PART II.

STATUTE LAW.

CHAPTER I.

SUNDAY OBSERVANCE.

THE 29 Charles II. c. 7 (1676) (an Act for the better observation of the Lord's Day, commonly called Sunday), is the only statute on this subject to which it is necessary to refer. Section 1 declares ::

"That 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 any part thereof (works of necessity and charity only excepted); and that every person being of the age of fourteen years or upwards offending in the premises, shall for every such offence forfeit the sum of five shillings; and that no person or persons whatsoever shall publicly cry, show forth, or expose to sale any wares, merchandises, fruits, herbs, goods or chattels whatsoever upon the Lord's Day, or any part thereof, upon pain that every person so offending shall forfeit the same goods so cried or showed forth or exposed to sale."

The penalties under this Act are rarely applied (a). But it is occasionally essential to know whether contracts made on Sunday are illegal. The Courts have attached important limitations to the scope of the statute. The words "other person whatsoever" have not been read literally. Thus in Sandiman v. Breach (b), it was held that they did

(a) See 34 & 35 Vict. c. 87, continued by 42 & 43 Vict. c. 67, restricting proceedings under 29 Chas. II. c. 7.

(b) (1827), 7 B. & C. 96, 9 D. & R. 976 (The Act does not include contracts to carry passengers by coach on a Sunday; consequently action lies against owner

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not include the owner and driver of a stage-coach, on the general principle of construction, that where general words follow particular words they are to be read as applicable to persons or things ejusdem generis. When an attempt was made to bring within the Act farmers who employ labourers on a Sunday, the Court of Queen's Bench (c) decided that a farmer who employed labourers to cart hay, although he himself worked, was not liable to the penalties of the Act. The strange result follows, that an agricultural labourer who works on Sunday may be punished, while the farmer who employed him, and who perhaps took part in the work, cannot be punished.

The Courts have also limited the application of the statute to cases in which contracts are made" in the course of the ordinary calling." This was the construction adopted in Drury v. Defontaine (d). There the question was, whether a sale of a horse on a Sunday, not in the course of the ordinary calling of the vendor, was void so as to disable him from recovering the price. The Court decided that it was not void. Though questioned by Park, J., in Smith v. Sparrow (e), this construction of the statute is now settled. Accordingly, a contract of hiring for a year made between a farmer and a labourer is not affected by the statute, hiring not being, it was said, one of those things which the ordinary duties of a farmer require him to perform (f). Such also was the view of the Court of Exchequer with respect to an agreement by an attorney, whereby he agreed to become personally liable in respect of a debt owing by a client (g). On the other

of stage-coach for refusing to take plaintiff as a passenger on Sunday). See, on the other hand, Ex parte Middleton (1824), 3 B. & C. 164, 4 D. & R. 824, where a driver of a van was held to be under 3 Car. I. c. 4.

(c) R. v. Silvester (1864), 33 L. J. M. C. 79; 10 Jur. N. S.; 12 W. R. 375; 9 L. T. N. S. 682; 4 B. & S. 927; "other persons then must mean other persons not quite a tradesman, labourer, &c.," Blackburn, J.

(d) (1808), 1 Taunt. 131. See

also Triggs v. Lester (1866), L. R. 1 Q. B. 259; 14 W. R. 279; 13 L. T. N. S. 701.

(e) (1827), 4 Bing. 84; 2 C. & P. 544; 12 Moore, 266 (action will not lie upon a contract made and completed on a Sunday).

(f) Rex v. Whitnash (1827), 7 B. & C. 596; 1 M. & R. 452.

(g) Peate v. Dicken (1834), 1 C. M. & R. 422; 5 Tyrw. 116; Norton v. Powell (1842), 4 M. & G. 42 (the giving by one tradesman to another

hand, a horsedealer cannot maintain an action upon a contract, even if made privately, for the sale and warranty of a horse, provided it were entered into on a Sunday (h).

Only one penalty can be incurred in the course of a day (i).

In some American cases it has been held that if a master forces a servant to labour on a Sunday it is a good cause for leaving the service (k). This would appear to be the case here also. In a Scotch case (1), the House of Lords laid it down that an apprentice to a barber, who was bound not to absent himself from his master's business on holidays or weekdays, late hours or early, without leave, and who went away on Sundays without leave, and without shaving his master's customers, could not be lawfully required to attend his master's shop on Sundays; the ground of the decision was that shaving was not a work of necessity or mercy.

tradesman of a guarantee for the faithful services of a traveller is not an act done in his ordinary calling).

