SALE OF LIQUOR.

Hawera & Normanby Star, Volume XLII, Issue XLII, 13 October 1922, Page 5

SALE OF LIQUOR.

HOTELKEEPEB FINED

Mr. J. S. Barton, S.M., delivered the iollowmg judgment in ciie, Magistrate's court, 'ye^eruay "ail tne case .foiice (faemor-bergeant Henry) v. James Nicnbi Anderson (Mr, P. ODea): The defendant is a hotelkeeper and licensee of tne Empire Hotel at Hawera. He is charged with that on the 21st September, 1922, at a ,time at which his licensed premises were required 'by law to be closed he did sell liquor. it was" proved at the hearing and, as a matter of fact, it was not denied by the defendant, that between 6.15 and 6.20 o'clock on the evening of the 21st September, 1922, the defendant sold liquor to one. Corcqran, who at that time came to the defendant's bar and ordered the liquor. The sale in question comprised one glass containing whisky and water, and one containing shandy-gaff was carried by the defendant to his commercial room, where Corcoran and a friend named Eastbury were waiting for it. In the interval between Corcoran's visit to the bar to get the liquor and the defendant's visit to the commercial room to deliver the liquor in fulfilment of the order, a police constable had arrived and was present when the licensee entered the room with, the drinks. The defence raised in this action is that the_ sale in question was lawful because it was within the permissive sections of the Act relating to sales to lodgers. In so far as.;one drink was purchased by Corcoran for his* own consumption, it is contended that the facts establish Corcoran's status as a lodger, and that the law permits him, as a lodger, to be supplied with liquor after the closing hour of 45 p.m. In so far as one drink was obviously tendered for consumption T>y Eastbury, who is admittedly not a lodger, it was contended that the sale was nevertheless a sale to Corcoran, who was in no sense an agent for Eastbury, and was therefore just as lawful a sale to Corcoran as the liquor purchased by Corcoran for his own consumption. Reliance was placed for this contention on the case of White v.< Nestor, 13, New Zealand Law- Reports 751, recently followed in a New Plymouth case, Locke v. McCorie—not yet reported. The issue—was Corcoran a lodger' at the time of the sale in question?—is. thus directly raised, j To answer -this, question we must ref« to the words of the Statute and examine the facts of the case. The. Licensing Act. 1908, by sections, 191 and 192, provides as follows:— j (191) It shall !be lawful for; but not',| obligatory, upon a licensee; ,to/sell liquor at any time to any person being really a lodger living or staying in the licensed premises. (192) The burden of proving any per_ son to be a lodger shall.be upon the person alleging the fact. It is necessary for the defendant, therefore, if his defence is to succeed, to prove to the satisfaction of the court that the man Corcoran was "really a lodger living or staying in the licensed premises'' at the time he. was served with the liquor at 6:15 p.m. on the 21st September, 1922: The onus of proof is on/the defendant. On this point the defendant tendered the of Corcoran. Corcoran deposed that he was a farmer, sometimes residing at Ohangai, about H miles, out of Hawera, and sometimes at Taiporohenui, about 1| miles out of Hawera, that he visited Hawera frequently, and occasionally—perhaps once in €wo months—stopped overnight at defendant's hotel. In this connection he said, "If I'm jate in Hawera I stop in town for the night." Further; he deposed that he had been in Hawera on 10 or 12 occasions during September, and on each of these occasions, et.oept on the r':eot now in question (21st). he slept in his bed at his "bach at Taiporohenui. * On the 21st he rode into Hawera on horseback, left his horse at the blacksmith's shop at about noon to be shod; and went to the defendant's hotel for

lunch. As lie was corning out from lunch lie saw the defendant's wife and told her to book a room for him. The day in question was a market day and Corcoran spent the afternoon at a stock sale and returned to the hotel

about a. quarter to 6 o'clock, remaining in the bar till closing time, 6 p.m. From there he went to the commercial room, and says.that at about 6.5 p.m. he was going from that room to the dining-room wheir he saw one Eastbury.. a stock . agent, in the passage. His evidence is that he engaged Eastbury in conversation about some siock, authorised Eastbury to enter some cattle in Corcoran's name at a sale to be conducted by Eastbury's principals, and at the close of that business said to Eastbury, "Oh,, well, you'd better have a drink." Eastbury demurred, saying "I'm not a boarder.'' Where-

