ceeded the time allowed by the custom of the port of Aberdeen for discharging similar cargoes. I am of opinion that the master was not bound to allow the use of his ship for the separation of the cargo; if there was anything wrong in the mixture of the cargo, it was the fault of the persons who loaded it. Next, I think that the shipowners, the carriers of the goods, were entitled to carry and deliver the goods as they were given to them. The cargo was said to be one of bones, and as such was received by the shipowners. I think they were entitled to deliver it in bulk, and that the captain was not bound to allow the separation on board his ship. I therefore think his claim for demurrage should be allowed. My doubt on the subject was whether the master of the vessel by separating the cargo into different classes at the request of the merchants, though no doubt under protest, had not abandoned his contention and acquiesced in their demand. But I think this would be too stringent a view to take. The real foundation of the merchant's defence was that this separation of cargo was according to the custom of the port. I do not think that any such custom of the port was proved. In the first place, the trade in bones has grown up lately, within the last thirty years. Then there is only one merchant in Aberdeen who deals largely in bones, and that is the defender Mr Hutcheson, and his practice cannot raise up such a custom of the port as would be sufficient to bind traders. I think that the captain was entitled to deliver his cargo in bulk, any practice to the contrary not being binding. LORD YOUNG-I concur in the judgment. I can only express regret that there should have been so much litigation about so small a matter. The action is one for the payment of £28 only, and I do not see that the case presents any general question which it would be for the public use and benefit to decide. I concur on this ground only. I cannot hold that the Sheriff-Substitute who took the evidence and disposed of the case arrived at a wrong conclusion in construing the evidence. If I had been the Sheriff I think that I should have affirmed the Sheriff-Substitute's decision. The import of the evidence according to that decision was that there had been undue delay in discharging the cargo, and that that was occasioned because the party who took delivery separated the cargo into no less than eight separate classes, and so delayed the discharging of the cargo by four days. Sheriff-Substitute thought that that was an undue delay, and therefore gave decree for demurrage for these four days. I am not prepared to decide any more general question than that herethat the four days' demurrage was properly given. Prima facie it looks unreasonable that the ship should be detained while the cargo is being sorted out in the hold or on deck, but everything depends on the nature of the cargo and the circumstances of the case. The kind of cargo may be such that it cannot just be thrown out of the ship, but must be discharged with care, but I see no sufficient reason for differing from the SheriffSubstitute on the question of the separation of the cargo. The custom of the port is only the The custom of this merchant. It appears that he was in the habit of insisting in separating the cargoes consigned to him on board the ships which brought them, but that is not a custom of the port within the meaning of the charter-party. It is not the practice of merchants to use the ship thus for their convenience. The chief hesitation in my mind was whether we should not discourage appeals for such small values as this by adhering to the judgment of the Sheriff, but then I think that he ought not to have interfered with the judgment of his Substitute. With regard to a remark made by your Lordship as to the remonstrance of the captain, I think that the captain was powerless, and that he could only submit with a remonstrance. I think that he could not have resisted the wishes of the merchant. All he could say was, "I object to this separation, and you must pay for the delay occasioned, but I cannot actively interfere to prevent it." His remonstrance was sufficient, and in giving the judgment we do now, we are merely giving effect to that remonstrance. LORD RUTHERFURD CLARK concurred. "Find in fact (1) that a portion of the cargo carried in the pursuer's vessel consisted of horns, hoofs, and piths, but that this portion was tendered and loaded as part of a cargo of bones, and that the whole cargo was loaded in bulk without separating one portion from another; (2) that in unloading at Aberdeen the consignees extended the time necessary for doing so by four days, which were occupied in separating the said portion from the rest of the cargo; (3) that the defenders have failed to prove that they were entitled by the custom of the port to use the ship for such separation : Find in law that the cargo having been shipped as a cargo of bones, the pursuer was entitled to deliver it in bulk, and is entitled