v. Archibald

, 1913

Friday, March 7.

(Before the Lord Justice-Clerk, Lord Dewar, and Lord Hunter.) THORNEYCROFT v. ARCHIBALD. Justiciary Cases-Statutory Offence-Coal Mine-Eight Hours Rule - Exception -"Danger or Apprehended Danger"Coal Mines Regulation Act 1908 (8 Edw. VII, cap. 57), secs. 1 and 7.

The Coal Mines Regulation Act 1908, section 1, provides that no workman shall be below ground for the purposes of his work for more than eight hours during any consecutive twenty-four hours, but that no contravention shall be deemed to take place in the case of a workman who is below ground for the purpose of "meeting any danger or apprehended danger." Further, it is provided by section 7 (1) that any person who connives at a contravention on the part of any other person shall be guilty of an offence against the Act.

In order to have a pit in a safe condition for miners to work on each Monday morning, the managers of a coal mine, which was idle on Saturdays and Sundays, and in which falls from the roof were more frequent during the idle time than on working days, employed a shift of mine repairers in a manner which resulted in their being below ground for a period of more than eight hours between 10 p.m. on Sunday and 10 p.m. on Monday in each week.

Held that the managers were guilty of a contravention of the Act in respect that the exception to the eight hours rule provided by the Act referred to abnormal danger and not to the ordinary dangers incidental to working the mine.

The Coal Mines Regulation Act 1908 (8 Edw. VII, cap. 57) enacts-Section 1-"(1) Subject to the provisions of this Act a workman shall not be below ground in a mine for the purpose of his work, and of going to and from his work, for more than eight hours during any consecutive twentyfour hours. (2) No contravention of the foregoing provisions shall be deemed to take place... in the case of any workman who is below ground for the purpose of rendering assistance in the event of accident, or for meeting any danger or apprehended danger, or for dealing with any emergency or work uncompleted through unforeseen circumstances, which requires to be dealt with without interruption in order to avoid serious interference with ordinary work in the mine or in any district of the mine. . . . (6) A repairing shift of workmen may, notwithstanding the provisions of this section, for the purpose of avoiding work on Sunday, commence their period of work on Saturday before twenty-four hours have elapsed since the commencement of their last period of work, so long as at least

eight hours have elapsed since the termination thereof." Section 7-"(1) If any person. connives at any such contravention or failure on the part of any other person, he shall be guilty of an offence against this Act. (2) A person guilty of an offence under this Act for which a special penalty is not provided shall, in respect of each offence, be liable on summary conviction, if he is the owner, agent, or manager of the mine, to a fine not exceeding two pounds, and in any other case to a fine not exceeding ten shillings."

Wallace Thorneycroft, managing director of the Plean Colliery Company, and Peter Inglis, manager of the East Plean Colliery, Stirlingshire, belonging to the said company, appellants, were charged in the Sheriff Court at Stirling, on 15th July 1912, at the instance of James R. Archibald, procurator-fiscal, respondent, on a summary complaint, which stated that on 5th and 6th May 1912, at No. 4 Pit, East Plean, they did connive at Andrew Docherty, pit road repairer, and six others who were named, "all workmen employed by said company in said mine, being below ground therein for the purpose of their work and of going to and from their work for more than eight hours during the consecutive twentyfour hours, commencing at 10 p.m. on Sunday 5th and ending at 10 p.m. on Monday 6th May 1912, viz., from 10 p.m. on Sunday 5th to 6 a.m. on Monday 6th May 1912, and from 2·45 p.m. to 10 p.m. on said 6th May 1912, contrary to the Coal Mines Regulation Act 1908, sections 1 (1) and 7 (1), whereby you are each liable to the penalty set forth in section 7 (2) of said Act, and in default of payment thereof to imprisonment in terms of section 48 of the Summary Jurisdiction (Scotland) Act 1908."

On 21st October 1912 both the accused were found guilty by the Sheriff-Substitute (MITCHELL) and sentenced accordingly.

