30 



CONTRACTS CONCERNING HORSES, ETC. 



Fanners not 



"within 



statute. 



Sale by a 

 horsedealer. 



no tradesman, artificer, workman, labourer, or otlier person 

 whatsoever, shall do or exercise any worldly labour, business 

 or work of their ordinary callings upon the Lord's Day or 

 any part thereof (works of necessity and charity only 

 excepted), and every person being of the age of fourteen 

 years or upwards offending in the premises shall for every 

 such offence forfeit the sum of 5s. ; and that no person or 

 persons whatsoever shall publicly cry, show forth or expose 

 to sale any wares, merchandizes, fruit, herbs, goods or 

 chattels whatsoever upon the Lord's Day or any part 

 thereof, upon pain that every person so offending shall 

 forfeit the same goods so cried or showed forth, or exposed 

 to sale." 



By the 34 & 35 "Vict. c. 87 (continued by the Expiring 

 Laws Continuance Act), s. 1, no prosecution or other pro- 

 ceeding shaU be instituted for the contravention of this Act, 

 but with the consent in writing of the chief officer of the 

 police of the police district in which the offence is com- 

 mitted, or of two justices of the peace, or of the stipendiary 

 magistrate having jurisdiction in the place where such 

 offence is committed. 



A farmer has been held not to be within section 1 of the 

 29 Car. 2, c. 7, on the ground that he is not " a tradesman, 

 artificer, workman, or ejusdem generis with any of these " (p). 



A horsedealer cannot maintain an action upon a contract 

 for the sale and warranty of a horse made by him upon a 

 Sunday. The law on this subject was laid down by the 

 Court of King's Bench in Fennell v. Ridler {q) on a motion 

 for a new trial, and Mr. Justice Bayley delivered the 

 following judgment: "This was an action upon the 

 warranty of a horse. The plaintiffs were horsedealers, and 

 the horse was bought and the warranty given on a Suiidaii • 

 and the only question was, whether, under the 29 Car. 2 

 c. 7, the purchase was illegal, and the plaintiffs precluded 

 from maintaining the action. That the purchase of a horse 

 by a horsedealer is an exercise of the business of his ordinary 

 calling no one can doubt. The act does not apply to all 

 persons, but to such only as have some ordinary calling. In 

 Drury v. De la Fontaine (r) Lord Mansfield, C. J. (after 

 the Court had taken time to consider), laid it down, that if 

 any man in the exercise of his ordinary calliiig make a con- 



(p) M. V. Silvester, 33 L. J., M. 

 C. 79. 



(q) Fennell and another v. Eidler, 

 6 B. & C. 406. 



()•) Dninj V. Be la Fontaine, 3 B 

 & C. 232; but see per Parke, J. 

 Smith V. Sparrow, 4 Bin;!-. 88. ' 



