Tuesday, Feb. 25, 1902. (Before Lord ALVERSTONE, C.J., DARLING and CHANNELL, JJ.)

DAVIES (app.) v. BURNETT (resp) (a) Licensing-Bona fide club-Intoxicating liquors -Delivery to wife of member for his consumption off the premises-Licensing Act 1872 (35 & 36 Vict. c. 94), s. 3.

A member of a bonâ fide club not licensed for the sale of intoxicating liquor sent his wife to buy intoxicating liquor at the club for his consump tion off the premises, having given her for that purpose a written order addressed to the steward of such club. The appellant served the wife with such liquor, and she handed over to the appellant on behalf of the club the price of the liquor.

Held, that no offence had been committed by the appellant, under sect. 3 of the Licensing Act 1872, of selling intoxicating liquor without a licence.

CASE stated on an information preferred by the respondent against the appellant, under sect. 3 of 35 & 36 Vict. c. 94, charging the appellant with, on the 9th Aug. 1901, unlawfully selling by retail intoxicating liquor-to wit, stout-which he was not then licensed to sell by retail.

On the hearing of the information the following facts were proved or admitted :—

The appellant was a waiter employed at the North Wolverhampton Working Men's Club, a bona fide club, duly registered under the Friendly Society Acts 1875, whose registered office and place of business were at No. 72, North-road, in the borough of Wolverhampton.

About 8.35 p.m. on Friday, the 9th Aug. 1901, Elizabeth Hickman, the wife of George Hickman, went to the club, asked appellant for a bottle of stout for her husband, and handed to him the following ticket:

The appellant thereupon, for and on behalf of the club, sold or transferred to Elizabeth Hickman from the stock of intoxicating liquors, the property of the club, a bottle containing stout, in exchange for which she paid or handed over to him, on behalf of the club, the sum of 2d.

The ticket had been filled in by and was signed by George Hickman, husband of Elizabeth Hickman, who was then at his home, and Elizabeth Hickman on receiving the stout from the appellant returned home with it and handed it to her husband, who drank it.

(a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law.

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George Hickman was a duly elected member of the club, but Elizabeth Hickman was not a member.

It was contended on behalf of the appellant, that, inasmuch as the woman Elizabeth Hickman was acting as agent for her husband George Hickman, a bonâ fide member of the club, there was in consequence no sale to a non-member, but merely a transfer of the special property in the goods of the club to one of the members, and that therefore no licence was required by the appellant for the sale of intoxicating liquor.

It was contended on behalf of the respondent that the principal objects of the club were "to afford to its members a means of social intercourse, mutual helpfulness, mental and moral improvement, and rational recreation "; and that if a member not being on the premises could send any person, not being a member, to such a club to purchase intoxicating liquor, the objects of such club would be entirely defeated and the licensing laws evaded.

The justices found upon the above-stated facts that there had been a sale to a non-member, and convicted the appellant.

The question of law arising was whether, upon the facts stated, the appellant committed an offence against sect. 3 of the Licensing Act 1872 and was rightly convicted.

Hobson for the appellant.-Under the circumstances set out in the case, there was no sale of intoxicating liquors by the appellant contrary to sect. 3 of the Licensing Act 1872. It was decided in Graff v. Evans (46 L. T. Rep. 347; 8 Q. B. Div. 373) that a member of a bona fide club was entitled to buy intoxicating liquors at his club and to take them home for consumption. It can make no difference that the sale to the member takes place by means of an agent, and here the wife was undoubtedly the bona fide agent for her husband. In Woodley v. Simmonds (60 J. P. 150) a conviction was upheld where liquor was fetched from the club for the husband by the wife, but, on looking at the report of that case, it is clear that the evidence for the defence was not believed, and bona fides was not found. The question of agency where bona fides exists was not discussed, and in the present case that being found to exist makes it quite different from that

one.

Arthur Powell for the respondent.-There is no power on the part of a member to send an agent to fetch his intoxicating liquors, even assuming that the club is a bona fide one; the member must act personally, and cannot act by deputy. He referred to

Graff v. Evans (sup.);

Woodley v. Simmonds (sup.).

