notice stipulated for in the lease. The tenant claimed that this notice was made invalid by reason of section 18 of the Agriculture Act, 1920. The plaintiffs accordingly brought this action of ejectment. Master Jelf gave judgment for the tenant, holding that the notice was invalid. This decision was reversed by 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 wide enough to cover any contract of tenancy; joint-stock companies and the committee of inspection in liquidations. These are clearly explained and interestingly discussed. The author's views are generally favourable to the law of Scotland; but he makes some eminently sensible suggestions for the assimilation of the two systems. CURRENT LAW LITERATURE. that the present lease was a contract of tenancy, The Bankruptcy Act, 1914, and the Deeds of Arrange and the notice to determine the tenancy at the end of the first seven years was a notice to quit; and that there was therefore a statutory provision requiring twelve months' notice to be given to determine the tenancy, as section 28 of the Agriculture Act, 1920, plainly applied to any kind of tenancy and not merely to tenancies from year to year. Decision of the Court of Appeal (1923, S.L.T. 111) affirmed. - House of Lords (Viscount Cave L.C., Lords Dunedin, Atkinson, Sumner, and Buckmaster).-13th November 1923. LAW LIBRARY. BOOK NOTICES. Company Law: Principal Distinctions between the Laws of England and Scotland. By George Wilton Wilton, K.C. 1923. London and Edinburgh: Wm. Hodge & Co. Ltd. Price 2s. 6d. ment Act, 1914. With a Commentary thereon by C. Tindale Davis, Barrister-at-Law, and J. R. J. Johnston, I.S.O., Chief Bankruptcy Clerk, Board of Trade. Being the Eighth Edition of the original Commentary by His Honour Judge Chalmers and the late Edwin Hough. Waterlow & Sons Ltd. Price 31s. 6d. net. Woodfall's Law of Landlord and Tenant. Twenty- Jackson's Agricultural Holdings, being the Agri- The Law of Torts. By Sir John Salmond, a Judge Covenants Relating to Land. By J. C. V. Behan, The Salmon and Freshwater Fisheries Act, 1923, Cardinal Rules of Legal Interpretation. Collected and arranged by Edward Beal, B.A., Barristerat-Law. Third Edition. By A. E. Randall, Barrister-at-Law. Stevens & Sons Ltd. Mr Wilton was amply justified in giving to a wider public the two interesting lectures which are reprinted in this little volume. The close commercial association of the two countries makes it important that lawyers and business men should understand the differences in the legal position of companies in Scotland and England. Of these differences, there is no doubt that the most important concerns the floating security," which English law recognises and Scots law does not. The author not only gives an admirably clear and concise 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. 66 Price 40s. net. Contracts of Sale C.I.F. (Costs, insurance, Freight). Second Edition. By George Spencer Bower, Scots law which will have none of it. He shews how this nebulous and intangible "security lends itself to frauds upon the trade creditors of a company; and he is able to quote an impressive array of English authorities in condemnation of the system. The other differences in the two laws concern principally the recognition of trusts in the registers of SOME LICENSING PROBLEMS. By J. R. Haldane, M.A., LL.B., Advocate, Sheriff-Substitute, Stornoway. 66 II. "SELLING" SPIRITS UNDER SECTION 66. Section 66 of the Licensing (Scotland) Act, 1903, enacts that "Every person bartering or selling spirits without having obtained a certificate shall be deemed guilty of an offence," for which certain very stringent penalties are provided. Now, it will be noted that there is no express limitation of this offence to "retail" selling or bartering. Nor is there any definition in the Act of the terms bartering" or "selling"; so that no express limitation to "retail" transactions is thus imported into this section, as is done in the case of "trafficking" under section 65. Does this section mean that every seller of spirits in whatever quantities, and whether his business is a manufacturer's business or a "bona fide wholesale business" or a retail one in the ordinary sense of the word, must apply to the Licensing Court and obtain a Certificate? If that were the meaning of the section it would be a most surprising exception to the whole scheme of the Act, and therefore in dubio the clause should be given the meaning which limits the necessity for a Certificate to retail transactions, as in the rest of the Act; namely, "bartering" and "selling" should be interpreted, if there is any reasonable doubt about the matter, as meaning doing so by retail. Now, although the form of Certificate laid down by the Act (Schedule VI.) contains no express limitation to retail of the business which it authorises, section 11, which defines the jurisdiction of the Licensing Court, only gives that Court jurisdiction to grant Certificates for the conduct of retail indication of any intention to limit one of Scotland's best-known manufacturing industries, it is manifest that this section, which has simply been carelessly transplanted into this statute from another (16 & 17 Vict. cap. 67, which is one "for the better regulation of Public-Houses"), without any attempt to adapt it to its new surroundings, is intended only to apply to "retail" transactions in the same sense as in the rest of the Act. The fact, however, that it did not occur to the draftsmen of the Act that any express limitation to "retail" was required in this section is another indication that they had in mind no artificial, arbitrary meaning of " retail" when they used the term throughout the Act; more especially as this offence of bartering" or "selling" spirits is lumped together in this section with another offence which has no relation to any artificial limitations as to quantities, namely, that of grocers selling spirits to their customers, or treating them to them, to be consumed on their premises. 