The accused obtained a Case for appeal. In the Case the following facts were set forth as admitted or proved-"1. The said Andrew Docherty, Robert Hamilton, Richard Robertson, John Boyd, and Hugh Duncan, all pit road repairers, being workmen employed by said company in said mine, were below ground in said No. 4 Pit for the purpose of their work, and of going to and from their work, for more than eight hours during the consecutive twentyfour hours libelled, viz., from 10 p.m. on Sunday 5th to 6 a.m. on Monday 6th May 1912, and from 2:45 p.m. to 10 p.m. on said 6th May 1912 as libelled. 2. The said pit is worked on the single shift system, a full shift working each working day from 6 a.m. till 2 p.m., when alone coal is drawn. In addition there is a repairing shift working each day from 3 p.m. till 11 p.m., and a night shift of a few colliers working in special places at special work from 10 p.m. till 6 a.m. The working was on the longwall system, and the working face was not advanced at all, or materially, in connection with said night working in special places. 3. The pit is idle every Sunday, and also every alternate Saturday, the idle time extending from 2 p.m. on Friday till

6 a.m. on Monday, or from 2 p. m. on Saturday till 6 a.m. on Monday, on alternate weeks. 4. At the time libelled Saturday had been an idle day, the idle time extending from 2 p.m. on Friday till 6 a.m. on Monday. 5. It was the practice in said pit at the time libelled and for at least two years before-for a repairing squad or shift to be below ground for the purpose of their work from 10 p.m. on Sunday night to 6 a.m. on Monday morning, and for the same squad of repairers to be below ground for their work again between 3 and 11 p.m. on Monday at their usual week-day shift. 6. The men named in the complaint, except Thomas Wallace and William Jack, were regular members of said repairing squad or shift, and were below ground on the dates libelled in the regular course of their duty as members of the squad, and the appellant Peter Inglis knew that said men were such members of said squad or shift, but it was not proved that the appellant Wallace Thorneycroft knew who the members of the squad were. 7. It was the duty of said repairing squad or shift to deal with falls from the roof of the workings in said pit by removing the fallen material, propping up the roofs where falls had taken place or might be anticipated, and removing stones and material which were likely to fall from the roofs and sides of the workings. 8. When falls have taken place in a pit it is probable that further material which has been loosened will fall unless the roof is secured, and it is necessary that such work as is referred to in No. 7 should be done to ensure safe working. 9. Prior to the said repairing squad commencing work on Sunday nights, and during the period when they were at work on such nights, the pit was inspected by firemen in order, among other things, to discover any falls from the roof which might have occurred, and any places which might have become insecure and where the fall of material might be anticipated; and it was the duty of the repairing squad to carry out such instructions as might be given to them by said firemen for the purpose of securing the roof and sides of the workings so that falls might not take place. On the Sunday night libelled the repairers mentioned in No. 1 supra were engaged in this work. On other working days than Monday, as the repairing shift and firemen have not been down all night, the pit is inspected by firemen before the colliers' shift enters at 6 a.m., and if any part of the pit is found to be dangerous the colliers are not allowed to enter it. 10. The object of such prior inspection and the Sunday night work carried out by the repairers under the instructions of the firemen was to make the workings safe for the colliers who were in ordinary course to enter the workingplaces at 6 a.m. on the Monday mornings. 11. There were as a rule more falls from the roof in said pit on Sundays than on other days in the week, which falls required to be dealt with during the Sunday night shifts. The firemen's books in which the falls are recorded showed that for the five months, May to September 1912, the per

