
    George A. Pearce versus John Atwood.
    The interest of a justice of the peace in a penalty, though ever so minute, takes away his jurisdiction of an offence.
    But it is not certain that the officer who serves the process in such a case may not be protected against a suit for damages.
    A justice of the peace has no jurisdiction of the offence of unnecessarily travel-ling on the Lord’s day, if the person charged be not an inhabitant of the county.
    The statute of 1791, c. 58, does not authorize a justice of the peace to receive a complaint and issue a warrant on the Lord’s day, for a violation of that law merely by travelling.
    An arrest made on the Lord’s day, pursuant to a warrant so issued, is illegal, and the officer making it is a trespasser.
    The statute of 21 Jac. 1, c. 12, requiring actions against officers for any matter touching their offices to be brought in the county where the act is done, if it was ever adopted here in practice, has been virtually repealed by sundry statutes of the Commonwealth.
    This was an action of trespass originally brought in the County of Hampden, of which the plaintiff is an inhabitant, for an assault and battery and imprisonment of the plaintiff, who alleged his damages at $ 500.
    The defendant pleaded the general issue, and filed a brief statement of his defence, pursuant to the statute of 1792, c. 41, setting forth, that one Jonathan Dwight, being a tythingman duly chosen and qualified in the town of Belchertoiun, in the County of Hampshire, and believing that the plaintiff had violated the laws made for the due observation of the Lord’s day, by riding at Belchertown, between Jlmherst and Mellen's tavern in Belchertown, on Sunday, the 26th day of June, 1814, did, on that day, complain on oath to Eldad Parsons, Esq., a justice of the peace in and for the said County of Hampshire, against the said Pearce, therefor. Whereupon the said Eldad made his warrant, on that same day, directed to the sheriff of the County of Hampshire, or either of his deputies, or any constable of the town of .Belchertown, commanding them forthwith td apprehend the said Pearce, and him to bring before the said Parsons, or any other justice of the peace for said county, to answer to said complaint; and that the defendant, being a constable of Belchertown, duly chosen and sworn, in virtue of that warrant, arrested the said Pearce about one o’clock, P. M., of the same Lord’s day, and detained him until the next morning, when he brought him before the said Parsons, to answer as aforesaid.
    * At the trial, which was had before Putnam, J., at the sittings here after the last September term, it appeared, that the defendant and the said Parsons both knew that the said Pearce was an inhabitant of Monson, in the County of Hampden.
    
    
      The defendant offered the said pomplaint and warrant in evidence ; and the counsel for the plaintiff objected to their going in evidence, and insisted that they afforded no legal defence to the suit.
    1. Because the said justice was interested, being an inhabitant of the town of Belchertown, which was entitled to a moiety of any fine that was by law attached to the supposed offence ; and no necessity existed of making the complaint to him, there being many other justices in the County of Hampshire not interested.
    2. Because a justice of the peace had no jurisdiction in the premises ; inasmuch as the statute of 1791, c. 58, § 13, provides, that all offences, the penalty whereof does not exceed forty shillings (except the offender lives out of the county in which the offence may be committed), should be prosecuted by complaint before a justice of the peace for such county. But, when the offender lives out of such county, he may be prosecuted by presentment of the grand jury; and the penalty for the offence alleged against the plaintiff did not exceed forty shillings, and he lived out of the County of Hampshire.
    
    3. Because a justice of the peace has no authority, upon the Lord’s day, to receive a complaint, and issue a warrant for the violation of the laws for the due observation of that day ; unless such violation was accompanied by some act of violence, disturbing the peace and public tranquillity, which was not suggested in the present case; and the defendant had no authority to arrest the said Pearce on the Lord’s day, in virtue of the said warrant, which issued for the cause aforesaid.
    The judge, being of the same opinion with the plain- * tiff’s counsel, rejected the evidence so offered by the defendant.
    It was then contended, on the part of the defendant, that the action was not originally well brought in the County of Hampden against him, he acting as an officer; but that the suit ought to have been originally commenced in the County of Hampshire.
    
    The judge instructed the jury, that the defendant had failed t< make out a legal defence ; and he left it to them to assess the plaintiff’s damages, which they did at $25.
    
    The verdict was, however, taken, subject to the opinion of the whole Court on the premises ; and it was to be confirmed, or set aside and a new trial granted, according to such opinion.
    
      Doolittle, for the defendant,
    as to the first point taken at the trial, cited the statute of 1783, c. 51, and the case of Commonwealth vs Ryan. 
       As to the second point, he contended, that the jurisdiction of the justice was concurrent with the Sessions. To the third point he observed, that this was a criminal prosecution, for an odious offence, involving a breach of the peace, and for such offences warrants may lawfully issue 'and be served on the Lord’s day. The hsinousness of the offence was insisted on at great length by Doolittle, principally upon moral and theological grounds. To show the action local he relied on the English'statute of 21 Jac. 1, c. 12, forming a part of our common law. 
    
    Mills, for the plaintiff.
    The justice here was directly interested in the penalty he was to inflict; and, although the interest was, indeed, minute, the principle is universal and imperative. The amount of interest ought never to be the subject of inquiry in a question like this ; especially as in this case there was no necessity of bringing the complaint before this particular justice. In the case of the Commonwealth vs. Ryan, the offence must have been without punishment, if the prosecution had not been * sustained. It is declared in the Declaration of Rights,  that “ it is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit.”
    But when, as in this case, the supposed offender is not an inhabitant of the county, the offence can be prosecuted only by indictment of the grand jury. The statute of 1791, c. 58, § 10, expressly directs, that, where the person unnecessarily travelling does not live in the county, the tythingman shall give information thereof to some grand juror, to be by him laid before the grand jury, for their consideration and presentment; and it is only where the person lives in the county that a complaint to a justice of the peace is authorized. The statute of 1796, c. 89, makes no new provision on this point. Its objects were only to increase the penalties, and to alter the appropriation of them. They are to be recovered in the same manner as under the former act.
    If the justice had cognizance of the offence, he had no authority to issue his warrant, nor the defendant to serve it, on the Lord’s day. Dies Dominicus non est Dies Juridicus. The offence, heinous as it has been represented, was neither treason, felony, nor breach of the peace, for which only one can be arrested on Sunday.  The complaint could not be lawfully received on that day.  If a justice can receive the complaint, he ought also to hear and determine the cause on that day; or the citizen suffers a useless and oppressive deprivation of his liberty. It is observable, that, by the statute of 1782, c. 23, authority was given to wardens to stop and detain an) persons they should suspect of unnecessarily travelling on the Lord’i day; and that, in the statute of 1791, which repeals the former, no such authority is given ; but this offence is left to be animadverted upon as other misdemeanours not involving a breach of the peace. The legislature thus expressed their view of this subject in as strong a manner as they could have done by a positive prohibition. * If, on either of the preceding points, the opinion of the.Court should be with the plaintiff", there is an end to tne defendant’s objection, that the action is local, and lies only in the county of which the officer is an inhabitant. The English stat ute of 21 Jac. 1, c. 12, was never adopted in this government ;  and, if it has been heretofore adopted, the statute of this Commonwealth of 1792, c. 41, may be considered as a virtual repeal of it, from its silence on this point, while reenacting other provisions of the former statute. 
    
