Scottish Court of Session Decisions

This was an action at the instance of Robert Boyd, hotelkeeper, in which the pursuer complained of certain proceedings at meetings of justices for granting and renewing certificates.

The only question decided by the Inner House was one as to the liability of the compearing defenders, who were unsuccessful, for the expense of calling certain other defenders who did not appear.

The pursuer had been the keeper of a licensed hotel at Sorn in Ayrshire. On 16th April 1901 he applied to the half-yearly meeting of justices held at Cumnock for a renewal of his hotel certificate. The justices granted the renewal “for six days' licence only,” notwithstanding the pursuer had not applied to them for such a certificate. The pursuer having appealed to a meeting of Quarter Sessions held on 28th May 1901, that meeting, without sustaining the appeal, resolved that the pursuer's hotel certificate be reduced to a public-house certificate, and granted him a public-house certificate accordingly.

The defenders called by the pursuer in the present action were (first) William Hyslop of Bank, New Cumnock, and others, being the Justices of the Peace for the county of Ayr who attended and acted at the district half-yearly licensing meeting

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held at Cumnock on 16th April 1901; (second) Thomas Andrews, solicitor, Cumnock and Ayr, the Depute-Clerk for the Cumnock licensing district and the clerk to said meeting; (third) William Hamilton Dunlop of Doonside, Ayr, and others, the Justices of the Peace of the county of Ayr, who attended and acted at an alleged meeting of the Quarter Sessions of the Peace for that county, held at Ayr on 28th May 1901; (fourth), David W. Shaw, Solicitor, Ayr, the Clerk of the Peace of the county and Clerk to the meeting of the Quarter Sessions, as such clerk and as representing the remaining justices; and (fifth) the whole Justices of the Peace for the county of Ayr, 497 in number.

The summons concluded for reduction of “(first) a deliverance or judgment of the said defenders first above called, pronounced at the general half-yearly meeting of the Justices of the Peace for the Cumnock district in the county of Ayr for granting and renewing certificates, held at Cumnock on 16th April 1901, on the pursuer's application for renewal of his certificate under the Licensing (Scotland) Acts 1828 to 1897, to keep an inn and hotel at Sorn, Mauchline, and county aforesaid, for the year from Whitsunday 1901, in these terms ‘granted for six days' licence only;’ (second) a deliverance or judgment of the defenders third above called, pronounced at an alleged meeting of the Quarter Sessions of the Peace for the county of Ayr, held at Ayr on 28th May 1901, and purporting, inter alia, to grant to the pursuer a public-house certificate for his said premises at Sorn aforesaid; and (third) the public-house certificate for premises at Sorn aforesaid, issued by the defender David W. Shaw to the pursuer in consequence of the deliverance or judgment of the said defenders third above called,” either (1) wholly, or (2) alternatively in so far as the said deliverance of the defenders first above called bore to grant the renewal “for six days' licence only;” for declarator that all these steps of procedure were ultra vires; and for a decree ordaining the defenders second or fourth called, or one or other of them, to make out and deliver to him a renewal of his former hotel certificate in terms of his application; or otherwise for a decree ordaining the defenders called in the fifth place to hold such meetings and do such things as should be necessary for the determination of the matter according to law.

The conclusion for expenses was in the following terms:—“And such, if any, of the defenders as may appear and oppose any of the conclusions hereof ought and should be decerned and ordained by decree foresaid to pay to the pursuer the sum of £100,” &c.

Defences to the action were lodged by William Hyslop and William Hamilton Dunlop only. They pleaded—“(1) The averments of the pursuer are irrelevant and insufficient to support the petitory conclusions of the summons. (2) The proceedings of the justices at the licensing court at Cumnock not having been timeously challenged, the action, so far as founded on these proceedings, should be dismissed.”

