Frost v. Hull

| Superior Court of New Hampshire | Sep 15, 1827

The opinion of the court was delivered by

Richabdson, C. J.

The question tobe decided is, whether the circumstance in this case, that the seizure was upon the sabbath, has made1 the defendant a trespasser ?

We shall in the first place consider whether the seizure on that day was legal. This depends upon the statute of December 24, 1799, entitled “ an act for the better observation of the Lord’s day,” &e. which enacts “ that no tradesman, artificer, or any other person whatsoever, shall do or exercise any labor, business or work of their secular callings, works of necessity and mercy only excepted, nor use any game, play, or recreation, on the first day of the week, commonly called the Lord’s day, or any part thereof, upon pain that every person so offending shall forfeit a sum not exceeding six dollars nor. less than one.”

The provincial act of the 12 William III. enacted “ that no tradesman, artificer, or other person whatsoever, shall upon the land or water do or exercise any labour, business, or work of their ordinary calling” on the Lord’s day. This seems to have been a copy of the English statute of the 29 Car. II. upon which it has been decided that a sale of goods made on Sunday, which is not made in the exercise of the ordinary calling of the vendor is not illegal. 1 Taunt. 131, Drury v. Defontaine.

It will be perceived, that our present statute omits the word “ ordinary,” and substitutes the word “ secular,” so that any work, labour, or business relating to secular concerns, works of necessity and mercy excepted, seem to be within the prohibitions of the statute. And it is believed that the statute has been so understood always by the community in general, and we cannot doubt that this was the intention of the legislature. We are inclined to think that if our forefathers had supposed that the word “ ordinary” in the statute of 29 Car. II. had the force and effect which it has been decided in England to have, they would not have copied it into our provincial act.

But that the seizure of swine, found at large in violation of law, by a hogreeve, is work or business belonging to a secular calling within the meaning of the statute, is quite too clear to admit a doubt. And we think it equally clear, that it is not a work of necessity or mercy. We have, therefore, no hesitation in pronouncing the seizure illegal.

It remains only to enquire whether such illegal seizure of the swine has made the defendant a trespasser.

In Delamater v. Miller, 1 Cowen, 75, it was held that a demand made on Sunday was void.

In Pierce v. Atwood, 13 Mass. Rep. 324, it was decided that an arrest made on the Lord’s day was illegal, and the officer making it a trespasser.

In The King v. Myers, 1 D. & E. 265, one who had been illegally arrested upon Sunday was discharged out of custody.

In Fennell v. Ridler, 5 B. & C. 406, it was held that a horse dealer could not maintain an action upon a contract for the sale and warranty of a horse made by him on Sunday.

And it has long been settled that no judicial act can be done oh Sunday. 3 Burr. 1595, Swann v. Broome; 9 Coke 66; 1 Bl. Rep. 526; Cro. Jac. 496.

And we are clearly of opinion that the act of seizure, in this case, being a violation of law, the defendant must be considered as a trespasser, and that the plaintiff is entitled to judgment.