Scottish Court of Session Decisions

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.