Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1900-04-05


legal entity, and not the property of any
member until separated from the common
mass and delivered to him.
But the Other is the view adopted i'm
England and by the majority of the ca
ses in tins country and has the support
of most of the text writers. Thus, Black
on intoxicating liquors at Sec AZ after
referring to the decision in the different
States on the subject concludes as fol-
lows: Upon the whole therefore, not
withstandng some conflicting rulings Il
rational conclusion IL that the interest
must govern. on the one hand If the OBJ
jcct OF the organization is merely to pro-
vide the members with convenient mode
of obtaining drn.. whenever they want
II, or, If form of membership is no more
than prctenSe SO that any persons WITH
out discrimination can procure liquor by
signing his name or buying ticket or a
chip thus enabling the proprctors 10 con
duct an illegal traffic then it falls with
in The term of the statute. But If on the
other hand the club is organized In good
faith with "A limited and selected mem
bcrship really owning lrcperty-common-
and formed for social, literary or other
purposes to which the furnishing OF liquor
to its members would be merely incident
al. In the same way and in the same eX-
tent that the supplying of dinners daily
newspapers might be. then II cannot lie
considered as within either tn purpose or
the letter of the law.
This is the view adopted IL Mnssachu-
sets but a statute was pissed there In
1881 making common nuisance of places
In cities and towns having no license that
are used by clubs for the purpose of sell
ing, distributing or dispensing intoxicating
! liquor to their members.
This question has never been decided in
this State but one similar to IT State vs..
Clark, 6e VI, 3ll, was much consider
ed but not decided MS the court was not
agreed.
! assume as | must on the presumption
of innocence that, the Fish and Game
League is a bona hde association. and not
device to eVadc the law and hold il ac-
cordnnce with what ] think the decided
weight of authority to be, that its fur
nishng ale to its members on this oc-
casion was not unlawful But 1t is clear
ly unlawful for it to furnish aie to thosa
who were not its members. Common
wealth VS.. Smith loo Mass. 14i; Common
wealth VS.. Pomphret, 1871 Mass. j64
/ am not, however, prepared, to say
that the statute is so absolutely prohibi-
tive that a hotel is to be adiudged Il
common nuisance merely because some
one other than the keeper and his ser
wants unlawfully sells, furnishes or sives
away intoxicating liquor therein when
neither the Keeper nor his servants in
/ charge knew 1t or were in no legal fault
! for not knowing ii. Indeed ! think it is
/ not so absolutely prohibitive. But | think
| II safe to say that the statute cast upon
the keeper and his servants in charge the
! duty of taking reasonable precautions to
prevent unlawful transactions of the
kind upon the premises and that if they
neglected such preCaution they came
short of their legal duty and are there
fore negligent: and If negligent they must
be said to suffer the ansactions to take
place for man suffers thing to be done
when 1t is done through his negligence
For this we have the authority of Lord
Cockhurn, c. j., in ilfkins vs.. the Biz
mngham and Staffordshre Gas CO., g. H.
and n. $50 and in Bosley VS. Dawes Il. e.
ID. at page 81; as well as other cases, and
in "a Am. and Eng, EnCy of Law $50 it is
said that to suffer a thing to be done by
one who can prevent it is TO permit it or
consent to 1t; to approve of it by not him
dCriug it. This is The leXicograph mean
ing also.
/ The agreed facts show that the defend
ants did not know that persons not mem
bers of the league were invited to the
banquet or were present and partook of
the ale; but they do not show whether
the defendants took any precaution 20
find out whether such persons were prcS-
eut or not. 1t was their duty to take rca-
sonable precaution IN that respect, know
ing as they did that ale was to be and
was being used and if they did not they
are chligoable with negligence, and con-
proving Of the Illegal transaction, which
would he enough to make their place a
nuisance.
But the presumption is, the contrary not
appearing that they did take such precdU-
tons for otherwise they would be guilty
of culpable neglect of legal duty. 80 he
presumption that every man has con-
formed to the law shall stand until some
thing appears to shake hat assumption. -
Lord Eilenborough, &. j., in the King vs.
Hawkins 10 East Yl-2l4. 1t is said in
Ilar well VS. Root. 10, Johns 5i5, that when
one is required to do an act, the omis-
sion of which would make nim guilty of
culpable neglect Of duty il ought to be
intended that he has duly performed it,
un.ess the contrary appears. Judge Story
says in Bank OF the L. 5. vs.. Danbridge
u Wheat o., 50, that the presumption is
that every man in his private and official
character does his duty until the con-
trary is proved. So the presumption is
that the taxpayer includes debts due him
in his tax inventory for otherwise lie
would be guilty of a cupable neglect
of legal duty. Morse vs. Bowers estate,
70 VT, 37S
/ Nor is there any way as the case j.
submitted in which this presumption can
be overcome ana The contrary made to
appear; for that can be done only from in
ierring the contrary from the agreed facts
which is not permissible because such an
inference is not II necessary inference
from those facts as matters Of law When
case Is submitted on agreed facts, the
court can draw no inicIenccs Of fact
from the agreed facts unless, as q matter
OF law, they are necessary differences, that
Is, result as legal couolus ons, Mayhem
vs.. Durfee, 1876, Mass 5Si Van Brunt vs.
Pike, GIL (Md) 20. 40 Am. Dec l.G
This result | suppose because the agreed
statement is the voluntary act OF the par
ties, and therefore sets Il upon the same