RIGHTS OF A LODGER.

Taranaki Daily News, 8 September 1922, Page 3

RIGHTS OF A LODGER.

AN IMPORTANT DECISION. MAY TREAT GUESTS. . APPEALS UPHELD. An important decision concerning the right of a lodger in an hotel to treat his guests was given by His Honour Mr. Justice Chapman at the Supreme Court, New Plymouth, yesterday morning. The decision arose out of the appeal of Frederick Locke, licensee of the Waitara Hotel, against his conviction by the magistrate for selling liquor after hours and for keeping his premises open for the sale of liquor at a time when they were required to be I closed. A statement of facts was agreed on by the police and by the defendant, and on these the magistrate convicted. These agreed-on facts were: (1) In the premises were, among others, two rooms, the tele-phone-room and the commercial-room; (2) id the telephone-room were two lodgers and two of their guests; (3) in the commercialroom were two lodgers and six guests (three belonging to each lodger, including one Mr. Fairley, who was assistant barman); (4) Mrs. Locke, wife of the licensee, supplied drinks at the door of the tele-phone-room to Mr. Hickey, a lodger, which drinks were consumed by Mr. Hickey and the occupants of that room; (5) Mrs. Locke supplied drinks at the door of the commercial-room, first to Mr. Cain, a lodger, and sect ndly to Mr. Fryday, the other lodger. In other words, Mr. Cain ‘ shouted’’ for all in that room, and then Mr. Fryday; (6) Mrs. Locke knew that the lodgers had their friends in the respective rooms, but did not know the number each had; (7) Mrs. Locke had no authority from the licensee to supply other than lodgers; (8) all those in the rooms except the lodgers and Mr. Farley (assistant barman) were convicted of being illegally on the premises at the prior sitting of the court; (9) the lodgers were bona fide lodgers, having been lodgers for some months; (10) the drinks were bought and paid for by the lodgers; (11) the lodgers and their guests were not casual acquaintances, but were intimate friends, and this was known to the licensee and his wife. After commenting on the procedure thus adopted, the judgment continued: It is not disputed that in the circumstances the appellant would be responsible for the acts of his wife. The magistrate convicted appellant on both charges. THE MAGISTRATE’S REASONS. In his written reasons the magistrate says that two of these persons were alleged to be the guests of two of the lodgers then in the telephone-room, and six were the guests of the two lodgers in the com-mercial-room. In each case half the visitors were the guests of one and half of the other lodger. He adds that no inquiry had been made by Mrs. Locke as to whether these persons were really the guests of the person to whom they were attributed. On this the magistrate finds that “at the hearing of the charges mentioned in clause 8 of the facts agreed upon it was plain that all the persons in the telephone-room were not bon& fide guests of the lodger Hickey. Yet Hickey ordered and paid for drinks for the whole four persons in the room, including himself.” He states something similar with reference to the commercial-room, thus. “Three of the persons found therein were alleged to have been the guests of a lodger named Cain, and the other three persons found therein were alleged to be 1 the guests of a lodger named Fryday. Yet it is admitted that Cain ordered and paid for one supply of drinks for the whole eight occupants of the room, including himself.” Fryday then ordered and paid for another drink each for all who were there. “Three of these occupants had nothing to do with Fryday—they were alleged to be Cain’s guests. Now the fact is that all these persons (lodgers and their alleged guests), both men and women, were supplied by Mrs. Locke without the faintest effort being made by her to ascertain anything whatever about the position.” BONA FIDES OF GUESTS. The magistrate then goes on to deal with the question of bona fides in this way: “It is plain on the evidence that all the persons in the telephone room and in the commercial room that night were not bona fide guests of the lodgers whose guests they were alleged to be. In fact, one of the men found in the commercial room was Thomas Taylor, whose story was that he simply followed uninvited one of the lodgers (Cain) into the commercial room, but who nevertheless suc- : ceeded in getting two drinks in that room i supplied by the licensee’s wife. I there fore found that the alleged guests were not : guests and convicted and fined them all. ‘ The facts brought before the court on the ! hearing of the charges mentioned in para graph 8 of the facts agreed upon in this matter compel me to say that I am not j satisfied with the bona fides of the whole . | case.” It will be observed that what is i said about Thomas Taylor and his story | is not derived from the admissions. EVIDENCE NOT ADDUCED. It is quite evident that the learned ’ magistrate was here relying not on evi- I dence taken on this prosecution, for there . was none, and not on the admissions which . were accepted by both parties as evidence ; and the only evidence, but on facts elicited I at the hearing of a case to which appel- I lant was not a party. . This by’ our law ! cannot be done in a criminal case or even in a civil one. The only class of case in which it is ever allowed is one in which a question of status has been definitely determined by such adjudgment as a conviction for murder. If it is a question of believing a witness, a magistrate’s conscience cannot be compelled by any process, but there is no admission or finding in the only evidence before me which supports the magistrate’s condemnation of the bona fides of the transaction unless it is to be found j in the statement of facts. In this there I is nothing on which the mag : strate could I base a finding that the sales were a fraudulent assertion of the privileges of a guest in order to evade responsibility. Regarded as a question of law, Mr. Wes- ! ton. I think, properly admits that if each : of the boarders was entitled by law to orI der liquor for his guests as for himself he could in a bona fide case make any- ’ one his guest for the purpose. 1 In the result I am remitted to the only evidence before me and the only evidence actually before the magistrate, namely, the admitted facts, and excluding all other con siderations, as I am bound to do, I have : on these to determine whether a legal offence is made out. The question is not, ’ as Mr. Weston suggested, a case of the improper admission or rejection of evidence I within Section 291 of the Justices of the Peace Act, 1908. The complaint was not [of admitting evidence but of acting on something that was neither tendered not ' admitted. , . , • xu ’ After dealing with the legislation on the -object of gelling liquor to lodgers, livin?

