Scottish Court of Session Decisions

On 20th May 1907 Alexander Goodall, wine and spirit merchant, 68 M'Alpine Street, Glasgow, brought an action against (1) Sir William Biisland and others, the members of the Licensing Appeal Court for the city of Glasgow, acting under the Licensing Scotland Act 1903, and (2) John Green and others, in whose names objections had been lodged against a renewal of the pursuer's licence, first in the Licensing Court and afterwards in the Licensing Appeal Court, in which he sought reduction of a deliverance of the Licensing Appeal Court dated

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8th May 1907, depriving him of his licence, a renewal of which had been granted him by the Licensing Court on 9th April 1907.

Similar actions were raised at the instance of two other licence holders in Glasgow, Cassidy and M'Lean, who had also been deprived of their certificates by the said Licensing Appeal Court. Cassidy's case was heard and disposed of at the same time as that of Goodall. M'Lean's case was sisted to await the decision in the other two cases.

The facts and the grounds on which the actions were raised are given in the opinion ( infra) of the Lord Ordinary ( Johnston), who on 29th January 1908 granted decree as craved.

Opinion.—“In these cases which are raised for setting aside, at the instance of three licence holders in Glasgow, Goodall, Cassidy, and M'Lean, the deliverances of the Glasgow Spring Licensing Appeal Court of 1907, sustaining appeals against deliverances of the Licensing Court renewing their certificates, I have already disposed of the first ground of action holding the Licensing Appeal Court held on 7th and 8th May 1907 to have been validly convened and constituted, and have accordingly repelled the first plea-in-law for each of the pursuers.

It now falls to consider the remaining grounds of action, which are threefold.

First, that the appeals against the renewals of the pursuers' certificates were not instructed or authorised by the parties in whose names they were presented and insisted in, but by or on behalf of a certain association styled the Citizens' Vigilance Association, which had no locus standi to be heard in the matter, and therefore that there were no competent appeals before the Court.

Second, that the appeals having been taken and insisted in for and on behalf of the said Citizens' Vigilance Association, certain members of and subscribers to that Association sat as members of the Appeal Court and took part in the determination of the appeals, which rendered the proceedings null; and

Third, that certain members of the Appeal Court who took part in the determination of the appeals had not been present during the whole of the proceedings, and consequently that their intervention rendered the proceedings null.

The whole of these grounds of action are applicable to the cases of Goodall and M'Lean, but the first and second only are applicable to that of Cassidy. It was arranged that the case of M'Lean should be sisted to await the determination of the other two. Before these grounds of action can be considered it is necessary to ascertain precisely the true state of facts as disclosed on the proof which has been led. As matter of convenience it was arranged that the proof in Goodall's and Cassidy's cases should be taken together. That proof, exhaustive as it necessarily had to be, has, I think, been somewhat unduly protracted by the anxiety of the defenders' witnesses to explain away the import of documentary evidence, and considerable discrimination is necessary in order to educe the essential facts.

The defenders are, firstly, certain of the nominal objectors and appellants—objectors in the Licensing Court and appellants in the Appeal Court—and, secondly, the members of the City of Glasgow Licensing Appeal Court. The first set of defenders ostensibly defend in their own interest, but it is a question with which I may subsequently have to deal whether these defences are really proponed in their own interest or in that of the Citizens' Vigilance Association, or in what circumstances.

I shall for the present confine my attention entirely to the questions of fact raised on the evidence.

The Citizens' Vigilance Association came into existence in 1902 as the outcome of certain public meetings held in Glasgow in the early half of that year. The Association is not in any way a corporate body, but a mere voluntary association. Its constitution is a very brief document. It sets forth as the objects of the association ( a) the due enforcement of existing licensing and related laws; ( b) the suppression of drunkenness; and ( c) the promotion of good government in the city.

Despite the best efforts of its officials in the witness box, I am satisfied from a perusal of its reports, the literature of its propaganda, and the excerpts, which were taken from its minutes and those of its committees for the purpose of showing its objects, and from samples of its correspondence, that the whole raison d'etre of the Association was, or at least had long before the present questions arose, become the improvement of the licensing administration of the city of Glasgow, and by effecting a reduction of licences to work towards the reduction of intemperance in the city. I cannot find any trace of the third avowed object of the association, viz., the promotion of good government of the city, being prosecuted in any other direction than that of purging the Council in the interests of temperance. But I desire to say that the association has throughout its history disclaimed the extremes of the temperance movement, and has refused to associate itself with the more extreme organisations of the temperance party. It has never advocated a total abstinence policy, but it has aimed solely at the purification of the city from the charge of being extravagantly over-licensed, a charge in justification of which it has only to refer to the statistics prepared for the Licensing Authority by the Justice of Peace Clerk, which disclose the astonishing fact that in the Broomielaw, the district in which the public-houses in question are situated, there is one licensed house to every 122 of the inhabitants, old and young. And to that end it has sought merely to compass the reduction of the temptations to drunkenness which it conceives to be thrown in the way of the lower classes of the population to an inordinate degree by the overlicensing of the districts in which they

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congregate. I desire further to state that, though I shall have to criticise its methods and its actings in the present cases, I do not for a moment wish to impute to it anything but the highest motives, or by anything which I may be called on to say to detract from the good which I believe it has done and will still do. These are matters which have no part in determining my judgment. That must depend on a consideration restricted to the facts and law of the actual cases before me.

To return to the constitution, it provides for certain office-bearers to be elected annually, and for the affairs of the Association being managed by an elective board of directors, with power to appoint committees from their own number, supplemented, if expedient, from the General Committee, to deal with any business affecting the work of the Association. This General Committee was to consist of (1) the office-bearers, (2) the directors; (3) the secretary and three representatives from each Vigilance District Committee, and (4) all members of the Association who have subscribed to its funds during the preceding year. Perhaps the main feature of the Association is the district committees. These were to consist of all the members of the Association residing in each municipal ward—district and ward being synonymous. Their duties were to be ‘to report any breaches of the licensing Acts, to assist the authorities in preventing irregularities, and periodically to review the condition of the ward with regard to licensed premises, also to co-operate with the directors in the selection of suitable candidates for the Town Council, and in the promotion of good government in the city.’

As regards membership, it was provided that ‘all who approve of the objects of the Association and who are willing to assist in carrying them out may be enrolled as members. All members are invited to subscribe to the funds of the Association.' It is thus made clear that subscription to the funds was not made essential to membership. But it has been strenuously maintained that subscription to the funds did not in itself constitute membership. In this, so far as concerns the question raised in this case, I cannot concur.

