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Just published, in 12mo., price 10s. 6d. boards. ** "A manual especially adapted to the exigencies of a solicitor's practice."-Jurist, No. 465. Stevens & Norton, 26, Bell-yard, Lincoln's-inn. REDEMPTION of MORTGAGES and LOANS. Provision made for this purpose by the LAW PROPERTY and LIFE ASSURANCE SOCIETY, 30, Essex-street, Strand, London. Particulars sent free on application to EDWARD S. BARNES, Secretary. BOOKKEEPING FOR SOLICITORS.-KAIN'S SYSTEM.-The beginning of a new year being an appropriate time to commence a better system of bookkeeping, when the one in use may not be satisfactory, Mr. G. J. KAIN begs to submit a few testimonials in favour of his system, which enables a practitioner to strike a balance at any moment, shewing THREE RESULTS, viz. Cash Balance, Book Debts, and Profits, as far as the Costs are made out, a change of cash-book only being all that is necessary to effect this. 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Lewis Loyd, jun., Esq. Stewart Marjoribanks, Esq. John Martin, Esq., M. P. Rowland Mitchell, Esq. James Morris, Esq. Henry Norman, Esq. Henry R. Reynolds, Esq. John Thornton, Esq. James Tulloch, Esq. AUDITORS. Henry Sykes Thornton, Esq. John Henry Smith, Esq. George Keys, Esq., Secretary.-Griffith Davies, Esq., F. R.S., Actuary. 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. The next Division of Profits will be declared in June, 1855, when all Participating Policies which shall have subsisted at least one year at Christmas, 1854, will be allowed to share in the Profits. 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%. FOREIGN RISKS.-The Extra Premiums required for the East and West Indies, the British Colonies, and the northern parts of the United States of America, have been materially reduced. INVALID LIVES.-Persons who are not in such sound health as would enable them to Insure their Lives at the Tabular Premiums, may have their Lives Insured at extra Premiums. LOANS granted on Life Policies to the extent of their values, provided such Policies shall have been effected a sufficient time to have attained in each case a value not under 501. ASSIGNMENTS OF POLICIES-Written Notices of, received and registered. Medical fees paid by the Company, and no charge will be made for Policy Stamps. Notice is hereby given,―That Fire Policies which expire at Christmas must be renewed within fifteen days at this Office, or with Mr. SAMS, No. 1, St. James's-street. (corner of Pall-mall); or with the Company's Agents throughout the Kingdom; otherwise they become void. Printed by HENRY HANSARD, at his Printing Office, in Parker Street, in the Parish of St. Giles-in-the-Fields, in the County of Middlesex; and Published at No. 3, CHANCERY LANE, in the Parish of St. Dunstan in the West, in the City of London, by HENRY SWEET, residing at No. 34, Porchester Terrace, Bayswater, in the County of Middlesex.-Saturday, December 30, 1854. The Jurist No. 939-VOL. XVIII. JANUARY 6, 1855. PRICE 1S. 6d. NAMES OF THE CASES REPORTED IN THIS NUMBER. VICE-CHANCELLOR STUART'S COURT. 1111 Powdrell v. Jones.-(Copyholds, Form of Surrender O'Toole v. Browne.-(7 Will. 4 & 1 Vict. c. 26, LONDON, JANUARY 6, 1855. 1112 1113 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 except†). 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)). VOL. XVIII. Ꮓ Ꮓ ............ 1115 -Application of Funds-Payment of Interest— Repair 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) ... .... 1116 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. Brown v. Brown.-(Administration-Widow-Separation-Practice).. ........ Whiting v. Deal.-(Will-Subscribing Witnesses— Names written by Deceased).... 1119 1121 1122 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, whie's other nations and ages are partly dedicated worship, partly to mirth and society, appropriated to the offices of religion, nourish those sullen] and gloomy cont which the people were of themselves so unfortu- velling of fish carriages, whether laden or returning We may here cite the case of Rex v. Younger, (5 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 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 impar tiality, he has secured the confidence and respect of your Majesty's subjects in this colony. 66 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. to the office of Chief Justice; and it is precisely that Court Papers. COMMON-LAW SITTINGS, IN AND AFTER MIDDLESEX. "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 3rd sitting.. Friday. 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. "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 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. 1st sitting.. Friday.. Jan. 12 26 For undefended causes only. Thursday..... LONDON. 1st sitting, Wednesd., Jan. 17 2nd sitting, Wednesday .. 24 After Term. .......... Feb. 12 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. Tuesday Thursday Court of Common Pleas. In Term. 23 Friday After Term. ..... Feb. 1 | Monday LONDON. Jan. 19 26 .... Feb. 12 "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, 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 adjournment from day to day, until the causes entered for the ..... 22 The Court will sit during and after term at ten o'clock. respective Middlesex Sittings are disposed of. COMMON-LAW CAUSE LISTS, HILARY Court of Queen's Bench. NEW TRIALS REMAINING UNDETERMINED AT THE END OF THE SIT- Glo'ster-Roberts & Wife v. FOR ARGUMENT. Lond.-Nicoll v. Oliver "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 } MICH. TERM, 1854. of Powis Stafford-Farley v. Danks Stand over till the case of Mit- Norwich-Fyson & an. v. Suffolk-Brown v. Shave North'ton-Warren v. Ireson & an. Reg. v. Botfield York-Sadler v. Henlock |