centage of falls on weekdays in said pit was about 17, while on Sundays it was about 5'9. But otherwise there was no difference between the state of the pit on Sundays and its state on other days. 12. The increased number of falls on Sundays is connected with the idle time from Friday afternoon or Saturday afternoon; but it was not admitted or proved whether said increase was due to the cessation of mining and the consequent non-advance of the working face, causing concentration of roof pressure at one area in this long-wall working or to the intermission in repairing, nor in what proportion these may have respectively operated. 13. On the said 'idle day,' Saturday, 5th May 1912, though a considerable number of men were in the pit at other work, coal was not being got save by some ten to fifteen men working in special developing' places, but their work did not have the effect of causing any substantial advance in the working face. 14. It was not proved that the number or the extent of falls in said pit was unusual, as compared with pits generally or pits in the neighbourhood. 15. The firemen's books showed that on Sunday, the 5th of May, there were eight falls in No. 4 Pit, one at least of which occurred after ten o'clock at night; but it was not proved that the falls in said pit requiring to be cleared away by the night shift on the Sunday libelled were unusual in number or extent as compared with falls in said pit on other Sundays before or after; and there was nothing unusual for a Sunday in the condition of the pit on the Sunday libelled, and nothing calling for the attention of the repairers beyond what was to be expected on Sundays. 16. The appellants apprehended, and had reason to apprehend, that falls from the roof would occur during the idle times of the pit, including Sunday nights, and they apprehended, and had reason to apprehend, that such falls would occur between 2 p.m. on Friday, 3rd May, and 6a.m. on Monday 6th. 17. The appellants apprehended, and had reason to apprehend, that on such falls occurring, if the roof was not secured and the workings cleared by a repairing squad, the workings would be in a dangerous condition at 6 a.m. on Monday mornings. 18. The appellants had reason to expect that more falls would have to be dealt with on the Sunday night shift libelled (5th May 1912), and so far to apprehend more danger than on weeknight shifts, but not more than on other Sunday nights, before and after. 19. The appellants personally were not aware that there were any falls in the mine on 5th May, and did not learn of the falls until after that date; and their apprehension of danger was not based on any conditions existing in the pit on that day beyond the conditions on other Sundays. 20. The Register which section 2 (1) of the Act libelled requires to be kept contained no entry as to the cause why the men who are named in the complaint were below ground for more than the time fixed by the Act; but the appellant Inglis, who was responsible for said Register, explained that he thought

v. Archibald

, 1913

this was required only where miners were kept at work for more than eight hours at a stretch. 21. The regular and most convenient time for the repairing squad to go down the pit on week-days was at 3 o'clock, after the firemen who had been on duty since the morning had reported to the firemen who had come on duty for the afternoon, these latter firemen then carrying out, with or through the repairing squad, such repairs as were necessary. If urgent repairs are required on working days after 11 p.m. they are attended to by the night shift of colliers who are at work on these days. 22. On the Monday libelled there was nothing abnormal in the condition of the said pit, and the appellants had no reason to expect more or larger falls or to apprehend more danger for themselves or others in the repairers' foresaid Monday afternoon shift or for the following night shift than in or for other week-day shifts. No fall was reported on the said Monday after 6 a.m. 23. The appellant Wallace Thorneycroft was managing director of said company, resident at Plean House, near their pits, and had the supreme control and management of the pits for the directors; and the appellant Peter Inglis was the statutory certificated manager of said No. 4 Pit, and managed under Mr Thorneycroft. 24. On 12th September 1910 the Divisional Inspector of Mines wrote to the Plean Colliery Company complaining of the practice of sending repairers down at 10 p.m. on Sundays to work till 6 a.m. on Monday mornings, and the same repairers again between 3p. m. and 11 p.m. on Mondays. The appellant Wallace Thorneycroft replied on behalf of the company denying that this was contravention of the Act, in respect that the repairers were sent down to meet apprehended danger. 25. On the Sunday and Monday libelled, the appellant Wallace Thorneycroft wasnot at any time personally at or in said pit, and the appellant Peter Inglis was not at or in said pit when the said repairers began work on said Sunday night. 26. The appellants, each of them, knew of said practice of a repairing squad working from 10 p.m. on Sunday to 6 a.m. on Monday, and again from 3 p.m. on Monday to 11 p.m., and knew that a squad or shift of repairers was below ground in said pit at the times libelled. 27. The appellants, each of them, had power to prevent said men from being below ground in said pit for the purpose and at the times libelled. 28. The appellants, each of them, having such knowledge and power, did not prevent the men named in No. 1 supra or any of them from being, and thus connived at said men being, below ground in said pit for the purpose and at the times libelled."

a

The question of law for the opinion of the Court was as follows:-"Was I right in holding, in view of the circumstances above stated, that the appellants had not the benefit of the exceptions in section 1 (2) of the Act, in particular the exception applicable for the case of workmen being below ground for meeting any danger or apprehended danger?""

