Thursday, March 19,

HAYDON V. CORMACK.

Justiciary Cases-Taking Salmon Unlawfully— Salmon Fisheries (Scotland) Act 1868 (31 and 32 Vict. cap. 123).

A person having a licence to fish for white fish by means of stake-nets in the Solway from the proprietor of the fisheries, had set up stakenets in certain parts of the river bed. He was convicted of a contravention of the Salmon Fisheries (Scotland) Act 1868, by taking salmon in close time, on evidence that a salmon had been found in one of these nets during close time one morning shortly after the tide ebbed. Held that conviction was not legal, as it did not appear that the accused was wilfully fishing for salmon, and it was admitted that salmon might occasionally get into the net. Justiciary Cases-Conviction-Fine-Imprison

ment.

In a conviction for a contravention of the Salmon Fisheries (Scotland) Act 1868, the Justices of the Peace imposed a fine, "and in respect that it is inexpedient to issue a warrant of poinding and sale, order the accused to be imprisoned for fourteen days." Held that the conviction was bad, because er facie thereof it ordered both fine and imprisonment.

On the 5th November 1884, George Haydon, designed as a fisherman or rabbit-catcher, and James Haydon, were charged before the Justice of Peace Court at Dumfries on a complaint charging them with a contravention of the Salmon Fisheries (Scotland) Act 1868, "in so far as on the 5th day of October 1884 years, or about that time, being during the annual close time in the district of the river Annan, in the Solway Firth, and at that part thereof in the parish of Ruthwell and county aforesaid on or near Blackshaw Bank, in the said parish of Ruthwell, and within the limits of said district, the said George Haydon and James Haydon did, both and each, or one or other of them, by means of a stake-net or other description of net, take one or more salmon, whereby the said George Haydon and James Haydon are both and each, or one or other of them, liable to a penalty not exceeding £5, and to a further penalty not exceeding £2, and, failing payment, to poinding and imprisonment for any period not exceeding six months." The accused pleaded not guilty.

The following were the facts proved in evidence :-The annual close time of the district of the river Annan was from 10th September to 24th February, being fixed by bye-law, 21st August 1882, in terms of section 9 of the Salmon Fisheries (Scotland) Act 1868. Between the hours of one and two o'clock on the morning following the day libelled, about half an hour after the tide had ebbed from the place libelled, there was found by police constables one salmon in, and taken by, a stake-net belonging to George Haydon, fixed at the place libelled. The said net was adapted for taking white-fish, and also for taking salmon, and George Haydon had a licence from Lord Herries, who was a fishery proprietor, to erect and use a stake-net for the capture of flounders and other white-fish at that place.

The Justices, on the evidence, convicted George Haydon, and adjudged him to pay a fine of twenty-five shillings, with thirty shillings expenses, and "in respect it is inexpedient to issue a warrant of poinding and sale, decern and adjudge him to be imprisoned in the prison of Maxwelltown for fourteen days.'

James Haydon was acquitted.

George Haydon took this Case for appeal, on the ground that he had licence from Lord Herries to fish for white-fish at the place where his net was placed, and that the net was legally in use at the time of the alleged offence.

The question of law for the opinion of the Court was-"Was the licence of Lord Herries, a fishery proprietor under the Solway Act, to erect a net for the capture of white-fish, available to protect the accused from the consequences of a salmon having been taken in his net during the annual close time?"

Argued for the appellant-The appellant was entitled to have a net of the kind, which was placed at the spot where the fish was found; it was for the capture of white-fish, but it was impossible to prevent a salmon getting into the net now and then. The time that the fish was found was early in the morning before the nets had been visited. It must be assumed that when the nets were visited the fish would have been let go. There was no real offence committed at allNelson v. Fenton, November 16, 1876, 3 Coup. 353.

The taking forbidden by the Act must be wilful and not accidental.

Argued for the respondent (the ProcuratorFiscal)-The case quoted was under the Solway Fisheries Act, but this was under the general Act. The net was adapted for the taking of salmon as well as of white fish, and the fact that the tide had ebbed half-an-hour was one for the consideration of the Justices in trying the case. The mere fact of the appellant having a licence was immaterial.