66 III. EVIDENCE OF "TRAFFICKING." As "sale by retail" in the Licensing Act means sale direct to the public for consumption, some questions arise as to the evidence required to establish a charge of "trafficking" against a person who, because he holds an Excise Wholesale Dealer's Licence or because it is established otherwise, is ostensibly carrying on a bona fide wholesale business in the premises where the trafficking is alleged to have taken place. If it is proved that he effected one transaction with someone not in the trade, and who bought for consumption, is it necessary for the prosecutor to prove that the seller knew 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 of the Act are "null and void to all intents and purposes." Consequently its Certificates, whatever their terms may be, are null and void so far as they purport to give any authority to conduct a manufacturer's business or a wholesale one. It would thus be impossible for anyone who conducts a manufacturer's or a wholesale business alone to obtain the Certificate, which section 66 requires him to possess, for that class of business. The result would be that the effect of section 66 would be to entirely prohibit the manufacture and wholesale sale of spirits within Scotland except by people who obtained a (retailer's) Certificate from the Licensing Court. As there is not from beginning to end of the Act any other provision which interferes in any way with the manufacture of and bona fide wholesale dealing in exciseable liquors, and there is no other hand is it a sufficient defence for the seller to prove that he did not know; or that he knew that, though engaged in the trade, the purchaser's trade was an illicit one-that he was a shebeener, for instance? As was pointed out by Lord Justice-General Strathclyde in the case of M'Cluskey v. Boyd (1916 S.C. (J) 31), the offence under this section is not of effecting sales but of trafficking. It is true that section 107 defines trafficking as meaning and including selling," but if the whole definition were not intended to be governed by the conception of a course of dealing, which is implied by the word "trafficking," there would be no object in using that word at all. The whole definition of the term in section 107 is sufficiently short to have been quite conveniently used in section 65, and in the few other cases where it occurs in the Act, instead of the word "trafficking.” Moreover, the rest of the definition, “dealing 66 C in, trading in, exposing, or offering for sale " all clearly imply the idea of a course of dealing. It was on this ground that it was held in M'Luskey v. Boyd (cit.) that proof of six different sales on separate occasions in one prosecution only constituted one offence of trafficking, and consequently could not be punished as for a third offence. It would appear to follow that an isolated sale might not be sufficient to establish the offence. In the case of The Queen v. Beattie (1866, 5 M. 191) it was held that an isolated sale did not constitute an offence under the Act 6 Geo. IV. cap. 81, section 26, which imposed a penalty on "Every person who shall sell beer, cider, or perry by retail" without taking out the Licence prescribed by that Act The ratio of this decision, as stated by Lord Justice-Clerk Inglis, was that "The true construction of that part of the clause is, that it is intended to describe the same parties who are ordered by the 2nd section of the statute to take out licences," namely, people who conduct a certain class of business. That was an Excise Act, and the wording was slightly different from the Licensing Act, but the decision was based on a consideration of the whole scope and purpose of the Act, and the grounds of the decision would appear to apply a fortiori to the Licensing Act, which is based on a similar system of licensing certain classes of business by Certificates, and the general scope and objects of which are similar in regard to this matter, but which contains the additional indication of intention in this sense supplied by the use of the word trafficking." 