SUPREME COURT ACTIONS.

Taranaki Daily News, 9 March 1922, Page 2

SUPREME COURT ACTIONS.

JUDGMENTS DELIVERED. LICENSING CASES. A SUCCESSFUL APPEAL. In the Supreme Court at New Plymouth yesterday morning, His Honor Mr. Justice Chapman delivered reserved decision in a number of cases which had come before him during the session. An appeal against conviction .for a breach of the licensing laws wa-s.-the issue in the case of Robert Fairweathei, licensee of the Club Hotel, Waitara (appellant.) v. Hugh McOrorie, sergeant of police (respondent). The decision was that of Mr. T. A. B. Bailey, S.M, Reviewing the case, His Honor eaid the prosecution alleged that Fairweather effected a sale of liquor, twelve cases of whisky, to a man named Volker, which was intended to be taken to Awakino, a proclaimed area, without furnishing to the clerk of the court a statement in. writing as to the nature, and. quantity of the liquor and the name and address of the person ordering such liquor The liquor concerned was twelve cases of whisky, for which the sum of £72 was paid. According to the evidence, Fairweath v was told, in reply to a question. I’’ the liquor was not going into the Mo district, and that Volker wanted it a “'boozero.” The Magistrate had that Fairweather accepted as truth wholly improbable story that Volker and iiis friends were going to have a spree on twelve cases of whisky in a licensing area. It was absurd to think that any person would require twelve cases of whisky to treat his friends in any but a no-license or proclaimed area.

In dealing with the proof of the offence, the Magistrate had held that the circumstances bore some analogy to those connected with the position of a bona fide traveller, where the onus was cast 'by the law on the vendor of showing that he was right in the circumstances in assuming that his customer was a bona fide traveller.

Commenting on this, His Honor said:— “I do not think, however, that the class of case in analogous to this. . . Here, as in an ordinary criminal case or a proceeding for penalties, the onus is on the prosecution, and the question is whether the case is proved. The Magistrate’s error led him to convict in a case where, in the last paragraph, he says: ‘The defendant in this case, even if his story is true, has, by accepting as truth a highly improbabje story, sought to avoid the onus cast upon him of becoming aware of the destination of the liquor.’” Concluding the judgment, His Honor said: “As I have held that the onus is on the prosecution, I hold that the findings of the Magistrate, even if reluctantly arrived at, entitle the appellant to judgment. The appeal is accordingly allowed.” At the hearing. Mr. A. A. Bennett appeared for appellant, and Mr. C. H. Weston for respondent. ELTHAM APPEAL DISMISSED. Another appeal concerning the licensing laws was that of Ernest Crabtree v. F. H. Townsend. Appellant, the licensee of the Coronation Hotel, Eitham, was convicted !by Mr. A, M. Mowlem, S.M., of selling a bottle of whisky at an hour when such sale was con/rary to law. It was not suggested that Crabtree was personally aware of the sale, as he was away from the hotel at the time. The sale was made by a barman, and the question was whether the barman had implied authority to sell. Following the lines of a decision by the late Chief Justice Prendergast, the Magistrate had reviewed the question of whether the barman would have power to supply liquor to any boarder who might have applied. He thought he would have done so, and therefore in this case was acting within the general scope of his employment. The fact that he did not actually sell the liquor in the bar, but brought it out to the door, did not make any material difference. After reviewing the circumstances His Honor upheld the Magistrate’s finding. The appeal was accordingly dismissed, with costs £6 6s. At the hearing Mr. R. H. Quilliam appeared for appellant and Mr. 2. H. MTeston for respondent CLAIM AGAINST ESTATE His Honor found for plaintiff in the case of Henry Law v. J. W. Burke and others, executors of the estate of the late William Burke. The judgment stated that the plaintiff claimed to be a creditor of the testator. The circumstances were somewhat peculiar. On November 28, 1907, one Henry Burke borrowed £4OO from the plaintiff on the sucurity of a piece of land. The testator joined in the mortgage of the property, in which, however, he had no interest, for the purpose of entering into a covenant to pay the sum. The mortgage, however, had not been paid, nor had the executors paid the. debt, and the security was found to be deficient. A purchaser who acquired the property subject to the mortgage continued to pay the interest down to a few years since. For some years, however, nothing had been paid. After going into the legal question. His Honor remarked that the advance was made at the request of the late William Burke, and he agreed to take the burden of it. The judgment concluded: A declaration to the effect that the estate of the testator remains liable in the hands of the legatee defendants to answer this debt will probably suffice but, if not, the plaintiff may apply in proper form for leave to proceed under the provisions of the Mortgage Extension Act, 1919, and if necessary to have the estate of the testator administered by this Court. The plaintiff is entitled to his costs against the defendants jointly and severally, but the executors are entitled to recover from the legatees any costs which are cast on them. The costs of this action down to judgment are fixed at £16.165.

At the .hearing, Mr. R. H. Quilliam appeared for plaintiff and Mr. P. O’Dea for defendants.