Scottish Court of Session Decisions

There is this peculiarity in the case, that it is not proved that any account was rendered to the complainer when he granted the bill, and in this respect this case differs from previous cases in which it could be seen on the face of the accounts how much represented legal and how much illegal charges.

But the complainer contends that, at all events, the bill was granted for his whole hotel bill between 5th October and 27th December 1887, and that it therefore covered all charges for spirits supplied during that period. Take it that this is true in this sense, that the respondent or his wife did supply the complainer and those he treated on credit with both whisky and brandy in small quantities, and that the respondent was willing in 1888 to accept £50 as in full of the complainer's hotel bill, still the bill charged on has not been paid, and as payment is resisted on the ground that it was partly granted for an illegal consideration (an averment which is not instructed by any account produced or founded on by the complainer), I think that the respondent is now entitled if he can to show that when the bill was granted there were legal charges to the amount of £50 due by the complainer, irrespective of the charges for spirits objected to.

Now, the respondent has produced an account which was made up from memory a short time before the proof. I should attach little importance to this account if its accuracy were not to a material extent borne out by the complainer's own admissions in the box and the undisputed facts of the case. The very first item, ‘To board and lodgings for eleven weeks and five days at £3 per week, £35, 3s., if established, accounts for all but £15 of the £50. The complainer does not admit that he agreed to that rate of board, and I should not have been disposed to take Mrs Ireland's unsupported word that such an arrangement was made, but I find that the complainer in his letter dated 15th February 1888 to the respondent names that very sum as what his trustees were then willing to guarantee for his lodging and food for the future. Again, if there was no arrangement I think that reasonable hotel charges would have amounted to more than the sum charged, which is not much more than 8s. a day. Then as to the remaining £15, the complainer admits the keep of a horse from 18th October to 20th December 1887, which at 2s. 6d. a day amounts to £7, 17s. 6d. He also admits that dogs were kept for him at times, the charge for which may be stated roughly at £2 in all. He also admits frequent hires of a horse and conveyance, and the use of the respondent's conveyance after his own horse came. The respondent's charges for this amount to about £8, but £5 may be stated as the minimum of what is due on this head. Then the complainer admits an advance of cash to the amount of at least £2, and it is proved that he got two barrels of beer for which £3, 10s. is charged. If these sums, which do not exhaust the account, are added together it will be seen that they amount to £55, 10s. 6d., being £5, 10s. 6d. more than the sum in the bill. Even if the board and lodging were charged at £2, 10s. a week the unobjectionable charges, which are really almost proved out of the complainer's own mouth, cover the whole sum in the bill. This being so, I see no reason why the respondent, simply because he was willing to accept less than his full account for the sake of a settlement, should not now, when payment is refused, attribute the whole sum in the bill to his charges other than those for spirituous liquors.

In this view, it is not necessary for me to decide a somewhat difficult question under the Tippling Act, viz., Whether the Act applies to the case of a person lodging in the house who has a running account for his board and lodgings? If the Act applies, then a lodger might refuse payment for every glass of spirits which he or his guests drank during his stay in the hotel or lodgings, unless he bought a pound's worth at a time. In the case of Proctor v. Nicolson, June 24, 1835, 7 C. & P. 67, Lord Abinger held that the Act did not apply to such a case. He said—‘I think that that enactment does not apply to cases where spirits are supplied to guests who are lodging in the house, as it could never be intended by the Legislature that an innkeeper should not be entitled to be paid for spirits supplied to such guests who had taken up their abode in his inn.’ On the other hand, in Hughes v. Done, 1841, 1 A. & E. Q.B. 294, Lord Denham expressed doubts of the decision in the case of Proctor v. Nicolson, and refers to cases, one of which is Burnyeat v. Hutchinson, 5 B. & Ald. 241, to the opposite effect. In Wharton on the Law applicable to Innkeepers, 1876, p. 144, the author, on the authority of the case of Proctor v. Nicolson, states that the Act does not apply to such a case.

If the Act does not apply to spirits furnished to a lodger in his own room, it is hard to distinguish between such charges and those for spirits supplied at the bar or in the public rooms. But, as I have said, I do not feel called upon to pronounce a positive opinion upon the question, and I prefer to decide in favour of the respondent on the ground first considered.”

The complainer reclaimed, and argued—The fact that he was resident in the inn made no difference. The constant tippling at the bar proved here was just what the Act was passed to discourage. The Act was peremptory—Abbott, C.-J., in Burnyeat v. Hutchinson, supra. Lord Abinger's opinion had been seriously doubted in the more recent case of Hughes v. Done, supra.

Counsel for the respondent was not called upon.

At advising—

Lord Justice-Clerk—The Lord Ordinary has disposed of this case on the

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