LAW REPORT.

New Zealand Police Gazette, Volume XLI, Issue 15, 19 April 1916, Page 269

LAW REPORT.

(“ New Zealand Law Reports,” 1916, page 216.) [S.C. In Banco. Invercargill-(Sim, J.)—2nd and 4th March, 1916.]

McFarlane v. Robson,

Criminal Law Police Offences —Cruelty to Animals—Permitting Horse to be driven in a Weak Condition—Horse driven by Servant of Accused —Absence of Mens rea— Magistrate's Findings of Facts insufficient to support Conviction—Police Offences Act, 1908, s. 7 (1) fa). The appellant was convicted under s. 7 (11 (a) of the Police Offences Act, 1908, of cruelly ill-treating a horse by permitting it to be driven whilst in a weak condition. The Magistrate did not find that the appellant actually knew that the horse was being driven, but that he should have known it, and should have given instructions for the horse not to be used.

Held, That to justify a conviction under that section there must be proof of guilty knowledge on the part of the accused.

Bowden v. Alder (15 G.L.R. 595) followed. (See also Linssen v. Hitchcock, 34 N.Z. L.R. 545 ; 17 G.L.R. 473). Semble, That actual knowledge is not necessary if it is proved that the accused has wilfully abstained from acquiring knowledge on the subject. Elliott v. Osborne (65 L.T. 378) approved. Appeal from the decision of George Cruiokshank, Esq., S.M. at Invercargill, convicting the appellant of cruelty to a horse. The facts are sufficiently stated in the judgment. Keddell for the appellant. A. H. Haggitt for the respondent.

Cur. adv. vult.

Sim, J. The appellant, who is a pastrycook and confectioner in Invercargill, was convicted of the offence of cruelly ill-treat-ing a horse by permitting it to be driven whilst in a weak and poor condition. The horse was not driven by the appellant himself, but by one of his drivers, and the Magis-

trate (Mr. Cruickshank) has not found that the appellant knew that the horse was being driven on the day in question. What he held was that, though the appellant might not have known that the horse was being used, he should have known it, and should have given instructions for the horse not to be used. But that was not sufficient, in my opinion, to justify the conviction. The charge was laid under subsections 1 (a) of s. 7 of the Police Offences Act, 1908, and it has been held that in order to justify a conviction under that subsection there must be proof of guilty knowledge on the part of the accused : Bowden v. Alder (15 G.L.R. 595). The same construction has been put on the corresponding section of the English Act, and some of the cases on the subject are mentioned by Mr. Justice Cooper in his judgment in Bowden v. Alder (15 G.L.R. 595). The judgment of A. L. Smith, J., in Elliott v. Osborne f 65 L.T. 378) appears to be an authority for saying that a conviction might be justified without proof of actual knowledge, if it were proved that the accused had wilfully abstained from acquiring knowledge on the subject. It may be that on the evidence before him the Magistrate would have been justified in finding that the appellant did know that the horse was being used ; but he had not found that, and without such a finding the conviction cannot be supported. The appeal is allowed and the conviction set aside, with costs to the appellant, £5 55., and disbursements.

Appeal allowed. Solicitor for the appellant : G. P. Keddell (Invercargill). Solicitors for the respondent: Watson & ITaggitt (Invercargill).

(“New Zealand Law Reports,” 1916, page 223.) [S.C. In Banco. Invercargill (Sim, J.) 2nd, Bth March, 1916.] Thomson v. Burrows. Licensing Offences Selling Liquor within aNo - license District Holders of Wholesale License in Licensed District also Holders of Bonded Warehouse License in Nolicense District —Order for Liquor received in Licensed District Delivery from Bonded Warehouse to Railway in No-license District and Consignment to Purchaser — When sale complete—Tests to be adopted—Licensing Act, 1908 , ss. 80, 146. T. & Co. are the holders of a wholesale license under the Licensing Act, 1908, in respect of premises at the Bluff, within the Awarua Licensing District, and are also the holders of a license under the Customs Act, 1913, for a bonded warehouse at Invercargill, which is a no-license district. T. & Co.’s traveller received an order for liquor from M. at a place within the Awarua District, which was forwarded to their Bluff office, and from there to their Invercargill office. The Invercargill office took the liquor from their bonded warehouse and delivered it at the Invercargill Railway-station, addressed and consigned to M., freight being prepaid by T. & Co. Held, That M.’s order was an offer to T. & Co., with an implied authority to them, if they accepted the offer, to appropriate goods to the contract, and that on their despatching the liquor by rail to M. they accepted his offer, and the property in the liquor then passed to M. The contract of sale was thus made within a no-license district, and an offence had been committed within s. 146 of the Licensing Act, 1908. Held, further, Thar, the authority conferred on T. & Co. as the holders of a wholesale license under s. 80 did not entitle them to do any of the things prohibited by s. 146. Forms appended m a schedule to a statute may be referred to for the purpose of throwing light bn the construction of the statute. Thomas v. Kelly (13 A.C. 506, 511) followed. Semble, That for the purpose of determining whether there has been a sale within the meaning of s. 146 the two tests following may properly be adopted : 1. Was the contract of sale made within a no-license distriot ? 2. Did the property in the liquor pass to the purchaser within such a district?

