The Aberdeen Journal, Thursday March 24 1887.
Mr Burnett Of Kemnay And Grocers' Licenses
An Action has been raised in Aberdeen Sheriff Court by Mr Alex. George Burnett of Kemnay, against William Maitland & Co., general merchants, Kemnay, and against George Milne, sole partner in said firm, as an individual, praying the court to interdict the defenders and all others acting for them, or under their instructions, from selling, trafficking, or dealing in ale, spirits, or other excisable liquors within or upon the premises situated in Kemnay occupied by them. The condescendence states that pursuer is heir of entail in possession of the estate of Kemnay, and that defenders, who are general merchants in Kemnay, by lease dated 22nd May and 9th June 1862, entered into between pursuer and William Maitland, are the occupiers of a piece of ground at Mains of Kemnay. By this lease it was conditioned and agreed that the sale of ales, spirits or other excisable liquors upon the premises already erected would not be permitted without the written consent of the proprietor for the time. Notwithstanding this the defender Wm Maitland or the said George Milne, without having obtained the written consent of the pursuer, are selling or trafficking in ale, spirits, &c., upon the said premises. Pursuer further avers that several months ago the business carried on in said premises by the firm of Maitland & Co. was purchased by the defender, George Milne, and the services of the defender Wm. Maitland (the licence being in his name) were retained by Milne, and the business is still being carried on under the title of the firm. The peace and amenity, the pursuer goes on to say, of the village of Kemnay are being disturbed in consequence of the traffic referred to, and the pursuer's rights and interests are being ignored and disregarded. The pursuer is desirous of strictly enforcing the conditions of the lease so far as the selling of excisable liquors is concerned, and the present action has been rendered necessary.
The defenders, in resisting the action, say that the parish of Kemnay has a population of about two thousand persons, and the village, the ground of which belongs wholly to the pursuer, has about a thousand inhabitants. Within the last ten years it is averred the population of the village has doubled, and is steadily increasing. There is no licensed house of any description nearer the village than Kintore on the east, Inverurie on the north, Monymusk on the west, and Cluny on the south, all of which places are from three to six miles distant. It is reckoned that about 4000 people depend for their supply of excisable liquors upon the premises of the defenders. The lease of the ground on which said premises are built was acquired by the said George Milne from the trustees of the late John Bisset, merchant, Aberdeen, by assignation in November last for £1100, and on the 2nd August 1886, the defender, George Milne, bought from the trustees of the firm of William Maitland & Co., the latter having granted a trust deed for behoof of their creditors, the whole stock-in-trade in the premises as Kemnay, including a large quantity of excisable liquors and plant requisite for carrying on licensed premises. The defender, William Maitland, it is stated, obtaining from the pursuer his express consent, in writing or verbally, to the selling of excisable liquors upon the said premises, and at Whitsunday, 1877, obtained a grocer's license from the Justices of the Peace of the Alford district for the sale of liquor. The pursuer, who is himself a Justice of the Peace, is stated to have recommended to his brother Justices the granting of the said licence and signed the statutory recommendation as to the suitability of the premises. The said licence has been renewed continuously, and is now held by the defender, George Milne. It is contended that it is necessary for the comfort and convenience of the inhabitants of Kemnay that such licensed premise should exist there, and, it is added, the pursuer has himself on many occasions taken advantage of the said premises being licensed, and has purchased therefrom spirits, ales, and other excisable liquors. He has never till the present action sought to enforce the prohibition and if it is enforced now the defender will suffer serious loss. At least four-fifths of the inhabitants, it is stated, are desirous that the licence should be continued, and would consider its withdrawal a public loss to the neighbourhood. Pursuer, the defenders say in conclusion is only seeking to enforce the restriction in order to give effect to his views of the moral and social wellbeing of the community. In their pleas in law, the defenders say that the pursuer having expressly agreed in writing to the premises being used for the sale of excisable liquors is barred from now founding on the prohibition in the lease. The premises having been used for the sale of excisable liquors for the last ten years with the consent and approbation, and separatim, with the knowledge and acquiescence of the pursuer, the prohibition founded on must be held to have been unconditionally discharged and departed from. The pursuer is barred by his consent, by his own actings, and, in particular, by his participation in the traffic in the said premises, from insisting in the present action. The continuation of the use of the premises in question as a licensed grocer's being necessary for the comfort and convenience of a large and populous district, the action ought to be dismissed.
The case came up in Court yesterday, and revisals were ordered.
Agent for the pursuer – Mr J. D. Mackie, for Mr W. K. Burnett, advocate. Agent for the defender – Mr R. D. Leslie, advocate.