Page images

notice stipulated for in the lease. The tenant joint-stock companies and the committee of claimed that this notice was made invalid by inspection in liquidations. These are clearly reason of section 18 of the Agriculture Act, explained and interestingly discussed. The 1920. The plaintiffs accordingly brought this author's views are generally favourable to the action of ejectment. Master Jelf gave judg-law of Scotland; but he makes some eminently ment for the tenant, holding that the notice sensible suggestions for the assimilation of the was invalid. This decision was reversed by two systems. the Divisional Court (Bailhache and M*Cardie JJ.), but affirmed by the Court of Appeal (Lord Sterndale M.R., Warrington and Atkin L.JJ.). Held that the definition contained in section 48 of the Agricultural Holdings Act, 1908, was

CURRENT LAW LITERATURE. wide enough to cover any contract of tenancy; that the present lease was a contract of tenancy, The Bankruptcy Act, 1914, and the Deeds of Arrangeand the notice to determine the tenancy at the ment Act, 1914. With a Commentary thereon end of the first seven years was a notice to by C. Tindale Davis, Barrister-at-Law, and quit; and that there was therefore a statutory

J. R. J. Johnston, I.S.O., Chief Bankruptcy provision requiring twelve months' notice to Clerk, Board of Trade. Being the Eighth be given to determine the tenancy, as section 28

Edition of the original Commentary by His of the Agriculture Act, 1920, plainly applied to

Honour Judge Chalmers and the late Edwin

Hough. Waterlow & Sons Ltd. any kind of tenancy and not merely to tenancies

Price 31s, 6d. net. from year to year. Decision of the Court of Appeal (1923, S.L.T. 111) affirmed.-House of Woodfall's Law of Landlord and Tenant. TwentyLords (Viscount Cave L.C., Lords Dunedin, first Edition. By A. J. Spencer, of Lincoln's Atkinson, Sumner, and Buckmaster).—13th Inn. Sweet elo Maxwell Ltd. and Stevens & November 1923.

Sons Ltd.

Price 50s. net.

Jackson's Agricultural Holdings, being the Agri

cultural Holdings Act, 1923. By W. Hanbury

Aggs, Barrister-at-Law. Sixth Edition. Sweet LAW LIBRARY.

& Maxwell Ltd.

Price lls. 6d. net.

The Law of Torts. By Sir John Salmond, a Judge BOOK NOTICES.

of the Supreme Court of New Zealand. Sweet & Maxwell Ltd.

Price 30s. net. Company Law : Principal Distinctions between

the Laws of England and Scotland. By Covenants Relating to Land. By J. C. V. Behan, George Wilton Wilton, K.C. 1923. London

M.A., LL.D.(Melb.), M.A., B.C.L.(Oxon.). Sweet and Edinburgh: Wm. Hodge & Co. Ltd. & Maxwell Ltd.

Price 15s. net. Price 2s. 6d.

The Salmon and Freshwater Fisheries Act, 1923, Mr Wilton was amply justified in giving to and the Rivers Pollution Prevention Acts. By a wider public the two interesting lectures Hubert Stuart Moore, F.S.A., Barrister-at-Law. which are reprinted in this little volume. The Sweet & Maxwell Ltd.

Price 21s. net. close commercial association of the two countries makes it important that lawyers and business Cardinal Rules of Legal Interpretation. Collected men should understand the differences in the and arranged by Edward Beal, B.A., Barristerlegal position of companies in Scotland and

at-Law. Third Edition. By A. E. Randall,

Barrister-at-Law. Stevens & Sons Ltd. England. Of these differences, there is no

Price 40s. net. doubt that the most important concerns the

floating security," which English law recog- Contracts of Sale C.I.F. (Costs, insurance, Freight). nises and Scots law does not. The author

By A. B. Kennedy, K.C. Stevens & Sons Ltd. not only gives an admirably clear and concise

Price 7s. 6d. net. account of the nature of the floating charge, but makes no secret of his preference for the A Code of the Law of Actionable Defamation. Scots law which will have none of it. He shews Second Edition. By George Spencer Bower, how this nebulous and intangible "security one of His Majesty's Counsel, a Master of the lends itself to frauds upon the trade creditors

Bench of the Inner Temple. Butterworth & Co.

