"
Scottish Decisions.
The Royal Commission on Licensing (Scotland) in paragraph 210 of their Report, pointed out that "From the earliest times the licensed grocer has occupied a istinctive place in the licensing system of Scotland, and his business has always been recognised as a separate and distinct branch of the Trade particularly suited to the needs of the people." They added that: "There was little support before us for a policy of substituting for the licensed grocer a form of trade which may be called the off-licence pure and simple, that is to say, trade carried on by one who is not a victualler, but keeps a shop for the off-sale of excisable liquors only," The practice of placing orders for liquor for delivery together with other commodities is in Scotland widespread, and it is clear if the acceptance of orders for a particular class of goods and the dispatch of the goods in satisfaction of the order are restricted to a limited period during the day that the business of the licensed grocer will be seriously hampered. The Scottish Courts have, however, taken the view that the Licensing Act. 1921. does impose such a restriction, and their decision was mentioned with approval in the "bottle party" case and its reasoning was followed.
In 1930 the High Court of Justiciary considered the matter on a case stated by a magistrate (Valentine v. Bell 1930, J.C. 51). The appellant, a licensed grocer, had been convicted of selling liquor outside the permitted hours, and it appeared that two customers had entered his shop at 1 p.m., the period of permitted hours having terminated at 11.30 a.m., and had ordered and paid for supplies of liquor. The grocer put up the liquor and handed it, with the relative invoices, to his messenger-boy, instructing him to deliver the parcels at the purchasers' addresses. The boy was relieved of the liquor by the purchaser in each inscance, in the first at a distance of 15 yards and in the second at a distance of 30 yards from the grocer's premises. The Court upheld the conviction, but there was some divergence of view on the part of the judges as to the grounds of the decision. Lord Hunter thought that, in fact, the goods were handed directly to the customer. The licence-holder went through what his Lordship could only regard as the farce of getting a message-boy to carry the liquor a distance of a few yards. Lord Anderson was also of opinion that the liquor was delivered to the customers in the premises, for he regarded the message-boy as being the agent of the purchasers and not of the vendor, "The whole circumstances of the case," said Lord Hunter, "are such that while the licence-holder may have thought he was not committing an offence under the Act, it is clear that what he did was a scheme to evade the Act."
The Lord Justice Clerk (Lord Alness) was not content to rest his judgment upon the circumstances of the particular case, and the fact that the ordering and dispatch of the liquor were a mere pretence. He pointed out that Section 4 of the Licensing Act, 1921, prohibits the sale in licensed premises of intoxicating liquor to be consumed on or off the premises, except during the permitted hours, and continued : "At the outset it occurs to one to say that it would be absurd in one section to prohibit a sale and in the next section to permit it. Nothing so contrary to good sense and reason has, I apprehend, been enacted by the Legislature. Section 5 (b) permits not a sale but ordering, and ordering, I think, is something quite different from a sale. The section permits what in England has been termed 'an agreement to sell/ but still, in my judgment, sale remains prohibited under Section 4, Section 5 permits an order to be given for liquor during prohibited hours, but the word 1 ordering 9 appears to have been carefully chosen by the Legislature. It is in marked contrast to the word sale which is used in Section 5. A grocer may take an order within the prohibited hours, but may not, as I read it, take the order and complete the sale within those hours."
In the case of Sinclair v. Beattie (1934). S.L.T.40, a customer entered the shop of Beattie, a licensed grocer, at 9.45 a.m. and gave an order for half-a-dozen eggs, half a gill of whisky and three bottles of beer, for which she paid. Beattie's messenger conveying the goods to the customer's address, was stopped by the police in the street at 9.55 a.m. The magistrate held that the facts disclosed no offence and did not convict. When the case came before the High Court of Justiciary the majority held that there should have been a conviction. Lork Blackburn held that a verbal order for a supply of liquor, coupled with immediate payment, was a completed sale, and therefore, following the reasoning of Lord Alness in Valentine v. Bell, a contravention Of the Act. Lord Morison took the same view ; but it is not quite clear that he regarded payment as essential and there are passages in his judgment which suggest that an agreement to sell would be an offence irrespective of immediate payment. Lord Clyde, the Lord Justice General, dissented, and held that there was no offence. His view was that the Act prohibits an act of sale or supply completed in the licensed premises, and he held that the acceptance of an order and the dispatch of the goods in implement thereof was not such an act. " I do not believe," he said, " that the Act of 1921 was intended to prevent a wine merchant from accepting in his licensed premises a customer's order for a bottle or bottles of wine given outwith the permitted hours (whether the customer passes his cheque for the price at the time or whether the wine merchant gives him the usual credit), or from dispatching the wine so ordered to his customer's house outwith those hours."
Brewers' Journal 1934, pages 249 - 250.
