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Appendices to Tv;enty-sixth Annual Rtport 



Then he goes on to say that the leaders could have been removed with- 

 out danger on Sunday — as a matter of fact, one of them was removed 

 by the Fishery Board people on that day — and he further finds that 

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

 her to remove the leaders on the Sunday, or that they refused to do so, 

 or that it was impossible for the respondent to hire men willing to 

 remove leaders on the Sunday. 



Upon that state of the facts I think there must be a conviction here, 

 because the onus upon the prosecuter is satisfied as soon as he shews 

 that there was a contravention of the bye-law. That he does by shew- 

 ing that the leaders were not removed. No doubt there may be an 

 answer to that which has always been held as an answer satisfactory to 

 avoid conviction, namely, that there was impossibility. Physical 

 impossibility there undoubtedly was at six o'clock on Saturday evening, 

 by reason of the weather, but it was not according to the stated facts 

 impossible on the Sunday morning. Therefore, there must have been 

 some other class of impossibility which the respondent was bound to 

 table, and she had not proved either that she took the slightest trouble 

 to try and get her men to remove the leaders, or failing them, that she 

 could not get others. Practically speaking, that is enough for the 

 decision of the case. 



But Mr. Hunter has appealed to us not to decide the case upon that 

 matter alone, because I understand that this case has been brought up 

 in order to review the decision in Middleton v. Patei'son. I have no 

 hesitation in saying that I agree with the opinion of Lord MoncreifT in 

 Middleton v. Paterson, and that I do not think that case was rightly 

 decided. There are various grounds for my opinion. The argument 

 for inability is admittedly entirely based upon the old Scottish statutes 

 against Sunday labour. These are certain old statutes of the Scottish 

 Parliament. I am bound to say that for myself I am greatly in doubt 

 whether these statutes are still in operation, or whether they have not 

 fallen into desuetude. But I do not think it is necessary to decide that 

 question, as I shall presently explain. Prima facie, I do not think that 

 these statutes have anything to do with it, because the question is not 

 as to whether a conviction could be secured under these statutes for 

 doing a certain thing, but whether this person was prevented from 

 doing what she should otherwise have done by vis major. I use that 

 expression because it comprehends laws of every kind, physical or other- 

 wise. It may be that you could find persons who would be content to 

 work on the Sunday and take their risk of a conviction under the 

 statutes, and looking at the general state of affairs as matters go now-a- 

 days, I do not think the risk would be a very great one. But it was 

 argued that this was so clearly against the statutes that really it 

 becomes tantamount to an impossibility, because if you engage anybody 

 to do that thing you would be engaging him to do a thing which was in 

 itself unlawful. My Lords, I cannot follow that, because, assuming as 

 I do for the moment, that the statutes are still in observance and not 

 in desuetude, I cannot say that the Act here would ever be struck at by 

 the statutes. What may be called the leading case for the statutes is 

 that of Phillips v. Innes, where it was held that looking to the 

 prohibitions of the statutes, a barber's apprentice in Dundee, who had 

 been engaged to do his master's work, holidays excepted, was justified 

 in refusing to shave customers as an ordinary business on Sunday 

 before ten o'clock in the morning. The one point was that 

 shaving customers before ten o'clock on Sundays was ordinary 

 work, and that if he had been obliged to do it, he would have 

 had to shave Sunday after Sunday just as on other days. In point of 



