taken, or caused to be taken, out of the custody of her father, In accordance with such direction the jury found a verdict QUEEN'S BENCH DIVISION. Tuesday, April 19, 1887. (Before SMITH and WILLS, JJ.) ADDY (app.) v. BLAKE (resp.). (a) Licensing Act, 1872 (35 & 36 Vict. c. 94), s. 8-Intoxicating liquor sold by retail" Selling" in properly marked measure. By sect. 8 of the Licensing Act, 1872, “Every person shall sell all intoxicating liquor which is not sold by retail and in cask or bottle, and is not sold in a quantity less than half a pint, in measures marked according to the imperial standard." A publican drew a pint of beer for a customer in a properly stamped measure, and then poured it into an unstamped jug, in which he handed it to the customer. From the position of the customer it was impossible for him to see the bar where the beer was drawn, and he was not aware that any measure had been used in drawing it. Held (upholding a conviction by the justices), that the beer had not been sold in a measure marked according to the imperial standard within the meaning of sect. 8 of the Licensing Act, 1872. THIS was a special case stated under 20 & 21 Vict. c. 43, for the opinion of the Queen's Bench Division of the High Court of Justice, by the justices of the peace acting in and for the Lower Strafforth and Tickhill Division of the West Riding of the county of York. 1. An information was preferred by the respondent, a superintendent of police and inspector of weights and measures, against the appellant, an innkeeper, for that the appellant on the 30th day of September, 1886, at the parish of Conisborough, in (a) Reported by F. A. CRAILSHEIM, Esq., Barrister-at-Law. ADDY V. BLAKE, the said riding, unlawfully did sell by retail and not in cask or bottle certain intoxicating liquor, to wit, beer, in a quantity not less than half a pint, which said beer was not sold by the appellant in a measure marked according to the imperial standards, Licensing Acts contrary to the provisions of the 8th section of the Licensing -Sale of Act, 1872. 1887. liquor in marked measure 35 & 36 Vict. c. 94, s. 8. 2. The information came on for hearing before a court of summary jurisdiction for the Lower Strafforth and Tickhill Division of the West Riding, held at Doncaster in the said riding, on the 9th day of October, 1886, when the facts hereinafter stated were proved. 3. The appellant was the licensed occupier of an inn at Conisborough, known as the Eagle and Child, which was visited by the respondent on the date mentioned in the information. The respondent having seated himself in the parlour of the inn, ordered the appellant to serve him with a pint of beer, and the appellant thereupon left the room for the purpose of executing such order. Shortly afterwards the appellant returned with an earthenware jug filled with beer, which he handed to the respondent, who then paid the appellant the price of the liquor. The jug in which the beer was so supplied to the respondent was not in any way stamped or marked as a measure. 4. It was further proved by witnesses called on behalf of the appellant that, on leaving the parlour to fetch the beer, he (the appellant) entered the bar (an adjoining room) and there drew the beer into a properly stamped pint measure, being one of a set of stamped measures which were kept by the appellant in the bar for the purpose of measuring liquor. The appellant then proceeded to pour the contents of the measure into the jug, which, together with an unstamped glass tumbler, he subsequently carried into the parlour and handed to the respondent. From the position in which the respondent was seated in the parlour, it was impossible for him to see the appellant draw the beer or pour it into the jug, and the respondent was not in fact aware that any measure had been used by the appellant. 5. It was contended on behalf of the appellant that he had not, under the circumstances proved, contravened the provisions of the 8th section of the Licensing Act, 1872, inasmuch as that section requires that the liquor should be "sold" in a measure marked according to the imperial standard, and not that the liquor should be delivered to the customer in such a measure, and that the sale was complete immediately upon the beer being placed in the measure and appropriated to the customer. 6. The justices, however, thought that the appellant had been guilty of the offence charged in the information, on the ground that the liquor had not been placed in a duly stamped measure in the presence or to the knowledge of the customer, and on the further ground that the sale was, under the circumstances, incomplete until the liquor had been handed to the customer and paid for by him. 7. The justices accordingly convicted the appellant, and inflicted a fine of 2s. 6d. and costs. 8. The appellant being dissatisfied with their determination, as being erroneous in point of law, applied for a case to be stated for the opinion of the Queen's Bench Division. The question for the opinion of the Court was, whether, upon the facts as stated, the appellant was rightly convicted. By sect. 8 of the Licensing Act, 1872 (35 & 36 Vict. c. 94), it is enacted that: Every person shall sell all intoxicating liquor which is sold by retail and not in cask or bottle, and is not sold in a quantity less than half a pint, in measures marked according to the imperial standards. Every person who acts or suffers any person under his control or in his employment to act in contravention of this section, shall be liable to a penalty. Lockwood, Q.C. (Newson with him) for the appellant.