c. 49, s. 9.

Any person who, during the time at which premises 37 & 38 Vict. for the sale of intoxicating liquors are directed to be closed by or in pursuance of this Act, sells or exposes for sale in such premises any intoxicating liquor, or opens or keeps open such premises for the sale of intoxicating liquors, or allowing intoxicating liquors, although purchased before the hours of closing, to be consumed in such premises, shall for the first offence be liable to a penalty not exceeding ten pounds, and for any subsequent offence to a penalty not exceeding twenty pounds (a).

to bonâ fide

travellers

and lodgers.

Ib. s. 10.

Nothing in this act or in the principal act contained Saving as shall preclude a person licensed to sell any intoxicating liquor to be consumed on the premises from selling such liquor at any time to bonâ fide travellers or to persons lodging in his house (b): provided, that no person holding a six-day licence shall sell any intoxicating liquor on Sunday to any person whatever not lodging in his house.

Nothing in this act contained as to hours of closing I. shall preclude the sale at any time, at a railway station, of intoxicating liquors to persons arriving at or departing from such station by railroad (c).

If in the course of any proceedings which may be Ib. taken against any licensed person for infringing the provisions of this act, or the principal act, relating to closing, such person (in this section referred to as the defendant) fails to prove that the person to whom the intoxicating liquor was sold (in this section referred to as the purchaser) is a bonâ fide traveller, but the justices are satisfied that the defendant truly believed that the purchaser was a bonâ fide traveller, and further that the defendant took all reasonable precautions to ascertain whether or not the purchaser was

c. 49, s. 10.

37 & 38 Vict. such a traveller, the justices shall dismiss the case as against the defendant, and if they think that the purchaser falsely represented himself to be a bonâ fide traveller, it shall be lawful for the justices to direct proceedings to be instituted against such purchaser under the twenty-fifth section of the principal act.

Proof of ex

ception as to "travellers."

11 & 12 Vict. c. 43, s. 14.

A person for the purposes of this act and the principal act shall not be deemed to be a bonâ fide traveller unless the place where he lodged during the preceding night is at least three miles distant from the place where he demands to be supplied with liquor, such distance to be calculated by the nearest public thoroughfare (d).

(a) This will not apply to the opening of any premises for the sale of non-intoxicating liquors or of refreshments,-nor to grocers and other shopkeepers where other articles than intoxicating liquors are sold, who can keep open at all hours for such purposes, or to sales to travellers or lodgers or railway travellers in any licensed house. Vide sect. 62, as to evidence of sale of liquor and other pertinent observations, Chap. IX., pp. 157, 163, post. See the cases as to selling or keeping open during prohibited hours, with the other cases as to travellers and lodgers in note (b), infra.

(b) This exemption as to travellers and lodgers applies to the whole week, Sundays included; but apparently by an oversight it does not extend to persons or houses or shops licensed to sell intoxicating liquor not "to be consumed on the premises," who will strictly be liable to the penalty in this section. See sect. 25 as to penalty on travellers and other persons found in houses during closing time (Chap. XI.).

(c) This exception of railway stations was previously in the 27 & 28 Vict. c. 64, s. 10, and in no other act, but then it applied to a sale there "between the hours of one and four o'clock in the morning of exciseable liquors or refreshments." [It is still applicable to refreshment-houses in which intoxicating liquors are not sold; see Chap. XIV.] See cases of Fisher v. Howard, and Copley v. Burton, in note (d), infra.