Price 42s. net. of a company; and he is able to quote an impressive array of English authorities in Law Notes Year Book, 1924. Price 4s. 6d. net. condemnation of the system. The other differences in the two laws concern principally Law Notes Year Books, 1921-2-3. In One Vol. the recognition of trusts in the registers of The “ Law Notes ” Publishing Office.

[ocr errors]


o retail

[ocr errors]
[ocr errors]
[ocr errors]


[ocr errors]
[ocr errors]

indication of any intention to limit one of SOME LICENSING PROBLEMS.

Scotland's best-known manufacturing inBy J. R. Haldane, M.A., LL.B., Advocate,

dustries, it is manifest that this section, which Sheriff-Substitute, Stornoway.

has simply been carelessly transplanted into

this statute from another (16 & 17 Vict. cap. II. “SELLING SPIRITS UNDER SECTION 66.

67, which is one " for the better regulation Section 66 of the Licensing (Scotland) Act, of Public-Houses ”), without any attempt to 1903, enacts that Every person bartering or adapt it to its new surroundings, is intended selling spirits without having obtained a cer- only to apply to "retail ” transactions in the tificate shall be deemed guilty of an same sense as in the rest of the Act. The fact, offence,for which certain very stringent penal- ; however, that it did not occur to the draftsmen ties are provided. Now, it will be noted that of the Act that any express limitation to there is no express limitation of this offence to

was required in this section is another "retail ” selling or bartering. Nor is there any indication that they had in mind no artificial, definition in the Act of the terms“ bartering arbitrary meaning of

arbitrary meaning of “retail ” when they or “selling”; so that no express limitation to used the term throughout the Act; more

retail transactions is thus imported into especially as this offence of “bartering” or this section, as is done in the case of “ traffick- selling” spirits is lumped together in this ing" under section 65. Does this section mean section with another offence which has no that every seller of spirits in whatever quantities, relation to any artificial limitations as to and whether his business is a manufacturer's quantities, namely, that of grocers selling business or a

bona fide wholesale business or spirits to their customers, or treating them to a retail one in the ordinary sense of the word, them, to be consumed on their premises. must apply to the Licensing Court and obtain a Certificate ? If that were the meaning of III. EVIDENCE OF TRAFFICKING." the section it would be a most surprising exception to the whole scheme of the Act, and

As “sale by retail ” in the Licensing Act therefore in dubio the clause should be given means sale direct to the public for consumption, the meaning which limits the necessity for a some questions arise as to the evidence reCertificate to retail transactions, as in the rest quired to establish a charge of “trafficking of the Act; namely, “bartering" and "sell- against a person who, because he holds an

” ing" should be interpreted, if there is any Excise Wholesale Dealer's Licence or because it reasonable doubt about the matter, as meaning is established otherwise, is ostensibly carrying on doing so by retail. Now, although the form a bona fide wholesale business in the premises of Certificate laid down by the Act (Schedule where the trafficking is alleged to have taken VI.) contains no express limitation to retail place. If it is proved that he effected one of the business which it authorises, section 11, transaction with someone not in the trade, and which defines the jurisdiction of the Licensing who bought for consumption, is it necessary Court, only gives that Court jurisdiction to for the prosecutor to prove that the seller knew grant Certificates for the conduct of retail that the purchaser was not in the trade, or that businesses. And by section 39 Certificates he bought for consumption; or on the other granted contrary to the terms and provisions hand is it a sufficient defence for the seller to of the Act are

null and void to all intents and prove that he did not know; or that he knew purposes.” Consequently its Certificates, what that, though engaged in the trade, the purever their terms may be, are null and void so chaser's trade was an illicit one—that he was a far as they purport to give any authority to shebeener, for instance ? As was pointed out conduct a manufacturer's business or a whole- by Lord Justice-General Strathclyde in the case

It would thus be impossible for of M'Cluskey v. Boyd (1916 S.C. (J) 31), the anyone who conducts a manufacturer's or a offence under this section is not of effecting wholesale business alone to obtain the Cer- sales but of trafficking. It is true that section tificate, which section 66 requires him to 107 defines trafficking as meaning and including possess, for that class of business. The result selling,” but if the whole definition were not would be that the effect of section 66 would intended to be governed by the conception of be to entirely prohibit the manufacture and a course of dealing, which is implied by the wholesale sale of spirits within Scotland except word “trafficking,” there would be no object by people who obtained a (retailer's) Certificate in using that word at all. The whole definition from the Licensing Court. As there is not of the term in section 107 is sufficiently short to from beginning to end of the Act any other have been quite conveniently used in section provision which interferes in any way with the 65, and in the few other cases where it occurs manufacture of and bona fide wholesale dealing in the Act, instead of the word “trafficking." in exciseable liquors, and there is no other Moreover, the rest of the definition, " dealing

sale one.


