MAGISTRATE’S COURT

Hokitika Guardian, 25 October 1928, Page 6

MAGISTRATE’S COURT

THURSDAY, OCT. 25th. (Before W. Meldrum, Esq., S.M.) LICENSING ACT. Tile police charged offenders with being on licensed premises unlawfully after hours: One offender (Club Hotel). Fined 20s and costs 10s. One offender (All Nations Hotel, Rimu) ordered to pay costs 10s. A resident (Masonic Hotel) pleaded not guilty. After hearing Constables Dougherty, defendant and a witness, defendant was fined 20s and costs 10s. An offender found drunk in Revell Street, aws convicted and ordered to pay costs 10s. MOTOR REGULATIONS ACT.

The police charged J. Nolira with driving his motor car on tik wrong side of the road. Fined 5s and costs 10s. DEBT CASE. / Jeffries and Co. (Mr Elcock) v. Jas Tohey, claim £lO 0s Od. Judgment for plaintiff with costs 2os 6d. RESERVED JUDGMENT. Police v. Lloyd and Police v. Cowie. Defendant Lloyd is charged under Section 205 (e) as a person other than the licensee with supplying liquor after hours to persons not lawfully entitled to- be supplied; and defendant Cowie as licensee, is charged under Sec. 90 with unlawfully supplying, selling and keeping.open foi* sale. The facts in so far as they affect the case are referred to later, and are not in dispute, nor do the decided cases bearing on the facts appear to me to be in conflict.

In Henry v. Felton, Denniston J said: “If an unauthorised person sold “against the instructions or “the knowledge of the landlords, in “such cases the mere fact of the sale “having taken place would not render “him liable. It must be shown that “the sal© was made by the licensee, or “by some one authorised by him ... “Had the sale been by a barman, or by “the publican’s wife it would undoubtedly have been made by an authorised “person.’’ , - /

In that case justices had convicted a licensee of selling on a Sunday. The sale had been effected by his son aged 12 years, and the appeal was dismissed. In Jull v. Treande, N?Z.L.R., XIV. p. 513, the magistrate had proved that there was no authority to sell at all, and on that ground a conviction was quashed. In Sivyer v. Taylor, 1916 N-.Z.L.R. 586, Sim J. held that an absolute construction was t-r be placed on Sec. 202>, which imposes a penalty on any licensee 1 who supplies liquor to a person apparently under the age of 18 years, and the licensee was held finally responsible for an unlawful act by a barman against express instructions.’ In Tocker v. Mpreer, 1917 N.Z.L.R. 162, Hoskings J. said: “In my opinion; “the provisions in Sec. 190 is to he “construed as an absolute prohibition.’’ And allowing the appeal he held that where a barman “has been given free “access to the liquor and has authority to supply real lodgers, the licensee “is prima facie responsible, although “he lias had express authority not to “sell to any but real lodgers.. The “general authority to sell liquor to “boarders brings the licensee under the “vicarious responsibility for the act of “the delegate.” Mr Murdoch, for the defence, has relied on a recent judgment by the Full Court in cases of O’Connel v. Clausen and Burke v. Clausen, reported in the N.Z. Law Journal of March loth. 1928. In that case a barman

jwho had “shoiuted” for his three friends after hours, the licensee being upstairs- knowing nothing of the transaction, was held to have beeii rightly convicted under sec.. 205 (e), hut the licensee’s appeal was allowed. The grounds given for allowing the appeal of the licensee were:

(1) The licensee was upstairs at the time and knew nothing of the transaction. A (2) No money was paid for the drinks which were given away by the barman to his friends. ' (3) In giving the drinks away the barman' was not acting within the general scope of liis employment. It is clearly no part, of his duty as barman to give away his master’s liquor after closing hours to liis own friends or guests.

In the present case Mrs Cowie said: ‘.‘Lloyd was in full control of the bar. “I gave him no instructions. Lloyd “had control of the key and used his “own judgment. He could do as he “liked. I told Lloyd to carry on and “to do as well as he could.” Lloyd’s general instructions were not to sell after hours. ■

Lloyd himself said: “I had complete ‘ ‘control of the bar at the time under “Mrs Cowie’s authority.”

He admitted having supplied liquor to the seven men found, in the room behind the bar.

I do not think the decision of the. Full Court in Burke v. Clausenis applicable, hut that the decisions in Henry v. Felton and Tocker v. Mercer, which were not referred to or distinguished by McGregor J. in giving the decision of the Full Court, must he followed in the present case. . Lloyd is convicted of supplying, under Sec. 205 (e), and the licensee Mrs Cowie, of exposing for sale, under Sec. 190. Lloyd is fined £1 and costs 10s and Afrs Cowie £1 and costs 10s,

Leave is given to withdraw the other charges.

CHILDREN’S COURT. ~ Evidence of several witnesses was taken in a charge of assault, the hearing being then adjourned till next sitting owing to the nori-attendance of defendant,