LAW REPORTS.

Dominion, Volume 4, Issue 1176, 11 July 1911, Page 3

LAW REPORTS.

, . « PERMITTING DRUNKENNESS. LICENSEE FINED. - BARMAN'S'RESPONSIBILITY. A case of-interest to hotel licensees wa.<heard at (ho Magistrate's Court ye?tcn!n.y morning, before Mr. -\Y. G. Riddell, S.M., when Francis W. MTarland, licensee of the Hotel Cecil, was charged with permitting "drunkenness on his premises on June 16. Sub-Inspector Shcchan prosecuted,' nnd Mr. J.-J. M'Grath appeared for defendant, who pleaded not guilty. The Sergeant. Sergeant Fitzgerald, of the Lambton Quay i'olice Station, stated that about &.3U p.m. on. Juno lb', in company with Constable Smart, :hp had visited the hotel and had found ,a' man in a drunken condition in the. "Ili've." Ho had called the barman's attention to tho man's.condition, and the barman, replied, "That man got no drink here." Witness had then asked why he had' bcoa allowed to remain, and the barman, answered to the effect that ho had made-several ineffectual attempts to induce the.man to leave. Subsequently the man had been, arrested by Constable Smart, and, on. the following morning, he had been convicted for drunkenness. Mr. M'Grath: .Are. you telling us all th.'it transpired between you and the barman?—"As'far as I can .recollect." . In answer .to further questions by Mr. M'Grath, the* sergeant went on to state that he had been on his ordinary round when he visited the hotel. He had made no special visit. "Witness had taken notes at the time, but did not remember tho barman saying that he had "twice put the man out" during the. day. It was not true that tho barman did not say that the man had just come in, and that he had put him out twice before. It was not true that he' (witness) had ejaculated: "Oh, they all tell us that talc. I will I have to report this." The Magistrate: You say that the man was asleep sir. He was not asleep, but. helpless." Constable Smart, who had visited the hotel with the sergeant, also gave evidence. John Slater, labourer, stated that, after 5 p.m. on June 16, he had visited the Thistle Inn, and,' after having some drinks (here, he ,w.ent to catch a tramcar, but missed if. He did not remember what happened to him after that. He did- not remember being in the Hotel Cecil, or being put out of it. Mr. M'Grath,. for the defence, submitted that there was no case to answer. This was for the reason that, no evidence had been given to show (hat the man had remained on the premises for any length of time, but had simply been found there. No one could prevent a drunken man from going into a har unless one stood at tho door specially to stop him. The prosecution (counsel. contended) must show "knowledge, negligence, or connivance." This ease was not like a recent, one in which his Worship had given judgmentit was not a hotel where drunken men were encouraged to congregate, but one of tho best-conducted hotels in the city, and one patronised by a good class of people. ' The magistrate said that, ho was of opinion that there was a ease to answer, and evidence for tho defence was then called. The Licensee and Barmen. Francis W. M'Parland, licensee of tho Hotel Cecil, stated that ho had been in occupation of that hotel for eight years. His instructions to all barmaids and barmen had been-to'refuse' to scr.vo any ; cno showing -"a sign' of; liquor," and, • ii such persons refused to .qui.t the premises, the police were to be sent for. Witness had been president of the Licensed Victuallers' Association—a body whoso aim was to see that the provisions of the Licensing Act were carried-out. Edward George Mallcy, barman in charge of the dive bar at the Hotel Cecil, remembered the occasion of the police visit on June 16, and remembered that the man Slater had been there in an intoxicated condition. Witness had refused the man drink, and had ordered him to leave, and, as he would-not leave, witness put: hipi out. and had (o do the samo thing a. second time an hour later. Witness left the bar to go to dinner about 