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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Queen v. Gilroys [1866] ScotLR 1_202 (6 March 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0202.html Cite as: [1866] ScotLR 1_202, [1866] SLR 1_202 |
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Page: 202↓
Held that a master was not liable for a contravention of an Excise statute committed by his servant beyond the scope of his employment.
This is a case stated by the Quarter Sessions of the county of Lanark for the opinion and directions of the Court of Exchequer in terms of the Act of Parliament 7 and 8 Geo. IV. c. 53. An information was laid in Petty Sessions against the defendants, who are brewers in Lanark, charging them with a contravention of the Act of Parliament 24 and 25 Vict. c. 91, sec. 12, in respect of their retailing beer on the highway in the parish of Cambusnethan. The facts mainly relied upon were, that the defenders' servant, whose duty it was to take orders for beer, and to convey in the defenders' cart the quantity of beer ordered, had, on some occasions, taken in his cart more than had really been ordered, and had retailed the over-supply to casual buyers on the road at a profit of sixpence per dozen. The carter merely stated to his masters what amount of beer he had orders for, and this amount was furnished to him, and placed on his cart by the cellarman, the carter accounting on his return for the bottles taken away by him at the wholesale price. The defendants had instructed their servant not to sell beer off their cart. The question before the Court in these circumstances was, whether through the unauthorised actings of their servant the defendants had incurred a contravention of the Act libelled.
The Justices at Petty Sessions convicted the defendants, and imposed mitigated penalties. The Quarter Sessions on appeal dismissed the information, and awarded costs against the Crown.
To-day the Court were unanimously of opinion that the defendants were not liable for the actings of the servant, these not falling within the scope of his employment.
The Lord Justice-Clerk said—The first point insisted on by the defendants is that the case does not set out negatively that the defendants had not a license. I am unable to give effect to that. It lies upon the defendants to allege and to prove that they had a license. As to the merits of the case, the question is, whether the defendants made the sale or not? The place of sale is the place of business of the brewer, in cases like this, where beer is sent out according to order. In the present case the sale was made not at the brewery, but in another parish, by a servant of the defendants from a cart, and as the proceeds were not fully accounted for by him, but only as much as would have answered to a sale according to order, and it does not appear that they were aware of his proceedings, the question is, whether the servant's illicit sales were within the scope of his employment. I cannot hold that they were.
The other Judges concurred on the merits. On the point of form as to the omission to state that the defendants had no license, Lord Cowan expressed no opinion. Lord Benholme thought the omission fatal; and Lord Neaves concurred with the Lord Justice-Clerk.
Counsel for the Crown—The Solicitor-General and Mr Rutherfurd. Agent—The Solicitor of Inland Revenue.
Counsel for the Defendants— Mr Clark and Mr Guthrie Smith. Agents— Messrs Maconochie & Hare, W.S.
