Lord Justice ground which takes this case out of the decision in the case of Phillips,1 Mar. 10, 1908. and it is this. These old statutes may not be in desuetude, but they cer- Middleton v. tainly are not, to say the least of it, rigorously enforced. Then, in 1868 Tough. Parliament passed another Act, which shews upon the face of it that something must be done by somebody on Sunday, because Parliament must be General. 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 Parliament. 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 it 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 2 was overruled by the case of Irving,3 and on the whole matter I come to the conclusion that in this case there ought to have been a conviction. LORD JUSTICE-CLERK.-I entirely concur with your Lordship. The statute providing for 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. 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. Paterson, 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 1 2 Shaw & Maclean, 465. 319 R. (J.) 7, 3 White, 46. 215 R. (J.) 12, 1 White, 497. Mar. 10, 1908. removed. Middleton v. Lord Justice Clerk. In these circumstances I felt constrained to concur with Lord Trayner in a conclusion which meant acquittal, rather than with the conclusion of Lord Moncreiff, which meant conviction. I may add that it seems to me that, in the case of Osborne v. Anderson,1 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, I agree with Lord Rutherfurd Clark, who dissented there, that this 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 2 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 consideration in my judg ment is sufficient for the decision of the case. As, however, the whole law of the subject has been discussed, I think it 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 3 in holding that the statutes are altogether in desuetude. But in the case of Bute v. More no precedent could be found for a conviction under these Acts, and neither the ingenuity of counsel nor the experience of the Judges composing the Court was able to discover any form of process under which a person might be penalised for the contravention of those statutes. Therefore, it is not saying too much when I conclude that these statutes are not likely to be again enforced. Indeed, without doing any violence to authorised 1 15 R. (J.) 12, 1 White, 497. 26 F. (J.) 27, 4 Adam, 321. expositions of the law, it may very well be held that the statutes have gone Mar. 10, 1908. out of use altogether. But, without entering further into that question, we Middleton v. know that it was the practice of the Scottish Legislature to pass statutes Tough. which were expressed in very general terms, which were not always work- Lord M'Laren. able without the aid of judicial construction, and which were intended to be worked out by the Courts of law applying common-sense principles to their interpretation. Both before and after the passing of these Scottish statutes it is needless to say that there were certain descriptions of labour which had to be regularly performed on Sundays. Domestic service and a considerable portion of the work of farm service had to be carried on upon the first day of the week. Horses had to be fed, cows had to be milked, cattle had to be driven out to the pasturage in the morning and brought home at night. The statutes never were understood to prohibit anything except such work as was ordinarily carried on during weekdays and could be as well done on any other day as on the Sunday. The tailor or bootmaker was not to work at his trade nor to require his men to work for him on Sundays. The case of fishing for salmon with all its statutory obligations, and the work of putting nets out of gear, must be held to be ejusdem generis with these kinds of work which have to be carried on upon Sundays, and as the Act of Parliament makes it necessary that the leaders should be removed either at six o'clock on the Saturday evening or as soon thereafter as the state of the weather permits, that is a sufficient reason why the lessee of such fisheries should be held bound to engage men who are willing to do this trifling amount of Sunday work when occasion requires. I have no conception that there would be any difficulty in finding men willing, when necessary, to perform these services on Sunday, just as servants can be found to undertake other services which are usually performed on Sundays as well as weekdays. I agree with your Lordship in the chair that we should answer the question by holding that the person accused was liable to be convicted. LORD KINNEAR.-I agree entirely with the Lord Justice-General, and I only add, since this case has been brought for the purpose of reviewing the decision in Middleton v. Paterson, that I agree with the opinion of Lord Moncreiff in that case, and that my only difficulty in doing so has been removed by what the Lord Justice-Clerk has said. LORD STORMONTH-DARLING.-I concur in the opinion of your Lordship in the chair, and particularly in your Lordship's agreement with the dissent of Lord Moncreiff in the case of Middleton v. Paterson.1 He there points out that "Sunday constitutes two-thirds of the weekly close time, and the regulations contain no sanction for non-observance of them on that day, on any ground whatever." LORD LOW.-I concur. LORD ARDWALL.-On the application of the statute and the general law of the case, I entirely agree with your Lordship in the chair and with Lord 16 F. (J.) 27, 4 Adam, 321. Lord Ardwall. Mar. 10, 1908. Moncreiff's opinion in the case which has been cited. I should be very Middleton v. sorry if anything that we are deciding should seem in any way to derogate Tough. from the proper observance of Sunday. And I recommend the following view of the matter to these worthy people in Ross-shire who, greatly as I think to their credit, are desirous of avoiding unnecessary labour on the first day of the week. In the first place, I would point out that by leaving the nets set for fishing all Sunday, the people who fail to remove the leaders are truly guilty of engaging in the industry of fishing the whole of the Sabbath day. In the next place, it may well be considered a work of necessity or mercy to lift the leaders of the nets on the Sabbath day. The phrase "work of necessity or mercy," though embodied in a statute, is taken from the Confession of Faith and the Shorter Catechism, and these excellent documents profess to be founded on, and binding only so far as founded on, Scripture. Now, in Scripture I find direct authority to the effect that if a sheep fall into a pit on the Sabbath day, it is lawful to lay hold on it and lift it out (see Matt. xii. 11). I hold that it is an analogous act to take up the leaders of salmon nets on the Sabbath day, and let out the unfortunate salmon which have been entrapped by an illegal net, and mercifully to restore them to their native freedom. THE COURT answered the question in the case in the affirmative, sustained the appeal, and found that the Sheriff-substitute ought to have convicted the respondent. JOHN C. BRODIE & SONS, W.S.