ข. OWEN. DUNNING who is the real owner of the property sold, and that person must be licensed. It is not sufficient that the licensed person who may happen to be present on the premises should be in a purely subordinate position, having no interest in the business or in the 1907. Licensing Acts liquor sold, and that he should be there merely to save the position for someone else, who is the real owner. There are -Sale principal 35 & 36 Vict. c. 94, s. 3. Licensed many cases decided on the latter part of sect. 3, as to selling at agent selling a place other than the place which is licensed. In Boyle v. Smith for unlicensed (94 L. T. Rep. 30; (1906) 1 Κ. Β. 432), it was held that the principalLiability of respondent was not liable to be convicted under sect. 3 for the act of his drayman in selling beer at a place not licensed, upon the ground that the drayman was acting contrary to the express orders of the respondent and outside his employment. Pletts v. Beattie (74 L. T. Rep. 148; (1896) 1 Q. B. 519), illustrates the principle that the person who ought to be licensed is the person who sells, in the sense of being the person who makes the contract of sale, and that the common law doctrine of sale ought to be applied in sales of liquors, that sale means a sale in a contractual sense, or, as Channell, J. put it in Stephenson v. Rogers (80 L. T. Rep. 193, at p. 196), "to have a sale in any sense it is quite clear that there must be a contract." The same principle appears in Noblett v. Hopkinson (92 L. T. Rep. 462; (1905) 2 K. B.214), and Graff v. Evans (46 L. T. Rep. 347; 8 Q. B. Div. 373). On the facts as found, the sale here was by Owen, and, that being so, the presence of any number of licensed persons on the premises is immaterial. He ought therefore to have been convicted. In the case of limited brewery companies, the fact that a limited company can only act through an individual might possibly take the case of the manager of such a brewery company out of the general rule, but that question does not arise here. Rigby Swift for the respondent. The decision of the stipendiary magistrate was right. Since 1872 this section has been in force, and, no doubt, similar sections have been in force before that date, and sales of brewers' beer by licensed managers have been going on all over the country, yet no conviction of a manager in a case of this kind for selling the beer belonging to the brewers can be cited. For at any rate some years past this has been happening, and it is almost inconceivable that the Courts should have been considering and treating as legal contracts between brewers and their managers which would be illegal if the argument for the appellant is sound. On the day in question these premises at St. George's Hall were licensed, and the holder of the licence (Jenkins) was upon the licensed premises and he was in control of the bar and serving staff, and therefore by sect. 62 of the Act any sale which takes place on those premises shall be presumed and taken to be a sale "by or on behalf of the holder of such licence." Therefore any sale that takes place in such circumstances the law presumes to be a ข. OWEN. 1907. principal 35 & 36 Vict. c. 94, s. 3. sale by Jenkins, who held the licence. What the Act of Parlia- DUNNING ment aims at is the party to the transaction of handing over the beer, and the person who does the transaction of handing over the liquor must either be licensed, or must be acting for a person who is licensed. When there is upon the premises a person who is licensed, although he is not selling his own beer, that is Licensing Acts sufficient. This case is in that respect different from Peckover Licensed v. Defries (ubi sup.), as in that case the persons who were really agent selling selling-and selling their own beer-were not licensed at all. for unlicensed Here the transaction is done by a person (Jenkins) who is Liability of licensed, and therefore Peckover v. Defries (ubi sup.) is wholly principaldifferent from this case. Jenkins was doing exactly what he was licensed by the justices to do, and there was no evidence that the respondent (Owen) was taking any part in the management of the bar or the sale of liquor in that house. To get over that, the appellant says that there ought to be read into the licence the condition that the licensee is not to sell any beer except that of which he is the owner. No such condition ought to be read into the licence. The person who is unlicensed may give authority to a licensed person to sell his beer; and the person who "sells " or exposes for sale" within the meaning of sect. 3 is the person who carries out the transaction, and that was not the respondent Owen. In Boyle v. Smith (ubi sup.) there was not a conviction, because the respondent's drayman who sold the beer was not authorised by the respondent to sell it. In Williamson v. Norris (ubi sup.), as to the sale at the House of Commons, there could not have been a conviction if the servant who handed over the liquor had a licence, although the liquor was the property of someone else. The case that has been referred to of Rourke v. White Moss Colliery Company (ubi sup.) is an authority for this proposition that the person who has the control of the servant is the person who is liable. Here it is found in the respondent's favour that Jenkins was the person who had the control and had the licence, and it can make no difference that the beer was the property of some other person and not his own. No distinction can fairly be drawn between the case of the manager who is selling the beer of a public brewery company and the case of the manager who is selling the beer of a private individual. He also referred to Mayhew v. Suttle (23 L. T. Rep. O. S. 296; 4 E. & Β. 347). Leslie Scott was not called upon to reply. DARLING, J.-This case, we are told, raises a very grave question with regard to the method of carrying on licensed houses and a kind of business which really is not before us, and is not, to my mind, involved in the consideration which the facts before us necessitate. The case finds that the respondent Owen, having entered into a contract to supply refreshments, including intoxicating liquors, at an exhibition, arranged with one Jenkins, a person licensed to sell wine, beer, and spirits to be consumed DUNNING υ. OWEN. 1907. Licensing Acts -Sale on or off the premises, that Jenkins should obtain an occasional licence for the sale of intoxicating liquor at St. George's Hall during such exhibition. It is perfectly plain from that that Owen did not engage Jenkins, as he might have done, to ca carry out part of the contract which Owen had got. He did not say to Jenkins, "I will hand over to you, Jenkins, the supplying Licensed of the spirituous refreshments because you are a licensed agent selling person." He did not do that. He entered into a contract that for unlicensed he would do the whole thing himself, and, having done that, Liability of he then engaged Jenkins, who had got a licence in the [manner principal stated in the case. Then the respondent, who was not a 35 & 36 Vict. licensed person, applied in the ordinary course of his business c. 94, s. 3. principal as a licensing agent as he was-on behalf of Jenkins for an occasional licence, which was granted to Jenkins. Then liquor was sold, and the barmaids, who were the ordinary barmaids, employed by Jenkins, were sent to St. George's Hall, where they were paid by Owen. Now, the case states what I think are very material facts. The beer so sold was sent to St. George's Hall by order of the respondent Owen, 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. Then 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. Upon this Owen was summoned for breach of sect. 3 of the Licensing Act, 1872 (35 & 36 Vict. c. 94), which says: "No person shall sell or expose for sale by retail any intoxicating liquor without being duly licensed to sell the same, or at any place where he is not authorised by his licence to sell the same." It is said that Owen did not sell this liquor. It is perfectly true that he did not hand it out to the persons who wanted it, but if he had done that and no more than that, he would not have been within this Act. That is shown by the case of Williamson v. Norris (ubi sup.), the case as to the sale by the House of Commons. The person who simply as the agent or servant of another hands to the customer who then pays for it the goods of another, is not the person who is required the have the licence. That, I think, is made perfectly plain by the rest of the section, which goes on: "Any persons selling or exposing for sale by retail any intoxicating liquor which he is not licensed to sell by retail" commits an offence against this statute. Now, whose was this liquor? It was Owen's liquor. Who sold it? It may be said he sold it and Jenkins sold it, and the barmaids sold it, but the barmaids would not require a licence, nor would Jenkins require a licence for doing merely what the barmaids did. Then who sold it? It was Owen's liquor; it was sold by Owen's directions DUNNING at this place. It was sold by Jenkins and the barmaids whom Owen directed to sell it, and I should say that Owen sold it most distinctly. It is true that he sold it by means of servants or agents, but a man who sells by his agents or servants sells all the same, and the statute says that any person selling or exposing Licensing Acts for sale by retail any intoxicating liquor which he is not Licensed licensed to sell by retail commits the offence. I come to the agent selling conclusion that Owen sold it by retail, and it could not have for unlicensed been sold if he had not sold it. If it had not been sold by his Liability of directions, it could not have been sold by Jenkins, because it was principal-not Jenkins' liquor. It could not have been sold by the bar-35 & 36 Vict. maids, because it was not theirs. It was sold by Owen, and Owen had not a licence. The fact that he had not got a licence renders him guilty of an offence under this section, and it does not matter at all if it could be said, "It is quite true that Owen who sold it had not got a licence, but his agent who sold it had." The statute does not say that; it says that the man who sells it must have a licence, and I think it is impossible to say that Owen was not a person who sold it. The very reasoning in the case of Williamson v. Norris (ubi sup.) appears to me to show that it is so. The reasoning which showed that the waiter at the bar of the House of Commons did not sell is reasoning which shows that the Kitchen Committee, who in that case were in the position in which Owen is in this case, did sell, and that if anybody would have required a licence they would have required it. That point did not directly arise in Williamson v. Norris (ubi sup.), because it was not a question whether they required a licence, but whether the waiter required it. The words I should like to refer to in Williamson v. Norris (ubi sup.) are these. Lord Russell, C.J., says (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 waiter is not a person licensed. The sale struck at is a sale by the master or principal." Then who was the principal here? Clearly the man to whom the liquor which was being sold belonged, and that man it is plainly stated in the case was Owen. He bought the liquor and sent it to St. George's Hall, where it was sold by these people by his instructions. The money was taken out of the till by a person in his employment, and delivered to him; and therefore it appears to me that he comes most distinctly within the words of this section, and that, whoever else had a licence, he himself needed a licence for the reasons I have given. I am not going to attempt to make this decision of any kind of use or application in other circumstances. I am content to deal with this case as it comes before us. If reasons can be found in this judgment which may induce any persons to think that others besides Owen, who have not got licences, ought to have them, I am not concerned with that. I have only to give a υ. OWEN. 1907. DUNNING decision upon this special case, upon these facts presented to us, and it seems to me that what I have said is in accordance with Williamson v. Norris (ubi sup.), and also is not in conflict with what is said in Peckover v. Defries (ubi sup.), which was a very peculiar case upon the facts, and a case in which the decision Licensing Acts simply came to this, that the real facts must be further Licensed ascertained before the law could be finally pronounced upon agent selling them. principal for unlicensed PHILLIMORE, J.-I am of the same opinion. The able arguLiability of ment for the respondent has failed to convince me that this principal judgment of the learned stipendiary magistrate was right. The 35 & 36 Vict. c. 94, s. 3. case of Peckover v. Defries (ubi sup.) shows that a person cannot avoid the provisions of the licensing laws by keeping on the premises what I may call a tame licensed person. That is all the bearing that Peckover v. Defries (ubi sup.) really has on this case. The case which is more in point for our present purposes is that of Williamson v. Norris (ubi sup.), and the effect of that case, and the law as laid down in that case, is that a sale for the purpose of the Licensing Act is like any other sale where we want to find who the seller is; we look to the principal and not to the agent. The principal here was Owen, and the fact that he had an agent, who had a licence, no more helps him than in the case of Peckover v. Defries (ubi sup.), the Defries, if they were really the principals as they probably were, were helped by the fact that they had on the premises a man who was licensed. For these reasons I agree that the appeal must be allowed. Appeal allowed. Case remitted to the magistrate for further hearing. Solicitors for the appellant, F. Venn and Co., for Edward R. Pickmere, Town Clerk, Liverpool. Solicitor for the respondent, John Hands, for Edwin Berry and Co., Liverpool. |