    
      Bliss, on the same side.
    The question in this case is not, how a citizen may be restrained' from unnecessarily travelling on the Lord’s day, but by what proceedings he is to be subjected to legal animadversion after having offended against law by so travelling. Though the plaintiff may have been guilty of a misdemean.our, this cannot justify the defendant. His own statement shows that he imprisoned the plaintiff, and he is bound to show a sufficient justification of it. The jurisdiction of an inferior court or magistrate is-always tobe proved, and is not to be presumed.
    The penalty, in this case, accrued in part to the inhabitants of Belchertown. The magistrate was, then, when receiving the complaint, and when issuing the warrant under which the plaintiff was imprisoned, taking measures to promote his own pecuniary emolument. The amount of his probable gains by this single process is wholly immaterial. Any, the most minute, interest is sufficient to give a bias to some minds, and therefore the common law, as well as our own Constitution, will never allow one to be a judge or juror, whose interest is in the least degree to be affected by the question to be decided. 
    
    Since the commencement of this action the legislature have shown their opinion upon this point, and, that the objection may not hereafter arise, have transferred the interest in these penalties from the town to the county. 
    
    The second point taken at the trial, grounded on the * statute of 1791, c. 58, cannot be made plainer or stronger by any reasoning.
    
      As to the right and authority of the justice to receive the complaint and issue his warrant on the Lord’s day, it is not necessary to follow my brother Doolittle up to the creation of the world, or even to the Mosaic institutions, since the question must, after all, in this forum, be governed by the statutes of our own Commonwealth.
    The statute, under which the prosecution in this case is attempted to be supported and justified, expressly prohibits any manner of labor, business, or work (works of necessity and charity only excepted), on the Lord’s day, or any part thereof. Unless toe . '=■ of the tythingman in entering his complaint, of the justice in receiviub the complaint, administering the oath to the complainant, and making and issuing his warrant, and of the present defendant in arresting the plaintiff, and holding him imprisoned from the noon of Sunday to the morning of Monday,—unless these acts were within the exception in the statute, they were not only void, but a direct violation of the law, which, with so much zeal, they were pretending to execute. But, certainly, these were not works of necessity ; for they might as well and as effectually have been performed on any day of the following week. The plaintiff was well known to the defendant and to the magistrate, as a citizen of the Commonwealth. There was no ground to apprehend that he would avoid legal process. Nor can these acts with more truth be deemed works of charity; unless it should be said, indeed, that the benefit to the complainant and the town, to be derived from the penalty, was a work of charity.
    The receiving the complaint and awarding process were judicial, and not ministerial acts.  No judicial act can be pérformed on Sunday, except in certain cases, of which this was not one. This warrant was made returnable forthwith ; and, if the defendant had paid due attention to its precept, he would have immediately returned it, with his prisoner, to the justice, and then, whatever * further violation of the Sabbath might have taken place on the part of the officers of justice, the term of the plaintiff’s imprisonment would probably have been shortened. But, if it should be admitted that the justice acted ministerially, still he had no more right to perform this labor, than any other citizen had to pursue the business of his trade or calling, on the Sabbath.
    But, even if the justice could be justified in issuing his warrant, the defendant had no power to execute it on Sunday. The object was, not to prevent the party from violating the law, but to apprehend him and subject him to punishment for a violation already past. There was, then, no more authority in the defendant to make the arrest on Sunday than if the suit had been for a breach of any other penal statite, committed weeks or months before.
    
      The practice of arresting persons who are quietly and decently passing on the Lord’s day is authorized by no law now existing in force. Such a power -was formerly vested in wardens, and since in tytbingmen ; but it was found to be too much opposed to the sentiments and feelings of the citizens to be continued in force. Indeed, no sensible reason can be given, why the offence of breaking the Sabbath should not be left, as other offences are, to be punished by proceedings to be instituted after the commission. The law, too, allows of travelling, and, indeed, of any labor, when required by necessity or charity. To authorize the indiscriminate arrest of all travellers, at the will and pleasure, or, if it sound better, at the discretion, of every tythingman, may often be to authorize the prevention of acts of the highest necessity or charity.
    As to the objection taken at the trial, that this, being a suit against the defendant for his official acts, should have been brought in the county wherein he resides ; it is answered, that this is a personal and a transitory action, and, by our statute of 1784, c. 28, § 13, all such actions are to be brought in the county where one of the parties lives.
    So is the case here. The dictum of Dana, C. J., when giving * his opinion in the case of the Commonwealth vs. Leach & al., that the statute of 21 Jac. 1 had been adopted here, is of no authority as to this point. It was a simple historical fact mentioned by the Chief Justice accidentally in argument. Besides, the fact is not chronologically correct ; for the statute was made after the emigration of our ancestors to this country ; and so cannot be presumed to have been brought over with them.
    
      Strong, for the defendant,
    contended, I. That a warrant for the apprehension of one travelling upon the Lord’s day may well be issued and executed during the day upon which the offence is committed.
    By the statute of 1783, c. 51, justices of the peace are required to examine into all offences, as well those which are not, as those that are, within their jurisdiction. The authority is general, and justices are not restrained, therefore, from a discharge of their official duty on any day, except by the principles of the common law, or by statute.
    But it is objected, that the Sabbath is dies non juridicus. To this it may be answered, —
    1. That the objection proves too much ; for, if the principle be applicable, as it would seem, to all cases, no warrant whatever could be issued upon the Sabbath, however urgent the necessity, or however atrocious the offence committed. But to this position, common ^¡ense and1 immemorial usage furnish an incontrovertible answer.
    2. That the maxim, dies Dominions, &fc., although a well estab-
    
      fished rule of the common law, is applicable, if not exclusively to civil proceedings,  at least, to the ordinary administration of justice in courts of law. Thus, in Swan vs. Broome, 
       in which Lord Mansfield gives a history of the law on this subject, he says, the canons of the church, which had been adopted as a part of the law of the land, extend their prohibition no further than against awarding process and giving judgment, and such like acts of court on Sundays. It would seem, however, that any act, * which does not suppose the regular holding of a court of justice, and which is not prohibited by statute, may be done on the Sabbath. Thus a scire facias bearing teste upon the Sabbath,  and an indictment, which appears to have been found on that day,  are bad ; because the first is supposed to have issued, and the second to have been found, when the court was sitting in the ordinary administration of justice. But original writs may bear teste upon the Sabbath,  an information in the Exchequer may be filed on Sunday ;  for the Chancellor may seal writs on any day, and the Exchequer may be supposed to receive informations at any time ; although it cannot award process and enter judgment, but when it is actually sitting. 
    
