is what the testator meant by "the whole" of the "personal "'estate in Oamaru."

'66

As was said by Bowen, L.J., in In re Prater(1), “The "term property' at a bank, or property' situate locally at any other place than a bank, is not language which has received, or is capable of receiving, a stereotyped meaning "which is to last for all time, and to apply to every will by

66

66

66

whomsoever made, but is an expression which must receive "light or colour from one or other of two sources-the con"text, and the circumstances of the testator." These observations apply with equal force whether the term used is property or "personal estate." If they be applied to the present case we find that the will contains no other bequest, and that unless the bequest covers the sums at the banks in Oamaru the testator will have died intestate as to by far the greater part of his property. It is certain that this could not have been the intention of the testator; and it is the duty of the Court to endeavour to avoid such a conclusion, unless the testator has so expressed himself that any other conclusion is impossible. Now, the term personal estate". includes money. A man's money is part of his personal estate. If the testator, instead of bequeathing the whole of his personal estate in Oamaru, had bequeathed the whole of his money in Oamaru, it is certain that the amounts to his credit at the banks, both on current and deposit accounts, would have passed, although he might have had other money in Oamaru : Manning v. Purcell (2). The reason as stated in that case is that although the amount is properly only a debt due from the bankers, the ordinary usage of mankind treats it as money. And more than that, the ordinary usage and language of mankind treats it as money locally situated at the bank where it has been deposited. If a person were estimating the amount of his personal property at a particular place he would certainly take into account sums of money deposited to his credit at a bank at that place. And if he spoke or wrote of his personal property or estate at a particular place he would be understood, taking the ordinary and popular meaning of such language, to include in the term "property or estate" sums so deposited. As was said by Mr. Justice Chitty and Lord Halsbury in In re Prater(1), in order to interpret the will you must take the ordinary and popular meaning of the words used by the testator. I think, therefore, that the (1) 37 Ch.D. 481. (2) 7 DeG. M. & G. 55.

S.C.

1902.

YOUNG

น

BAIN, In re YOUNG.

S.C.

1902.

YOUNG

v.

BAIN,

In re YOUNG.

term "personal property in Oamaru" includes the sums in question.

Solicitors for the executors: Lee & Grave (Oamaru).

Solicitors for the legatees: Smith, Chapman, & Sinclair (Dunedin).

S.C.

IN BANCO.

DUNEDIN,

1902.

October 1, 3.

WILLIAMS, J.

REX v. WARD.

Licensing "The Licensing Act, 1881," Sections 167, 168, and 169—“ The
Alcoholic Liquors Sale Control Act, 1893," Section 13-"The Alcoholic
Liquors Sale Control Act Amendment Act, 1895," Sections 25, 26, and 27.

Section 26 of "The Alcoholic Liquors Sale Control Act Amendment Act, 1895," is in its terms general, and applies not merely to licensed premises in any particular district, but to licensed premises wherever

situate.

APPEAL from a decision of Major Keddel, S.M., at Oamaru, dismissing an information against John Ward-being a person against whom a prohibition order had been made under section 167 of The Licensing Act, 1881"-for entering upon licensed premises, during the currency of the order, outside the district in which he was prohibited.

66

The order was in the usual form, and was addressed to all licensed persons within the Licensing District of Oamaru, and was served on the defendant on the 3rd of April, 1902; and on that day Ward entered the Glencoe Hotel, which is not situated within the Oamaru Licensing District.

Fraser for the appellant:

There is nothing in "The Licensing Act, 1881," making it penal for the prohibited person to obtain liquor. "The Alcoholic Liquors Sale Control Act, 1893," section 13, goes a step further, and prohibits him from purchasing or procuring liquor from any licensed person within the district in which the prohibition order is in force. The Alcoholic Liquors Sale Act of 1895 goes still further, and makes him liable to a penalty if he is found on any licensed premises during the currency of the order. The omission of all reference to locality in this Act was clearly deliberate.

Grave, for the respondent:

The words "on any licensed premises in the Act of 1895 are not to be read literally, but in conjunction with sections 167 and 168 of "The Licensing Act, 1881," and section 13 of "The

Alcoholic Liquors Sale Control Act, 1893," and are restricted to the licensed premises of the licensed persons mentioned in those sections. It was not intended to make it penal to be on licensed premises in which the person against whom an order is made is not prohibited from purchasing liquor.

WILLIAMS, J.:-

Cur. adv. vult.