The Association has been in the custom of enrolling as members, at its public meetingsand on separateoccasions, sympathisers and those wdling to assist, by obtaining their signatures to a form. Its terms involved no obligation to subscribe or afford financial support. And a roll of members has been, with some attempts at accuracy, kept by wards in the ledger. None of the forms signed have been retained, and there is I think reason to believe that the names of many persons who have never been subscribers, as well as of some at least of those who have been subscribers, have been entered on this roll, though they have never signed a membership form. I do not, however, rest my opinion that subscription to the funds of the Association

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pointed Mr James Stewart, writer, Glasgow, its law agent. Mr Stewart became clerk to the Justices of Peace of the county of the city of Glasgow in the spring of 1906 and before the Spring Licensing Court of that year. He was succeeded by Mr Robert Kyle, writer, Glasgow. The Association's law agent was paid by a salary, and while his appointment was general there cannot I think be any question that practically his sole duty to the Association was to give his services in the Licensing Courts in opposing the granting and renewing of licences, and this duty these two gentlemen in succession appear to have performed with ability and with considerable success. But neither under the old law nor since the Act of 1903 came into operation could the Association, as an Association, have any locus standi to be heard in the Licensing Courts. It necessarily had to act through the medium of competent objectors and appellants. And these had to be found. The method of proceeding was not uniform throughout the whole period of the Association's existence, nor even with reference to any one Court. It varied from time to time, and it also varied with circumstances. Excerpts from three different minute books are produced, being I understand from the general minute book of the Association, from the Licensing Laws Executive Committee minute book, and from the minute book of a sub-committee, the precise composition and powers of which I have no means of ascertaining, nor wherein it differed from the Licensing Laws Executive Committee with which it was co-existent. The evidence of the Association's officials notwithstanding, I am satisfied that the course which the Association took was to select the more congested areas of the more congested wards of the city—congested in reference not merely to population but to the numbers of existing public-houses; congestion indeed in the mouth of the Association means the existence of an excessive number of public-houses in any area compared with the population. Having fixed on the district, the committee or committees of the Association then, with the assistance of that District's Vigilance Committee, marked down the licences to be made subject of attack. And the next step was to find competent local objectors. This matter was left largely to the District Vigilance Committees, but their efforts were sometimes supplemented by the services of a paid assistant. It is at the same time right to say that the Association was sometimes, and probably more frequently latterly, aided by the voluntary intervention of persons locally interested, and particularly of the office-bearers of local churches. But however they were found, there is no doubt that the nominal objectors were generally obtained by canvassing in one form or another, and were rarely if ever people who came forward of their own accord. There was seldom anything said about the expense of lodging and supporting the objections. It was tacitly assumed that the Association undertook the whole burden and expense connected with the lodging and supporting the objections. Further, having found the objectors, the Association took absolute possession and control of their objections. The practice was to obtain a mandate from the objectors to oppose a certain licence in favour of the Association's law agent. The law agent then lodged objections under his own hand in name of the objectors, and the nominal objectors were no further concerned or communicated with. They were not, unless in very exceptional instances, called as witnesses, and they were not, so far as I can see, consulted as to appeals. The Association's law agent, unless in a few very exceptional cases, where churches were concerned, appeared at the Licensing Court and Licensing Appeal Court, and conducted both objections and appeals, nominally in name of the objectors, but really on behalf of the Association. That is my conclusion by reason of the direct evidence of the procedure in the present cases, made general in its effect, where taken in conjunction with the terms in which the law agent's reports to the Association's committees are couched, and in which the committees minute their resolutions and directions.

But the two cases with which I am concerned were somewhat different from what I conceive to have been the usual run of things, at least in the earlier history of the Association's activity. I am not sure whether or not the operation of the 1903 Act put difficulties in the way of the Association, but I find it minuted by the Licensing Laws Executive Committee on 7th March 1907 that ‘Mr Kyle stated that an area had been selected but there was difficulty in getting witnesses.… It was agreed to insert advertisements in the morning and evening newspapers regarding the forthcoming Licensing Court on 9th April.’ This may have been done before, though I find no trace of it, but at any rate there appeared in the Glasgow Herald of 27th and 28th March 1907 an advertisement under the heading ‘Glasgow Public-House Licenses’ in the following terms:—‘The Annual Licensing Court begins its sittings in the City Hall, Glasgow, on Tuesday, 9th April, at 11 a.m. The meetings of the Court are open to the public. The list of applications is advertised in the Daily Record and Mail of 27th and 28th March. Statutory objections to any house must be lodged not later than Wednesday, 3rd April. All necessary information and guidance can be obtained by citizens willing to help from the Citizens’ Vigilance Association, 21 West Nile Street.’

This advertisement bore fruit in a call from Mr Ritchie, one of the missionaries of St Mark's Institutional United Free Church, upon Mr Battersby, the organising secretary of the Association, by whom he was directed to Mr Kyle. St Mark's Church has an allied church or mission in Carrick Street in the Broomielaw ward, nearly opposite to Cassidy's public-house. Carrick Street is a short side street running from the Broomielaw to Argyle Street. M'Alpine Street is a similar adjoining street parallel to Carrick Street, in which Goodall's public-house

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is situated, being indeed back to back with Cassidy's. Mr Ritchie and his fellow workers in the mission had long been keenly anxious, in the interests of their people, for the suppression of these two public-houses, and if the accounts given of their surroundings, or their habitues, and of the scenes enacted in their proximity, are correct, no reasonable person can wonder at their anxiety, and I am perfectly satisfied of their bona fides. At Mr Ritchie's request Mr Kyle went the same evening and met Mr Ritchie and a few of his leading deacons and workers in the vestry of the mission, and they explained to him then—view of the position of matters, and he explained to them what was necessary to be done. The result was that he arranged to send to Mr Ritchie a form of mandate, and on Mr Ritchie or his friends getting it filled up with the names of competent objectors, Mr Kyle undertook to lodge objections and to conduct their case. Accordingly he at once sent down forms of mandates for inter alia both Goodall's and Cassidy's cases. I am not concerned with the Association's other operations in this Ward, though they were instrumental I think in lodging as many as 18 objections altogether in this one Ward. It is necessary to confine attention entirely to the two instances in question.

The form of mandate in Goodall's case, and Cassidy's was in precisely the same terms, was as follows—

To Robert Kyle, Esq.,

Writer,

45 West Nile Street,

Glasgow.

‘We hereby authorise you to sign and lodge on our behalf objections to the granting of the Certificate for Licence for a public-house applied for by Alexander Goodall for premises at 68 M'Alpine Street, at the forthcoming Licensing Court of the City and Royal Burgh of Glasgow, and to appear on our behalf in support of said objections.’

