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notices have heretofore been made or given in the church or chapel of any parish or place, or at the door of any church or chapel, be affixed on or near to the doors of all the churches and chapels within such parish or place; and such notices when so affixed shall be in lieu of and as a substitution for the several proclamations and notices so heretofore given as aforesaid, and shall be good, valid, and effectual to all intents and purposes whatsoever.'

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vestries to be

Sect. 3. "No such notice of holding a vestry shall be affixed Notices for on the principal door of such church or chapel unless the same holding shall previously have been signed by a churchwarden of the signed as church or chapel, or by the rector, vicar, or curate of such parish, herein or by an overseer of the poor of such parish; but every such directed. notice so signed shall be affixed on or near to the principal door of such church or chapel."

Sect. 4. "No decree relating to a faculty, nor any other Decrees of decree, citation, or proceeding whatsoever in any ecclesiastical ecclesiastical court, shall be read or published in any church or chapel during not to be read or immediately after divine service."

Sect. 5. "Nothing in this act shall extend or be construed to extend to the publication of banns, nor to notice of the celebration of divine service or of sermons, nor to restrain the curate, in pursuance of the rules in the Book of Common Prayer, from declaring unto the people what holy-days or fasting days are in the week following to be observed, nor to restrain the minister from proclaiming or publishing what is prescribed by the rules of the Book of Common Prayer, or enjoined by the Queen or by the ordinary of the place."

courts, &c.

in churches.

Act not to extend to ecclesiastical. notices purely

Due observa

tion of the Lord's Day. Canon 13.

29 Car. 2, c. 7.

CHAPTER XII.

SUNDAYS, HOLIDAYS AND FASTS.

By Can. 13 of 1603, "All manner of persons within the Church of England shall from henceforth celebrate and keep the Lord's Day, commonly called Sunday, and other holy-days according to God's holy will and pleasure and the orders of the Church of England prescribed in that behalf; that is, in hearing the word of God read and taught; in private and public prayers; in acknowledging their offences to God, and amendment of the same; in reconciling themselves charitably to their neighbours, where displeasure hath been; in oftentimes receiving the communion of the body and blood of Christ; in visiting of the poor and sick; using all godly and sober conversation."

By 29 Car. 2, c. 7, s. 1, All persons "shall on every Lord's Day apply themselves to the observation of the same by exercising themselves thereon in the duties of piety and true religion, publicly and privately; and no tradesman, artificer, workman labourer or other person whatsoever shall do or exercise any worldly labour, business or work of their ordinary callings upon the Lord's Day or on any part thereof (works of necessity and charity only excepted), and every person being of the age of fourteen years and upwards offending in the premises shall for every such offence forfeit the sum of 5s." No person "shall publicly cry show forth or expose to sale any wares, merchandizes, fruit, herbs, goods or chattels whatsoever, upon the Lord's Day or any part thereof," on pain of forfeiting the same.

By sect. 2, "No drover horse-courser waggoner butcher higgler their, or any of their servants, shall travel or come unto his or their inn or lodging upon the Lord's Day or any part thereof," on pain of 20s. "No person or persons shall use employ or travel upon the Lord's Day with any boat wherry (a), lighter or barge (except it be upon extraordinary occasion to be allowed by some justice of the peace of the county, or head officer or some justice of peace of the city, borough or town corporate where the fact shall be committed)," on pain of 5s. If any person offending in any of the premises shall be thereof convicted before any justice of the peace of the county, or chief officer or justice of the peace of the city, borough or town corporate where the offence shall be committed, on view or confession

(a) But see 7 & 8 Geo. 4, c. lxxy, and now 22 & 23 Vict. c. cxxxiii, local acts for the River Thames.

or oath of one witness; the said justice or chief officer shall give warrant to the constables or churchwardens of the parish where the offence shall be committed, to seize the said goods cried, showed forth, or put to sale as aforesaid, and to sell the same, and to levy the said other forfeitures or penalties by distress and sale; and in default of such distress, or in case of insufficiency or inability of the said offender to pay the said forfeitures or penalties, then the party offending be set publicly in the stocks by the space of two hours. And all the forfeitures or penalties aforesaid shall be employed and converted to the use of the poor of the parish where the offence shall be committed, save only that such justice, mayor or other head officer may reward the informer out of the same, not exceeding the third part. The act, however, provides that nothing therein contained" shall extend to the prohibiting of dressing of meat in families, or of dressing or selling of meat in inns, cookshops or victualling houses, for such as otherwise cannot be provided; nor to the crying or selling of milk before nine of the clock in the morning or after four of the clock in the afternoon." Prosecution for the said offences is to be in ten days.

bakers.

On this act the following cases have occurred. Rex v. Cox Cases on this was a motion for an information against a justice of the peace, act as to for refusing to proceed upon an information against a baker, who baked puddings and pies, and other such things for dinner. The court were of opinion that this was not an offence within the act, it being a work of necessity and charity, and within the equity of the proviso relating to a cook's shop; and Foster, J., said it is better that one baker and his men should stay at home, than many families and servants (). Afterwards a baker was convicted, by four separate convictions, for selling hot loaves on the same Sunday. But the court said that there could be but one entire offence on the same day, and therefore only one penalty of 58. (e). And in 34 Geo. 3, a baker having been convicted on the statute for baking meat and pastry for his customers on a Sunday, Lord Kenyon, Chief Justice, said: "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? many of them have not the means of dressing their dinners at home. . . . That day will, I think, be better observed, if the construction put upon this law in Rex v. Cox be now adopted, than if we overrule that determination." And the conviction was quashed (d).