Lord ALVERSTONE, C.J.-With great reluc tance we have come to the conclusion that this appeal must be successful, but I think that this practice of delivering liquors to be consumed by a member of the club off the premises is one that ought to be discouraged and discountenanced. The privileges and advantages which are given by these clubs should be kept for enjoyment on the club premises. But here all we have to decide is a question of law, and in all these cases, when considering whether or not the club is a bona fide one, it is very important to find out whether there is a practice of delivering liquors for consumption

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off the premises to non-members as well as to members. It is, however, found here that the club was a bona fide one; that the wife went for her husband, who was a member and who handed her the ticket which he had signed; and that in fact the husband had the bottle of stout. It is agreed that the wife was the agent for her husband. Under those circumstances it is impossible for us to say that a member of a club which is bonâ fide may not by his lawful agent carry out a transaction which was held to be lawful in Graff v. Evans (46 L. T. Rep. 347; 8 Q. B. Div. 373). This was a transfer of property authorised by law -namely, a transfer by means of an agent The case of Woodley v. Simmonds (60 J. P. 150) is not against this view. In that case the sale was not a bona fide one. I think this appeal must be

allowed.

DARLING, J.-I agree, though I come to that conclusion with reluctance. This case assumes that the wife was the agent of her husband, and, that being so, there was no offence committed.

CHANNELL, J.-I agree that on the findings in this case the appellant must succeed. If, however, I had a case before me of a club allowing liquor to be taken and consumed off the premises, that would go very far to induce me to hold that such a club was not a bonâ fide one.

Appeal allowed.

Solicitors: Harrison and Davies, for Hooper and Ryland, Birmingham; Indermaur and Brown, for A. Turton, Wolverhampton.

Thursday, Feb. 27, 1902.

(Before Lord ALVERSTONE, C.J., Darling and CHANNELL, JJ.)

JONES AND OTHERS (apps.) v. DAVIES (resp.). (a) Fishery-Lease of land including stream-No reservation of fishery rights to landlord-Passing of fishery rights under lease to tenantRight of landlord to prosecute for taking fishLarceny Act 1861 (24 & 25 Vict. c. 96), s. 24. By a lease of land, whether agricultural or other land, through which a river flows, the right of fishing in the river, unless expressly reserved to the lessor in the lease, passes to the tenant, and the lessor cannot prosecute persons for unlawfully taking fish in the river.

CASE stated by justices in and for the county of Denbigh.

At a petty sessions in and for the petty sessional division Uwchaled, in the county of Denbigh, on the 26th Aug. 1901, an information was preferred by Richard Davies (the informant and present respondent) against Robert Jones and four other persons (the defendants and present appellants), alleging that the defendants on the 18th July 1901, at the parish of Pentrevoelas, in the county of Denbigh, between the beginning of the last hour before sunrise and the expiration of the first hour after sunset, unlawfully and wilfully did take fish called trout, then being found in a certain stream of water there wherein Colonel Wynne Finch then had a private right of fishery, and not running through or being in any land adjoining or belonging to the dwelling-house of (a) Reported by W. W. ORR, Esq., Barrister-at-Law

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any person being the owner of the water or having the right of fishing therein contrary to the form of the statute in such case made and provided.

The justices, after hearing the evidence and the parties, adjudged that each of the defendants for his offence should pay the sum of 5s., and to the informant 3s. 1d. for costs.

The following facts were proved by the inform ant's evidence:

That the informant had been a gamekeeper in the employ of Colonel Wynne Finch for over twenty-one years, and that Colonel Finch claimed a right of fishery in the river Cadnant which flows through a certain farm called Maesmerddyn, belonging to Colonel Pinch, and in the occupation of one David Jones, in whose employ all the defendants were on the date in question; that the defendants (except Hugh Jones) caught with their hands certain trout in the river; that the defendant Hugh Jones did not fish at all, but took part by carrying fish caught and the coats of the other defendants; that Colonel Finch had given David Jones, the tenant of the farm, permission to fish in certain waters on the farm, but not those by which the defendants were seen.

It was contended on behalf of the defendants that Colonel Wynne Finch was not the owner of the fishery rights, and the agreement signed by Colonel Wynne Finch's agent and David Jones, the tenant of the farm, was produced and admitted by the informant, from which it appeared that the game rights were reserved to Colonel Wynne Finch, but no mention was made of the fishery rights, and it was submitted on behalf of the defendants that the informant's statement of opinion that the fishery right belonged to the landlord was no evidence of the fact.