These and the other mandates, which he had undertaken to get filled up, Mr Ritchie distributed among deacons or others of his workers, who, though they might not live themselves in the district, were familiar with the circumstances and acquainted with their Church's people resident in it. James M'Dade took charge of the mandate referring to Goodall's licence, and R. Ferguson and W. Stevenson took charge of that referring to Cassidy's licence. Now these men, though influential members of the Mission Congregation, were themselves only working men, and though it was carefully explained to them, that the only competent objectors were owners or occupiers of property in the neighbourhood of the licensed premises in question, I do not think that they had any very definite idea, which they could explain to others of inferior position and intelligence to themselves, what the precise purpose of the mandate was, and what was intended to follow on it. In Goodall's case M'Dade obtained the signatures of John Green, John M'Leod, John Kennedy (since dead) Isabella Hamilton, Sarah Cairnduff, George Queen and John Birkby; while in Cassidy's case Ferguson and Stevenson obtained the signatures of Robert Henderson, James Flannagan, W. E. Callagan, Samuel Austen, Bella Buchanan, Sarah Moore, John Fowler, David Moore, Christina Montgomery, Robert Paterson, James Wilson, John Buchanan, James M'Dade and J. E. Dryden. Most of these people were examined, and I think that the objections of but a small minority in each case could, on the most benevolent construction, be described as spontaneous; that an analysis of the evidence would show that a certain section of them wanted any proper occupancy qualification; that a certain section did not understand that they were signing anything more than what I might term a petition to the Licensing Authority, against either licences in general or against the particular licence, which petition was to be presented and would have effect by its own virtue; that a certain section altogether misunderstood the import of the mandate, hut that in each case there were two or three of the signatories who were genuinely anxious to see the licences in question suppressed, and were glad to have the opportunity of assisting to that end, and who had a general though indefinite understanding that something was to be done in the Licensing Court by Mr Kyle to effect what they desired. In Goodall's case I might instance John Green and John M'Leod, and in Cassidy's case J. Fowler, R. Henderson, and J. Flannagan. Even M'Dade, the emissary, does not appear to have understood what was to follow the mandates, and himself rather regarded them as of the nature of a petition to be presented to the Licensing Authority. But I have no doubt that had these and probably others of the signatories been approached by Mr Kyle himself or by anyone having a full understanding of the situation they would have willingly joined in going the whole length necessary with a view to obtaining a reduction of the licences in the district. I must add that as regards any expenses which might be incurred in proceeding upon these mandates, this matter does not appear to have occurred to any of the signatories at the time, and so far as they may have had any afterthought on the subject as matters progressed they seemed to have considered that it was their Church which was taking the matter up, and that any expenses involved would fall upon it. They knew nothing whatever about the Citizens’ Vigilance Association or Mr Kyle's relation to it.

The mandates having been signed, they were sent by Mr Ritchie to Mr Kyle, who prepared the objections, which were the same in both cases. From this point Mr Kyle had no further communication whatever with the objectors. He acted in their name indeed but entirely in his character as representing the Vigilance Association. The objections were never submitted to any of the objectors, and the third, viz.,

‘The applicant is not a fit and proper person to hold a public-house licence,’ they all unanimously disclaimed. Mr Kyle paid

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the dues to the Town Clerk on the objections in the Licensing Court, and again the dues to the Justice of Peace Clerk for the subsequent appeal to the Licensing Appeal Court. In preparing his evidence he precognosced no objectors, and called no objector as a witness. He prepared the evidence, and led it entirely from what, with one exception, I must term the stock witnesses of the Association, for they appear to repeat their evidence in case after case.

The objections had no success in the Licensing Court, but that fact was not communicated by Mr Kyle to the objectors. Yet notwithstanding this and the terms of his mandate, he presented appeals in the names of the respective sets of objectors to the Licensing Appeal Court, in which he stated that ‘the appellants are dissatisfied with the proceedings in the Licensing Court in granting the applications for renewal, and appeal therefrom to the Licensing Appeal Court.’

But to my mind one of the most pregnant facts in the case is, not merely that Mr Kyle took these appeals along with a great number of others without communication with or authority from his nominal clients, but the terms in which he reported to his committee his dissatisfaction with the decisions of the Licensing Court and his determination to challenge them before the Appeal Court, and in which they approve his action.

Neither in these appeals did Mr Kyle call any of the objectors as witnesses, and his excuse that he expected them to be called by his opponent is not I think ingenuous. In both cases he again called his stock witnesses, who had already been repeatedly examined by him before the Appeal Court as they had been formerly before the Licensing Court, such as Mr J. P. Maclay, Mr Alexander Galbraith, Miss Flora MacNaught, and Mr William M'Ghee, with two others in Cassidy's case, and Mr James Ritchie, the St Mark's missionary, in Goodall's case. Mr James Ritchie was the only individual called who had any connection with the objectors. Mr J. P. Maclay was one of the leading members of the Association, without whose quite munificent financial support it could hardly have carried on its work.

The appeals came on for hearing, Cassidy's on the 7th, and Goodall's on the 8th May 1907, and again Mr Kyle communicated with none of the objectors.

Before touching the progress of the cases in question, it is necessary to go back on certain circumstances which had occurred at earlier sittings of the Appeal Court. That Court included among its members Bailie John Battersby, who was the salaried organising secretary of the Citizens' Vigilance Association. At a preliminary meeting of the Court on 22nd April, Bailie Battersby was one of a small committee nominated to inspect the premises and localities in connection with which appeals had been lodged, with a view to reporting to a private meeting of the members before the sitting of the

Appeal Court. Again, at the Appeal Court on 29th April, it is minuted that the Court adjourned to discuss certain appeals in private and that ‘on their return to Court Bailie Scott asked Bailie Battersby a series of questions as to his connection and position with the Vigilance Committee or Association and as to his legal right to vote in the Court. The chairman ruled that these questions were not competent for the Court to consider.' Notwithstanding this challenge, Bailie Battersby continued to sit and vote, and the three appeals in question were sustained by a majority of one—thirteen votes to twelve. In the next appeal, that against the renewal of Mrs Masterton's certificate, Mr Kyle, who I may note in passing regularly appeared for the appellants in all the appeals, ‘was heard for the appellants and Mr Campbell for the said Catherine Murray or Masterton. Before proceeding Mr Campbell requested the clerk to note that he objected to the presence of Bailie Battersby on the Bench.’ Before the next effective sitting an interdict was presented against Bailie Battersby's taking further part in the proceedings in the Licensing Appeal Court, and when the Court met on 7th May there was read by the clerk a letter from Bailie Battersby in the following terms:—

139 Rutherglen Road,

6th May 1907.

James Stewart Esq.,

Clerk to the Licensing Appeal Court.

‘Dear Sir,—While maintaining my right to act as a member of the Licensing Appeal Court, I have decided, in order to facilitate the business of the Court, not to attend further the present sittings,—I am, Yours truly, (signed) John Battersby.’

I have mentioned these matters, not that they have a direct bearing upon the question at issue, but because they have an indirect but most important bearing upon what follows.

The Court of 7th May proceeded with the appeals, Mr Kyle appearing as usual for the appellants. The first appeal was dismissed. On the second appeal being called, Mr Kyle withdrew from that and a number of his other appeals the names of certain of the appellants, who represented societies of which the magistrates were ex officio members, and it was then agreed to adjourn until 2 o'clock p.m. On resuming Mr Kyle intimated to the Court that he withdrew the pending appeal and seventeen others, that is to say, eighteen out of the thirty-five appeals in the roll, for all of which as representing the Vigilance Association he was responsible. This is another, to my mind, most pregnant pieceof evidence. For it betokens that Mr Kyle in doing so assumed such control of the proceedings that he could withdraw appeals without any communication with his nominal clients the objectors, and did so after some hint from the Lord Provost, the precise nature of the communication not appearing. The last appeal to be heard on that day was that against Cassidy's licence, when Mr Kyle appeared for the appellants and Mr J. M. Connell, writer, Glasgow, for Cassidy.

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This appeal so far as the minutes show was allowed to proceed without any objection to Mr Kyle's locus standi to appear. On Goodall's case being next called, Mr Mac-Quisten, writer, Glasgow, who appeared for Goodall, took such objection. But as the adjournment of the Court was then moved, nothing further was then done on it.

