1903 BELL V. NATIONAL BANK OF Ridley J. company was formed, which took over this business and began to work the distillery. The Commissioners having decided, as a matter of fact, that there was not an identity between the PROVINCIAL business as carried on by the old company and that carried on ENGLAND. by the new, the Court of Exchequer in Scotland determined that the question is one of fact, and that there was nothing to shew that the decision was wrong. Lord M'Laren said: "There may be cases where there is substantial identity, notwithstanding some difference as to the branches carried on, and there may be cases where a new concern carrying on a large business absorbs a small one, and cannot in any legitimate sense be regarded as their successors; but this is a question of fact for the Commissioners." The case of Watson v. Lothian (1) was also quoted, but it does not seem to me to assist the argument, as it turned on another point. But from Ferguson v. Aikin (2) it seems to me to follow that the construction of the rule which I am inclined to take is the correct one. The undertaking or concern must, in the hands of the successors, be the same as it was before. Then, assuming that the business of the Stafford Bank still survives, how can it be said that it is now, in the hands of the National Provincial Bank, the same as it was before the change? There is not, indeed, a new business differing in kind from the former, as distilling whisky differs from blending it, yet it seems to be impossible to say that a business of such volume and character as that of the National Provincial Bank is the same as that which was carried on formerly by the local bank which it absorbed. And the words of Lord M'Laren, quoted above, in which he says, "There may be cases in which a new concern carrying on a large business absorbs a small one, and cannot in any legitimate sense be regarded as their successors," appear to be nearly in point; for in that sentence I do not think there is any emphasis on the word "new," which is merely used as meaning a large business independent of the former concern; "new," in fact, as regards it, but not necessarily new under rule 1 of the first case quoted above. If (2) 4 Tax Cases, 36. (1) 4 Tax Cases, 441. that is correct, the National Provincial Bank in the present case was a new concern absorbing a small one, but it did not succeed to it. 1903 BELL V. NATIONAL BANK OF ENGLAND. Ridley J. The third alternative only remains, and I am of opinion PROVINCIAL that it is the correct view. It may be said that from its adoption it follows that where a bank, as in the present case, acquires by purchase the business of another, the last three years in which the business was carried on escape from the computation which is to be made on the average of the last three years; and that, in the result, the tax is precisely the same as it would have been if the new company had simply started a new branch. But this reasoning appears to be inconclusive; for the question is, How have the rules enacted by s. 100 dealt with the matter? And if they have not provided for those three years to be brought into the computation, that must be the decision of the Court. For these reasons I think the contention of the respondents right, and that the decision of the Commissioners must be affirmed with costs. Judgment for the respondents. Solicitor for the Crown: Solicitor of Inland Revenue. F. O. R. 1903 May 28. EMARY v. NOLLOTH. Criminal Law-Sale of Intoxicating Liquors to Children-Sale by Servant contrary to Instructions of Licensee " Knowingly allows any Person to Sell"-Intoxicating Liquors (Sale to Children) Act, 1901 (1 Edw. 7, c. 27), s. 2. By s. 2 of the Intoxicating Liquors (Sale to Children) Act, 1901, "every holder of a licence who knowingly sells or delivers, or allows any person to sell or deliver, save at the residence or working place of the purchaser, any description of intoxicating liquor to any person under the age of fourteen years for consumption by any person on or off the premises, excepting such intoxicating liquors as are sold or delivered in corked and sealed vessels in quantities not less than one reputed pint for consumption off the premises only," is made liable to penalties. Intoxicating liquor was knowingly sold to a child under fourteen in a bottle neither corked nor sealed by a servant of a licensed person contrary to the express orders and without the knowledge of his master, who was himself in charge of the premises at the time of the sale : Held, that the licence-holder could not be convicted under s. 2 of "knowingly allowing" a person to sell intoxicating liquor to a child under fourteen in a vessel neither corked nor sealed. CASE stated by a metropolitan police magistrate. An information had been laid by the respondent against the appellant under s. 2 of the Intoxicating Liquors (Sale to Children) Act, 1901, charging that he being a person licensed by the justices for the retail sale of intoxicating liquor within the meaning of the Licensing Acts, 1872 and 1874, did unlawfully and knowingly allow a certain