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FINLASON'S COMMON-LAW ACTS.
THE QUEEN'S BENCH REPORTS.
THE COMMON-LAW PROCEDURE ACTS of 1852 CASES ARGUED and DETERMINED in the COURT
and 1854; with Notes, containing all the Cases either already expressly decided on or tending to elucidate them. With an Appendix, containing the Common-law Procedure Act of Will. 4, the recent Acts on Evidence, the New Rules to Michaelmas Vacation, 1854, and an Introduction. By W. F. FINLASON, Esq., Barrister at Law.
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A COMPENDIUM of MERCANTILE LAW. By the THE LAW of RAILWAYS. RAILWAY COMPANIES,
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A PRACTICAL TREATISE of the LAW of EVI- Appendix contains all the Statutes, with Notes referring to the Treatise
DENCE. BY THOMAS STARKIE, Esq. Fourth Edition, with very considerable alterations and additions; incorporating the Statutes and reported Cases to the time of publication. By G. M. DOWDESWELL and J. G. MALCOLM, Esqrs., Barristers at Law. Just published, in 1 vol. royal 8vo., price 17. 16s. cloth.
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FINLASON'S CHARITABLE TRUSTS ACT.
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"Mr. Kain has conferred a boon on the Profession by the publication of this work."
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GULATION of CHARITABLE TRUSTS. With copious Notes, and an Introductory Essay on the Jurisdiction exercised over them by the Court of Chancery; with all the decided Cases; and an Appendix, containing Precedents of Schemes, &c. By W. F. FINLASON, Esq., Barrister at Law. In 12mo., price 68. cloth,
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LAW FIRE INSURANCE SOCIETY.-Offices. Nos. 5
and 6, Chancery-lane, London.-Subscribed Capital, £5,000,000. TRUSTEES.
The Right Hon. the Earl of Devon.
The Right Hon. Lord Truro.
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Insurances expiring at Christmas should be renewed within fifteen
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PANY, No. 11, Lombard-street, London.
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LIFE DEPARTMENT. - Under the provisions of an act of Parliament, this Company now offers to future Insurers FOUR-FIFTHS of the ProFITS, with QUINQUENNIAL DIVISION, or a Low RATE OF PREMIUM without participation of Profits.
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At the several past Divisions of Profits made by this Company, the Reversionary Bonuses added to the Policies from ONE-HALF the Profits amounted, on an average of the different ages, to about One per Cent. per Annum on the sums insured, and the total Bonuses added at the four Septennial Divisions exceeded 770,000%.
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No. 939-VOL. XVIII.
JANUARY 6, 1855.
PRICE 1S. 6d.
NAMES OF THE CASES REPORTED IN THIS NUMBER.
VICE-CHANCELLOR STUART'S COURT.
Powdrell v. Jones.-(Copyholds, Form of Surrender of-Devise-Freebench-55 Geo. 3, c. 192-3 & 4 Will. 4, c. 105, Dower Act)...... VICE-CHANCELLOR Wood's COURT. Fleming v. East.-(Practice-Evidence-Reception of Affidavits) Ex parte The Dean and Chapter of Westminster.(Public Company—Lands® Clauses Consolidation Act-Application of Compensation Money) .... 1113 COURT OF QUEEN'S BENCH. O'Toole v. Browne.-(7 Will. 4 & 1 Vict. c. 26, 8. 24-Construction of Devise —“ Estate”After-acquired Land) Reg. v. The Trustees and Commissioners of the South Shields Turnpike Roads.-(Local Turnpike Act
LONDON, JANUARY 6, 1855.
DISCOURSE has often been had of Sunday, moral, theological, political, but seldom of Sunday legal; and yet the question-how has Sunday been treated by the law?-is not altogether without interest, as it is connected with those modifications of public feeling and opinion which have marked successive phases of English society. At common law, all acts, except, perhaps, those of a judicial nature, might be done on a Sunday. Before the Reformation, fairs and markets were commonly held on Sunday, and their legality seems to have been recognised after the Reformation*. Blackstone states, however, that the laws of King Athelstane forbade all merchandise on the Lord's day; and a statute in the reign of Henry VI, (27 Hen. 6, c. 5), after reciting the "abominable injuries and offences done to Almighty God and to his saints (always aiders and singular assisters in our necessities) because of fairs and markets upon their high and principal feasts, as (amongst other days) on Trinity Sunday with other Sundays, . . . . . for great earthly covetise," enacts, that all manner of fairs and markets on Sundays shall cease from all shewing of any goods or merchandises, (necessary victual only except), upon pain of forfeiture of all the goods so shewed, (the four Sundays in harvest exceptt).
