99 SWANN v. BROOME. * cular, they were protected by a canon of the church and an imperial edict, still extant in the Theodosian Code. And in England, LL. Edw. Conf. c. 3, established the Dies Pacis to be (inter al.) from three in the afternoon on Saturday till Monday morning. Stat. 51 Hen. 3, called Dies communes in banco, did not regulate the length of the Terms, but appointed, or perhaps confirmed, certain days for return of writs, generally at a week's distance from each other, and governed by some festival of the church. And while the Parliament was regulating these Returns by those solemn festivals, it is not to be supposed they would direct any secular business to be done on Sundays contrary to the law of the church, notwithstanding some return days are always on a Sunday. They so reverenced the canons, that no oaths could be administered in Lent or other holy times, without licence from the Bishop to the Judges: Rym. Foed. temp. Hen. 3, passim; Britton, c. 53: [ 529 ] till by statute West. 1, c. 51, assizes were allowed, by assent of all the prelates, to be taken in Lent, &c. at the special request of the King made to the Bishops, because it was charity to do right at all times, Which expression," at all times,' extends only to the Dies juridici, which the Lord's Day is not; 2 Inst. 264; Co. Litt. 135 a (d). Writs original were made nominally returnable on these days, as being more notorious, and no profanation could happen, since there were three subsequent days of grace; but (as Mr. Serjeant has observed) judicial writs, which have no days of grace, could not be returnable on Sundays, because a profanation would necessarily ensue. That the Courts never sate on these days of nominal return, when Sundays, appears from the Register, 19 a: When a tenant in a real action cast an essoign, a day was always given him to warrant that essoign. And the essoign being, in this case, servitium domini regis, and the day of the return in quindena Pasch. which is always on a Sunday, the King warranted the essoign by certifying, that the tenant was in his service, die lunæ in crastino xv. Pasch." Et dictum fuit die lunæ in "crastino quindenæ, quia, die Dominicá, quæ fuit quindena, placita non tenentur." Whenever therefore the essoign day of any return falls on a Sunday, the Court not only never sits in fact, but is not supposed to sit in law till the Monday following. Midsummer-day is certainly no day in Court; the Term is always adjourned by proclamation, from the 23d to the 25th June. It happened last Term to fall upon octab. Trin., which is always a Sunday, and a return day. Suppose the writ of summons had been then returnable, shall the judgment relate back to a day on which the Court confessedly cannot sit? It might as well relate back to the vacation. And as Sunday is a dies non, as well as Midsummer-day, the relation back is equally impossible. Whenever a return-day falls on a dies non, the essoign day and day of exceptions are consolidated. The dies non gives denomination to the return, but the business 66 (d) See Com. Dig. Temps. (C); 3 Bla. Comm. 277. SWANN v. BROOME. must be transacted the day after. Cro. Jac. 16, Monday is the day of tres Trin. *1 Bulstr. 35; Judgment given on the essoign day may be good, because it is intended the party appeared on [* 530] that day; (which cannot be intended on a day when the Court cannot sit). Cro. Car. 11, Monday is the first day of octab. Trin. and tres Trin. Davy and Salter, Salk. 627, 6 Mod. 250, by Powell, J.; in a writ of right (where the appearance must be on the first day) if the essoign day falls on a Sunday, Monday is the day of appearance, for Sunday never was, nor is, a juridical day. Et per Cur. Where the essoign day is on a Sunday, a judgment can only relate to the first juridical day, which is Monday. Lord MANSFIELD, C. J., delivered the opinion of the Court. Though a common recovery is in substance nothing more than a conveyance, yet it requires due ceremonies and solemnities, as much as a will of lands. It must be governed by analogy to the proceedings in a real suit. Want of regularity will therefore vitiate a recovery, as much as the want of a third witness will a will. If nothing appears on the record to the contrary, a judgment relates back to the essoign day of the Term: If it appears on the face of the record, that judgment could not be given on the essoign day of the Term, it relates back only to the essoign day of the return. And had this essoign been on a week day, the tenant being then living, the judgment must have been good (e). But it is objected, that being on a Sunday, and the tenant dying that day, the judgment is therefore bad. If no judicial act could be done, if the Court could not possibly sit on a Sunday, then the recovery is clearly wrong. The point therefore is only, whether by law a judgment can be given on a Sunday. No authority has been produced to shew that it may; but it is argued, that many judicial acts are done [ *531 ] on Sundays; that returns are made on that day; that the tenant in tail may voluntarily come in before the quarto die post, this being an amicable suit; that fairs, &c. were anciently held on Sundays, &c. But when the history of our Courts, and the alterations made in them by the canon and common law, are considered, there will remain no difficulty. Sir H. Spelman has shewn, that Christians, to distinguish themselves from Pagans, made no distinction of dies fasti and nefasti, and sate on Sundays as well as other days. But in 517, a canon was made against it: In 895, an imperial constitution to the same purport; and in 932, another. Solemn seasons were excepted from doing juridical acts by the laws of Edward the Confessor. The statute Westm. 1, c. 51, allowed assizes to be taken in Lent, and other laws allowed other things to be done in holy seasons. But Sundays have been always settled to be no juridical days; Mirror, c. 5; 2 Inst. 264; Finch's Law, c. 5; Dyer, 168. In Sir W. Jones, 156, held, that an information exhibited on a Sunday was good, but that a judgment could not be entered on that day (2). As for the argument (e) Shelley's Ca., 1 Rep. 93 b; Moore, 136. (z) See also Dr. Clea's Ca., Litt. R. 19. SWANN v. BROOME. of returns being fixed upon Sundays, those were formed before the canonical prohibition took place: And they were never altered by canon or otherwise, which only have prohibited the holding of pleas on that day. Writs, therefore, and their returns have continued in their original form and course, and the business is done on the Monday: F. N. B. 17, Old Edition; Year Book, 12 Ed. 4, fol. 8. The practice (relied on) of giving notices to appear, &c. on Sundays, is only because they must follow the writ; but that is known to signify only Monday. It is said that no statute has prohibited the Courts from sitting on Sundays: The reason is, because no Courts ever sate on that day. It is held, in Mackally's Case, 9 Co. 66b, that judicial acts cannot be done on Sundays, but ministerial may. It was said, that a mere legal relation will not violate the Sunday, the judgment being in fact given on another day. But you shall not, by any relation, presume what is an utter impossibility. It was said, that the recovery was actually complete in substance at the nominal day of the return. But forms are necessary to be maintained. It is no recovery, if the tenant dies before judgment (f); he has not properly executed his conveyance in due form of law. It is a hard case, and we have laboured in all methods to support this re- [*532 ] covery, but could not. Therefore, Judgment must be reversed (g). On a writ of error in Dom. Proc. the judgment of B. R. affirmed (h). (f) Cruise's Rec. 123. See ante, 498. (g) See Gibbons v. Stevenson, post, 1223; 2 Wms. Saund. 42 k; Bac. Abr. Fines & Recoveries (D), p. 243 (8vo. ed.); Vin. Abr. Entry (G 12); Recovery (P); (h) 6 Bro. P. C. p. 132, or p. 333 SITTINGS IN TERM.-26 NOVEMBER, 1764.-LONDON. FORBES, Executor, v. WALE. DEBT on bond, dated 20 March, 1732. Pleas: non est factum; solvit ad diem; and solvit post diem. The plaintiff insisted on reading the bond without any proof of the execution, being of so old a date (i). Objected for the defendant, that it (i) Bonds, deeds, and other writings, of thirty years standing, and coming from the proper custody, as bonds found among the papers of a public company, or of a deceased obligee, are said to prove themselves, and will be received in evidence without further proof; Chelsea Water Works v. Cowper, 1 Esp. 275, where Ld. Kenyon cited and recognized this case. So entries in a steward's book relating to a manor; Wynne v. Tyrwhitt, 4 B. & A. 376. So an ancient book of a former tithe collector'; Jones v. Waller, 2 Eagle & Y. Bond of thirty years standing cannot be read in evidence; if no payment of interest or other marks of au thenticity. FORRES v. WALE. could not be read till proved, there having been no payment of interest, or any other marks of authenticity; and that, if the length of the date was alone sufficient to establish it, a knave has nothing to do but to forge a bond with a very ancient date. Lord MANSFIELD, C. J., allowed the distinction, and directed the bond to be proved. Plaintiff proved, by two persons, that it was the defendant's hand, and that one of the subscribing witnesses was dead; but, being himself examined, acknowledged the other to be living. Whereupon he was nonsuited; but Lord MANSFIELD directed a new trial to be moved for, which, he said, should be at the costs of the defendant: But, on moving the Court the last day of Term, it was refused, because, by the nonsuit, the parties are out of Court (k). Morton pro querent. Blackstone pro def. N. B. The defence on the merits was, that the defendant had been absent from England above twenty years (7), knew nothing of the bond, but, if genuine, imagined it paid; the obligee being dead, but this bond found among his papers uncancelled, and without any interest ever paid thereon. See Lord Raym. 1370; Stra. 652, 826, 827. cases, the mere production of a parish cer- (k) S. P. Talbot v. Pyot, Pract. R. 411; Jesup, Id. 338; Rice v. Shute, post, 698. (1) Where there has not been any interest paid upon a bond given twenty years, or even less, as eighteen or nineteen years, before action brought, or any acknowledgment by the obligor of the existence of the debt during that period, the law in general will presume it to be satisfied; Oswald v. Legh, 1 T. R. 270; Colsell v. Budd, 1 Camp. 27; Willaame v. Gorges, Id. 217. But if the obligor has resided abroad during the twenty years, payment will not be presumed; Newman v. Newman, 1 Stark. 101. See Vin. Abr. Evidence (A. b. 56); Length of Time (A); Cooper v. Turner, 2 Stark. 497, and Stark. Ev. P. iv, p. 1090. [ 533 ] Parol notice to HILARY TERM,-5 GEO. III. 1764.-K. B. TIMMINS v. ROWLISON. S. C. 3 Burr. 1603. REPLEVIN. Defendant avows, for that, on 6th April, 1764, where it appeared, that the plaintiff held the premisses for one year, from 5th April, 1760, and so from year to year, as long as both parties pleased; that the demise was only by parol, and that the notice proved to be given by plaintiff to defendant to quit, 5th April, 1761, was only by parol likewise. Therefore quære,-1. Whether the plaintiff was liable to pay double rent for not quitting after giving a parol notice.-2. Whether, as plaintiff held under a parol demise as tenant from year to year, this is a holding under the statute 11 Geo. 2 (a), so as to subject the plaintiff to double rent for not quitting after notice. This was argued last Term by Stowe for plaintiff, and Ashhurst for the defendant; and now by Price for plaintiff, and Nares, Serjeant, for the defendant. TIMMINS ย. ROWLISON. *It was argued for the plaintiff, that this act must be con- [ 534 ] fined to leases, wherein an express power is reserved to determine the tenure by notice, and to notices in writing only; because the statute speaks of the time in such notice mentioned and contained, which words are not applicable to parol notices. For the defendant it was insisted, that, this being a remedial law, the words might be fairly extended to parol leases, which are the most common, and to parol notices; without which the clause would be nugatory, and affect only such tenants as were foolish enough to give written instead of parol notices. Lord MANSFIELD, C. J.-Statutes in pari materiâ are to be all taken as one system to suppress the mischief. The mischief is an act of vexation, inconvenience, and injustice, by the tenant after notice given by himself, after the landlord has another tenant ready, to stop short and say, "I won't quit." This is an universal sort of holding, and therefore this practice might be a very extensive evil. The Legislature, in 4 Geo. 2 (b), made a provision where the landlord gives notice; and afterwards, in 11 Geo. 2, this additional provision in case the notice comes from the tenant. The two laws are only parts of the same provision. This case is said not to be within the words, "where tenants have power to determine." Why so? There are two sorts of powers, one arising by special compact, which this is not; the other by construction of law, as in the present case of parol leases for a year. But, 2dly, it is said the notice must be in writing. Why? Does the act say so? No. But the act 4 Geo. 2, does. That is the strongest reason against it: It is here purposely omitted: The drawer of "that (a) C. 19, s. 18, which enacts, in case any tenant shall give notice of his intention to quit the premisses by him holden at a time mentioned in such notice, and shall not accordingly deliver up the possession thereof at the time in such notice contained; that then the said tenant, his executors and administrators, shall from thenceforward pay to the landlord double the rent or sum which he should otherwise have paid; to be levied, sued for and recovered, at the same times |