SUPREME COURT.

Globe, Volume VIII, Issue 938, 27 June 1877, Page 3

SUPREME COURT.

SITTINGS IN BANCO

Tuesday, June 26. [Before His Honor Mr Justice Johnston.] His Honor sat in chambers and banco at 11 a.m. IN CHAMBEES. HEAPHY V. WYLD. Mr George Harper applied for a rule calling on the plaintiff to show cause why the defendant should not be relieved m this action from forfeiture. Mr Gtirrick appeared to oppose the application. After argument, the case stood over until next banco day. "WILL OF JONATHAN JACOBS, DECEASED. Mr George Harper applied for an order issuing probate to Thomas Jacobs and H. W. Packer, as the executors of the said will. His Honor made the order as prayed. RE EMANUEL HOIST. On the application of Mr Bamford, his Honor made an order for the discharge of the debtor. Order made. SITTINGS IN BANCO. CULLEN V. CULLEN. Mr Garrick applied for an order making the submission in this arbitration case a rule of Court. His Honor made the order as prayed. SAME V. SAME. In this case Mr Garrick applied for a rule nisi calling on the plaintiff to show cause why the award of the arbitrators should not be set aside, on the ground that the arbitrators had exceeded their powers in finding that one of the parties should receive a certain amount for the goodwill of the business, and take over the debts of tho firm. All the arbitrators bad to settle were matters of account, and in doing what they had done they had exceeded their powers. Order made. Rule nisi granted, calling on defendants to show cause why the arbitration should not be set aside. Rule returnable on 17 th July. STACE V MOORE. Tin's was an argument on demurrer to the declaration of the plaintiff. Mr Harper appeared in support of the demurrer. Mr Joynt appeared contra, and against the demurrer. His Honor took time to consider. APPEALS PROM JUSTICES OF TRACE ACT, AND RE JOHN BARRETT (APPELLANT), AND RE ALFRED BUCKLEY (RESPONDENT). Mr Joynt for the appellant. The respondent was not represented by counsel. In this case, in the Court below, Alfred Buckley, Inspector of Police, was prosecutor on behalf of the Queen, and John Barrett, of Barrett's Family Hotel, Durham street, defendant. The information laid by the said Alfred Buckley was that the said defendant, being a holder of a publichouse license did knowingly permit more than one bar in or upon his iicensed premises without the consent of the Licensing Court of the district and without paying the fees for such additional bars, contrary to the Licensing Act 1873 Amendment Act 1874. The defendant in the Court below pleaded not guilty, and after hearing the evidence the Bench convicted the defendant, and adjudged him to pay £lO, being £5 for each alleged additional bar. An appeal was taken, and the question now submitted for the opinion of the Supreme Court was whether, according to the evidence, the half doors and square hole opening into the bar, as mentioned by the prosecutor, Alfred Buckley, are bars within the meaning of the Act.

Mr Joynt said this was a special ease, stated by Gr. L. Mellish and George Leslie Lee, Esqs., for the opinion of the Court. His Honor—Does nobody appear on behalf of the Crown? Surely some one is interested in the protection of the revenue. Who laid the information ?

Mr Joynt —Mr Inspector Buckley, your Honor. I may say no one appeared at the settlement of the case.

His Honor —I think it is not acting with respect to this Court. The police appear in the Resident Magistrate's Court, but when the appeal comes on here there is no one to support the Resident Magistrate. I suppose notice has been served ?

Mr Joynt—Oh yes, your Honor, the case has been duly settled.

His Honor—lt seems to me that the police should not interfere with the case in the way of prosecution, unless they are prepared to support it. However, I must hear the case, but it seems to me that some mistake must have been committed, as the Crown certainly ought to be represented. Mr Joynt—Probably, your Honor, the Crown did not think it sufficiently important to be represented here to-day. His Honor—Well, Mr Joynt, you may go on with the case.

Mr Joynt then proceeded to read the special case as settled by the Court below.

His Honor—This is an appeal on the merits, Be facto it is, was there two bars or one bar.

