74 



Appendices to Twenty -sixth Annual Report 



Cromarty, being a fishery at which bag-nets are used, has contravened 

 the Salmon Fisheries (Scotland) Act, 1868, sect. 24, and the bye -law, 

 Schedule D, sect. 3, annexed to the said Act, in so far as between six 

 o'clock p.m. on Saturday the third day of August nineteen hundred and 

 seven, and six o'clock a.m. on Monday the fifth day of August nineteen 

 hundred and seven, and within or during the weekly close time for the 

 district of the river Conon, under the salmon fishery statutes, the said 

 Mrs Margaret Anderson or Tough did omit or fail entirely to remove 

 and take out of the water the netting of the leaders of five bag-nets 

 belonging to her on said fishery, all placed in the sea ex adverso of the 

 lands of Geanies, belonging to Lieutenant-Colonel William Hugh Eric 

 Murray of Geanies, in said parish of Tarbat and County of Ross and 

 Cromarty, and within the said district of the river Conon, contrary to 

 said Act and bye-law." 



The facts were set forth in the stated case as follows : 



44 The cause was tried at Tain on 23rd October 1907, and the 

 respondent pleaded not guilty. 



At the trial the evidence led established the following facts : — 



That the respondent is the occupier of the salmon fishings specified ; 

 that she failed to remove and take out of the water the netting of the 

 leaders of said five bag-nets belonging to her on the Saturday night in 

 question ; that owing to a strong wind and rough sea it was dangerous 

 for the respondent or her men to remove the leaders on the Saturday 

 night ; that the leaders could have been removed without danger on 

 Sunday, and that one of said leaders was in fact removed about eight 

 o'clock that morning by bailiffs in the employment of the Fishery 

 Board ; that no attempt was made on the part of the respondent or her 

 men to remove the leaders referred to on the Sunday in question, but 

 they were removed as soon as possible on Monday morning. 



It was proved that the appellant wrote to the respondent on 22nd 

 March 1906, intimating that the Board held her bound to remove 

 leaders on Sunday, when it was impossible to do so on the Saturday night. 

 There was no evidence that the respondent's men were ever asked by 

 her, or that they refused to remove leaders on Sundays, or that it was 

 impossible for the respondent to hire men willing to remove leaders on a 

 Sunday. 



On these facts the Sheriff-Substitute held that there was no contra- 

 vention of the statute by the failure to remove the leaders on the 

 Saturday night ; and in respect of the decision in Middleton v. Paterson, 

 6 F., J.C. 27, he refused to convict on account of the failure to remove 

 on the Sunday." 



The Question of Law for the opinion of the High Court of J usticiary 

 was : Whether — the weather having been suitable — the respondent was 

 bound, on the Sunday in question, to entirely remove and take out of 

 the water the netting of the leaders of the five bag-nets specified ? 



Argued for the Appellant : The statute of 1868 had been held 

 to be imperative as regards the mode prescribed of observing the weekly 

 close time {Irving v. Phyn, 14th Dec. 1891, 3 W. 46, 19 R. (J.) 7; 

 Osborne v. Anderson, 3rd Nov. 1887, 1 W. 497, 15 R. (J.) 12 ; Parr v. 

 Mitchell, 24th Feb. 1890, 2 W. 434 ; Middleton v. Paterson, supra. 

 Macrorie v. Forrnan, 17th Nov. 1905, 8 F., J.C. 23, was wrongly 

 decided. Contrary to the view expressed there by Lord Trayner, the 

 law was that every servant was bound to do necessary work on Sunday, 

 unless the terms of his engagements expressly stipulated the contrary . 

 The work in question here was one of emergency, and was on all fours 



