REG. v. DE WINTON AND OTHERS permanent place of abode. There is no hardship to the girl, as she can apply to the magistrates to adjourn the case from time to time. There was no suggestion here that the defendant knew that there was any other summons to be issued against him. and Taylor. Under these circumstances the defendant's last place of abode was at Gloucester, where the summons ought to have been served. He also referred to Reg. v. Lee (J. P. 344.) [MANISTY, J.-That case is against you.] Mead was not called upon to reply. STEPHEN, J.—In this case I am sorry to say that the court is divided. The Act of Parliament says that the summons is to be left at the defendant's" last place of abode." The meaning of the words "last place of abode " was much discussed in Reg. v. Evans (ubi sup.), and the court there held that the summons must be left at the defendant's present place of abode, if he has any at the time of the service; at his last place of abode, if he has none. In that case the service was at a house where the defendant formerly lodged, but where he did not lodge at the time of the service, and it appeared that the summons did not reach him until after the day on which the order was made, and it was held that the service was not at the "last place of abode." Now, in the present case, it seems to me that the uncontradicted affidavit of the defendant is that he resided with his father, then went away and resided at Gloucester, and that he did not return, and had no intention of returning. It appears to me that, according to the authority of Reg. v. Evans (ubi sup.), the defendant's last place of abode was at Gloucester, where he was then living. The case of Reg. v. Highams (ubi sup.) decides the other way. These cases directly contradict each other. Reg. v. Evans (ubi sup.) gives a perfectly plain exposition of the statute, but Reg. v. Higham (ubi sup.) does not to my mind do so. I therefore adopt Reg. v. Evans (ubi sup.). At the same time, however, I wish to say that the view taken by my brother Manisty is more in accordance with justice in this particular case. But I look at what the Act of Parliament says, and what this particular case decides, and I come to the conclusion that this rule ought to be made absolute. MANISTY, J.-I am very sorry to be compelled to differ from my learned brother, but I follow the more recent case of Reg. v. Higham (ubi sup.). I think that case is founded on common sense and also on justice. No doubt this sect. 4 of the Act 35 & 36 Vict. c. 65, was intended to provide, as it seems to me, for the service of the summons when a person has gone away, and has at the time no known place of abode. The section does not say so in words, but the object of the statute is clearly so. To evade the statute, the defendant went away and kept himself concealed, and the question is whether a person does not evade the statute who leaves his father's house and goes to some distant place, knowing that a charge was made against him, because he knew that, although one summons was dismissed, another summons 1888. Bastardy summons — "Last place of abode" of defendant 35 36 Vict. Certiorari c. 65, s. 4. REG 2. DE WINTON AND OTHERS 1888. summons Certiorari c. 65, s. 4. would be taken out, and his relations knew well where to find him, as they knew where to send the newspaper, but they did not know where to send the summons. This was done to AND TAYLOR. evade the statute. But it is unnecessary to base my judgment on this. I base my judgment on the case of Reg. v. Higham (ubi sup.). In Reg. v. Higham it appeared by the affidavits that Bastardy the defendant had resided at his father's house up to the 13th Service of day of July, 1856, when, having reason to anticipate further "Last place of annoyance from the complainant, he determined to leave his abode" of father's residence and obtain employment in a different part of defendant the country. Accordingly, on that day, he left and went to 35 436 Vict. reside with a farmer in Bedfordshire, and assisted him in his farm, and had no intention, when he left, of returning to reside with his father. The complainant was delivered of a child on the 23rd day of November, 1855, and a summons against the defendant was dismissed on the 14th day of January, 1856. On the 14th day of July, 1856, another summons was taken out, which was left, on the 29th day of July, at the house of the father, and the defendant did not become aware of it till the 11th day of August, the day on which the order was made against him. Nevertheless the court held in that case that the summons had been left at the defendant's last place of abode. I quite agree with the recent case of Reg. v. Lee (ubi sup.), in which Hawkins, J. adopts the decision in Reg. v. Higham (ubi sup.), saying that that was a strong case. In Reg. v. Lee (ubi