2 Port. 530 | Ala. | 1835
This was an action of trespass on the case, brought by the defendants in error, who were plaintiffs below, against the present plaintiff. The only error assigned is, that the Court below sustained the demurrer of the defendants to the plea in abatement, filed by the plaintiff. The plea was, that the original writ issued on Sunday, as was apparent from its teste. The maxim of the Common Law “ Dies Dominicus non est juridicus,” as we learn from all the authorities, which we consult for its principles, expressly embraced and avoided every original process obnoxious to this objection.
There is no provision in our Constitution, or any enactment or our Legislature, which, by implication, or expressly, in the letter or spirit of it, abrogates this rule. The Declaration of Bights contains several clauses on the subject of religion; all of which have for their object, the preservation of the rights of conscience, and the security of the citizen from any violation of his civil rights, privileges, and capacities, by means of any religious testes, or ecclesiastical establishments. It is expressly said, no human authority ought in any case whatever, to control, or interfere with the rights of conscience. Now, if by express legislation, every original writ were declared void, which issued on Sunday; I could not say that such an act, was in violation of the letter, or spirit of the constitution. I -would rather incline to the opin
We do not hesitate to declare, that it is incompetent to the Judiciary, to abolish this rule of the Common Law. To decide that a writ issued on' Sunday, is valid, would be equivalent to saying, that the performance of the official duties of a large class of public functionaries, is as obligatory upon them, on this day, as on any other; for if the officer may do so, it might well be argued that he must) and we would by judicial decision, be imposing a duty upon him, contrary to the Common Law, which the Legislature have never, in this instance, thought proper to abolish.
We have a statute,
Let the judgment be reversed, and thé cause remanded.
20 Vin.Ab.62, 63, title Sunday-7 Comy, Dig. 399-3d Burr. 1598.-2 Dyer, 168.
Aik. Dig. 440