SELLING LIQUOR WITHOUT A LICENSE.

Clutha Leader, Volume XX, Issue 1030, 20 April 1894, Page 6

SELLING LIQUOR WITHOUT A LICENSE.

In ths case Christie v. Guest, which was heard in the Matjistrate's Court hero last week before Mr R. S. Hawkins, S.M. His Worship delivered judgment on Monday as follows : — This is a charge, under section 159 of the Licensing Act, of selling liquor without a license, and the defendant is a married woman s»nd wife of a storekeeper at Balclntha, who holds no license to sell liquor. The facts disclosed by the evidence are that the store was the store of the husband ; that his name was over the door and his name on the bills, and his wife (the defendant) denied that she had any property in the sbop or store. It also appeared from the evidence that the defendant acted in the management of the business, sold and sent out good 3, gave orders to the man employed in delivery, and, in fact, received and carried out orders of customers. She also appears to have had the power to settle accounts with creditors of the firm » by contra account of goods sold to them. On the 27th of December J. 0. Anderson went to Guest's store to countermand part of an order given by his wife for goods, and ordered a gallon of whisky, as he says, in the ordinary way of business. The defendant aays thai she said, "Wo don't keep it. but I'll get it and send it." Anderson says that he has no recollection of that ; that he took no notice of anything except that she would send the whisky. After Anderson had gone defendant ordered Hatcher, her husband's servant, who drove their delivery cart, to go to Blackwood and Chapman's (who aro licensed liquor sellers) get a gallon of whisky, and take it with the other goods ordered by Anderson to his house. Hatcher did so. and with it delivered a bill from Guest's and asked for payment, but Mrs Anderson only paid for the shop goods, telling Hatcher her husband would pay for the whisky. The defendant said that she had settled herself for the whisky with Blackwood and Chapman by a contra account for goods sold them out of the store. The cas<i wss somewhat complicated by the prosecution of the husband and by the case against him, when partly heard, being withdrawn by the inspector on the ground that he had no evidence whatever to offer against her husband. Since the evidence has been given in the charge against the wife, it is clear that the inspector should have proceeded with the charge against the husband, leaving the question of his liability as a question of law for the court, and at any rate putting the husband on his defence. It has never, so far as I know in this class of penal prosecutions, been the practice to proceed against the agent or servant where a principal is disclosed. The prosecution suggested that that applied only to the prosecutions under section 155, and not to those under section 159. But as far as I know there is no difference whatever in the principle or practice of prosecution in the case of a prosecution for other penal offence as apart from a criminal act. The only special reason for always prosecuting the principal under section 155 is that on conviction the endorsement of the license follows. The solicitor for the defendant claimed that she was not personally liable ; that she was acting for her husband ; that whit she did she did i-nly as his agent ; that she had no benefit from the sale, and and could not sue for the money ; and that it whs not her sale but herhnshanrl's. But that view w;is overruled isi Hex v. Crofts (2 Strange, 1120), where the wife wns convicted of selling gin in contravention of 9 Geo. 11, C 23. It is not otherwise necessary to discuss the liability of of the wife on pen till statutes, which is sufficiently well defined. The fact that the wife is personally responsible on a penal statutes does not at all preclude the inquiry whether she did the act while acting manager of her husband's business in the ordinary course of her employment and whether he is therefore not also responsible for her act or the illegal act of his manager, agent, or servant. The defendant's solicitor from that set up that there was no salr, but that Mrs Guest procured the liquor from Blackwood and Chapman as agent for Anderson, and he cited Basley v. Culling (VI. 5.0.,755). But in that case the defendant, who was a storekeeper and carrier, was asked to get two gallons of whisky for some customers. The defendant signed an order on the liquor seller, who lived 39 miles off, for the two gallons, stating that it was for the customers. The liquor seller made out the invoice to the customers. The defendant's storeman handed the invoice to the customers, who paid him the money charged in the invoce, and 33 for carriage. The identical monoy paid was put in an envelope and paid to the liquor seller. It is clear that those circumstances differ entirely from the present case. Here Anderson knows nothing of Blackwood and Chapman, the liquor sellers ; bnt the defendant buyes the liquor in her husband's name, and pays for it by allowance for goods sold in contra account. The liquor clearly became the liquor of Guest, and as such was sold by his wife to Anderson. I n'nd that the offence charged *as committed by defendant. The defendant said she resold the liquor to Anderson at the cash price at which she bought it. It was suggested, but in no way proved, that defendant's husband had received a commission on this liquor. That the defendant in her .evidence denied. Beyond this there was uo suggestion on the part of the prosecution that this was other than an isolated act, or that it was a practice at Guest's to sell liquor in this way to customers. I have, therefore, only to consider it as an isolated act. Still, it is a substantial offence apart from the mere fact that it is a breach of the law. As the law now stands all liquor sellers are subject to the payment of heavy license fees and to serious penalties and they are entitled to expect the law to be substantially enforced against un-

licensed persona who attempt directly or indirectly, to take part in the trade. I ; fine defendant L 6 and costs, LI 5s 3d. Mr 1). Stewart, on behalf of Dr Findlay, applied for leave to appeal, which was granted.