    3. That receiving a complaint from a tythingman, issuing a warrant, &c., may be considered, as will be shown hereafter, ministerial acts ; and acts of this nature, unless prohibited by statute, may be done on any day. 
    
    But the statute of 29 Car. 2, c.7, which prohibits the execution of any warrant, &c., upon the Sabbath, except in cases of treason, felony, and breach of the peace, has been referred to, as decisive of the present question. It is, however, by no means certain, that this statute has ever been in force in this Commonwealth, and, if it now were, travelling upon the Sabbath is a breach of the peace. Breaches of the peace comprise not only cases of actual violence to the person of another, but any unlawful acts, tending to produce an actual breach of the peace ; whether the peace of the public, or an individual, be in fact disturbed or not. ' And the preamble of the statute of 1791, c. 58, recites, that some thoughtless and irreligious persons profane the Sabbath, to the great disturbance of well disposed persons, and to the great damage of the community. The disturbance is not such as excites terror, as in the case of unlawful assemblies ; or leads to revenge, as in the case of affrays; but it is a disturbance in the highest of all * duties, and for which the law has provided means of immediate redress.
    
      But the breach of the peace, contemplated by the statute of Car. 2, is not necessarily such an one as would occasion the forfeiture of a recognizance. It is to be construed favorably for the peace,  and extends to all offences, whether actual or constructive breaches of the peace,  as all breaches of law are said to be when prosecuted criminally. 
    
    The existence of the supposed power in magistrates and officer-will be apparent from a consideration of the different acts of the colonial and provincial governments. By an ordinance in 1646, constables were authorized to apprehend Sabbath-breakers and other offenders, upon the Sabbath or other day, provided, that, when they were employed by a magistrate, they were not to do it without warrant in writing.  But, if a constable might upon the Sabbath arrest a Sabbath-breaker, upon his own view without warrant, is it to be supposed that a justice, who is a conservator of the peace and more, might not also, upon view of a profanation of the Sabbath, require his proper officer, a constable, to arrest the offender ? But the law is express, that, in such. case, the constable shall not make the arrest without warrant. The justice, then, must have had the power of granting one at common law.
    From a comparison of the provincial act of 15 Geo. 2, c. 3, with the preamble of that of 19 Geo. 2, c. 3, it might be concluded, that this power was supposed by the legislature to exist in magistrates ; and the act of 1 Geo. 3, c. 1, repealing all former laws relating to the due observation of the Lord’s day, is entitled, “An Act making more effectual provision for the due observation thereof.” If the power supposed, therefore, was given by the common law, it is not to be imagined that the act last mentioned, or any subsequent one, obviously adopted for the purpose of more effectually securing the 'Sabbath from profanation, should, *by any repealing clause it might contain, be construed to withhold it.
    It is suggested, however, that, when the legislature prohibits unnecessary labor upon the Sabbath, it must be supposed to prohibí"» the issuing or execution of criminal or civil process, except in cases of necessity or charity. But, without adverting to the absurdity of supposing, that the Sabbath could be rendered by the .statute dies jurídicas even in cases of supposed necessity, it is sufficient to remark, that the common law had declared it dies non juridicus, and warrants, in criminal cases, might be executed upon the Sabbath, even under the statute of 29 Car. 2 ; the legislature, therefore, having undertaken, § 9, to prohibit the execution of civil process, and that only ; criminal process (the execution of which would undoubtedly have also been prohibited by express words, had it come within the purview of the statute) is altogether unaffected by its provisions.
    Again, it is said, that the statute concedes the right of travelling in cases of necessity or charity; to authorize an arrest, therefore, upon the Sabbath, is to authorize, the restraint of one when travelling perhaps for the most laudable purposes. The argument might, however, as well be urged against an arrest the day after the Sabbath, if the traveller had not then completed his journey, or in relation to any other offence punishable by law. If a traveller be arrested, and his reason for proceeding urgent, he will probably be discharged at once ; or, if justices have a concurrent jurisdiction with the Common Pleas, as we shall show hereafter, he may be recognized.
    If travellers cannot, under any circumstances, be arrested upon the Sabbath, the anomalous case will be exhibited of a violation of the criminal laws of a community, and, for a time at least, no power existing in any part of that community to arrest and punish the offender; the continued violation of those laws will have no tendency to enhance his legal guilt;  the law will operate in most * cases upon our own citizens, and not upon strangers within our jurisdiction; and, indeed, the law may, in some sense, be considered as felo de se. The common law declares the Sabbath dies non juridicus; the statute law, coming in aid of the principle, prohibits a variety of acts otherwise lawful; but so rigid is the common law, that the statute law is substantially inoperative. The principle, therefore, which the legislature was desirous of extending is made to defeat the provisions which the legislature have adopted.
    II. The plaintiff might be prosecuted by complaint to a justice of the peace, although not an inhabitant of the county.
    By the statute of 1782, e. 23, § 13, justices are empowered to try all complaints for travelling upon the Sabbath, if the offender be within the county. And, by the statute of 1791, c. 58, § 10, repealing; the former, tythingmen are required to enter a complaint against the person travelling, before a justice of the peace, if the offender live within the county ; otherwise, to give information to some grand juror.
    The provisions of the two statutes are substantially similar. If the offender, at the time of prosecution, be or live without the county, he is personally out of the jurisdiction of the justice, and must be prosecuted, if at all, by presentment ; as he cannot otherwise be apprehended. It is accordingly provided, in the thirteenth section, that all offences, the penalties whereof do not exceed forty shillings, shall be prosecuted by complaint before a justice ; but, when the offender lives out of the county, he may be prosecuted by presentment, although the penalty do not exceed forty shillings.
    It must have been the intention of the legislature to require the prosecution of all offence, against the statute. Why, then, it may be asked, was the permissive word may substituted in the last clause, for .he imperative word shall, previously used ? The statute may be read thus ; When the penalty exceeds forty shillings, the offender shall in all * cases be prosecuted by presentment; when it is less than forty shillings, he shall be prosecuted Dy complaint, except when he lives out of the county, in which case he may be prosecuted either by complaint or by presentment. If the legislature require all offences against the statute to be prosecuted, the word may, ex vi termini, denotes a right of choice on the part of the prosecutor, and nothing else. Otherwise, the legislature must be considered as saying, the officer, when the offender lives out of the county, may prosecute or not, which would be absurd. If the statute be considered as merely authorizing, in certain cases, a prosecution by presentment, lest offenders, by being personally out of the jurisdiction of a justice, should otherwise escape punishment, the thirteenth section is entirely intelligible, and technically correct.
    But, if it be possible to indulge a doubt as to the statute of 1791, that of 1796, c. 89, establishes conclusively the position we have laid down. By the latter it is expressly provided, that the penalties therein established may be recovered by complaint to a justice of the peace, or by presentment of the grand jury ; thus giving justices and the Court of Sessions, in language as unequivocal as can be used, concurrent jurisdiction.
    But it is objected, that the two statutes are to be considered as one, and the provisions of the last to be compared with those of the first, singula reddendo singulis ; and when, by the last statute, prosecutions are authorized before a justice or by presentment, the legislature must be considered as repeating the restrictions contained in the first. But it is a full answer to this suggestion, that none of the penalties created by the statute of 1796 exceed forty shillings ; so that no new provision in relation to the recovery, upon the construction contended for, was requisite. If, then, tbe legislature be competent to understand the force of their own provisions, and such a rule of construction is to be adopted as will give effect, if possible, to every part of the statute, the question is settled. In deed, it is obvious, * that, either the statute must receive a literal and common sense construction, or the clause in question be rendered, without necessity, idle and insignificant.
    IT T. Neither the supposed interest of the justice, nor the supposed illegality of issuing a warrant upon the Sabbath, furnishes any ground for charging the officer in trespass.
    It is undoubtedly true, that a justice of the peace ought not to sit as judge in a case in which he is interested.  But we say, that the justice acted ministerially. Thus, Hawkins says, when a warrant is issued for the arrest of one guilty of an offence not cognizable by the justice who issués it, the justice may be considered as acting ministerially. 
    
