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Decisions of the Superior Courts of New South Wales, 1788-1899

Brown v. Mannix [1828] NSWSupC 86

reception of English law, date of reception - liquor laws - goods sold and delivered

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 26 September 1828

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 6]

[The 12th Section of 24.G.2.C.40. commonly called the Gin Act held applicable to New South Wales, so as to deprive a publican of his right of recovering for distilled spirituous liquors sold under 20/s at any one time][1 ]

26 Sept 1828

Brown v Mannix

Assumpsit for goods sold and delivered.  Plea the General issue.  At the trial before Forbes C.J. at the sittings in last term,[2 ] the following special verdict was found:-

The Court and Assessors find a verdict for the Plaintiff, and assess damages at the sum of £14.16.3.  Subject to the opinion of the Court whether the several items charged by the Plaintiff for spirituous liquors delivered to the Defendant, in the account hereto annexed mentioned are recoverable under the following circumstances.  The Plaintiff was at the time of the said Items delivered to defendant, [p. 7] the keeper of a licensed public house at Liverpool, and the Defendant resorted from time to time to the said public house as a traveller and partook of refreshments, and received the several quantities of spirituous liquors in the said account mentioned, being for less amount at each time of delivery than 20 Shil.  If the Court should be of opinion that such items are not recoverable by law, they then find the verdict for the Plaintiff subject to a deduction of the several items so charged in the said annexed account for spirituous liquors being of less value at each delivery than 20/s.  If the Court should be of opinion that such items are not recoverable by law, they then find the verdict for the Plaintiff, subject to a deduction of the several items so charged in the said annexed account for spirituous liquors being of less value.

The question for the opinion of the Court is whether the English statute 24.G.2.C.4.C.s.12 commonly called the Gin act extends to the Colony of New South Wales, and whether [p. 8] this particular case under the circumstances stated falls within its operation.

Norton for the Plaintiff.  Admitting the general principle to be true that the law of the mother Country is the law of her Colonies yet nothing is so difficult as to determine what parts of her statute and common law do apply in this Colony.  It is quite clear that all the laws of England do not take effect here from the utter inapplicability of them to the state and condition of this Colony.  In this particular case there are two questions  1st does the statute in question at all apply to this Settlement; and 2ndy  Assuming that it does, does this case having regard to the peculiar circumstances, states, come within its operation.  First I contend it does not apply here, because the general scope of the law is to remedy evils and make regulations upon matters which are peculiarly local.  Conceding that the 12 Section, may be considered as a general independent enactment still [p. 9] you cannot dissent an act of Parliament embracing a great variety of local objects, and pick out one clause, and apply it to this Colony, because it happens to be extremely beneficial in its principal.  This should be an object of local legislature, now that the Colony has a legislature of its own.  Secondly admitting the applicability of the clause to the Colony generally, still this case does not fall within the mischief intended to be remedied.  The object of the clause is to prevent tippling amongst the lower orders of the people.  Here the case finds the Defendant to have been a wayfaring traveller, and it would be extremely inconvenient to hold that spirits sold to such a person in a journey may not be recovered under this section.

Rowe contra.  If it be admitted as indeed it cannot be denied that the Common and Statute law of England is in force here, so far as it is applicable to the state and condition of the Colony, it must follow as a consequence that parts of [p. 10] such law are in force, if it can be demonstrated that they apply to the condition of the settlers.  Now the preservation of the morals of the people by preventing the inordinate use of spirituous liquors is a primary object of police.  It is notorious that drunkenness is in this Colony one of the most general vices.  The Section in question therefore, having the prevention of this vice as its ostensible object, it becomes peculiarly applicable to this Settlement, and therefore ought to be enforced.  This point being established, then does this particular case fall within its operation.  The decisions of the Courts at home upon this section have been uniform, and it has been the practice of the Judges to give it the most extensive operation no matter under what circumstances the spirits have been sold, whether to low people frequenting public houses, persons of better condition dining at a Tavern, and even to those who are not the actual consumers of the [p. 11] pernicious article sold.  On these grounds the Defendant is entitled to judgment.

Forbes CJ.  This case arises upon a very simple point, involving in itself the application of the English Statute law to this Colony.  Adverting to the argument at the bar, the case itself is divided into two questions; first whether or not the particular statute under consideration applies to the Colony generally, whether this particular case falls within its operation.

With respect to the application of English Statutes generally to this Colony, it has always been assumed by this Court that all statutes of a general character passed before the establishment of a local legislature in the Colony must be taken as a part of the Statute law which is imported into this Settlement.[3 ]  Pursuing that principle it does not follow that because a particular statute may not in all its parts be applicable, certain sections may not be applicable and put in force in the Colony. One instance falls [p. 12] within my recollection where this doctrine has been recognised.  The instance certainly is not a decided case, but it is found in the opinion of a most eminent lawyer, whose authority even as a matter of opinion may be regarded as a judicial opinion.  I allude to the opinion of the great Lord Hardwicke when His Majesty's Attorney General.  A case had been referred to him for his opinion as to the application of a particular clause in a statute of Ann to one of the British Colonies.  Upon looking into the statute in that case it was found that a great number of its details could not be enforced in the Colony, but that great lawyer held that an independent section in the statute did apply and it was acted upon accordingly.

