of the Fishery Board for Scotland. 



77 



fact, he might have had to shave more than on ordinary days, because 

 there are men of peculiar habits who prefer shaving on Sundays rather 

 than on other days. But the learned Lords who decided that case seem 

 to have been very careful to distinguish between ordinary and regular 

 labour, and labour of a casual sort, which might be called for in an 

 emergency, because the Lord Ordinary and one of the noble and learned 

 Lords, Lord Wynford, put as an exception the particular case of a man 

 being called upon to shave someone suffering from acute illness, and the 

 shaving of whose head became more or less a work of necessity. I am 

 of opinion that this particular operation of taking up the leaders on a 

 Sunday, when it has been rendered impossible on Saturday by the state 

 of the weather, is just such a work of necessity, and there again I agree 

 with the opinion of Lord Moncrieff in Middleton v. Pater son. Mr. 

 Hunter read a passage in Lord Brougham's opinion in Phillips' case, in 

 which the noble and learned Lord used some expressions which seem to 

 mean that the necessity must be that of the person called upon to work 

 and not that of the person whom he serves. That view, I think, is 

 absolutely untenable. It is perfectly evident that you cannot so limit 

 it, for it is possible, not only to have works of necessity where the 

 necessity is for the weal of the public in general, but also to identify 

 the interests of the master and servant. If it were not so, the feeding 

 of cattle, e.g., would not be lawful, because there is no necessity, so far 

 as the servant is concerned, it being the master's loss, not his, if the 

 cattle die. 



But the matter does not end there, because I think there is another 

 ground which takes this case out of the decision in the case of Phillips, 

 and it is this. These old statutes may not be in desuetude, but they 

 certainly are not, to say the least of it, rigorously enforced. Then in 

 1868, Parliament passed another Act which shows upon the face of it 

 that something must be done by somebody on Sunday, because Parlia- 

 ment must be held to have had the common sense to know that 

 occasionally there would be states of the weather which would make it 

 impossible to remove the leaders on Saturday. Still, Parliament has 

 held that the leaders must be taken out of the water during the weekly 

 close time. That is equivalent to a positive enactment not necessarily 

 repealing the old statutes, but holding that such a work is a work of 

 necessity. Upon that ground I come to the opinion clearly that there 

 was here no justifiable excuse for not complying with the Act of Parlia- 

 ment. Of course, whether a person could get a servant or not to do the 

 work is another matter. The duty is put upon the occupier or owners, 

 and if they cannot do it themselves they must get someone who will. 

 You might find certain persons who would not work for you on 

 Mondays, but you may contract with those who will. Or take one 

 religion, and you will find a person who refuses to work on a Saturday. 

 But that is your affair. All that is necessary to say here is that such 

 an excuse is not vis major. Whether you can get a servant to do the 

 work or not is simply a matter of contract. That is sufficient, I think ; 

 but I ought also to say that Osborne's case was overruled by the case of 

 Irvine ; and on the whole matter I come to the conclusion that in this 

 case there ought to have been a conviction. 



The Lord Justice-Clerk. — I entirely concur with your Lordship. The 

 statute providing the weekly close time is imperative, and lays upon the 

 occupiers of salmon fisheries a positive duty to throw their nets out of 

 gear by removing the leaders. I do not consider that the existence of 

 those old Scots Acts dealing with Sunday labour provides any excuse 

 for not obeying the directions contained in an Imperial Act of recent 

 date. 