On the following morning, 8th May, the Appeal Court sat at 11, and the appeal in Goodall's case was at once called. Mr Kyle appeared for the appellants, and Mr MacQuisten for Goodall. ‘Before hearing agents Mr MacQuisten intimated that he objected to the status of Mr Kyle as representing the appellants in respect that he did not represent the appellants, but represented the Citizens’ Vigilance Association, who were the true dominus litis in this appeal, and that the said Association was not entitled to appear as appellant in this appeal. The chairman, on the advice of the clerk, ruled that it was incompetent for the Court to consider the point raised by Mr MacQuisten, as Mr Kyle prima facie represented persons who were qualified to be heard as objectors under the provisions of the Licensing Act.’ The case accordingly proceeded and the appeal was sustained. With reference to this episode I refer to the evidence of Bailies M'Innes, Shaw, Thomas Dunlop, and Archibald Campbell. Bailie Shaw stated that all about the Association and Mr Kyle's position was public property—‘I understood he was there for objectors, but I understood that the Vigilance Association had him there. I often wondered why none of the objectors appeared at the Court. Nothing occurred on that occasion to alter what was my understanding and belief, viz., that Mr Kyle was there prosecuting the appeals on behalf of the Vigilance Association,’—and Bailie Dunlop stated that he knew all about the Vigilance Association and Mr Kyle. That the chairman took the advice of the Clerk of Court, who ruled that the matter could not be gone into, and that the rest of the bench acquiesced in the chairman's ruling. On the other hand several of the members of the Appeal Court who appeared for the defence professed a surprising ignorance of the Association and its action, and of Mr Kyle's connection with it. I regret to find that I have innocently committed myself on this subject by stating in my former judgment on the objection to the constitution of the Appeal Court that ‘it is common knowledge that the Association is a patriotic body which has done most excellent work in connection with Glasgow municipal affairs.’ Though apparently the knowledge had not reached members of the Glasgow Licensing Appeal Court, I was personally aware generally of the existence and objects of the Association long before this case arose, from the public press, and I had understood that what I stated was made common ground in the Procedure Roll discussion. Having regard to the history of the Association as disclosed in its own documents, and to the campaign which had been carried on by it for some years, much the same as in the Spring Licensing Court of 1907, against the renewal of certificates, through the agency of its two salaried law agents, Mr Stewart and Mr Kyle, the former of whom was sitting as Clerk to the Licensing Appeal Court, and the latter appearing for every set of appellants, and looking particularly to what had occurred with regard to Bailie Battersby at the earlier sittings of the last-mentioned Court, I feel the greatest difficulty in accepting that the state of information regarding the Vigilance Association and Mr Kyle of Bailies Shaw, Dunlop, and Campbell was any different from that of the rest of the Court.

What actually happened was that Mr MacQuisten had cited the whole objectors as his witnesses. What would have been the result of examining them we cannot tell, but on Mr Kyle holding up a sheaf of mandates, without any examination of them, after a short passage between the agents, the clerk's advice was taken, the chairman gave the above ruling, and the Court acquiesced. I think, however, that there must have been some doubt thrown on Mr Kyle's position at some earlier stage of the proceedings of which I have no definite information, and that his sheaf of mandates, I understand in the form of a bound volume, had been handed up to the bench, turned over by a few of the members, and I must assume examined by the clerk.

There remains one more episode in the proceedings of the Court which must be dealt with. It bears upon the challenge in Goodall's case of the votes of Mr Ross and Mr King, Justices of the Peace. These gentlemen are alleged to have taken their seats on the bench after the case had proceeded for some time.—[ His Lordship then dealt with the evidence on this subject.] I think it is therefore proved that these gentlemen, and particularly the latter, took their seats on the bench after a substantial part of the evidence had been led.

Before leaving the evidence the only matter which still remains to be considered is the question upon which the second point before me depends, viz., the disqualification of certain members of the bench by reason that they were members of the Vigilance Association. On this point the averment is—The following members of said Court are or were then, or had previously been, members of and subscribers to the said Association, viz., Sir Samuel Chisholm, Bart., D. M. Stevenson, W. F. Anderson, John King, Robert F. Allan, R. G. Ross, and James Stewart, and are so disqualified. Nevertheless these members took part in the vote against the pursuer and in favour of the said appeals being sustained.' I have already referred to the roll of members of and list of subscribers to this Association. With regard to the roll of members, I find that three out of the gentlemen named were at one time upon the roll of members, viz., Mr Anderson, Mr Wallace, and Mr Stewart, but that all their names had been deleted. I confess to some doubt on the subject of their deletion. I am not satisfied on the

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proof as to the time when that deletion was made, and I think it is most unfortunate that the ledger in which the roll was kept was not openly produced to the pursuers at the commission for the recovery of documents. I can see no reason why it was not produced, or why there was any difficulty made in connection with its production, and it was ultimately compelled to be produced during the proof. But although I am not satisfied as to the somewhat remarkable fact that all these crucial names turned out to have a pen drawn through them when that ledger came to be examined, from my point of view this did not matter, because, as I have already explained, I hold that a subscriber was, at any rate for the purposes of this case, as much a member, if not more a member, of this Association as anyone who was merely enrolled on the members' roll. I therefore turn to the question of subscription, and as a preliminary I must deal with the plea maintained by the learned Lord Advocate, to the effect that none of the alleged subscribers had paid their subscription for the year in which the Licensing Appeal Court was held. Now I find that the Association's year runs from the last day of September until the last day of September, and that a number of subscribers were in the custom of giving their subscription at or about a definite time of year, for instance, one in July, another in August, and another in October. Where I find a gentleman a continuous subscriber for a period of years, I cannot hold him to have ceased to be a subscriber because the Association's financial year had run out, and because, according to his practice, the time for his paying his subscription had not been reached. I hold such a gentleman to be a subscriber, and to remain a subscriber during the current year, although he might pay his subscription six or seven or eight months late according to his custom. Now Sir Samuel Chisholm was a subscriber, but he had not paid any subscription since July 1905. He was therefore not a subscriber for the year 1905–06, and I cannot therefore hold him to have been a subscriber in the current year 1906–07. Mr Stevenson, on the other hand, had been a regular subscriber, and his custom was to pay his subscription in the month of August, and he paid his last subscription on August 6th, 1906. Notwithstanding that the period at which the subscription would naturally have been paid had not been reached, I hold that he did not cease to be a subscriber at the intermediate period when this Licensing Appeal Court was held, viz., in April and May 1907. Mr R. S. Allan was in the same position—May 10th, 1906, was the date of his last subscription. Sir William Bils-land's firm were in the habit of paying in or about October. They had paid in October 1906, and they were the only ones of these subscribers who paid again in October 1907. I do not regard that latter payment; but by reason of the payment in October 1906 I hold that they were still subscribers at the date of this Court, and Sir William Biisland being a partner—the fact that he was senior partner is not material—of that firm, I think that for the purpose of this case he must be held to be a subscriber to the Association through his firm. Mr Wallace, like Sir Samuel Chisholm, had ceased to subscribe in 1906. The others—Mr Anderson, Mr King, Mr Ross, Mr Stewart, and Mr Stevenson—had never been subscribers at all. The result is that at the date of this Court two of the members of the Court had been subscribers—Sir Samuel Chisholm and Mr Wallace—but had more than a twelvemonth before the Court sat ceased to be subscribers; that Mr Stevenson and Mr Allan had been subscribers and continued to be subscribers; and that Sir William Biisland, through his firm, was in the same position. I count nothing of the fact that Mr Stevenson and Mr Allan ceased their subscriptions after this question arose. The question is not what in prudence they thought it right to do post litem, motarn—and I think it was right that they should do so—the question is what was the state of matters as at the date of the Court in question, and at that date they were in my opinion subscribers to the Association.