Appeal from the decision of G. Cruickshank, Esq., S.M. at Invercargill, convicting the appellant of the sale of-liquor in a no-license district. The facts are sufficiently stated in the judgment. H. A. Macdonald for the appellant. W. Macalister for the respondent. Cur. aclv. vult. Bth March.—Sim, J.: — The appellant is the manager at Invercargill for Thomson cfc Co., who are merchants carrying on business at the

Bluff, in the Licensing District of Awarua, and elsewhere in New Zealand, They are the holders of a wholesale license under the Licensing Act, 1908, in respect of their premises at the Bluff. They have also a bonded warehouse at Invercargill, and have a license for it under the Customs Act, 1913. Invercargill is a no-iicsnse district. On the 16th September, 1915, Thomson & Co.’s traveller received an order at Rrown’s, in the District of Awarua, from one Finlay Mclvor, a hotelkeeper there, for certain goods, including one esse of Dewar’s Imperial whisky. This order was sent to Thomson & Co.’s Bluff office, and from there to their Invercargill office. On the 30th September the Invercargill office, at the request of the Bluff office, and in execution of the order, took a case of Dewar’s Imperial whisky from the bonded warehouse in Invercargill, addressed it to “ Finlay Mclvor, Hotelkeeper, Brown’s,” delivered it so addressed at the Invercargill Railway-station, and consigned it to Mclvor at Brown’s. That is a flag station, ana all charges for goods consigned to it by rail have to be prepaid. Thomson & Co. accordingly paid the freight at Invercargill and charged it to Mclvor. The Magistrate (Mr. Cruickshank) held that this amounted to a sale in a no-license district of liquor, and was therefore an offence under s. 146 of the Licensing Act, 1908. Section 146 forbids any person to sell any liquor within a no-license district. This means, as Mr. Justice Denmston held in Mackenzie v. Wittingham (23 N.Z. L.R. 857; 6 G.L.R. 530), that it is unlawful to make a sale in a no-license district of any liquor, whether that liquor is in the district or not. It is not unlawful, however, to make a sale outside such a district of bquor which at the time is within such a district. The section dees not prohibit the keeping of liquor in such a district for sale, but only the keeping of it for sale in a no-license district.

