Scottish Court of Session Decisions

The Right Honourable Ronald Archibald Lord Macdonald, Armadale, Isle of Skye, raised an action in the Sheriff Court of Inverness against Samuel Campbell, merchant, Broadford, Invernesshire, to have the defender interdicted from selling or retailing spirits in the shop, store, or other premises occupied by him at Broadford.

In the proof allowed by the Sheriff-Substitute the following facts were established—By building lease, dated 2nd October 1875 and 2nd March 1876, entered into between the pursuer and defender, the pursuer let to the defender, and his heirs and assignees, for ninety-nine years from and after Whitsunday 1875, a piece of ground at Broadford measuring 2436 square yards or thereby, with the dwelling-house erected or to be erected thereon. By the lease it was expressly provided and declared that the defender or his foresaids “shall not sell or retail spirits upon the premises without the express consent of the proprietor, or his factor for the time being, the said Lord Macdonald, or the heirs of entail in possession of the said lands and estate, or the factor for the time, being the sole judge of all such matters.” In the premises erected on the ground the defender carried on business as a fish-curer, meal merchant, and general dealer. In September 1876 he applied for a grocer's licence, after receiving the consent of the then factor, Mr Macdonald of Tormore, who, at the request of the defender, addressed the following circular letter to the licensing Justices in support of the application:—“My dear Sir,—As it is likely you will be one of the acting J.P.s the day the Court is held at Portree for considering the applications for licences, I will be obliged if you will support the application of Mr Samuel Campbell, merchant, Broadford, for a grocer's licence to sell malt liqnors, the same being approved by the proprietor.” The factor deponed that he had no doubt that the consent of Lord Macdonald had been obtained before he wrote this letter. The defender succeeded in obtaining a grocer's licence. For the purposes of his whisky business he erected at the end of his house a shed of stone and lime of the value of about £50. In January 1883 the pursuer's factor wrote to the defender in the following terms:—“Sir,—I beg leave to bring under your notice that you are at present infringing upon the terms of your lease by selling whisky in direct contravention thereof, on the premises occupied by you at Broadford. It will be for Lord Macdonald to consider whether your selling whisky in this way is or is not for the benefit of his tenants and the people of the district generally. In the meantime I have to inform you that in my opinion, as

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factor for Lord Macdonald, it certainly is not for their benefit, but the contrary.” In April 1884 the defender failed to lodge an application for renewal of his licence, against which, at the same time, a petition was presented, signed, among others, by all the clergymen of the district. The licence was not renewed.

On 21st May 1884 the defender received from the pursuers' law agents Messrs John C. Brodie & Sons the following letter:—“Under the building lease of subjects at Broadford by Lord Macdonald to you, and dated 2nd October 1875 and 2nd March 1876, you are aware that it was provided and declared that spirits should not be sold or retailed upon the premises let without the express consent of the proprietor or his factor for the time being.

We understand that, by permission of Lord Macdonald's former factor, you have for some time been selling and retailing spirits within the premises erected by you on the ground held from his Lordship under the above-mentioned lease. Lord Macdonald has recently had the matter under consideration, and he is of opinion, on public grounds, that a continuance of the permisssion granted to you to sell and retail spirits is unnecessary for the requirements of the district, besides being hurtful to the inhabitants, most of whom are his Lordship's tenants. We are therefore instructed to intimate to you that any permission granted to you under your lease to sell and retail spirits is now withdrawn, and we have to request that you will write us acknowledging receipt of this letter, and undertaking to discontinue the traffic in spirits within the premises erected on the ground leased to you by Lord Macdonald, within a month from this date.”

In April 1885 the pursuer's law agents wrote to the Clerk to the Justices for the Skye district of Inverness-shire in the following terms—“We understand that Mr Samuel Campbell, merchant, Broadford, Skye, has presented an application to the Licensing Justices of the Skye district of Inverness-shire for a grocer's licence, with the intention of carrying on traffic in spirituous liquors in his premises at Broadford. As agents for and on behalf of Lord Macdonald, we object to the granting of a licence to Mr Campbell, on the ground that it is totally unnecessary, and indeed would be absolutely injurious to the public interest in the district. There is already a licensed house in Broadford, which is amply sufficient for the requirements of the place. Moreover, the shop in which Mr Campbell proposes to carry on his trade is erected on ground held from Lord Macdonald on a long lease, one of the conditions of which is that Mr Campbell shall not sell or retail spirits upon the premises without the express consent of Lord Macdonald. Mr Campbell has not obtained Lord Macdonald's consent, and consequently for this reason also his application ought to be refused. We are sending a copy of this letter under a registered cover addressed to Mr Campbell, and a certificate to that effect is subjoined hereto. We have to request that you will communicate to the presiding Justices our objections on behalf of Lord Macdonald to the granting of the licence when Mr Campbell's application comes on for hearing.”