As a general position therefore it has been determined by that eminent person, that it does not defeat the application of a particular clause in a statute that the [p. 13] whole act can not be applicable.

With respect to the particular statute in question it is one of those numerous acts which have been passed for the purpose of raising a revenue for the Mother Country and in part also with reference to the care of the health and morals of His Majesty's Subjects  looking at the whole of the statutes of England which relate to the vending of spirituous liquors it will be found that throughout, there has been a distinct policy observed on the part of the legislature, of a twofold character; first to raise a revenue for the purpose of the state, and second to take care of the health and morals of His Majesty's Subjects.  As respects the latter object the principle is as applicable as can be supposed to be, to all His Majesty's Subjects in every clime where the British laws are enforced.  The other can not be applicable to the Colonies, because it has been frequently held that the complicated machinery of the Mother Country in raising her revenue, does not take effect in her [p. 14] settlements where the local revenues is regulated either by special enactments at home or by local ordinances where the colony has a legislature of its own.  With respect however, to the policy of the legislature relating to the health and morals of the people, assuredly, the policy of a statute which relates to that object, must be applicable to this Colony, as to any other part of His Majesty's dominions.[4 ] Considering the character of the general body of the people of this Colony adverting to the known practice of the vice of drunkenness bearing in mind our melancholy experience, that low debauchery of this kind is the source of 19 out of 20 of the most deep stained crimes brought under the congnizance of the Criminal Court, I for one feel disposed to carry the operation of this salutary enactment to its fullest extent, feeling as I do the most perfect conviction of its applicability to the state and condition of His Majestys people settled in this country.  As a general [p. 15] opinion I am clear that the particular clause in this statute under consideration is capable of being extended to this settlement by reason of the general policy of the legislature, which may be distinctly traced upon the subject of licensing public houses, and vending spirituous liquors and as the policy embraces all His Majesty's Subjects, I hold that it is applicable to this Colony.  Having thus disposed of the first proposition the second question is whether the act applies to the particular case under consideration.  I find nothing in the special verdict which establishes any distinction so as to take the case out of the operation of the statute.  If any distinction could have been raised I should have expected to find it stated in the case.  All that the special verdict finds is that the plaintiff is a licensed Publican and that the Defendant resorted to his house as a traveller.  I do not think such a case can be considered as excepted out of the statute.  The statute is generall [sic] and express in its prohibition, and I think we are not at liberty to look to the [p. 16] special verdict, for an exception which is not expressed in the statute itself.  But I am not disposed to view the case of a traveller stopping at a public house to refresh himself with spirituous liquors is one which ought to be excepted out of the statute.  I consider that travellers are of all other persons, are those who ought to be brought within the operation of this clause, because it is necessary to restrain such persons (for their own sake) from the immoderate use of spirituous liquors.  Persons of this description stopping at Public Houses on the roads are often tempted to become intoxicated and deprived of the power of taking care of themselves.  They are then exposed to the depredation of Highway robbers, and often to personal maltreatment if not murder.  By checking the disposition of publicans to allow such persons to run up scores  I think a public good will be effected; but finding nothing in the statute which contemplated such an exception as this,  I am disposed to [p. 17] adhere to its general prohibitory provisions, and therefore I am clearly of opinion, first that the statute applies to the people of this Colony; and secondly that this case is comprehended within its operation.

Stephen J.  I am of the same opinion and I concur in the view taken of the subject by His Honor the Chief Justice.  At first I was disposed to think that the case of traveller stopping at a house of entertainment on the road for refreshment, was not within the operation of the Statute; but the cases cited in the course of the argument by my Brother Dowling are too strong to admit of any such distinction, and therefore I think the safest course is not to admit of any such distinction but give the most enlarged interpretation of the statute.