At advising

LORD YOUNG-This prosecution is under the Salmon Fisheries (Scotland) Act 1868, and asks for a penalty. The Act provides, section 15, sub-section 1-"Every person who fishes for, takes, or attempts to take, or aids or assists in fishing for, taking, or attempting to take salmon during the annual close time, by any other means than rod and line, shall for every such offence be liable to a penalty not exceeding five pounds;" and the charge is that the appellants did at such and such a place take one or more salmon in a stake-net during close time. The facts as stated by the Justices of the Peace before whom the case was tried are that the appellant is a white-fisher with a licence from the fisheries proprietor to have stake-nets erected in the river for the capture of white-fish. Now, we know that these stake-nets for white-fish are much akin to salmon-nets; they are smaller and inferior in other ways, but they have a likeness. They are quite lawful, and the public are entitled to use them if they can do so without detriment to the salmon fishing. There is a controversy as to their fitness for taking salmon, but there is no doubt they occasionally take salmon, though not so well fitted for that purpose as ordinary salmonnets are. The extent, however, to which salmon are taken in these nets is a matter of controversy. Now, the net here was for taking white-fish, but

it was fit for taking salmon in the sense that a salmon might occasionally get in, and when in, could not get out again, and in fact it did take one. Half-an-hour after the tide had ebbed, a policeman found a salmon in the net placed for catching white-fish, and the question is whether the catching of this salmon in the net amounts to a contravention of the statute. Without going into the matter very deeply, I think the conviction is not satisfactory. If the Justices had shown us that in their opinion the appellant was really fishing for salmon, and that he had been caught this time, I should have had a different view of the case, but there is nothing in the case stated to us to lead me to the idea that they took that view of the facts, and stating the case baldly, as I have done, and taking the view that the net was capable of catching a salmon, in the sense that a salmon might get in and could not get out again, I do not think there has been any contravention of the statute.

I think also that the sentence here is not a legal sentence. It imposes a fine and adjudges imprisonment. No doubt the intention was that the imprisonment should always be in default of payment of the fine, but that does not come out in the sentence, and it cannot stand as a good sentence. To appeal against the form of the sentence was, no doubt, not the purpose with which the Case has been stated to us, but this appeal is a full appeal, and the statute provides that we shall have power, and indeed duty, to do what is right. I hope these remarks will be taken notice of, and that a decerniture for imprisonment will be inserted in the conviction only in cases of default of payment of the fiue.

LORDS CRAIGHILL and M'LAREN concurred.
Conviction quashed.

Counsel for Appellant Agent-Robert Broatch, L.A.

Comrie Thomson.

Counsel for Respondent-Lang. AgentsSmith & Mason, S.S.C.

Thursday, March 19,

SCHOOL BOARD OF NORTH UIST V.
MACDONALD.

Justiciary Cases-School- Elementary Education
-Complaint-Summary Jurisdiction Act 1881,

sec. 9.

The School Board of North Uist brought before the Sheriff-Substitute at Lochmaddy a complaint signed by their compulsory officer, craving an attendance order against Norman Macdonald on the ground that he had failed without reasonable excuse to provide efficient elementary education for his children. The Sheriff-Substitute, having regard to the Summary Jurisdiction Act 1881, sec. 9, dismissed the case, on the ground that the compulsory officer who sigued the complaint on behalf of the Board was not a duly qualified law-agent. The Board took a Case to have the opinion of the Court. The Court were of opinion that the complaint was good.

Counsel for the Board-Low. Agents-Tods, Murray, & Jamieson, W.S.

March 19, 1885.

Thursday, March 19.

GREENHILL V. STIRLING (P.-F. OF FORFAK). Justiciary Cases-Hotel-Breach of CertificatePublic-Houses Acts Amendment (Scotland) Act 1862 (25 and 26 Vict. c. 35)-Permitting or Suffering Drinking on Sunday by Person not a Lodger or Bona fide Traveller-Master and Servant.

