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Craik v WoodHigh Court of Justiciary

8 November 1920

1920 2 S.L.T. 403(The Lord Justice-Clerk, Lords Hunter and Anderson.)

8 November 1920

Justiciary cases—Hackney carriage—Burgh Police (Scotland) Act 1892 (55 & 56 Vict. cap. 55), section 271, Schedule V.—Motor bus in which each passenger was charged a separate fare, plying for hire along fixed route—Held that the motor bus was not a hackney carriage, being a stage coach within the meaning of Schedule V.

Stated Case .

David Craik, motor driver, Greenock, was charged in the Police Court of Largs, at the instance of Robert Wood, Burgh Prosecutor, Largs, on a summary complaint, which set forth:

You are charged at the instance of the complainer, that on Wednesday, 21st July 1920, in Gallowgate Street, Largs, in the burgh of Largs, you did, with a motor bus or car which is a hackney carriage within the meaning of the Act after-mentioned, ply for hire without having obtained a license from the magistrates of said burgh, contrary to the Burgh Police (Scotland) Act 1892, section 271, and Schedule V. of said Act, whereby you are liable to a penalty not exceeding forty shillings, and, failing payment, to imprisonment for a period not exceeding twenty days.

On 9th September 1920 the appellant was convicted.

The appellant obtained a stated case for appeal.

The stated case set forth, inter alia:

The following facts were admitted or proved:

1. The appellant, on 21st July 1920, was employed by Alexander Doig, motor hirer, Greenock, as a motor driver, and was in charge of the vehicle mentioned in the complaint, which belongs to the said Alexander Doig.

2. The said vehicle is a motor bus or car, having seating accommodation for about thirty persons, and is commonly known as a motor char-a-banc.

3. The said motor char-a-banc plies for hire between Greenock and Largs via Inverkip, Wemyss Bay, and Skelmorlie.

4. Each passenger is charged a separate fare.

5. On the date libelled, the appellant, while in charge of said motor char-a-banc, plied for hire in Gallowgate Street, Largs.

The Questions of Law submitted for the opinion of the Court were:

“1. Was I right in holding that the motor char-a-banc in question was a ‘hackney carriage’ within the meaning of said section and schedule?

“2. Was I entitled to convict the accused of the contravention charged?”


The Burgh Police (Scotland) Act 1892 (55 & 56 Vict. cap. 55) enacts:

Section 271. With respect to hackney carriages, the regulations contained in Schedule V. of this Act shall be observed….

Schedule V. (1). Every wheeled carriage, whatever may be its form or construction, used in standing or plying for hire in any street, within the prescribed distance…. shall be deemed to be a hackney carriage within the meaning of the Act;…. but no stage coach used for the purpose of standing or plying for passengers to be carried for hire at separate fares, and duly licensed, shall be deemed to be a hackney carriage.


Arguedfor the Appellant: On the facts found proved by the magistrate, the motor bus was not a hackney carriage, but a stage coach. The distinguishing features of a stage coach, as defined in Burgh Police (Scotland) Act, Schedule V. (1), were a fixed route and separate fare for each passenger. Similar definitions existed in earlier statutes, viz. Stage Carriage Act 1832 (2 & 3 Will. IV. cap. 120), section 5. A hackney carriage was offered for hire for the use of one hirer, to proceed at his orders, to any destination within the prescribed limits (Stockbridge v. Cousins, 1866, 30 J.P. Reports 166).

Arguedfor the Respondent: Unless the appellant could shew that the motor bus was a stage coach, it fell to be licensed as a hackney carriage. By the Burgh Police (Scotland) Act 1892, section 270, omnibuses as well as hackney coaches were to be licensed. Neither separate *405 fares nor fixed routes were thus the test of a stage coach under the Act. In the Act 50 Geo. III. cap. 48, section 5, certain vehicles with both these features had been termed hackney coaches. Cocks v. Mayner (1893, 58 J.P. Reports 104)was referred to.

On 8th November 1920 the Court answered both questions of law in the negative.

The Lord Justice-Clerk.

