inspector to give notice (s) to any person licensed to sell, or who sells or is reputed to sell, intoxicating liquor of any kind (t), not to deliver intoxicating liquor to the person

* *

*

In an action by a married woman against an inn-keeper for having supplied liquor to her husband as follows: "I hereby forbid you, or any one in your house, giving my husband, William Northcote, any liquor of any kind from this day." The jury found that the husband was an habitual drunkard, and that intoxicating liquor had been furnished to him after such notice by the defendant, who knew the husband well, as also the reason for giving the notice, and rendered a verdict in favor of the plaintiff for $20. It was held that the notice was insufficient in omitting to state that the plaintiff's husband was in the habit of drinking to excess: Burton, J. A., and Patterson, J. A., being of opinion that it was sufficient, and Hagarty, C. J. O., and Osler, J. A., that it was insufficient. It was also held that it was not necessary to forbid the supplying of "intoxicating liquor," the words used “ liquor of any kind" being sufficient: Northcote v. Brunker, 14 App. R., 364; see also Thornley v. Reilly, 17 App. R., 204, infra.

(8) "Or may require the Inspector to give notice." On an appeal by the defendant from the judgment of the County Court of York, reported 26 L. J. N. S., 26, it appeared that the plaintiff, a married woman, brought the action to recover from the defendant, an hotel-keeper, damages because of the sale by him to her husband of intoxicating liquor, after notice not to sell. The notice was signed by the plaintiff and served by her agent. On the trial of the action before the County Judge and a jury, the damages were assessed at $100. The defendant contended that notice signed and served as aforesaid were insufficient, and that notice by the Inspector was necessary. The learned Judge decided against this contention and judgment was entered for the plaintiff.

The Judges of the Court of Appeal were evenly divided in opinion, and the appeal was dismissed with costs, Hagarty, C. J. O., and Burton, J. A., being of opinion that the right of action for damages depends on the notice being given by the person filling the public position of Inspector, though the liability as far as the penalties are concerned will be incurred upon notice being given by a private individual, while Osler and Maclennan, J. J. A., thought the whole scope and effect of the section must be looked at and a liberal construction given to it. The notice must in all cases be signed by the private individual and whether served by the Inspector or not, the private individual gives the notice, so that the words may fairly be construed to mean & person requiring to give the notice," and there is a right of action, whether the notice is served one way or the other: Thornley v. Reilly, 17 App. R., 204. This latter opinion has been followed in another case in which it was held, overruling the opinion of Street, J., at the trial, that the notice given by the wife was sufficient: per Armour, C. J., and Falconbridge, J., Blackburn v. Garland, Q. B. Div., 4th Dec., 1890 (not reported).

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The Legislature has also given effect to this decision by the introduction of an amendment empowering the person giving or requiring" the notice to bring the action. 53 Vic. c. 56, s. 15. See note (d), infra.

(t) "To any licensed person to sell," etc. The provisions of this section apply to all persons (1) licensed to sell; (2) who sell; and (3) who are reputed to sell intoxicating liquors.

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This, at all events, covers every place in which liquors are sold, whether licensed or not. Sec. 122 is made applicable to all places where liquors are sold, whether legally or illegally. Clearly the person to be notified is the master or owner of the business, and not the mere clerk or servant employed :" Austin v. Davis, 7 App. R., 478, at p. 484.

having such habit (u); and if the person so notified, at any time within twelve months after such notice (v), either himself, or by his clerk, servant or agent (w), otherwise than in terms of a special requisition for medicinal purposes (x), signed by a licensed medical practitioner (y), delivers (z), or in or from any building, booth or place occupied by him (a),

(u) "The person having such habit." Refer particularly to Austin v. Davis, 7 App. R., 478; Northcote v. Brunker, 14 App. R., 364, cited in notes supra. (v) "At any time within twelve months." The cause of action must arise within twelve months from the date of giving the notice.

