THE BONA FIDE TRAVELLER.

Otago Witness, Issue 2671, 24 May 1905, Page 26

THE BON A FIDE TRAVELLER.

NO RIGHT TO BE SUPPLIED WITH LIQUOR. MR JUSTICE COOPER'S DECISION. CHRISTCHURCH, May 20. His Honor Mr Justice Cooper gave judgment this morning in the licensing case Samuel Brooking (appellant) v. Robert Crawford (respondent), aji appeal froni the decision of the stipendiary magistrate afc Christchurch. In giving judgment his Honor said that the case was an appeal on points of law "from the decision of the. stipendiary magistrate in Ohristcirureh, who had convicted the appellant of a breach of the Licensing Act of 1881, upon an information charging him with selling liquor in his licensed premises at Sunmer during a time* at which his licenced premises were directed to be closed by virtue of the eaid act. The. facts found by the magistrate were that defendant, who was licensee of the Sumner Hotel, had on Sunday, December 11, 1904. sold liquor * to customers who were not lodgers, but who had travelled that day from Chriatchuroh, eight miles distant, returning the same day. Tlie grounds of appeal were that section 157 of the Licensing 1 Act of 1881 were still in force, and by virtue of that section the appella-nt had lawfully supplied the customers with liquor. His Honor discussed the law relating to the serving of a bona fide traveller, and stated that up to the time of the passage of the 19W act the position of a licensee had been as follows : — (1) There was a general prohibition against the sale of liquor by a licensee in his licensed premises during t<he> houra within which the premises were declared to be closed. (29 From that prohibition there were excepted lodgers and bona. fide travellers, as defined in section 157 of the act of 1881. (3) It was lawful, but not obligatory, for -a, licensee to sell liquor during closed hours to lodgers and bona fide travellers. (4-) The onus of proof that such persons were either lodgers or bona fide travellers was upon the- licensee, it being a sufficient defence if he showed either that the person served had been a bona fide traveller, or that he had honestly believed such to be the case. The act of 1904- hart altered the law. Section 38 of that act repealed subsection 5 of section. 22 of the> act of 1895 as far as it referred to travellers, and the effect of that provision was that; the permission to sell liquor to a bona. fide> traveller within the hours during whicli licensed premises were directed to be closed* • had been taken away. Counsel fdr the appellant had contended that because section. 157 had not been expressly repealed the means of defence it provided still remained j but that contention was entirely fallacious, because the sedbibn only provided a, defence where the person served was not in fact a bona fide traveller. The appellant's contention really was that, notwithstanding the repeal of tihie subsection 5 of section 22 of the act of 1895 the original permission contained in section 156 had by the non-repeal of section 157 been impliedly revived.^ That ■was impossible, and he 'held that section 15? had been repealed by necessary implication. Be had no difficulty in coming to the conclusion that the court could still look to section 157 as affording a substantial definition of the teem " bona fide traveller." Such a penson would not, in his opinion, be guilty of an offence under section 42 if he were found on licensed premises during prohibited houra ; bnt although that was so, the licensee was not entitles to sell alcoholio liquor to him. The appeal wou3d be dismissed, with coats against appellant.