Application for renewal of the licence was regularly made down to the date of this action and invariably refused. The defender continued to sell spirits under what was termed a “wholesale licence” obtained direct from the Excise without a certificate from the Justice of the Peace Court, and the agents for the pursuer accordingly wrote him the following letter on 25th May 1885:—“We wrote you on 21st May 1884 informing you that Lord Macdonald objected to the sale of spirits being carried on in the premises held by you under a long lease from him, and withdrawing any permission previously granted to you to do so. We understand that you are still carrying on a traffic in spirits notwithstanding the intimation that has been made to you, thus defying Lord Macdonald and ignoring his rights, and we now write to ask you to be so good as inform us in course of post whether you are to continue the sale of spirits, and are prepared to maintain your right to do so.” As the defender continued to sell spirits in the manner above described the pursuer presented the present application for interdict in October 1885.

As to the circumstances which induced Lord Macdonald to withdraw the consent thus given, the defender's shopman deponed as follows—“(Q) While Mr Campbell had a grocer's licence do you know if people drank whisky in the stable or outhouses?—(A) I do not know that. (Q) Did they bring glasses out with them to drink it with?—(No answer). (Q) Did people sometimes drink in the shop?—(A) They were not allowed to drink whisky in the shop. (Q) Did they sometimes do it whether they were allowed or not?—(A) Not with our orders. (Q) Did they do it with or without orders?—(A) Mr Campbell often gave labourers who were working for him a glass of whisky in the shop. (Q) Did people sometimes drink the whisky which was sold in the shop?—(No answer). Cross-examined—The stable is about 150 or 200 yards from the shop, and as I am not in the habit of attending the stable I cannot say what takes place there. As far as I was concerned, people were never allowed to drink in the stable, nor in the shop as far as I could prevent it.”

The Rev. Donald Mackinnon, D.D., deponed as follows—“I know Mr Campbell's premises at Broadford. I remember of an application being made by him for a licence—I think in 1872 or 1873. To the best of my belief the first application was made in October 1873, but I can only speak of the time when the licence was granted…. I felt strongly in the matter, not because I had any objection of a personal character to Mr Campbell, but because I had formerly seen grocers who held wholesale licences get them converted into retail licences at Broadford, and saw such evils follow, that I determined to prevent a repetition of these evils in the future. Men and women and children, who would not have been seen going into a hotel, got whisky so freely that I objected to it. I was opposed to the principle of granting these licences entirely. … Mr Campbell said he thought he was keeping the place very well. I said I had a different opinion. Mr Campbell asked my reasons for objecting to his licence, and although I was not obliged to tell him my reasons, I said I had seen people drinking and drunk upon his premises. He asked me when and where. I said I had

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seen them in the end shed, and in the stable, and that such things were too common on the public road.”

The pursuer pleaded—“(1) It being provided by the defender's lease that he shall not sell or retail spirits upon the premises let without the express consent of the pursuer, and the defender not having such consent, the defender is not entitled to sell or retail spirits on the said premises.”

The defender pleaded, inter alia—“(3) The pursuer is barred by mora and acquiescence from insisting in the present action. (4) The prohibition founded on by the pursuer being in the circumstances vexatious and contrary to public policy, is not enforceable. (5) The prohibition founded on having been discharged by the pursuer's factor, and rei interventus having followed on the said discharge, the pursuer is not now entitled to revive and enforce the prohibition, and the interim interdict already granted ought to be recalled, and the action dismissed, with expenses.”