The questions which it remains for me to decide are these—

First, whether the appeals against Goodall's and Cassidy's licences were not in fact ‘taken for and on behalf of the parties whose names they bear, but were prosecuted and insisted in solely by and on behalf of an Association in Glasgow, known as the Citizens' Vigilance Association, and at its expense.’

And if so, must the decisions of the Licensing Appeal Court, which entertained the appeals, be set aside?

But before this question can be disposed of it is necessary to determine whether the objection can be competently raised before this Court.

On that preliminary point there is considerable difficulty. But on the best consideration I can give to the authorities, I think that the objection can competently be raised, and must be considered.

Though there is not now, in the 103rd section of the Licensing Act 1903, such a widely expressed limitation of review as there was under the 34th section of the previous Act of 1862, it has been held authoritatively that while there is committed to the new Licensing Court and Licensing Appeal Court a privative jurisdiction in the matter of granting and refusing certificates for licences, their decision may yet be reviewed by this Court if they exceed their statutory jurisdiction. But it has been explained that excess of jurisdiction in this collocation means, not excess of jurisdiction in the narrow and technical sense merely, but also the use of discretion in a manner which is not judicial, not according to reason and justice, but so as flagrantly to violate the conditions of a judicial spirit— Walsh, 7 F. 1009, and L.R. (1907) AC 45.

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The objection, however, in the present case partakes, I think, more of the strict and technical sense.

Section 19 of the Act of 1903 gives the power of objecting to the renewal of a certificate, subject to certain exceptions introduced by section 20, only to any person or the agent of any person owning or occupying property in the neighbourhood of the licensed premises. Notice specifying the objections must be in writing, and served upon the licence holder. These objections must be heard, and before the renewal can be refused, these objections must be proved to the satisfaction of the Court. It is true that the objector does not become properly a party to a lis, and that his function is rather the informing the Court of what objections there are to the licence being renewed. But notwithstanding, the whole purview of the enactment shows conclusively that it was intended to confine the right to object and to be heard in support of objections to those locally interested, and it would be contrary to its spirit to allow outsiders to intervene indirectly where they cannot intervene directly.

I had a good deal of argument on the cases in which the question of dominus litis has been raised, but I confess that I do not think them to any extent applicable. These cases divide themselves into two categories—first, those in which the alleged dominus litis has a direct patrimonial interest, but sues or defends in the name of a person who has a title but either no interest or only a secondary interest; and second, those in which persons of means put up a man of straw to sue what may be called an actio popularis. Of the first class Frazer v. Malloch, 23 R. 619, Kerr v. Employers' Liability Insurance Company, 2 F. 17, and Stevenson, 3 F. 182, are examples, and of the latter Jenkins' case, 7 Macph. 739. In both these classes of cases the question is simply one of rendering the true dominus litis liable in expenses, though in the latter the liability for expenses may be brought home ab ante to the dominus by making the nominal pursuers find caution for expenses. In neither class of cases does the question of title to sue or defend arise. The present case has some of the elements of the actio popularis, and were the case a proper litigation, I think that there would have been good grounds for making the nominal objectors find caution for expenses. But the matter is not a litigation, it is a question of statutory right to bring the objectors' views before the Licensing Authority, which is only in a quasi sense a Court, and I think that if the Licensing Authority admits objectors who have no statutory right to be heard, it exceeds its jurisdiction and in doing so exposes its procedure to review, though not on the merits. There can be no doubt that if the Citizens' Vigilance Association had been admitted as objectors eo nomine, and on their objections either the Licensing Court or the Appeal Court had refused a renewal of certificate, these Courts would have gone contrary to the statute, and that review of their action would not have been excluded. One branch of Walsh's case supra bears on this, for proof was allowed as to whether a party claiming the right of privileged objection under the 20th section of the Act really held the position entitling him thereto. And though the Lord Chancellor does say that in coming to an administrative conclusion on questions of licensing policy the Licensing Court ‘may use their own judgment and hear whom they please,’ I do not understand him by the last words to indicate that that freedom may be exercised independently of the statutory limits.

It may be that there are difficulties in checking the outsider intervening through a man of straw or put-up objector. But there are two sides to this question. The earnest temperance reformer may seek to advance the cause which he has at heart through the medium of a nominal objector with a title, but the owner of a tied house or rival publican may also seek to obtain a local monopoly by the same means. I do not think that either were intended to have the opportunity. And if by determination of the Licensing Authority they have received the opportunity, that authority has in my opinion overstepped its jurisdiction, and whatever the difficulty of proof may be, it is I think open to this Court to rectify the mistake in an appropriate process such as the present.

I conclude therefore that there is no incompetency in raising in this Court the first question which I have to consider.

But that question is a matter of degree. There is no reason why a wealthy individual or a philanthropic association should not find money or skill to assist a poor and bona fide objector to make good his objections. It may be difficult to ascertain when the assistance goes beyond this, but if it can be truly said, adapting the words of the late Lord President in Kerr v. Employers' Liability Insurance Company, supra, to suit the circumstances here, ‘was the nominal party ever in Court at all? His name was, but he had nothing to do with the objections or the appeal, having long ago transferred to the Association the right to support the one and prosecute the other’—then I think that that point has been reached, and that it is the duty of the Licensing Court to refuse to hear the objections or entertain the appeal, and that if they do not do so, their subsequent proceedings are invalidated. Further, in determining the question thus raised, the reality of the situation and not merely the form falls, I think, to be considered.

Now I am not in this case directly concerned with the proceedings in the Licensing Court. Still it is necessary to take a preliminary survey of them. There can, I think be no doubt that the office-bearers of St Mark's Church Mission were perfectly justified in moving in the matter of these two licences. Irrespective of personal residence in the district, the trustees vested with the property of their premises, whether freehold or leasehold, had a good statutory

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title to object. So I should be prepared to hold that the Session or even the Deacon's Court had, as representing the Mission Congregation, even though the church belonged to one of the independent bodies. Nor could there be any objection to the office-bearers assisting local members of the congregation to present and support objections which they personally had, or even arranging that the objections of the general congregation should be put forward in the name of certain local and bona fide objectors. Further, I see no objection to the objectors, whether office-bearers or their bona fide nominees, accepting the assistance of such a body as the Citizens' Vigilance Association and the services of that Association's paid agent. Though the matter was gone about in a very bungling fashion, that was at the outset its true complexion. Had the Association and its agent been content to let things work themselves out on this footing it would have been difficult to find ground of challenge of what was done. Accordingly, though in reality the complexion of the matter changed as soon as Mr Kyle got his mandate, I think it would have been difficult, if not impossible, to challenge effectually his position and his action in the Licensing Court.