Sports, however, were continued on Sundays, although they were afterwards discountenanced, for John Stowe, in his Survey of London, (1598), tells us, that "the youths of this city also have used on holy days, after evening prayer, at their masters' doors, to exercise their waisters and bucklers, and the maidens, one of
* See the authorities cited in Rawlins, App., The Overseers of West Derby, Resps., (2 C. B. 74).
+ The exception of the four Sundays in harvest is the reservation of an old, not the creation of a new, right. (2 C. B. 74, note (d)).
-Application of Funds-Payment of InterestRepair of Road- Order of Justices on Parish for Contribution-4 & 5 Vict. c. 59)........ Reg. v. Hutchinson.-(Turnpike Trustees-Debts— "Keeping down Interest"-Order of Justices on Trustees-5 & 6 Will. 4, c. 50, s. 94)
COURT OF COMMON PLEAS. Slim v. The Great Northern Railway Company.(Railway Company-Delivery of Cattle to Railway Servant-Special Terms-Non-liability of Company if Terms not complied with) PREROGATIVE Court.
Whiting v. Deal.-(Will-Subscribing Witnesses— Names written by Deceased)..
them playing on a timbrel, in sight of their masters and dames, to dance for garlands hanged thwart of the streets; which open pastimes in my youth being now suppressed, worser practices within doors are to be feared." (Vol. 1, p. 303, 6th ed.)
It is curious that the somewhat heavy and unamusing, although very moral, King James I, should have encouraged sports on a Sunday; while the chief statute against the profanation of that day was passed' in the reign of the profligate Charles II.
In 1618 King James I publicly declared to his subjects, in "The Book of Sports," the following games to be lawful-dancing, archery, leaping, vaulting, May games, Whitsun-ales, morris-dances, and set-up maypoles and other sports therewith used, and commanded that no such honest mirth or recreation should be forbidden to his subjects upon the Sunday or holy days after evening service, but restraining all recusants and all such as absent themselves from church from this liberty, and commanding each parish to use these recreations by itself, and prohibiting all unlawful games, bear-baiting, bull-baiting, interludes, and bowling, the meaner sort. (See Dalton, c. 46). It is with reference to this proceeding that Hume says-" At the same time that James shocked in so violent a manner the religious principles of his Scottish subjects, he acted in opposition to those of his English. He had observed, in his progress through England, that a judaical observance of the Sunday, chiefly by means of the Puritans, was every day gaining ground throughout the kingdom, and that the people, under colour of religion, were, contrary to former practice, debarred such sports and recreations as contributed both to their health and their amusement. Festivals, which other nations and ages are partly dedicated worship, partly to mirth and society, we e appropriated to the offices of religion. nourish those sullen) and gloomy cont
We may here cite the case of Rex v. Younger, (3 T. R. 449), in which the Court held, that the sta tute of Charles II did not prohibit a baker baking dinners for his customers on a Sunday; and Lord Kenyon, C. J., said, "I think we should construe it (the statute) equitably, so that it may answer the purposes of public convenience, taking care, at the same time, that Sunday should not be profaned. It was extremely wise to put a mark on that day; by observing it Christianity may be kept alive. I agree with Foster, J., that I am for an observation of the Sabbath, but not for a pharisaical observation of it. But must the laborious part of the community, who are entitled to some indulgence for the labours of the past week, fare harder on that than on any other day? They must be fed on that day; many of them have not the means of dressing their dinners at home, and those who have will, if this defendant be convicted, be pre
which the people were of themselves so unfortu-velling of fish carriages, whether laden or returning nately subject. The King imagined that it would empty*. be easy to infuse cheerfulness into this dark spirit of devotion. He issued a proclamation to allow and encourage, after divine service, all kinds of lawful games and exercises; and by his authority he endeavoured to give sanction to a practice which his subjects regarded as the utmost instance of profaneness and impiety." And he adds, in a note, "To shew how rigid the English, chiefly the Puritans, were become in this particular, a bill was introduced into the House of Commons, in the eighteenth of the King, for the more strict observance of the Sunday, which they affected to call the Sabbath.' One Shepherd opposed this bill, objected to the appellation of 'Sabbath' as puritanical, defended dancing by the example of David, and seems even to have justified sports on that day. For this profaneness he was expelled the House, by the suggestion of Mr. Pym. The House of Lords opposed so far this puritanical spirit of the Commons, that they proposed that the appellation of Sab-vented observing the Sabbath." bath' should be changed into that of the Lord's day.' In Shepherd's sentence his offence is said by the House to be great, exorbitant, and unparalleled." And after the death of James it was enacted, (by the stat. 1 Car. 1, c. 1), that there shall be no concourse of people, out of their own parishes, on the Lord's day, for any sport or pastimes, nor any bear-baiting, bull-baiting, interludes, common plays, or other unlawful exercises and pastimes used by any persons within their own parishes; the penalty being 3s. 4d. to the poor, or being set in the stocks for three hours.
