all offences principals. 11 & 12 Vict. c. 43, s. 5. CHAPTER IX. PENALTIES, &C. INCURRED BY LICENSED PERSONS FOR 66 OFFENCES. Accessories to BEFORE giving the enactments in the Licensing Act, punishable as 1872, and other previous acts, attention should be called to the 11 & 12 Vict. c. 43, s. 5, which enacts :Every person who shall aid, abet, counsel or procure the commission of any offence, which is or hereafter shall be punishable on summary conviction, shall be liable to be proceeded against and convicted for the same, either together with the principal offender, or before or after his conviction, -and shall be liable on conviction to the same forfeiture and punishment as such principal offender is or shall be by law liable,and may be proceeded against and convicted either in the county, riding, division, liberty, city, borough or place where such principal offender may be convicted, or in that in which such offence of aiding, abetting, counselling or procuring may have been committed." (See Oke's "Synopsis,” 11th ed., vol. i., p. 129.) 35 & 36 Vict. c. 94. Preliminary observations. (1) Offences punishable under the Licensing Act, 1872, infra. (2) Offences punishable under other Acts, p. 181. (1) Offences punishable under the Licensing Offenders prosecuted under this act cannot be punished under any other (sect. 59, ante, p. 24). The present act does not, therefore, operate as a repeal of other acts imposing different penalties or punishments for the same offences. c. 94. It should be premised, once for all, that, if necessary, 35 & 86 Vict. reference should be made to Chap. I. for the defini- -Definitions tions of the terms used in this division of this Chapter, of terms be-"sale by retail," "intoxicating liquor," "licence," plicable. "licensed person," &c. (see pp. 24—31). Sect. 62, as to evidence of sale given in note (a) to sect. 3, infra, and the decisions under sect. 13, post, p. 163, as to the licensed person's liability for his servant's acts, also bear upon most of the offences in this division of the Chapter. fore given ap convictions and mitiga tion of penalties. As to recording the convictions, forfeitures, disqua--Recording lifications, compelling production of licences, &c. refer- and recovery ence must be made to Chap. X. for the provisions in detail; and for the mode of recovery of all penalties and costs, the proof of a previous conviction,-the competency of the defendant and his wife to give evidence, the mitigation of penalties, &c., &c., to Chap. XII. Illicit Sales. he is Any of sale of intoxicating liquors with out licence, or in places not autho rized by Sect. 3. "No person shall sell or expose for sale (a) Prohibition by retail any intoxicating liquor without being duly licensed to sell the same, or at any place where not authorized by his licence to sell the same. person selling or exposing for sale by retail any in- licence. toxicating liquor which he is not licensed to sell by Ib. s. 3. retail, or selling or exposing for sale any intoxicating liquor at any place where he is not authorized by his licence to sell the same (which now includes selling, &c. at fairs and races without an occasional licence, 37 & 38 Vict. c. 49, s. 18, post, p. 283),—shall be subject to the following penalties; that is to say, (1.) For the first offence he shall be liable to a First offence. penalty not exceeding fifty pounds, or to im- Ib. prisonment with or without hard labour for a term not exceeding one month : 35 & 36 Vict. c. 94. Sect. 3. Second of fence. Ib. Third and subsequent offence. Ib.. (2.) For the second offence he shall be liable to a penalty not exceeding one hundred pounds, or to imprisonment with or without hard labour for a term not exceeding three months, -and he may, by order of the court by which he is tried, be disqualified for any term not exceeding five years from holding any licence for the sale of intoxicating liquors : (3.) For the third and any subsequent offence he shall be liable to a penalty not exceeding one hundred pounds, or to imprisonment with or without hard labour for any term not exceeding six months,-and may by order of the court by which he is tried be disqualified for any term of years or for ever from holding any licence for the sale of intoxicating liquors: In addition to any other penalty imposed by this forfeit licence, section any person convicted of a second or any subsequent offence under this section shall, if he be the holder of a licence, forfeit such licence, and in the case of a conviction for any offence under this section, the court may, if it thinks expedient so to do, declare all intoxicating liquor found in the possession of any such person as last aforesaid, and the vessels containing such liquor, to be forfeited. On second conviction to &c. Ib. Penalty not incurred in or bank ruptcy of licensed person. Ib. - No penalty shall be incurred under this section by case of death the heirs, executors, administrators, or assigns of any licensed person who dies before the expiration of his licence, -or by the trustee of any