Dumigan, Appellant; Walsh, Respondent

• Jurisdiction: Ireland
• Judgment Date: 27 January 1904
• Date: 27 January 1904
• Court: King's Bench Division (Ireland)

Dumigan

Appellant

and

Walsh

Respondent (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1904.

Licensing Acts — Sale of intoxicating liquors — Assignment of licensed premises — Ad interim order made at Petty Sessions — Transfer refused at Quarter Sessions on ground of character of applicant and unsuitability of premises — Re-assignment to original licensee — 35 & 36 Vict. c. 94, s. 3 — 18 & 19 Vict. c. 114 — 3 & 4 Wm. 4, c. 68, s. 4 — 37 & 38 Vict. c. 69, s. 12, sub-s. 1.

A held a publican's license for the period of twelve months from the 10th October, 1902, in respect of certain premises which he held under lease for a term of years, subject to a mortgage. In February, 1903, A and the mortgagees executed a deed, assigning the premises, license, and goodwill to B, who executed a fresh mortgage to the same mortgagees. A also purported to assign the license to B by endorsement. A gave up possession to B, who obtained the usual ad interim order at Petty Sessions, to remain in force until the next (April) Quarter Sessions, and B proceeded to carry on the trade of a publican in the premises. In April, 1903, shortly before the Quarter Sessions, B was convicted of an offence against the licensing laws. At the April Quarter Sessions the police opposed the transfer of the license to B, and the Justices refused to grant it, on the grounds of the unsuitability of the premises and the character of the applicant. B then conveyed all his interest in the premises, license, and goodwill to the mortgagees, who subsequently, on the 16th May, 1903, let the premises to A for six months. A went back into possession, and resumed his trade as a publican. He was summoned, under section 3 of the Licensing Act, 1872, for having, on the 26th May, 1903, sold intoxicating liquors without being duly licensed:—

Held, that A was not liable to be convicted of the offence.

Case Stated by the Justices of the county of Armagh, under 20 & 21 Vict. c. 43.

The following statement of the facts is taken from the judgment of Wright, J.:—

“The defendant was summoned under sect. 3 of the Licensing Act, 1872, for having, on the 26th of May, 1903, at Keady, in the county Armagh, at his residence in Main-street, Keady, sold by retail intoxicating liquor without being duly licensed to sell the same. At the hearing the majority of the magistrates were of opinion that, upon the evidence, the defendant ought to be convicted, but, at the request of his solicitor, stated a case for the opinion of this Court, as to whether they were correct in point of law in their determination. The facts, which are uncontradicted, may be shortly stated. The defendant Dumigan held an ordinary publican's license, for sale by retail of intoxicating liquors in the house and premises in Main-street, Keady, mentioned in the summons, for the period of twelve months from October 10th, 1902, and occupied the house and carried on the business of a publican in it down to the 13th of February, 1903. He had previously, by deed, mortgaged the house and premises (which were held by him under a lease for a long term of years), license, and goodwill of the business, to Messrs. J. & J. M'Connell of Belfast, distillers, and on this mortgage there was due on the 13th February, 1903, the sum of £500. By deed of that date Messrs. J. & J. M'Connell, as mortgagees, and Dumigan, as mortgagor, in consideration of the sum of £500, stated to have been paid by Bernard Doherty to the mortgagees, assigned to Doherty the licensed premises and the license and goodwill of the business of publican; and, by another deed of the same date, Doherty mortgaged to Messrs. M'Connell the licensed premises, license, and goodwill of the business, to secure the sum of £450. On the same day Dumigan gave up to Doherty possession of the house, and went to live elsewhere. He also purported to assign the license to Doherty, by endorsement dated the 14th of February. On the 16th of February Doherty obtained from the magistrates at Petty Sessions a transfer of the license, under section 1 of the 18 & 19 Vict. c. 114, to remain in force until the next Quarter Sessions for the district next after the expiration of one calendar month from that date, which were fixed for the 22nd of April, 1903. Under this order Doherty, who was in possession and occupation of the licensed house, carried on the business of a publican during the months of February, March, and April. On the 16th of April, 1903, Doherty was convicted by the Justices at Petty Sessions of a breach of the licensing laws. On the 22nd of April his application for a transfer came on to be heard at Quarter Sessions, was opposed by the police on two grounds, and on both grounds—namely, unsuitability of the premises and character of the applicant—was refused. Immediately afterwards, and obviously in consequence of this refusal, Doherty by deed of the 29th April, 1903, released and, as beneficial owner, conveyed, to Messrs. M'Connell all his estate and interest—in other words, the equity of redemption—in the licensed premises, the license, and the goodwill of the business of publican. On the 3rd of May Dumigan, who for over two months had been out of possession, was put back by Messrs. McConnell as weekly tenant to them, and on the 16th of May, 1903, the house was let to him, under an agreement in writing of that date, for six months from the 1st of May, at the yearly rent of £20. Dumigan, having got back into possession of the house, claimed the right to sell under the license granted to him in the previous October, and the summons in the present case is for selling there on the 26th of May, he not being a duly licensed person (sect. 3 of the Licensing Act, 1872). On these facts the majority of the Bench decided that the endorsement of the Justices in Petty Sessions on the 16th of February transferred the license to Doherty, and that Doherty having been refused a certificate at Quarter Sessions on the 22nd of April, the license was null and void, and convicted Dumigan; and the case has been stated for this Court to determine was such conviction right.”