    The proceedings in this case may be considered in a threefold view ; as they respect the complaint, the examination, and the warrant. The complaint may be made on any day, and this appears conclusively from the case before cited from Sir William Jones. The examination is ministerial. A ministerial act by no means excludes the idea of the exercise of judgment and discretion. Thus, a sheriff, when levying an execution upon real estate, is to appoint a disinterested and discreet freeholder ; and yet his office is merely ministerial. So in a variety of other cases.  But it will be remembered, that, in the case at bar, the complaint was made by a tylhingman, and, by the 11th section of the statute of 1791, his tes timony, in this stage of the proceedings, is conclusive. The justice makes no adjudication whatever ; and, though both before and after the examination he may have a discretion whether to act or not, yet, when he acts, he acts ministerially. This is evident, since the war-‘ant is ministerial. In Briggs vs. Wardwell 
       it was holden, that A justice, in issuing execution, acted ministerially ; and in Rex vs. Goodale, 
       that an authority to commit need not appear in a warrant of commitment, because the issuing of such a warrant is a ministerial act.
    *Nor did the interest of the justice so oust him of his jurisdiction as to render the officer a trespasser. A justice of the peace has a general jurisdiction, as respects the original examination of all offenders ; but, when a court or magistrate, having general jurisdiction, issues process, though erroneously or improperly, the officer is justified in executing it.  Courts of justice have probably jurisdiction, though the judges composing them are interested ; and justices of the peace have an examining jurisdiction of all offences, though in some cases they may be censurable or punishable for exercising it. The justice, then, having had jurisdiction, neither his supposed interest, nor the supposed illegality of his proceedings, renders the warrant an imperfect justification of the officer executing it.
    IV. This action should have been brought in the county of Hampshire. By the English statute of 21 Jac. 1, c. 12, no action could be maintained against any constable, for any matter touching or concerning his office, but in the county where the trespass was committed ; and he is allowed double costs, if the verdict pass for him, or the plaintiff become nonsuit. This statute was enacted in 1624, four years before the first settlement within the limits of the colony of Massachusetts Bay; and, being applicable as well to the colony as to the mother country, must be supposed to have been brought here by our ancestors, and adopted as a part of our common law. In the case of the Commonwealth vs. Leach,  Chief Justice Dana remarks, that, generally, when an English statute has been made in amendment of the common law of England, it is here to be considered as a part of our common law. And he particularly mentions this statute of 21 Jac. 1, with others.
    If certainty is in any way attainable as to this branch of our law, it may reasonably be expected, when a Chief Justice of the Commonwealth, who had witnessed the practice in our courts for nearly half a century, undertakes to point out judicially certain English statutes, * enacted before the emigration of our ancestors, and extremely wise and liberal in their provisions, as having not only been once adopted here, but as now in force.
    To the remark, that the statute of 1784, c. 28, may be considered as virtually repealing the English statute of 21 Jac. 1, if it were ever in force here, it is an answer, that the statute referred to, in providing that all personal and transitory actions shall be brought in the county where one of the parties lives, evidently relates only to such actions as were by law transitory. But, if actions against officers were local actions, as they may be well denominated,  the statute, in relation to this question, must have been inoperative.
    
      
       5 Mass. Rep. 90.
    
    
      
      
        Palmer & ux. vs. Downer, 2 Mass. Rep. 179, note. — Marshall vs. Hosmer 3 Mass. Rep. 23.
    
    
      
      
        Article 29.
    
    
      
      
        Rex vs Myers, 1 D & E. 265. — Stat. 29 Car. 2, c. 7, § 6. —2 Inst 264.
    
    
      
      
        Hawk. P. C. B. 2, c 10, § 9.
    
    
      
      
        French vs. Judson, 7 Mass. Rep. 229.
    
    
      
       See Mostyn vs. Fabrigas, Cowp. 161.— Griffiths vs. Walker, 1 Wils 336.
    
    
      
      
        Hesketh vs. Braddock, 3 Burr. 1847. — Hawkes vs. The Inhabitants of Kennebee 7 Mass. Rep. 461.
    
    
      
      
        Stat. 1815, c. 135.
    
    
      
      
        Swann vs. Broome, 3 Burr 1600.
    
    
      
      
        Mackalley's case, 9 Co. 66, b.—Cro. Jac. 279.
    
    
      
       3 Burr. 1595.
    
    
      
      
        Barrett vs. Claydon, Dyer, 168.
    
    
      
      
        Dacon's case, 1 Vent. 107
    
    
      
      05) Cro. Jac. 496.
    
