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Although brought up so strict,
Young Osgood doth know
the "Sunday Times," "he was incomparable;
we append one of his better-known
fair Minna Moss was induced to say “yes.”
But smit with a fear
That their life might be queer,
"Legends of Leading Cases," published in Then out spoke that dowager, wrinkled and grey,
I'm going away—
I beg you to note it
And she said it, as plain as a body could speak;
And trunks galore;
(20 R. 636). In his early days at the Scots In the young people's home, do I purpose to stay ;
For it's plain the old lady has come to stay.
O, the dowager's crusty, and crabbed, and cross,
All the county of Ross;
Married in 1879 to Miss Frances Annesley Voysey, a daughter of the Rev. Charles Voysey, masterful matron managed him ; he had a family of two, a son and a daughter. And everyone saw, In 1894 he succeeded to the estate of Milton How poor little Minna was under the claw With pity and awe, Brodie in Morayshire, and resided__ there Of a most reprehensible mother-in-law. whenever his engagements permitted. He was a Deputy-Lieutenant and Justice of the Peace of that county. In politics he was ever consistently Conservative.
When I read prayers;
Or flippantly out of the window stares.
She don't care a curse,
Though I go to visit my elderly nurse.
And the game is done,
And Minna's fortune for us is won,
As soon as may be
We'll bag her baby,
And that will bring her to book-you bet."
EXTRA GLASGOW CIRCUIT.-The Hon. Lord Anderson and the Hon. Lord Sands. GlasgowMonday, 3rd March 1924, at eleven o'clock forenoon. Pleading diet-Friday, 22nd February 1924. Service Friday, 15th February 1924. A. Maitland, Esq., Advocate-Depute; Messrs Alexander Rae and V. S. M. Marshall, Clerks.
FACULTY OF ADVOCATES.-The anniversary meeting of the Faculty was held on 16th January in the Advocates' Library, the Dean presiding.
The Faculty officers for the year were appointed as follows: Dean of Faculty, Mr James Condie Stewart Sandeman, K.C.; ViceDean, Mr Charles Herbert Brown, K.C.; Treasurer of the Faculty and of the Chalmers Trust, Mr John Cowan, O.B.E., K.C.; Keeper of the Library and Clerk of Faculty, Mr W. K. Dickson, LL.D.; Auditor, Mr William Home Cook, C.A. Mr M. G. Fisher and Mr J. S. C. Reid were appointed Reporters on probabilis causa, and the Counsel for the Poor were appointed as follows: Mr A. G. Erskine Hill, Mr T. B. Simpson, Mr L. Hill Watson, Mr T. Grainger Stewart, Mr R. C. Macfarlane, and Mr J. C. M. Guy.
Reports of various Faculty committees were submitted and approved.
MR D. H. M'NEILL, M.A., LL.B., solicitor, intimates that he has commenced the practice of his profession at 63 Church Street, Inverness,
SOME LICENSING PROBLEMS. By J. R. HALDANE, M.A., LL.B., Advocate, Sheriff-Substitute, Stornoway.
66 I. THE WHOLESALE " TRAFFICKER. The denuding of areas of licensed premises under a No-Licence Resolution has disclosed the presence of persons who hold Excise Wholesale Dealer's Licences and who claim to be entitled to sell to all and sundry provided only they do not sell in less than the quantities authorised by their Excise Licence. In this way what is claimed to be a legalised method of evasion of the Licensing Laws is set up through the instrumentality of persons who held, or were astute enough to obtain, Excise Wholesale Dealer's Licences the necessary twelve months before the poll. The Excise authorities are forbidden to grant or renew such licences to any other parties within a No-Licence Area without the consent of the Licensing Court (Temperance (Scotland) Act, 1913, section 15 (c)). The legal problems raised by this kind of trade are in no way peculiar to No-Licence Areas. They apply equally to any place. No-Licence merely happens to be the agency which has made the problem one of especial practical importance. As the bulk of the consuming public are unable in a No-Licence Area to obtain their requirements in the small quantities which are convenient for them they very naturally club together and buy them in the "wholesale " quantities which such traders offer, and then distribute them among themselves in convenient quantities. Is such a traffic legal under the Licensing Acts?