On 8th March 1902 the Lord Ordinary ( Pearson) pronounced the following interlocutor:—“Repels the defences: Reduces, decerns, and declares as follows, namely, so far as regards the writ first libelled in the summons, in terms of the second alternative of the reductive conclusion thereanent; so far as regards the writ second libelled, in terms of the first alternative of the reductive conclusion thereanent; and so far as regards the writ third libelled, in terms of the reductive conclusion thereanent; Further, finds and declares that in pronouncing the deliverance or judgment first specified in the summons with the condition ‘for six days’ licence only,’ the justices, being the defenders first called, acted ultra vires, irregularly, and illegally, and that the condition ‘for six days’ licence only’ adjected by the defenders first called to the said judgment or deliverance is to be treated as pro non scripto and of no avail and effect; and that the defenders third called in pronouncing the deliverance or judgment second specified in the summons, and the defender David W. Shaw in issuing said certificate upon said last-mentioned deliverance, also acted ultra vires, irregularly, and illegally; and decerns: Supersedes consideration of the remaining conclusions of the summons to give the pursuer an opportunity of obtaining such decree as may be competent in the undefended roll against the non-compearing defenders, or any of them: Finds the noncompearing defenders liable to the pursuer in expenses; allows an account thereof to be lodged, and remits the same to the Auditor to tax and report.”

Thereafter the pursuer asked for decree against the defender second called in terms of the declaratory conclusions of the summons, and ordaining him to deliver to the pursuer a certificate in terms of his application. On 12th March 1902 the Lord Ordinary, in absence of the said defender, gave decree to that effect.

The pursuer did not take decree in absence against the defenders fifth called.

The pursuer lodged his account of expenses with the Auditor. On 27th May 1902 the Auditor disallowed and taxed off the account the sum of £74, 14s. 5d., being the expense of citing the whole of the Justices of the Peace for Ayrshire as defenders called in the fifth place.

The pursuer lodged a note of objections to the Auditor's report in respect of the disallowance of these expenses.

On 10th July 1902 the Lord Ordinary sustained the pursuer's objections to the Auditor's report and decerned against the defenders for payment to the pursuer of £155, 5s., being the taxed amount of the pursuer's account after adding the £74, 14s. 5d.

“ Note.—The important question raised by the pursuer's objections is, whether the Auditor has acted rightly in disallowing the extra expense caused by the citation of all the county justices as defenders. This turns upon whether the pursuer acted

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reasonably in calling them as defenders, and whether he could safely have left them out. Now, the practical remedy which he sought against an admitted illegality was stated alternatively: either to obtain an amended certificate from the clerk, or to get an order upon the justices to meet and take the proper steps to restore the pursuer against the illegality. In point of fact, the remedy was worked out upon the first alternative. But the second alternative being in the summons, the pursuer had to consider whether he was not bound to call all the justices as defenders upon that issue. According to recent practice, I think he was, and if he had not done so the compearing defenders would probably have met him with a plea of ‘all interested not called.’ If, indeed, it could be shown that the second alternative was on the face of it incompetent or inept as a remedy, I might have taken account of that in the matter of the expenses caused by that alternative. But so far from that being the case, I am informed that the Court has in more than one instance ordered a meeting of justices to be held in order to restore a pursuer against an injustice of which he complained. And I cannot affirm that the pursuer was so clearly entitled to work out his remedy on his first alternative, and so clearly disentitled to do so on his second alternative, as to make it unreasonable on his part to present both alternatives in his summons. I therefore sustain the pursuer's objections down to 1st August 1901 inclusive, with a consequential alteration on one of the later items of taxation.”

The defenders reclaimed, and argued—There was no necessity in this case to call all the Justices of the Peace for Ayrshire. This plainly appeared from the fact that the pursuer had got the remedy he desired without taking decree in absence against these defenders. Further, no defender should be found liable for expenses which had not been caused by his appearance as a defender— Young v. Jolly, May 28, 1830, 8 S. 833.

Argued for the pursuer and respondent—Where it was proposed to reduce the deliverance of the justices of a county, it was right in principle to call all the members of that body, even although they were not all present when what was complained of had been done. All the justices had an interest in the matter. Where a body were unincorporated all the members must be called in a summons. In Ashley v. Magistrates of Rothesay, June 20, 1873, 11 Macph. 708, April 17, 1874, 1 R. (H.L.) 14, all the magistrates had been called as defenders, and not only those who had passed the resolution complained of. The defenders must take the consequences of putting forward untenable defences in an action of this kind— Glasgow Feuing and Building Co., Limited v. Watson's Trustees, May 18, 1887, 14 R. 718, 24 S.L.R. 513.

At advising—