at licensed houses and their guests, and citing a number of cases, His Honor’s judgment continued: “The only evidence we have as to the status of the persons who consumed the liquor is that set out in paragraphs 9, 10 and 11 of the admitted facts, namely, that the lodgers who bought and paid for the drinks were bona fide lodgers and resident for months in the house, and that they and their guests were not casual acquaintances but were intimate friends, and that this was known to the licensee and his wife. The only proper inference from thees facts is that the licensee and his wife were not knowingly committing an offence when she sold the liquor. There is no evidence here to rebut the ordinary presumption of innocence. I must add, which I have already mentioned, that the magistrate’s finding of want of bona tides is not based on facts ascertained in the course of the hearing of this case and ought net to form the basis of a conviction. It i», however, quite apparent that the magistrate has not professed to rely on any other evidence than this. Mr. Weston has argued that the Act of 1904 embodied in the Consolidated Act of 1908 has altered the law. In the first place it is to be observed that the wording of Section 191 is very plain. It is lawful to sell to a lodger and ha is not, as was the bona fide traveller under Section 22 of the Act of 1895, obliged to restrict his purchase to such liquor as he requires for his own consumption. Mt. Weston points to other sections of the Act. He argues that Section 194 excludes the persons treated by these lodgers and that this must alter the application of Section 192, as persons not enumerated not being lawfully in the house cannot in this way be treated to liquor by the lodger. Section 194, however, after specifically enumerating certain classes of persons who may lawfully be in the house after hours, adds to the enumeration a person described as such ‘‘that otherwise his presence on such premises was not in breach of the provision of this Act with respect to the closing of licensed premises.” I cannot suppose for instance that, apart from any question of the sale of liquor, either the private guests of the licensee or the private guests of 3 lodger could be considered to be persons whose presence on the premises was a breach of the law. So to hold would be to hold quite apart from the question of sale of liquor that a magistrate w’ould be bound to decide that such a person had no lawful right to be in the house, or rather that he or she committed an offence in being there. The person might be the sister or brother, son or daughter, of the licensee, and yet be an offender. That is not the meaning of the provision. It means that if the person is not of the enumerated class the onus is on him or her to satisfy the magistrate as to his or her reason for being there. We have no evidence as to what was before the magistrate in the cases against the guests. We only know that for some reasons connected with the appearance of these persons before him, in a case to which the appellant was not a party, he came to a conclusion adverse to the appellant in the present case. Unless they had disappeared from the district, there was no reason w’hy they should not have been called in this case. They had purged their offences and were important witnesses.

Mr. Weston further referred to Section 205 (e), which relates to the case of a person other than the licensee supplying liquor to any person at a time at which such person is not entitled lawfully to *be supplied with liquor. This section relates to suppylitig liquor and not merely to selling it. It is not aimed at the licensee, who is left urfder the liabilities elsewhere created by the Act. I am unable to see that it touches this case or gives any assistance, and further, I find no reason for reading Section 191 in any other than its natural sense.

With respect to the second charge, the house was not kept open for the sale of liquor in any other sense than that connected with the sale to lodgers. The appeals are therefore allowed in both cases. Mr. C. H. Weston appeared for the respondent and Mr. P. O’Dea, instructed by Mr. W. H. Freeman, for the appellant.