A hotel-keeper left his hotel on a Sunday in charge of a servant, locking up the house and bar before he left, but leaving with the servant, to whom he gave strict injunctions to admit none but bona fide travellers, a sup. ply of whisky and beer in the event of such travellers coming to the hotel. During his absence the servant admitted two friends, known by her not to be travellers, and supplied them with whisky, for which they paid, and the price of which the servant accounted for to the hotel-keeper. Held that the hotelkeeper could not be convicted of "permitting and suffering drinking on Sunday" by persons not lodgers or bona fide travellers. Hugh Greenhill, inn and hotel-keeper in Forfar, was charged before the Burgh Court of Forfar with an offence against the Public-Houses Acts Amendment (Scotland) Act 1862, and the Acts therein recited, in so far as on Sunday, 2d November 1884, he did open his house for the sale of exciseable liquors, and did permit or suffer drinking therein, or on the premises belonging thereto, and did sell or give out the same on the said day, being Sunday, not for the accommodation of lodgers or travellers, in breach of his certificate.

The Magistrate convicted him on the evidence, and adjudged him to pay a modified penalty and expenses.

He took this Case for appeal to the High Court, the question of law being, "Whether the facts proved warranted the conviction?"

The facts stated in the Case were-"(1) That the accused and his wife left the hotel on the afternoon of Sunday 2d November to visit a friend who resided a short distance from Forfar. (2) That previous to his departure the accused placed the house in charge of a waitress, named Isabella Reid, who is and had been in his service for sixteen months. That the accused locked up the bar of the hotel, leaving in charge of the woman Reid a bottle of whisky and a quantity of beer in the event of bona fide travellers calling and requiring refreshment during his absence. That accused, before leaving his house, saw the chain fixed on the front door of the hotel, that door having a glass panel by means of which persons on the outside may be seen, and he removed a shutter on a side door in order that by means of a glass panel in that door also the servant in charge might see any person at that door. The accused left strict instructions with Reid that she was on no account whatever to admit anyone to the hotel except bona fide travellers. The accused and his wife left the hotel by the side door, which was then locked by Reid. The only other person left in the house was the cook, a woman named Chisholm, who had no charge of the premises. (3) That about 4.50 p.m. two young men, named Laing and Faichney, teachers in the town, and who were well known to the woman Reid, called

v.

,

at the hotel, and asked admission by the side door. Reid admitted the men into the house, and Laing went upstairs with Reid, while Faichney remained below for a short time talking to the cook. After a little conversation, Laing, who was upstairs, asked Reid if they could get any drink, and Reid, on being pressed by Laing, supplied two glasses of whisky, for which Laing paid. Reid swore that she gave the drink as an obligement, and without taking thought of the consequences. Laing drank one glass, and in a short time Faichney went upstairs, and tasted of the liquor poured out for him. (4) While the foregoing was taking place inside, two constables, who had been informed that Faichney and Laing had entered the premises, demanded admission to the house. After a delay of a few minutes, which Sergeant Walker swore was not, in his opinion, due to any serious attempt to keep the officers out, Reid admitted Walker at the front door, and Chisholm admitted Low at the side door, and while one of the constables remained in the passage the other went upstairs and found Laing and Faichney in the top flat of the house-Laing hiding himself behind a door. When asked their business in the hotel, they replied that they were speaking to the girls. The constables saw no drink nor appearances of drinking, and the women and men all denied that drink had been given. Subsequently, on investigation by the authorities, the supplying of the whisky was admitted. (5) That the girl Reid accounted to the accused for the money received by her for the whisky. (6) In answer to a question by the prosecutor the witness Reid stated that she did not remember having seen the accused or his wife supplying liquor to any town's people on the day libelled. The prosecutor further proposed to prove by the witness Reid that she had supplied Laing and Faichney with liquor on previous Sundays, to which the accused's agent objected as irrelevant, and the Court disallowed the proposed evidence. The Magistrate, having regard to the facts proved, held that the accused was responsible for the actings of his servant, although she had deliberately violated the orders given to her, and convicted the accused of the offence charged."

Argued for the appellant-Civilly the master was liable for every act of his servant done within the scope of his employment and in the ordinary course of business, but where he has given express orders against doing some act, he is not liable for the consequences of his servants doing the act against these express orders.

