The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-08-14

Interesting Decision Of Lord
Mansfield.
Collection Of Police Orders on the Subject Of
Sunday Observance,
THE OBSERVANCE OF SUNDAY IN THE
OLDEN TINE.

Now that the Sunday question DO deservediy occupy
ing the attention Of the whole community the following
case which take nom the reports Of Blackstone and Of
Burrows with the legal opinions Of counsel and Of the
celebrated Lord Mansfield, will be read with interest Al
though in point of mere law the Judge was compelled
the decision 70 the sitting Of court on Sun
days. the arguments Of counsel and the experience
Lord Mansfield himself clearly allowed that in earlier
times such exclusive sanctty was ever given TO Sun
day ~ has been since assumed for IL by the
white crRvat fraternity In addition 70 the
authorities which have from time TO time 90
peared in our columns the opinion Of sach eminent
urst and Christian as Lord Mansfield must come with
very great weight We have given the case almos.
merchandising the Latin OF the old Law into the
veTnAcuar for the benefit Of such Of readers a.
unlearned in that tongue-as forms brief history o.:
the principal steps IN the progress Of legislative ensc
ments in relation TO Sunday whereby that day gradually
acquired that measure Of sancty which properly belongs
TO it, and clearly pointing what that really e
SWAN vs.. BROoME.-s c. Burr, ,5s5 Error from the
common Pleas On common recovery, IN which r1omas
Boone was defendant, George Green the tenant, and
EDWARD s van he elder and Edward Swan The younger
we're vlucbed aud vou,hed the common voachee.
rbe writ Of entry Was returnabe crds. Pur on which
day the writ OF summons ~ tested and made return
able 10 month OF Easter The assigned the
return OF the writ OF summons was Sunday the 18th
Of May, on which day s entered the roll that
souches came, &c whereas, in FACT that day Edward
II
Walker, for the defendant in error argued tina. the
judgment gwen during the life of Eaward SSau for
email relate back to tie first or essogn day Of the
term a. Every term has several returns Eaca retrn
divided into several remarkable dsys:-l rne essoen
DAY The day OF xceptions g. Toe return day. L. The
qa,to die pat appearance day); the dies amo dag
Of grace 10 Stanford Cooper, Gro Car, lG2 statute
wss acknowledged 22d January a Judgment entered
The ?3a Desernped that the Judgment related back TO
the statute Dyer 36l release on 2lst January shall
not atop the taxing an inquest on the 2si by plea puts
darrein connaane for the continuance, which the in
quees Is By relation TAKEN the ess0gr day. January
70. tlli'. Rep 1850 the eesoign day Is the re
turn Of the srit Il Bast 35) judgment in fun term
shall have relation to the eesogn cav (Stra $780, Fuller
and Jocey The party died 18Th April judgment signed
ihe I'D shall bsve relation the l5th which was the
fret day Of term ard be vail The statute OF fraud has
resiec only 10 purchasers and s efore conclusive
toat in other cse judgments sha still relate TO the frat
or essogn day OF tee term secoodiy-u the term must
nabe IN one month of Exeter e the judgment mus.
relate 70 the essosu asY Of that return, viz 18Th May
or whcih day Edward SFan vas living.
Objection Juegmen, shall be intended to be given
III the l6'h o. Esy the Qudsto die past, IL being jddg-
nent BY default, according to the distinction in /
AnsNr Narpears by the recorl ths. Ed ward Swan was
present in or on the return dsy therefore it judg
mert by default - bis appearance
Objtcon The ret,t :. day is Sunday, therefore il
cannot be intcded that j0dgn, D1s gip tia! day, out at
soonest On the Monday folloioing:
An.usr Sundays hsSe been differently considered D. n dif
Hen: C. s Ed &C. 81; Co. Lit 1856, a. sta.
and Ed. 9 c. 3; Eiiz. c. Car. l G
sunday are GOOD Gro fz 49, oomySs and i1 s,yer IN
TIE present year, l764 on. Of seuente general ret days
Be So IN ali cases, uness prohibited, Sunday is g,od tgsi
day. Gro. JAG. SO; the term was adjourned Sunday.
