LAW REPORT.

New Zealand Police Gazette, Volume XXXVI, Issue 13, 5 April 1911, Page 151

LAW REPORT.

(“N.Z. Law Reports,” vol. xxx, page 70.) Adamson v. McGregor. Licensing—The Licensing Act, 1908, Section 146—Receiving an Order for Liguor within aNo - license District The Justices of the Peace Act, 1908, Section 298—Case stated Objection to Case — Restatement. Where a Magistrate did not take any notes of evidence, and on being asked to state a case for the Supreme Court set out certain facts, and affidavits by persons who took notes at the trial were filed by the defendant alleging that the facts stated were incorrect, an order was made under section 298 of the Justices of the Peace Act, 1908, directing the Magistrate to restate the case ; and where on the case being restated it was found to be inconsistent with the case as originally stated, the Court looked at the affidavits to ascertain the correct facts.

In order that a person may be convicted under section 146 of the Licensing Act, 1908, of receiving an order for liquor within a no-license district, it must appear that the order was given either to the person who was to execute it or to somebody acting as agent or representative of that person. Appeal from the decision of T. Hutchison, Esq., S.M., Oamaru. The appellant, Adamson, was charged under section 146 of the Licensing Act, 1908, with receiving from one George Whale an order for liquor within a no-license district. At the hearing before the Magistrate an order was put in evidence by the police, which they admitted they had obtained from Strachan and Co., of Dunedin, brewers. The order purported to be signed by Whale, and was as follows : W. Strachan and Co. Oamaru, 22nd December, 1909. Dear Sirs, — Please send me one case of ale quarts, money enclosed, and oblige. G. Whale. The only witness called by the police was Whale. No evidence was called for the defendant, counsel submitting that there was no evidence before the Court of an order having been received. The Magistrate convicted the defendant, and fined him £2 and costs. The defendant applied to the Magistrate to state a case for the Supreme Court. In stating the case, the Magistrate found that Whale asked the defendant to order the ale from Strachan and Co., also that Whale, at the request of the defendant, wrote the letter to Strachan and Co. The defendant filed a notice under section 298 of the Justices of the Peace Act, 1908, to have the case sent back to the Magistrate for a restatement, and in support of the application filed affidavits by Whale, and also a newspaper reporter, and his solicitors (Messrs. Lee, Grave, and Grave), ail of whom took a note of the evidence given at the hearing. These affidavits showed that Whale asked the defendant as a favour to write to Strachan and Co., and authorized the defendant to use his name. On this application coming before Williams, J., he sent a memorandum to the Magistrate, directing his attention to the statements on affidavit and to the alterations required by the defendant. On the reply from the Magistrate again coming before His Honour, and not being satisfactory, a formal order was made directing the Magistrate to restate the case. The Magistrate then restated the case, and it now came on for hearing.

E. P. Lee, for the appellant:— The case as stated now is inconsistent with the case as first stated. The Court should look at the affidavits to ascertain the correct position. The Magistrate took no notes of the evidence. There was no evidence that the defendant was agent for Strachan and Co. He was merely doing Whale a favour. This is not an order within the section. [Williams, J.—The second case is certainly not consistent with the first. What do you say, Mr. Fraser ?] Fraser, K.C., for the respondent:— In view of the differences between the two cases, I must admit the affidavits, but submit thß defendant received an order within the meaning of the section. [Williams, J. —Do not the affidavits show that the defendant was merely acting for Whale ? Is there any evidence that he was Strachan and Co.’s agent ?] There is no evidence that he was Strachan and Co.’s agent.

Williams, J. : in order to constitute an order within section 146 it appear that it was given either to the person who was to execute it or to somebody acting as agent or representative of that person. If one man asks another to give an order for him, he does not give an order to the person whom he asks to give the order. The person whom he asks to give the order is merely a channel for the purpose of conveying the order to some third person. In such a case the person who is asked to give the order is simply the agent, messenger, or scribe of the person who asks him to give the order. In the present case there is no evidence that Adamson had any connection with Strachan and Co., who were to fulfil the order. The only evidence given in the case shows that Adamson was a channel selected by Whale to convey the order to Strachan and Co. There was no order given to Adamson to supply the ale. It may be that if further evidence had been taken it might have been found that Adamson was an agent of Strachan and Co. The case, however, must be decided on the evidence brought forward, and looking at that evidence I do not think the conviction can be sustained. The appeal will be allowed.

Solicitors for the appellant: Lee, Grave, & Grave (Oamaru). Solicitors for the respondent: Fraser, Woodhouse, & Macassey (Crown Solicitors, Dunedin).