MARSHALL บ. GRAHAM; BELL บ. GRAHAM. 1907. Acts observanceWithdrawal of childAscension Vict. c. 75, 88. 7, 74. the number of saints' days which the secular power has been pleased to say shall be observed, not that the secular power decrees their observance, but it has been pleased to permit the Church to decree their observance, and it has been pleased to afford a certain civil sanction to that observance. Now, Ascension Day comes in all those. It was declared by the Church to be a holy day at least as early as 1362, probably much earlier, and it has been continued in every one of the declarations Education of the Church ever since, and has been accepted by Parliament Attendance at as a day which the Church has lawfully set apart for religious school-Day observance. Therefore, accepting my Lord's conclusions, for religious and my brother Darling's conclusions, with regard to the rest of this particular matter-namely, the construction of the clause in the Education Act, 1870-I have nothing further to say on that point, but that I agree that this was a day Day-33 & 34 upon which the parent could lawfully withdraw his child. With regard to the second point raised for the appellants, I also agree with the appellants' contention upon that. Of the three cases cited to us-Belper School Attendance Committee v. Bailey (ubi sup.), London School Board v. Duggan (ubi sup.), and Hewett v. Thompson (ubi sup.)—the last two show clearly, and the first, if closely looked at does not say to the contrary, that this matter is a matter of law, or may be a matter of law for us, notwithstanding the decision of the magistrates. In my opinion, if the magistrates had discussed this point and had come to any conclusion other than that this was a lawful excuse, it would be a conclusion which this Court would be bound to set aside. I will only add one word more, because I have mentioned it before, and I do not know that it has received the approval of my brothers, but I will mention it for myself. I incline to think that before you can come to conviction there is a third matter which you have to consider. The by-law is infringed if the child does not attend without reasonable excuse; but, when you come to enforce the by-law, the magistrate may have to look at something different even from that. I do not think it is the right way to describe a reasonable excuse to say that the child is bound by process of law to be elsewhere than at school. If the child was at that moment attending on a subpoena before a magistrate, or before a judge of assize, I do not think it is the right way to describe that as a reasonable excuse." The child cannot be convicted. It is doing nothing illegal; and I incline, therefore, to think that, apart from the question of reasonable excuse, it is a sufficient answer to say, "I cannot obey this law, because I am obeying another Act of Parliament," to wit, I am attending Church as I am required to do by 5 & 6 Edw. 6, c. 1, not being a Nonconformist, and not within the protection of the statute 9 & 10 Vict. c. 59, and 5 & 6 Edw. 6, c. 1, being kept in force by 9 & 10 Vict. c. 59, subject only to this limitation, that no pecuniary penalty is to be imposed for disobedience. Upon all these grounds I agree with my Lord and with my brother. I MARSHALL should like to say one word more: that I am very glad to be able บ. to so agree; because it seems to me that the cause of civil and religious liberty would suffer very much if the judgments were otherwise. GRAHAM; BELL บ. GRAHAM. 1907. Education ActsAltendance at school-Day for religious observanceWithdrawal of childAscension Day-33 & 34 Vict. c. 75, 88. 7, 74. Appeals allowed. Solicitors for the appellants, Crawley, Arnold, and Co., for J. Hewitt, Barnsley. Solicitors for the respondent, Clements, Williams, and Co., for W. Vibart Dixon, Wakefield. KING'S BENCH DIVISION. Wednesday, May 1, 1907. (Before DARLING and PHILLIMORE, JJ.) DUNNING (app.) v. OWEN (resp.). (a) Licensing Acts-Sale of liquors-Sale by licensed agent for unlicensed principal-Liquors the property of unlicensed principal—Liability of principal for selling without licenceLicensing Act, 1872 (35 & 36 Vict. c. 94), s. 3. The respondent, having entered into a contract to supply refreshments, including intoxicating liquors, at an exhibition, arranged with one J., who was licensed in respect of other premises, to apply for an occasional licence for the sale of liquors at the exhibition hall, and J. applied for and obtained an occasional licence entitling him to sell liquors at the exhibition. Beer was sold at the exhibition hall by barmaids who were in the employment of J., but who for the time they were engaged at the exhibition were paid by the respondent. The beer was sent there by the respondent, who afterwards paid for it, and the proceeds of the sale were taken by the respondent. The respondent was from time to time present in the room where the liquor was sold, but did not sell any with his own hands, or in any way interfere with the sale. J. (who held the licence) attended in the bar and personally sold beer and was in control of the bar and serving staff, but he received no share of the profits and was not paid by the respondent. Held, that the respondent was the principal in the transaction of selling, and that he therefore "sold" the liquors within the meaning of sect. 3 of the Licensing Act, 1872, and that, having done so without having a licence, he was liable to be convicted under that section. CASE ASE stated by the stipendiary magistrate of the city of Liverpool. At a Court of summary jurisdiction sitting at Liverpool an information was preferred by the appellant, under the Licensing Act, 1872, against the respondent, for that he did sell by retail intoxicating liquors to wit, beer and wines-which he was not then licensed to sell, which information was heard by the magistrate on the 30th day of January, 1907, when he dismissed the same. (a) Reported by W. W. ORR, Esq., Barrister-at-Law, DUNNING v. OWEN. 1907. Licensing Acts Upon the hearing of the information, the following facts