TUESDAY, DECEMBER 3, 1844. Rea v. Bowler and others.

New Zealand Spectator and Cook's Strait Guardian, Volume I, Issue 10, 14 December 1844, Page 3

TUESDAY, DECEMBER 3, 1844. Rea v. Bowler and others.

This was a motion to set aside an award on the ground that acts were directed to be done on Sunday, which would be illegal if done on that day, and also on the ground oi" uncertainty. The action was brought at the last sittings of the Supreme Court to recover £674, for goods sold and delivered. It was tried before a Special Jury, but difficulties arising as to what evidence could be given under the plea, | the learned Judge suggested a reference, and ! a verdict was taken for the amount claimed, [ subject to a reference to reduce the damages. Subsequently Mr. Ross obtained a rule to set aside the award, and it was argued this da} by Mr. Hanson, for the plaintiff; and Mr. Ross *'or the defendants. Mr. Hanson in opposing '.he Rule contended that, in all cases where the time for doing something expires on a Sunday, the law provides that it shall be done either the day before or the day after. A bill of exchange falling due on a Sunday is, by the custom of merchants, payable on a Saturday. A rule of Court expiring on a Sunday is heard on the day following. So also a rule for time to plead, where the time expires on a Sunday, the defendant is in time if he plead on Monday. In ihis ca^e the time expires on the Sunday, and the obligation remains and it must be performed on Monday. In a deed of mortgage a day of payment, five or ten, rfears after the deed is drawn, may turn out to be Sunday : would that viciate the mortgage and defeat the mortgagee's rights ? This award too is a relief to the defendants, if it is set aside, then the verdict must stand. In Woolley v. Clarke (2 Dowl. & Ry. 158, 1 B. & C. 68.) where an arbitrator refused to act, the Court ordered the verdict to stand, unless the defendant would consent to the appointment of another abitrator. (On the other parts Mr. Hanson was stopped by the Court. Mr. Ross in support of the rule. An award is bad if it award an illegal act. Two acts are here awarded to be done, money is directed to be paid and a release given, either of which would be illegal ou a Sunday. The 29 Charles 11, c. 7, prohibits judicial process, and this is only part of the proceedings of the Court. In Smith v. Sparrow (4 Bing, 84.) it was held that a contract made on Snuday is bad, although made by an agent. (Judge Chapman: Was that not a contract in the defendants ordinary calling ?) It does not appear to have been so, Woolley v. Clarke was only the reference of the action — this case embraces all matters in difference and the. direction as to the release of the ""aforesaid obligations" is uncertain, because no obligations are previously mentioned, and i t

isl^np,6s.siblejo *\y the release should embrace. • Trie same uncertainty and ambiguity prevails as to the 09313. It is uncertain whether the arbitrators did not mean the sum of £365 to include the costs.