The defendant's solicitor, after the close of the case for the prosecution, having addressed the court, desired to call Hugh Jones, one of the defendants, but on the advice of their clerk the justices declined to hear him, the five defendants having been summoned jointly, and no appli cation having been made to the court at the commencement of the hearing.

The defendant's solicitor stated he was the only witness he proposed to call, although he had subpoenaed David Jones, the tenant of the farm whose agreement of tenancy had been admitted by the informant on behalf of the prosecution. The landlord's agreement of tenancy was proved by the defendants' solicitor in cross-examination of the informant.

The question for the opinion of the court was whether upon the facts of the case above stated the decision of the justices was erroneous in point of law.

Sect. 24 of the Larceny Act 1861 (24 & 25 Vict. c. 96), provides:

Whosoever shall unlawfully and wilfully take or destroy any fish in any water which shall run through or be in any land adjoining or belonging to the dwellinghouse of any person being the owner of such water, or having a right of fishery therein, shall be guilty of a misdemeanour; and whosoever shall unlawfully and wilfully take or destroy, or attempt to take or destroy, any fish in any water not being such as herein before mentioned, but which shall be private property, or in which there shall be any private right of fishery, shall on conviction thereof before a justice of the peace, forfeit and pay, over and above the value of the fish taken or destroyed (if any), such sum of money, not exceeding five

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pounds, as to the justices shall seem meet; Provided that nothing hereinbefore contained shall extend to any person angling between the beginning of the last hour before sunrise and the expiration of the first hour after sunset; but whosoever shall by angling between the beginning of the last hour before sunrise and the expiration of the first hour after sunset unlawfully and wilfully take or destroy, any fish in any such water as first-mentioned, shall, on conviction before a justice of the peace, forfeit and pay any sum not exceeding five pounds, and if in any such water as last-mentioned, he shall, on the like conviction, forfeit and pay any sum not exceeding two pounds as to the justice shall seem meet.

R. M. Montgomery for the appellants.-The conviction, which was under sect. 24 of the Larceny Act 1861, was wrong upon four grounds. First, there was no evidence of the private right of fishery in Colonel Finch as laid in the information; on the contrary, the evidence showed that the right of fishery was in the tenant of the farm, in whose employment all the appellants were, and not in the landlord. Secondly, there was no evidence of mens rea on the part of the appellants, and no evidence that the appellants in taking the fish had any intention of doing any wrong. Thirdly, the facts as proved disclosed a bona fide claim of right, which ousted the jurisdiction of the magistrates; and fourthly, the evidence of oue of the appellants was improperly rejected. The fishing rights passed to the tenant under the lease. The law is thus stated in Paterson's Fishery Laws, p. 67: "In the ordinary case of a lease of lands including waters or streams, the right of fishery is necessarily implied as part of the general right to the soil and water, unless the lessor specially reserve it. If, therefore, there is no special reservation of the right of fishery, the tenant and not the landlord will be the party entitled to the fishery. Properly speaking, the right cannot be reserved by the lease; but, what is practically the same thing, the reservation is construed as a re-grant by the tenant to the landlord." That correctly states the law on the subject, and is borne out by the case which is there cited as an authority for it, the case of Ewart v. Graham (33 L. T. Rep. O. S. 349; 7 H. L. Cas. 331). Halse v. Alder (38 J. P. 407), also shows that the right of fishery is in the tenant under the lease, and it also shows that as there was no evidence of any mens rea on the part of the appellants, the conviction under sect. 24 of the Larceny Act was wrong.

Ellis Griffith for the respondent.-The real point is whether in the case of an agricultural tenancy, where there are no words of any kind in the lease as to the fishing, the right to fish remains in the landlord, or passes to the tenant under the lease. Upon this point there is no direct authority, [Lord ALVERSTONE, C.J.How could the landlord go on to the lands and fish, unless the right was given to him or reserved to him by the lease ?] He could do so in the same way as he could go on to the land to dig for minerals. Although I can find no authority to show that the passage cited from Paterson's Fishery Laws is not good law, yet there is no authority to show that it is good law. The fishery rights are still in the landlord; and there is no case which goes so far as to say that where a lease of land for agricultural purposes says nothing about the right of fishing such right passes to the tenant. The text-books are against this conten