to demurrage for the time occupied in separating it, and that £7 per day is a reasonable rate: Therefore sustain the appeal, recal the judgment of the Sheriff appealed against, and affirm the judgment of the Sheriff-Substitute: Of new ordain the defender to make payment to the pursuer of the sum of £28 sterling, with interest thereon at the rate of £5 per centum per annum from the 5th day of March 1887 till paid: Find the pursuer entitled to expenses in this Court, and of new find them entitled to expenses in the Inferior Court," &c. Counsel for Appellants - Baxter. AgentsHenry & Scott, S.S.C. S Counsel for Respondents J. A. Reid alvesen. Agent-R. C. Gray, S.S. C. HIGH COURT OF JUSTICIARY. Friday, October 28. (Before the Lord Justice-Clerk, Lord Craighill, and Lord M Laren.) ROBERTSON, PETITIONER. Justiciary Cases-Private Prosecutor-Criminal Letters-Concourse of Lord Advocate. In a case where a private party presented a bill for criminal letters to enable him to prosecute a person for perjury, with or without the concourse of the Lord Advocate, intimation was made to the Lord Advocate, who stated to the Court that he saw no reason for granting his concurrence. The Court refused the prayer of the bill, and held (following the case of Mackintosh, Nov. 4, 1872, 2 Coup. 367) that only very exceptional circumstances would induce the Court to allow a private person to prosecute alone, or to require the Lord Advocate to grant his concurrence. This was a bill presented by Alexander Robertson, 29 South Portland Street, Glasgow, craving the High Court of Justiciary for a warrant for criminal letters, with or without the concurrence of the Lord Advocate, to enable the applicant to prosecute Robert Thomson, Inspector of Police, Glasgow, for the crime of perjury. The bill set forth that Thomson had given evidence as a witness in an action at the instance of the applicant Robertson against the Magistrates and Town Council of Glasgow, in which he sought to recover damages for alleged illegal exclusion from the Circuit Court of Justiciary held at Glasgow on 29th August 1885; and alleged that Thomson had falsely sworn that he kept, or ordered the applicant to be kept, out of the Circuit Court on account of the Court being full, when in point of fact, the bill alleged, the Court was not full. The bill further stated that the concurrence of the Lord Advocate had been applied for, but that no answer had been given. The Court on 19th October 1887 having considered the bill, and having heard the applicant, who appeared in person, ordered intimation to be made to the Lord Advocate, and continued the cause. On 28th October the Lord Advocate appeared and stated to the Court that he saw no reason for granting his concurrence. The applicant was heard. LORD JUSTICE-CLERK-It is matter of regret to this Court that any one of the citizens of this free country should think that he is deprived of redress when he considers that a wrong has been done him. I have considered very carefully the application which has been made here. It is an application of an unusual kind, although not without precedent. I am not aware that there is any instance of such an application having been granted since the Revolution. The principle upon which this matter has been considered by the Court, and by our most eminent lawyers, has been simply this:-Criminal procedure in Scotland is conducted by the hand, , Petitioner and at the discretion, and on the responsibility of the Lord Advocate, whose duty it is to superintend prosecutions for crime, and who has very large powers and very great assistance in the conduct of this important matter. We have, I think fortunately, been under that system for many years-I might say many centuries-and my impression is, having some experience of the matter, that on the whole a more efficient and more satisfactory mode of conducting criminal affairs-charges of crime against the citizens of this country-has not existed in any country in the world. But then it may be asked-" If the Lord Advocate refuses to prosecute, is there no remedy; and if there is a remedy, what is it?" Now, that question came up fifteen years ago in a case in which I was one of the judges, and which was raised by a gentleman of the name of Mackintosh, who presented an application to the High Court of Justiciary for criminal letters against a medical man who had, he said, been instrumental in having him confined in a lunatic asylum. The Lord Advocate did not concur in that prosecution, but the Court ordered the application to be intimated to him, and he appeared and stated very fully the grounds upon which he did not propose to concur in the prosecution. Then the Court had to consider and decide, which they did after a very full argument, whether in that case the Lord Advocate could be either compelled to give his concurrence, or whether a private party should be permitted to prosecute without the concurrence of the Lord Advocate. The conclusion which the Court came to was this, not