It was

[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

in, trading in, exposing, or offering for sale ” all ably drawn that a sale took place would clearly imply the idea of a course of dealing. suffice.

on this ground that it was held in Similarly, if the prosecutor established M-Luskey v. Boyd (cit.) that proof of six generally that the business of the accused was different sales on separate occasions in one not a bona fide wholesale one, and also estabprosecution only constituted one offence of lished one specific sale not in itself prima facie trafficking, and consequently could not be a bona fide wholesale one, that should usually punished as for a third offence. It would appear be sufficient to establish a presumption of to follow that an isolated sale might not be fact that it was a retail one and to throw sufficient to establish the offence. In the on the accused the onus of proving that the case of The Queen v. Beattie (1866, 5 M. 191) specific instance was not in fact a retail transit was held that an isolated sale did not con- action, in the ordinary meaning of the word stitute an offence under the Act 6 Geo. IV. cap. 81, retail,” or that he had reasonable grounds section 26, which imposed a penalty on “Every for believing that it was not. The Act itself person who shall sell beer, cider, or perry by creates a presumption of law of trafficking, in retail without taking out the Licence pre- this very way, in the particular case of a person scribed by that Act The ratio of this decision, found drinking or drunk in the premises, comas stated by Lord Justice-Clerk Inglis, was that bined with proof that the place is by repute

The true construction of that part of the kept as a shebeen, or that drinking utensils clause is, that it is intended to describe the and fittings usually found in a public-house same parties who are ordered by the 2nd were contained in it (section 97; see also section of the statute to take out licences,

» section 96). namely, people who conduct a certain class of It is not essential, however, for the prosecutor business. That was an Excise Act, and the to libel and prove specific instances in order to wording was slightly different from the Licens- secure a conviction under section 65. It is ing Act, but the decision was based on a con- sufficient if he libel and prove that the accused sideration of the whole scope and purpose of did "offer for sale by retail ” (see definition of the Act, and the grounds of the decision would trafficking," section 107). A course of trade appear to apply a fortiori to the Licensing not definitely abandoned, or even a common Act, which is based on a similar system of belief known to the accused and not publicly licensing certain classes of business by Certifi- denied, or the presence of drinking utensils, cates, and the general scope and objects of which are circumstances which might be sufficient to are similar in regard to this matter, but which establish this charge. There would appear contains the additional indication of intention to be no reason why offering

» should not be in this sense supplied by the use of the word charged in such cases an alternative to “trafficking."

selling." It was quite recognised, however, in The If the purchaser is actually engaged in the Queen v. Beattie (cit.) that even an isolated sale business of selling exciseable liquors, and buys might by its own nature indicate that a business for the purposes of that business, this is, of in such sales was being carried on. Similarly, course, a wholesale transaction; and there under section 65, an isolated sale might by its is nothing in the Licensing Act to suggest that own nature indicate that the seller was traffick- it ceases to be such and becomes “trafficking ing in such sales. But it would appear to simply because the purchaser has himself no follow as

a consequence of the decision in Certificate (or no Excise Licence) to cover his M'Luskey v. Boyd (cit.) that it would be com- own re-sales. It would apparently be a good petent to the prosecutor of a charge of traffick- defence, therefore, to a charge of “ trafficking, ing under section 65 to prove facts and circum- that the purchaser was a shebeener and bought stances covering the surrounding period relevant for the purposes of his shebeening activities, to establish that an isolated sale, to one who or that he was buying only to sell again to his de facto bought for consumption, was merely waiting friends outside, provided his transone incident in a business of trafficking in such action with them was a genuine sale, and he was sales carried on by the accused. In that case not a mere messenger on their behalf to fetch it would appear that the knowledge or ignorance the supplies. (If the purchaser's transactions of the accused as to the real nature of the with his friends were genuine sales, he would, particular transaction would be irrelevant. The of course, be“ trafficking " himself, or “hawkreal question would be whether his business ing," under section 67, or “selling spirits ”