the liberty of the subject further than its clearly
The enactment which primarily regulates the
Prima facie it seems unlikely that a jurisdiction established in the Justices for the restraint of abuses in the consumption of alcoholic liquor by controlling its sale to the public should be so limited as to exclude from its scope such sales to the public if only the quantity sold at one time is big enough. Prima facie, the larger the quantities in which it is sold for consumption the greater the need for such control. As it is abundantly clear from the Licensing Statutes that the conferring of this power of control on the Justices is the main object of the Licensing Acts (i.e. the Licensing (Scotland) Act, 1903, and the Temperance (Scotland) Act, 1913), as distinct from the Excise and Revenue Acts, the Licensing Acts would fall to be interpreted in case of dubiety (according to the ordinary rule for the interpretation of statutes) in such a way as to give effect to this intention of the legislature. This consideration would negative, in regard to this matter, that other rule of interpretation that in dubio the legislature is not to be presumed to intend to limit
or of the possession of a Certificate or a Licence, be an ordinary retail purchase; but to the dockfor example by "hawking," under section labourer's tobacconist it may appear to be a 67). If it is a relevant defence, therefore, wholesale one, and still more to the street to a prosecution under this section to say that vendor of matches. A case of whisky may be the class of business carried on is one which is for you an ordinary "retail" purchase, but to authorised by an Excise Wholesale Dealer's the artisan's publican it might be pre-eminently Licence held by the accused, it would be equally a wholesale one. What, then, constitutes relevant to prove that the business is of the • bulk ? Clearly it depends on the circumsame class even although the accused does not stances of each case. The only criterion would actually hold any Excise Licence. The result appear to be that sales in the quantities which, would be that the Justices' jurisdiction would in the particular class of business, are usually be limited by a classification of trades intro- sold to the general public for consumption are duced into Revenue and Excise Acts for the "retail," and those which, in the particular purpose of graduating the duties payable on class of business are usually sold to the trade in different classes of business. Parliament might the ordinary course of business, for re-sale, are at any time alter those duties by changing the wholesale," and bulk," in this connection, classification of the businesses, for the sole simply means the normal unit of such "wholepurpose of increasing or reducing the revenue sale transactions. Which leads us back to or of facilitating its collection, for instance," sale to the general public for consumption" and thus by a fortuitous side-wind the juris- as the only ultimate criterion of what is sale by diction of the Justices might be whittled away retail." or increased. It is not to be presumed in dubio that this was the intention of the legislature, not only because it would be to limit the right conferred on the Justices in one statute by the provisions of other legislation enacted for an entirely different purpose, but because, the other legislation being contained in Money Acts, the legislating authority would be differently constituted.
Before considering whether the Licensing Act contains any indications of an intention to more closely define "retail," it will be convenient to inquire whether it contains any indications of meaning by the term, not its ordinary sense, but some arbitrary, artificial meaning. The only such interpretation for which there is any suggestion in the Act is that claimed by the "wholesale" retailers, namely, that it has the What does trafficking' mean in this same meaning as in Excise Licences. These section? It is defined in section 107 thus: Licences are now granted under the authority "The expression trafficking' shall mean and of the Finance (1909-10) Act, 1910. That Act include bartering, selling, dealing in, trading in, itself contains no definition of the terms exposing, or offering for sale by retail." In the "retail" or "wholesale" as used in it; there case under consideration, therefore, the question can be little doubt, however, that they mean in turns on the meaning of by retail.' Now, that Act what they mean in the forms of 66 retail is nowhere defined in the Act. Licences given in the First Schedule to the Act. According to the ordinary canon of construction Any other interpretation would give to the of Acts of Parliament, therefore, it is to be penalty clause (section 50) the effect of regulainterpreted in its ordinary popular meaning ting the conduct of business in the Licensed unless there is a clear indication in the Act Trade, by forcing wholesale traders and retail itself of some other intention. In ordinary traders respectively to confine their business parlance "retail" is the counterpart of" whole- strictly within the limits, as to the quantities sale." The term wholesale is also used in sold in any one transaction, prescribed in the the Act, very significantly, as we shall notice; forms given in that schedule. No one, for but it also is left undefined. In popular par- instance, could sell to the consumer more than lance "retail means "small quantities," and two gallons of whisky at a time even though wholesale means large quantities.' But he had both a Wholesale Dealer's and a Retailer's how are you to determine what is a small Licence. Under his Retailer's Licence it would and what a "large" quantity? For purposes be unauthorised because of its quantity; and of sale by retail, retail" is usually defined as under section 50 it would be prohibited, meaning "breaking bulk"; but that does not being a retail transaction (a sale to the concarry us much further, for what is "bulk"? Asumer), not authorised by his Retailer's ship-load of Ford cars may be a sale in bulk, but how few are required to constitute a retail sale? A crate containing a gross of dozen-packets of matches may be clearly "bulk," but is a sale of one packet containing a dozen boxes a wholesale" or a "retail" transaction? To the middle-class smoker's tobacconist it may
fore, equally well bear the interpretation that the legislature intended to absolutely prohibit all sales of liquor by retail (in the popular sense -to the public, for consumption), except those
retail" in that Act consequently have the artificial, specialised meaning fixed by the classification effected by the respective classes of Excise Licence specified in the Schedule. In any case, it would probably suit the "whole-in the limited quantities allowed by an Excise sale retailers' case equally well to refer to the Schedule alone for the meaning of the terms as used in the Licensing Act, because neither the Finance Act in force at its date (1903), nor any other Revenue or Excise Act is referred to in the provisions on which they would rely, but only "excise licences." What are these provisions?