that the Lord Advocate was the absolute despot of the case, but that in the ordinary case, unless some very special cause were shown for their interference, they would not permit a private party to proceed if the Lord Advocate did not give, and stated his reasons for refusing to give, his concurrence. I shall just quote one paragraph from the opinion of Lord Ardmillan, a very experienced criminal judge, which states very simply and very accurately the principle upon which I think this Court ought to proceed and always has proceeded:— "The concourse of the Lord Advocate is not a mere form. I am quite satisfied that the Lord Advocate is not bound to give his concourse in every case to every person applying for it and desiring to prosecute-not bound to aid the prosecution by every reckless accuser, by every angry or spiteful person. The right and duty of prosecution for crime is, according to the law and constitution of this country, primarily in the hands of the public prosecutor; and a very great trust is necessarily implied in that office, and reposed in the Lord Advocate. I think it is according to all our past experience and practice that the giving of the concourse of the public prosecutor is not a matter of form, or a matter of course, and that the Lord Advocate is not bound to give it when he thinks it his duty to refuse it." In that case the Court declined to allow Mr Mackintosh to prosecute by himself, and they declined to compel or require the Lord Advocate to concur in the prosecution, although he intimated that if it was the opinion of the Court that he ought to prosecute he was ready to obey any orders of the Court. With reference to the present case I have come to the same conclusion. I do not think there is here at all the kind of case , Petitioner , which would require a different opinion from that given in the case of Mackintosh. There might be a case where we might allow a party to prosecute alone, or require the Lord Advocate to grant his concurrence, but in the present case I am of opinion that no ground-no exceptional ground-has been shown for the exceptional remedy which the private party here asks. LORD CRAIGHILL concurred. LORD M.LAREN-With reference to the requirement of the law that the Lord Advocate should concur in every prosecution, I venture to ask whether it would be consistent with order, or with the true liberty of the subject, that any citizen, however high in position, however estimable in character, however irreproachable in conduct, should be liable to be placed in the dock of a criminal Court at the suit of a private individual, upon charges which may be most frivolous, and the motive of which may be prejudice, ill-feeling, or spite? Such a state of things would be intolerable in any civilised community. In every country of which I have any experience some provision exists by which some check is put on the right of private prosecution. The check in this country is that the preliminary consent of the Lord Advocate must be obtained. I think this is a most wholesome check, and one which I am sure this Court would be very sorry in any way to relax. Judging from past experience, the action of the office of the Lord Advocate has been so salutary that private prosecution in this country may be said almost to have ceased to exist. In the present case the Lord Advocate, after full consideration, thought that there was no prima facie case which would justify his concurrence. In such circumstances, without doubting the petitioner's sincerity, and without doubting that he believes that he has some ground for a prosecution, I should have thought that as a reasonable man the petitioner would have acquiesced in the decision of the authority to whom the law has given a certain jurisdiction in such matters. trust, however, that on reflection the appellant will yet see that it would have been better for him to have cheerfully acquiesced in the decision However, he has come here, and he is entitled to our judgment. All I can say, concurring as I do with your Lordships, is that I see no ground whatever for interfering with the decision of the Lord Advocate in this matter in the only way in which we could do so, by authorising a prosecution without his concurrence. I should be sorry if a case were to arise where the Court should think it necessary to exercise its discretion in this way, and certainly this is not such a case. The Court refused the bill. I Counsel for the Petitioner-Party. Counsel for the Lord Advocate-Ld. Adv. Macdonald-Blair, A.