, a bona fide wholesale business." As under section 66.) But if the seller deals with regards the specific transaction, there is, of such persons knowing them to be such, he is course, no particular mode of proof laid down aiding them to commit the offence of trafficking under the Licensing Acts. Any circumstances by providing them with the necessary supplies, sufficient to enable the conclusion to be reason- and it would appear that he exposes himself

[ocr errors]


[ocr errors]
[ocr errors]



to a conviction for trafficking in respect of his to establish that it was a bona fide medicine and accession to their re-sales. If, on the other not a mere colourable evasion of the Licensing hand, he sells to such persons believing them Acts. The prescription of a reliable doctor to be purchasers for their own consumption, whose bona fides was above suspicion, for each then that would appear to be in reality a sale, ordering a definite limited quantity, for retail sale, and hence" trafficking," or at least instance, would probably be held sufficient it would be fairly conclusive evidence of “offer-proof of this. But the chemist would probably ing" for sale, or a strong item of evidence to find it difficult to justify a sale of exciseable prove that he is conducting a business which liquor however medicated without such a is not a bona fide wholesale one. Here again definite authority for it; and, of course, if

; there would appear to be no reason why all it were not medicated at all he could not escape the requisite alternative charges should not be a conviction for “trafficking"; though it is included in the one complaint.

unlikely that the Courts would encourage

vexatious prosecutions for merely technical IV. THE UNLICENSED CHEMIST.

offences, in cases of emergency, for instance.

A somewhat more difficult question arises Under the Excise Acts chemists are expressly under section 96 of the Licensing Act, which allowed to sell “medicines for sick, lame, or authorises raids on places where shebeening distempered persons only " without an Excise is suspected, and creates a presumption of law Licence, that is, without paying any Excise that, if more than one gallon of exciseable Duty (16 Geo. II. cap. 8, section 17). But that, liquors is found, it is kept for the purpose of of course, has no bearing on their position under being trafficked in, which is thereby made an the Licensing Acts, and no express provision offence in itself. The onus is thus thrown on whatever is made for them by these Acts. On the occupier of the premises to prove that any the other hand it is quite clear from section quantity above one gallon is not kept for the 55 of the principal Act that sales of excisea ble purpose of being “ trafficked” in. Obviously, liquors for medicinal purposes are not intended if a chemist is entitled to use exciseable liquors to be in any exceptional position under the in the preparation of prescriptions, he must Licensing Acts. A Certificate of the Licensing | keep them in his premises if he wishes to so Court is required for their sale just as for their use them. But the mere fact that he is a sale for any other purpose. Section 55 of the chemist would not protect him if his supply 1903 Act, as amended by section 11 of the were greater than he was able to prove that the Temperance (Scotland) Act, 1913, makes special bona fide requirements of his particular business provision for the sale of such liquors on the justified. That, again, would be a question order of a police officer, or procurator-fiscal, or of the circumstances of each particular case. medical official, or, “ in case of sickness, acci- While ten gallons might be above suspicion, and dent, or emergency,” of a qualified medical thus leave no reasonable presumption of fact practitioner ; but the section only applies to under section 96, in the case of premises the “holder of any certificate," and is only proved by the accused to be a large store, for the purpose of enabling him to sell after for instance, a supply of one gallon might leave hours (" at any time when such giving out and the legal presumption unaltered if the accused supply would be otherwise illegal ”), without could only prove that he had a small onecommitting a breach of the terms of his Certi- man business. ficate. If no Certificate were required for While there may be grave doubts as to the sales in cases of sickness, or accident, or emerg- political wisdom of No-Licence, there can be ency, such a provision would be unnecessary, no doubt that the almost incredible lack of as it could be no breach of Certificate to transact energy and enterprise of those responsible for a sale to which the Certificate had no reference. the executive administration of the law in In any case, the provision has no reference to bringing these and allied problems to the chemists who do not hold a Certificate. If decision, if need be, of the Supreme Courts they do sell exciseable liquors, the definition constitutes a dangerous encouragement of a of trafficking in section 107 appears to spirit of contempt for the law in those comallow them no loophole of escape.

munities which have imposed No-Licence on If, however, the chemist who holds no themselves. Certificate under the Licensing Act medicates the liquors, the question would turn on whether what he sold was in fact a “ medicine or an MR T. B. TWEEDIE, Scottish solicitor, “exciseable liquor.” This would depend on formerly eleven years solicitor, Supreme and the circumstances of each case ; but if there other Courts, Edinburgh, has commenced the were proved to be exciseable liquors in the practice of his profession at 119 Victoria Street, mixture, it would usually be for the chemist Westminster, London, S.W.1.