    
      
      
        Sir IV. Jones, 156.
    
    
      
       3 Burr. 1600.
    
    
      
      
        Cro. Jac. 496.
    
    
      
       4 Bl. Com. 255.-4 Inst. 180.
    
    
      
      
        Sir T. Ray. 250.
    
    
      
       1 D.& E. 265. —1 Atk. 55. —12 Mod 348
    
    
      
      
        2 Hawk. P. C. c. 8, § 38.
    
    
      
      
        Col. Laws, page 31.
    
    
      
      
        Crepps vs. Durden, Cowp. 640.
    
    
      
       1 Salk. 396.
    
    
      
      4) 2 Hawk. P. C c. 13, § 20.
    
    
      
      
        Rex vs. Newton, 1 Str. 413.— Cro. Car. 211. — 1 Leon. 323. — 2 H. I P C. 50, 51.
    
    
      
       10 Mass. Rep. 357.
    
    
      
      
        Sayer, 129.
    
    
      
       6 Co. 52. — 9 Co. 68. —10 Co. 76.
    
    
      
       1 Mass. Rep. 61.
    
    
      
      
        French vs. Judkins, 7 Mass. Rep, 230.
    
   Parker, C. J.,

delivered the opinion of the Court. (After a brief recital of the facts from the report of the judge who sat at the trial.) A new trial is now moved for, on the ground, that the process under which the defendant justified, and which was rejected by the judge, ought to have been admitted in evidence, and that the facts set forth in the brief statement form a good and sufficient defence to the action.

Several exceptions were taken at the trial to the evidence offered, all of which were ruled in favor of the plaintiff; and, if any of them should now be deemed substantial, the verdict must stand, because one alone would be a rightful cause for withholding the evidence from the jury, and without that evidence no defence could be pretended.

It may be well to consider the objections in the order in which they stand in the report of the judge ; which order has been observed in the argument. Much learning and research have been displayed by the counsel, on some of the points ; and more time would be necessary to form an opinion of the effect of their reasoning than we can now devote to the subject, if we were not satisfied that a much wider range has been taken than the cause requires ; most of the questions depending, as we think, upon a true and * fair construction of our own statutes providing for the due observation of the Lord’s day. We shall, however, notice all the points which have been the subject of the argument; because there seems to be some public interest taken in the question, and because it is proper that the law should be known, in order that magistrates and executive officers may conform to it; and that the legislature may make new provisions, if those now existing should be found deficient.

The first point ruled by the judge at the trial was, that E. Parsons, Esq., the justice of the peace who received the complaint and issued the warrant, had no lawful jurisdiction of the case ; because, being one of the inhabitants of Belchertown, to whose use, by the statute of 1796, c. 89, one moiety of the penalty to be recovered was to be applied, he was interested in the prosecution, and could not, therefore, sit as judge.

It is very certain, that, by the principles of natural justice, of the common law, and of our constitution, no man can lawfully sit as judge in a cause in which he may have a pecuniary interest. Nor does it make any difference, that the interest appears to be trifling ; for the minds of men are so differently affecte.d by the same degrees of interest that it has been found impossible to draw a satisfactory line. Any interest, therefore, however small, has been held' sufficient to render a judge incompetent. The only exception known, to this broad and general rule, exists where there may be a necessity that the person so interested should act, in order to prevent a failure in the administration of justice, according to the case cited from 5 Mass. Rep. 90. But in the case before us there was no necessity ; as every justice of the peace within the county had jurisdiction over the subject-matter; and none but such as were inhabitants of Belchertown had any- interest in the recovery of the penalty.

In the case of Hesketh vs. Braddock, cited by Mr. Bliss, the interest imputable to the jurors, and the officer who * returned them, was similar to that which the magistrate had in the case before us. The prosecution was for a penalty, which was to be recovered for the use of the corporation, of which they were members ; and the whole penalty was only £ 5. But the Court of King’s Bench, for this cause, quashed the proceedings of the inferior tribunal; and Lord Mansfield said ; “ There is no principle in the law more settled than this, that any degree, even the smallest degree, of interest in the question depending is a decisive objection to a witness, and much more so to a juror, or to the officer by whom the juror is returned ; and that the minuteness of the interest will not relax the objection ; for the degrees of influence cannot be measured ; no line can be drawn, but that of a total exclusion ol all degrees whatever.”

It is true, he does not comprehend a judge or magistrate within this general exclusion on account of interest. But there can be no doubt, that the principle applies with equal strength to them ; especially to a magistrate exercising the authority both of judge and jury, as those do who have cognizance of suits criminal and civil, according to our statutes.

Our legislature may also be considered as having recently sanctioned the same principle ; for, since this cause was tried, and after the decision of the judge upon this point was made known, they have, with a view to avoid this difficulty, made an appropriation of the penalties which takes away the interest of inhabitants of towns, and thus all justices are placed upon an equal footing ; so that, hereafter, within the reason of the case of the Commonwealth vs. Ryan, the jurisdiction of a justice of the peace, living in the town within which the offence may be committed, may well be maintained.

We think, that, for this cause, any judgment rendered by the justice, thus circumstanced, might be defeated. But, as the interest of a justice who issues a warrant may be latent and unknown to the officer who is called upon to * serve it, we are not prepared to say that he may not be protected against any suit for damages ; and, although in this case it appeared on the face of the warrant, that the magistrate lived in the town of Belchertown, as well as the complainant and the constable ; we still avoid deciding, that, for this cause, the proceedings were wholly void, so as to make the officer a trespasser. For it may be, that the justice might lawfully receive a complaint, and issue his warrant, although he could not lawfully sit as judge ; those acts, perhaps, being ministerial in their nature, and warrants being generally made returnable to any justice of the peace within the county.

The second point ruled by the judge was, that a justice of the peace had no jurisdiction of this cause ; because the person complained of was, at the time, an inhabitant of a different county from that in which the alleged offence was committed. And, after a careful examination of the statutes, we are all satisfied, that in this opinion the judge was correct. Indeed, it seems difficult to raise a question upon this point; but, as it has been much labored in argument, we proceed to discuss it.

The tenth section of the statute of 1791, c. 58, provides, that the tythingman, who shall not be satisfied with the excuse offered by any person whom he shall suspect of unnecessarily travelling on the Lord’s day, “ shall enter a complaint against the person travelling, before a justice of the peace in the county where the offence is committed, if such person lives in such county ; otherwise, shall give information to some grand juryman, to be by him laid before the grand jury, for their consideration and presentment.” In the thirteenth section of the same statute it is provided, “that all said offences, the penalties against which exceed forty shillings, shall be prosecuted, by presentment of the grand jury, before the Court of General Sessions of the Peace, in the county where the offence may be committed. But all offences, the penalty whereof does not exceed forty shillings (except the offender * lives out of the county in which the offence may be committed), shall be prosecuted by complaint before a justice of the peace in such county ; but, when the offender lives out of such county, he may be presented as aforesaid, although the penalty does not exceed forty shillings.” It is impossible to imagine terms more indicative of an unequivocal exclusion of a justice’s jurisdiction over a person not living within the county, than those used by the legislature, as above quoted.