The appel

lant here did all that he could to see that open house should not be kept during his absenceSmith v. Stirling, March 6, 1878, 4 Coup. 13, 5 R. (Just. Cases) 14; and Kay v. Gemmell, Nov. 13, 1884, 12 R. (Just. Cases) 14.

Authorities-Waldie v. Duke of Roxburghe, March 1, 1822, 1 S. 344, aff. February 10, 1825, 1 W. & S. 1; Mullins v. Collins, January 24, 1874, 29 Law Times, 838; Dickson v. Fletcher and Others, November 17, 1873, 29 L.J., C. P. 1.

The respondent replied-The rule here to be applied was the rule of civil liability-Lord Rutherfurd's opinion in Advocate - General v. Grant, 15 D. 982, and Justice Archibald in Mullins v. Collins, supra. What was the scope of the servant's employment here? Whether she gave or refused, she was equally within the scope of

her employment. It was absurd to argue that where a master gives a general order against doing something, he will then be freed from liability unless the prosecutor proves collusion. That would be an impossibility, and the statute would be simply rendered nugatory.

Authorities-The Queen v. Gilroys, March 20, 1866, 4 Macph. 656; Linwood, May 14, 1817, 19 F.C. 327; Macdonnell's Law of Master and Servant, 275.

At advising

LORD YOUNG-This is a prosecution under the Public Houses Act of a man who keeps an inn and hotel in Forfar, for contravention of the statute, on the ground that he "did open his house for the sale of exciseable liquors, and did permit or suffer drinking therein or on the premises belonging thereto, and did sell or give out the same on Sunday." The facts stated in the Case are, generally, that the publican and his wife left the house on Sunday afternoon at two o'clock, leaving a servant, Isabella Reid, in charge, and giving her strict injunction to serve no one who was not a bona fide traveller. The only other inmate of the house was the cook. With Isabella Reid, who habitually acted as waiter, her master left some beer and a bottle of whisky, in case any bona fide traveller should come. No bona fide traveller did come, but two sweethearts of the girls came, and to them Isabella Reid supplied two glasses out of the bottle of whisky. Of course, as the bottle was diminished by two glasses, it had to be handed back to the publican as if the glasses had been given to bona fide travellers, and it was so handed back to him on his return home; and the Magistrate who states these facts represents to us that Isabella Reid in supplying the whisky did deliberately violate the orders given to her by her master. The master was, however, notwithstanding this, convicted and fined, and the question submitted to us is, whether the conviction was right. Without saying more, I am of opinion that in the circumstances the appellant was not guilty of the contravention, and 1 propose that we quash the conviction. I have the authority of Lord Moncreiff, with whom I have conferred to-day, that he shares my opinion in the matter.

LORD CRAIGHILL-I also concur, and on the ground that what the servant did was not within the scope of her employment.

The LORD JUSTICE-CLERK heard the argument, but was absent at advising.

Conviction quashed.

Counsel for Appellant-Kennedy. AgentsMacrae, Flett, & Rennie, W.S.

Counsel for Respondent-Graham Murray. Agents-Gordon, Pringle, Dallas, & Co., W.S.

Thursday, March 19.

M'PETRIE V. CADENHEAD (P.-F. OF BURGH OF ABERDEEN).

Justiciary Cases – Grocer's Certificate — PublicHouses Amendment (Scotland) Act 1862 (25 and 26 Vict. cap. 35), Schedule A, No. 3.

Held (following Kay v. Gemmell, Nov. 13, 1884, supra, p. 89, and 12 R. (J.C.) 14) that a licensed grocer who gave a friend a glass of ale in his licensed premises did not commit a breach of his certificate. Alexander M'Petrie, grocer and spirit-dealer, Aberdeen, and holding a certificate in form of No. 3 of Schedule A of the Public-Houses Acts Amendment (Scotland) Act 1862, was charged before the Burgh Court of Aberdeen with an offence within the meaning of the Acts for the Regulation of Public-Houses in Scotland, viz., 9th Geo. IV. cap. 58 (16 and 17 Vict. cap. 67), and 25 and 26 Vict. cap. 35, or one or more of them, in so far as on 1st November 1884, within his licensed premises, he "did traffic in or give exciseable liquors to be drunk or consumed on his said premises to James Gabriel," &c. The Magistrate convicted M'Petrie on the evidence adduced.

