I should say, in the house. In reply to a question put by the magistrates' clerk, the witness said, "before the parties came away I saw Morgan drink ale, and I saw all the other men in the house." The Defendant's attorney admitted that the elderly person referred to in Fone's evidence was a Sevenoaks' person, who had gone to meet a friend coming by the rail, and he submitted that such person was entitled to be at Defendant's house as described. On the part of the Defendant, one Steers was called, who said, “I live at Hartslands, Sevenoaks. I recollect the 4th June, Whit-Sunday. I was at Mr. Peache's house on the morning of that day, my father came from Tunbridge and he and I went down to the train to meet my brother and his wife, who were coming from London. The train was late; it got in about a quarter past eleven, and there were a good many passengers. When we got to Mr. Peache's, my brother said he should like a glass of ale, and I and my father drunk a glass of ale with him. He called for it. I said he was a traveller. I must not drink it, but you may." This witness, on cross-examination, said "I saw no one that I knew. My father must pass my house before he got to the railway station." It was contended on the part of the Defendant that he had committed no offence; that it was impossible he could personally see all parties who flocked to his house on the arrival of trains, and that he had, as he believed, supplied refreshment to those persons only whom he believed to be bonâ fide travellers on the Sunday in question; that it was a common occurrence for parties in the neighbourhood to come to his house with friends who had come in by the train, and whom such parties had gone to meet; but that 1866. PEACHE v. COLMAN. 1866. PEACHE V. COLMAN. on such occasions he did not supply such parties, but only their friends, with refreshments, &c. It was admitted by him that the proceedings were legal and regular, and that if he had committed the offence. charged the conviction was properly made. The question of law for the opinion of the Court was, whether the Appellant committed an offence against the statute and was rightly convicted of keeping his house open for the sale of wine, &c., before the hour of half-past twelve on the Sunday in question under the circumstances detailed in the evidence. The railway station is about a mile distant from Sevenoaks town, where Budgen, the person referred to in police-constable Fone's evidence, resides. Sunday, 4th June, was Whit-Sunday, and on that morning a great number of persons came to the Sevenoaks' station by the train. Hayes, Serjt., for the Appellant.-The question for the opinion of the Court is, whether upon the evidence the Appellant was properly convicted. The 1st section of stat. 11 & 12 Vict. c. 49, enacts that no person licensed to sell beer by retail "shall open his house for the sale of wine, spirits, beer, or other fermented or distilled liquors, or sell the same, on Sunday, before half-past twelve o'clock in the afternoon, . . . except, in all the cases aforesaid, as refreshment for travellers." Two offences are specified. The Appellant is not charged with selling. The charge is that he opened his house for the sale of wine, &c., before half-past twelve. But the fair inference from the facts stated is that he bonâ fide opened his house for such sale as refreshment for travellers, and there is no evidence that he opened for any other purpose, and if so the conviction must be quashed. In Taylor, app., Humphries, resp. (a), it was held that the word "travellers" in the statute includes any persons who go abroad for purposes of business or pleasure, and who need refreshment; (a) 17 C. B., N. S. 539. and that, as the exception is contained in the same section of the Act which creates the offence, the onus of showing that the persons supplied with refreshment are not within the exception is on the informer. [Willes, J. The Lord Chief Justice says in that case, p. 549, 17 C. B., N. S., that a person would be a traveller within the exception if he came abroad from any of the motives suggested in the argument for the Appellant there as legitimate, and needed refreshment; but that if he came abroad merely because he desired to go to a public-house and obtain drink he would not.] If a publican opens his house for those who are bonâ fide travellers, and a person who is not so and who is not known to the publican goes in, what can he do? There is no evidence that the Appellant knew or had reason to believe that any of the persons came from Sevenoaks. [Willes, J. There was a case before Mr. Arnold where an information was laid against the keeper of a refreshment room at a railway station.] That probably was Fisher, app., Howard, resp. (b), where a person who had taken a ticket at a railway station, and was about to start by a train from the station, was held to be a traveller" within the exception in the 42nd section of stat. 2 & 3 Vict. c. 47. No counsel appeared for the Respondent. 