But the initial complexion of the matter had, as I have said, in reality changed, and that change became most tangible the moment the Appeal Court was reached. The objections in the Licensing Court were not really those of the nominal objectors, but of the Association, who through Mr Kyle took absolute possession and control of the proceedings from the moment the mandate was in his hands, and in their zeal for licensing reform thought no more of the nominal objectors. In the Licensing Court this was latent, in the Appeal Court it became patent. And it is the procedure in the Appeal Court which is alone in issue, because the pursuers here are content with the decision of the Licensing Court, which in spite of Mr Kyle's objections renewed their licences. Now appeal is provided for by the 22nd section of the 1903 Act, which provides, inter alia, that ‘if any proprietor or occupier of property in the neighbourhood of such house who has objected before the Licensing Court to the granting or renewal of such certificates shall be dissatisfied with any proceeding of any Licensing Court assembled for granting certificates as aforesaid, whether in granting or refusing or otherwise disposing of’ an application for a certificate or renewal of certificate, it shall be lawful to such proprietor or occupier ‘to appeal therefrom to the next Court of Appeal from such Licensing Court’ provided the appeal be lodged with the clerk to the Appeal Court within ten days, and that the appellant shall intimate the appeal to the opposite party and to the Licensing Court of whose proceeding he complains, and ‘shall find caution to abide such appeal and the expenses thereof.’ This appears to me to be an entirely new departure or new proceeding, and one which an agent authorised to lodge objections in the Licensing Court had no right to take without the authority of his client, yet Mr Kyle's mandate merely authorised him to sign and lodge objections on behalf of those who signed the mandate at the forthcoming Licensing Court, and to appear on their behalf in support of said objections. Did this justify Mr Kyle without consulting them in stating that the objectors were dissatisfied with the decision of the Licensing Court, in taking the appeal and giving the notices, and above all in laying them under the obligation to find caution for expenses? I think not. Yet he not only does all this without consulting his nominal clients and without even communicating to them the result of their objections in the Licensing Court, but he arranges for caution being found for them without any one of the objectors being the least aware of what he was doing. In fact, he acted, according to the reality, not as agent for the nominal objectors, but for the Association who employed him, and a glance at the minutes of their committees amply illustrates this. How then is the matter dealt with by the Appeal Court when Goodall's appeal is called? I quote from the Court's own minute—‘Before hearing agents, Mr MacQuisten intimated that he objected to the status of Mr Kyle as representing the appellants, in respect that he truly did not represent the appellants, but represented the Citizens’ Vigilance Association, who were the true dominus litis in this appeal, and that the said Association was not entitled to appear as appellant in this appeal.’ Let it be noted that the objection was not merely to want of mandate on the part of Mr Kyle, or to the informality or fictitiousness of his mandate, but was something deeper and more far reaching. At that stage, in my opinion, Mr Kyle had indeed no mandate, and did not even nominally represent the nominal appellants. But more than this did he represent the Citizens’ Vigilance Association, who were not entitled to appear as appellants? And how is the objection disposed of—‘The chairman, on the advice of the clerk, ruled that it was incompetent for the Court to consider the point raised by Mr MacQuisten, as Mr Kyle prima facie represented persons who were qualified to be heard as objectors under the provisions of the Licensing Act’—that is to say, the Court refused to entertain the objection. I am somewhat at a loss to understand the Court's action in this matter, for the alleged relation of the Vigilance Association to these appeals was no new matter to them. I am not prepared to take it off the hands of any of the members that they had no previous knowledge of the Vigilance Association or of its activities with reference to licensing proceedings. But even if they had no previous knowledge, they had had their attention very sharply and pertinently called to the matter at previous stages of the same Appeal Sittings in relation to Mr Battersby, and they had had notice of the attitude Mr MacQuisten was to take up the afternoon before. But they assumed this position—‘Mr Kyle tables a bundle of mandates,

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ex facie regular; that is enough for us; we cannot competently look behind them.’ In that I think they were wrong. In the first place, if they had looked at the mandates they would have seen that they were not mandates authorising appeal. In the second place, if they had gone further they would have found what the evidence in this case has disclosed, what I take to be the case, as I have already said, that through the missionary of St Mark's Church and some of his colleagues in its mission work, mandates to object had been placed in Mr Kyle's hands, some at least of the signatories of which had a title to object and bona fide did object, but that from the point at which they signed these mandates they had ceased to have any relation to or control over Mr Kyle's action, and that the reality of all that followed was that Mr Kyle was representing not the nominal objectors but the Vigilance Association, who through him found the objections, paid the fees of Court, and found the witnesses who were dissatisfied with the first decision, and through him took the appeal, paid the fees of Court, and found caution for the expenses of the appeal, and who again found the witnesses who were their witnesses and not the objectors’ witnesses, and that this Vigilance Association were acting in the matter as part of a large scheme for forcing the views of outsiders, sound as these views may have been, on the Licensing Authority, without any statutory locus standi to do so. It may be that it might have been difficult in the Appeal Court to have exposed the true situation of matters. It may be that had there been a prima facie mandate in Mr Kyle's favour the Appeal Court might reasonably have said, and it is possible that this is what they meant by their deliverance, that in the summary procedure of a Licensing Appeal Court it was out of place to go beyond an agent's prima facie mandate, that the business must proceed, and their decision be taken periculo petentis, leaving any such serious question as has been raised to be determined by a court of law. But they could not, in my opinion, shelve the question either by holding it not competent to entertain it, or by, as far as they were concerned, disregarding it.

Now that it has been brought before a court of law, it is established in my opinion, in the first place, that there was no valid appeal, because the appeal was taken by Mr Kyle without authority, but in the second place, that even if there had been a prima facie mandate to appeal, Mr Kyle in reality represented not the nominal objectors but the Vigilance Association, and on these grounds I think the decision which the Appeal Court proceeded to give on the merits must be set aside.

It was contended for the defenders that the objectors, or at least those who had a competent title to object, had homologated Mr Kyle's action. This is based on the idea that they had not disclaimed his appeal, though what they did not know or it is difficult to see how they could disclaim. If he had cited them as his witnesses and they had appeared with him in Court, he might have pleaded that they had put him at least in as good a position as he had been in in the Licensing Court, or even stronger. But they did not do so; they knew nothing about his appeal; they were not in Court; they were not cited as his witnesses; they were cited as the witnesses of his opponent, and they were prevented by Mr Kyle himself from being adduced in Court, and giving the Court any opportunity of knowing their frame of mind. It was further contended that they had homologated Mr Kyle's procedure by granting him mandates to defend the present actions of reduction. I make no comment on the manner in which this latter mandate was obtained, but I cannot find any justification in the authorities cited to me for holding that such ex post facto homologation can validate irregular and illegal procedure already closed.

