Scottish Court of Session Decisions

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Cite as: [1876] SLR 13_608, [1876] ScotLR 13_608

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SCOTTISH_SLR_Court_of_Session

Page: 608↓

Court of Session Inner House First Division.

Friday, June 30. 1876.

Before Lord Justice-clerk. Young Mure and Craighill

13 SLR 608

Appeal—Nicol

v.

M'Callum.

Subject_1Harbours, Hocks, and Piers Clauses Act 1847 (10 and 11 Vict. c. 27, sec. 82) incorporated with Greenock Port and Harbours Act 1866,
Subject_2Conviction
Subject_3Licensed Weighers.
Facts:

A staff of licensed weighers having been appointed by harbour trustees in terms of the Harbours, Docks, and Piers Clauses Act 1847, for the purpose of weighing cargoes unshipped at a certain port— held that consignees of goods were not thereby prevented from having cargoes consigned to them weighed by their own servants for their own purposes.

Headnote:

This was an appeal, brought in terms of the Statute 38 and 39 Victoria, c. 62. for Duncan Nicol, clerk, residing in Eldon Street, Greenock, against Archibald M'Callum, procurator-fiscal, Greenock. Nicol was charged before the Police Court of Greenock with having been guilty of an offence within the meaning of the 82d clause of the Harbours, Docks, and Piers Clauses Act 1847, which clause is incorporated with the Greenock Port and Harbours Act 1866, in so far as “a sufficient number of weighers having been appointed by the Trustees of the Port and Harbours of Greenock, under the powers of the Greenock Port and Harbours Act 1866, and the Harbours, Docks, and Piers Clauses Act 1847, the said Duncan Nicol, not being licensed as a weigher by the Trustees of the Port and Harbours of Greenock, and not being appointed as such by the Commissioners of Her Majesty's Customs, did, on the 28th, 29th, 30th, and 31st days of March 1876, or on several or one or more of these days, upon the pier or quay situated on the west side of the West Harbour, within the port and harbour of Greenock, weigh a cargo, or part of a cargo, of sugar or of other goods, then being unshipped or delivered from the brigantine ‘Annie,’ of Swansea, upon the pier or quay situated on the west side of the West Harbour aforesaid.” The Harbour Trustees had the appointment
Page: 609↓
of meters as well as weighers under the said Greenock Harbours Act 1866, but had not appointed or licensed in terms of the general Act of 1847, any persons to act as meters, though cargoes of timber, grain, oil, and other articles, the contents of which are ascertained by measurement, are unshipped within the limits of the port of Greenock. The licensed weighers were appointed on the abolition of the customs duties on sugar in 1874, previous to which their duties were performed by an officer of customs called a landing waiter, who attended the discharge, and an officer of customs called a weigher or weighing porter likewise attending the discharge and performing the manual labour in connection with the beam and scales. The appellant was a clerk in the employment of Messrs Robert Fraser & Co., sugar importers, Greenock. The Messrs Fraser refused to employ a licensed weigher, and sent the appellant to weigh the portion of the cargo consigned to them. The appellant was accordingly charged with the offence before the Greenock Police Court, convicted, and ordered to pay a modified fine of £3, 3s. with the alternative of five days’ imprisonment.

He appealed to the Court of Justiciary, and argued— (1) The magistrate, as one of the Harbour Trustees, could not competently try the case. (2) The Harbour Trustees, not having appointed meters as well as weighers, in terms of the Act, the offence could not be committed. (3) The appointment of licensed weighers was not intended by the Act to prevent a consignee of goods weighing for himself if he chose to do so.

At advising—

Judgment:

Lord young— On the first objection our opinion is that as regards the jurisdiction of the magistrate there is no ground for complaint. On the second, I am of opinion that it is no objection that there were no licensed meters. The facts seem to be that certain goods were consigned to R. Fraser & Co., and they sent their clerk, who is the appellant, to weigh them. He obeyed his orders, and attended to the beams and scales which belonged to his masters. In doing so I do not think he was guilty of any offence under the statute. If it could be held that the Messrs Fraser were guilty of illegally employing an unlicensed person to weigh their goods they ought to have been prosecuted, but I think they were not guilty of a contravention of the Act. The meaning and object of these statutory provisions is to secure a trustworthy staff and to prevent interlopers. Interlopers are discouraged by being liable to fines, and also by their employers being subject to fines. But the statute does not strike at the case of a merchant sending his clerk to weigh. Illustrations of hackney coaches and porters apply. The fact that a certain number of cabs are licensed to ply within a certain district does not prevent any one from driving his own carriage, and because there are a staff of licensed porters is no reason why a person should not make his private servant carry his bag. I do not think it is incumbent on the merchant to have his goods weighed except for his own purposes, and the Harbour Trustees may weigh if they please for themselves. I am of opinion that the conviction should be quashed,

Lord Craighill—I am of the same opinion. I think the course followed here shews that the object of the weighing was for the merchant's purpose and not for the public purpose.

The Lord Justice-Clerk concurred.

Counsel:

Counsel for Appellant— Balfour— Robertson. Agents— Mason & Smith, S.S.C.

Counsel for Respondent— Dean of Faculty (Watson)— Asher. Agent— William Archibald, S.S.C.
1876