On 10th April the Sheriff-Substitute pronounced the following interlocutor:—Finds in point of law that the pursuer by assent and acquiescence in the defender's use of the premises in question for the sale of exciseable liquors from the 31st October 1876 to 15th April 1884, must be held to have discharged the prohibition founded on, and to have lost the right to enforce it: Therefore to that extent and effect sustains third and fifth pleas-in-law for the defender, and recals the interdict formerly granted, and assoilzies the defender from the conclusions of the petition, and decerns: Finds him entitled to expenses, &c.

In his note the Sheriff-Substitute, after stating the facts set forth and explaining the grounds on which his judgment was based, proceeded as follows:—“The agent for the defender pleaded at the debate that in consequence of the acquiescence by the pursuer for seven years and upwards in the actings of the defender, the prohibition could only be enforced by an action of declarator and interdict, and not by interdict only; but in the view I have taken of the evidence it is unnecessary to determine this plea. I may, however, refer to the cases below, as those upon which the defender mainly relies in support of it.

Pursuer's authorities— Gold v. Houldsworth, 8 Macph. 1006; Ewing v. Campbell, 5 R. 230; Earl of Zetland v. Hislop and Others, ut supra; Burnett v. Great North of Scotland Railway Company, 11 R. 375, and 12 R. (H. of L.) 25; Auld v. Glasgow Working Men's Provident Investment Building Society, 12 R. 1320, and 14 R. (H. of L.) 27;

Defender's authorities—Obligation passed from acquiescence—Rankine on Leases, 216; Young, Ross, Richardson, and Company, 2 S. 793 (N. E. 655), also 1 W. & S. 560; Park v. Matthews 1887), L. R., 3 Eq. 515; Campbell v. Clydesdale Bank, 6 Macph. 943; Stewart v. Bunten, 5 R. 1108; Anderson v. Aberdeen Agricultural Hall Company, 6 R. 901; Lamb v. Mitchell's Trustees, 10 R. 640. Interdict not proper remedy— Fife Fary Trustees v. Magistrates of Dysart and Others, 6 Shaw, 265; Lord Lovat v. Fraser, 8 D. 316; Porterfield v. Macmillan, 9 D. 1424; Blackburn v. Finlay and Others, 10 D. 590; Dickson v. Lanark and Dumbarton Road Trustees, 11 D. 115; Lawson's Trustees v. Lamond, 3 Macph. 53; Calder v. Adam, 8 Macph. 645; Weir v. Macdonald and Dempster, 10 Macph. 94; Begg and Others v. Jack, 1 R. 366; Johnstone v. Thomson, 4 R. 868; King v. Hamilton, 6 D. 399.”

The pursuer appealed to the Sheriff, who on 19th May pronounced the following interlocutor:—“… Finds (3) that the defender has failed to prove that the pursuer has discharged the said prohibition, or that he has, by acquiescence or otherwise, lost his right to enforce it; (4) that at the date when the present process of interdict was raised, and for some time previously, the defender was selling spirits upon the said premises, which were erected on the said piece of ground not only without the consent of the proprietor or his factor, but in opposition to their frequent remonstrances: Finds in law that the defender is not entitled to sell or retail spirits on the said premises without the express consent of the pursuer or his factor, and that the pursuer is entitled to interdict as craved: Therefore repels the defences, grants interdict in terms of the prayer of the petition, and decerns: Finds the pursuer entitled to expenses, &c.

Note.—The prohibition against the defender's selling spirits without the express consent of the pursuer or his factor is clearly established by his lease. Further, it is not disputed that the defender has since 1884 been selling spirits on his premises without the consent of the pursuer or his factor. He maintains, however, that he is justified in doing so, on the ground that the pursuer, by his acts from 1876 to 1884, must be held to have discharged the prohibition in question, or at all events lost by acquiescence his right to enforce it. The onus of proving this admittedly lies on the defender, and in the Sheriff's opinion he has failed to substantiate it. Assuming it to have been proved—which the Sheriff thinks it has not—that the defender sold spirits on his premises from 1876 to 1884 with the express consent of the pursuer or his factor, this would by no means establish the defender's proposition that the pursuer had discharged the prohibition in question, or had, by acquiescence, lost his right to enforce it. The object of the pursuer in restricting the sale of spirits on his property around Broadford was no doubt to promote the best interests of the neighbourhood, and to secure for ninety-nine years at least that such a sale should be conducted by persons in whom he had confidence, and in a manner that would not be prejudicial to the well-being of the district. So long as he had confidence in the defender, and the latter conducted the business in a manner approved of by him, it was only reasonable that he should refrain from enforcing the prohibition without losing his right to enforce it in the event of the defender selling the premises to another, or of the defender himself conducting the business in an improper manner. For some time prior to 1884 the defender appears to have conducted his business in such a manner as to give offence to a large number of persons resident in the neighbourhood, and in April of that year, in consequence, inter alia, of certain objections taken to the renewal of the defender's licence, it was refused by the Justices at Portree. The defender having appealed to the Quarter Sessions at Inverness, a petition was presented against the renewal of the licence, on the ground that its continuance would be prejudicial to the welfare of the district. This petition was signed