66 It was quite recognised, however, in The Queen v. Beattie (cit.) that even an isolated sale might by its own nature indicate that a business in such sales was being carried on. Similarly, under section 65, an isolated sale might by its own nature indicate that the seller was trafficking in such sales. But it would appear to follow as a consequence of the decision in M'Luskey v. Boyd (cit.) that it would be competent to the prosecutor of a charge of trafficking under section 65 to prove facts and circumstances covering the surrounding period relevant to establish that an isolated sale, to one who de facto bought for consumption, was merely one incident in a business of trafficking in such sales carried on by the accused. In that case it would appear that the knowledge or ignorance of the accused as to the real nature of the particular transaction would be irrelevant. The real question would be whether his business was a bona fide wholesale business." As regards the specific transaction, there is, of course, no particular mode of proof laid down under the Licensing Acts. Any circumstances sufficient to enable the conclusion to be reason 66 ably drawn that a sale took place would suffice. Similarly, if the prosecutor established generally that the business of the accused was not a bona fide wholesale one, and also established one specific sale not in itself prima facie a bona fide wholesale one, that should usually be sufficient to establish a presumption of fact that it was a retail one and to throw on the accused the onus of proving that the specific instance was not in fact a retail transaction, in the ordinary meaning of the word "retail," or that he had reasonable grounds for believing that it was not. The Act itself creates a presumption of law of trafficking, in this very way, in the particular case of a person found drinking or drunk in the premises, combined with proof that the place is by repute kept as a shebeen, or that drinking utensils and fittings usually found in a public-house were contained in it (section 97; see also section 96). 66 It is not essential, however, for the prosecutor to libel and prove specific instances in order to secure a conviction under section 65. It is sufficient if he libel and prove that the accused did "offer for sale by retail" (see definition of trafficking," section 107). A course of trade not definitely abandoned, or even a common belief known to the accused and not publicly denied, or the presence of drinking utensils, are circumstances which might be sufficient to establish this charge. There would appear to be no reason why "offering" should not be charged in such cases as an alternative to selling." 66 دو If the purchaser is actually engaged in the business of selling exciseable liquors, and buys for the purposes of that business, this is, of course, a wholesale transaction; and there is nothing in the Licensing Act to suggest that it ceases to be such and becomes "trafficking " simply because the purchaser has himself no Certificate (or no Excise Licence) to cover his own re-sales. It would apparently be a good defence, therefore, to a charge of "trafficking,” that the purchaser was a shebeener and bought for the purposes of his shebeening activities, or that he was buying only to sell again to his waiting friends outside, provided his transaction with them was a genuine sale, and he was not a mere messenger on their behalf to fetch the supplies. (If the purchaser's transactions with his friends were genuine sales, he would, of course, be "trafficking" himself, or hawking," under section 67, or selling spirits under section 66.) But if the seller deals with such persons knowing them to be such, he is aiding them to commit the offence of trafficking by providing them with the necessary supplies, and it would appear that he exposes himself 66 66 دو to a conviction for trafficking in respect of his accession to their re-sales. If, on the other hand, he sells to such persons believing them to be purchasers for their own consumption, then that would appear to be in reality a retail sale, and hence "trafficking," or at least it would be fairly conclusive evidence of "offering" for sale, or a strong item of evidence to prove that he is conducting a business which is not a bona fide wholesale one. Here again there would appear to be no reason why all the requisite alternative charges should not be included in the one complaint. IV. THE UNLICENSED CHEMIST. Under the Excise Acts chemists are expressly allowed to sell "medicines for sick, lame, or distempered persons only" without an Excise Licence, that is, without paying any Excise Duty (16 Geo. II. cap. 8, section 12). But that, of course, has no bearing on their position under the Licensing Acts, and no express provision whatever is made for them by these Acts. On to establish that it was a bona fide medicine and not a mere colourable evasion of the Licensing Acts. The prescription of a reliable doctor whose bona fides was above suspicion, for each sale, ordering a definite limited quantity, for instance, would probably be held sufficient proof of this. But the chemist would probably find it difficult to justify a sale of exciseable liquor however medicated without such definite authority for it; and, of course, if it were not medicated at all he could not escape a conviction for trafficking"; though it is unlikely that the Courts would encourage vexatious prosecutions for merely technical offences, in cases of emergency, for instance. 