6.1 a p.m., and Slater was not there then, nor was he there when witness returned after having dinner. It. was not until the police came in that witness again saw Slater in the bar. It was not correct that witness had told Sergeant Fitzgerald that he (witness) had tried ineffectually to put the .man out. He had told the sergeant that he had twice ejected the man. About ten. minutes before- the police came'in witness had a. good look round the bar, and was then suro that Slater was not there. Evidence for the defence was also given bv Wilton Groom, relieving barman, i>y Geo. M'Whirter, labourer, . and by Alex. Aitken, engineer. Tho last i two witnesses, who were present when the ] police arrived, swore that the barman , bad told tho sergeant that he had twice ; ejected i Slater. The Magistrate. In giving judgment, the magistrate , first remarked th.it he was satisfied that • the defendant (M'Parland) had not been , awaro that a drunken man was on the • premises. But a drunken mau had been found in the bar, and it was the duty of the barman to keep a look-out that such , a' state of affairs should not be allowed. \ The barman had stated that the forma- , Hon" of tho har made it difficult to see ] who was in there, and, apparently, this ■ man. sat where he could not b-s seen. This, .however, made it all the more imperative for the barman to keep a sharp look-out. • It was not necessary that the individual should be served to constitute ah offence. "I do not think," continued his Worship, "that the barman took the precaution that was necessary, and he must be held liable. But, in view of the fact that no liquor was served, a light ! penalty will suffice." Defendant was accordingly fined- 40s. and costs 9s. Mr. M'Grath: Might I ask if your Worship holds that the fact of a drunken man being found there is sufficient to support' a conviction? ■ His Worship replied that the fact that the barman had not taken the proper precaution whs what' had weighed with him. Mr. M'Grath further asked if his Worship disbelieved the statement-of the barman- that he had looked round ten minutes before the police camo in. His Worship replied that he had noted that, but' did not rely on it, as it was a matter of memory only. In answer'to Sub-Inspector. Sheehan bis Worship said that no expenses would be allowed Slater, .who had no right to get drunk, and uo right to go into the hotel when he was drunk. Mr. M'Grath then asked if his Worship would-increase the fine so as to give defendant the right of a general appeal. The fine was accordingly increased to .Eli. A TIN OF DRIPPING. Charles Edwards appeared on remand charged with theft, on July 6, of a tin of dripping, valued at IS?., the property of D. P. Matthews. He pleaded not guilty, and was defended by Mr. A. H. Hindmarsh. :( ' Evidence ea.,icd by Sub-Inspector Sheehan was to the ctl'cct that Edwards was a dustman in the employ of the City Corporation, and the tin of dripping had been missed from -the Wairarapa Meat Company's premises after the dust had bren removed from (here on July G. It was discovered that accused had' sold a tin of dripping for Is. 2d. to a dealer in waste products. In defence accused stated thai' he had found a tin of dripping next to the rubbish tin. ontsidc the Kenviiigton Hole!, and he had taken if and sold it, being under the impression that it'.was left as a pie.-ent. It was usual, he said, for clothes, hoots, and other things to be lelt i'oi- the dustman nt dill'erent places. Evidence was given as lo his previous good character. His Worship was not prepared to accept the explanation as to the finding nf the tin, but he took into consideration the previous character of accused, recorded a conviction, and ordered him to come up for sentence when called upon, I on condition that the sum of Is. 2d. was I refunded to the dealer, who had purchased 1 the dripping. ASSAULTING THE POLICE. An elderly man, named Alexander Clarke, recently returned from Pakatoa, was charged (1)' with, drunkenness;' (i^