Retailer's Licence (namely, not more than two gallons of spirits and wines, etc., or four and a half gallons of beer or cider, at one time (see Schedule 1 of Finance Act)). And there is no reason, such as applies to the Finance Act, why the legislature should be presumed not to have so intended in this Licensing Act whose very object is to regulate the conduct of "The Trade (see, for instance, section 42-control over structure of premises). If section 65, however, admits of any ambiguity, the considerations noticed at the outset would determine the matter in favour of the popular meaning of
retail," in section 65 at any rate, thus rendering the Wholesale Excise Licence-holders' sales to the public for consumption an offence under section 65.
Section 11 of the Licensing Act, 1903, provides that "it shall be lawful " for the Justices' Licensing Court "to grant certificates to grant certificates. . . to such and so many persons as the court then assembled shall think meet and convenient, to keep inns and hotels or public-houses, within which exciseable liquors may, under excise licences, be sold by retail, to be drunk or consumed in the premises.' Does the phrase under excise licences " modify the expression As this limiting interpretation of " by retail by retail," or is it merely a saving proviso in section 11, however, would thus have the effect introduced to prevent the section being inter- of limiting both the powers of the Licensing Court preted as enabling the possession of a Certificate and the classes of business which are permissible to be pleaded as a sufficient answer to a prose-to" The Trade," it is worth scrutinising it further. cution under the Excise Acts for trading without an Excise Licence? At first sight the phrase to be drunk or consumed in the premises might appear to confirm the view that the phrase explains the meaning of "by retail" by reference to Excise Licences. The Excise Licence which permits sale in the premises is the "On-Licence," and this Licence also permits sale for consumption off the premises (see the First Schedule of the Finance (1909-10) Act, 1910). It might be thought, therefore, that the intention was to make the Certificate necessarily confer authority on the holder to obtain either an "On" or an Off" Excise Licence according to his choice, as otherwise the Licensing Bench might entirely prohibit sale for consumption on the premises by giving authority only to obtain an Excise Retailer's Off-Licence. The phrase "to be drunk or consumed in the premises might appear to be otherwise unnecessary and meaningless, as inn and hotel and public-house" necessarily imply in any case a place where the refreshments sold may be consumed on the premises-they are meaningless otherwise (see also express definition of " public-house in this sense in the definition clause, section 107). On the other hand, granted that this section (11) were intended to bear this construction, it does not follow that the meaning of "trafficking" in section 65 is to bear the same limitation. The definition of "trafficking" in section 107 contains no reference to Excise Licences, but only to "retail" de plano. Section 65 may, there
It is to be noted that this interpretation of " by retail," occurring in section 11 as limited to its Excise meaning, would mean that the jurisdiction of the Justices' Licensing Court is limited to the mere granting of Certificates of permission to obtain Retailers' Excise Licences. Now, there is no reason why such a Court should not be set up to administer Revenue Legislation, but, if it were, one would expect to find the statutory regulations about it embodied in the Revenue and Excise Acts concerned instead of in a separate Temperance Act, or at least to find in the Act setting it up some reference to the Revenue and Excise legislation to which its functions relate. But, from beginning to end of the Licensing Act, there is no reference to that legislation except (1) in clauses (such as those in Part II. of the Act) where, although that legislation is not expressly referred to, the machinery of the Excise Department is called in aid, not to assist in any way in the enforcement of any Revenue or Excise legislation or licensing system, but to assist in the administration and enforcement of the system of certificating under the Licensing Act itself; and (2) where, in section 65, it is enacted that the penalties enacted for "trafficking" without a Justices' Certificate "shall be over and above any penalty which such person so convicted may have incurred or paid, or be liable to pay, for or by reason of such trafficking under any Act relating to Inland Revenue or Excise," a provision which in itself implies that this Act does not relate to Revenue or Excise, and that it constitutes an