Dowling J.  The question raised in this case is whether the 12th section of the statute 24 G.2.C.40. extends to the Colony of New South Wales.  That Statute embraces various different subjects of legislation, and some of [p. 18] them of a peculiarly local nature; but it contains a distinct and independent general clause which enacts. "That no person shall maintain any action for any debt or demand, for any spirituous liquors, unless such debt has been bona fide contracted at one time to the amount of 20/s or upwards; nor shall any item in any amount for distilled liquors be allowed, where the liquors delivered at one time, and mentioned in such item, shall not amount to 20/s at the least without fraud; and where no part of the liquors sold or delivered shall have been returned, or argued to be retained directly or indirectly."  The question then is, whether this detached section, found in an act of the British Parliament, embracing other enactments of a peculiarly and exclusively local operation, can be construed to extend to this Colony?  The view I have taken of this point involves the consideration of the general question, as a preliminary step how far the common law and statute law of England respectively [p. 19] apply to the Colonial possessions of the Crown of Great Britain.  In determining this point, the authorities I have consulted are Shower's P.C.31. CoinDigtit Ley (c) 2 Peere Wms 75.Blankard v Galdy 2 Sack 4411.S.C.4 Mod.222 Smith v Browne 2 Salk.666.1 Blac Com 107Pownall on the Colonies pp. 102.128. Stokes view of the Constitution of the Colonies p. 10Chaplm oprs. Vol.1.pp. 22.195.198.2 Vol 202. 1 ChitCom. Law.638 Howards Law of the British Colonies AD.1827. and Divarris first Report on Civil and Criminal Justice in the West Indies 5   after a view of these different authorities it appears to me that the general principle to be collected from them is:- "That in a Colony newly settled by British Subjects, the Settlers carry with them as their birth right, the common as well as Statute Law in force in the mother Country at the time of emigration, and that such law, and all subsequent laws (so far as they are respectively applicable to the statute of the Settlers) bind them as British Subjects, until and after the period of their acquiring a legislature of their own, enabling them to adopt or reject such general [p. 20] laws of the Parent State subsequently passed as may or may not be applicable to the condition of the Colony."  Taking this to be the true principle, governing the relation between the parent state and her foreign Settlements in the administration of municipal law.  I see no objection to the extention of it to a detached independent general clause found in an act of the British Parliament, containing other general clauses of local applicability, provided the detached independent general clause so found, is applicable as a regulation of general police, to the condition of His Majesty's people settled in this remote region.  It must be admitted that nothing is so injurious to the morals of the people as drinking spirituous liquors to an inordinate extent, a practice most obviously prevalent in the society in which we live and which if not checked, must like an incubus weigh down the vital energies of this Infant Settlement.  The Act of [p. 21] Parliament in question being calculated to prevent the immoderate indulgence of that vice, I consider it one of the best to be found in the Statute Book and therefore I should be disposed rather to extend its operation as far as I could than narrow it down.  As long as I have known Westminster Hall, now very near 20 years the construction put upon it by the Judges of England has always been uniform.  In all the reported cases and in many which have not found their way into print, this statute has been held to apply to the sale of spirituous liquors, sold as well in as out of the Public house, in order to prevent tippling and drunkenness by vending small quantities of ardent spirits.  In passing I shall advert to two or three cases which have been decided upon this statute in Scott v Gillmore [3 Taunt.226] it was held that this statute extends to spirits mixed with water, and in that case it was determined that it was a defence to an action in a bill of exchange against the acceptor that it was accepted for the amount of Spirits sold [p. 22] to him by the Plaintiff in quantities under the value of 20/s in Gilpin v Randal [1 Selwyn N.P.P.61.] it was held by Thomson C.B. that the statute extends to a score for grog, beer and herrings, as to such part as was for the grog, but not to the other items, which consequently may be recovered.  At one time it seemed to have been thought that the statute only prohibited the sale of such spirits to the consumer, and did not extend to liquors sold to a person who kept an eating house for the purpose of supplying his guests.  Jackson v Athil [Peak N.P.C. Per Kenyon Lord] but that doctrine has since been exploded by the recent case of Burnyeat v Hutchinson [5B&A.241. See a more detailed report of this case in 2. The Law Reports from the Notes of Dowling J. p. 33-]. That was a very strong case.  There the Plaintiff a publican had provided a funeral dinner for the friends of the Deft who was not himself at the dinner at the Dinner spirituous liquors were supplied to the guests and it was held that the Plaintiff could not recover for the liquor so supplied although they were [p. 23] not consumed by the Defendant, and only by his friends.  Considering the section of the Statute now under view as one of general Policy, applicable to all the King's Subjects, unless restrained by express local enactment to the contrary, and being in force in this Colony by virtue of the principle of importation to which I have alluded, I am of opinion we are bound to give effect to it, by holding that the publican who gives credit for any quantity of spirituous liquors less in amount than 20/s at any one time, shall not be permitted to maintain an action for any debt or demand so contracted.

I have ascertained that this statute has been enforced in the administration of justice in the Court of Requests, though I do not find that it has been distinctly raised in this Court, I think we are warranted in holding the 12 section of the statute to be part of the imported law of England in this Colony.

Judgment for the Defendant.

Notes

[1 ] See also Turner v. Donnelly, Dowling, Select Cases, Archives Office of New South Wales, 2/3466, p. 17 (16 September 1830), which Dowling J. summarised as follows: "If part of the consideration for a promissory note be for spirituous liquors sold in less quantities than 20/ worth at a time contrary to the Gin Act the Payee cannot recover upon it."

[2 ] See Sydney Gazette, 20 June, and see 9 July 1828.  For commentary on the hearing of 26 September 1828, see Sydney Gazette, 29 September 1828.

On this statute, see also Franks v. Ikin, 1828-1829.

[3 ] See also Applicability of Criminal Laws Opinion, April 1828.

[4 ] While Chief Justice of Newfoundland, Forbes had reached exactly the same conclusion. On 23 March 1821, he told the island's governor, Admiral Hamilton, when discussing which English laws were applicable there, that "My general view is that all the laws which regulate the selling of liquor, as a matter of police, ought to be observed if possible, but not those as regard the revenue and excise, which cannot be enforced."  (Source: Provincial Archives of Newfoundland, Letter Books of the Colonial Secretary's Office, GN 2/1/31, Vol. 31, 1819-1821, pp 398-399.)

Published by the Division of Law, Macquarie University