gave notice of intention to appeal. M‘Laren v. I.umb,—Lso, Mr Harris for the plaintiff ; Mr Bathgate for the defendant. Judgment, L 6 and costs.

In Gregory v. Lumb, judgment was given for plaintiff, for LB, and in Hassell v. Lumb, L 7 10s. Morecomb v. Lumb was postponed.