-D. Agent--J. Auldjo Jamieson, W.S. VOL. XXV. Thursday, November 3. (Before the Lord Justice-Clerk, Lord Young, and Lord Rutherfurd Clark.) HOOD V. MALCOLM. Justiciary Cases Weights and Measures Act 1878 (41 and 42 Vict. cap. 49), secs. 25 and 59 -Use for Trade-Onus. The Weights and Measures Act 1878 provides, by section 25, that every person who uses or has in his possession for use for trade any false or unjust weight or measure shall be liable to a penalty. By section 59 it is provided that where any false weight or measure is found in the possession of any person carrying on trade, or on the premises of any person which are used for trade, such person shall be deemed for the purposes of the Act, "until the contrary is proved," to have such weight or measure in his possession for use for trade. Held, in a complaint charging a contravention of the statute, that a magistrate before convicting must be satisfied that the unjust weights or measures were used or intended to be used for trade-diss. Lord Rutherfurd Clark, who held that section 59 created a presumption, which imposed upon the accused the onus of proving that the unjust weights or measures had not been, and were not intended to be used for trade. The Weights and Measures Act 1878 (41 and 42 Vict. c. 49) provides by section 25 that "Every person who uses or has in his possession for use for trade any weight, measure, scale, balance, steelyard, or weighing machine which is false or unjust shall be liable to a fine not exceeding five pounds." By section 59 it is provided that "Where any weight, measure, scale, balance, steelyard, or weighing machine is found in the possession of any person carrying on trade within the meaning of this Act, or on the premises of any person which, whether a building or in the open air, whether open or enclosed, are used for trade within the meaning of this Act, such person shall be deemed for the purposes of this Act, until the contrary is proved, to have such weight measure, scale, balance, steelyard, or weighing machine in his possession for use for trade." William Wylie Hood, grocer, North Queensberry Street, Dumfries, was charged before the Magistrates of Dumfries, at the instance of John Malcolm, Procurator-Fiscal of the Burgh Court of Dumfries, with having 'contravened the Act of Parliament entituled "The Weights and Measures Act 1878," actor or art and part, in so far as upon the 15th day of July 1887 years, or about that time, within or near the grocer's shop situated in or near North Queensberry Street of the burgh of Dumfries, occupied by the said William Wylie Hood, the said William Wylie Hood did unlawfully use, or have in his possession for use for trade, four weights which were false or unjust, whereby the said William Wylie Hood is liable to a penalty not exceeding £5, together with the expenses of conviction, and in default of payment to imprisonment in terms of "The Summary Jurisdiction (Scotland) Act 1881," this being a first offence.' NO. II. The Magistrates convicted the accused of the contravention libelled, and imposed a penalty of 2s. 6d. with 23s. 6d. of expenses, and failing payment ordered him to be imprisoned for a period of two days. Hood took a case for appeal to the High Court of Justiciary. The following was the question of law for the opinion of the Court:-"Whether the facts found proved are sufficient in law to warrant a conviction under the charge libelled." The case set forth that the Magistrates found the following facts proved, viz., That on the date libelled, within the appellant's premises libelled, an inspector of weights and measures and his assistant found and seized four 56 lb. weights, all of which were deficient in weight.. The weights which were deficient were in the appellant's back shop immediately communicating with the front shop. His weights in the front shop were found correct. There were no scales in which the weights could be used, but there was a beam from which they could be hung. The weights were rusty, and the appellant regularly got heavy goods weighed at premises next door. The appellant's allegation in defence was that the false weights were not in use, and had not been used by him, but the evidence did not satisfy us that the said allegation was proved." It was argued for the appellant (1) that the Magistrates had taken a mistaken view of the 59th section of the Weights and Measures Act 1878, in thinking that where there was mere possession they were bound to convict, and (2) that where, as here, the facts found proved were all in favour of the view that use was not intended, they were not in law entitled to convict unless use had been proved. It was argued for the respondent (1) that the words of the statute were precise, and provided that mere possession was a violation of the statute, unless the accused proved his possession was not for use, which in this case he had tried to do and failed; and (2) that even if mere possession did not compel the Magistrates to convict, it at least warranted a conviction, which if pronounced could not be disturbed. At advising LORD JUSTICE-CLERK-I have a strong feeling upon the evidence that this is a hard case so far as we can see. The charge here is of having possession of false weights with the intention of using them, and I think that is a sufficient charge under the statute. The question is, whether we have been shown any ground on the case stated for setting the judgment aside? The case stated says that