v. Spencer

7

tain vessel would have been justified upon proof that the whisky did in fact disappear while Campbell, M‘Donald, & Company's men were there, so that some of them-it might be only one of them-must have taken it. It would not have been necessary, in order to support their claim against Campbell, M'Donald, & Company, to prove that all the men helped to take it, or who the men were who were there. It would have been sufficient to prove that the whisky had disappeared while the men were on the premises and must have been taken by one or all of them. In the letter written in explanation of the demand this is exactly the explanation given. It stated six bottles had been abstracted. It did not make a charge of theft against any individual man at all, but a general charge against the workmen of the firm from whom the demand was made, but the case having got into the hands of law-agents, they have brought four separate actions, one for each of the men actually employed. The peculiar feature of this case is that each pursuer must, as a preliminary, prove that he was one of the workmen employed at the bulkhead, and that might lead to controversy upon which the evidence might be conflicting. The pursuers accordingly put this preliminary point into the issue.

It is impossible to suggest upon the statement here that any good or bad feeling is shown by Spencer & Company against all or any of the men employed. They only make a claim against their employers for whisky abstracted. It would have been the same if a larger quantity of whisky had been abstracted, and if 100 and not four men had been employed. The claim would have been similar, but would each of the 100 men have had a separate action? I must say that that approaches to the extravagant, but I do not pursue this further.

I would revert to the view I expressed in the case of Shaw as stating the law of privilege as I then understood it, and as I still understand it. Having regard to these views I am of opinion that the circumstances here show privilege repelling the presumption of malice. Accordingly, malice must be alleged, and I think the rule applies that the mere use of the word "maliciously" will not avail. Something must be averred which if proved would prima facie justify the use of the word. There is no such averment upon record here, and I am of opinion the action should be dismissed as irrelevant.

LORD RUTHERFURD CLARK-I have had some doubts which have not been entirely removed, but as I understand your Lordships are agreed, any doubt on my part can be of no consequence.

LORD TRAYNER-I agree with the views stated by Lord Young. I think the circumstances here rebut the presumption of malice, and that malice must be averred and proved. Facts must be stated justifying the use of the word malice, the mere use of which is not sufficient. We have here no such averment of fact, and therefore I agree in thinking the case irrelevant.

(Before the Lord Justice Clerk, Lord Rutherfurd Clark, and Lord Trayner.) BATCHEN . MORRISON.

Justiciary Cases - Public House - Public

Houses Acts Amendment (Scotland) Act 1862 (25 and 26 Vict. cap. 35), sec. 20- Relevancy.

The Public Houses Acts Amendment (Scotland) Act 1862 provides by section 20 that it shall be lawful for any justice of the peace, &c., on being satisfied by the personal examination upon oath of a credible witness that there is reasonable ground for believing that excisable liquors are trafficked in within any house not licensed for the sale thereof, or by any person not licensed to sell in such house, or that such liquors are illegally kept for sale at such house, to grant warrant to search for the same, and if more than one gallon be found, to seize it; and proceeds-"and the person occupying or using the premises when such liquors shall be found as aforesaid shall thereby be guilty of an offence." Held that, on a sound construction of the section, the fact that the liquors are trafficked in or kept for the purpose of traffic is essential to the constitution of the offence, and that a complaint which failed to set forth that fact was irrelevant.

Peter Batchen, licensed grocer, Elgin, was charged before the Magistrates of the royal burgh of Elgin, at the instance of Alexander Morrison, Procurator-Fiscal of Court, upon a complaint which set forth that he was on Sunday, the 20th day of September, in the year 1891, the person occupying or using the dwelling-house, No. 238 High Street, Elgin, which is not licensed for the sale of excisable liquors, and the said Peter Batchen having no licence to sell excisable liquors therein,