It certainly requires a very refined and ingenious talent of construction, to make any other meaning in the least degree probable But this has been attempted in the following way ; —

First, it is said, that the jurisdiction of the justice and that of the Court of Sessions are concurrent, and that the complainant may elect either of these tribunals ; and this, because, in the latter branch of the thirteenth section, the words are, “if the offender lives out of the county, he may be prosecuted by presentment,” &c. But this is taking one branch of a sentence by itself, and giving it an independent meaning, although contradictory to other clear expressions in the same sentence ; contrary to every rule of construction. Besides, it is manifest, that, without the latter provision, offences committed by persons living without the county would be left wholly without punishment. For, the justice’s jurisdiction having before been utterly excluded in express terms, if this last sentence had been omitted there would have been no mode provided for the recovery of penalties in such cases.

It has been also said, that the intention of the legislature was, to confine the jurisdiction of justices to persons apprehended within the county ; so that the words, living within the county, in the statute, mean nothing more than being within the county. But this is doing violence to language, and straining for a meaning, when no doubt or ambiguity exists in the words of the act itself. Courts may give a sensible and reasonable interpretation to legislative * expressions which are obscure; but they have no right to distort those which are clear and intelligible

The statute of 1796, c. 89, has been confidently relied upon, as explanatory of the sense of the legislature upon this subject, or as providing anew for the recovery of all penalties on a complaint to a ■justice of the peace.

This act is merely auxiliary to that which we have been considering, being expressly made in addition to it, and repealing no part of it. Its principal objects were, to increase the penalties, and to make a different appropriation of them. Having provided for these objects, the second section enacts, that the penalties may be recovered, to the uses therein declared, by a complaint to a justice of the peace, or by presentment of the grand jury. There is no non obstante of any preexisting laws, nor any express repeal of the former provisions for prosecutions. Certainly no implication of such repeal necessarily results ; for it is reasonable to suppose, that the modes of recovery here prescribed have reference to the cases which were before provided for; and that nothing more was intended than that these new penalties should be recovered in the same manner as had been provided for the former, reddendo singula singulis.

It cannot be imagined, that provisions, made with so much care, distributing jurisdiction according to the nature of particular cases, were intended to be annulled by words which may, at least, as well be construed to affirm and strengthen the preexisting mode of recovery.

We are all of opinion, that the justice of the peace, who issued the warrant under which the defendant would justify, had no jurisdiction over the person of the plaintiff; because he did not live in the county, wherein the alleged offence was committed. And, as this defect appears on the face of the warrant, the officer was not obliged to serve it ; and in doing so he became a trespasser.

The papers offered in evidence were, therefore, rightfully rejected ; and we might be spared the trouble of * considering the remaining point in the cause. But, for the reason suggested in the beginning of this opinion, we proceed to discuss it.

The third point ruled by the judge at the trial was, “ that a justice of the peace had no authority, on the Sabbath, to receive a complaint and issue a warrant for the violation of the acts for the due observation of the Lord’s day, unless such violation was accompanied by some act of violence, disturbing the peace and public tranquillity ; and that the defendant had no authority to arrest the plaintiff, im a warrant so issued, on the Lord’s day.”

It is this part of the cause, which has given occasion for the researches, which have been so diligently made, into the ancient common law, acts of Parliament, reported decisions, and the colonial and provincial ordinances and acts ; the labor bestowed upon which we think in a great measure fruitless, as our own statutes have entirely superseded all preexisting regulations upon the subject.

The opening counsel for the defendant endeavoured to establish the position, which no one denies, that it is unlawful to travel or labor on Sunday ; by proving the divine appointment of that day as holy time, in which no manner of work was to be done. His argument was founded principally upon scriptural and other authorities, which prove the divine institution of the Jewish Sabbath. Certainly it is not necessary to resort to the laws promulgated by Moses, in order to prove that the Christian Sabbath ought to be observed by Christians, as a day of holy rest and religious worship ; and, if it were, it would be difficult to make out the point contended for, from that source.

It is true, that from the fourth command in the Decalogue it may be inferred, that one day in seven was, according to the divine will, to be set apart as a day of rest from labor. But none will contend, that the day therein sanctified is the day which Christians are bound , to keep as holy time ; or that any of the rigid laws of Moses relative to the observance of that day are now in force. It is enough to * observe, that, by the universal consent of Christians, another holy day has been substituted, and that works of necessity and charity are not profanations of the Christian Sabbath ; so that a poor man, in these days, would not be stoned to death for gathering sticks on the Sabbath, although that was the punishment inflicted in the time of Moses, and although some among our ancestors so far regarded the laws of Moses as of perpetual obligation, as to propose for their code the punishment of death for the crime of disregarding or carelessly observing the Sabbath.

All arguments drawn from the Jewish law respecting the Sabbath are, therefore, out of place ; except so far as any provisions of that law may have been recognized and promulgated by our Saviour, or by the legislative authority of our own Commonwealth. We are not aware that there is upon record any express precept of our Saviour, or of his Apostles, enjoining the observance of one day as more holy than others ; and yet we are far from questioning the religious obligation which all Christians are under to separate to religious uses the first day of the week ; since that is the time which, from the days of the Apostles, was set apart for that purpose, and since the legislalive power or the uniform usage of every Christian state has exacted the observance of it as such.

Indeed, if this argument, founded on the Jewish law, could prevail, we are at a loss to perceive how the defence set up in this case could be aided by it. For, if all work and labor be unlawful, surely the mere secular work of holding a court, or arresting a supposed offender, must be within the general prohibition. Nor would these labors form so meritorious an exception as many works of charity which are permitted to be done on the Christian Sabbath.

The ground taken by the other counsel for the defendant differs altogether from this. For he contends, that, by the com mon law of England, and of this State, judicial * matters, touching offences committed, may by law be transacted on Sunday ; at least, so far as relates to the arrest and trial of persons accused of crimes.

By the common law of England, it is certain, that Sunday is esteemed dies non juridicws; and that any order, sentence, decree, or judgment, of any court, rendered on that day, would be void. This seems to be clearly settled in the case of Swann vs. Broome, which was cited in the argument for the plaintiff, and in which Lord Mansfield, gives an historical account of Sunday, and proves that no judicial proceedings had on that day can be valid.