were proved or admitted before the magistrate : The respondent (Owen) having entered into a contract to supply refreshments, including intoxicating liquor, at an exhibition to be held at St. George's Hall, Liverpool, arranged with -Sale- one Thomas Jenkins, a person licensed to sell wine, beer, and Licensed spirits to be consumed on or off the premises at No. 48, Basnettagent selling street, Liverpool, that Jenkins should obtain an occasional for unlicensed licence for the sale of intoxicating liquors at St. George's Hall Liability of during such exhibition. principal principal The respondent, who was not a licensed person, applied in the 35 36 Vict. ordinary course of his business as a licensing agent on behalf of Jenkins for an occasional licence, which was granted to Jenkins. On the 19th day of September, 1906, beer was sold at St. George's Hall by barmaids who were employed by Jenkins in his business at No. 48, Basnett-street, but who, for the time they were at St. George's Hall, were paid by the respondent. The beer so sold was sent to St. George's Hall by order of the respondent, who subsequently paid for the same. The proceeds of such sale were put into the till at the bar, and were afterwards taken away by Jenkins' son, who at that time was in the employ of the respondent. The respondent was from time to time present in the room on the day on which the sale took place, but did not with his own hands sell any beer, or in any way interfere with or control the sale thereof. Jenkins attended at the bar and personally sold beer, and was in control of the bar and serving staff, but he was not in any way remunerated for such services, nor did he receive a share of the profits of the sale. On behalf of the appellant it was contended that the fact of the beer being respondent's beer, the barmaids being paid by him and the proceeds being received by him or on his behalf, constituted a sale by the respondent, and that the presence of and sale by Jenkins, who held the licence, did not make the sale of the respondent's beer anything but a sale by the respondent. On behalf of the respondent it was contended that the above-stated facts did not constitute an offence against sect. 3 of the Licensing Act, 1872. The attention of the magistrate was called to the cases of Peckover v. Defries (95 L. T. Rep. 883), and Williamson v. Norris (79 L. T. Rep. 415; (1899) I Q. B. 7). The magistrate was of opinion that there was a distinction between this case and the case of Peckover v. Defries (ubi sup.), and while he thought there might have been a sale in law by the respondent as well as by Jenkins, he did not think that the respondent had committed a breach of the licensing laws, and therefore he dismissed the information. The question upon which the opinion of the Court was desired was whether upon the above statement of facts the v. OWEN. 1907. -Sale Licensed agent selling for unlicensed principal 36 Vict. c. 94, s. 3. magistrate came to a correct determination and decision in DUNNING point of law, and, if not, what should be done in the premises. Leslie Scott for the appellant.-Sect. 3 of the Licensing Act, 1872, prohibits the selling of intoxicating liquors without a licence. The question is, Who is the person intended under that section to be responsible, and therefore the person who Licensing Acts ought to be licensed; in other words, what is the meaning of the word "sell" in sect. 3? The respondent is the person who ought to have been licensed. We have the findings of fact, not only that the property in the beer sold was the respondent's Liability of property and the profits of the sale went to him, but that principalthe barmaids who sold the beer were in his service at the 35 time, in the sense that they were paid by him. They were lent to him by Jenkins, and, although they were in the general service of Jenkins, they were in the particular service of the respondent on this occasion: (Rourke v. White Moss Colliery Company, 36 L. T. Rep. 49; 2 C. P. Div. 205). The magistrate seems to have thought that a sale in a contractual sense was not necessarily a sale within the meaning of sect. 3. It is submitted that that was a wrong view of the section. What was done in this case by the respondent is really what was done by the defendants in the case of Peckover v. Defries (95 L. T. Rep. 883), and it was held in that case that the defendants would have committed an offence if, under the cover of the licensed person who was residing on the licensed premises, they were selling their own beer. That case establishes that the real person to be licensed is the person who is the owner of the beer sold. The word "sell" in sect. 3 means what it does mean in ordinary language; it means selling in the contractual sense and becoming a party to a contract of sale, and the "seller" is the person who has become a party to a contract of sale. The word connotes a contract to sell, and that is the meaning here. Applying that in this case, if Jenkins was selling, not his own beer but Owen's beer, then Owen was the person who ought to have been licensed. In Williamson v. Norris (79 L. T. Rep. 415; (1899) 1 Q. B. 7), the respondent, a servant of the House of Commons, sold liquor, the property of the House, at a bar within the precincts of the House, the place where it was sold not being licensed, and it was held by Lord Russell, C.J. and Wills, J. that the respondent was not guilty of selling without a licence within sect. 3, and the ground upon which they so held was that the provisions of sect. 3 as to selling do not apply to a servant selling liquor, the property of his master, by his master's orders. Lord Russell, C.J. there said (79 L. T. Rep., at p. 417; (1899) 1 Q. B., at p. 13): "I am of opinion that the true meaning of the section is, that the sale which is prohibited must be a sale by the person who ought to be licensed. Everyone knows that a barman or a waiter is not a person licensed. The sale struck at is a sale by the master or the principal." The ratio decidendi of that case is that we must look for the person |