(d) Proof of exception as to "Travellers," &c.] It should be observed at the outset, that before the new act, 35 & 36 Vict. c. 94, it had been decided that the burthen of proving that the persons served with beer, &c. were not travellers was cast upon

دو

c. 49.

the informer. The decisions on this point were given upon 37 & 38 Vict. sect. 14 of the 11 & 12 Vict. c. 43 (the Summary Jurisdiction Act, 1848) which enacts (inter alia), "that if the information or complaint in any such case shall negative any exemption, exception, proviso or condition in the statute on which the same shall be framed, it shall not be necessary for the prosecutor or complainant in that behalf to prove such negative, but the defendant may prove the affirmative thereof in his defence, if he would have advantage of the same;' -as to its application to the repealed acts of 11 & 12 Vict. c. 49 and 18 & 19 Vict. c. 118, the Metropolitan Police Act, 2 & 3 Vict. c. 47, s. 42, which prohibited the sale of beer, &c. on Sundays, "except as refreshment for travellers" or in other like words in the enacting clause. Taylor v. Humphreys (34 L. J. (N. S.) M. C. 1; 11 Law T., N. S. 376), decided that these words which accompanied the description of the offence were not an "exception " within the meaning of this proviso of 11 & 12 Vict. c. 43, s. 14, and that the burthen of proof, that the parties were not travellers, was on the prosecution. This decision was confirmed in the following cases:Davis v. Scrase (38 L. J. (N. S.) M. C. 79; 19 Law T., N. S. 789), Morgan v. Hedger (40 L. J. (N. S.) M. C. 13), and Copley v. Burton (39 L. J. (N. S.) M. C. 141; 22 Law T., N. S. 888); that of Davis v. Scrase, the principal case, being that the information did not negative any exception, &c. within 11 & 12 Vict. c. 43,

8. 14, supra. The enactment of subs. 4 of sect. 51 of 35 & 36 35 & 36 Vict. Vict. c. 94 (see it in Chap XII.) is similar to that, with this ad- c. 94, s. 51. dition, that an "exception, exemption, proviso, excuse or quali

fication, whether it does or does not accompany the description
of the offence
.", "need not be specified or negatived in
the information;" and therefore in our opinion the burden of
proof is now on the defendant.

In Atkinson v. Sellers (5 C. B., N. S. 442; 28 L. J. (N. S.) M. C. 12; 32 Law T. 178), the term "travellers" was held to include persons who travelled a round for pleasure and stopped at a public-house distant five miles from the place where they started from. Each case must, however, be judged by its particular facts; but Cockburn, C. J., said, that "absence from home, whether on pleasure or business constituted a traveller," and this is the view also taken by the Court of Common Pleas in Taylor v. Humphreys (30 L. J. (N. S.) M. C. 242; 4 Law T., N. S. 514); but his going abroad must not be for excessive drinking. Peache v. Colman (35 L. J. (N. S.) M. C. 118) somewhat confirmed the case of Taylor v. Humphreys. The appellant kept a public-house outside the S. Railway Station, which was a mile from S. On Whit-Sunday, after the arrival of several excursion trains, and before half-past twelve in the day, several persons were in his house drinking; two were from S.; but the only evidence as to the appellant's knowledge that they were there was his remark (upon his attention being called to them as they left), that he was not aware persons from S. were there :

Cases on

"travellers" and "open

ing."