person, to wit, James Barnes, to sell intoxicating liquor for consumption off the premises to Alice Bastard, a person under the age of fourteen years, in a vessel which was not corked and sealed and which contained not less than one reputed pint. Upon the hearing of the information the following facts were proved. At half-past one o'clock in the afternoon of Sunday, July 13, 1902, Alice Bastard, a child aged nine years, entered the appellant's licensed premises and placed upon the counter in the bar an empty bottle and one penny and a halfpenny to pay for a pint of porter. The bar was crowded with customers at the 1903 EMARY V. time. The appellant, who was then himself in charge of the premises, was present in another part of the bar, but did not see the child and had no knowledge of any intoxicating liquor NOLLOTH. being sold to her. James Barnes, a barman employed by the appellant, filled the bottle with porter and returned it to the counter, from whence it was taken away by Alice Bastard; the bottle was neither corked nor sealed. The bottle in which the porter was supplied had the appearance of having been sealed on a previous occasion, and it was proved that on all previous occasions on which Alice Bastard had been served with liquor at the appellant's premises she had been served in bottles corked and sealed. The appellant kept posted up in a conspicuous place in the bar a notice in the terms following: "Notice to Employees. Every servant employed at this establishment is expressly forbidden to supply any intoxicating liquors either for consumption on or off the premises to any child who is in his or her opinion under fourteen years of age except in sealed and corked bottles containing not less than one pint." Prior to the sale complained of the appellant had given express instructions to James Barnes similar to the directions contained in the above notice, and had required him to observe and obey them. The magistrate found that James Barnes, in serving Alice Bastard, was acting within the general scope of his employment as the appellant's barman; and further found as a fact that James Barnes, in breach of the appellant's express orders and without his knowledge, had knowingly sold the said pint of porter for consumption off the premises to a person under the age of fourteen years in a vessel neither corked nor sealed, and which contained not less than a reputed pint; he was also satisfied that the appellant had not connived at the sale. On behalf of the appellant it was contended that he had adopted all reasonable means to prevent sales taking place upon his premises in contravention of the Intoxicating Liquors (Sale to Children) Act, 1901, and that the sale complained of had been effected while the appellant was himself in charge of the house without his knowledge and in disobedience to his express orders and directions by an employee to whom the appellant VOL. II. 1903. T 2 1903 EMARY v. NOLLOTH. had not delegated the charge or superintendence of the licensed premises, and that accordingly he could not be convicted of the offence with which he was charged. The magistrate was of opinion that this contention was not well founded in law, and that the appellant was liable under the statute under which he was charged for any act done in contravention thereof upon his licensed premises by his servant, provided such act was within the general scope of his employment, and that the circumstance that the servant acted without the appellant's knowledge and in disobedience to his orders afforded no ground of defence. The question for the opinion of the Court was whether he was right in law in so holding. Danckwerts, K.C. (Bruce Williamson with him), for the appellant. The conviction was wrong. On the facts found in the case the appellant cannot be convicted of "knowingly" allowing the sale by the barman. In the recent case of Brooks v. Mason (1), where the charge was one of delivering, and not merely of permitting the delivery, it was held that the act of selling or delivering intoxicating liquors to children under fourteen was an act prohibited in itself, but that there was an exception in favour of bottles properly sealed, not in favour of bottles which the licence-holder merely believed to be properly sealed. The decisions under s. 13 of the Licensing Act, 1872, as to permitting drunkenness on licensed premises are entirely in point upon the construction of the new statute. In Cundy v. Le Cocq (2) the offence charged was sale to a drunken person, and the Court held that the words of the section amounted to an absolute prohibition of such a sale, and that knowledge that the person was drunk was not an element of the offence. In Somerset v. Hart (3) gaming had taken place upon licensed premises to the knowledge of a servant who was not in charge of the premises, and it was held that the licensee, in the absence of any suggestion of connivance, could not be convicted of suffering gaming under s. 17 of the Act of 1872, and that decision was (2) (1884) 13 Q. B. D. 207. (1) [1902] 2 K. B. 743. (3) (1884) 12 Q. B. D. 360. |