(h) Fennell v. Ridler (1826), 5 B. & C. 406; 8 D. & R. 204. See also as to "ordinary calling," Wolton v. Gavin (1850), 16 Q. B. 48 (enlistment of a soldier by a recruiting officer not within the Act, and not invalid by reason of taking place on a Sunday); Scarfe v. Morgan (1838), 4 M. & W. 270 (sending a mare to a farmer to be covered by a stallion not within farmer's ordinary calling); Blozsome v. Williams (1824), 3 B. & C. 232; 5 D. & R. 82 (A. not knowing that B. was a horse-dealer, made a verbal bargain with him on a Sunday for purchase of a horse; assuming the contract to be void, the purchaser was ignorant of the fact that the vendor was exercising his ordinary calling on the Sunday,

the former was therefore entitled to recover the price for breach of warranty).

(i) Crepps v. Durden (1770), 2 Cowp. 640.

(k) Coin v. St. Germon Brown, Penn. 24, and Warner v. Smith, Con. 14.

(1) Phillips V. Innes (1837), 4 C. & F. 234. See, however, Wilson v. Simson (Sc.), 11 July, 1844, where the Court of Session held that a farmer was justified in dismissing without notice a farm labourer, who, when requested by the farmer to remain at home to attend the cattle, which were ill, in order that the other servants might go to church, refused so to do. For a review of the English and American cases, see Benjamin on Sale, 2nd edition, 442. See also the Factory Act of 1878, sec. 21 and 51.

CHAPTER II.

THE EMBEZZLEMENT ACTS.

IN consequence of defects in the Common Law with respect to larceny or embezzlement by servants, the Legislature passed, especially before the introduction of the factory system, a number of Acts for the purpose of preventing the embezzlement of materials and tools, and the selling and buying of such embezzled materials, &c. These Acts are now of comparatively small consequence. Their chief provisions are here set out.

1 ANNE, c. 22 (1702).

"An Act for the more effectual preventing the abuses and frauds of persons employed in the working up the woollen, linen, fustian, cotton and iron manufactures of this kingdom."

Section 1.-"If any person or persons employed in the working up the woollen, linen, fustian, cotton or iron manufactures within this kingdom shall imbezzil or purloyn any wefts, thrums, or ends of yarn or any other materials of wool, hemp, flax, cotton, or iron, with which he, she or they, is or shall be entrusted to work upon, or shall reel short or false yarn," he "shall forfeit double the value of the damage done for the use of the poor of the said parish, &c."

Section 2.-"Every person or persons buying or receiving any wefts, thrums or ends of yarn, or any other materials of wool, hemp, flax, cotton or iron, and being thereof lawfully convicted in manner as aforesaid, shall suffer the like penalties and forfeitures as one convicted pursuant to this Act for purloining and embezzling of the said materials."

Section 4.-" All wages, demands, frauds and defaults of labourers in the woollen, linen, fustian, cotton and iron manufactures, for or concerning any work done in the same manufactures, shall and may be heard and determined by any two justices of the peace of the county, riding, division, city or town corporate where the matter in controversie ariseth, &c."

This statute-Chapter 18 in most editions of the Statutes-was made perpetual by 9 Anne, c. 30. It was repealed in part by 58 Geo. III. c. 51; 1 & 2 Will. IV. c. 36, ss. 1 & 2; extended to leather by 13 Geo. II. c. 8; repealed as regards England in case of woollen, linen, cotton, flax, mohair, and silk manufactures, by 6 & 7 Vict. c. 40, s. 1; and last section repealed by Statute Law Revision Act, 1867. As to sec. 4, see Employers and Workmen Act of 1875.

9 GEO. I. c. 27 (1722-23).

"An Act for preventing journeymen shoemakers selling, exchanging, or pawning boots, shoes, slippers, cut leather, or other materials for making boots, shoes for slippers, and for better regulating the said journeymen."

By section 3, justices may issue warrants, &c., to search for leather, &c., purloined, and may cause goods to be restored to owners. Section 4 is repealed by 38 & 39 Vict. c. 86, s. 17.

12 GEO. I. c. 34 (1725).

"An Act to prevent unlawful combination of workmen employed in the woollen manufactures, and for the better payment of their wages."

Part of the Act is repealed by 6 Geo. IV. c. 129, s. 2.

Conspiracy and Protection of Property Act, 1875, sec. 17, sub-sec. 13, repeals so much of section 2 as relates to departing from service, and quitting or returning work before it is finished. Section 2 also enacts, that "if any; wool-comber, weaver, servant, or person hired, retained, or employed in the art or mystery of a wool-comber or weaver, shall wilfully damnify, spoil or destroy (without the consent of the owner), any of the goods, wares, or work committed to his care or charge, or wherewith he shall be intrusted," he shall pay double the value.

Section 3 is repealed, so far as it regulates or relates to the payment of wages in goods, or by way of truck, by 1 & 2 Will. IV. c. 36, ss. 1 & 2.

See also 22 Geo. II. c. 27; 22 Geo. III. c. 40, s. 4; 58 Geo. III. c. 51, s. 2; 9 Geo. IV. c. 31, s. 1; 6 & 7 Vict. c. 40, s. 1; Statute Law Revision Act, 1867.