SEALEY TANDY. 1901. Licensing houseRefusal to ordinary shop opened for the sale of certain commodities. In each case there in an implied invitation to the public to enter, and, if a person so enters, before he can be removed he must be requested to leave; but if upon being requested to leave the licensed premises or the shop he refuses to do so, then he may be ejected, and no assault is committed provided no more force is used than is necessary to remove him. The magistrate based his decision upon Dallimore v. Sutton (62 J. P. 423), decided by Wills and Kennedy, JJ. in 1898; but he took a wrong view of that leave premises -Licensee's decision. Wills, J. there distinctly points out that a licensee right to eject might have a common law right to turn anyone off his premises, -35 & 36 but that he could only do so under sect. 18 of the Licensing Act, Vict. c. 94, 1872, under which the charge was laid, when the person was 8. 18. either drunken, violent, quarrelsome, or disorderly. That decision amounts to no more than this, that a person cannot be convicted under that section for refusing to leave when requested unless he comes within the class of persons mentioned in the section. It is no authority for the proposition that the licensee cannot turn a person off his licensed premises after requesting him to leave. The matter was considered in Ireland in Reg. v. Justices of Armagh (1897) 2 Ir. Rep. 57), and Holmes, J. (at pp. 67-8) points out the distinction between an inn and an alehouse in respect of the obligation of the licensed person to supply customers, and he says that the modern publican is not subject to an obligation analagous to that of an innkeeper. In this connection it is necessary to remember that the magistrate has found, first, that this house was not an inn; and, secondly, that the respondent was not a traveller. Even in the case of an inn the obligation to supply or accommodate a guest in the inn is limited to travellers, and ceases if the guest ceases to be a traveller: (Lamond v. Richard, 76 L. T. Rep. 141; (1897) 1 Q. B. 541). And à fortiori it must be limited in the case of an ordinary licensed house. That case clearly shows that even in the case of an inn a person who is not a traveller, or who has ceased to be a traveller, can be requested to leave, and can be ejected on his refusal to leave; and it simply reduces this case to the case of a person entering any ordinary shop. If the licensee is entitled to eject a person-as he was in this caseand if while the landlord has hold of him to put him out the person lays hold of the landlord, he is guilty of assault: (Howell v. Jackson, 6 C. & P. 723). The case of Reg. v. Rymer (35 L. T. Rep. 774; 2 Q. B. Div. 136) is exactly in point in the same direction as showing that the licensee is under no obligation either to serve or to allow a person to remain on his licensed premises longer than he thinks right to do so. The respondent did not appear. Lord ALVERSTONE, C.J.-This is a case stated by a metropolitan police magistrate who had dismissed a summons for assault, because he considered that the proceedings out of which the assault arose were occasioned by the appellant, who is the occuper and licensee of a public-house, requesting the respondent to leave the house, and that therefore, whatever followed, the magistrate could not entertain the charge for assault. The magistrate seems to have thought that the only rights of a licensed person in such a case depended upon the 18th section of the Licensing Act of 1872, and that unless the person was drunken, violent, quarrelsome, or disorderly at the time, he had no right to request him to leave. We think that the learned magistrate has overlooked two important elements of the case to which our attention was called in the argument by counsel for the appellant-namely, that, in the first place, this house was not an inn, but was only an ordinary licensed house; and, secondly, that the person who was turned out, or attempted to be turned out, was not a traveller. We think the distinction has been recognised in many cases, not only in the case of Reg. v. Justices of Armagh (ubi sup.), but in the case of Reg. v. Rymer (ubi sup.), and in one or two of the other cases cited to us for the appellant. In our opinion the distinction is well founded, and we consider that the occupier of a licensed house has a right to request a person to leave his house if he does not wish him to remain upon his premises. We also think it right to say, and in this case it is quite clear the magistrate himself thought, that there was nothing unjustifiable in one sense in the conduct of the appellant, because the magistrate has found that the man who was requested to leave was one of a gang of men who had been disorderly and had given trouble in the appellant's house. But we do not base our judgment upon that point. We think that the point taken by counsel for the appellant was right, that, except in the case of an inn and a traveller, the licensee and occupier of a public-house has a right to request a person to leave. Therefore this case must go back to the magistrate, in order, if necessary, that the question of assault should be tried. The objection the magistrate took does not prevail, and this appeal must be allowed. DARLING, J.