This was followed by the 3 Car. 1, c. 1, prohibiting carriers from travelling and butchers from killing or selling victual on the Sunday+.
With the view of counteracting the sourness of the Puritans, Charles, in 1633, shortly after Prynne had been set in the pillory, renewed his father's edict for allowing sports on Sunday, adding thereto wakes and all manlike exercises, and ordered it to be read by the clergy after divine service. Many who were puritanically affected refused to do so, and were punished by suspension or deprivation. (6 Hume, 299).
By the 29 Car. 2, c. 7, no tradesman or other person shall exercise any worldly business of their ordinary callings upon the Lord's day, works of necessity and charity only excepted. (Sect. 1). But the act is not to extend to prohibit the dressing of meat in families, or dressing or selling meat in inns, cookshops, or victualling-houses for such as cannot otherwise be provided; nor to the crying and selling of milk before nine o'clock in the morning or after four o'clock in the afternoon. (Sect. 3). No drover, horsecourser, waggoner, butcher, or higgler, is to travel or come into his inn or lodging on that day. (Sect. 2); The prosecution for the penalty must be commenced within ten days after the offence committed, (sect. 4); and it has been decided that only one penalty can be recovered for any number of acts of trading by the same person on the same Sunday. The service of process on a Sunday (except in cases of treason, felony, and breach of the peace) is void. (Sect. 6). By the 10 & 11 Will. 3, c. 24, s. 14, this statute is not to prohibit the crying or selling of mackerel before or after divine service, nor (by 2 Geo. 3, c. 15, s. 7) the tra
History of England, vol. 6, pp. 91, 92; and at p. 211 he says that the Puritans sanctified the Sabbath by the most melancholy indolence; and that the different appellations of this festival, "Sunday" or "Sabbath," were at that time (1625) known symbols of the different parties.
† Selling meat on Sundays is no offence at common law. (Rex v. Brotherton, 2 Str. 702; see also Faulkner's case, 1 Saund. 249).
Crepps v. Durden, (Cowp. 640).
THE ETIQUETTE OF COLONIAL JUDICIAL
THE following petition to the Queen, very numerously signed, has been sent home from Van Diemen's Land, as a remonstrance against what the petitioners deem an infringement of the usual course of judicial appointments in the colonies:
"To Her Most Gracious Majesty Victoria, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith.
"The humble petition of the undersigned inhabitants of Van Diemen's Land,
"Sheweth-That your Majesty's petitioners cherish the warmest sentiments of loyalty and devotedness to your Majesty's most gracious person and government. "That a vacancy has recently occurred in the office of your Majesty's Chief Justice of this colony, in consequence of the resignation of Sir John Lewis Pedder on the ground of ill health.
"That your petitioners have learned, with feelings of disappointment and alarm, that Valentine Fleming, Esq., your Majesty's Attorney-General, has been appointed to the said vacant office of Chief Justice, to the exclusion of the superior claims of Mr. Justice Horne, the present puisne judge.
"That the said Mr. Justice Horne has held his office as puisne judge for a period of four years, during which time, by his skill and ability as a civil and criminal judge, as well as by his strict integrity and impartiality, he has secured the confidence and respect of your Majesty's subjects in this colony.
"That, considering the unimpeachable character of Mr. Justice Horne, your petitioners had no reason to believe that any other rule would be resorted to in
*The stat. 7 & 8 Geo. 4, c. lxxv, contains regulations relative to watermen plying and working on the Thames on a Sunday, and repeals so much of the 29 Car. 2, c. 7, as prevents travelling by water on a Sunday.
By the 1 & 2 Will. 4, c. 22, s. 27, hackney coachmen or chairmen may exercise their calling on a Sunday.
By the 1 & 2 Will. 4, c. 32, s. 3, killing game on a Sunday subjects the party to a penalty not exceeding 57. and costs. The 3 Will. 4, c. 19, ss. 26, 27, empowers the court of aldermen or two justices to regulate the route and conduct of persons driving stage-carriages, cattle, &c. during divine service.