-There is nothing in sect. 8 of the Licensing Act, 1872, which compels the drawing or measurement of the beer in the presence of the customer. The beer in the present case was drawn in a properly stamped measure, and it is submitted that that is sufficient to satisfy the requirements of the Act. Although the presence of the customer is not material at the time of drawing the beer, he may require it to be measured in his presence. That this is so is clear from the repealed Act, 3 Geo. 4, c. 77, s. 20, which enacted that, "All persons keeping common inns, alehouses, or victualling houses, and retailing ale and beer, shall sell the same in and from their houses by a full ale quart, pint, or half pint, made of pewter, sized to the standard, and stamped or marked to be of full size according to the standard and shall not retail any ale or beer in any other vessels than such stamped pewter ale quarts, pints, or half pints, unless such ale or beer shall have been first measured in and by such stamped pewter ale quart, pint, or half pint, in the presence of the guest or customer purchasing the It is therefore submitted that the conviction ought to be quashed. same. Forbes, Q.C. (C. M. Atkinson with him) was not called upon. SMITH, J.-I am of opinion that the justices were right in convicting the appellant of having contravened the provisions of sect. 8 of the Licensing Act, 1872. It appears that a customer went to the appellant's public-house and called for a pint of beer. The publican went to the bar in another room, where the customer could not see him, and there drew the beer, which he brought to the customer in an unstamped jug. The customer was not aware that the beer had been drawn in a stamped measure. Upon that, proceedings are taken against the publican under sect. 8 of the Licensing Act, 1872, which says that "Every person shall sell all intoxicating liquor which is sold by retail and not in cask or bottle, and is not sold in a quantity less than half a pint, in measures marked according to the imperial standards." That means that the liquor shall be "sold" in a properly marked measure, which was not done in this case. It is true that the ADDY v. BLAKE. 1887. Licensing Acts -Sale of liquor in marked measure 35 & 36 Vict. c. 94, s. 8. ADDY v. BLAKE 1887. Licensing Acts -Sale of liquor in marked measure 35 36 Vict. c. 94, s. 8. appellant appears to have drawn the beer into a stamped measure, but he then turned it into an unstamped jug, in which he sold it. If he had come out of the bar, bringing with him also the stamped measure, and had asked the customer how he would have it, I should be inclined to hold that the beer had been sold properly in the measure, and that the Act had not been evaded. But, upon the facts as they stand, I am of opinion that the conviction was right, and this appeal must therefore be dismissed. WILLS, J.-I am of the same opinion, and I think that there has obviously been an attempt on the part of the appellant to evade the provisions of the 8th section of the Licensing Act, 1872. The purpose of the section was to prevent cheating, and to protect customers. Beer in retail quantities must be sold in a measure marked according to the imperial standard; and it appears to me that, until the beer is on the point of becoming the property of the purchaser, it is not sold. The change of property does not take place until there has been some act of appropriation on the part of the purchaser; the sale takes place when the beer is placed in front of the purchaser for him to take it, but not until then. I agree with my brother Smith that if the appellant had brought both the jug and the stamped pewter pot into the parlour, and had thus given the customer an opportunity of measuring the beer, the Act would not have been broken, and I think that there would not have been any offence if the customer had asked to have the beer in a jug, and the publican had brought the marked measure into the room too. The conviction must stand. Conviction upheld. Solicitors for the appellant, Edward Doyle and Sons, for Binney and Sons, Sheffield. Solicitors for the respondent, Badham and Williams, for W. L. Williams, Wakefield. QUEEN'S BENCH DIVISION. (Before SMITH and WILLS, JJ.) BACK (app.) v. HOLMES (resp.). (a) Highway Act, 1835 (5 & 6 Will. 4, c. 50), s. 72-Obstruction— Fower of police to prosecute-Highway within the metropolitan area-Application of the Highway Act. A person, by singing hymns, occasioned a crowd to assemble, and thereby obstructed a certain highway within the Metropolitan Police District. An information was accordingly preferred against him by an inspector of police, under sect. 72 of the Highway Act. Held, that a prosecution under sect. 72 of the Act might be initiated by anyone, and therefore that the proceedings taken by the police were valid. Held also (reversing the decision of the magistrate, who had dismissed the summons), that the provisions of sect. 72 of the Highway Act were applicable to highways within the metropolitan area. THIS was a case stated by one of the magistrates of the policea courts of the metropolis, sitting at a court of summary jurisdiction, at Worship-street, within the Metropolitan Police District, under 20 & 21 Vict. c. 43. 1. Upon the hearing of an information preferred by the appellant, an inspector of police, against the respondent, under sect. 72 of the Highway Act (4 & 5 Will. 4, c. 50), charging "for that the respondent on the 7th day of August, 1886, in a certain highway, to wit, the Roman-road, Bow, within the Metropolitan Police District did unlawfully and wilfully obstruct the free passage of the said highway, by causing a crowd of persons to assemble there," the magistrate dismissed the said information. 2. The following facts were proved: 3. The respondent, at or about twenty minutes to 9 o'clock p.m., on the last-mentioned day, came, with several women, into the forecourt of Anlita House, which is a private ground, but adjoins the highway. At that time there was no obstruction. Hymns were sung by the women, in which the respondent joined, and he then delivered a religious address. Neither he nor the women left the private ground. These proceedings, however, caused a crowd to assemble and obstruct the highway. The (a) Reported by F. A. CRAILSHEIM, Esq., Barrister-at-Law. |