-I am of the same opinion. It seems to me there is and always has been a very great difference between the old form of inn and the modern public-house, or what was simply an alehouse. In one of the passages read by counsel for the appellant from the judgment of Holmes, J. in the case of Reg. v. Justices of Armagh (ubi sup.), it was stated that the English inn was coeval with English literature, and I have no doubt that, when the learned judge said that, he was thinking probably of the inn as described in Chaucer, and perhaps as described by Dr. Johnson in Boswell's Johnson. The reading of that recalled to my recollection the passage in which Dr. Johnson said that one of the characteristics of an inn is that you are made welcome, and that the more noise you make, the more trouble you give, and the more good things you call for, the more welcome you are. And, having made that statement, he proceeded to repeat, as Boswell says, with great emotion a well-known verse from SEALEY v. TANDY. 1901. Licensing ActsLicensed houseRefusal to leave premises Licensee's right to eject -35 & 36 Vict. c. 94, s. 18. SEALEY บ. TANDY. 1901. Licensing Acts Licensed house Refusal to leave premises -Licensee's right to eject -35 & 36 Vict. c. 94, 8. 18. Shenstone. The particular person in this case did not make himself welcome, because he went beyond what was described as the more noise you make, the more trouble you give, and the more good things you call for, the more welcome you are. He seems to have been a person who belonged to a disorderly gang, who would not be a good customer as the publican very well knew, and the appellant acted therefore upon the right, and I think the undoubted right, which he had to say: "I am quite ready to serve some customers, even noisy customers, and I serve them; but you are the kind of customer who not only makes a noise, but will do me no good, and I will not serve you. I have the choice like other shopkeepers, and I will not serve you." It seems to me that the appellant, in acting as he did, acted really to the public advantage, because the other persons who frequented the house might very well have complained if the publican were to allow a person who to his knowledge was a member of a disorderly gang to frequent his public-house. If he allowed one of a gang to frequent it, he must allow them all; at least there is no reason why he should allow one more than another, and by allowing such a gang to frequent his house he would undoubtedly endanger his licence. It seems to me, therefore, that he was acting not only within his rights, but in the public interest, when he told this person that he would not serve him, and would not allow him to remain there, and that the person to whom he said that ought instantly to have left. CHANNELL, J.-I agree. Appeal allowed. Case remitted to the magistrate. Solicitors for the appellant, Maitlands, Peckham, and Co. KING'S BENCH DIVISION. (Before Lord ALVERSTONE, C.J., DARLING and CHANNELL, JJ.) Vaccination-Proceedings under sect. 29-No further noticeProceedings under sect. 31-Application to child between six and eighteen months old-Vaccination Act, 1867 (30 & 31 Vict. c. 84), ss. 29, 31-Vaccination Act, 1898 (61 & 62 Vict. c. 49), 8. 1 (3). (a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law. v. After proper notice given to the appellant, a summons was taken BOWDEN out under sect. 29 of the Act of 1867, but this summons was dismissed. Without any further notice a summons was issued under sect. 31. No notice had been served by the public vaccinator under sect. 1 (3) of the Act of 1898, but he had visited the appellant's house to vaccinate the child, which was between six and eighteen months old. Held, that an order under sect. 31 was rightly made. CASE stated. The appellant was charged on the 13th day of May, 1901, under sect. 31 of the Vaccination Act, 1867, that the respondent, being the vaccination officer duly appointed, having reason to believe that the appellant's child, being more than six months old, had not been successfully vaccinated, and that the respondent had given notice to the appellant, the parent, to procure its vaccination; that such notice had been disregarded, contrary to the Vaccination Acts, 1867 to 1898. On the hearing it was proved and admitted that notice had been given to the appellant to procure the child to be vaccinated, and that the child was still living, and was under the age of fourteen, being between the age of six and eighteen months, and had not been vaccinated or had had the smallpox. respon The respondent admitted this notice was anterior to the issue of a summons under sect. 29, and that no subsequent notice had been given, and that no notice of intention to visit the home under sect. 1 (3) of the Vaccination Act, 1898, had been given since the child's birth, though such visit had been paid. It was alleged by the appellant and not disputed by the dent that at petty sessions on the 18th day