upon Corcoran said. "It's all right, I am," and straightway walked to <the bar and ordered the drinks as already described. Thereupon the situation seems to have developed rapidly. Corcoran rejoined Eastbury, and almost at the same time Constable iemm, of the local ipoliee force, 'came in. and questioned Eastbury as to his presence there. Corcoran joined in the .conversation to assure the constable that he (Corcoran) was a boarder, and whilst they were so engaged the defendant came in carrying the drinks upon a tray. The constable shortly afterwards left the hotel, after taking names and addresses, and remarking, "You'll hear more about this." Corcoran further stated in his evidence that his bed at Taiporonenui was 10 to 12 minutes' ride from Hawera, that he brought no luggage with him on this occasion, but that was not unusual even when he did stop at the hotel— that he had made no arrangements about stabling his horse for the night, that the number of his room had not been communicated to him at the time ( the constable called, and that he had . not visited or made use of any bed- , room at the hotel that day. L That is all the relevant and import- : ant evidence. of what occurred up to , the time the constable called and left [ with the warning, "You'll hear more I as ou* this.'' After that it was provi «d that the constable and Sergeant r Henry called at the hotel on the same t evening at about 6.30; that the bedj room book was then produced at their . request disclosing Corcoran's name en--5 tered opposite room 18; that Corcoran had dinner and occupied a bed at the hotel that night, but left before breakfirst next morning, riding-to his bach". It. was also deposed that on the night m question the weather was clear and calm. j The defendant, in his evidence, deposed to an inquiry which he made of 1 his wife and a statement in reply - touching Corcoran's status, this ques- > tion and reply taking place in the bar • after Corcoran ordered the drinks and before the drinks were served. This is -clearly no evidence at all on the _ question of whether or not Corcoran was a lodger—it may claim some at- , tention if the defendant is convicted nnr] t>»A matter of penalty is being considered. b On these fac+s we rnav row p-rrfc fhe ' question: Was Corcoran really a lodger

Jiving or stay%ig in the hotel at tha time the drinks were Bold to nim ? In. my opinion he w^r not then a lodger. If the tests laid jjown in Moynihan v Police, 1920/ Gazette Law Reports, are applied it will, I think, be sees clearly that at most Corcoran had indicated that he intended to become a j lodger, but at the time when his status must be tested thei^ is no evidence of the slightest act or conduct indicative of his living or staying at the hotel. His act in taking lunch at the hotel is not referable to the relationship of innkeeper and lodger—for it was not until after lunch that he requested the defendant's wife to book a room for him. The request for a room is all that would distinguish this visit from the other 10 or 11 September visits deposed to, and if, even after partaking of dinner in the evening, he had changed his mind and ridden home 3 there would thereby have been no determination of a relationship of innkeeper and lodger- there would have been at most a breach of an executory contract to become a lodger. The visit to the bar from 5.45 to 6 p.m. and the subsequent few minutes in the commercial room are as consistent with attendance for a casual meal as with, the commencement of the relationship of innkeeper and lodger. The facts that Corcoran's name^was in the bedroom book^ that he subsequently took dinner and occupied h bed for the night do not help the defendant. At the. best, when the inferences they suggest are imported into a consideration of the position as it was at 6.20 p.m., they are merely evidence of the genuineness of the executory contract referred to; at the worst they are open to the suspicion that they were stimulated into actual performance by an inopportune visit of the police. This suspicion is left jin my mind by a consideration of the facts set out above and is strengthened by the further facts, that Corcoran gave no reason for sleeping at the hotel on this night in preference to riding If miles to Taiporohenui, and at 6.20 p.m. had made no arrangements for the accom-/ modation of his horse for the night. The defendant has therefore, in my opinion, failed to prove that the sale of liquor in question was made to one who jvas really a lodger living or staying ,iir lijs hotel, and it is, unnecessary to consider the other points raised at the hearing. Defendant was convicted of the offence; charged ,in the information. ,''■"■

A fine of £5 with costs was imposed and was, at the request of Mr. P. O'Dea^ increased to £5 Is,; as there was a possibility of an appeal. j Eastbury was fined £1 with costs 7s.