sup.) the mother was delivered of the child on the 18th day of April, 1887, and she obtained a summons against Lee, the alleged putative father, which was served on the 18th day of May, 1887, at the house of a baker at Sunbury. Lee had been in the service of the baker, and resided there from the 25th day of September, 1886, to the 20th day of April, 1887. When a constable left the summons, the baker told him that Lee had left that place, and his place of residence was not known, but that Lee had called at his place on the 14th day of May to take away some things he had left there. Lee stated in his affidavit that he had left Sunbury on the 20th day of April to better himself, that he went to Southampton and remained there till the 19th day of May, when he got a situation in a ship and sailed for the West Indies. Under these circumstances, it was there held that the service was valid, as the summons had been left at the last place of abode. I think we may fairly act upon these cases, and hold the summons here was left at the last place of abode of the defendant. I think, therefore, that this rule should be discharged. Rule discharged. Solicitors for the complainant, Crowders and Vizard, for Corner and Corner, Hereford. Solicitors for the defendant, Thomas White and Sons, for Garrold, Hereford. QUEEN'S BENCH DIVISION. June 11 and 12, 1888. (Before MANISTY and STEPHEN, JJ.) BOND (app.) v. EVANS (resps.). (a) Licensing Act 1872-Suffering gaming on licensed premisesServant in charge permitting gaming-Ignorance on the part of innkeeper-Liability-35 & 36 Vict. c. 94, s. 17. The appellant was charged under 35 & 36 Vict. c. 94, s. 17, as a licensed person for allowing gaming to be carried on on his premises, which were an ordinary inn and alehouse, to which was attached a skittle-alley communicating with the rest of the premises. The appellant employed a servant to manage the skittle-alley and attend upon the persons frequenting it, and had given him general directions not to permit gambling in the skittlealley. On one occasion two constables went to the appellant's skittle-alley and found inside some men playing cards for money; and at this time the servant was in charge of the skittle-alley, and knew that the men were playing cards. It was admitted that the appellant was not present, and had had no actual knowledge of the card playing, and that his servant had never communicated with him on the subject. The appellant was convicted :Held, that the conviction ought to be affirmed, and that, as the responsibility for not permitting or suffering gaming on licensed premises rested on the licensed person, the mere fact that he did not know of the existence of gaming on his premises did not relieve him of his responsibility; and that, as his servant who was in charge of the premises had knowledge of the gaming, the appellant had suffered gaming to be carried on within the meaning of the statute. THIS HIS was a case stated under 20 & 21 Vict. c. 43, and 42 & 43 Vict. c. 49, by the stipendiary magistrate for the Staffordshire Potteries district. 1. At a court of summary jurisdiction held at Longton, before the magistrate, on the 14th day of March, 1888, Thomas Bond (hereinafter called the appellant) was charged on the information and complaint of Joseph Evans, the superintendent of police (hereinafter called the respondent) for that he, being a licensed person, did suffer gaming to be carried on on his premises at Longton, known by the sign of the George and Dragon Inn, on the 23rd day of February, 1888. (a) Reported by W. P. EVERSLEY, Esq., Barrister-at-Law. 2. From the evidence which was given before the magistrate at the hearing of the information and complaint he found the following facts. The appellant's premises consisted of an ordinary inn, alehouse, and victualling-house, to which there was a skittle-alley communicating by doors and passages with the rest of the premises. 3. The appellant had employed one George Owen to manage the skittle-alley, and to attend upon the persons frequenting the same, and he had received from the appellant general directions not to permit gambling in the skittle-alley. 4. On the 23rd day of February, 1888, two police constables visited the skittle-alley of the George and Dragon, and upon going inside found some men playing cards for money. 5. At this time George Owen was present in charge of the skittle-alley, and cognisant of the acts of the men who were playing cards. It is admitted that the appellant was not present and had no actual knowledge of the card-playing, and the said George Owen never communicated with him on the subject. 