in which dwelling-house were found upon the date above libelled, excisable liquors exceeding 1 gallon, viz.-48 gills or thereby of whisky, 7 gills or thereby of brandy, 5 gills or thereby of port wine, and 62 gills or thereby of beer, making in all 123 gills or thereby of excisable liquors, which excisable liquors, together with the vessels in which the same were contained, were so found and seized by John Bagrie Mair, superintendent of police, Elgin, acting under a warrant, dated the 10th day of September 1891, granted by William Law, Esquire, chief magistrate of the burgh of Elgin, in terms of the Public-Houses Acts Amendment (Scotland) Act 1862, upon being satisfied by the personal examination on oath of a credible witness, the said John Bagrie Mair, that there was reasonable ground for believing that excisable liquors were trafficked in within the said dwelling-house, contrary to the said PublicHouses Acts Amendment (Scotland) Act 1862; and such offence is a first offence, whereby the said Peter Batchen is liable to forfeit and pay a penalty not exceeding £5 nor less than £2, and in default of immediate payment, to be imprisoned, with or without hard labour, for any term not exceeding thirty days nor less than ten days, and the said excisable liquors, and the vessels containing the same, seized as aforesaid, are liable to be forfeited and sold without further warrant, and the proceeds of such sale to be paid into the police funds of the said burgh of Elgin."

He

He objected to the relevancy of the complaint. The objection having been repelled he was after trial convicted of the contravention charged and fined £5, with the alternative of thirty days' imprisonment. brought a suspension in which he pleaded"(1) There having been no relevant or sufficient charge libelled against the complainer, either under statute or at common law, and no ground in fact or in law for the Magistrates' sentence, the conviction ought to be suspended and quashed as craved."

The Public-Houses Acts Amendment (Scotland) Act 1862 (25 and 26 Vict. cap. 35), sec. 20, provides-"It shall be lawful for any justice of the peace of any county or district, or magistrate of any burgh, upon being satisfied by the personal examination on oath of a credible witness that there is reasonable ground for believing that excisable liquors are trafficked in within any house or other premises within such county or burgh, as the case may be, not licensed for the sale thereof, or by any person not having a license to sell excisable liquors in or at such house or premises, or that such liquors are illegally kept for sale or for the purpose of being trafficked in at such house or premises, to grant warrant under his hand authorising any chief-constable . . . to enter such house or place at all times, and to search for excisable liquors and if the same be found in such house or place exceeding 1 gallon, to seize such excisable liquors together with the vessel or vessels in which the same are contained. . . and the person occupying or using the premises where such liquors

shall be found as aforesaid shall thereby be guilty of an offence . . . and all such excisable liquors and the vessels containing them so seized as aforesaid shall be forfeited and sold."

At advising

LORD RUTHERFURD CLARK-The complaint is laid on the 20th section of the Public-Houses Act 1862. It sets out (1) that the defender had no licence for the sale of excisable liquors, (2) that more than a gallon of such liquors were found in his dwelling-house, and (3) that they were seized by virtue of a warrant issued by a magistrate, on being satisfied by the personal examination on oath of a credible witness that there was reasonable ground for believing that excisable liquors were being trafficked in within the said dwellinghouse. On the allegation of these facts it prays that the defender shall be found guilty of an offence under the Act.

on

If the charge is relevant it follows that the facts alleged being proved the magistrate must convict. It would be inadmissible to enter on any other or further inquiry. The accused might show that he had licence, that a gallon of liquor was not found on his premises, that no warrant was issued, that no witness was examined on oath, or that the person who was examined was not a credible witness. He would have no other defence. He would not be allowed to prove he did not traffic in the liquors which he possessed, and that he had no purpose of such traffic. Such an offer of proof could be set aside as impertinent to the inquiry. Nay, more, it was conceded by the counsel for the respondent that if the witness on whose oath the warrant was issued appeared at the trial and deponed that he had made an entire mistake, it would not avail the accused. Perhaps the more logical legal view is that the magistrate would be obliged to reject such evidence as inadmissible.

It follows that a conviction obtained under such a complaint is based on the reasonable belief of one credible witness examined outwith the presence of the accused. It is based on a mere probability to the exclusion of all inquiry into the truth, and the accused would be convicted though he had the means of proving with certainty that he had no guilty purpose.

A construction of the statute which enables a conviction to be obtained on such grounds as these is repugnant to every principle of justice. I admit that if it be the true construction we must enforce it. We have no choice but to obey. But I think that I am entitled to say that I shall not adopt a construction so manifestly unjust unless no other is possible.

The purpose of the statute is to require that only licensed persons shall traffic in excisable liquors, and to put down the traffic in such liquors by unlicensed persons. Trafficking in such liquors by unlicensed persons is an offence. The possession of such liquors by such persons for the purpose of traffic may reasonably be supposed to come within the purview of the statute.