In

the court held that the justices were not bound to convict him
on a charge under 11 & 12 Vict. c. 49, s. 1, for having his house
open illegally. A person who has taken a ticket at a railway
station, and is about to start by a railway train from that
"traveller" (Fisher v. Howard, 10 Cox, C. C.
station, is a
144; 34 L. J. (N. S.) M. C. 42; 11 Law T., N. S. 373. See
also Copley v. Burton, infra). With respect to the offence
of "opening" the house at prohibited hours, the case of
Tennant v. Cumberland (1 E. & E. 401) also decided that
evidence of facts (persons drinking in the house when closed)
which prove a sale within the house, does not of itself support a
charge of opening the house for the sale of beer; and that the
fact of the defendant being seen sitting with another man,
having a pitcher and a tumbler on the table containing ale, from
which both drank, is sufficient to justify the magistrates in in-
ferring that there had been a sale of beer; and in convicting
the defendant of selling beer within the prohibited hours.
Cates v. South (1 Law T., N. S. 365), the same court (Q. B.)
has since decided that justices are not warranted in convicting
an inn-keeper for "opening his house for the sale of spirit
under 11 & 12 Vict. c. 49, merely because it is shown that the
front door of the inn was open after twelve o'clock on Saturday
night, although persons were there, and one glass contained
spirit; Cockburn, C. J., stating that the landlord was not bound
to turn his customers out when the clock struck twelve, and the
court appeared to have considered that the charge must be esta-
blished by direct evidence of a sale after twelve o'clock at night,
a distinct opening after that hour, or some act on the part of the
landlord, &c., which would show that the house was wilfully
kept open after that hour for the purpose of inviting persons
in. But now see 37 & 38 Vict. c. 49, s. 9, post, p. 146. In
Overton v. Hunter (1 Law T., N. S. 366), where the only fact
found was, that the defendant had given a supper at his own
expense to his own people and a few neighbours, who were not
travellers or lodgers, after eleven o'clock, and a glass of whiskey,
but there was no sale in fact of any liquors; the court held,
there was not a shadow of a pretence for a conviction. In
Finch v. Blundell (5 Law T., N. S. 672) where a policeman
knocked at the front door of a beer-house within the prohibited
time, and was admitted; in the parlour two lodgers were sitting,
the room was full of tobacco smoke and the table wet with beer;
the policeman went to a closet at the back of the premises, the
door of which was pulled open, and in which were two men who
lived in the neighbourhood, one having a pot of fresh-drawn beer
which he tried to conceal. Both outer doors were found shut,
and the men were not seen to enter the house: it was held that
there was evidence, on which the justices properly convicted the
beer-house keeper of opening his house for the sale of beer con-
trary to 11 & 12 Vict. c. 49, s. 1 (see Smith v. Vaux, 5 Law T.,
N. S. 46). In Petherick v. Sargent (5 Law T., N. S. 48), it

was decided that beer given gratuitously by the landlord is not 37 & 38 Vict. a "sale." See 37 & 38 Vict. c. 49, s. 30, post, p. 147.

A person who walked on a Sunday to a Spa two and a half miles distance from his residence for the purpose of drinking the mineral water for the benefit of his health, and was supplied with ale at an hotel at the Spa before 12.30 p.m. was a traveller within the exception in 11 & 12 Vict. c. 49, s. 1 (Peplow, app., Richardson, resp., L. R., 4 C. P. 168).

A. was charged before justices, under 11 & 12 Vict. c. 49, with having opened his house for the sale of wine and beer on Sunday before half-past twelve o'clock. He kept a refreshmentroom communicating with a railway station. He had a notice thereon as to the penalties incurred in case of persons not travellers having refreshments during the prohibited hours; and he ordered his servants to ask persons seeking to be supplied with refreshments if they were going by train. Eight persons were in the room within the prohibited time, six of them had been questioned, but the servants neglected to question two who came in during the absence of A. Of the eight persons four were strangers, who went off by a train which started shortly after their entering the room, the others resided about a quarter or half a mile off, and three of them took tickets and went off by the train, whilst the fourth had accompanied his son who went by it. The justices having convicted A. for supplying liquors during the prohibited hours, the Court held the conviction wrong and quashed it, intimating that in future in quashing a conviction of this kind they would do so with costs (Copley v. Burton, 39 L J., M. C. 141).

The keeper of licensed premises having been charged with opening his premises for sale of intoxicating liquors during prohibited hours, and persons having been shown to have been supplied with liquor on his premises during such hours; it was proved that an attendant was placed near the premises to prevent any but bonâ fide travellers entering, and that no one was admitted who did not state that he had come more than three miles, and that notices were posted on premises that none but travellers could be admitted, and that during the hours in question none were admitted who did not represent themselves as bona fide travellers :-Held, that the onus of showing that the persons came within the exception lay on defendant. Quære, whether proof on defendant's part of bona fide though mistaken belief that the persons were travellers would have been sufficient (Roberts v. Humphreys, L. R., 8 Q. B. 483; 29 L. T., N. S. 387; 42 L. J., M. C. 147).

c. 49.

The hours must be regulated according to the mean time of the How time place where the offence is committed, and not by Greenwich time regulated. (Curtis v. March, 23 J. P. 663).

Local authorities sometimes have by other enactments power to exempt houses from the hours as to