with making use of improper language; (.1) wilh assaulting C'cn-table Willets while the latter was in the execution of his duly in Con.-table Street.

Accused pleaded guilty to a charge of drunkenness, but stated that he remembered nothing.about anything else.

The police" evidence was tn the eft'eet that, alter Clnrke bad been arrested, he made, uso of certain language, and struck Constable W'illots across tlie face with a stick. Accused had only recently relumed from the inebriates' Home at J'akaloa bland. On the cliarpe of drunkenness ho- was convicted and discharged. For nsins the language referred to in the charge, lie was fined .£.l, in default 21 days' imprisonment, and, for tho a.ssnult, he was lined ids., with the option of 1» days' imprisonment. VAGRANCY. ■ An old man, named Richard Dunn, was charged with being an idle and disorderly person with in.-utticicut lawful means of support. It apprared from the evidence given that, some little time ago, accused had been discharged from the Ohiro Home, and, since then, he had been living round about the city. On Sunday, he gave himself up to the police, stating that he had uo place in which to sleep. The Ohiro Home'authorities were willing to take the old man in again, but he appeared unwilling to return there, and the magistrate sentenced him to three months' imprisonment. ABSENT WITHOUT LEAVE. Carl Tiger, a seaman on the Norwegian barque Duncrag, pleaded guilty to a charge of absenting himself from the vessel without first having obtained leave. II appeared from the charge and evidence that accused had left the vessel on July 7, and a warrant had been issued for his arrest. He returned voluntarily 011 July 8. As the master of the vessel did not. press for a heavy penalty, accused was convicted and ordered to pay Court costs 75., in default 24 hours' imprisonment. MAINTENANCE. Maurice O'Sullivan was sentenced to seven davs' imprisonment for disobedience of a maintenance order under which the arrears amounted to £2. Mr. H. Y. O'Leary appeared for complainant. For disobedience of a maintenance order, under which the arrears amounted to £1 10s., Albert Way was sentenced to seven days' imprisonment. Mr. H. F. O'Leary appeared for the complainant. Cecilia. Ryan was granted remission of arrears due under a maintenance order, the order to stand in other respects. OTHER CASES. John Chambers pleaded guilty to a charge of drunkenness, and to a further charge of procuring 'liquor during the currency of a prohibition order in forca against him. He was convicted and discharged for drunkenness, and lined -10s., with tho option of fourteen days' imprisonment, for breach of the order. Three first-offending inebriates, who did not appear, were ordered to forfeit (heir bail. Another first offender, was fined 55., with the usual alternative, and two others were convicted and discharged; Prohibition orders were issued against John Crease and James Crease, to take effect for one year. Alfred Hansen, who admitted having entered licensed premises during tho currency of a prohibition order, was fined •10s., and costs 75., with tho option of fourteen days' imprisonment. For procuring liquor during tho currency of a prohibition order, Christopher Seal' was fined 405., and costs 75., in default seven days' imprisonment. CIVIL ACTION CONCLUDED. Hearing was concluded' yesterday of the civil easo in which Albert James Davey, agent, of Stratford, proceeded against Michael Daniel Murphy, farmer, late of Wangauui (but now about to leave the Dominion), to recover the sum of .£"H IDs., alleged to be due to tho plaintiff by the defendant as commission on tho sale, of a farm at Wcstmerc, near Wangnnw, being commission at the rate of 21 per cent, on .£29.57 17s. Mr. G. 11. Toogocd appeared for tho plaintiff, but the defendant did not appear. ' Plaintiff's evidence was published in yesterday's issue. Yesterday the agreement to purchase was put in as evidence, and his Worship gave judgment for plaintiff for the amount claimed, with costs totalling .£l2 10s. Bd, COURT OF APPEAL. GRADUATED LAND TAX CASE, WAIMARAMA BLOCK. An important land tax case connected with a large Hawke's Bay estato was argued before the Court of Appeal yesterday. Sir Robert Stout, Chiet Justice, presided, and with him on the Bench wero their Honours Sir Joshua Williams, Mr. Justice Denuiston, Mr. Justice Edwards, and Mr.-Justice Sim. The. plaintiff, George Prior Donnelly, was represented bv Mr. H. D. Bell, K.C., with him Mr. T. W. Lewis, of Hastings. The Solicitor-General (Mr. J. \\. Salmond), appeared for the Commissioner of 'faxes, defendant. The plaintiff's wife died on Juno 7, 19011, leaving property consisting, inter alia, of Nativo land owned by her partly iu severalty and partly in common with other Natives. She devised to her husband all her estato and interest in the Waimarama Bock, subject to certain conditions to be fulfilled by him. These ho had not fulfilled, aud accordingly he waived all claim to beneficial interest in them. On October 19. 1909, he informed tho trustees' 1 (J. H. B. Coates, J. M. M'Lean, and J. D. Ormond, M.L.C.), of this, and entered into an agreement with them that ho should bo entitled to occupy the Waimarama lands until the trustees should require possession. Plaintiff asked for a declaratory judgment determining the following questions:— Whether the right of occupation confer-' red upon plaintiff, bv clause 9 of the will of Airini Donnelly, deceased, coiwitules a leasehold estate in- land within the meaning nf 1, of Section SG, of the Land aud Income Assessment Act. Whether the right of occupation conferred upon plaintiff by the agreement entered into between him and tho trustees of the estate of the late Airini Donnellv constitutes a leasehold interest in laud within the meaniug of the sub-section. Whether, when land is owned in common bv Europeans and .Maoris, a leasehold estate granted by such a Europca.i to a European in respect of the undivid- . Ed interest of the lessor is exempted from taxation under the section, as heing a leasehold estate in Maori land within (he meaning of Sub-section 3. The plaintiff's liability to pay a large sum in graduated land tax depends upon the Court's answovs to these questions. II ,1. majority of the judges find that the land is a leasehold under Seclion ,«. lis value must be added to the value of the other lands of the plaintiff, in order to ascertain the amount of graduated land ta\ pavablc by him. Tho view which Mr. Hell asked tlie Court to take was that plaintiff had merely a use or occupation of the land, not a leasehold interest, and the Solicitor-General upheld the opposite opinion. The Court reserved judgment. SUPREME COURT. BIGHTS OF nOLDEI'iS OF LIENS. WAGES FIRST. Judgment wan delivered by his Honour, Sir .1 S. Williams, yesterday morning, in the case of John Wnllace Kasson and Percy George Bnsson, plaintiffs, and Joseph Herbeit Knight, defendant. Knight, who was a builder and contractor in Wellington, had purchased a piece of land, executed a first mortgage, and built two houses. There was a second mortgage, and, also, several liens executed. The 'object of the action was lo decide the claims of (■■•rlain lieu holders, some of which were claims for wages. His Honour recited tho relevant facts a c follows:— Knight contracted to buy irom Houghton a piece of land. On one half of this land Knight erected a house'. KIIHII obtainad u transfer from Houghton of the half on which the house was ; built. This transfer on August 13, 190 a,