But the mere possession of such liquors is not a contravention of the Act. If it were, most of Her Majesty's subjects would be offenders.

By the 13th section a certain class of premises are subject to the supervision of the police, and these include licensed hotels, inns, and public-houses, and also the premises of grocers and provision dealers trading in excisable liquors. But dwellinghouses are not subject to this supervision, nor any other premises than those enumerated in the section to which I have referred. It is obvious that an illegal traffic might be carried on in such premises without any means of detection unless some remedy were provided. In consequence the 20th section provides for the issue of a searchwarrant applicable to all premises whatever when there is reasonable ground for believing that an illegal traffic is carried on. The purpose of the search-warrant is to enable the authorities to detect an offence which they believe to have been committed. But unless there be a plain declaration to the contrary, the offence must consist in the actual truth of those facts which on the issue of the search-warrant were suspected to exist.

The section proceeds to declare that if on the execution of the search-warrant more than a gallon of excisable liquors is found, "the person occupying or using the premises where such liquors shall be found as aforesaid" shall be guilty of an offence. What is this offence? It cannot consist in the mere possession of the liquor. If we look at the intendment of the Act, it must I think consist in the possession of the liquor for the purpose of traffic, for its intendment was to put down unlicensed traffic. On a very literal construction of the words it is possible to hold that it consists in the liquors being found on the execution of the statutory search-warrant. But such a construction is not only repugnant to justice and legal principle, but is also I think inconsistent with the purpose of the statute. I cannot therefore adopt it. I cannot hold that the Legislature intended such a manifest injustice. Nor in refusing to adopt this construction do I in any way limit the beneficial operation of the statute. For I hold that the statute was not intended to stop illegal traffic which any witness, however credible, believed to exist, but such illegal traffic as did in fact exist. Some words may be omitted which were necessary to make the statute clear. But they may, I think, be legitimately supplied by construction. I construe the words "where such liquors shall be found as aforesaid" as involving the truth of the fact, on a reasonable belief of which the search-warrant was issued. I can hold no complaint to be relevant which does not allege that the liquors which were seized were trafficked in or were kept for the purpose of traffic. The magistrate may proceed on any presumptions which may arise from the seizure, but it must also be open to the accused to prove that he never trafficked in the liquors, and that he did not keep them for the purpose of traffic.

The Court suspended the conviction. Counsel for the Complainer - Salvesen. Agent-Alexander Morison, S.S.C.

Counsel for the Respondent - Guthrie. Agents-Gibson & Paterson, W.S.

Saturday, January 9.

(Before the Lord Justice - Clerk, Lord Rutherfurd Clark, and Lord Trayner.) PHILLIPS v. AULD.

Justiciary Cases Unsound Meat The Public Health (Scotland) Act 1867 (30 and 31 Vict. cap. 101), sec. 26-Relevancy.

The Public Health (Scotland) Act 1867 provides by sec. 26 that the sanitary inspector may enter any premises and inspect any carcass, &c., "exposed for sale, or which there is probable cause for believing to be intended for human food;" and if it appear to him to be unfit for such food he may seize it and have it destroyed under warrant of the Sheriff; and proceeds- "and the person to whom such carcass, &c. belong, or in whose custody the same are found, shall be liable to a penalty." Held that to render any person liable to such penalty, the unsound article must be in his premises exposed for sale for human food, or intended for human food, and that a complaint which charged a person with having within his premises unsound food "exposed for sale, or which there was probable cause for believing to be intended for human food," was irrelevant.