The first question that arises, then, on this appeal is whether in the circumstances there was a sale by Thomson & Co. in a no-license district of liquor. *The order given to Thomson & Co.’s traveller was not accepted by him, nor apparently was it accepted by any letter of acceptance sent to Mclvor from the Bluff office. That order remained, therefore, an offer only until Thomson & Co. accepted it by the steps taken by them in Invercargill to execute the order. The position with regard to such an order is clearly stated by Lord Herschell in the following passage from his judgment in Grainger v. Gough ([1896] A.C. 325, 333): “An order given to a merchant for the supply of goods does not of itself create any obligation. Until something is done by the person receiving the order which amounts to an acceptance there is no contract.” The order given by Mclvor must be treated, in the circumstances, as giving implied authority to Thomson & Co., if they accepted the offer, to appropriate goods to the contract, and to transmit such goods by rail to the purchaser. Such an authority is an implied assent by the purchaser to the subsequent appropriation by the vendor, if the goods appropriated are in accordance with the order : Halsbury’s Laws of England (Vol. xxv, p. 169, s. 302); Aldridge v. Johnson (7 E. & B. 885) ; Jenner v. Smith (L.R. 4 G.P. 270). When, therefore, Thomson & Co. despatched by rail to Mclvor a case of whisky in accordance with the order, that amounted to an acceptance of Mclvor’s offer, and at the same time the property in the whisky passed to Mclvor by virtue of s. 20 of the Sale of Goods Act, 190 S, Rule 5. The oontract of sale was thus made within the no-license district, and the property in the liquor passed under it to the purchaser within such district. Two tests have been suggested for determining whether there has been a sale within the meaning of s. 146, viz.: 1. Was a contract of sale made within a no-license district? 2. Did the property in the liquor pass to the purchaser within such a district? As to the first of these tests, it appears to be the intention of the no-license legislation to forbid within a no-license district everything in the nature of trade in liquor. In pursuance of this intention s, 146 makes it unlawful to receive in a no-license district any order for liquor. It follows necessarily, I think, from this that it is unlawful also to make in such a district an executory contract for the sale of liquor. That is how the prohibition in the English Excise Act of 1860 against selling beer by retail was construed in the case of Stephenson v. Rogers (80 L.T. 193), aud several Judges have expressed the opinion that such an executory contract is a sale for the purposes of s. 3of the English Licensing Act of 1872. That opinion was expressed by Wright, J., in Pletts v. Campbell ([1895] 2 Q.B. 229, 232), and by Alverstone, C.J., and Wills, J., in Strickland v. Whittaker (20 T.L.R. 224). With regard to the second test, the subject was discussed by Mr. Justice Denniston in the case of Mackenzie v. Whittingham (23 N.Z. L.R. 857; 6 G.L.R. 530), but the point was not definitely decided. The case of Pletts v. Campbell [1895] 2 Q.B. 229, 232) appears to be an authority for saying that it may be used as a test under the English Licensing Act. Looking at the scope and purpose of the no-license legislation, it seems to me that it may

properly be used as a test for the purposes of s. 146. The only objection to adopting it is that the effect might be to make a vendor outside a no-license district guilty of an offence when transmitting liquor to a purchaser within such a district, if the liquor were delivered to the purchaser or his agent within the district so as to vest the property therein m the purchaser within the district. But it would be easy for a vendor to obviate such a result as that, and this of itself would not be a sufficient reason for rejecting the vesting of property as a test. If it is to be adopted as a test, then the result would be that the delivery in a nolicense district of liquor for a purchaser outside such district, in performance of a contract made outside such district, so as to vest the property therein in the purchaser, must be treated as a sale within the meaning of s. 146. It is unnecessary, however, for the purposes of this case to come to any definite conclusion on the question of the second test, for the reason that in any view of the matter there was in this case a sale within the no-license district.

Thera remains, then, the question of the effect of s. 80 of the Licensing Act, 1908, on the rights of Thomson & Co. It seems clear that the authority conferred by a license issued under that section must be read subject to the provisions of s. 146, and that the holder of a wholesale license is not entitled to do any of the things prohibited by s. 146. There was some discussion as to the exact effect of the proviso contained in s. 80. That proviso is negative in its terms, but the intention of the Legislature with regard to the rights of the licensee in connection with sale and delivery from a bonded warehouse is reasonably clear from the form of wholesale license contained in the Seventh Schedule to the Act. For the purpose of throwing light on the construction of a statute reference may be made to the forms appended in a schedule to the statute : Halsbury’s Laws of England (Vol. xxvii, p. 122, s. 213); Thomas v. Kelly (13 A.C. 506, 511). According to the form of wholesale license in the schedule the licensee “ is licensed to sell and deliver liquor ,l from the warehouse or premises situate at , or from any bonded warehouse, but not elsewhere, the quantities,” &c. There is nothing in the Act to prevent the holder of a wholesale license in respect of premises outside a nolicense district from having a bonded warehouse inside such a district. It would be impossible, apparently, for him to sell liquor from such a bonded warehouse without committing an offence under s. 146. He would be able, however, to deliver from such warehouse liquor for a purchaser outside the district, if no property passed by the delivery. But whatever the rights of a holder of a wholesale license may be. it is clear that suoli a licensee is not entitled to do what was done by Thomson & Co. in the present case.

The result is that the conviction must be affirmed and the appeal dismissed, with costs £5 ss. Appeal dismissed. Solicitors for the appellant: Macdonald & Tipping (Invercargill). Solicitors for the respondent: Macalister Bros., Crown Solicitors (Invercargill).