Dysr lSa entry Of an s,sogn shall be on the Sunday
rs g. confined only 10 serving writs executing
judgments Sundays, and the prohibon PROBES ,cha, the
Nichols, Common Pleas, BMnes, 2o7, ct CTS hi ctts
(srd cases there ced) Thus far upon tschuics |
reasons but we consider their enlarged
and sensible construction the mode OF conveyance
tenant in TAIL who in bis lifetime had completed every
material act the present case VIII DO entitled TO favor
and the court will avail themselves OF technical nicetes
subssn,iate this mole OF conveyance
Eewn Sergeant, for the plaintiff In error argued frst
That when the writ OF Issues the party cannot
be intended TO appear either in person by attorney
till the day Of the return Il, Leon s6) Second That
there can be no Judgment but on the appearance
Of the writ of summons For the noauswerng the writ
of summons breach Of the feodel duty, and the
lord hereupon might eeiz the lands and give them TO the
demandant who became his tenant ana thereupon the
writ of grand cape founded See Tor the process de-
Actions, 4s, A, c. H. 3D. That uojudgment be in
tended TO be given the day Of the return Which
lie Sunday and therefore dies nm; but the morrow,
S Sss 10 Support Wsoh @ he csd oa
1876; Sak, &C., Mod, $50, Davy and Saer, &c Plowd,
2C5, a. ptOclama.ions Of ane on Sunday are ill., be-
Ventr, ~ original tested Sunday is bad e Saund
29) court heet cannot be held on Sunday, &c, &c.
u
Walker, IN reply allowed thst judicial writs must be
returnable such day within the term the Court
upon because the Court did not usually sit on every
day, but appointed certain special days for the
parties to appear and answer Wherefore II Judicial
wrts are tested or returnabe on Sunday they are
sf original wrs the Court being always supposed to Sit
on the general return day which distinguishes them from
the by acts Of the Court, such as proclamation Of
LoRp Mansfield, CHIEF JupGE-Whep tie terms were
first framed, and 60 many return daye were made
Sundays can IL supposed that ths Court did not then
sit on Sanday? myself hay: safe in Pd'isanssn. on
Sur du In Venice thy sit Sundays 10 administer
justice The Rca SITS on Sundays.
This again argued by Gym, Sergeant for the
defendant in error, who alleged
lit That days Of appearance Of two softe ,ompuso
ry and voluntary and that all smcable proceedings have
relation TO the latter only, &c &c.
ID That the essoen day betr Sunday makes no diff
ference. cha. business formerly transacted Sa1
day may be inferred from the number Of reforms caiM
are xd en- SendGys. Tnst Sunday s Still supposed the
technical day, though in later time no business has been
thereon Several things are permitted by law TO be
done sunday Gro Car 4ee the court was adjourned
to Sunday and II was sad the court will nse on Sun.
days for the purpose of government. If county be
adjourned TO Sunday and election Of Knights Of the shire
be necessary in the meantme they shall proceed 70 scti
a Sunday. Notices TO appear are always made
Sunday, II that be the eseoigu day If the Monday
10 inserted in s stead the notice has been held bad Ju
dcs wr.s made returnable Sunday are bad because
there is day Of grace Dyer, 3D. But upon original
wrs the return made on Sundays because tue tenant
day. 80 .
Blackstone for the plaintiff IN error admitted that there
was no fraction OF a day, and Il any ludgmanIs,
could have been given on q Sunday, ~ woul1
be sufficient IL Swami was alive on any part OF
it. IN support of his argument he quoted Speiman toi
the terme) 10 show that formerly all the year was one
continual term till the Church nterposed and eXempsei
certain holy from proclamation which occasloned
the several vacations Certain festivals Ard all Sundays
were likewise exempted. As 10 Sundays In particular
they were protected by canon Of the Church and an i'm
peria edci eth extant in the Theodosan Code Ana IN
England, IL Edw Conf 8, established the Dies PGcs
be from three in the afternoon Oh Saturday I'LL Monday
morning. Stat 81 Hen 8, called Dies conunes IN o1no,
did not regulate the length of the terms but appoated
perhaps confirmed certain days for return Oh wrs
Toe learned counsel continued ut length With similar H
gumenis,
Lord MANSFIELD delivered the resolution Of the
Court That the recovery was bad, because no Judge
mert could be supposed 70 be given before the death Of
The sensrt in tail That this judgment could not reae to
the first day Of the term, because IL could not be given
before the retn Of the writ Of gum nons which appears
by the record 10 be in the term That could relate
@ The writ Of summons nd tearrantisaadaa
should De tested within onr days inclusive from the return q
Ihe writ OF ent.y(ps0cipe quod rdO Barnar5 VI WOOD
20l Cruise8 U9; and the writ OF SUM-