This Case for appeal was stated.

The Case set forth that two police-officers had gone into M'Petrie's shop, and found the appellant, his wife, and two men, of whom one, James Gabriel, had a glass of ale in his hand, which he tried to conceal; that no money had passed for the purchase of the ale, which was given to him gratuitously, and as a mark of hospitality. He was an intimate friend as well as a customer, and had gone to the shop to purchase groceries of the appellant. The appellant's house was not connected with the shop.

The question of law was-" Whether a licensed grocer is by the terms of his certificate debarred from using his licensed premises in his private capacity for the purpose of giving gratuitously, by way of hospitality, exciseable liquors to be consumed on the premises, to his customers, even though intimate friends?"

Argued for the appellant―The conviction was bad; the appellant had only given the drink to Gabriel in the way of hospitality and not in the way of trafficking. This case was ruled by Kay v. Gemmell, Nov. 13, 1884, supra, p. 89, 12 R. (J.C.) 14, and cases there cited.

Argued for the respondent (the ProcuratorFiscal)-There was a distinction between this case and that of Kay v. Gemmell, and the other cases alluded to there. In this case the drink had been given actually in the licensed premises, the shop itself, and not in that part of the premises where were the accused's private apartments. The facts showed that the drink was not given merely in hospitality.

At advising

LORD YOUNG-The question that arises in this case has been argued frequently before us. The first time that the question came up was in the case of a public-house-[Smith v. Stirling, March 6, 1878, 4 Coup. 13]. The publican lived in his own public-house; the question then was— whether if a keeper of a public-house should

give a party to his friends after eleven o'clock at night, he was guilty of a breach of the conditions of his certificate? We held that he was not so guilty. In my opinion it would not have mattered if the publican, instead of taking his friends to be entertained into the room where he and his family usually lived, had taken them into one of the larger public rooms. It might be very important as affecting the magistrate's mind in deciding whether the persons so brought in were supplied with drink as customers for payment, or gratuitously as friends of the landlord, what particular part of the house they were entertained in, but we have nothing to do with it. We had then, as we have had here, all the ordinary commonplace arguments addressed to us, such as-If we allowed a publican to bring persons into his house and to supply them with drink after the public-house was closed to the public, what a door it would open to drinking at illicit hours, and how easily the statute might be evaded by this means. The answer is, that

attempts may be made to evade any statute, but it is the duty of those who administer the laws to prevent these attempts at evasion, and to find out the truth in each case.

The next case that came before us was that of a grocer who had invited one or two of his friends into a kitchen which was at the back of his shop licensed for the sale of drink, and had there gratuitously supplied them with some drink brought out of the shop. We refused to sustain the conviction in that case also, and on the same grounds that the proprietor of licensed premises was as much entitled as anybody else to show hospitality to his friends.

Then comes the present case, in which it is said there is a difference, as the accused gave the drink to his friend not in the part of the house in which he himself lived but in the licensed premises. The Magistrate has said that he has no doubt the accused was not trafficking in drink, but that he had given drink to his friend in his licensed premises. But we have held that it does not matter whether the premises were licensed or not. The moment that it is admitted that the drink was not given in the way of trafficking, but in the way of hospitality, the case fails. I therefore cannot agree with the Magistrate's decision, and think the conviction should be quashed.

LORD CRAIGHILL-I have come to the same conclusion, and on the same grounds as explained in the former cases on this point. It is quite true that the facts in this case are not quite the same as in the former cases, because in the former cases it is true that the places in which the drink was supplied were not actually the place where the business of buying and selling was carried on, while here the drink was supplied to the customer in the shop itself, which was licensed for the sale of drink, the shopkeeper's house being distinct from these premises. But what we held in the former cases was that the giving of drink in hospitality, and not in the way of trafficking, whether in licensed premises or not, did not amount to a breach of the certificate. I therefore think the conviction ought to be quashed.

LORD M'LAREN-I am of the same opinion. When the decision in the case of Kay is examined, I am of opinion that by it no door is opened for