LAW REPORTS.

Dominion, Volume 4, Issue 1088, 29 March 1911, Page 3

LAW REPORTS.

"AFTER HOURS." MAGISTRATE'S FINDING UPSET. RAMBLERS' F.C. CONCERT. VERY INTERESTING DECISION. Ramblers' Football Club's smoke concert at the New Zealander Hotel on August 17, and the entrance of the police at 10.23 p.m., and what tli'ey found led to proceedings being taken against (ho then liecnbi'o (Jlr. J. Donnelly) in the Magistrate's Court. Tire police obtained a conviction, but the licensee appealed* Yesterday morning Mr. Justice Cooper gave his decision in the appeal case. By this the finding of Jlr. W. G. Riddcll, S.M., was set aside, and the conviction quashed.

Short History of the Case. • The charge on which the appellant, Donnelly, had been convicted by the magistrate was that ho had allowed liquor (purchased before tho hour of closing) to bo consumed on licensed premises after 10 p.m. According to the facts as stated by the magistrate, tho Ramblers' Club li'eld a sinoko concert in tho dining-room of the hotel, having first secured the permission of the police to continue the gathering after 10 p.m. on condition that no liquor was consumed after that hour. The licensee remained in the dining-room for some time, and had intended to remain there until 10 p.m., and after for the purpose of preventing any liquor being consumed after that hour. Owing, however, to the barman being taken ill shortly before 10 p.m. tho licensee was compelled to go into the bar, and to remain there until after 10.35, Before leaving the diningroom ho had informed Ham- Waters (a vice-president of the football"club) of his reason for leaving, and had also informed him that no liquor was to be cousumcd after 10 p.m. when the police entered they saw several glass jugs on tho table containing beer, and also a number of glasses - containing aerated waters, and somo containing beer. There was ■ no direct evidence of an}* actual consumption of liquor after 10 o'clock, but Waters had stated that tho jugs had been filled with beer about 9.55 p.m., and he was not prepared to sav that no beer had been consumed aflcr 10 o'clock. The magistrate had "held that defendant had left Waters in charge of the dining-room, and as Waters was unable to say that no beer was consumed between 10 o'clock and 10.35 o'clock, the matters stated afforded no ground of answer or defence to the information." He had, therefore, convicted Donnelly. Tho question for tho? opinion of tho Court was whether the magistrate's determination was erroneous in point of law.

What Happened After 10 o'Clock? Two questions (said Jlr. Justice Cooper) had been argued. The first was whether there was . any evidence upon which the magistrate could properly infer that liquor had been consumed in tho dining-room after 10 o'clock. In his Honour's, opinion there was. Tho fact that beer had been poured into the glasses by some of the party just before ten, and that at 10.35 there was somo beer remaining in sonic of the glasses was evidenco that, between 11.55 and 10.35, beer had been cousumcd, and the magistrate could properly infer that some of it had been consumed. Direct evidence of such consumption was not necessary. It was sufficient if there was presumptive evidence, and there was tho fact that Waters, would not state that beer hail not been consumed after 10 o'clock, and the fact that he had permitted it to be poured into tho glasses five minutes before ten, and the. condition of the glasses as observed by the polico about half an hour afterwards. These faots were amply sufficient evidenco to establish a prima faeio caso of consumption, within the prohibited hours,

Did the Licensee "Allow" Consumption? ,The other question was whether the, appellant "allowed" th.e consumption of beer after 10 o'ebek. Tho magistrate had held that Waters had been placed in charge of tho room, and that, theretore (as there was evidence from which consumption of liquor after 10 o'clock could properly be 'presumed), tho appellant had "allowed" this consumption. Mr. Ostler had admitted that the facts did not justify any inference that Waters had been qons.tituted appellant's agent or servant during the appellant's absence from tho room, and in his Honour's opinion, this admission was right. Water", as vice-president of the club, and one of the promoters of the concert, might fairly be said to have been in charge of tho concert, but the concert was allowed (bv the express permission of the police) to ba continued alter 10 o'clock, subject to a condition made with the promoters of the concert that 110 liquor should be consumed after that hour. The facts did not justify the inference that the appellant left Waters as his representative in, charge of the room, but merely showed,. that Donnelly, who was obliged to leave tho room, had emphasised to Waters the condition on which the police had allowed tho concert to continue. His Honour agreed, therefore, with Mr. Ostler that an inference that Waters was representing Donnelly could not properly be drawn.