This appeal raises a question which is novel and, in certain aspects, important. The only point, however, we have to consider is whether this motor bus, car, or char-a-banc—as it is differently called in the findings—is a hackney carriage within the meaning of section 271 and Schedule V. of the Burgh Police (Scotland) Act 1892. In the course of the argument section 270 was also specially referred to. It appears to me that the third and fourth findings of fact are of prime importance. The magistrate found in the third place that “The said motor char-a-banc plies for hire between Greenock and Largs via Inverkip, Wemyss Bay, and Skelmorlie,” and in the fourth place that “Each passenger is charged a separate fare”. I think these two findings completely distinguish the char-a-banc in question from a hackney carriage. I do not think section 270 gives us much assistance. Section 271 is only of importance so far as it brings in Schedule V., which contains the regulations which apply to hackney carriages. Paragraph 1 contains the definition of hackney carriage. It says: “Every wheeled carriage, whatever may be its form or construction, used in standing or plying for hire in any street, within the prescribed distance, and every carriage standing upon such street within such prescribed distance, having thereon any numbered plate required by this Act to be fixed upon a hackney carriage, or any plate resembling or intended to resemble any such plate as aforesaid, shall be deemed to be a hackney carriage within the meaning of the Act”. But then it adds: “But no stage-coach used for the purpose of standing or plying for passengers to be carried for hire at separate fares, and duly licensed, shall be deemed to be a hackney carriage”. Paragraph 9 provides: “Any driver of a hackney carriage standing on any of the stands for hackney carriages appointed by the magistrates, or in any street, public or private, who refuses or neglects, without reasonable excuse, to drive such carriage to any place within such prescribed distance, or any distance to be appointed by any bye-law of the magistrates, not exceeding such prescribed distance, to which he is directed to drive by the person hiring or wishing to hire such carriage, shall for every such offence be liable to a penalty not exceeding forty shillings” . Paragraph 14 provides:

“Any licensee or driver of any hackney carriage which is hired who permits or suffers any person to be carried in or upon or about such hackney carriage during such hire, without the express consent of the person hiring the same, shall be liable to a penalty not exceeding twenty shillings.”


It seems to me quite clear that, when the statute speaks of a hackney carriage, it is dealing with a carriage which the person takes and takes himself for his own exclusive use, or for the use of himself and such other persons as he chooses to take with him in the carriage, and with which he is entitled to go to any place within the prescribed distance which he thinks proper. That is what we understand by a hackney carriage. A stage coach, on the other hand, is a coach which runs regularly between stated places and along a stated route, and which takes all and sundry at a fixed price, a separate price being paid for each passenger, and the passenger having no right to object to any other passenger, or any number of other passengers, who are carried on the coach, so long as the authorised number only, or a reasonable number, are carried. I think there is a plain distinction between the two carriages —the hackney carriage and the stage coach— which without any definition at all is understood by everybody. Now, in my judgment, findings 3 and 4 here to which I have referred shew that this vehicle was not a hackney carriage, and that, accordingly, the proprietor or driver of it was not required to take out a hackney carriage licence. Accordingly, if I am right, the first question should be answered in the negative and the second question also in the negative.

Lord Hunter.

I concur. I would only say this, that the third finding in fact is not very appropriately worded. It would have been more appropriate if the magistrate, instead of finding that the char-a-banc plied for hire, had found that it plied for passengers.

Lord Anderson.

I think this stated case raises a question which is of great importance to owners of motor char-a-bancs who use their vehicles for the purpose of carrying passengers for hire from place to place. It is a matter of common knowledge that much use is made of these motor conveyances nowadays which will in all likelihood increase with the extension and lengthening of routes.

Now, if the respondent is right in the contention which has been advanced, the result will be that the owners of these vehicles will have to obtain a licence from the magistrates of every police burgh through which they pass if they are to escape a prosecution in each of these burghs.

The matter depends on paragraph 1 of Schedule V. of the Burgh Police Act 1892, where the expressions “hackney carriage”and “stage coach” are used. Either appears to be a misnomer for a motor char-a-banc, but we have to choose the one or the other. Mr Keith *406 maintained that the vehicle in this case is a hackney carriage. Mr Fleming maintained that it was more aptly described as a stage coach, and that it did not ply for hire, but for passengers to be carried for hire. That seems to me to be a distinction which gives the solution of the question. A hackney carriage is let as a unum quid , and the hirer may direct its course as he pleases. A stage coach, on the other hand, in the sense of the schedule, is not hired out as a unum quid, but the individual seats in it are let to individual passengers who each pay a separate hire. I, therefore, agree with your Lordships that we should answer each of these questions in the negative.

RepresentationCounsel for Appellants, D. P. Fleming; Agents, Miller, Mathieson & Miller, S.S.C.
Counsel for Respondent, Keith; Agents, Simpson & Marwick, W.S.
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