The object of the Legislature in enacting sections 167, 168,
and 169 of "The Licensing Act, 1881," was obviously to place
obstacles in the way of habitual drunkards getting drink. It
is also clear that the intention of the Legislature in passing
section 13 of the Act of 1893, and sections 25, 26, and 27 of
the Act of 1895, was to place still greater obstacles in the way
than were placed by the original Act. The policy of all the
sections is to keep drunkards out of the way of drink. The
language of the several sections should, if possible, be con-
strued in such a way as will most effectively carry out that
policy. Section 26 of the Act of 1895 is in its terms general,
and on the face of it applies not merely to licensed premises
in any particular district, but to licensed premises wherever
situate. The policy of the Acts is best given effect to by
reading it generally, and unless there is something in the other
sections of the Acts which compels the Court to read section 26
in a limited sense, it ought to be read generally. I do not
think the other sections of the Acts make it plain that it
was the intention of the Legislature to narrow the construc-
tion of section 26. Section 169 of the original Act is in its
terms general, and there is no reason why it should not be
read so.
If a man is an habitual drunkard the houses he is
likely to frequent are by sections 167 and 168 expressly pro-
hibited under penalties from giving him drink, but section 169
was enacted in order to prevent him, as far as possible, getting
drink anywhere. No doubt section 13 of the Act of 1893 is
expressly limited in its operation, but there is no such express.
limitation in section 26 of the Act of 1895, and as the limita-
tion was expressed in the one case it might have been expected
it would be expressed in the other if it had been intended it
should exist. I think, therefore, that an offence under sec-
tion 26 was committed by the respondent, and that he should
have been convicted.

Solicitors for the appellant: Hislop & Creagh (Oamaru).
Solicitors for the respondent: Lee & Grave (Oaru).

S.C.

.1902.

REX

v.

WARD.

S.C.

IN BANCO. DUNEDIN. 1902.

October 2. WILLIAMS, J.

PLANK v. McILVENEY.

Licensing “The Licensing Act, 1881," Sections 159 and 229—“The Alcoholic
Liquors Sale Control Act, 1893," Sections 27 and 28-"The Alcoholic
Liquors Sale Control Act Amendment Act, 1895," Section 14.

The sale of liquors to the members or guests of a club in the ordinary way in which liquors are sold in clubs is a sale of liquor under “The Licensing Act, 1881."

By The Alcoholic Liquors Sale Control Act, 1893," section 27, a charter is made equivalent to a licence under the Licensing Acts, and a sale by an unchartered club is a sale without a licence under section 159 of "The Licensing Act, 1881."

APPEAL from a conviction of the appellant by S. E. McCarthy, Esq., S.M., Invercargill, upon an information under section 159 of "The Licensing Act, 1881," for selling liquor without a licence.

On the hearing of the information the following facts were proved or admitted: The defendant is the steward of an unchartered club of eighty members, the premises whereof are situate in Esk Street, within the Borough of Invercargill, the name of the club being the "Commercial Private Club." Application for a charter had before the laying of the information been twice made to the Colonial Secretary on behalf of the club, which applications were refused by the said Colonial Secretary. The club is carried on in the ordinary way common to clubs, and is managed by a committee elected by its members, who are elected by ballot, one adverse vote in five excluding from membership. One of the club rules provides that all the club's property, including its alcoholic liquors, shall be vested in trustees; but no trustees have ever been appointed. The members of the club are the joint owners of all its property, including alcoholic liquors. No one ceasing to be a member has any claim on any portion of the club's property. Alcoholic liquors are supplied by the club to members for a monetary consideration at an advance of 33 per centum on cost price, and all monetary profits are solely used for the purposes of the club. Members are liable to expulsion for cause shown. Honorary members, being non-residents in the Southland District, may be appointed. Strangers may be

introduced, but only by members; but no liquor is ever sold to strangers. The liquor in stock at any one time is no more than is reasonably sufficient for the use of members. On the club's premises there is a bar fitted up similar in every respect to those usually seen in licensed hotels. In this bar liquor is exposed for sale to members during the hours the club is open. The club is in all respects bonâ fide, unless the contrary can be held from the fact of its being unchartered. On the 21st of July, 1902, the defendant, as and being the steward of the club, without any licence, charter, or other authority issued pursuant to the Licensing Act, for a monetary consideration supplied certain of its members at their respective requests with alcoholic refreshment, under such circumstances that all the interest of the club in such liquors passed from the club to the particular members. From first to last each of the transactions referred to above was carried through on the premises of the club.

Sim, for the appellant:

On the facts there was no sale within the meaning of section 159 of "The Licensing Act, 1881": Graff v. Evans(1). This was followed by Newell v. Hemingway(2), and according to that case, even assuming a sale, there was no sale by the manager. See also Ranken v. Hunt(3). The last case on the subject is Davies v. Burnett (4). There are some cases in which there were convictions, but in these the Magistrate came to the conclusion that there was no bonâ fide club: Evans v. Hemingway(5); Woodley v. Simmons(6); but in these cases Graff v. Evans (7) was regarded as good law: Bowyer v. The Percy Supper Club (Limited) (8). There is no reason for construing section 159 differently from the corresponding section of the English Act. The repeal of the first part of section 229 of "The Licensing Act, 1881," by section 28 of "The Alcoholic Liquors Sale Control Act, 1883," only makes the subsections apply to chartered clubs. There is nothing about unchartered clubs, and the provisions of "The Licensing Act, 1881," beginning with section 122 and onward, cannot apply to them. There is nothing in section 229 or the amending Acts which make an unchartered club unlawful. Authorisation is not necessary to their existence, and the cases cited show there was

S.C.

1902.

PLANK

v.

McILVENEY.