In Rex v. Whitnash (e), it was held that the statute 29 Car. 2, Contracts of c. 7, prohibits only the labour, business or work done in the course service.

of a man's ordinary calling. It does not apply to a contract of

(b) 2 Burr. p. 785.

(c) Crepps v. Durden, 2 Cowp.

p. 640.

(d) Rex v. Younger, 5 T. R.

p. 449.

(e) 1 M. & R. p. 452; S. C., 7 B. & C. p. 596.

Contracts of sale.

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hiring; therefore a contract for a year, made on a Sunday, between a farmer and a labourer, is valid, and service under such a contract confers a settlement.

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The real purport of the words "ordinary calling," is fully explained by Chief Justice Mansfield, in Drury v. Defontaine (f), which contains also a clear exposition of the common law on the observation of the Sunday. He said: "The bargaining for and selling horses on a Sunday is certainly a very indecent thing, and what no religious person would do. But we cannot discover that the law has gone so far as to say that every contract made on a Sunday shall be void, although under these penal statutes, if any man, in the exercise of his ordinary calling, should make a contract on the Sunday, that contract would be void. It appears that the horse was not sent to Hull for the purpose of private sale, but for the purpose of being sold by auction; for it may be gathered from the evidence that Hull keeps a repository for sale by auction. Therefore Hull did not sell this horse, properly speaking, as a horse dealer. It is said by Lord Coke, that the Christian religion is part of the common law, and such a sale certainly is directly contrary to the practice of those religious duties, which it was the purpose of the legislature to enforce, as expressed in the preamble of the statute 29 Car. 2, c. 7, that every person whatsoever shall on the 'Lord's Day apply themselves to the observation of the same, by exercising themselves thereon in the duties of piety and true religion publicly and privately;' which certainly is not likely to be done by those whose minds are engaged in making bargains and selling horses. Lord Coke (1) cites a Saxon law of King Ethelstan, the latter part of which is, Die autem dominica nemo mercaturam facito; id quod si quis egerit et ipsâ merce, et triginta præterea solidis mulctator; upon which Lord Coke observes, Here note, by the way, that no merchandising shall 'be on the Lord's Day.' But it does not appear that the common law ever considered those contracts as void which were made on a Sunday. In Comyns v. Boyer (h), the defendant pleaded a sale in open fair, but in stating the right to hold the fair, he did not except the case of the fair day falling on a Sunday, and it was urged that the plea was bad, because a fair held on that day would be illegal, as coming within the statute 27 Hen. 6, c. 5, of fairs and markets. The court determined that the holding a fair on that day would be illegal, but that the contract would not be void. The law is since changed, and if any act is forbidden under a penalty, a contract to do it is now held void. But though that case is not now law, it shows that there was nothing in the common law which would avoid a sale made on the Sunday; otherwise this mention of the statutes would not have been introduced. The 29 Car. 2, c. 4, is the only

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(f) 1 Taun. p. 135.
(g) 2 Inst. p. 220.

(h) Cro. Eliz. p. 485.

statute that can possibly apply here. It enacts, that'no person 'whatsoever shall do or exercise any worldly labour, business or work of their ordinary callings upon the Lord's Day.' To bring this case within the act, we must pronounce that either Drury or Hull worked within their ordinary callings on the Sunday. But the sale of horses by private contract was not Drury's ordinary calling, nor was it Hull's; his calling was that of a horse auctioneer, and he was not within his ordinary calling in selling this horse by private contract; and therefore, although it is to be lamented, the sale must be held good, and the rule discharged" (i).

No prosecu

with leave

By 34 & 35 Vict. c. 87, "The Sunday Observation Prosecu- 34 & 35 Vict. tion Act, 1871," which was to be in force only to the 1st of c. 87. September, 1872, sect. 1, "No prosecution or other proceedings tion on preshall be instituted against any person or the property of any ceding person for any offence committed by him under "29 Car. 2, c. 7," statute, but or for the recovery of any forfeiture or penalty for any such of certain offence, except by or with the consent in writing of the chief officer officers. of police of the police district in which the offence is committed, or with the consent in writing of two justices of the peace or a stipendiary magistrate having jurisdiction in the place where such offence is committed. No such prosecution shall be heard before the justices of the peace or stipendiary magistrate by whom or with whose consent the same has been instituted." The terms "police districts" and "chief officers of police" are thus defined by sect. 2 and the schedule.

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This act has since been annually continued.

By 2 Geo. 3, c. 15, s. 7, "Fish carriages (for the supply Fish chiefly of the markets within London and Westminster) shall carriages. be allowed to pass on Sundays or holidays whether laden or returning empty."

(i) See also the cases of Sandiman v. Breach, 7 B. & C. p. 96; 9 D. & R. p. 796; Fennell v. Ridler, 5 B. & C. p. 406; 8 D. & R. p. 204;

Bloxsome v. Williams, 3 B. & C.
p. 232; 5 D. & R. p. 82; Smith v.
Sparrow, 12 Mo. p. 272; 4 Bing.
p. 86.

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