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Appendices to Twenty-sixth Annual Report 



It is of course quite true that there may be cases where a servant by 

 refusing to carry out the instructions of his employer may put his 

 employer unavoidably in the position of contravention of a statutory 

 enactment, but that is a question of fact, and there is no suggestion in 

 the case before us that that was what happened here. This case differs 

 from that of Middleton v. Patei-son, 6 F. (J.) 27, because here it is 

 expressly said that the respondent's servants were never asked to 

 remove the leaders on the Sunday in question, while there it did appear 

 that there had been an attempt made to get the work done and that 

 there was a refusal to do it. 



With regard to the case of Middleton v. Paterson, where the 

 judgment seems to be in conflict with what we are deciding here, I 

 should like to say that I was very doubtful about that case at the time, 

 but in my position at the hearing I had no vote in the decision, except 

 in the case of disagreement between my brethren, which in fact was 

 what occurred. In that case there was this peculiarity, that there was 

 an official of the Fishery Board present, and that he did not require 

 that the leaders should be removed. In these circumstances I felt con- 

 strained to concur with Lord Trayner in a conclusion which meant 

 acquittal, rather than with the conclusion of Lord MoncrehT which 

 meant conviction. 



I may add that it seems to me that in the case of Osborne v. A nderson 

 the majority of the Court proceeded on a fallacy. It appeared that, 

 owing to the tide at the particular time and place, the nets could not be 

 put out of fishing order until several hours after the appointed time on 

 the Saturday, and that, similarly, they could not be put again in fishing 

 order on the Monday until some hours after the lawful time, and that 

 the nets were out of fishing order for the full period of thirty-six hours, 

 although not precisely between the times prescribed in the statute. 

 Now 1 agree with Lord Rutherford Clark, who dissented there, that 

 such acting was not an admissible construction of the Act, which plainly 

 intends that all nets should be out of action during the fixed time — 

 Saturday night at a fixed hour, and Monday morning at a fixed hour. 

 The object aimed at is to give the fish a free run for the specified period 

 past all nets, and that object would obviously be defeated if the result 

 was that fish which passed nets the leaders of which had been lifted 

 were in risk of being caught in those which had been left down. 



Lord M'Laren. — I also concur with your Lordship in the chair. So 

 far as the question is affected by authority, I think the explanation 

 given by the Lord Justice-Clerk of the case of Middleton v. Paterson is 

 very important, because I understand that in that case, and according 

 to the constitution of this Court, his Lordship only gave a casting vote, 

 and it is well known that in such circumstances considerations are 

 taken into account which would not affect a vote given under ordinary 

 conditions. In any case this question has been remitted to a Full 

 Bench of Judges, and it is for us to decide the matter now. 



Even supposing the earlier statutes relating to Sunday trading and 

 Sunday labour to be in observance to certain effects, it is the fact that 

 a later statute has been passed by the Imperial Parliament imposing 

 the duty of putting the salmon nets out of fishing order during the 

 whole period from Saturday evening until Monday morning. This con- 

 sideration, in my judgment, is sufficient for the decision of the case. 

 As, however, the whole law of the subject has been discussed, I think 

 it is desirable that we should also consider how far the old statutory 

 law opposes obstacles to the performance of what most people would 

 regard as necessary and suitable Sunday labour. There may be a 

 difficulty, in consequence of the case of Phillips, in holding that the 