66 a A somewhat more difficult question arises under section 96 of the Licensing Act, which authorises raids on places where shebeening is suspected, and creates a presumption of law that, if more than one gallon of exciseable liquors is found, it is kept for the purpose of being trafficked in, which is thereby made an offence in itself. The onus is thus thrown on the occupier of the premises to prove that any in the preparation of prescriptions, he must keep them in his premises if he wishes to so use them. But the mere fact that he is a chemist would not protect him if his supply were greater than he was able to prove that the bona fide requirements of his particular business justified. That, again, would be a question of the circumstances of each particular case. While ten gallons might be above suspicion, and thus leave no reasonable presumption of fact under section 96, in the case of premises proved by the accused to be a large store, for instance, a supply of one gallon might leave the legal presumption unaltered if the accused could only prove that he had a small oneman business. 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 exciseable 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 Licensing Acts. A Certificate of the Licensing Court is required for their sale just as for their sale for any other purpose. Section 55 of the 1903 Act, as amended by section 11 of the Temperance (Scotland) Act, 1913, makes special provision for the sale of such liquors on the order of a police officer, or procurator-fiscal, or medical official, or, "in case of sickness, accident, or emergency," of a qualified medical practitioner; but the section only applies to the "holder of any certificate," and is only for the purpose of enabling him to sell after hours (" at any time when such giving out and supply would be otherwise illegal"), without committing a breach of the terms of his Certificate. If no Certificate were required for sales in cases of sickness, or accident, or emergency, such a provision would be unnecessary, as it could be no breach of Certificate to transact a sale to which the Certificate had no reference. In any case, the provision has no reference to chemists who do not hold a Certificate. If they do sell exciseable liquors, the definition of trafficking" in section 107 appears to allow them no loophole of escape. 66 If, however, the chemist who holds no Certificate under the Licensing Act medicates the liquors, the question would turn on whether what he sold was in fact a medicine or an "exciseable liquor." This would depend on the circumstances of each case; but if there were proved to be exciseable liquors in the mixture, it would usually be for the chemist While there may be grave doubts as to the political wisdom of No-Licence, there can be no doubt that the almost incredible lack of energy and enterprise of those responsible for the executive administration of the law in bringing these and allied problems to the decision, if need be, of the Supreme Courts constitutes a dangerous encouragement of a spirit of contempt for the law in those communities which have imposed No-Licence on themselves. MRT. B. TWEEDIE, Scottish solicitor, formerly eleven years solicitor, Supreme and other Courts, Edinburgh, has commenced the practice of his profession at 119 Victoria Street, Westminster, London, S.W. 1. HIGH COURT OF JUSTICIARY, JEDBURGH. (Special Sitting.) Jedburgh-Tuesday, 26th February 1924, at half-past ten o'clock. Pleading Diet - Saturday, 16th February. Service-Saturday, 9th February. The Hon. Lord Constable. J. M. Hunter, Esq., AdvocateDepute; V. S. M. Marshall, Esq., Clerk. MESSRS J. & J. STURROCK & CO., writers, Kilmarnock, inform us that they have assumed Mr David Harvey of 75 Dundonald Road, Kilmarnock, as a partner. The business will be carried on by them under the firm name of J. & J. Sturrock & Co. Letter to the Editor. WORKMEN'S COMPENSATION Dear Sir, Your article on the witticisms of Mr Justice Darling, in your issue of 24th November 1923, p. 159, credits him with quoting Juvenal as saying: "Faciunt desertam et appellant pacem." Tacitus wrote: "Solitudinem faciunt, pax appellant" ("Agricola,” c. 30). This is an improvement and the usual ployment of the appellants was injured in a Assurantie Compagnie Excelsior v. Smith. INTERNATIONAL LAW-IMMUNITY FROM CIVIL PROCEEDINGS-PRIVILEGE OF EMBASSY OFFICIAL. -The plaintiff company brought an action against the defendant for calls on shares. The defendant was an American citizen domiciled in America and occupied a permanent position on the personal staff of the Ambassador as chief of the Mail Department of the Embassy of the United States of America in London. He was appointed by the Ambassador personally, his appointment being confirmed by the Department of State at Washington. His MEN'S COMPENSATION ACT, 1906 (6 EDW. VII. railway accident while travelling to his work ployers should provide a special train for the conveyance of their workmen to and from the 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 sealing, as well as having to forward all diplomatic correspondence issuing from the Embassy. His name was on the list of the Embassy staff submitted to the Foreign Office. He applied to the Master to set aside the writ on the ground that he was protected by V. of or in the course of his employment and did |