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tion, but there is no authority to support the statements in the text-books. The right view to take of this tenancy is that the tenancy was for agricultural purposes, and that the tenant had no rights over this stream except for agricultural purposes, and therefore no fishing rights. A guilty intention is not necessary to constitute an offence under this section, and the fact that the appellants acted under the bona fide belief that they had a right to take the fish is no defence:

Hudson v. Macrea, 9 L. T. Rep. 678; 4 B. & S. 585. He referred to

Moore v. Earl of Plymouth, 7 Taunt. 614;
Halse v. Alder (ubi sup.)

Lord ALVERSTONE, C.J.-The appellants in this case were convicted under sect. 24 of the Larceny Act 1861, of unlawfully and wilfully taking fish in a certain stream, which fish were alleged to be in a fishery belonging to Col. Wynne Finch. There was no evidence of any previous grant or of any reservation of this fishery. I think the law on the point is correctly stated in Paterson's Fishery Laws in the passage that has been read-namely, that the right of fishery goes to the tenant under the lease, and for the very good reason given by Paterson that the lessor could not, without express power being reserved, come on the lands or to the banks of the stream to exercise the rights of fishing. That being so, it seems to me that there is an end of the case, and I think it right to say that these men seem to have been fishing with the leave and licence of the tenant. It is, however, enough to say that there was no evidence of any unlawful taking of the fish on which to convict the appellants. This conviction must therefore be

quashed.

DARLING, J.-The evidence in this case showed that the right of fishing was in the tenant of the farm. There was no evidence to show that it was in Colonel Wynne Finch, and therefore on that ground the summons must have failed. The evidence also went to show that the appellants thought that they were not doing any wrong. The presumption was that they were not doing anything unlawful, and there was no evidence to rebut that presumption.

CHANNELL, J.-I also think that the right of fishing in this stream was in the tenant of the farm; but, supposing there is a doubt about that, it clearly was not in the landlord. By an ordinary lease of land the soil and banks of a river clearly pass to the tenant, and that prevents the landlord going there for the purpose of fishing unless there were a reservation in the lease permitting him to go there, and therefore that prevents the landlord from taking the fish. The right to take the fish depends entirely on the possession of the soil, and therefore it is quite clear that it is not the fishery of the landlord, because he has no right to go there at all unless he reserves it.

Appeal allowed. Conviction quashed. Solicitors for the appellants, Lloyd-George, Roberts, and Co., for Lloyd-George and George, Criccieth.

Solicitors for the respondent, Paterson, Snow, Bloxham, and Kinder, for James and Humphreys, Llanrwst.

66

Under statutory powers enabling a corporation to make bye-laws for regulating the selling or hawking of any article on their beach and foreshore, the corporation made a bye-law that: A person shall not on the said beach or fore. shore sell or hawk or offer or expose for sale any article, commodity, or thing, except in pursuance of an agreement with the corporation, and in such part or parts of the beach and foreshore as the corporation shall by notice affixed or set up thereon from time to time appoint for the purpose."

Held, that the bye-law was unreasonable and bad on the ground that it gave the corporation power to make any agreement they chose without reference to the question of the reasonableness or unreasonableness of such agreement, and that it reserved to them a right to refuse to give a licence to any particular person.

CASE stated by justices of the peace for the county borough of Bournemouth in the county of Southampton.

At a petty sessions held at Bournemouth on the 6th Sept. 1901, an information was preferred by the mayor, aldermen, and burgesses of Bournemouth (the respondents) againt Henry Parker of Poole in the county of Dorset, hawker (the appellant) charging the appellant " that he, on the 5th Aug. 1901 within the borough of Bournemouth, did unlawfully sell, hawk, offer, and expose for sale upon the beach and foreshore then in the possesion and occupation of the corporation of the said borough certain articles and things-to wit, cockles and winkles-otherwise than in pursuance of an agreement with the said corporation."

This information was heard and determined by the justices, and upon such hearing they convicted the appellant.