Ministerial acts, however, relating to the administration of justice,used to be done on Sunday, and probably to an inconvenient degree. For, by the statute of 29 Car. 2, c. 7, the service of all processes, warrants, orders, &c., on Sunday, are made unlawful, except for treason, felony, or breach of the peace. Whether arrests of persons «charged with misdemeanours would come fairly within this exception may be questionable. But it was determined by the courts, that any offence which subjected the party to an indictment was constructively a breach of the peace ; and thus persons accused of perjury, forgery, blasphemy, &c., which are neither treason, felony, nor breach of the peace, might probably be arrested on Sunday.

But by our statute the service of none but civil process is prohibited on the Lord’s day ; so that warrants against persons charged with any crimes whatever may be lawfully served on that day. Warrants may also be issued ; for, if the arrest is authorized by law, the order to make such arrest must likewise be lawful. But magistrates and executive officers will undoubtedly use this power with discretion, and with due regard to the sacredness of the day ; so that it may not be profaned or disturbed by this exercise of their authority, except in cases of emergency, when justice might otherwise be evaded. They will also undoubtedly consider, that all unnecessary official labor will * expose them to the penalties of the act for the due observation of the Lord’s day, although their doings may not be void.

It is not, therefore, on any general prohibition of judicial or magisterial acts on the Lord’s day that we found our opinion of the unlawfulness of the proceedings of the justice in this particular case ; but altogether upon the statute of 1791, c. 58, before cited ; from a careful perusal of which, and a comparison of it with the statute of 1782, c. 23, commonly called the Warden Act, which was superseded by it, we think it will manifestly appear that the legislature did not intend that prosecutions for the violation of this law should be attended to on the Lord’s day.

It would certainly seem extraordinary, that a statute, enacted for the sole object of insuring reverence and respect for one day of the week, in order that religious exercises should be performed without interruption from common and secular employments, should authorize acts which, from their necessary publicity, would be likely to cause more disturbance to devout people than all the irregularities intended to be cured. This, however, would inevitably be the effect, if justices might keep open their courts, to receive complaints and issue warrants, and travellers might be arrested in the highway and forcibly carried before the magistrate. If a trial is to be had, the accused has a right to have his witnesses summoned, his counsel to assist in his defence ; and he may have occasion to summon pious persons, who are engaged in public or private worship, to testify in his behalf. Surely, one such scene as this would do more towards injuring the public morals, and impairing a respect for the Lord’s day, than the travelling of many people peaceably and quietly through a town, perhaps unnoticed by any but the officers whose duty it is made to complain of such a breach of the law.

The answer suggested to this difficulty is, that there is no necessity for trying the accused until the day following. But the warrant requires, that the party shall be forthwith * brought before the justice ; and we think it would be a violation of the constitutional privileges of the citizen, that he should be seized upon the road, and kept in custody twenty-four hours, on the suspicion of having committed an offence, if he should insist upon an immediate examination. In some cases, too, when a person might be actually travelling upon some necessary, just, or charitable object, the whole purpose of his journey might be frustrated by the delay.

Nor will it do to say, that tythingmen will be reasonable and candid, and will always suffer the traveller to pass, if he gives a sufficient excuse. As to many of them, such will undoubtedly be the case. But, unless their office exempts them from the common frailties of humanity, there may be some whose zeal will lead them to doubt of any excuse which may be offered, and render them incom petent to decide fairly on the grounds and causes alleged in excuse or justification of an apparent breach of the law.

But to look more particularly into the statute, and compare it with that of 1782, which it was intended to supersede.

By the latter, the wardens were expressly empowered to stop and detain the traveller, without any warrant, until a trial could be had. By the statute now in force, the tythingman is authorized only to examine the traveller, as to his name, place of abode, and the cause of his travelling ; no power being given to stop or detain. It will be seen, by examining the two statutes, that they are in all respects substantially alike, except in this point o'f stopping or detaining. Indeed, the authority given to the tythingman to examine is copied almost verbatim from a section in the statute of 1782, giving the like authority to wardens. The section, in that act, giving power to stop and detain, is an independent provision, and is wholly omitted in the statute of 1791. This could not have been accidental; but resulted, undoubtedly, from the conviction of the legislature, that the exercise of such a power was inconvenient * and mischievous. Indeed, all who are old enough will remember that the Warden Act was complained of, as giving arbitrary and unconstitutional power to individuals over the persons of their fellow-citizens. With this provision before their eyes, and the complaint fairly stated to them, is it probable that the legislature intended, that what had been done under their authority by one officer, and the power to do which had been found inexpedient, should be done by the intervention of a justice of the peace, without making an express provision for that purpose ?

We think that no such inference can be fairly drawn ; but that the legislature deemed it best to suffer the traveller to pass, if he chose, after examination, and to punish him afterwards by a prosecution for the penalty.

Why, also, it may be asked, was it so carefully provided in the statute, that the traveller should be prosecuted by presentment, if not living within the county where he should be found travelling ? He is found within the county, and the fact is committed there ; which is enough, in ordinary cases, to give jurisdiction to the justice. It could only be, because he could not be stopped by warrant or otherwise, while travelling, and so might have escaped punishment, if the provision had not been made. We think this provision of the act decisive evidence that it was not intended to be executed on Sunday.

Further, it is manifest, that, by the statute, the penalty is incurred, not for travelling on the Lord’s day, but for unnecessary travelling ; the statute being predicated upon the reasonable supposition, that persons might be led, from motives of duty, to undertake or continue a journey on that day. It was not intended to execute the law by previous restraint, but by subsequent punishment; and, indeed, this is the only way in which the whole intent of the legislature can be carried into effect.

Cases may often occur in which it will be both innocent and laudable for the most exemplary citizen to travel on Sunday. Suppose him suddenly called to visit a * child, or other near relative, in a distant town, laboring under a dangerous illness; or suppose him to be a physician, whose professional aid is required in some case of extremity ; or suppose a man’s whole fortune, and the future comfort of his family, to depend upon his being at a remote place early on Monday morning, he not having known of the necessity until Saturday evening ; these are all cases which would generally be considered as justifying the act of travel-ling. Now, to stop a man in either of these predicaments until Monday morning, or even until he should have had a trial on Sunday, would be" to defeat the very object of his journey; and thus to inflict upon him, though innocent, a punishment vastly more severe than he would have been subject to, if he had had no such excuse or justi fication.