Or Did He "Connive" At It? The only ground urged by Mr. Ostler in support of the conviction was that the mugistrato must be held to have found that tho appellant connived at the consumption oi liquor after 10 o'clock by purposely abstaining lrom returning to the .room. In his Honour's opiuiOn the case as stated showed that the magistrate did not draw such an inference, and, even if ho had done so, the facts found by him could not support such a conclusion. Tho magistrate had found as facts that the appellant had no intention of leaving the room, but that tho sudden' illness of his barman made it absolutely necessary for him to do so, and ho had found as a further fact that the appellant had no person in his employ to take the barman's place or to attend in- the dining-room. Ho had also found as a fact that tho appellant, before leaving tho dining-room, had expressly .told Waters that liquor?.must not bo ccnsumed after 10 o'clock. Some liquor remained in the room after the appellant loft. Tho hour at which he left was stated to have been "during the evening," and it was evidently some time before 10 o'clock for.'.he had to take the batman's place, and according to tho magistrate, he was necessarily absent until 10.35.

In the case Bailey v. Pratt (20 N.Z.L.R. 758) said his Honour, Mr. Justice Denniston, after exhaustively examining the English cases from 1875 to 1890, held that, in order to justify tho conviction of a licensed hotelkeeper for "allowing" matters to take place in his licensed premises which were prohibited during the hours within which tho licensed premises were directed to bo closed, knowledge or connivance must be proved. Jlero negligence or carelessness would not support tho charge, unless such negligence or carelessness was of sucli a character as to bo in itself evidence of connivance. Section 180 of the Licensing Act, 1908, under which the present appellant had been convicted was (so far as regarded this charge against him) in the same terms of Section 155 of the Act of 1881, which was under consideration in Bailey v. Pratt. His Honour said that he had carefully examined tho cases on which Mr. Justice Denniston had based his judgment, and he quito agreed with the principle deduced from them, and he would follow that judgment. Was (here, then, any evidence upon which tho conviction in the present case could be supported upon the ground that (he appellant had been guilty of such negligence or carelessness ns amounted fo ovidenre of connivance? His Honour did nat think (hat there was. Donnelly had been obliged (o leave tho room; Ihe magistrate had found as a fact that he was justifiably pVent. up lo the lime when theoolice visited the hotel, aiid I hat lie had no intention of allowing a breach' of the law to be nermitleil. and Ihe proved fuels showed that be did not. know that a breach of the law was likely to be committed. The onk circumstance from which nei/ligence or earele=«ness Piieht. be inferred was that he dirl not insist on the liquor being removed from ill? tUning-room. '.He for^,

bade, some time before 10 o'clock, its consumption alter 10 o'clock, and the magistrate had found that lie had intended to prevent such consumption by Us own personal attendance throughout the concert, but that he had been' prevented lrom remaining in Ihe room by cii'cur.] | .|ani.'es bevond his control. These acts negatived any inference that he had lolt the room, and abstained from returnnil-! lor Ihe purpose of allowing a breach of the law to be committed. Very-Interesting Bit. irr. Ostler had irgt'd thai' it' this appeal was. allowed, it would be difficult to enforce the law. His Honour did not agree with this. A simple remedy was that the police should in>ist on all entertainments, if held in a licenced house, ceasing i\t the hour at which the house was directed to be closed. The appeal was allowed, and the conviction quashed. Xo order was made for costs. Mr. H. I). Roll, K.C., with him Mr. G. roil, appeared for the appellant, and .Mr. H. I], Ostler for respondent.

DEAL IN COAL.