John Stewart Phillips, fish merchant in Greenock, was charged before the Sheriff of Renfrew and Bute at the instance of James Auld, writer in Greenock, ProcuratorFiscal of the burgh, acting on behalf of, and duly authorised and appointed by the local authority of Greenock to institute and carry on all proceedings which the said local authority is authorised to institute and carry on under the Public Health (Scotland) Act 1867, upon a complaint under the Summary Jurisdiction Acts 1864 to 1881, which set forth that he had "contravened section 26 of the Public Health (Scotland) Act 1867, in so far as on the 12th day of September 1891 he had, within or near the shops or premises occupied or used by him at Nos. 32 and 26 Charles Street in Greenock, exposed for sale, or which there was probable cause for believing to be intended for human food, 156 lb. weight or thereby of fish-namely, 102 lb. weight in two boxes at his shop No. 32 Charles Street, and 51 lb. weight on a slab or table within the shop at No 26 Charles Street, which were unfit for human food; which fish were seized on said date by the sanitary inspector of the burgh of Greenock, whereby the said John Stewart Phillips has become liable, in terms of sections 26th and 105th of said Act, to a penalty. He was found guilty of the contravention

At advising

LORD JUSTICE-CLERK-The complaint in this case bears that the accused had within his shop "exposed for sale, or which there was probable cause for believing to be intended for human food," a quantity of fish which were unfit for human food. On that complaint the Sheriff-Substitute pronounced a general finding of "guilty," and one question raised before us is, whether that is a good conviction in respect that the charge was alternative while the verdict is general. I think there is a good deal to be said for the contention, and had it been necessary my inclination would have been to hold that the conviction was not good upon that ground. But it is unnecessary to proceed on that ground as there is another ground upon which the conviction must I think be quashed—a ground practically the same as that on which we quashed the conviction in the case of Batchen today. This is a complaint which if relevant amounts to this, that a man may be convicted of an offence and punished therefor if there was probable cause for believing that he had committed the offence whether in fact he had done so or not. We have in this case an exact analogy to the case of Batchen in this respect, that seizure accompanies the proceedings and is one of the objects of the statute. Under this statute there is an additional reason for such seizure, for seizure is useful not only to preserve evidence but also to prevent injury to the public from unwholesome food being sold. Accordingly probable cause for believing the fish to be intended for human food is a very good ground for seizure, but I am not able to hold that it is a good ground for conviction. Holding that view I am of opinion that we must hold this conviction to be bad. The prosecutor if he

v. Auld

1892

took the second alternative in the complaint would only be bound to prove that somebody who was credible in the view of the magistrate who granted the seizure order believed that the fish was intended for human food. That, as I have said, is in my opinion not a relevant charge of an offence, and on the same grounds as have been already stated in the case of Batchen think the conviction must be quashed.

LORD RUTHERFURD CLARK concurred.

LORD TRAYNER-I agree in the conclusion at which your Lordship has arrived. Upon the question whether this is an alternative charge or the statement of an alternative modus I express no opinion. I think the first question, viz., whether a relevant offence has been libelled, should be answered in the negative, for the reasons stated by your Lordship. The words of the complaint are no doubt taken from the 26th section of the statute; but I think the prosecutor has failed to observe that the provisions in the earlier part of the section (where the words are used which he has adopted in the complaint) as to articles of the character described being exposed for sale, or "which there is probable cause for believing to be intended" for human food, refer only to the conditions on which the inspector may seize the suspected article. To convict anyone, however, of an offence under this section, it must, I think, be proved, and therefore first averred, that he had the article in his premises exposed for sale for human food, or that he had it there intended for human food. averred in the complaint before us, and I That is not therefore think the complaint is irrelevant.

The Court sustained the appeal and quashed the conviction.

Counsel for the Appellant--M'Lennan. Agents-Miller & Murray, S.S.C.

Counsel for the Respondent- Guthrie. Agents-R. R. Simpson & Lawson, W.S.

Saturday, January 9.

(Before the Lord Justice-Clerk, Lord
Rutherfurd Clark, and Lord Trayner.)

HUTCHEON AND OTHERS v.
CADENHEAD.

Justiciary Cases-Public-House - Public-
Houses Acts Amendment (Scotland) Act
1862 (25 and 26 Vict. cap. 35), sec. 17—
Relevancy.

Certain persons were charged with a contravention of section 17 of the PublicHouses Acts Amendment (Scotland) Act by trafficking without a licence in excisable liquors "at a tent in a grass field." Held that the charge was relevant-diss. Lord Trayner, on the ground that the locus was a place incapable of being licensed.

Alexander Hutcheon, plater, 102 Hadden

v.