The stats. 3 Geo. 4, c. 96, s. 16, and 6 & 7 Will. 4, c. 37. s. 14, relate to the baking of bread by bakers on Sundays. Beer-houses, after being subject to many mutations, are now regulated in this respect by the well-known statute, 17 & 18 Vict. c. 79.
filling up the vacancy now under consideration than that which has universally prevailed in the Australian colonies-that of quiet and undisputed succession in the order of precedence from the senior puisne judgeship to the Chief Justiceship.
"That the only ground upon which the exclusion of Mr. Justice Horne in favour of Mr. Fleming has been supported is the right which your Majesty's Attorney-General in England is understood to have to the first Chief Justiceship which happens to fall vacant during his tenure of office.
"That the practice in question has, your petitioners believe, been condemned, even as inapplicable to England, by the highest legal authority, as having a tendency to impair to some extent the impartiality of the Bench; but in these colonies, not only has the practice never been adopted, but the rule as to succession in the order of seniority has been twice solemnly recognised and acted upon as the only rule calculated to shut out all hope of rising to the highest judicial office by means of subserviency to the Executive.
The Court will sit at ten o'clock every day.
The causes in the list for each of the above sitting days in term, if not disposed of on those days, will be tried by adjournment on the days following each of such sitting days.
"That the first occasion upon which the rule of succession by seniority, and not by favour, was solemnly considered and affirmed, was upon the retirement of Sir Francis Forbes from the Chief Justiceship of your Majesty's colony of New South Wales. On that occasion the senior puisne judge was Mr. Justice Dowling, the junior puisne judge was Mr. Justice Burton. A claim was preferred by Mr. Justice Burton to the vacant Chief Justiceship, on the ground that he had held a commission in another colony-namely, the Cape of Good Hope-of date anterior to the commission Tuesday Tuesday of Mr. Justice Dowling; but it was then decided that the rule of seniority in New South Wales ought to prevail; and this decision was approved of by the Government of your Majesty's regal predecessor, his late Majesty King William IV.
Thursday........... Feb. 1 | Monday .......... Feb. 12 The Court will sit during and after term at ten o'clock. The causes in the list for each of the above sitting days in term, if not disposed of on those days, will be tried by adjournment on the days following each of such sitting days.
Exchequer of Pleas.
"That the next occasion on which the rule of seniority was acted upon was the death of the late Sir James Dowling, your Majesty's Chief Justice of New South Wales. Mr. Justice Stephen was then senior puisne judge, but the vacant office was claimed by your Majesty's Attorney-General, on the express ground of the English precedent. The question was decided in favour of the present Chief Justice, Sir Alfred Stephen, 2nd sitting, Monday. although Mr. W. Plunkett had long and faithfully served your Majesty in his said office of AttorneyGeneral; and your petitioners believe that the rule of succession by seniority is the one best calculated to secure the independence of the judges who in these colonies hold office during your Majesty's pleasure.
"That on the retirement of Mr. Justice Oliphant from the office of Chief Justice of your Majesty's colony of Ceylon, he was succeeded by the puisne judge, apparently as a matter of course, and not by your Majesty's Advocate-General, whose office is precisely similar to that of your Majesty's Attorney-General in this colony.
1st sitting, Friday
There will be no Sittings in
The Court will sit during and after term at ten o'clock. The Court will sit in Middlesex, at Nisi Prius, in term, by respective Middlesex Sittings are disposed of. adjournment from day to day, until the causes entered for the
COMMON-LAW CAUSE LISTS, HILARY
Court of Queen's Bench.
REMAINING UNDETERMINED AT THE END OF THE SIT-
"That to intrust to the governors of your Majesty's Australian colonies the power to interfere with the rule which has hitherto prevailed is subject to the strong constitutional objection of placing it in the power of an Executive, not responsible to the Legislature, to exalt one of its own members, on purely party considerations, Wilts-Kendall v. Wilkinson to an office which ought to be entirely above suspicion. "That whatever claims or qualifications Mr. Fleming may derive from the circumstance of his having held the office of your Majesty's Attorney-General in this colony belong in a far higher degree to Mr. Justice Horne, who held and faithfully discharged the office of Attorney-General for a considerable period, and has since as faithfully discharged the office of puisne judge. "That it may be presumed, that, in giving up the superior emoluments of the office of Attorney-General and a large private practice, Mr. Justice Horne looked forward with a reasonable degree of certainty to succeed
Midd.-Young v. White & ors.
Stand over till the case of Mitcherson v. Oliver (in error) is disposed of.
Stafford-Farley v. Danks
Norwich-Fyson & an. v.
Suffolk-Brown v. Shave
North'ton-Warren v. Ireson & an.
Reg. v. Botfield York-Sadler v. Henlock