Argued for the appellants - The work permitted by the appellants fell within the exception provided by sec. 1, sub-sec. 2, of the Act. The exception to the eight hours rule applied to men employed to meet any danger or apprehended danger, and it was not material that the danger was one which regularly recurred owing to the idle time on Saturdays and Sundays. The arrangement was necessary in order that it might be safe for the colliers to start work each Monday morning; and it did not result in the repairers in question working for more hours in each week than the statute allowed. By section 1 (6) the Act allowed an exception from the eight hours rule on Saturdays in order to avoid Sunday labour. In the case of this mine Sunday labour was necessary to secure safety, but the system complained of minimised Sunday labour as far as possible.

Argued for the respondent-Prima facie there had been a contravention of the Act, and the onus was on the appellants to show that what was done fell within the exception as to danger. They had failed to discharge this onus, as the sub-section plainly did not refer to the ordinary dangers incidental to the working of a mine but to abnormal danger. If the appellants' contention were upheld, it would result in repairers being excluded altogether from the operation of the Act, which was not intended. As the law now stood, what the appellants had permitted could only be rendered legal by legislation.

LORD JUSTICE-CLERK-We have had a very able statement from Mr Horne, but I am unable to say that what the Sheriff has held to be a breach of the statute is not a breach of the statute. The statute is intended to prevent miners from being at work more than eight hours in the twenty-four, unless under exceptional and abnormal circumstances. The case made on the part of the appellants is that every Sunday in this pit abnormal circumstances are to be expected. It appears to me, however, that these circumstances in that case cease to be abnormal because they are the regular occurrences that take place on every Sunday. If it be true that the Sunday intervals necessitate more work in the way of repairs than would otherwise be the case, that just means that the pit requires more attention on Monday morning than it does at any other time.

We must distinguish between two things. There is, in the first place, the ordinary attention bestowed on the pit by repairers and brushers, whose business it is-always a more or less dangerous one-to keep the ways and works of the pit in a safe condition. Things are constantly occurring which, although slight at the moment, may, if not attended to, ultimately become dangerous, and it is the regular and ordinary work of the skilled repairer to detect and deal with these occurrences. In the second place, in such pits there are frequent Occurrences which are more serious, and which obviously amount to danger or

apprehended danger, distinguishable from these ordinary occurrences to which I have referred. Looking at the words of the clause of exceptions in section 1 (2) of the Act and the context in which they occur, I think they do not refer to the danger which will always be present in a pit if it is not looked after, but to some abnormal and exceptionally serious occurrence. The object, accordingly, of the clause (section 1 (2)) is plainly to exclude from the prohibition imposed by the Act the case of men who have finished their eight hours' shift, but who, if they left off work, would leave behind them a condition of things tending to exceptional danger. The section permits them to go and continue working, and make the pit safe where some danger or apprehended danger of a marked kind has supervened. That, of course, is a totally different thing from their being allowed after they have completed their ordinary eight hours' shift, to begin, after an interval of only eight hours, to work another eight hours' spell. That is the very thing the Act was intended to strike at.