WEIGHING AT TIIE SHIP'S SIDE. Unserved election was given by Jlr. Justice Cooper yesterday in the appeal Mfe, Samnel Brown, Ltd., appellants, v. the lyueside Proprietary Coal Company, Ltd., respondents,. His Honour said that tho appellants sued the respondents in the S.JI. Court, before Dr. A. Jl'Arthur, • L"' claimed to be due as the balance of an account for"coal, and delivered to respondents. The. magistrate gave judgment lor tho respondents, and ''PI 1 ™! was on law and fact, ihe question of law was whether there was evidence upon which the magistrate hold that a cheque for A'lOt, paid by the respondents to tiie appellants on January 2(i, 1910, was accepted ill settlement of the account. In December, iyOfl, respondents purchased a quantity ot Stockton coal from the appellants (part of a shipment from Wcstport). The case for the appellants was that the weight of this coal averaged five baskets to the ton, but no agreement was made between the parties by which the weight was to bo taken as at five baskets to the ton. There was to have been a mutual weighing, but this did not take place, owing to a misunderstanding as to time, and there was no evidence that the appellants actually weighed any of (the coal, lho respondents' shipping representative (Captain Gillespie), whoso dutv it was to check the weights of coal delivered from the ship's side, took . tha weights of live baskets ordinarilv full, and their weight averaged 3751b. to the basket. Iho baskets themselves weighed 321b. each, and this was allowed in calculating tho net weight of 3751b. io tho bucket. If the rest of the coal was no heavier than that tested in these five baskets, the result would be that six baskets would be required f&r a ton of coal. In December, 1010, the appellants sent accounts to the respondents calculated 011 tiie bads ot five baskets to the ton, and this calculation was disputed by the respondents, and, 111 January, ]|)10, Mr. Pilcher, their manager, having had some interviews and conversations with Jlr. Brown, stated that he came to an arrangement with mm by which the differences' between I. l ] l , as " l 0 shipment were. 110 said, settled, and ail arrangement that future shipments should bo taken upon an a\ crago of 5.2 baskets for the ton agreed on. His evidence was that, in accordniicc with that arrangement, lie made out an invoice based on an average of six baskets to the ton. He forwarded with it a cheque for JUOI to the appellants, and the appellants' accountant received tile cheque, and receipted the account, it was not until June 13, 1010, that a'npellams intimated in writing that this clioquo was not received in settlement of the account. Jlr. Brown's evidence was I hat Pilcher sent round his chcque for A4UI, and a receipt was given. Tho amount he took as 011 account. Ho did not see tho account until after the receipt was sent back. Pilcher mav, ho . , nav , e , thought that (ho matter was settled Captain Gillespie told him that he had had some of the coal weighed, 1 mi baskets ran out at 37i!lb. each. 1 here was an arrangement for a mutual weighing with Captain Gillespie, but there was some misunderstanding as to tho tune. No furiher written claim was made till June. Ho had made verbal claims. Ho knew that Pilcher insisted Oil his attitude, and lie admitted that 110 should not have delayed. He felt sure that he spoke to Pilcher in his office 011 the matter of the cheque. There was 110 suggestion that the mailer was settled. ihb accountant had signed the re--CnPV , ? (Urown) agreed to the basis 0- baskets per ton to retain Pilclier's business.

A receipt, said his Honour, was not conclusive evidence of a settlement of accounts, but, in such a case as tho pre* sent, it was strong presumptive evidence, ami, in the Court's opinion, the magistrate was justified in holding that tho appellants (with a knowledge of all tho circumstances under which tho cheque was sent) received it in settlement of the account. There was no reason to doubt tho bona fades of Gillespie's weighing, and the test by which he had calculated tho weight of the coal afforded an inference u.at the whale riuanUty would average the weights indicated by the five baskets -the appellants knew that I'ilehor insisted upon this position, and Brown admitted that I'llcher may have thought that the matter was settled on this basis, and the appellants' accountant received the chcque and receipted the account, and made no objection at tho time. The receipt was in terms, a clean receipt. No written objection was sent for over lour months, and tho evidence of any verbal objection was very inconclusive. In his Honour's opinion, therefore, the magistrate's decision was right, and (lie appeal must bo dismissed, with i:7 7* costs. . " Mr. A. L. Herdin an ipponred for np-1 pelhnts, and Mr. W. 11. D. Bell for respondents.