ALLEGED SLY GROG-SELLING.

Clutha Leader, Volume XX, Issue 1029, 13 April 1894, Page 5

ALLEGED SLY GROG-SELLING.

» ... At the Magistrate's Court here on Wednesday — William Guest was charged, on the information of Constable Christie, with unlawfully selling to John {{Crawford Anderson certain intoxicating liquor, to wit — one gallon of whiskey, without having a license to sell the same. — Inspector Pardy prosecuted, and Dr Findlay defendeel. Inspector Pardy, having briefly stated the case, called J. Crawford Anderson, farmer, Stirling. In the month of December last he called on Mr Guest on business matters. His wife called on Mr Guest on the 27th December and gave him an order. Witness went to countermand part of the order. He then saw Mrs Guest — not Mr Guest f . He also ordered a gallon of whiskey. The order was given in the ordinary way of business, and he expected it to be charged to him in tbe ordinary way. He had not 3 T et received the account. The whiskey was delivered on the 28th of December at his house by Mr Guest's man. . * To Dr Findlay : He was not. present when the whiskey was delivered. When he ordered tbe whiskey be saw Mrs Guest only. He would not undertake to reproduce all the conversation that took place between them at that time. Edwin John Hatcher, storeman in Mr Guest's employ, remembered delivering goods to Mr Anderson about 28th December. Amongst other goods he delivered a gallon of whiskey. He got the whiskey from Blackwood and Chapman. Mrs Guest instructed him to go there for it. He bad no special instructions ; it was delivered in tbe ordinary way of business. To Dr Findlay : Mrs Guest asked bim to get a gallon of whiskey at Blackwood and Chapman's and take it down to Anderson's. Mrs Anderson paid him for everything but the whiskey. To Inspector Pardy : Mrs Anderson told him that her husband would pay for the whiskey. The whiskey was included in the billhead. Dr Findlay objected to any reference to the billhead unless it wero produced. His Worship considered the billhead should be produced. To Inspector Pardy : He delivered the ; whiskey to Anderson by order of his employer, and would have accepted payment for it had it been offered. Inspector Pardy said if necessary he would ask the court to adjourn tho case in order that the billhead might be produced. His Worship thought that the prosecution should liave been prepared to produce tbis, Inspector Pardy said he would ask the I defence whether they accepted the responsi- [ bility as regards Mrs Guest, she baying sold the whiskey. Dr Findlay would not be propnred to say whether he would or not. Inspector Pardy said he would withdraw j the information unless Mr Guest accepted | tho responsibility of his wife's action. He j asked counsel whether he would or not. j Dr Findlay Avas not prepared to say at that I stage whether he would or would not. His Worship said he could not ask the defence to do so. Inspector Pardy said he wished to bo on safe ground. The evidence so far was against Mrs Guest, and'unless Mr Guest was prepared to accept the responsibility as against Mrs Guest he would withdraw the case. His Worship said of course if the caso was withdrawn there was nothing before bim. Case withdrawn. The case against Mahgahkt Guest was ' then proceeded with, the information being similar to the previous case. J. Crawford Anderson gave evidence similar to that given in the previous case. He had not yet paid for tbe whiskey, but expected to have to do so. It was Mrs Guest to whom he gave the order. To Dr Findlay : It was at Mr Guest's store that he ordered the whiskey. He understood he was ordering it from Mr Guest though be gave the order to Mrs Guest. He had not seen any billhead including the whiskey. He could not remember all the conversation that took place further than that he ordered the whiskey. He proposed to pay William Guest for the whiskey. To Inspector Pardy : All his dealings were with Mrs Guest. Edwin J. Hatcher gave evidence similar to tbat in previous case. When Mrs Anderson paid him for the goods she said her husband would pay for tbe whiskey. To Dr Findlay : The billhead he delivered with the goods was in tbe name of William i Guest, wbo carried on tbe business. He was in William Guest's employ, and was subject • to his instructions. All he was told by Mrs Guest was to get tbe whiskey and take it down with the otber goods to Anderson's. To Inspector Pardy : Mrs Guest gave orders • as well as ber husband, and on this occasion he obeyed Mrs Guest. This closed the ease for the prosecution. Dr Findlay said the case had so hopelessly 1 broken down that be was at a loss to know 1 whether it was necessary that he should proi ceed with tbe defence. It was clear from tbe i evidence that it was Mr Guest, if it was anybody, who was liable. Mrs Guest had no proprietory interest in the whiskey and therefore could not sell it. His Worship said he hardly understood tbe • prosecution. It was first tried to make Mr Guest responsible for the action of his wife, and now to make Mrs Guest liable when it was proved that she was the agent of her i husband. Inspector Pardy said he relied on the fact that the whiskey was ordered from Mrs Guest, and ordered by Mrs Guest to be sent ; to Anderson. At the time Mrs Guest took E the order she sold liquor without any men--5 tion of Mr Guest. Dr Findlay said that in that case a bar maid wonld be responsible in selling a glass of drink after hours unless she expressly r stated that she was acting as agent of her - employer. i Inspector Pardy said Mrs Guest was acting ; entirely on her own responsibility. The case I v/as altogether different from that of a barmaid. Unless tbe husband was piesent he was f not responsible for the action of his wife. His Worship said that section 160 seemed to uphold the inspector's view. It treated with the party who actually sold. The point 1 he had to decide was, did Mrs Guest sell the - liquor ? Dr Findlay said tbat in that case a barmaid would be responsible and not the hotel- ' keeper. » His Worship said that that was the diffi- • culty. Did anyone know of a case where the . person who actually sold the liquor had been prosecuted,