Mr Joynt—The Magistrates held that both these apertures were bars. In the second section of the Licensing Act, 1873, the definition of the word " bar " is given. That section said —" The words ' public bar ' shall be deemed to mean and include any room, passage, or lobby, in any licensed publichouse open immediately to any street, highway, or public thoroughfare, wherein the piiblic may enter and purchase any spirituous or fermented liquors." The Resident Magistrate taking that interpretation defined these apertures as bars. The meaning of the statute, lie presumed, was that any room, place, or lobby, where persons could obtain drink was a public bar. His Honor —I cannot construe the word ''bars " to mean a room.

Mr Joynt—The 10th section provided as follows :—" No person being the holder of a publican's license, issued under this Act, shall be entitled to have in or upon the premises in respect of which the said license shall have been issued more than one public bar for the sale of spirituous* and fermented liquors therein, and any person offending against this provision shall be held to be guilty of selling without a license, and liable on conviction thereof to a penalty of not less than five pounds nor more than fifty pounds." His Honor—There is no suggestion that there is more than one room, but that this lobby constitutes another bar under the Act. Mr Joynt said that he had very strong opinions on the subject, and contended thai the Bench was quite wrong in assuming each of these apertures a bar. His contention in

the court below -was, that the place where liquors were served was the bar, and there being half a dozen entrances or apertures in it did not make each of them bars. There was no contention that drink would be got from these apertures except from the bar. His Honor—lt might as well be contended that each place at the bar was a separate bar. Is there a private and public entrance ? Mr Joynt—Yes. In some hotels there is a billiard-room which lias a separate bar. In this case, of course, it would undeniably be a separate one. But in this case it was not so. The people who required drink could not get it by going into the lobby without getting it from the bar. Johnson's Dictionary defined a bar as being a place where the barkeeper sat and sold liquor and received reckonings. His Honor —I certainly cannot see the contention on the other side at all.

Mr Joynt —I submit, your Honor, that it is absurd to call these openings bars. His Honor -The Act says there shall not be more than one public bar. If there are private bars they do not come under the section. Mr Joynt—But there is a section further on your Honor which gives the holder of any license power to have more than one bar. I refer your Honor to section 9 of the Act of 1874. It says —"Notwithstanding anything in the said Act contained, any person being the holder of a publichouse license may have more than one bar for the sale of alcoholic liquors in or upon the premises, in respect of which such license shall have been granted. Provided that wherever there shall be more than one such bar in or upon any such premises as aforesaid, the holder of the license shall pay a fee for eacli additional bar at the rate of one-third of the fee payable for a publicans' license, &c." His Honor —I had overlooked that section, Mr Joynt. The second section of the Act of 1873 defines the meaning of the word "bar." It says that " any room, lobby, or passage opening immediately to any street, highway, or public thoroughfare " where drink could be sold shall be called a bar. If the Crown were represented here, though it is not right the Court should argue for them, they would say that this passage being a place where drink could be supplied comes under the Act.

Mr Joynt—lt was never contended by the Bench that these were public bars. The Bench made a distinction between the bars mentioned by the Act of 1873 and the Act of 1874.

His Honor—As I understand the section 9, it means that there shall not be different drink shops without paying an additional fee, but not where there are merely separate entrances into the one bar. There might be something in it if the passage or lobby opened directly into the public street. But you say it is not so. Mr Joynt—l think, your Honor, the magistrates are exceedingly anxious to get a judicial opinion. His Honor—" Well, if that is the case, they ought to have taken care to be represented here. If the magistrates are right at all they should have made three bars, because there is one entrance into the bar and two exits for drink.

Mr Joynt—They call the partition immediately opening on to Peterborough street the public bar, and the two apertures tending therefrom private bars. His Honor —But those requiring drink are served by the same persons. Mr Joynt—My contention was in the Court below, and I submit it is the right one, that these apertures not opening immediately into the street cannot be construed into bars.

His Honor —The point is, so far ns I can see, whether there is or is not any other room, passage, or lobby opening immediately on the highway where the public can obtain liquor ? Mr Joynt—Yes, your Honor, but I submit that this docs not face upon the highway. The lobby cannot possibly be the bar. His Honor—But the Crown says that the lobby is a bar. The Act says any lobby, passage, or room where drink can be obtained.