The second question which I have to dispose of is, whether the decision of the Appeal Court was invalidated by the fact that the appeal having been truly taken and insisted in for and on behalf of the Citizens' Vigilance Association, certain members of, and subscribers to, said Association sat as members of the Appeal Court. I have already shown that if membership required enrolment in the Association's roll of members, there were no members of the Appeal Court upon that roll whose names had not been deleted, and though the circumstances that they have been deleted is to my mind accompanied by the gravest suspicion, I take the case upon the footing that no members of the Court were in that sense members of the Association. On the other hand I find that Bailie Stevenson, Mr Allan, Mr Murray, and the firm of which Lord Provost Sir William Bilsland was principal partner, were current subscribers, though Sir Samuel Chisholm and Mr Wallace had ceased for more than a twelvemonth to be such, and I hold, as I think I have already said, that in respect of the present objection the position of subscriber to is the same as that of member of this Association. Now, even though, contrary to my opinion, Mr Kyle, by the mandates which he originally obtained was clothed with a legal right to represent qualified objectors in the Licensing Court, and even if the difficulty of his want of mandate in the Appeal Court could be got over, it appears to me that neither of these things would alter the fact that the Citizens' Vigilance Association was the real and true objector and appellant, and by the whole history of its action was deeply committed, however laudable its motive and beneficial its action may have been, to a crusade against licences of which the episode into which I have been inquiring was a mere incident. This crusade was made possible only by the subscriptions of the gentlemen I have mentioned and others interested, and they must have known or must be held to have known that it was to prosecute this crusade that the moneys to which they contributed by their subscription were to be so applied. Was

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The position therefore of these gentlemen not substantially that of sitting in judgment in a case in which they were themselves the prosecutors.

I was referred to a great number of English authorities bearing on this subject. These appear to me to fall into three categories.

First, the class of cases where from the interest of the member of the Court bias may be inferred. Such cases are— Reg. v. Meyer, 1875, L.R., 1 QBD 173; Reg. v. Milledge, 1879, L.R., 4 QBD 332; Reg. v. Handsley, 1881, L.R., 8 QBD 383; Rex v. Justices of Sunderland, [1901] 2 KB 357; Reg. v. Taylor, 14 Times L.R. 105; Reg. v. Tempest, 18 Times L.R. 433; and they were followed by Lord Stormonth Darling in the only Scottish case quoted, viz., Blaik v. Anderson, 1900, 7 S.L.T. 299. Of these I think I may take the Sunderland Justices case as the leading one, and the principle it embodies is that pecuniary interest is enough to disqualify, but if the interest is not pecuniary, then the likelihood of bias in the circumstances must be substantial. The existence of bias is a question of fact for the Court, who must determine whether there was or was not under the circumstances a real likelihood that there would be a bias on the part of the member of the Court challenged. Further, it has been laid down that, assuming that bias is to be inferred in the circumstances, the mere presence of the interested party on the bench is enough to vitiate the proceedings, whether he takes part in the vote or not— Reg. v. Justices of Hertfordshire, 1845, 6 Ad. & El. 753, and L. J. 14 Mag. Cases, 73. It is indeed immaterial what part he takes in the proceedings— Reg. v. Meyer, supra.

Second, the class of cases in which a member of the Court is directly or indirectly a party to the prosecution, using that term for convenience in a comprehensive sense. It is said to be a principle, founded on the very essence of justice, that a person who is connected with the prosecution, using the word in such comprehensive sense, should not take part in the decision. And if an individual who assumes the position of prosecutor directly, as in Reg. v. London County Council, [1892] 1 QB 190, is debarred, so also is a member of an Association which promotes and initiates such prosecution as Reg. v. Allan, 1864, 4 B. & S. 915, and still more pertinent to the present case Reg. v. Fraser, 9 Times L.R. 613, where one out of three magistrates was a member of an association very similar to the Vigilance Association, whose object was almost identical, though it may not have been actuated by the same breadth of view. The association had resolved to oppose, and instructed the solicitor who did oppose, the licence, and it was of no avail to sustain the judgment that the vote of the individual magistrate challenged was not necessary for a majority, as the bench was unanimous.

I should without hesitation follow the broad general principle of this latter class of cases but for the third class of cases to which I was referred. But I venture to think that these improperly aud inconsistently attempt to combine the principles of decision of the first two classes, and make the question of disqualification depend upon the likelihood of bias arising not from interest but from the quality or degree of the relation to the prosecution. These cases are Leeson v. The Medical Council, L.R., 43 Ch. Div. 366; Allinson, [1894] 1 QB 750, another Medical Council case; and Reg. v. Burton, [1897] 2 QB 468, the Incorporated Law Society case. It may be that these cases may be supported on the view of the remoteness of the relation between the member of the Court challenged and the prosecuting body. But if it be not so I should respectfully adopt the dissentient view of Fry, L.J., in the case of Leeson, supra, in preference to the reasoning of his colleagues, and I cannot distinguish the present case from that of Reg. v. Fraser, supra, following which I think that the decision of the Appeal Court in question was vitiated by the presence on the bench of subscribers to the Citizens' Vigilance Association.

The third and last question which I have to consider is whether the decision is also vitiated by the fact that two members of the Court who took part in it had not been present during the whole progress of the case, Mr Ross having joined the Court during the examination of the second witness, and Mr King at a considerably later stage. I do not find any precedent directly applicable, but I think that it is a broad general principle that unless the absence can be regarded on the principle of de minimis, which it cannot be here, whoever takes part in the decision of a court or body of men who, if not a court properly, are bound to act judicially, must have been present during the hearing of the case and the whole case. Further, I think that on the analogy of Reg. v. The Justices of Hertfordshire, supra, and Reg. v. Meyer, supra, it is immaterial how far the vote is affected by counting or discounting that of the member disqualified by partial absence. The only circumstances in which a decision taken part in by a disqualified member can stand that I know of are those exemplified by IAvingstone v. Presbytery of Hamilton, 6 Bell's Appeals 469.

Accordingly I shall sustain the second, third, and fifth pleas for the pursuers in Goodall's case, and grant decree as craved.

“The same result will follow in Cassidy's case, except that the pleas to be sustained will be the second and third only, as I think it makes no difference that objection was not taken in the Appeal Court to Mr Kyle's position as not truly representing the nominal appellants, but representing an outside body, and I shall reserve to hear parties as to expenses.”

The defenders reclaimed, and argued—1. The appeals were competent, for ( a) Kyle had a good written mandate, or ( b) he had a verbal mandate or a tacit mandate to be inferred from facts and circumstances, or ( c) his appeals had been subsequently homologated by the objectors, which was