It may be, of course, that in carrying out this Act a little extra expense may be put upon the mine-owner. He may have to employ more men for this particular work during the twenty-four hours that follow the Sunday than he would otherwise do, because he cannot use his own repairing squad, who have done their eight hours' work already. He may employ miners to do the work, because we are told that ordinary miners are expected to do such work as is shown by the statement that "if urgent repairs are required on working days after 11 p.m. they are attended to by the night shift of colliers who are at work on these days." He will, however, have to pay them wages, because they are not winning their own coal, and because if he did not they would be thereby losers. That may be his misfortune, but it is one imposed on him by the Act of Parliament, which requires that there shall be provision made for the ordinary repairs of the pit. I must say I do not understand the idea that because arrangements are made whereby it is necessary for certain men to work more than eight hours unless other men are employed to do the work, that is a reason for excluding the operation of the

statute.

The only point which Mr Horne made with some shadow of success was on subsection (6), which allows a repairing shift to commence their period of work on Saturday, before twenty-four hours have elapsed since the commencement of their last period of work, in order to avoid doing work on Sunday, but that does not entitle them, so far as I can see, to do it in any other way than that described, namely, by doing an extra shift on Saturday. It is a different thing altogether to transfer that on to a Monday at the beginning of the week, and give the men sixteen hours work out of the twenty-four. If there is to be any amendment of this Act, it must be done, as the Solicitor-General said, by the Legislature; we cannot interfere with

it.

For myself I think the Sheriff has made very careful findings indeed, and that on his findings in fact he was justified in coming to the conclusion he did.

LORD DEWAR-I concur.

LORD HUNTER-I agree.

The Court answered the question of law in the affirmative.

Counse for the Appellants-Horne, K.C. Leadbetter. Agents - Macpherson & Mackay, S.S.C.

Counsel for the Respondent - SolicitorGeneral (Anderson, K.C.)-Candlish Henderson. Agent Sir Wm. S. Haldane, W.S., Crown Agent.

COURT OF SESSION.

Friday, March 7.

SECOND DIVISION.

[Lord Hunter, Ordinary on the Bills.

HAMILTON v. BANK OF SCOTLAND. Cautioner Bankruptcy Discharge of Obligation-Release of Co-cautioner by Creditor-Consent of Trustee in Deceased's Cautioner's Sequestration without Concurrence of Commissioners-Liability of Deceased Cautioner's Estate-Mercantile Law (Scotland) Amendment Act 1856 (19 and 20 Vict. cap. 60), sec. 9-Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. cap. 79), sec. 176.

Held that a deceased cautioner's estate was not released from liability under a guarantee given to a bank by the fact that the bank had released a co-cautioner with consent of the trustee on the sequestrated estate of the deceased cautioner, but without the consent of the commissioners in the sequestration. Cautioner-Extinction and Discharge of Obligation-Giving Time.

The executor on the estate of a deceased cautioner claimed that the estate should be relieved from liability under a guarantee granted by the cautioner to a bank, on the ground that the bank had entered into an arrangement by which they undertook to finance the principal debtor, and had thereby debarred themselves from demanding payment of the debt. Held that these averments did not amount to an agreement to give time so as to preclude the bank from suing for the debt, and that accordingly the deceased's cautioner's estate remained liable under the guarantee. Cautioner - Extinction and Discharge of Obligation-Revocation by Cautioner

Construction.

A letter of guarantee provided that the creditor should be entitled to give

v. Bank of Scotland

7, 1913

time to or compound with the principal debtor without releasing the cautioner, and that the guarantee should remain in force till recalled by the cautioners or their heirs or executors. The executor of a deceased cautioner having revoked the guarantee, opinion per curiam that the revocation operated to stop further advances, but did not debar the creditor from bona fide granting time to the debtor.

The Mercantile Law Amendment (Scotland) Act 1856 (19 and 20 Vict. cap. 60), sec. 9, enacts"From and after the passing of this Act, where two or more persons shall become bound as cautioners for any debtor, any discharge granted by the creditor in such debt or obligation to any one of such cautioners without the consent of the other cautioners shall be deemed and taken to be a discharge granted to all the cautioners. . .

The Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. cap. 79), sec. 176, enacts-"The trustee may, with consent of the commissioners, compound and transact or refer to arbitration any questions which may arise in the course of the sequestration regarding the estate, or any demand or claim made thereon, and the compromise, transaction, or decree-arbitral shall be binding on the creditors and the bankrupt."

