The Queen (at the prosecution of Brannigan) v The Chairman and Justices of The County of Antrim

• Jurisdiction: Ireland
• Judgment Date: 28 February 1879
• Date: 28 February 1879
• Court: Queen's Bench Division (Ireland)

Q. B. Div.

Before MAY, C. J., O'BRIEN and FITZGERALD, JJ.

THE QUEEN (AT THE PROSECUTION OF BRANNIGAN)

and

THE CHAIRMAN AND JUSTICES OF THE COUNTY OF ANTRIM

Ex parte ToddELR 3 Q. B. D. 407.

Macbeth v. Ashley L. R. 2 Sc. App. 352.

The Queen v. SykesELR 1 Q. B. D. 52.

The Queen v. De RutzenELR 1 Q. B. D. 55.

The Queen (Clitheroe) v. The Recorder of DublinUNKIR I. R. 11 C. L. 412.

The Queen (Dempsey) v. The Justices of AntrimUNK 9 Ir. L. T. 156.

The Queen (Kinsella) v. The Justices of WicklowUNKIR I. R. 11 C. L. 59.

Clitheroe's CaseUNK Ir. R. 11 C. L. 412.

The Queen v. SykesELR 1 Q. B. Div. 53.

Ex parte SmithELR 3 Q. B. Div. 374.

Licensed public-house Transfer Change of tenancy Conditions imposed by magistrates Temporary license 37 & 38 Vict. c. 69, sect. 12, sub-sect. 1; sect. 37 Confirmation of certificate New license "Similar" license Statement of grounds of refusal Number of existing public-houses Certiorari Delay.