Dr Findlay replied in the negative, ancl the inspector could not ejuote a single case, be- 1 cause such a case had never even been brought up. His Worship said that phase of the case | was presented to him now. Dr Findlay submitted that the sale was made by the principal. Mrs Guest and Hatcher were merely carrying out their general instructions. They were both necessary to complete the sale, which was macle by Guest, of whom they were only -the agents. Inspector Purely said the section of the Act relied on by the defence dealt with licensed houses only, Dr Findlay said that the inspector could not quote a case where the party selling was brought up. It was nonsense to say that these sections of the Act applied to licensed houses only. His Worship said evidently the point had never been raised ; tbe principal had always been prosecuted. But now the point was raised and it wanted consideration. There was this further difficulty, however, that the salo was not completed without the assistance of Hatcher, who was the agent of Mr Guest. Dr Findlay said that if His Worship decided that way it would set up a new phase of licensing law. Inspector Pardy said they were dealing with the party who sold tbe liquor — the party who did the illegal act, and section 160 of tbe Act was clear on the point. Dr Findlay contended that an agent could not sell except on behalf of his principal. His Worship said that if Mrs Guest sold an article that Mr Guest had no right to sell, but sent for it outside and sold it, then she was responsible. Dr Findlay said that Mrs Guest was acting ih the store for her husband and not for herself. His Worship was inclined to think Mrs Guest was responsible. Dr Findlay said he had other defence to rely on besides the matter of Mrs Guest being merely the agent of ber husband, and he hacl never gone into the defence at all. The facts wore these : Anderson asked Mrs Guest to send down a gallon of whiskey with the goods already ordered. Mrs Guest said she did not sell it, but that she would get a gallon I and send it down. Mrs Guest declared at the time that she did not have a license and J did not sell it. In tbat case Mrs Guest did not sell the whiskey, she merely got it for I Anderson, acting as his agent. This view ! was supported by cases already decided. He j quoted a case in which it was held that the party ordering the liquor for a third party was not liable. He would call Margaret Guest, wife of William Guest, storekeeper : Her husband did not hold a bottle license. She remembered Mrs Crawford Anderson giving her an order for some goods. The goods were not sent at once. A little later Mr Anderson came in and asked when they were to send down the goods, and she said not till next morning. He then asked witness if she would also send one gallon of whiskey. Witness replied that she did not keep it, but that she would get ifc and send it with the otber goods. As Hatcher was getting ready to go out witness asked him to get a gallon of whiskey at Blackwood and Chapman's and take it down to MiAnderson's. Nothing more was said. She bad not paid for the whiskey and had not been paid for it. That was all witness had to do with the order. The shop belonged to her husband. Nothing in the shop belonged |to her. Sho was acting for her husband when she said she would get the liquor, and. did it merely to oblige Anderson. To Inspector Pardy : Her order was on ber own responsibility. Blackwood and Chapman's account bad been settled by contra. She threw no responsibility on ber husband. Blackwood ancl Chapman charged 27s Gd for the whiskey and 7s Od for tho jar, aud witness charged Anderson the same. Blackwood and Chapman allowed no commission that she knew of. Her husband had nothing to do with it, and never knew of it till last Wednesday. His Worship said he could not see that a sale was proved. Inspector Pardy said be relied on tbe fact tbat Anderson ordered rhe whiskey from Mrs Guest and that Mrs Guest delivered it. J. C. Anderson (recalled) : When he gave tbe order for tbe licmor, as far as be could recollect, nothing was said about Blackwood and Chapman. He paid no attention to what Mrs Guest said when he gave the order, and did not know whether she said she did not keep it or not. To Dr Findlay : If Mrs Guest says she said she did not keep tbe whiskey, but would get it ancl send it, witness would not deny it, for, as he had said, he paid no attention to what was said further than that tbe whiskey was to be sent down. His Worship said he would take time to consider. It was not suggested that it was a common practice. It was evidently a question as to whether Mrs Guest was an agent for Anderson in procuring the whiskey, or whether in accepting Anderson's order and having the whiskey delivered she could be held as baying sold tbe whiskey. — Judgment reserved.