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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
CURRENT LAW LITERATURE.
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 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 wide enough to cover any contract of tenancy; that the present lease was a contract of tenancy, 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.
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.
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
The Bankruptcy Act, 1914, and the Deeds of Arrange-
Price 31s. 6d. net.
Woodfall's Law of Landlord and Tenant. Twenty-
Cardinal Rules of Legal Interpretation. Collected
Contracts of Sale C.I.F. (Costs, insurance, Freight).
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 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
Code of the Law of Actionable Defamation.
Law Notes Year Book, 1924.
Price 4s. 6d. net.
Law Notes Year Books, 1921-2-3. In One Vol.
SOME LICENSING PROBLEMS.
By J. R. Haldane, M.A., LL.B.,. Advocate,
indication of any intention to limit one of Scotland's best-known manufacturing in-. dustries, it is manifest that this section, which 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 "retail 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 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 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 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
chaser'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
The whole definition
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. 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
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."
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
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).
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."
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
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
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 " offer-proof of this. But the chemist would probably ing" 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.
find it difficult to justify a sale of exciseable liquor however medicated without such a 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.
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 12). 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 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 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 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.
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.
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.
MR T. 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.
diplomatic privilege. The Master granted the
HIGH COURT OF JUSTICIARY, Jedburgh.
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.
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
In your same issue you quote Sir Walter Scott on Aberdeen Advocates. A more modern
author refers to "The height of desolation Aberdeen on a flag day."-Yours, etc.
DECISIONS IN THE ENGLISH
Embassy, carrying out official duties, came
St Helens Colliery Co. Ltd. v. Hewitson.
ployment of the appellants was injured in a
ployers should provide a special train for the
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.
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 position was one of great confidential importance. He had charge of the Embassy 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
The County Court judge decided the case in favour of the miner and awarded compensation. His award was affirmed by the Court of Appeal (Lord Sterndale M.R., Warrington and Younger L.JJ.). Held (dissenting Lord Shaw) that the workmen in travelling to and from the colliery in provided trains were not discharging any duty to their employers which their contracts of service bound them to discharge, and that consequently the injury sustained by the respondent did not arise out of or in the course of his employment and did not entitle him to compensation. Decision of the Court of Appeal reversed. Cremins V. Guest, Keen & Nettlefolds Ltd. ( 1 K.B. 469) disapproved. - House of Lords (Lords Buckmaster, Atkinson, Shaw, Wrenbury, and Carson).-22nd November 1923.