JUDGMENT. This is a motion to set aside an award made in pursuance of an order of reference out o£ this Court, on the following grounds :—: — ' 1. That the award directs payment to be made by the defendant and a release to be given by the plaintiff on the first day of December, " which direction is void, such day being the Lord's day." 2. That in directing a release have not directed to what period it relates, and that it is therefore vague and uncertain. 3. That the arbitrators have not directed to whom, when, or in what manner the costs are to be paid. It is a -principle that if an award directs any illegal act to be done, such award is bad. (Alder v/SaVile, 5 Taun. 454.) The first question is, whether the acts directed to be done are such as cannot legally be done on Sunday, because if they are the defects cannot be cured in the manner pointed out by the learned counsel for the plaintiff. The award directs the doing of two things, namely, the payment of a sum of money and, the execution of a release. The statute of Charles 11, commonly called the < Lord's day act, (29 Charles 11, c. 7.) which has been quoted, prohibits two classes of acts, namely: — certain judicial acts and " labour business, or work of any person's ordinary calling on the Lord's day." The cases which have been decided on this statute for upards of a century and a half, have kept the clear meaning of the words in view, and the Courts have abstained from avoiding acts which do not belong to a man's " ordinary calling." So far has the distinction been carried that an act which would be illegal if performed by one man, may be perfectly legal if performed by another, though on the part of both the act in question would be equally a breach of the law of God. This distinction is illustrated by a very recent case" decided in the Court of Exchequer, Scarfe v. Morgan, reported in 4 M. & W. p. 270. A charge made by a farmer for covering a mare by his stallion was resisted, because it took place on Sunday ; the Court held that payment could not be avoided on that ground, because the keeping of'a stallion was not within the " ordinary calling " of a farmer : but I apprehend the decision would have been otherwise if the service had been rendered by a professed breeder of horses. Every merchant Tcnows that a bill dated on Sunday is good, and one falling due on Sunday is good also, the custom (since confirmed by btatute) providing for its payment the day before. In Begbie v. £<cvi, (1 C. &J. 180. Selw. N. P. 317.) the Court of Exchequer said an acceptance would not be bad because accepting a bill is not within a man's " ordinary calling." A guarantee is not avoided by being given on a Sunday. In Peate v. Dicken, (1 Cill. & R. 427, 3 Dowl. 171.) the Court upheld a guarantee given by an attorney on a Sunday, because such, an act was not within the " ordinary calling " of an attorney. On the same grounds a contract of hiring and service between a farmer and labourer, has been supported though made on a Sunday. On the principle therefore, which seems invarably to have been followed, I can see nothing in the two acts directed by this award to be done on Sunday: namely, the payment of money and the executing a release, which should render it bad ; and as this argument has necessarily delayed the performance of the award beyond the day named, any scru-" pies which the defeudauts may have had, will be relieved by performing the award nune pro tune: - ' As to the other two points 1 think there is nothing in them to vitiate the award. The certainty required in an award is certainty to a common intent, and the Courts always construe awards liberally. The award is that one party shall pay money and the other give a_ release, and although the arbitrators have used the words aforesaid, obligations, perhaps without any very clear conception of their meaning, yet a person moderately skilled iri conveyancing, would have no difficulty -in drawing a good release co-extensive with the matters embraced by the award. Then as to costs. Here the arbitrators have cleaFly exceeded theit authority, but that does not vitiate the award. The costs in the cause were to awjut the event, and the plaintiff being entltTed^Srader the award to a considerable payment, must have his costs. Over the costs of the reference ; the arbitrators had power, which they have exercised by directing them to be paid bythe defendants : the objection that they Have not specified " to whom, when, and in what manner" the cost are to be paid is trifling. A3 the learned Counsel observed, "id cerium est quod cerium reddi potest" and tbe Registrar will prevent $uy. doubt by his taxation atpf allocator. Rule discharged witfTcostt. /

Thx remains of the celebrated poet Thomas Campbell, were interred in Poet's Comer, in Westminster Abbey, on Wednesday list. The late poet, in his will, mentions two articles as the "jewels of his property." These articles consist of a bowl, presented to him by the students of Glasgow when he was Rector of that University, and a copy of the engraved portrait of Queen Victoria, with ' her Majesty's autograph to it, given to him by her Majesty. Shortly after twelve o'clock the funeral procession moved from the Jerusalem Chamber towards the Abbey, and entering by the west door, made its way to Poet's Corner. Mr. Campbell and Mr. Wyse, two nephews of the deceased, were the chief mourners ; and the pall was borne by Sir Eobert Peel, the Earl of Aberdeen, the puke of Argyle, Lord Morpeth, Lord Brougham, Lord Campbell, Lord Dudley Coutts Stuart, and Lord Leigh. The corpse was followed by a large number of members of Parliament, and other distinguished characters. The attendance of authors was considered limited.

Steam Communication between Lima and Panama. — The important object of establishing a line of steam communication along the entire western coast of South America, is, we understand, in a fair way of being accomplished. Measures will be taken to co-operate with the Pacific steamers, as well as those of the Royal Mail Steam Packet Company, so that not only will there be a communication from Panama to England, a distance of about 4,500 geopraphical miles, but also it is supposed that the route from the west coast of America will be frequently made available by parties proceeding to China, Australia, and other countries in that direction. Merchandise will be transported across the Isthmus of Panama, whence the distance to Canton is 10,360 and to Sydney 2,160 milei. — London Observer.