Where an Act provided that an action should be brought within six weeks after the fact was committed, it was held that in computing the time in which the action must be brought, the day on which the fact was committed must be excluded, so that an action commenced on 5th June for an act committed on 5th Dec. was in time: Hanns v. Johnston, 3 O. R., 100.

(w) "Either himself, or by his clerk, servant or agent." See notes on pages 76, 143, 159.

The question of whether liquor was sold or not is one for the Judge or Jury to find, and "that finding is conclusive so long as it is not moved against, and the mere fact that the plaintiff moves against the verdict upon other grounds does not authorize the defendant to dispute the correctness of the finding: per Wilson, C. J., Austin v. Davis, 7 App. R., 478 at p. 480.

The sale by the bar-keeper of the defendant, made against the express order of the defendant, is an act for which the defendant is liable: Ib. Hugill v. Merrifield, 12 C. P., 269, cited ante, was overruled in this case.

"The mere forbidding of the clerk, agent or servant, by the master, does not lessen the master's responsibility for the act so long as that subordinate is in the service of the master, and the act is one which is done in the service and for the purposes and benefit of the master: "per Wilson, C. J., Ib. at p. 481.

See notes to sec. 112; see also Commonwealth v. Briant, Mass. Sup. Jud. Ct., Nov. 27, reported, 23 L. J. N. S., 195; Cundy, v. Le Cocq, 13 Q. B. D., 207, cited ante.

(x)" Special requisition for medicinal purposes," means a requisition for one particular purpose. See Wharton, 691; Stroud's Dict., 751; see also R. v. Powell, L. R. 8 Q. B., 403; Rand v. Green, 9 C. B. N. S., 470; Smith v. Deighton, 8 Moore, P. C., 179.

(y) "Signed by a licensed medical examiner."

See notes to sec. 54.

The requisition must comply with the requirements of the Statute, and must be signed, &c., by the person giving it.

(2) "Delivers." To "deliver," means to give or transfer anything to another person: Anderson's Dict. See also note (i), sec. 62.

A law against "selling or delivering intoxicating liquor to a minor " was held not to include a delivery to a minor for his father: State v. McMahon, 53 Conn., 415 (1885); Commonwealth v. Latinville, 120 Mass. 386 (1876).

(a) "In or from any building, booth or place occupied by him." See notes on pages 78, 125.

The restriction is confined to the place where the liquor seller carries on his usual business, and "wherein or wherefrom such liquor is sold."

In an action under the section it should be shewn that the liquor was

and wherein or wherefrom any such liquor is sold, suffers to be delivered (b), any such liquor to the person having such habit, he shall incur upon conviction (c) a penalty not exceeding $50, and the person [giving] or requiring the notice to be given may (d), in action as for personal wrong (e) (if brought within six months thereafter, but not otherwise) (ƒ) recover from the person notified such sum, not less than $20 nor more than $500, as may be assessed by the Court or jury as damages (g); and any married woman bring may bring such action in her own name, without authorizadamages. tion by her husband; and all damages recovered by her shall in that case go to her separate use; and in case of the death of either party, the action and right of action given by this section shall survive to or against his legal representatives, but the defendant shall not be liable for both penalties for the same offence. 47 V. c. 34, S. 22. Amended by 53 V. c. 56, s. 15.

Married woman may

action for

delivered or suffered to be delivered "in and from the building, etc., occupied by him," following the exact words of the Statute.

(b) "Suffers to be delivered." See note (j), sec. 50, and also notes on pages 72, 114, 174, 182.

"The defendant does suffer the liquor to be delivered by his bar-keeper just as much as he suffers him to deliver it. He is put in a place, position and office for the express purpose of selling such liquor, and that in my opinion is a suffering by the defendant of his bar-keeper to sell." It is said "we suffer and tolerate what we object to, but do not think proper to prevent. We suffer things for want of ability to remove them :" Wilson, C. J., Austin v. Davis, 7 App. R., 483.

