Glenn v. Eddy

• Decision Date: 11 March 1889
• Citation: 17 A. 145,51 N.J.L. 255
• Court: New Jersey Supreme Court
• Parties: GLENN v. EDDY.

17 A. 145

51 N.J.L. 255

GLENN

v. EDDY.

Supreme Court of New Jersey.

March 11, 1889.

(Syllabus by the Court.)

On motions to quash summons or to set aside the service thereof.

Argued November term, 1888, before DE-PUE, DIXON, and MAGIE, JJ.

Alfred Mills, for motions. Saml. H. Grey, contra.

MAGIE, J. The summons in this case was issued, tested, and served by the sheriff on a day upon which a general election for members of assembly was held. It is now contended that the writ is a nullity or the service thereof ineffective. This contention is founded on the provisions of the "act establishing legal holidays, and regulating the maturity of commercial paper with respect thereto," passed June 1, 1886. Supp. Revision, 361. It is thereby enacted that certain days (among which is included the "day upon which a general election shall be held for members of assembly") shall be legal holidays, "and no court shall be held upon said days except in the cases where said court would now sit upon a Sunday, and no person shall be compelled to labor upon any of said days by any person or corporation." The argument is that each of the days named had thus been made dies non juridicus; that upon Sunday (previously the only non-judicial day) certain legal acts were invalid; and that upon these newly-made non-judicial days the same acts are equally inefficacious. The legal status of Sunday depends upon the provisions both of the common law and statutes. It seems that courts in a remote antiquity held their sessions upon Sunday as on other days. The practice ceased apparently because prohibited by church canons. The prohibition became part of the common law, and courts ceased to sit on Sunday, except constrained by necessity, as for the reception of the verdict of a jury. The maxim then used, dies dominicus non juridicus, was the accepted rule. Yet the issuing and even service of writs would not seem to have been prohibited before 29 Car. H., c. 7, which not only forbade worldly employment and business, but expressly prohibited the service of writs on Sunday. Writs always were made returnable to the regular return days, many of which fell on Sunday, and such writs and notices to appear on such days were held not objectionable, the business being transacted in fact on the following day. Swan v. Broome, 1 W. B1. 496, 526, 3 Burrows, 1595.

In New Jersey the common-law prohibition against the sessions of judicial tribunals (except in cases of necessity) has always been recognized. From an early period, however, writs were returnable to stated terms of the courts, which commenced on days other than Sunday. When the courts were afterward thrown open for the return of writs, Sunday was expressly excepted. Practice act, § 41, (Revision, 854.) The vice and immorality act, moreover, also from an early period of our history, not only prohibited worldly employment and business, but many amusements and diversions, on Sunday, and coupled therewith an express prohibition of the service of writs and process on that day. Revision, 1227. Other enactments have from time to time restricted or prohibited the performance on Sunday of acts at other times lawful. The history of the common law and of legislation with respect to Sunday clearly indicates that it owes its exceptional position to a general sense of its sacred character as a holy day. To no other day—although many account other days holy—has a like distinction been accorded. When we compare the course of the common law and legislation respecting Sunday with the statute now before us, a different treatment is observable. Although some of the days named are accounted holy by many, while others are national anniversaries or days when public duties are enjoined on citizens, yet there has been enacted no prohibition against the pursuit of any business or pleasure. There is no express prohibition against the service of the process of the courts. The direct prohibitions of the statute are aimed at only two things, viz., (1) compulsion to labor, and (2) the holding of courts on the days specified. The statutory declaration that these days shall be legal holidays does not indicate an intent to assimilate their status to that of Sunday. "Holiday," in its present conventional meaning, is scarcely applicable to Sunday. Phillips v. Innes, 4 Clark & P. 234. It is applicable to all and has long been applied to some of the days named. When the statute declares them to be legal holidays it does not permit a reference to the legal status of Sunday to discover its meaning; for it...