230 Ex. Div. 1879. SHERIDAN V. BARRETT. LAW REPORTS (IRELAND). [L. R. I. tiff from now questioning its truth. The plea does not admit that the land is the Plaintiff's : its operation is to prevent the Plaintiff alleging it to be so. We think both the defences good, and overrule the demurrer. FITZGERALD and DOWSE, BB., concurred. Demurrer overruled. Solicitor for the Plaintiff : P. J. Conway. Solicitor for the Defendant : .R. H. Beauellamp. THE QUEEN (AT THE PROSECUTION OF BRANNIGAN) v. Tim CHAIRMAN AND JUSTICES OF THE COUNTY OF ANTRIM (1). Licensing Acts-Licensed public-house-Transfer--Change of tenancy-CondiÂÂtions imposed by magistrates-Temporary license-37 (5- 38 Viet. 0. 69, sect. 12, sub-sect. 1 ; sect. 37-Confirmation of certificate-New licenseÂÂ" Similar " license-Statement of grounds of refusal-Number of existing public-houses-Certiorari-Delay. A. held a licensed public-house as tenant from year to year to C., under an agreement providing that, on the termination of the tenancy, he should hand back the license to C. A. being served. with notice to quit, obtained at the, Licensing Sessions, in October, 1875, a renewal of the license of C.'s premises, and also a new license in respect of other premises, but subject to the condition then imposed upon him by the magistrates, that he should allow the license of C.'s premises to drop. A. gave up possession to C. in November, 1875, together with the renewed license, and thereupon C. let the premises to B., and delivered the license to him. B. was not aware of the condition imposed upon A. Ile paid the duty for the year 1876, and the license was indorsed to him at Petty Sessions, and the transfer confirmed at the following Quarter Sessions in December, 1875, but on the condition, verbally imposed by the magistrates, that he should not apply for a confirmation of the transfer at the ensuing Licensing Sessions. An application by him at those Licensing Sessions (OctoÂÂber, 1876) for a transfer was refused, but the only ground of refusal stated in the entry made by the Clerk of the Peace was the number of existing public-houses, (1) Before MAY, C. J., O'BRIEN and FrrzuERAID, VOL. IV.] Q. B., C. P., & EX. DIVISIONS. 231 which, in The Queen (Clitheroe) v. The Recorder of Dublin, subsequently de- Q. B. Div. cided on the 26th May, 1877, was held. to be an insufficient ground for refusing 1878. a transfer. At the Quarter Sessions in January, 1877, B. obtained an ad in- TuE QUEEN terim certificate for a publican's license to enable him to dispose of his stock, but r. again upon condition that he should not apply for a confirmation of such certi- THE JUSTICES ficate at the Licensing Sessions ; and an application by him for such confirma- OF ANTRIM. tiOU at the ensuing Licensing Sessions (October, 1877) was again refused on the ground of the number of existing licensed public-houses. Upon motion for a certiorari to quash both orders of the Licensing Sessions refusing B.'s applicaÂÂtions : Held, by MAY, C. J., and Faze ERA rn, J. (diss. O'BRrEN, J) :-1. That the application at the Licensing Sessions of 1877 was not for the transfer of a license, but for the confirmation of the ad interim license granted to B. at the preceding January Sessions ; and that it was discretionary with the magistrates to grant or refuse that application. 2. That, though the order of refusal at the Licensing Sessions of 1876 was based upon insufficient grounds, the applicant had. disentitled himself to a certiorari by his delay in disputing the validity of the order,and by his acceptÂÂance of the temporary license in January, 1877, subject to the condition annexed. to it by the magistrates. Per O'BRIEN, J. That the application at the Licensing Sessions of 1877 was not for a " new " license within the definition given by the 37th section of the Licensing Act, 1874, but might properly be regarded under the peculiar cirÂÂcumstances of the case as an application made by the transferree of the preÂÂviously existing license and of the licensed. premises, the word " similar " in that section being used with reference to the different classes of licenses therein enumerated, and. not to the relative duration of the license sought for as conÂÂtrasted. with that previously held.. That the applicant was not precluded in November, 1877, from questioning the validity of the order made at the LicensÂÂing Sessions of 1876, either by lapse of time, having regard to the special circumstances, or by his conduct subsequent to the order; and that the Court could. not act upon the assumption that there were sufficient grounds for the refusal other than those appearing upon the entry made by the Clerk of the Peace. That the magistrates had no power, either when renewing the license of C.'s premises at the Licensing Sessions of 1875, or upon the provisional conÂÂfirmation of the transfer in December of the same year, to impose the condition that a renewal should not be sought at the Licensing Sessions of 1876. MOTION to make absolute a conditional order for a certiorari to bring up for the purpose of being quashed two orders made by the Chairman and Justices of the County of Antrim, in October, 1876, and October, 1877, refusing a certificate for the transfer of a publican's license for certain premises held by the prosecutor. The facts appearing on the affidavits were as follows :-In 1870 232 LAW REPORTS (IRELAND). [L. R. I. Q. B. Div. persons named 3{`Kay purchased premises at Ballycastle, county 1878. Antrim, which had been for many years licensed as a public-house. TILE QUEEN In 1874, they let the premises to 111(Vieker, as tenant from year to TIIEJUSTICES year, under an agreement that the tenancy should be determinable OF ANTRIM. by a six months' notice to quit, and that the license attached to the premises should be given back to the landlord on the determinaÂÂtion of the tenancy, 11(Vicker being repaid a proportion of the duty for any part of the licensing year unexpired. On the 1st of November, 1875, liTicker, whose tenancy had been determined by a notice to quit, gave up possession to the 1PKays. MNicker had previously obtained a new license in respect of other premises, on the condition then imposed by the magistrates, that he should allow the license of the premises held under the 1PICays to drop. He had also obtained a renewal for the year 1876 of the license of the premises held from the IPKays, which he handed over to them on giving up possession. Immediately upon the termination of 1PATicker's tenancy, the NPICays, on the 2nd of November, 1875, let the premises, from year to year, to Brannigan (the prosecutor), who paid the duty for 1876. In December, 1875, on the applicaÂÂtion of Brannigan, WITicker's license was transferred to him by indorsement, at Petty Sessions, pursuant to the 18 & 19 Viet. e. 114 ; and...