John Mackay Hunter Hamilton, executordative of the deceased James Hamilton, farmer, Nether Wellwood, Muirkirk, appellant, appealed to the Lord Ordinary on the Bills (HUNTER) against a deliverance of Thomas Patrick Laird, trustee on the sequestrated estate of James Hamilton, ranking the Bank of Scotland, respondents, for a sum of £14,002, 9s. 6d. under a letter of guarantee dated 19th and 20th May 1903, granted by Mr Hamilton and five other guarantors.

The letter of guarantee was, inter alia, in the following terms "We agree that, without prejudice to your right to demand payment from us or any of us of the whole sums hereby guaranteed, you shall also be entitled to make calls on us or any of us from time to time, in respect of our said guarantee, for such sums as you may fix: And we further declare that you may at any time or times at your discretion grant to the said Lanemark Coal Company, Limited, or to any drawers, acceptors, or indorsers of bills of exchange or promissory notes, received by you from them or on which they may be liable to you, any time or other indulgence, and compound with them or with the said drawers, acceptors, or indorsers respectively, without discharging or satisfying the liability of us or any of us; and that this guarantee shall apply to and secure any ultimate balance of the sums that shall remain due to you after applying any dividends, compositions, and payments which you may receive: And it is further declared that this guarantee is to remain in force until recalled by us, or our heirs or executors, in writing, and shall be without prejudice to any other securities or remedies which you have or may acquire for the general obligations,

or any particular obligation of the said Lanemark Coal Company, Limited."

The appellant averred-" (Cond. 5) In the . . letter of 1st October 1907 the Bank... intimated that until they received a satisfactory proposal from the company they were not in a position to release the late Mr Hamilton's obligation. The Bank were largely interested in the said Lanemark Company as shareholders therein; and during 1907 and 1908 the Lanemark Company had ample liquid assets to meet its creditors and pay off the Bank's indebtedness, which amounted to from £20,000 to £30,000. But if the company had then been wound up nothing would have remained for the shareholders of the company. In order, therefore, to protect their interests as shareholders the Bank, through their treasurer and their agent at Ayr, on the one hand, and Mr R. A. Murray, on behalf of the company, negotiated to make a new satisfactory arrangement as mentioned in said letter, and arrangements were definitely made to the Bank's satisfaction, and the obligation of the late Mr Hamilton was thereby released. In particular, a new arrangement was made in October 1908, under which the Bank advanced a further sum of £1000 for carrying on the company. And on the 13th October 1908 Mr Murray telegraphed the treasurer of the BankReferring our meeting will you kindly wire Ayr confirming arrangement advance on open account £1000'; and the Bank replied giving the instructions desired. Further, during 1907 and 1908 the Bank controlled the whole business of the company and carried it on in their own interests as shareholders and to the prejudice of the interests of the said guarantors. The directors of the company were under the control of the Bank. The shares held by the Bank were sufficient to enable them to control the business of the company, and they did in fact control and carry on the business during these years. appointed a new secretary and law agent. In January 1908 an offer of £30,000—a sum sufficient to pay the company's whole debts - was made by Messrs John Watson, Limited, but the Bank succeeded in getting this offer rejected on 24th January 1908, and carried a resolution that the business of the company was not to be sold except at a price which would yield the shareholders 10s. per £1. The Bank thereafter financed and continued the said company's business, and in consequence of its actings the company incurred further trading losses and went into liquidation on 27th January 1909. The said liquidation was caused entirely by the actings of the Bank. But for the financial advances made by the Bank, the company could not have continued its business, nor would it have incurred the trading losses which ultimately compelled liquidation. The Bank seriously prejudiced the position of said guarantors, as the company was then only able to pay to its creditors a dividend of about 10s. per £1. The whole of these proceedings were carried on by the Bank without the appellant's knowledge or consent. . . .

They