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equivalent to a mandate, ( a) The objectors clearly intended the licences to be opposed throughout, and the terms of the mandate were therefore wide enough to cover both courts, ( b) Kyle had general instructions to oppose the licences, and that implied that he was to use his own discretion as to how that should be done, and if (as the evidence showed) he had acted reasonably and in good faith and without repudiation on the part of his principals, his act would be regarded as that of his principals. It was not necessary that an agent whose instructions were general should show specific authority for each separate step. It was immaterial even whether his clients were aware of what these separate steps were. Kyle's clients were clearly liable for his expenses, and that was a sufficient test of his authority— Robertson v. Foulds, Feb. 9, 1860, 22 D. 714. Further, the magistrates might entertain an appeal as an act of administration in the public interest even though the appeal were withdrawn—Licensing (Scotland) Act 1903 (3 Edw. VII. c. 25), secs. 21 and 22. The Licensing Courts were not courts in the proper sense of the term; they were administrative bodies acting in the public interest and an appeal was simply a rehearing— Walsh v. Magistrates of Pollokshaws, December 3, 1906, (1907) S.C. (H.L.) 1, 44 S.L.R. 64; Boulter v. Kent Justices, [1897] AC 556, per Lord Herschell at p. 569; Rex v. Howard, [1902] 2 KB 363. Questions as to the sufficiency of a mandate to appear in the Licensing Courts were for these courts to decide. A tacit mandate was as good as a verbal mandate—Stair, i, 12, 12. ( c) Ratification was equivalent to mandate. There were many cases where owing to absence or other causes a client could not communicate with his agent, and an appeal taken by an agent without a mandate, but subsequently ratified, was clearly a valid appeal. The objectors were aware of the appeals, for they were present in Court when they were being heard, and they now stated that they strongly approved of what had been done. Such homologation was equivalent to mandate— Wallace v. Miller, May. 31, 1821, 1 S. 40; Macqueen & Macintosh v. Colvin, July 4, 1826, 4 S. 786; Wylie v. Adam., February 5, 1836, 14 S. 430; Hepburn v. Tait, May 12, 1874, 1 R. 875, 11 S.L.R. 502; Anderson v. Watson, 3 C. & P. 214; Ancona v. Marks, 7 H. & N. 686, and Smith's Leading Cases (11th ed.), i, p. 363; Bolton v. Lambert, L.R., 41 C.D. 295; Marsh v. Joseph, [1897] 1 Ch 213, at p. 246 foot; Lyell v. Kennedy, L.R., 14 A.C. 437, per Lord Selborne at p. 461; Fleming v. Bank of New Zealand, [1900] AC 577. Esto that, as the respondents contended, ratification after the expiry of a time limit was quoad the opposite party invalid, the time limit had not expired here, for the appeal at the instance of the Seamen's Union (one of those withdrawn) prevented the judgment of the Licensing Court from becoming final, and consequently the ratification was timeously made. 2. The Lord Ordinary was in error in thinking that the Justices were parties to the cause. Esto that certain of the

Justices were sympathisers with and subscribers to the Vigilance Association, they were not members. They had no personal interest in the licences one way or the other, and could not therefore be held to be biassed. Esto, however, that some of the Justices were members of the Association, they were not members of the executive, and mere membership could not be held to disqualify— Reg. v. Mayor and Justices of Deal, 45 L. T. 439; Reg. v. Justices of Hertfordshire (1845), 6 A. & B. (Queen's Bench), 753; Leeson v. General Council of Medical Education and Registration, L.R., 43 C.D. 366; Allinson v. General Council of Medical Education and Registration, [1894] 1 QB 750; Reg. v. Burton, [1897] 2 QB 468; Findlater v. Recorder and Justices of Dublin, (1903) 37 Ir.L.T. Rep. 202, per Palles, C.B. The cases of Fraser ( cit. infra) and Allan ( cit. infra), relied on by the respondents, were cases of obvious bias, for direct personal interest was involved. 3. The fact that two members of the Court did not hear the whole case did not render the judgment invalid, for ( a) they missed nothing material, and ( b), even if their votes were disallowed, there was still a sufficient majority— Livingstone v. Proudfoot, May 15, 1849, 6 Bell's App. 469. This was a matter of procedure as to which the Court was final. The principle of de minimis applied. In any event the whole judgment did not fall, for if the votes objected to were invalid they fell to be disallowed.

Argued for respondents—(I) There was no competent appeal, for ( a) Kyle had no valid written mandate, inasmuch as the document founded on clearly applied only to the ordinary Licensing Court. In the Licensing Act there was a clear distinction between the ordinary Court and the Appeal Court, e.g., sections 1 to 5. It was the Licensing Court, not the Licensing Appeal Court, that granted or refused licences. The Appeal Court was an entirely different Court where new evidence might be led. Caution for expenses was required in the Licensing Appeal Court. To say, as the appellants did, that Kyle would have been liable in expenses if the appeal had been lost, or in damages if he had failed to appeal, was absurd. ( b) No verbal mandate had been proved, and even if verbal com—munings had been proved they could not alter the true construction of the written mandate. Further, there was no proper relationship of agent and client here at all. The objectors merely gave their names, and Kyle stated such objections as he thought proper; he never reported to them as to the progress of the case, and never examined them as witnesses, ( c) Homologation had not been proved, and further, no homologation could set up what was in fact a nullity— Gall v. Bird, July 3, 1855, 17 D. 1027. Homologation could not be equivalent to mandate, for the statute made a mandate essential. It was irrelevant to say that the objectors were present in Court when the appeals were being heard. They were cited as witnesses by the opposite party, and were not there in support of their case. The objectors bad ten days in which to

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appeal, and not having done so the opposite party was entitled to plead “no process.” After the expiry of the ten days the objectors could not— quoad the opposite party—ratify what another had done in their name but without their authority—Ersk. Instit., iii, 3, 47–9. No inference as to the objectors' intention pendente processu could be drawn from their statements after the case had been won. In the domain of contract, ratification after the expiry of a time limit was, quoad the opposite party, invalid— Bird v. Brown (1850), 4 W. H. & G. 786; Keighley, Maxsted, & Company v. Durant, [1901] AC 240. Similarly, in litigation, homologation could not set up an inchoate action as against an opponent after the case had been finally disposed of. It was only competent pendente processu when both could be bound. What was at stake was an adverse right. After decree, homologation as against the opposite party would be too late, for there would be nothing to homologate save the decree. The cases of Wallace, Macqueen, Hepburn, and Wylie (cited by the appellants) were inapplicable, for they were cases of personal bar pure and simple. The present case was more akin to Gumming v. Munro, November 19, 1833, 12 S. 61. (2) Bias had been clearly

established. Three of the Court were subscribers to the Vigilance Association, and that made them Judges in their own cause. The Vigilance Association was one which de facto dealt solely with licensing. It was settled that instructing an appearance on one side was sufficient disqualification, and it made no difference that the Justices here were some out of many subscribers. Subscribing to this Association was equivalent to paying Kyle individually to conduct the cases, and that was sufficient to infer bias— Reg. v. Fraser, (1893) 9 T. L. R. 613; Reg. v. Allan, 4 B. & S. 915; Reg. v. Meyer, L.R., 1 QBD 173; Reg. v. Gibbon, L.R., 6Q.B.D. 168; Reg. v. Huggins, [1895] 1 QB 563; Rex v. Sunderland Justices [1901], 2 K.B. 357. The cases of Leeson and Allinson cited by the appellants were distinguishable, for in these cases there was no such intimate connexion between the Judge and the prosecution as there was here, and therefore no “apprehension of bias.” 3. It was admitted that two of the Justices did not hear the whole case—in fact the whole of the evidence on one side had been led before King came in. That was sufficient to render the judgment biassed, and so invalid— Reg. v. Justices of Hertfordshire, cit. supra. The Licensing Court was not a public meeting but a judicial body giving a considered judgment, and if some of the Court were misinformed or biassed the whole judgment fell. It was not sufficient to deduct the votes given by the absentees.

At advising—