The King (at the prosecution of James Joseph Duggan) v The County Court Judge and Chairman of Quarter Sessions of Fermanagh

• Jurisdiction: Ireland
• Court: King's Bench Division (Ireland)
• Judge: K. B. Div.
• Judgment Date: 21 December 1908
• Date: 21 December 1908

The King (at the Prosecution of James Joseph Duggan)

and

The County Court Judge And Chairman of Quarter Sessions Of Fermanagh (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.

1909.

Licensing Acts — Surrender of interest in licensed premises by lessee — Letting to another tenant — Ad interim order made at petty sessions — Transfer refused at Quarter Sessions on the ground that new tenant had no interest in the license — “Transfer of license,” meaning of — 6 Geo. 4, c. 81, s. 21 — 18 & 19 Vict. c. 114, s. 1 — 37 & 38 Vict. c. 69, s. 12.

Held, by Lord O'Brien, L.C.J., and Madden, J., that there was no authority in the Petty Sessions to grant the ad interim transfer on the 25th April, 1908, there being neither removal, sale, nor assignment within the meaning of 6 Geo. 4, c. 81, sect. 21, or of the 18 & 19 Vict. c. 114, sect. 1; that when D. came before the Quarter Sessions on the 17th June with an application for a transfer, what he relied upon was an unauthorized license or authority from the Petty Sessions which was in no way binding on the Quarter Sessions; and that the Chairman was right in holding that at that date D. had no interest in the license.

Held, also, that when D. came before the Quarter Sessions in October, with an application for a transfer and confirmation, there was nothing to transfer or confirm, and that the Chairman was right in his adjudication, both as to the application for a transfer and the application for a new license.

Per Lord O'Brien, L.C.J.: If the application at Quarter Sessions, as distinguished from that at Petty Sessions, was for a transfer of L.'s so-called license, she was not a duly licensed person, and whatever she had she allowed to lapse.

Held, by Gibson, J., that the possession of an interim protection order from Petty Sessions, or of a temporary license under section 12 of the Act of 1874, formed no part of D.'s qualification to apply for a transfer at the October Sessions; that D., under his lease, represented derivatively M.'s interest by assignment or upon removal; that his application at October Sessions, in the absence of statutory objection, should have been granted, and that “no rule” was an invalid adjudication, and should be quashed; but that, as no legal advantage could result to D. from quashing the June adjudication, the conditional order in respect thereof should be discharged.

Held, by Kenny, J., that D. had such an interest in the premises and license as constituted him a transferee within the meaning of the transfer sections of the Acts; that his claim need not be based upon a direct and immediate dealing with a licensed person, and that he was entitled to his certificates at both June and October Sessions.

The meaning of “transfer of license” discussed.

The Court refused the application with reference to the order made in June, Kenny, J., dissenting; and, being equally divided as to the application relating to the October order, made no rule.

By indenture of lease bearing date the 12th June, 1902, Macardle, Moore, & Co. demised to Rosina Maguire a licensed

house and premises situate at Maguiresbridge, in the county Fermanagh, for fifty years, there being at the date of the lease a full publican's license attached to the premises. Rosina Maguire duly applied for and obtained at the annual Licensing Quarter Sessions held at Newtownbutler on the 22nd October, 1907, a certificate to entitle her to receive a publican's license, and in pursuance thereof she took out in her own name a license for the premises from the 10th October, 1907, to the 10th October, 1908. By deed of the 23rd January, 1908, Rosina Maguire surrendered the premises and the license to Macardle, Moore, & Co. Macardle, Moore, & Co. then agreed to sub-let the premises to a Mrs. Lillis. A written agreement was entered into, which was executed by Mrs. Lillis, but never stamped, as Mrs. Lillis, after obtaining a transfer of the license at Petty Sessions on the 8th February, 1908, decided not to take the premises, and signed the license, and handed same over to Macardle, Moore, & Co. By indenture dated the 21st April, 1908, Macardle, Moore, & Co. accepted Jas. Joseph Duggan, the prosecutor, as tenant of the premises, and about the same date handed over to him possession of the premises and of the license. On the 25th April, 1908, Duggan applied at Petty Sessions for a temporary transfer of the license to him, and the Justices granted him a protection order in the following terms:—

James joseph duggan, of Derrylin, Complainant;

All Whom it May Concern, Defendant.

PETTY SESSIONS DISTRICT OF LISNASKEA, CO. FERMANAGH.