9

Street, Woodside, parish of Oldmachar, Aberdeenshire; James Mackay, plater, 34A Constitution Street, Aberdeen; Charles Gordon, boilermaker, 65 Cotton Street, Aberdeen; and Donald Skinner, rivetter, 11 Mounthooly, Aberdeen, were charged before a Justice of the Peace Court for the county of Aberdeen at the instance of George Cadenhead, Procurator-Fiscal in the Justice of the Peace Court of the county of Aberdeen, upon a complaint which set forth that they "did, on 4th July 1891, at a tent in a grass field on the farm of Meadowhead, parish of Newmachar, Aberdeenshire, occupied by Andrew Mackenzie, farmer, traffic in excisable liquors, namely, beer and porter, or other excisable liquors, with William Rae, plater, 2 Yeats Lane, Aberdeen, and James Dempster, boilermaker, 6 Upper Kirkgate, Aberdeen, and others to the complainer unknown, without having obtained a certificate in that behalf in terms of the Public-Houses Acts Amendment (Scotland) Act 1862, contrary to section 17 of the Act 25 and 26 Vict. cap. 35, and Acts incorporated therewith for the regulation of public-houses in Scotland," and were convicted. They brought a suspension, in which they pleaded, inter alia, that the complaint was irrelevant, in respect that no offence under the 17th section of the above-mentioned Act could be committed at the place libelled, that being a place incapable of being licensed. They cited Hamilton v. Inglis, May 22, 1879, 4 Coup.

244.

LORD RUTHERFURD CLARK-A question of importance was raised by the complainers. They said that on the occasion libelled the liquors were not sold, but were supplied by a club or a society to its members when they were having a picnic and games. But that is a question of fact, and we have no jurisdiction to inquire into facts. The Magistrate has held that the complainers trafficked in excisable liquors without a licence, and we cannot review his judgment. If the complainers desired to raise any question of law, they should have applied for a case. They have neglected their opportunity, and we cannot give them any remedy.

The libel is laid on the 17th section of the Act, and the locus is thus described-“At a tent in a grass field on the farm of Andrew Mackenzie." The complainers contend that no offence under that section can be committed in an open grass field. It is matter of serious doubt whether we are bound to read the libel so strictly as to hold that the offence was committed out

side the tent. But I do not desire to enter on this question, as I think that the case can be decided on other grounds.

The statute provides that every person who traffics in excisable liquors in any place or premises without having obtained a certificate in that behalf shall be guilty of an offence. I accept the judgment of the Court in the case of Hamilton, and in accordance with it I hold that "no offence could be committed unless in a place capable of being so certificated." The question is,

whether a certificate cannot be issued for selling liquors in a field on a farm if the magistrate thinks proper to grant it?

Such a certificate would be a special certificate under the 6th section of the Act. It provides that on the representation of any person holding a certificate for keeping an inn and hotel or public-house that it is intended that any public or special entertainment shall take place therein, or in any other place or premises, the magistrate, on being satisfied that such inn and hotel or public-house or place or premises possess the necessary accommodation, may grant such person a special permission to keep such inn and hotel or public-house, place, or premises open and to sell therein. It is argued that the special certificate must be granted in respect of a house or building, and that it cannot be granted for a field.

I confess that I cannot see any sufficient ground for putting so limited a construction on the Act. Its purpose was to enable liquors to be sold by a licensed person on the occasion of a special entertainment. The words are not limited to houses or buildings, but extend to any place or premises within the jurisdiction of the magistrate that is to say, to any place or premises wherein a special entertainment may take place. According to their natural meaning, they apply to open fields as much as to houses. It is true that the magistrate must be satisfied that the premises possess the necessary accommodation. But that is a direction for his guidance with the view of due provision being made for safety and order. The word "accommodation" does not to my mind imply that there must be buildings, and that buildings can be alone certificated. On the contrary, all that is required of the magistrate is that he shall see that such accommodation shall be supplied as is necessary for the place in which the entertainment is to be held. I cannot hold it to be the meaning of the Act that no entertainment can take place in the open air at which it shall be lawful to sell liquor.

But in this case there was a tent in the field, and it was admitted that a certificate could have been granted for the tent. The argument is that the certificate must be so worded as to permit the sale of liquors within the tent, but not outside of it. I see no reason for holding that the certificate must be so limited. It is a certificate granted on the occasion of a special entertainment, and if there must be some building in order to justify the granting of the certificate, I think that it may be granted