6. On the part of the appellant it was contended that, inasmuch as the appellant had no personal knowledge whatever of the gaming taking place, and had in no way connived at it, and his servant George Owen had suffered it to take place contrary to his duty and his express orders, the appellant could not be convicted, and in support of this contention the case was cited of Somerset (app.) v. Hart (resp.) 12 Q. B. Div. 360. 7. The magistrate, however, was of opinion that, notwithstanding the decision of the judge in Somerset v. Hart, the appellant Bond ought to be convicted, because he was satisfied that George Owen, who had been placed in charge of the skittlealley, was present and well aware of what was going on, and permitted the gaming to take place, and that such holding was in conformity with the decisions of the judges in Bosley v. Davies (33 L. T. Rep. N. S. 528; 1 Q. B. Div. 84), and Redgate v. Haynes (33 L. T. Rep. N. S. 779; 1 Q. B. Div. 89), which he felt bound to follow. The magistrate convicted the appellant. If the court should be of opinion that the conviction was right, then it was to stand; but if wrong, then it was to be quashed. By 35 & 36 Vict. c. 94, s. 17, it is enacted that : : "If any licensed person suffer any gaming or any unlawful game to be carried on on his premises he shall be liable to a penalty not exceeding for the first offence ten pounds, and not exceeding for the second and any subsequent offence twenty pounds. Any conviction for an offence under this section shall, unless the convicting magistrates shall otherwise direct, be recorded on the licence of the person convicted." J. P. Grain for the appellant.-The question here is, whether the innkeeper, the appellant, "suffered " this card-playing or gaming to be carried on on his premises within the meaning of sect. 17 of the Licensing Act, 1872. Here the case finds that the appellant gave orders to his servant who looked after this skittle-alley to prevent gambling, and though the servant did know that on the occasion in question gambling was going on, it is found that the appellant was in perfect ignorance, and that his servant had not communicated to him any information as to gaming going on; the appellant neither connived at nor was wilfully blind to the fact of gaming, and was therefore innocent of the offence imputed to him, and ought not to have been convicted: (Somerset v. Hart, 12 Q. B. Div. 360.) That case is strongly in my favour, and if licensed persons are to be made liable for the acts of their servants, the licence of every publican who has a servant is in danger. There must be mens rea on the part of the innkeeper before he can be criminally convicted. In another case the trustees and members of the managing committee of a club gave orders to their steward not to sell intoxicating liquors to persons not members of the club. The steward did so contrary to their orders, but without their knowledge, and the court held that the managers were not responsible, on the ground that the master or principal is not liable when a servant or agent sells in direct contravention of the bona fide orders given, and without the knowledge or assent direct or indirect of the master or principal: (Newman and others v. Jones, 55 L. T. Rep. N. S. 327; 17 Q. B. Div. 132.) In the present case direct orders were given to the servant in charge of the alley not to allow gambling. The stipendiary magistrate was wrong in convicting on the authority of Somerset v. Hart (ubi sup.) and Newman v. Jones (ubi sup.). Greene, Q.C. (A. T. Lawrence with him), in support of the conviction.-Actual knowledge of the gaming is not necessary on the part of the licensed person to render him liable to conviction; constructive knowledge is sufficient: (Bosley v. Davies, 33 L. T. Rep. N. S. 528; 1 Q. B. Div. 84.) And where a servant connives or permits gaming to be carried on, the master is liable for his acts: (Redgate v. Haynes, 33 L. T. Rep. N. S. 779; 1 Q. B. Div. 89.) In the latter case the master was made liable for the acts of a general servant. The present case is an à fortiori one, for here the servant who permitted the gaming was put in special charge of the skittle-alley. Here there was plenty of evidence of constructive knowledge on the part of the appellant. The cases cited followed the case of Mullins v. Collins (29 L. T. Rep. N. S. 338; L. Rep. 9 Q. B. 292), in which the appellant was convicted of supplying liquor to a police constable when on duty, though the appellant did not supply the liquor to the constable, nor did his servant know that the constable was on duty. In Redgate v. Haynes (ubi sup.) the hall porter was only a general servant, and not in charge of the room in which the gaming went on, which distinguishes that case from the present; and Newman v. Jones (ubi sup.) cannot alter the law, for there the house was not a licensed house at all, nor was the person whose acts were sought to make the appellants liable in any sense a servant who could render the master liable. |