of the Fishery Board wr Scotland. 



75 



with a case of a farm servant attending a sick animal on a Sunday, 

 which he would be bound to do. It was not stated that the respondent 

 had made any attempts to get the nets lifted on Sunday, and Macrorie 

 v. Forman, supra, established that where an accused was prima facie in 

 the wrong he must establish his excuse. The case of Phillips v. Innes, 

 19th May 1835, 13 S. 778, 2 S. and M. 465, was not a case of emergency, 

 but of ordinary every-day work carried on on Sunday, and did not apply 

 here. In Bute v. More, 26 Nov. 1870, 1 C. 495, 9 M. 182, and Nichol 

 v. M'Neill, 13th July 1887, 14 R (J.) 47, all that was decided was 

 that a charge of keeping a shop open on Sunday under the Act of 1661, 

 cap. 18, could not be tried summarily. Counsel also referred to Wilson 

 v. Simeon, 11th July 1844, 6 D. 1256. 



Argued for the Respondent : The real question here was whether the 

 decision in Middleton v. Pater son, supra, was sound. That case recog- 

 nised that it was the custom of the Highlands that no work should be 

 done on Sunday, and approved of that custom as a sufficient excuse for 

 not putting the nets out of fishing order on that day. It was unnecessary 

 to prove here that the fishermen would not do the work, as it was a 

 matter of common knowledge that they would not do so. Further, such 

 work was illegal under statutes 1579, c. 70, 1661, c. 18, and 1690, c. 5, 

 which all dealt with Sunday working and trading. These statutes were 

 not in desuetude as shewn by Phillips v. Innes, supra; Jennings v. Burnet, 

 18th Dec. 1852, 1 Irvine 115, and by the fact that they are not included 

 among the statutes of a similar kind abrogated by 6 Edw. "VII. c. 38. 

 It was enough for the tacksman to shew that Sunday labour was illegal, 

 and that he could only lift his nets by getting men to break the law. 

 Her Majesty's Advocate v. Gollan, 23rd July 1883, 5 C. 317, showed that 

 it was impossible to make people work on Sunday. The Salmon 

 Fisheries Act of 1868 must be read along with the other Acts prohibiting 

 Sunday labour. 



The Court answered the question in the affirmative. 



The Lord Justice-General. — My Lords, the question brought 

 before your Lordships is whether there ought to have been a conviction 

 on the following facts as stated by the learned Sheriff-Substitute who 

 states the case. 



In the County of Ross and Cromarty, at the Geanies salmon fishery, 

 there is in operation by force of law the bye-law contained in Schedule 

 D of the Salmon Fisheries (Scotland) Act of 1868. The section of that 

 statute which imposes the penalty is the 24th, and it puts upon the 

 proprietor or occupier of every fishery the obligation of doing all acts 

 for the due observance of the weekly close time required by any bye-law 

 in force within the district. The bye law imposed by Schedule D 

 provides that with regard to the due observance of the weekly close time, 

 which is a close time imposed from six o'clock on Saturday afternoon till 

 six o'clock on Monday morning, " the netting of the leader of each and 

 every bag net shall be entirely removed and taken out of the water." 

 Your Lordships will therefore observe that a positive duty is put upon the 

 owner or the occupier of every fishing. The occupier, who is the 

 respondent in this case, is a Mrs Tough, and she admittedly upon the 

 occasion specified did not take out the leaders of her bag nets during 

 the whole of the specified period, but left them there from six o'clock 

 on Saturday evening till a very early period on Monday morning. 

 Prima facie, therefore, it is quite clear that she has contravened the 

 statute, and consequently is liable to conviction. What, then, is her 

 excuse ? She says, and the learned Sheriff- Substitute holds that it is 

 proved, that at six o'clock on Saturday evening the state of the weather 

 was such that it was a physical impossibility to remove the leaders. 