The information was laid under No. 3 of the Bye-laws made by the corporation of Bournemouth "for the regulation of the beach and foreshore under the powers given by the Local Government Board's Provisional Orders Confirmation (No. 10) Act 1890 (53 & 54 Vict. c. clxxix.)," which in the schedule provided with regard to Bournemouth :

The commissioners may from time to time make bye-laws for all or any of the following purposes (that is to say): For regulating the erection or placing on the beach and foreshore within the district for the time being in their possession or occupation of any booth, tent, shed, stand, stall, show, exhibition, swing, roundabout, or other similar erection and generally

for regulating the user of the said beach and foreshore or any part thereof. For regulating the selling and hawking of any article, commodity, or thing on the said beach and foreshore. For the preservation of order and good conduct among persons frequenting the said beach and foreshore.

(a) Reported by W. W. ORR, Esq., Barrister-at-Law.

Bye-law No. 3 was "for regulating the selling and hawking of any article, commodity, or thing on the said beach and foreshore," and provided:

A person shall not on the said beach or foreshore sell or hawk, or offer, or expose for sale any article, commodity, or thing except in pursuance of an agreement with the corporation, and in such part or parts of the beach and foreshore as the corporation shall by notice affixed or set up thereon from time to time appoint for the purpose.

For the respondents the beach keeper in the employment of the respondents and a police constable gave evidence.

The beach keeper stated that he was in the employment of the corporation, and that his duty was to take charge of the beach near the pier: that on Monday the 5th Aug. last (being a bank holiday) he had a portion of the beach allotted for stalls about 300 yards west of the pier; that about noon, after regulating the stalls, he saw the appellant near the refreshment rooms on the beach east of the pier, and that he had a barrow on which were cockles and winkles; that he asked the appellant to remove his barrow to the proper place along the shore where the other stalls were; that the appellant said he would remain where he was, and that he would give his name and address, and that the beach keeper could summon him; that he (the beach keeper) saw him in the evening with his barrow in the same position as the morning, and that he saw him selling cockles there. He further stated that there was a place set apart for stalls; that no notice was put up, but he thought they all knew it; that several persons close to where the appellant was standing had corporation licences; and that he should not have objected if the appellant had had a licence; that a difference was made on bank holiday, and freer access was allowed on ot her days, and that no one was allowed to stand between the refreshment rooms and the pier where the appellant was. The constable gave similar evidence.

The appellant stated that he was a fish hawker, and that he had carried on the same business for some four or five times each year for twenty years on the same spot on the beach as he did on the day in question, and that he was selling winkles and cockles on that day, and that he had applied for a licence to the Bournemouth Corporation, but was refused.

Another witness stated that he had for twentyfive years sold on the same spot where the appellant was charged with selling on, and that he had never applied for a licence.

It was contended for the appellant (1) that the bye-law was bad as being beyond the powers conferred upon the respondents and was unreasonable, and that the bye-law, if good, could not be enforced unless and until some part or parts of the beach and foreshore had been apportioned by the respondents for the purpose of persons selling or hawking, or offering or exposing for sale any article, commodity, or thing, and notice thereof had been affixed or set up on the beach and foreshore, as provided by the bye-law; (2) that the information did not disclose any offence; (3) that there being no evidence that any part of the beach or foreshore had in fact been set aside by the respondents, or that notice of such setting aside had been affixed and set up, the appellant could not be convicted under the bye-law; and (4) that the appellant had in good faith claimed a right to

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do the act complained of, and that therefore, the justices had no jurisdiction.

The justices overruled the appellant's contentions, and held that the bye-law was reasonable and valid; that the offence was sufficiently set out in the information, which disclosed an offence-namely, a breach of the third bye-law; that the appellant did, as alleged in the information, sell, hawk, offer, and expose for sale upon the beach and foreshore certaian articles and things otherwise than in pursuance of an agreement with the corporation, and that the claim of right set up by the appellant was unreasonable, and such as could not exist in law.

They therefore convicted the appellant and imposed a fine of 2s. 6d. and 14s. costs, and in default of distress fourteen days imprisonment.

The question for the opinion of the court was whether the justices came to a correct determination and decision in point of law.