[ocr errors]

HIGH COURT OF JUSTICIARY, JEDBURGH.- diplomatic privilege. The Master granted the (Special Sitting.) Jedburgh-Tuesday, 26th application and set aside the writ, and, on February 1924, at half - past ten o'clock. appeal, his decision was affirmed by M‘Cardie J. Pleading Diet - Saturday, 16th February. Held that a person who like the defendant was Service - Saturday, 9th February. The Hon. occupying a position of great confidential imLord Constable. J. M. Hunter, Esq., Advocate- portance, and was on the official staff of the Depute; V. S. M. Marshall, Esq., Clerk. Embassy, carrying out official duties, came

within the class of people who were privileged, MESSRS J. & J. STURROCK & Co., writers, and that the defendant was entitled to the imKilmarnock, inform us that they have assumed munity he claimed.—Court of Appeal (Scrutton Mr David Harvey of 75 Dundonald Road, and Atkin L.JJ.).—20th November 1923. Kilmarnock, as a partner. The business will be carried on by them under the firm name of J. & J. Sturrock & Co.

St Helens Colliery Co. Ltd. v. Hewitson.

[ocr errors]





WORK IN A SPECIALLY PROVIDED TRAINDear Sir,—Your article on the witticisms of

IMPLIED TERM OF CONTRACT OF SERVICE THAT Mr Justice Darling, in your issue of 24th

EMPLOYERS SHOULD PROVIDE TRAIN-ACCIDENT November 1923, p. 159, credits him with

ON RAILWAY-INJURY TO WORKMAN-WORKquoting Juvenal as saying: Faciunt desertam et appellant pacem.Tacitus wrote: Soli

MEN'S COMPENSATION ACT, 1906 (6 EDW. VII. tudinem faciunt, pas appellant(“Agricola,

CAP. 58), SECTION 1 (1).-A miner in the emc. 30). This is an improvement and the usual ployment of the appellants was injured in a

railway accident while travelling to his work version.

from his home at Maryport. It was an implied In your same issue you quote Sir Walter

term of the contract of service that the emScott on Aberdeen Advocates. A more modern author refers to “The height of desolation-ployers should provide a special train for the Aberdeen on a flag day.”—Yours, etc.

conveyance of their workmen to and from the "OBAN.”

colliery and Maryport. The employers arranged this with the railway company, agreeing to indemnify them against claims for damages by the passengers in case of accident. For this con

veyance the workmen were charged a reduced DECISIONS IN THE ENGLISH

fare which was deducted week by week from COURTS.

their wages. On entering the employment of

the colliery company the workman who desired Assurantie Compagnie Excelsior v. Smith. to avail himself of this means of transport

signed an agreement with the railway company INTERNATIONAL LAW-IMMUNITY FROM CIVIL releasing them from all claims in

case of PROCEEDINGS-PRIVILEGE OF EMBASSY OFFICIAL. accident. The respondent, therefore, had been

-The plaintiff company brought an action deprived of_his claims against the railway against the defendant for calls on shares.

The County Court judge decided defendant was an American citizen domiciled the case in favour of the miner and awarded in America and occupied a permanent position compensation. His award was affirmed by the on the personal staff of the Ambassador as Court of Appeal (Lord Sterndale M.R., Warringchief of the Mail Department of the Embassy of ton and Younger L.JJ.). Held (dissenting the United States of America in London. He Lord Shaw) that the workmen in travelling to was appointed by the Ambassador personally, and from the colliery in provided trains were his appointment being confirmed by the not discharging any duty to their employers Department of State at Washington. His which their contracts of service bound them to position was one of great confidential im- discharge, and that consequently the injury portance. He had charge of the Embassy sustained by the respondent did not arise out seal and sealed all documents which required of or in the course of his employment and did sealing, as well as having to forward all not entitle him to compensation. Decision of diplomatic correspondence issuing from the the Court of Appeal reversed. Cremins v. Embassy. His name was on the list of the Guest, Keen & Nettlefolds Ltd. ([1908] 1 K.B. Embassy staff submitted to the Foreign Office. 469) disapproved. - House of Lords (Lords He applied to the Master to set aside the writ Buckmaster, Atkinson, Shaw, Wrenbury, and on the ground that he was protected by Carson).—22nd November 1923.

The company

[ocr errors]
« PreviousContinue »