If the law were to receive the construction which some well disposed people are inclined to give it, inconveniences would follow which were never thought of in the most rigorous times which this country has seen. It has always, we understand, been the practice among ministers of neighbouring parishes, when they found it convenient to exchange labors on the Lord’s day, if within a short distance of each other, to leave their homes in the morning, and return in the evening, of that day. Now this, considered as strictly as some tythingmen would consider it, would be an act neither of necessity nor of charity ; because the several pulpits might be as well supplied without such exchange, or the ministers might leave their homes on Saturday, and return to them on Monday. But it would be exceedingly burdensome, and tend to interrupt that intercourse which is so beneficial to ministers and their people, if it were made necessary to spend two nights from home, for the purpose of making such exchanges at five or ten miles’ distance.

It has also been the custom of the country to celebrate marriages on the evening of the Lord’s day, and for funeral services to be performed on the afternoon of that day. *We know not, that, if a clergyman should be found travelling, with a view to the performance of either of these religious offices, he might not be interrupted by some who should question the nec.es - sity of performing these acts at such a time. Indeed, such has been the overstrained zeal for the observation of the Lord’s day, that ministers have been stopped, when travelling, after service, for one or other of the foregoing purposes. Surely it ought not to be in the power of tythingmen, or of justices of the peace, to detain persons travelling on such objects. It is enough, that they may be after wards complained of, and obliged to give an account of themselves and their conduct, if a magistrate or grand jury should think it expedient. to entertain such a complaint.

As a reply to this, we are again told, that tythingmen are conscientious and reasonable, and that, in all such cases, they would permit the traveller to pass. But the statute has not committed men’s rights to the keeping of other people ; and it is found better, in this as in other cases, that some guilty persons should escape, than that innocent persons should suffer. Indeed, there is no necessity "that the guilty should escape. They may be prosecuted wherever they may be found, if inhabitants of the Commonwealth ; and if strangers, it is no great evil that they should escape ; especially as they may be brought to trial, if ever they should return into the Commonwealth.

But, it has been urged, shall travelling on the Lord’s day be unlawful, and shall not the community prevent the violation of the law ? and shall the offender go on repeating the unlawful act, in spite of the law and the magistrates ? If the legislature so wills, it must be so ; for, however sacred the day, its observance cannot be enforced, except in the manner provided by law.

It was undoubtedly a difficult subject of legislation ; and a choice of difficulties presented. To prevent a violation by previous restraint could not have been done without hazarding some important personal rights and * privileges, and in most cases prejudging the guilt of the party. This was attempted by the Warden Act in the year 1782. But this was during our revolutionary struggle, when, probably, great irregularities took place; and when constitutional rights were not so well or so generally understood by the people as they have since been. This law continued but a few years in force, being found to be utterly irreconcilable to the habits and character of the people. The legislature has since been content with endeavouring to prevent travelling by subsequent punishment, instead of previous restraint. Nor is this anomalous^ as has been supposed ; for it is the only mode found practicable, to prevent the commission of other crimes. Thus, to publish libels is criminal and punishable ; but no previous restraint is laid upon writing or printing, in order to prevent the publishing of libellous or seditious matter.

For the foregoing reasons, we are satisfied,, that the statute of 1791, c. 58, does not authorize a justice of the peace to receive a complaint, and issue bis warrant, on the Lord’s day, for a violation of that law merely by travelling ; and that an arrest made on that flay, pursuant to a warrant so issued, is illegal, and the officer making it a trespasser.

We believe this decision necessarily to result from a fair construction of the statute, and that it is perfectly conformable to the practical opinion entertained by the community ever since the act passed. For no instance, we are persuaded, exists, of an attempt to carry on a prosecution under the statute on the Lord’s day, until within these two or three years past. During that period, a laudable zeal has appeared for a more strict observation of the day ; but this zeal has, in this case, as it has done in many others, led some persons beyond the limits of lawful authority. If tythingmen will follow the words of the statute in the performance of their duty, there will be no difficulty in bringing offenders to justice ; and, if the present * penalties are not sufficient to prevent unnecessary travel-ling, it is the duty of the legislature to increase them, or to provide some punishment which will operate more in terrorem than a mere pecuniary mulct.

The last point ruled by the judge at the trial, to which exception was then taken, was,f that this action was well brought in the county of Hampden; although the trespass complained of was committed in the county of Hampshire, and the defendant sets up a justification as a constable of a town within the latter county.

It is objected, that this action was made local by the statute of 21 Jac. 1, c. 12, which statute, it is alleged, has force in this Commonwealth, having been adopted and used in our judicial courts before the adoption of our present Constitution. The only evidence of its having been practised upon is the dictum of Chief Justice Dana, in the case of The Commonwealth vs. Leach & al. No lawyer now in practice can recollect any instance when that statute was enforced in our courts. We would not call in question the accuracy of recollection of that able and learned judge. We presume, that, before the Revolution, when he was in practice at the bar, the statute was admitted to be in force. But, for reasons which we proceed to give, we think it has been virtually repealed by several legislative acts passed since the establishment of the Commonwealth.

By the statute of 1784, c. 28, § 13, it is provided, that all transitory actions be brought in the county where one of the parties lives, upon the penalty of double costs for the defendant, if he shall be otherwise sued. Is this a transitory action ? It certainly is, unless made local by some existing statute, according to the suggestion of the defendant’s counsel. But we believe that the legislature, in the use of the phrase transitory action, had reference to the general common law division of actions into transitory'and local, and not to such actions as, by any particular statute of England, were confined to particular counties. This general statute provision for the bringing of actions * would of course repeal any preexisting English statute which might have received force here by usage and adoption.

But the legislature of this Commonwealth seem to have considered the claims of public officers against whom actions may be brought for any thing done by them in the execution of their offices, and to have provided all the security for them which was deemed necessary. For, by the statute of 1792, c. 41, the privilege of giving their special justification in evidence under the general issue is secured to them. Now, as this was one of the provisions of the statute of James, it would seem that there was no necessity of passing this law, if that were in force ; apd the reenactment of this provision only may be considered a repeal, by implication, of any preexisting law resting only on infrequent and very limited practice for its authority.

We think, therefore, that the present action is not local; although possibly the legislature may think that due attention to the interests of public officers will require that actions of this nature should be made local.

The case of French vs. Judson goes far to show that the statute of James was not considered by the Court or counsel as in force within the Commonwealth. The plea in that case brought the defendant completely within the statute ; yet it was not cited, although a ' multitude, of authorities appear to have been looked into. It is true, the Court appear to have spoken doubtfully of the validity of such a plea, had the suit been by a party to the original action in which the execution issued. But the statute of James makes no such distinction ; and the Court expressly waived any opinion upon that subject. