Matthews v. Ansley

31 Ala. 20 | Ala. | 1857

STONE, J.

— By the provisions of our territorial statute of 1803, (Clay’s Digest, 593,) service of process on Sunday was, in very comprehensive terms, prohibited. In Cotton v. Huey & Co., 4 Ala. 56, this statute was construed by this court; and it was there held, that the process of attachment was embraced in its provisions.

“ This provision of the act of 1803 is not incorporated into the Code, and we have found no provision of similar import. The only sections which seems to be designed to prohibit worldly employment on the Christian Sabbath, are those numbered 1571, 3302, and 3303. These sections do not bear on the question under consideration.

The doctrine, that English statutes, enacted before the settlement of this country by our ancestors, are part and parcel of the common law, cannot, in any way, affect this question. The earliest statute on this subject was during the reign of Charles II, subsequent to the settlement of this country; and, under the above rule, it exerts no binding force on us. — See Carter v. Balfour, 19 Ala. 829.

Ve must, then, resort to the common law, for the rules which must settle the questions raised on this record. It is laid down in books of the highest authority, that, at common law, the Christian Sabbath washes non juridicus ; and that no judicial proceeding could be had on that day. It was declared, with equal clearness, that acts purely ministerial might legally be performed on that day. — Mackally’s case, 9 Rep. 66; S. C., Cro. Jac. 279 ; Wilson v. Tucker, 1 Salk. 78; Drury v. DeFontaine, 1 Taunton, 135; Lyon v. Strong, 6 Vermont, 219 ; Story v. Elliott, 8 Cowen, 27. See, also, Shippey v. Eastwood, 9 Ala. 198 ; Hooper v. Edwards, 18 Ala. 280; Sayles v. Smith, 12 Wend. 57.

The service of the process of attachment is a purely ministerial act; and not being within the provisions of any section of the Code, it follows, that no valid objection can be urged to its execution on the Sabbath day. The •issue of the attachment was in its nature judicial. It was not one of the functions of the clerk of the court, as clerk; — but was a power conferred on him by the statute. Attachments issued by him wore not necessarily returnable to the court of which he- was clerk. Ilence, in the issue of the attachment in this case, the clerk cannot, with any propriety, be called the ministerial officer of the court. — Ex parte Gist, 26 Ala. 156 ; Stevenson v. O’Hara, 27 Ala. 362; Matthews, Finley & Co. v. Sands & Co., 29 Ala. 136.

It results from the above well-ascertained principles of law, that the issue of the attachment on Sunday was irregular ; and, if that fact had appeared on its face, the circuit court would have been fully justified in quashing it. It equally results, that the clerk, not being as to this service the ministerial officer of the court, was not under his control and direction. The case stands precisely as if some other officer, having no connection with the court, had issued the process. In the case last supposed, no one would contend that the court would have had power to order the officer to change the date of the attachment.

Without intending to decide that the defendant in this case was without remedy, we are satisfied the defect could not be taken advantage of in the mode adopted.

The result of this opinion must be, to permit many acts, secular in their purposes, to be done on . the Christian Sabbath ; acts, repugnant to the moral and religious sentiments of the public. We have no power to administer the corrective.

The judgment of the circuit court is reversed, and the cause remanded.