Scottish Court of Session Decisions

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

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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—