it was proved that the weights, which were unjust, were rusty, and that they were in the back shop, and that the weights in the front shop were found correct. It was also proved that there were no scales on which the weights could be used, but that there was a beam from which they could be hung. There is no evidence stated to show that they ever were attached to this beam. But it is further stated that the Magistrates were not satisfied with the evidence which was led by the appellant to show that the weights were not intended to be used. Now, I am not satisfied that the true onus in the first instance is on the accused to show that the weights possessed were not possessed for the purpose of using them, or that the presumption in the statute against him may not be shifted. Here it is admitted that the weights were not proved to have been used; it is stated as proved that they were not in the ordinary place for use, and presumedly from their rusty appearance they were not in a fit state for use. I should have liked some evidence that they had been used, or were intended to be used, and in the absence of such evidence, although not without hesitation, I am inclined to cast the balance in favour of the accused, and I suggest that we should sustain the appeal. LORD YOUNG-This case is not unattended with difficulty, but I am persuaded we do justice in quashing the conviction, the justice and truth of which I am far from convinced of. I think the Magistrates convicted under an erroneous impression of what was the law of the case, and that is a good ground for appeal on a case stated. I think on the case stated they were under an erroneous impression. The true view is, that before magistrates convict they must be satisfied in point of fact that the weights found have been used or were intended to be used-were there for the purposes of use. There may be more or less importance in the provision of the statute that the accused must prove that the false weights and measures were not for use, but it is a preliminary necessity that the magistrate must be satisfied they were used, or intended to be used, and even if not satisfied that they were not used, they must give the accused the benefit of the doubt. All the facts here stated point in the direction that the weights were not there for use. They were lying rusting in the back shop, not handy for use, with every appearance not only of not having been used, but of not being intended to be used. They might have been used, but the fact that all heavy goods were weighed elsewhere, and all the other facts of the case, point in the direction that they were not used. Indeed, the Magistrates' principal ground for convicting is that they were not satisfied with the evidence of the accused; they were not satisfied that he had proved affirmatively that the weights had not been used, and were not intended to be used. This was an erroneous impression of the law The purpose of the statute is only to remove the onus from the prosecutor, putting the presumption in his favour, but not to lay the onus on the accused. Suppose a magistrate were not satisfied on the prosecutor's evidence that unjust weights had not been used, or were not intended to be used, must he convict because the accused has not led any evidence? Assuredly not. I think this conviction is tainted with this legal error, and therefore should be set aside. LORD RUTHERFURD CLARK-I am sorry to say that I differ from the conclusion your Lordships have arrived at, although I cannot say I am sorry that the conviction is to be quashed. It appears to me, however, that we are bound to maintain it, and that we are doing great violence to the statute by not sustaining it. The appellant was charged with having false weights and measures in his possession which were used or intended to be used for trade, and on his trial before the Magistrates it appeared that he had four false weights in his possession, which it is not dis v. Malcolm 3 puted were of considerably less than the true standard weight. The Magistrates state some other circumstances which they found proved, and in particular that the weights were rusty, and that there were no proper scales in which the weights could have been used, though there was a beam to which they might have been attached. Then they tell us that the appellant made an effort to satisfy them that the weights were not intended for use, and they say that that evidence did not satisfy them, which I interpret as equivalent to saying that they did not believe the witnesses adduced. They submit to us, and we are to judge, "Whether the facts found proved are sufficient in law to warrant a conviction under the charge libelled?" or, as I read the question, whether the Magistrates in that state of the facts were legally entitled to convict? for if they were legally entitled to convict the conviction must stand, and if they were not the conviction must be quashed. Now, putting the question to myself in the circumstances stated, I