William M. Magrath (with him Henry, K.C.), for the appellant, the defendant below:—

The license was in Dumigan until October, 1903; a license once granted, can only be taken away under the provisions of some statute. The order made at Petty Sessions under 18 & 19 Vict. c. 114, s. 1, though called a transfer, is merely an authority to carry on the business of a publican until the next Quarter Sessions: under that order, Doherty did not become a licensed person: Andrews v. Denton (1); Lawrence v. O'Hara (2); Re Deighan (3); Brown v. Watson (4); Price v. James (5). The proviso at the end of section 2 of that Act, that the person authorized to carry on the business is to be subject to the penalties and provisions of the Licensing Acts, shows that such person does not by the order made under section 1 become a licensed person, since if he did that proviso would be unnecessary. Under section 1 the magistrates have power to authorize any person to carry on the business independently of title or possession, the only restriction being that he is “not disqualified by law.” These words refer to the disqualifications imposed by 3 & 4 Wm. 4, c. 68, section 13, and 6 & 7 Wm. 4, c. 38, section 2. The attempt to transfer the license by the deed of the 13th February, 1903, was a mere nullity. A license can only be transferred by the Excise authorities. Until the person to whom the license is purported to be transferred obtains a license from the Excise authorities in pursuance of the certificate mentioned in section 5 of 3 & 4 Wm. 4, c. 68, he does not become a licensed person. Doherty never was a licensed person; the license remained in Dumigan. Dumigan was, on the 26th May, 1903, in possession both of the license and of the premises to which it was attached; he cannot therefore be convicted for selling on that date intoxicating liquors without being duly licensed. [He referred to Kelly v. Montague (6).]

The Solicitor-General (Campbell, K.C.), and Cecil Atkinson, for the respondent, the complainant below:—

Having regard to the decision of the Court of Appeal in In re Deighan (3), we do not propose to argue that Doherty became a licensed person by virtue of the order made at Petty Sessions. Our contentions are—first, that Dumigan having by his own act determined his connection with the premises, and a new interest having supervened, the license, so far as he is concerned, was gone, and he ceased to be a licensed person. A license is a personal privilege attached to the premises; where the interest in respect of which that privilege was originally obtained has been parted with,

the personal privilege is forfeited: The Queen v. Justices of Tipperary (1), per Fitz Gibbon, L.J.; The Queen v. Justices of Cork (2), per Holmes, L.J. The interest in respect of which Dumigan obtained the license was an interest for a long term of years: that interest was never revived; the interest under which he went back into possession was a new interest for a term of six months. To entitle him to resume trading it was necessary he should apply to the magistrates either for a new license or a transfer. In Andrews v. Denton (3) there was no break in the possession; the respondent remained on in possession for some time after the protection order was granted, and it was while he was so in possession that the alleged unlawful selling took place. In Lawrence v. O'Hara (4) no fresh interest had supervened during the interval while the appellant was out of possession, and this fact is referred to by Lord Alverstone, C. J., in his judgment as reported in the Solicitors' Journal. In Brown v. Watson (5), Mrs. Watson was not a party to the transfer in any way. [They referred to M'Donald v. Hughes (6); Ex parte Todd (7).]

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