I certify that, upon hearing of a complaint that the said James Joseph Duggan requests he may be granted a transfer of the spirit license as now held by Rosina Maguire, at Maguiresbridge, in said District and County, an order was made on the 25th day of April, 1908, by the Justices present, for the said James Joseph Duggan, of Derrylin, to the following effect, viz.:—

Protection Order granted.

(Signed), Geo. Arnold, Justice of said County.

This 24th day of June, 1908.

On the 13th May, 1908, Duggan served notice of his intention to apply to the Quarter Sessions for transfer in the following terms:—

Take Notice that it is my intention to apply at the next General Quarter Sessions of the Peace, to be held at Newtownbutler, in and for the Division of Newtownbutler, and County of Fermanagh, on the 17th day of June next, for a Certificate to entitle me to receive a transfer of a license to sell beer, cider, and spirits by retail, at my house situate on the west side of the Main Street of the town of Maguiresbridge, townland of Tattenderry, parish of Aughalurcher, barony of Magherastephens, and county of Fermanagh, formerly in the occupation of Mary Margaret Lillis, and in which I reside.

Dated this 13th day of May, 1908.

James Joseph Duggan,

Applicant, Maguiresbridge.

B. Leslie Winslow,

Solicitor for Applicant, Enniskillen.

To W. G. Henderson, Esq., J.P., Maguiresbridge;

James Murphy, Esq., J.P., Maguiresbridge;

J. W. Hanrahan, Esq., Clerk of the Crown and Peace, Peace Office, Enniskillen;

And to D. Murnane, Esq., D.I., R.I.C., Leraw, Lisnaskea.

The application came before the Quarter Sessions at Newtownbutler on the 17th June, 1908. The County Court Judge adjudicated alone, and held that he had no jurisdiction to entertain the application on the ground that Duggan had no interest in the license. The following was a copy of the entry:—

No.	Names of Applicants and Situation of Houses.	Witnesses' Names and Particulars of Publication of Notices.	Decision of Court.
Winslow.1	James Joseph Duggan, Main Street, Maguiresbridge, parish Aughalurcher, and barony Maghera-stephens.	Transfer. Kettle service. Notices correct. S. C. Solicitor, for Rector of Parish, opposes, on grounds of unfitness of premises and unfitness of applicant, and that the applicant has no interest in the license. Applicant sworn; Peter Carroll; Sergeant Thos. Carroll; Deed 21 April, 1908, Macardle & Co. to applicant; D. Murnane, D.I.	Refused, on the ground that the applicant has no interest in the license. No rule on the other grounds; decision on them being unnecessary.

Upon these facts a conditional order was made by Boyd, J., on the 23rd July, 1908, for a writ of certiorari directed to the Chairman and Justices of Fermanagh to bring up to be quashed the aforesaid adjudication on Duggan's application for a transfer of the spirit license held by Rosina Maguire in respect of premises situate at Maguiresbridge in said county, and for a writ of mandamus directed to the Chairman, commanding that he do enter continuances upon, and do proceed to rehear and determine the application on the grounds, as to the certiorari—(a) That said order is made without and in excess of jurisdiction; (b) that the said County Court Judge declined jurisdiction; (c) that said order is bad upon its face; (d) that the said application was in order, and should have been entertained.

Cause was shown against the motion to make absolute the foregoing conditional order by District-Inspector Murnane, who stated that the next Quarter Sessions after the expiration of a month from the ad interim transfer obtained by Mrs. Lillis on the 8th February, 1908, commenced on the 3rd April, and no application was made for confirmation of the said transfer. Mrs. Lillis having decided to emigrate, did not serve notice of intention to apply to the Quarter Sessions for the transfer, but she continued to reside in the house, and to open it for the sale of her stock until the 2nd April, 1908, inclusive, but ceased to open it or trade from the 3rd April, 1908. She did not leave the premises until the 16th April, 1908. The County Court Judge held that the transfer to Mrs. Lillis was good up to the ensuing Sessions, but not afterwards; and the notice of application to Quarter Sessions was for a transfer of a license of a house formerly in the occupation of Mrs. Lillis. He further held that there was no evidence of a transfer to Duggan from Rosina Maguire direct.

While the case was at argument it transpired that at the Sessions held at Newtownbutler on the 20th October, Duggan applied for a transfer and confirmation of the license lately held by Rosina Maguire, and also applied in the alternative for a new license. The County Court Judge stated, according to the affidavit of Mr. Winslow, Duggan's solicitor, that he would not allow the case to be proceeded with, that he had already given his decision at the June Sessions, and he understood proceedings were taken

for certiorari and mandamus, and that the present application for a transfer and confirmation of the license was a most improper proceeding, and he would not permit the application to be considered by the magistrates, and he accordingly made...