was registered under the Land Transfer Act. On the same dale a mortgage, from Knight to .Messrs. iloorluuiso and Forgiven of the land so lran-I'cned was registered. On August 20, ISIIKI, a lien against the land under the Wages I'roteetion and Contractors' Liens Act, claiming «£2.jt Us. Id. in respect of work done in connection with the hou.-e that had been built on the land was regi.-trrcd against the land by Messrs. Eas.-on. On August 2:), I'JOII, a second mortgage uf tlnland from Knight to Houghton was registered. This mortgage was to secure .W.'i the balance of purchase money due from Knight to noiighlon. After this, in August and September, 1909, other liens under the Wages Prelection and f'ontr:-.el?rs' Liens Act were registered against the land, some bv workers for wage--, others bv contractors. Jn March or April. 11110. Messrs. Moorhouse. and Ferguson.( the lirst mortgagees, sold the land under the power of sale in their mortgage. After the first mortgagees had been paid out of the proceeds of the sale thorp remained a balance of .£'B7, which is now in Court. The question is, who is entitled to this £87: That, depends upon the true construction of Sections 53 and M of the Act, and of the sections relating to remedies against land. After discussing these sections and their application to the facts of the case,

his Honour concluded with (lie decision that Hid sum in Court i> upplicabJo fii>t to I he pnvment <;f the claims fur wages, and that tlie various liciijrs are entitled to the l.al'inee in prnpcrlion to the ainuunt of their reaped ive liens. Ccmn-el at the hearing were: The Hon. T. \V. llislop fur the pljiintin's; Mr. H. I'. Von Haasl far E. W. Mills and Co.; Mr. W. Arnold for. .lolin A. Gilchrist; John O'Sulliv in, and Silencer Frederick Parshie. The defendant did not appear'in the ease. The oilier parties were holders of liens.