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by the Rev. Donald Mackinnon, Established Church minister of Strath, the Rev. Alexander Grant, Free Church minister, and the Rev. Donald Boll, Baptist minister there, and between three and four hundred other residents in the parish. The defender's application for a licence was therefore refused at Inverness, and it has since been renewed by the defender and refused by the Justices regularly every year since 1884. The Rev. Donald Mackinnon when asked what his objections were to the licence, said that he ‘had seen people drinking and drunk upon his premises, … in the shed, and in the stable, and that such things were too common on the public road.’ Seeing that there was a good and well conducted hotel at Broadford, where spirits could at all times be obtained by the inhabitants; that in consequence of the manner in which the defender had conducted his business, strong objections had been taken to the continuance of his licence by the parties above mentioned; and that the Justices, in consequence of these objections, have seen fit to refuse a renewal of his licence, the Sheriff cannot but consider that the pursuer not only acted within his legal rights, but also exercised a wise discretion in enforcing the prohibition in question by raising and insisting on the present action.”

The defender appealed to the Court of Session, and argued—1. As to his present position—Since he lost his grocer's licence he held a wholesale licence under the Spirit Act 1860 (23 and 24 Vict. cap. 114), sec. 168, and such a licence was not prohibited by the terms of the lease. What was prohibited was to “sell or retail spirits;” the word “retail” was expository, and what was prohibited was selling by retail. 2. On the question of consent—The factor's letter to the Justices and the landlord's acquiescence in the defender obtaining, and for seven years continuing to obtain, a grocer's licence, barred him from now, as far as the defender was concerned, withdrawing his consent, on the faith of which the defender had laid out considerable sums of money, and made structural alterations on the buildings. There were three objections to the action of the pursuer—(1) He was personally barred; (2) he had acquiesced in what had been done; (3) the permission granted was irrevocable. The present question was raised in the interests of private parties and not in the interests of the public.— Earl of Zetland v. Hislop, March 18, 1881, 8 R. 675 and 9 R. (H. of L.) 40, The alterations on the building had proceeded unchallenged under the landlord's eye, and were ostensibly for the purposes of his trade; the landlord's non-interference showed acquiescence—( Cairncross v. Lorimer, 3 Macq. 827; Young, 1825, 1 Wil. & Sh. App. Cas. 560. There was nothing in the way in which this business was carried on to cause a nuisance— Skeene v. Maberly, March 2, 1822, 1 Sh. 412. The consent once given was irrevocable as regarded the present tenant.

Argued for the pursuer—The object of the insertion of such a clause in the lease was to reserve to the landlord some control over the drink traffic in the public interest. In cases like the present there was always a delectus personæ, and a consent such as was given here was given, not to the premises, but to the individual, and was revocable if a change of circumstances demanded it. It was not likely that the landlord would first insert a clause like this in the lease, and then give an unlimited consent to sell spirits, regardless of the person to whom the permission was given or of the manner in which the business was carried on. All that the landlord agreed to was that the defender should obtain a grocer's licence which had to be renewed yearly; this was a limited consent and could never be interpreted as a discharge for all time coming of the prohibition in the lease. There was nothing here of the nature of acquiescence— Cowan v. Kinnaird, December 15, 1865, 4 Macph. 236—in the proper sense of the word; there was more; there was a consent renewed each year by non-opposition, and which could be withdrawn on cause shown, and was properly withdrawn in the circumstances of the present case, both on public and private grounds.

At advising—