David Phillips and William Phillips, - Appellants; Daniel Innes, - Respondent
| Jurisdiction | Scotland |
| Judgment Date | 20 February 1837 |
| Date | 20 February 1837 |
| Court | Court of Session |
English Reports Citation: 7 E.R. 90
FROM THE COURT OF SESSION.
Mews' Dig. i. 503; xiii. 1967. Considered and distinguished in Palmer v. Snow
(1900), 1 Q.B. 725, 727.
APPEAL FROM THE CODBT OF SESSION. DAVID PHILLIPS and WILLIAM PHILLIPS,-Appellants; DANIEL INNES,- Respondent [Feb. 10, 20, 1837]. [Mews' Dig. i. 503; xiii. 1967. Considered and distinguished in Palmer v. Snow (1900), 1 Q.B. 725, 727.] An apprentice to a barber in Scotland, bound by his indentures " not to absent himself from his master's business on holiday or week-day, late hours or early, without leave," went away on Sundays without leave, and without shaving his master's customers. Held by the Lords (reversing interlocutors of the Court of Session), that the apprentice could not be lawfully required to attend his master's shop on Sundays for the pur-[235]-pose of shaving the customers, and that that work and all other sorts of handicraft were illegal, in England as well as in Scotland, not being works of necessity, or mercy, or charity. This cause commenced by the Respondent's presenting a petition to the Magistrals of Dundee against the Appellants, on the 13th of Mlay 1834, stating, among other things, that by an indenture, bearing date the 18th of March then last past, and executed by the petitioner on the one part, and by William Phillips, with consent of David Phillips, his father, and the said David Phillips as surety for his said son, on the other part, the said William Phillips, with such consent, became bound apprentice and servant to the petitioner in his trade and business of barber and hair-dresser, 90 PHILLIPS V. INNES [1837] IV CLARK & FINNELLY. for the term of four years, from the 1st of July 1833, and during that space to serve the petitioner as a faithful and obedient apprentice, and " not to absent himself from his master's business, holiday or week-day, late hours or early, without leave first asked and obtained," under the penalty of 10 sterling over and above performance: That from the nature of the petitioner's trade and business he required the attendance of his apprentice on the mornings of Sundays, as on other days, till at least ten o'clock, and accordingly the said apprentice did attend the petitioner's business on Sunday mornings regularly from the time of his entering into his service on the 1st of July 1833 until Sundays the 4th and the llth of May then current (1834), on each of which he absented himself without leave as aforesaid, in consequence of which the petitioner suffered considerable loss and inconvenience, and he therefore prayed, among other things, a declaration that he, [236] the petitioner, was entitled to the services of his said apprentice on the mornings of Sundays until 10 o'clock, and also to the penalty of ,10 secured by the said indenture on failure of such service. The Appellants answered the petition, and denied that the Respondent's business required the attendance of the Appellant, William Phillips, on the mornings of Sundays, and denied that he was bound to work for his master on Sundays, or that it was legal for any person to carry on his ordinary trade on the Sabbath. The Appellants relied on the Acts of the Scotch Parliament, 1503, c. 83; 1579, c. 70; 1592, c. 122 ; 1593, c. 159; 1594, c. 198; 1661, c. 18; and 1690, c. 7, and other Acts, by which they alleged that all ordinary or every day's labour was expressly prohibited on Sundays. They also cited the case of Learmonth v. Blackfe (6 Shaw and D. 533) (the 13th of February 1828), in which the Lord Justice Clerk held, that an apprentice being out on a Sunday was no breach of his indenture, as the master could not make him work on that day. The magistrates of Dundee, after a due course of pleading, pronounced the following interlocutor: " 13th of August 1834.-Having advised the minutes of debate, and whole process, find that it is matter of public notoriety, that, among the great body of mechanics, common labourers and seafaring men, residing in and frequenting this town and its port, a very considerable number are not in the use of shaving their beards with their own hands, but resort to barbers' shops in order to be shaved, many on the evenings of Saturday, but some on the mornings of Sunday: Find, that, however desirable it may be that the resorting to shaving-shops on the mornings of [237] Sunday should be discontinued, if that could be effected without greater evil, yet it does not appear to be either necessary or expedient, for a due observance of the Sabbath, to forbid the existing usage...
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