66 WILLES, J. In this case the Appellant was convicted under stat. 11 & 12 Vict. c. 49, s. 1, for opening his house, on a Sunday, before half-past twelve o'clock, for the sale of fermented liquors. It appears that he did open his house which is about a mile from Sevenoaks, and just outside the railway station, on the morning of Whit-Sunday during the hours of divine service, and that there were about eighteen persons there smoking and drinking. Of those persons the large proportion seem to have been unquestionably travellers who had recently come in by the train. There were, however, amongst them some who lived at Sevenoaks. (a) 34 L. J., M. C. 42. 1866. PEACHE v. COLMAN. 1866. PEACHE v. COLMAN. One of these, an elderly person, so far as appears in the case, did not have any drink but was smoking in the parlour, and did not leave the house. The other Sevenoaks' people left the house, and it should seem that they were persons who ought not to have been drinking, and that they left because they were conscious that they ought not to have been there, and that they for that reason left when the superintendent of police came. The only proof, however, against the landlord that Sevenoaks' people were, to his knowledge, drinking in his house, is his own statement, acknowledging that some of those present were persons belonging to Sevenoaks. But that admission must be taken coupled with and qualified by his statement that he was not aware that any Sevenoaks' people had been in the house, that he did not see them, and could not tell everybody. The question for this Court is raised in a peculiar form. The justices do not pronounce an opinion that the Appellant knowingly supplied drink to Sevenoaks' people, not being travellers, and have not found that he opened his house colourably; and they probably thought that the reasonable conclusion to be arrived at on the evidence before them was that he opened his house bonâ fide for the supply of refreshment to travellers, but felt bound to convict because these two or three Sevenoaks' people happened to be there. Looking at the form in which the question comes before us, I think it amounts to thiswhether the justices were bound to convict; and for the reasons stated, I am of opinion that they were not so bound and that this conviction ought to be quashed. KEATING, J. I am of the same opinion for the same rea sons. SMITH, J. I am unable to see any evidence either that the Appellant opened his house except for the refreshment of travellers, or that he knowingly supplied drink to others than travellers. An excursion train had just arrived, and, although there were some Sevenoaks' people at the house, they may have been either travellers who had just arrived and were going home, or, it may be, that they were persons who had come to the town to meet friends coming by the train. In either case I think they would be equally travellers. Suppose a train should be late it would be hard upon a landlord if those who came to meet it could not be supplied with refreshment. Conviction quashed. 1866. PEACHE บ. COLMAN. DICKINSON V. THE LONDON AND NORTH Saturday, February 10. Railway com pany. The Plaintiff negligently fastened his horse by the bridle to a railing in the open yard of a public-house, within which he remained for two hours. The highway leading from the house crossed the railway of the Defend-Line crossing ants on a level, and they had set up gates across both ends of the high- highway on a way at the crossing. The gates opened outwards from the railway, and level. closed with a catch, but were easy to open, and would open when a train Neglecting to passed, and there was no gatekeeper at the crossing. During the keep gate at Plaintiff's absence the horse escaped from the railing, owing to the crossing closed. negligent fastening, strayed to the highway and along that to the Statutory crossing, and, the gate there not being closed, through the gateway misconduct. to the railway, where it was killed by a passing engine of the Defend. 5 & 6 Vict. ants. Held, on the authority of Fawcett v. The York & North Midland R. Co., 16 Q. B. 610, that under stat. 5 & 6 Vict. c. 55, s. 9, an obligation was imposed on the Defendants to keep the gates closed against stray cattle on the highway, that the accident had been caused by their statutory misconduct, and that the Plaintiff was entitled to recover from them the value of the horse. THIS was a case stated on appeal from the County Court at Chorley, in Lancashire. The action, which had been tried before the County Court judge, without a jury, was to recover 251., the value of a horse killed on the Defendants' railway at Euxton on the 9th of August, 1865. c. 55, s. 9. |