S. H. Emanuel for the appellant.-The point is as to the right to sell and hawk articles on the beach, and raises the question as to the validity of bye-law No. 3, which was made under sect. 1 of the provisional order 1890. The bye-law is invalid, as it gives the corporation power to make any agreement they please reasonable or unreasonable. The bye-law was made under a power for regulating the sale on the beach, and not for prohibiting it altogether, and until the corporation have put up a notice they cannot prevent the appellant from selling on any part of the beach. If the view of the corporation were correct the bye-law would be one for prohibiting the sale altogether, and not merely for regulating it. The corporation never set up any notice at all, and never set apart any part of the foreshore as mentioned in the bye-law, so that the appellant was summoned for that which is not offence under the bye-law, unless and until there has been a place set apart by notice. The byelaw is ultra vires and bad, and the conviction under it ought to be quashed.

an

Clavell Salter for the respondents.-A very similar bye-law was considered in Gray v. Silvester (61 J. P. 724), and was held to be valid. [Lord ALVERSTONE, C.J.-That is a very different

case.

There seems to be nothing there as to the making of an agreement.] The provision requiring an agreement is nothing more than a provision for the regulation of the sale. The corporation had power under the provisional order to regulate the selling of any articie on the beach, and under that power they would be entitled to make a bye-law regulating not only the places where the selling might be carried on, but also the persons who might be allowed to sell, so that the requiring an agreement from such persons would be in accordance with the powers conferred upon the corporation. [CHANNELL, J.-The byelaw does not merely regulate the sale; it says that a person who has not made an agreement with the corporation shall not sell. It does not say what the agreement is; if the agreement were set out in the bye-law, and were unreasonable then the bye-law would be invalid, and it would seem to be equally so if it required an agreement, and left it to the corporation to say what the agree ment should be. It must be assumed that any agreement required by the corporation, who are owners of the beach, would be reasonable, and MAG. CAS.-VOL. XX.

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therefore the bye-law is not rendered invalid by that provision requiring an agreement.

Lord ALVERSTONE, C.J.-We are clearly of opinion that this conviction cannot be supported. The appellant was summoned because he sold cockles on the beach without having an agreement with the corporation. I express no opinion as to the last point raised by counsel for the appellant, whether, before any person could be summoned under the bye-law, a part of the beach or foreshore must be marked out by the corporation by a notice affixed thereon. The appellant was not summoned under that part of the byelaw; he was summoned for selling otherwise than in pursuance of an agreement with the corporation. I think that the bye-law under which the appellant was summoned is bad for the reason that it withdraws altogether from those who may have to interpret it and consider its validity any question as to whether the agreement referred to in it is a reasonable agreement or not. It puts it in the power of the corporation to make any agreement they like; and the question which we have to consider is whether a bye-law which reserves to the corporation the right to refuse any particular person is on the face of it a good bye-law. I think it is not. The corporation can, of course, deal with the matter by altering the bye-law. I think that this bye-law was not warranted by the Provisional Order, and that this conviction ought therefore to be quashed. DARLING, J.-I am of the same opinion. CHANNELL, J.-I am of the same opinion. Appeal allowed. Conviction quashed. Solicitors for the appellant, Speechly, Mumford, Rodgers, and Craig, for Lamport and Bassitt, Southampton.

Solicitors for the rspondents, Lovell, Son, and Pitfield, for J. and W. H. Druitt, Bournemouth.

Feb. 28 and March 3, 1902. (Before Lord ALVERSTONE, C.J., DARLING and CHANNELL, JJ.)

LONDON AND INDIA DOCKS COMPANY (apps.) v. MAYOR, ALDERMEN, AND COUNCILLORS OF THE BOROUGH OF WOOLWICH (resps.) (a) Rating-Metropolis-Woolwich-Partial exemption of land covered with water—Continuation of exemption under London Government Act 1899 -Land covered with water not separately assessed in valuation list-Appeal to quarter sessions against rate-Right to appeal without objecting before assessment committee to valuation list-London Government Act 1899 (62 & 63 Vict. c. 14), ss. 10, 19—Poor Relief Act 1743 (17 Geo. 2, c. 38), s. 4.

Prior to the London Government Act 1899 the district of Woolwich was subject as to rating to the Public Health Act 1875, and general district rates therein were made under sect. 211 of that Act, under which the occupiers of land covered with water were assessed to general district rates at one-fourth only of the net annual value of such lands. The London Government Act 1899, in sect. 19, sub-sect. 1, provided that a scheme under the Act should provide for (a) Reported by W. W. ORB, Esq., Barrister-at-Law.

3 R