licensed person who is adjudged a bankrupt, or whose affairs are liquidated by arrangement before the expiration of his licence in respect of the sale or exposure for sale of any intoxicating liquor, so that such sale or exposure for sale be made on the premises specified in such licence, and take place prior to the special session then next en c. 94. Sect. 3. suing, or (if such special session be holden within 35 & 36 Vict. fourteen days next after the death of the said person or the appointment of a trustee in the case of his bankruptcy, or the liquidation of his affairs by arrangement) take place prior to the special session holden next after such special session as last aforesaid." The former enactments were, as to alehouses, 9 Geo. 4, c. 61, s. 18, specifically repealed; and as to beerhouses, 1 Will. 4, c. 64, s. 7, and 4 & 5 Will. 4, c. 85, s. 17, which are repealed by implication, except as to prosecutions by the excise, but the offenders cannot be prosecuted in both ways (see sect. 59, ante, p. 24). Sect. 4 in Chap. XI., post, p. 202, is also applicable to the unlicensed person. 66 Proof of "sale" of intoxicating liquor; Ib. s. 62. (a) Proof of Sale.] As to evidence of the "sale" or consumption" of intoxicating liquor, 35 & 36 Vict. c. 94, s. 62, provides,-" "In proving the sale or consumption of intoxicating liquor for the purpose of any proceeding relative to any offence under this act, it shall not be necessary to show that any money actually passed or any intoxicating liquor was actually consumed, if the court hearing the case be satisfied that a transaction in the nature of a sale actually took place, or that any consumption of intoxicating liquor was about to take place;and proof of consumption or intended consumption of intoxicating liquor on premises to which a licence under this act is licensed attached, by some person other than the occupier of or a servant person for act in such premises, shall be evidence that such liquor was sold to the person consuming, or being about to consume, or carrying away the same by or on behalf of the holder of such licence." See note (a) to sect. 13, p. 163, for observations and decisions on the liability of persons for the acts of their servants. As regards the temporary continuance of licences forfeited for single offences, see 37 & 38 Vict. c. 49, s. 15, post, p. 192. liability of of servant. Ib. Allowing liquor to buyer of &c. drink it on a highway, adjoining Sect. 5. "If any purchaser of any intoxicating liquor from a person who is not licensed to sell the same to be drunk on the premises drinks such liquor on the premises where the same is sold,—or on any highway premises rot adjoining or near such premises, -the seller of such liquor shall, if it shall appear that such drinking was Ib. s. 5. with his privity or consent, be subject to the following Penalties. penalties (that is to say): -- For the first offence he shall be liable to a penalty not exceeding ten pounds: licensed for consumption. Ib. 35 & 36 Vict. c. 94. Sect. 5. Taking liquor from premises not licensed to other premises, For the second and any subsequent offence he shall be liable to a penalty not exceeding twenty pounds. For the purposes of this section the expression 'premises where the same is sold' shall include any premises adjoining or near the premises where the liquor is sold, if belonging to the seller of the liquor or under his control, or used by his permission." The previous enactments were 4 & 5 Will. 4, c. 85, s. 4, amended by 32 & 33 Vict. c. 27, s. 14;-and were further amended by 33 & 34 Vict. c. 29, s. 6 (all of which are repealed), to meet the cases of Cross v. Watts (32 L. J. (N. S.) M. C. 73; 7 Law T., N. S. 463), and Deal v. Schofield (37 L. J. (N. S.) M. C. 15; 17 Law T., N. S. 143). See also sect. 6, infra, which refers to the same class of houses,-those not licensed for the sale of liquor not to be consumed on the premises. With regard to recording convictions on licences, see 37 & 38 Vict. c. 49, s. 13, post, p. 193. per Sect. 6. "If any person having a licence to sell intoxicating liquors not to be drunk on the premises, himself takes or carries, - or employs or suffers other any son to take or carry,—any intoxicating liquor out or from the premises of such licensed person for the purlicensed pre- pose of being sold on his account, or for his benefit or deemed a selling on such un mises. Ib. s. 6. Penalty. Evidence of evasion. profit, and of being drunk or consumed in any other house, or in any tent, shed or other building of any kind whatever, belonging to such licensed person, or hired, used or occupied by him, or on or in any place, whether enclosed or not, and whether or not a public thoroughfare, such intoxicating liquor shall be deemed to have been consumed by the purchasers thereof on the premises of such licensed person, with his privity and consent, and such licensed person shall be punished accordingly in manner provided by this aet [i. e. sect. 3 or 5 as the case may be]. In any proceeding under this section it shall not be |