SUPREME COURT.

Wairarapa Age, Volume XXXII, Issue 10087, 7 September 1910, Page 5

SUPREME COURT.

M ASTE RTQN—TU ESQ AY.

(Before His Ho;n6r Justice Edwards.')

A LICENSING APPEAL.

Nathaniel Miller, Sergeant of j Police, Masterton, appealed against the decision of Mr Q, Q, Graham. 6.M., m a case lit .which one John Smith was charged with a breach of the Licensing Act. Mr H. Ostler, Crown Prosecutor, appeared for the appellant, and Mr C. A. Pownail, instructed by Mr Lavery, of Carterton, for the respondent. The facts of the case were thai the respondent, John Smith, of Car-tex'-ton, was employed by William Burri(%'?> brewer, who has a bottling store aijd brewery depot at Carterton, to drive delivery cart for Burridge; that the" bottling store was outside the boundaries of the Licensing district of Masterton; that one John Leahy, who resided in Masterton, on 20th May, 1910, sent a written order to Burridge to forward to his address at Masterton one dozen bottles of .beer; that Bur- I ridge received the orders, among others, and furnished the Clerk of the Court with a statement as required by the Act; that Burridge sent no notice or communication to Leahy accepting the order, or intimating that he would accept it; that on May 21st Burridge caused ten dozen bottles of beer to be placed in two open packing cases and dispatched Smith to deliver them-; that each of the cases was marked with a statement that it contained liquor, hut neither of the cases were addressed to any particular person, nor were any of the bottles of beer appropriated to any particular order; that Smith drove around Masterton in fulfilment of the orders, and that when he reached the residence of Leahy he found him away from home, and his wife was not able to pay for the beer ordered ; that, in pursuance of instructions from Burridge, Smith refused to deliver the beer, but offered to do so later in the day if Leahy would pay for it; that as Leahy did not return to his home and was still away when Smith call- I ed a second time, the beer was tak- | en back to the depot in Carterton. Upon these facts Mr Graham, S.M., held that the bottles of bere had been sold to John Leahy at Carterton, and that therefore it had not jbeen kept for sale by the defendant at Masterton; .that Burridge had a legal right to •instruct Smith not to deliver the beer until the price had been paid; and that the defendant was justified in refusing to deliver until the beer was paid for. The question for the de

termination of the Court was whe-

ther the determination of the Stipendiary Magistrate wate erroneous in point of law! Mr Ostier, after dealing ..with tho facts of the case, as stated above, argued at considerable length that there had not been an appropriation of the beer sufficient to constitute a contract of sale. He quoted numerous authorities in support of his contention. He held that the tact of "keeping for sale" was committed if the beer was in the possession of the defendant for thio-e minutes,

His Honor: The word "keep" generally imports continuous possession. Counsel submitted that his definition of the term was supported, by authority. ' His Honor: When it is sought to make criminals of people who were acting in a supposed legal manner, the intention of the Legislature must be considered, and one must take the ordinary acceptance of terms.

Mr Ostler: I submit that my interpretation of the term "keeping for sale" is not fanciful.' It is supported by authorities. His Honor: I am of opinion that to say that a person who nets as the respondent has done in this case is guilty of "keeping for sale" is to abuse language. Mr H. Ostler: If that is the view your Honor takes, I am afraid I cannot assist the Court any further. His Honor said he would not require to hear Mr Pownall for the respondent. He was quite satisfied that there had been a breach of the clause of the Act prohibiting the keeping of liquor for sale. He would say again, and without hesitation, that to construe the word "keep" as was suggested by counsel language. The intention of the for the appellant was to abuse language. The intention of the legislature, in a penal case, should be clear and umnistakeable. In this case the language was quite clear, the intention of the Legislature being to prohibit an established practice of keeping liquor for sale. He was of opinion that the prosecution, in the first instance, should not have been brought. It would have been' sufficient had the brewer been cautioned that he might be guilty of another offence if he continued the practice. That it was a proper thing to prosecute, and then carry the case to such lengths was, he thought, open to grave doubt. It was his duty to so interpret the law that justice would be secured. He had no hesitation m dismissing the case. Mr Pownall asked that costs be allowed against the appellant. I Mr Ostler maintained that costs could not be allowed against the police, and he quoted authority to show that it was not the practice to allow costs. Mr Pownall pointed out thi'.t. the appeal had not been brought by the defendant in the case, but by the police themselves. His Honor said that he was personally inclined to allow costs. He would* not, however, depart from the usual practice. Mr Ostler asked for an adjournment to permit him to produce further authorities that the practicewas not to allow costs against the

police. His Honor thereupon granted an adjournment until two o'clock. On resuming, Mr Ostler quoted further authority in support of his contention.

Mr Pownall quoted the Chief Justice to show that where a genuine law point was raised, no costs were allowed against the police. Where, however, there was no distinct law point involved, costs wore allowed.

His Honor said this was an isolated case. It was not an appeal against a conviction. It could not be held to be a case in which an appeal had been properly brought to decide a point of law; Costs, £7 7s, would be given agaiiast the appellant.