(c) "Shall incur upon conviction." By this provision the delivery of liquor after notice is made an offence against the Act, which is punishable by a penalty of not more than $50, besides incurring the liabily to an action by the person giving or requiring the notice to be given.

(d) "And the person [giving or] requiring," etc. The words "giving or" are inserted by 53 Vic. c. 56, s. 15, and are intended to remove the doubt previously existing as to the right of the person requiring the notice to be given to bring the action. See note (s), supra. As the section reads now the person giving or the person requiring the notice to be given may, etc. This it seems will give the right of action to the Inspector, if the notice is given by him, as well as to the person requiring the notice to be given.

(e) "As for a personal wrong." See notes to sec. 122.

(f) "If brought within six months." The cause of action is limited to offences committed within twelve months from the giving of the notice, and the time for bringing the action to within six months after the commission of the offence. See note (v), supra.

(g) "Such sum not less than $20," etc. No is necessary to the maintenance of the action, Court or jury to assess the damages anywhere

evidence of pecuniary damage But it is discretionary with the within the limit; see note (x),

PAYMENT FOR LIQUOR ILLEGALLY SOLD NOT

RECOVERABLE,

126. Any payment or compensation (h) for liquor Money

to sec. 122. Where the action was tried by a Judge without a jury who ordered judgment to be entered for the defendant on the ground that the defendant was not liable for the act of his bar-keeper, the Court of Appeal set aside the judgment and directed a verdict to be entered for the plaintiff, but referred it back to the Judge of the County Court to assess the damages. Wilson, C. J., said: "The learned Judge below has not assessed the damages to the plaintiff under the Statute, which are to be not less than $20 nor more than $500, and the case must be remitted to him for that purpose. I have no doubt he may still assess them. In many cases damages omitted to be assessed by one jury may be assessed by another jury. In some cases if a jury omit to assess damages another jury cannot assess them. Here the Judge is the person who gave the verdict. I do not feel disposed to follow the case of Denny v. The Montreal Telegraph Co., 3 App. R., 628.

The damages are discretionary, and this Court cannot exercise the discretion which the Judge who tried the action is alone to exercise. As well might the Court upon the removal of a conviction by a Magistrate impose a discretionary fine which the Magistrate alone can determine. I do not know what discretion the learned Judge may exercise, and our discretion may not be his discretion. We cannot, therefore, govern him :" Austin v. Davis, 7 App. R., 478 at pp. 483 and 488.

It was held that where no loss was proved the sum to be recovered will be the minimum: Sauvage v. Trouillet, M. L. R. 3 S. C., 276.

It was held that the License Commissioners had no power to pass a resolution that no intoxicating liquors shall under any pretense be sold in any tavern, etc., to any person who has the habit of drinking intoxicating liquors to excess, or the wife, etc., of such person, or any person concerning whom notice had been given to the landlord by the husband, etc., of such person, or any Justice of the Peace or Inspector that such person is in the habit of drinking to excess, etc., and therefore that such resolution was no defence to an action against the Inspector for falsely and maliciously publishing a circular that certain persons were in the habit of drinking intoxicating liquors to excess, etc.: Roberts v. Climie, Murphy v. Climie, 46 U. C. R., 264.