of February, 1901, proceedings had been taken by the respondent against the appellant in respect of the same child, under sect. 29 of the Act of 1867, and that the summons had been dismissed, and it was contended that it was not competent for the justices to deal with a complaint under sect. 31 when they had previously dismissed a complaint under sect. 29 in respect of the same child on the same facts. It was further contended by the appellant that whether or not they were competent to deal with the matter, the fact of the noncompliance with the requirements of sect. 1 (3) of the Act of 1898, in respect of the notice of the public vaccinator's visit, precluded any order being made under sect. 31 of the Act of 1867 in regard to a child born since the passing of the Vaccination Act, 1898; that proceedings in regard to children resident from birth in the district should be taken under sect. 29 and not under sect. 31 of the Vaccination Act, 1867, unless the child is of eighteen months and upwards. The justices were of opinion that the remedies given by sects. TOLL. 1901. Vaccination between six and eighteen monthsDisregard of notice-Notice of further proceedings Necessity for BOWDEN v. TOLL. 1901. Vaccination -Child between six and eighteen monthsDisregard of noticeNotice of further proceedingsNecessity for notice 30 31 Vict. 29 and 31 of the Act of 1867 were independent of each other, and that the dismissal of a summons under the former was no bar to proceedings under the latter, although no further notices were given between the summonses; that the fulfilment of the provisions of sect. 1 (3) of the Act of 1898 was not a condition precedent to proceeding under sect. 31; and that sect. 31 was not only applicable to children of the age of eighteen months and upwards. They therefore made an order directing that the child should be vaccinated within twenty-eight days. By the Vaccination Act, 1867 (30 & 31 Vict. c. 84), s. 29. Every parent or person having the custody of a child who shall neglect to take such child or to cause it to be taken to be vaccinated, or after vaccination to be inspected, according to the provisions of this Act, and shall not render a reasonable excuse for his neglect, shall be guilty of an offence, and liable to be proceeded against summarily, and upon conviction to pay a penalty not exceeding twenty shillings. And by sect. 31: If any registrar or any officer appointed by the guardians to enforce the provisions of this Act shall give information in writing to a justice of the peace that he has reason to believe that any child under the age of fourteen years, being within the union or parish for which the informant acts, has not been successfully vaccinated, and that he has given notice to the parent or person having the custody of the child to procure its being vaccinated, and that this notice has been disregarded, the justice may summons such parent or person to appear with the child before him at a certain time and place, and upon the appearance, if the justice shall find after such examination as he shall deem necessary that the child has not been vaccinated nor has already had the smallpox, he may, if he see fit, make an order under his hand and seal directing such child to be vaccinated within a certain time. By the Vaccination Act, 1898 (61 & 62 Vict. c. 49), s. 1 : (1) The period within which the parent or other person having the custody of a child shall cause the child to be vaccinated shall be six months from the birth of the child, instead of the period of three months mentioned in section sixteen of the Vaccination Act of 1867, and so much of that section as requires the child to be taken to a public vaccinator to be vaccinated shall be repealed. (2) The public vaccinator of the district shall, if the parent or other person having the custody of a child so requires, visit the home of the child for the purpose of vaccinating the child. (3) If a child is not vaccinated within four months after its birth the public vaccinator of the district, after at least twenty-four hours' notice to the parent, shall visit the home of the child, and shall offer to vaccinate the child with glycerinated calf lymph or such other lymph as may be issued by the Local Government Board. Schultess Young for the appellant.-Under sect. 31 of the Vaccination Act, 1867, it is a condition precedent that notice should be given before proceedings are taken. It is clear that the notice is the starting point, for it was laid down in Knight v. Halliwell (30 L. T. Rep. 359; L. Rep. 9 Q. B. 412) that where an information was laid for disregarding a notice under sect. 31, at a time exceeding twelve months from the disregard of a former notice, the parent could not be convicted without a fresh notice being given. He also referred to Holloway v. Coster (76 L. T. Rep. 57; 18 Cox C. C. 487; (1897) 1 Q. B. 347). Here nothing was done, and no further notice was given between the proceedings under sect. 29 and sect. 31. The notice by the registrar was the 14th day of June, 1900, the notice by the vaccination officer the 6th day of December, 1900; on the 18th |