Mr Joynt —I submit that the bars must be independent entirely from the public bar to constitute an additional bar.

His Honor —The publican may serve liquor in any room of the house without being called upon to pay for an additional bar, but if there is a place where the public can obtain drink fronting on the highway it becomes another bar.

Mr Joynt—l will put a case, your Honor. Suppose a circular bar fronting the street all round is divided into compartments, I submit that this is but one bar.

His Honor —Certainly Mr Joynt, your contention would be right. Eut in this case the Crown puts it that there exists a " lobby" opening on to the street in which the public can be served with drink. Under the Act this is defined to be a bar. The person goes in to the lobby, and receives drink. That is how I read the evidence given on the case. Mr Joynt—But the lobby is not distinct from the bar. The purchaser though going into the lobby is supplied from the public bar as much as if ho stood in front of it. It is merely a matter of convenience for the customers.

His Honor —But if this is a convenience ought not the publican to pay for it ? Mr Joynt —I submit, your Honor, that in this case the lobby does not contain within it a bar distinct from and not in any way connected with the public bar. Your Honor will see that the purchaser receives the drink from the public bar, and not from another one distinct from it.

His Honor —But the lobby is a different compartment of the house, where the public can receive drink. The lobby is not a means of getting into the house, but for the purpose of getting drink. The lobby leads into the street, and nowhere else. Mr Joynt —Yes, your Honor, it leads into the taproom, and there is an opening from the taproom into the street. 1 submit there is no direct entrance into the lobby from the street.

His Honor —Mr Inspector Buckley says he went into the lobby from the street. Mr Joynt—But, your Honor, the door leads from the street into the taproom, and not info the lobby. His Honor—Not at all. This is the whole point of the case. Mr Buckley says he went in from the street into the lobby. Mr Joynt—lf your Honor will read Mr Buckley's evidence again I do not think it will bear that construction. He says " I went into the lobby," but he does not say that he went direct from the street into the lobby. If your Honor will look at the plan you will see that there is no door from the lobby direct into the street. To get to the street yon have to go through the taproom.

His Honor —But, Mr Joynt, is this marked on the plan here not a door into the street ? Mr Joynt —No, your Honor, that is the wall. If your Honor thinks it necessary I

will get Mr Amison to give evidence on the point. His Honor—Mr Joynt, we are not discussing matters of fact you know. It is a matter of the construction of the law as to the definition of what is a bar. Of course, to some extent, questions of fact are mixed up with it, but they are not the main point of argument. From Mr Buckley's evidence it appears that there is an entrance direct from the street into the lobby. But if your statement is correct, we must have the whole case re-stated, because it all rests upon the point as .to the opening upon a public thoroughfare. If there is no entrance to the street from the lobby, then there is not more than one bur ; if otherwise, then there is more than one bar. The law is that a lobby or passage shall be considered a bar when it opens directly on to Ihe street. With regard to the double door, I think that this cannot be held as a bar. With respect to the lobby, Mr Buckley's evidence is that ho went directly from the street into it. If this be so, then, under the Act of 1873, I think this is a bar, and the conviction is right. If, on the contrary, what you state, Mr Joynt, is correct, and there is no way into the street except through the taproom, then the conviction is wrong. I shall send the case back to be rc-statcd.

Mr Joynt —Do I understand your Honor to hold that there is no bar unless it opens directly into the street. For instance, you may go into a billiard-room bar, which would not open upon the street. His Honor —I do not think you can ask me to give you any further opinion than I have done. As I have said, if the lobby spoken of is reached from the street through some intermediate means, then it cannot be held to be an additional bar. If, however, it can be reached direct from the street, then it becomes, in my opinion, an additional bar under the provisions of the Act. That is, if it is a place opening out on to the street or highway where the public can obtain drink. Order—Case referred back to the Resident Magistrate to be re-stated for the opinion of the Supreme Court. The Court then rose.