66 6

(h) Payment' is not a technical word; it has been imported into law proceedings from the Exchange and not from law treatises. It does not necessarily mean payment in satisfaction and discharge, but may be used in a popular sense:" Dwar, 675, citing Maillard v. Argyle, 6 M. & G., 40. A payment may be made by the mere transfer of figures in an account without any money passing; or by payment to a third person, or by acceptance of goods; or by bill or note; or by sending a cheque by post in compliance with a request for a cheque: Stroud's Dict., 574, and cases there cited. "It may be made in something else than money: "Huffmans v. Walker, 26 Gratt., 316 (1875), cited Anderson's Dict., 759. 66 'If a commodity, like wood, is accepted upon a note for money, in pursuance of a subsequent agreement, the transaction constitutes accord and satisfaction:" Ulsch v. Muller, 143 Mass., 379 (1887), per Field, J. Compensation" has been defined as: "That return which is given for something else-a consideration-as, the compensation for an office: "Searcy v. Grow, 15 Cal., 123, cited Anderson's Dict., 216. The definition given by Wharton is," making things equivalent, satisfying or making amends, a reward for the apprehension of criminals; also that equivalent in money which is paid to the owners and occupiers of lands taken or injuriously affected." It also means satisfaction, and to "make satisfaction " to a creditor is to pay his debt: Kitching v. Croft, 12 A. & E., 586. The term " payment or compensation" is

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paid for liquor sold contrary to this Act

may not be recovered.

furnished in contravention of this Act, (i) or otherwise in violation of law, (j) whether made in money or securities for money, or in labour or property of any kind, shall be held to have been received without any consideration, (k) and against justice and good conscience (7)—and the amount

here defined to include payment in money, or securities for money, or in labor or property of any kind.

(i) "In contravention of this Act," means in opposition to or in conflict with the provisions of the Act. See Anderson's Dict. See note (k), sec. 52. "Or otherwise in violation of law." See note (h), sec. 62. The section applies to any illegal sale of liquor.

(j) "Shall be held," means, shall be decided, adjudged decreed. See note page 257,"deemed."

(k)"Without any consideration." The consideration is the very life of a simple contract or parole agreement, and the law not only requires a consideration in case of a simple contract (under which term is included all contracts not under seal, whether written or oral) but that it should be valuable, i. e., legal consideration emanating from some injury or inconvenience to one party, or from some benefit to the other party: Wharton, 166.

(1) "And against justice and good conscience." The general rule is established that a contract which is contrary to morality, positive law or public policy, will not be enforced by the Courts. See Add. on Con. II., 714, et seq.

"When a contract which the plaintiff seeks to enforce, be it express or implied, is expressly or by implication forbidden by the common or Statute law, no Court will lend its assistance to give it effect. It is equally clear that a contract is void if prohibited by a Statute, though the Statute inflicts a penalty only, because such a penalty implies a prohibition :" See Pollock on Con., 280. Therefore no debt could be created for the sale of liquors drunk anywhere, without there being a license to sell: Ritchie v. Smith, 6 C. B., 462; and it has been laid down that a man cannot recover the price of that which he is by law prohibited from selling, because the consideration would be illegal: McGlinchy v. Winchell, 63 Maine, 31. See Pollock on Con., 277 et seq; Hamilton v. Grainger, 5 H. & N., 40; Benjamin on Sales, 521; Sinclair's D. C. Act, 1879, 49, 265; Sinclair's Con. D. C. Act, 1888, 69.

Leases of premises to be used in contravention of the excise laws or Licensing Acts are illegal and void if the lessors knew that the premises were to be used for the forbidden purpose; and whenever a license is required for the exercise of a trade on grounds of public policy, any agreement made with the view of enabling a party to trade without the license is null and void: Add. on Con. II., 728.

Every person who sells wines, spirits, etc., without being duly licensed so to do has no remedy for the recovery of the price thereof. But it was held that a brewer who sells beer to be consumed in a public house is not bound to ascertain whether the party who orders the beer is duly licensed before he supplies the article: Brooker v. Wood, 5 B. & Ad., 1052; mere knowledge, moreover, on the part of the vendor that the buyer will make an illegal use of the goods sold to him has been held not sufficient to deprive the vendor of his right to payment of the price, but that it was necessary that the vendor should be a sharer in the illegal transaction, and should render some aid beyond that of mere selling the goods: Hodgson v. Temple, 5 Taunt., 181; Add. on Con. II., 753.

It was held that the sale of an excisable article was not avoided by an omis