cannot see how it is possible to answer it in the negative, because the statute says that anyone who is a trader and has false weights in his possession shall be deemed to have them in his possession for use for trade. I read the statute as meaning that if possession alone, and nothing else, is proved, a magistrate is entitled to convict, or, in other words, that the facts proved are sufficient in law to warrant a conviction, and that is exactly what we have here. It is not disputed that false weights were found in the appellant's possession, and in that state of the facts the statute has created a presumption which warranted the Magistrates in convicting. It is impossible for me to assent to the judgment to the effect of saying that the Magistrates had not facts before them sufficient to warrant a conviction. But the case goes a great deal further. The Magistrates not only had the fact of the possession of false weights before them, but they also had the evidence of the accused led for the purpose of showing that these weights had not been used, and were not intended to be used, and they tell us they were not satisfied that he had made out his case. How, then, can it possibly be said that the facts were not sufficient in law to warrant them in convicting, unless we are to say that the Magistrates were not entitled to proceed upon the presumption provided for them by statute. I am therefore clearly of opinion we should refuse the appeal, but I am not to be understood to say that in all cases a magistrate must convict because of the presumption created by the fact of possession, for if they think there are any facts which take off the presumption they may not be bound to convict, although they may be entitled to do so. Here I think, when the facts are as stated, the Magistrates were clearly entitled to convict, and the conviction should not be disturbed The Court quashed the conviction. Counsel for Appellant - Fleming. AgentW. B. Rainnie, S. S.C. Counsel for Respondent-Young. AgentsWhigham & Cowan, S.S. C. Thursday, November 3. (Before the Lord Justice-Clerk, Lord Young, and Lord Rutherfurd Clark.) COLLINS V. LANG. Justiciary Cases-Suspension-Competency-Procedure ex facie illegal- Desertion of diet pro loco et tempore. Suspension is a competent mode of review of a Police Court conviction where it is alleged that the proceedings are on the face of them illegal. Under a complaint for assault in a Police Court the accused was brought up upon 8th August, when the case was continued till the 10th. Upon the 10th the accused was again brought up, when the diet was deserted pro loco et tempore, and an entry to that effect was made in the Court-book, but no interlocutor was pronounced. Upon the 15th the prosecutor obtained a new warrant upon the old complaint, under which the accused was brought up on the 26th and convicted. Held, in a suspension of the sentence, (1) that as there was no interlocutor upon the 10th continuing the diet the charge fell, and (2) that when a prosecutor deserts the diet pro loco et tempore he cannot thereafter obtain a new warrant upon the old complaint, but must raise a new libel. Sentence suspended. This was a suspension of a conviction of assault in the River Bailie Court at Glasgow under the following circumstances as stated in the bill of suspension:-On 7th August 1887 the complainer Thomas Collins, cattle-drover, 249 Duke Street, Glasgow, was apprehended in Glasgow for having on that date committed an alleged assault, and was conveyed in custody to the Marine District Police Court, in M'Alpine Street, Glasgow, where the charge having been entered in the police books, the complainer was detained in custody. On the following morning, Monday, 8th August, the complainer was brought to the bar of the Police Court upon a complaint of that date (8th August 1887), at the instance of the respondent John Lang, writer in Glasgow, Procurator-Fiscal of the Court of the River and Firth of Clyde, Glasgow, charging him with being guilty of the crime of assault. The complainer pleaded not guilty, and his plea was duly recorded. There was, however, no witness in attendance in support of the complaint, whereupon the public prosecutor moved the Court to adjourn the diet, which was accordingly done by an interlocutor, which was in the following terms:-"At Glasgow, the eighth day of August Eighteen hundred and eighty-seven, in presence of William Stevenson, Esquire, Depute Bailie of the River and Firth of Clyde, appeared the defender, the said Thomas Collins, and the charge having been read over to him, he pleaded not guilty, and the Depute Bailie, on the motion of the Procurator-Fiscal, continues the case till Wednesday, the tenth current, at ten o'clock forenoon, and grants warrant to detain the said defender Thomas Collins in custody until that time. (Signed) WILLIAM STevenson.' No war rant was asked for the apprehension of the absent witnesses. The complainer was in the meantime liberated on finding bail to the extent of |