1862. V. s. 6., the delivery of it by post is neither within the letter The QUEEN of the enactment, nor within the mischief intended to be Inhabitants of guarded against. In Rawlins, appt., The Overseers of LEOMINSTER, West Derby, resps. (a), Erle J. observed, "The overseer who receives the notice is not called upon to perform any duty that can interfere with the most scrupulous observance of the Lord's day." [Cockburn C. J. That observation applies to any process. Wightman J. The observation was made with reference to the quality of the document sent-to shew that it was not process within stat. 29 Car. 2. c. 7. s. 6.] Section 79 of stat. 4 & 5 W. 4. c. 76. and sect. 9 of stat. 11 & 12 Vict. c. 31. mention the sending of the documents as the sending of a notice of dishonour of a bill of exchange would be spoken of. Assuming that a notice sent by post is to be considered as given on the day on which, according to the ordinary course of post, it would reach the person to whom it is sent,-as laid down by Lord Campbell in The Queen v. The Inhabitants of Slawstone (b), and adhered to by the Court in The Queen v. The Recorder of Richmond (c),-a statutory direction that a document shall be sent by post does not make the delivery of it by post amount to service. There is a distinction between acting under the direction of an enactment which authorizes the sending by post and delivering by a private messenger. In Re The Inhabitants of Asprell v. The Justices of Lancashire (d), Lord Campbell said, “You cannot make out that the notice of appeal was delivered fourteen days at least before the first day of the sessions, without assuming the delivery of the notice on Sunday to be valid." In that case a service on the (a) 2 C. B. 72. 82. (b) 18 Q. B. 388. 392. (d) 16 Jur. 1067, note. V. following Monday would have been too late. Here the 1862. delivery on Sunday would be good for the Monday The QUEEN following. [He cited The Queen v. The Justices of Inhabitants of Kent (a) on stat. 16 & 17 Vict. c. 97. s. 107.] Sup- LEOMINSTER. pose a writ of summons taken out, and a request made by the party that he might not be served personally but by post, and it was delivered on Sunday, and the defendant afterwards appeared and attempted to set it aside, could he be heard to say that the service was absolutely void? [Wightman J. According to Taylor v. Phillips (b) he might.] Cur. adv. vult. WIGHTMAN J. (Feb. 22d) delivered the judgment of the Court. The question for our decision in this case is whether ransmission of a notice of chargeability and copy of an order of removal and statement of the grounds of removal by post, under sect. 79 of stat. 4 & 5 W. 4. c. 76., where, by the ordinary course of post, the documents reach the hands of the officers of the parish to which the removal is about to be made on a Sunday, is void by the operation of the 29 Car. 2. c. 7. s. 6. We are of opinion that it is not. Admitting that the delivery of such documents in the ordinary manner would be service of an order or process within the meaning of the latter statute, we are of opinion that transmission by post is not such service. If transmission by post had been service or equivalent to service, the provisions of sect. 79 of stat. 4 & 5 W. 4. c. 76. and sect. 10 of stat. 14 & 15 Vict. c. 105. would have been wholly unnecessary. The effect of these enact(a) 18 Justice of the Peace, 327. (b) 3 East, 155, ments is to substitute for service something which certainly was not "service," within the meaning of this term, as used in the 29 Car. 2. c. 7. s. 6. It appears to us that it would be to put a forced construction on the latter statute to bring within its operation something which at the time of its enactment would not have been within its terms, and which, properly speaking, is not, even by implication, brought within them now. The statutes to which we have referred do not say that the sending by the post shall be service: they permit transmission by the post in lieu of service. Nor is it clear that the evil or inconvenience contemplated by the 29 Car. 2. c. 7. s. 6., exists in such a case. There is no desecration of the Sabbath by the employment of an agent for the special purpose of serving process; no disturbance of the privacy of the party to be served; or (necessarily) any distraction of his mind from matters of higher consideration. If the letter be delivered at all on Sunday (which must depend on the postal regulations of the district or parish), it will be delivered by the letter carrier in the course of his ordinary rounds. It is optional with the overseer whether he will open the letter or reserve its perusal to the following day. And as the legislature, in passing the modern enactments for the transmission of these notices by post, was of course perfectly familiar with the existing practice of the post office in respect of the delivery of letters on Sunday, we cannot but think that, if it had been intended to make such notices void if they happened to reach the officers of the opponent parish on a Sunday, some provision to that effect would have been added. We are also forcibly struck by the inconvenience which might arise from holding the objection to be fatal. Notices of this sort have often to be sent between distant (a) 16 Jur. 1067, note. Order confirmed. VOL. II. 2 D B. & S. 1862. Saturday, February 22d. Pleading. BRINE against The GREAT WESTERN Railway Declaration stated that the defendants wrongfully raised an embankment near the plaintiff's house, and wrongfully continued the same, by reason whereof large quantities of water flowed against and into the house: with an averment of special damage. Plea, that the embankment was raised and continued by the defendants under certain Acts of Parliament. Replication: that, although the embankment was raised and continued under the Acts of Parliament, the flowing of the water against and into the plaintiff's house was occasioned by the wrongful construction and negligent and improper raising of the embankment, and the want of proper and sufficient drains to the same, and the continuing the embankment so wrongfully constructed and insufficiently drained. On demurrer, held: 1. That a departure in pleading was ground of general demurrer. 2. That the replication was not a departure from the declaration; by Crompton and Blackburn JJ., Cockburn C. J. not assenting. THE declaration stated that the plaintiff was lawfully possessed of a messuage and premises situate at Adber, in the parish of Trent, in the county of Somerset, in which messuage and premises the plaintiff and his family resided and dwelt. Nevertheless the defendants wrongfully raised and made and formed, and caused and procured to be raised, made and formed, a certain embankment of earth near the plaintiff's said house as aforesaid, and wrongfully continued the same from thence hitherto; by reason whereof, from thence continually to the commencement of this suit, divers large quantities of water have run and flowed down to, upon, against and into the said messuage and premises of the plaintiff, whereby the walls, roofs, ceilings, paperings, floors, stairs, doors and other parts thereof and therein being have been greatly weakened, injured, wetted and damaged; and by reason of the premises the said messuage and premises of the plaintiff became, and were, and have |