-ALEXANDER Ross, S.S.C.-Agents. No. 9. Mar. 20, 1908. Falconer v. HIGH COURT. Clerk. Lord Low. PATRICK FALCONER, Complainer.-Morton. Public Health-Sale of Food-Prosecutions by officers of Local Govern ment Board and Board of Agriculture as private purchasers-Sale of Food and Drugs Act, 1875 (38 and 39 Vict. cap. 63), secs. 6, 12, 14, 20-Sale of Food and Drugs Act, 1899 (62 and 63 Vict. cap. 51), secs. 2 (1) (2), 3 (2) (3), 23, 24.—The Sale of Food and Drugs Act, 1899, confers on the Local Government Board and the Board of Agriculture, and the corresponding boards in Scotland and Ireland, powers, in default of action by the Local Authority, to institute proceedings at the instance of their officers against persons infringing the provisions of the Sale of Food and Drugs Acts, and prescribes procedure to be followed in such prosecutions. Held that the exercise of these powers was optional and not obligatory; that the officers of these boards were entitled to institute proceedings as private individuals in the method prescribed by the Sale of Food and Drugs Act, 1875; and that they were not limited in prosecutions at their instance to the procedure prescribed by the Act of 1899. ON 21st November 1907 Patrick Falconer, provision merchant, 70 Lord Justice- Main Street, Gorbals, Glasgow, was charged in the Sheriff Court at Glasgow on a summary complaint at the instance of "Robert Algernon Lord Ardwall. Whyte, of Glenmaye, Manchester Road, West Timperley, Altrincham, Cheshire," setting forth "that the complainer caused the analysis to be made, of which the certificate is herewith annexed, and from which it appears that the following offence has been committed against the Sale of Food and Drugs Acts, 1875 to 1899: Whyte. "That Patrick Falconer, provision merchant, 70 Main Street, Mar. 20, 1908. Gorbals, Glasgow, did, on the 24th day of August 1907, in his shop Falconer v. at 70 Main Street, Gorbals, Glasgow, sell to the complainer to his prejudice half a pound of Irish butter which was not of the nature, substance, and quality demanded by the complainer, in respect that the complainer demanded Irish butter, and that the article sold to him as aforesaid did not consist of genuine Irish butter, in respect that it contained foreign fat to the extent of 74-30 per cent or thereby, contrary to the Sale of Food and Drugs Acts, 1875 to 1899, particularly the Sale of Food and Drugs Act, 1875, section 6, and that said offence is a first offence, whereby the said Patrick Falconer is liable to pay a penalty not exceeding £20."* *The Sale of Food and Drugs Act, 1875 (38 and 39 Vict. cap. 63), enacts: Sec. 6. "No person shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance, and quality of the article demanded by such purchaser, under a penalty " Sec. 12. "Any purchaser of an article of food or of a drug in any place being a district, county, city, or borough, where there is any analyst appointed under this or any Act hereby repealed, shall be entitled, on payment to such analyst of a sum not exceeding ten shillings and sixpence, or if there be no such analyst then acting for such place, to the analyst of another place, of such sum as may be agreed upon between such person and the analyst, to have such article analysed by such analyst, and to receive from him a certificate of the result of his analysis." Sec. 14 (as amended by the Food and Drugs Act, 1899 (62 and 63 Vict. cap. 51), sec. 13):-"The person purchasing any article with the intention of submitting the same to analysis shall after the purchase shall have been completed, forthwith notify to the seller or his agent selling the article his intention to have the same analysed by the public analyst, and shall divide the article into three parts to be then and there separated, and each part to be marked and sealed or fastened up in such manner as its nature will permit, and shall if required to do so, deliver one of the parts to the seller or his agent. He shall afterwards retain one of said parts for future comparison, and submit the third part, if he deems it right to have the article analysed, to the analyst." Sec. 20. "When the analyst having analysed any article shall have given his certificate of the result, from which it may appear that an offence against some one of the provisions of this Act has been committed, the person causing the analysis to be made may take proceedings for the recovery of the penalty herein imposed for such offence in a summary manner." The Sale of Food and Drugs Act, 1899 (62 and 63 Vict. c. 51), enacts :Sec. 2 (1). "The Local Government Board may, in relation to any matter appearing to that Board to affect the general interest of the consumer, and the Board of Agriculture may, in relation to any matter appearing to that Board to affect the general interests of agriculture in the United Kingdom, direct an officer of the Board to procure for analysis samples of any article of food, and thereupon the officer shall have all the powers of procuring samples conferred by the Sale of Food and Drugs Acts, and those Acts shall apply as if the officer were an officer authorised to procure samples under the Sale of Food and Drugs Act, 1875, except that (a) the officer procuring the sample shall divide the same into four parts, and shall deal with three of such parts in the manner directed by section 14 of the Sale of Food and Drugs Act, 1875, as amended by this Act, and shall send the fourth part to the Board. Sec. 2 (2). "The Board shall communicate the result of the analysis of any such sample to the local authority, and thereupon there shall be the like |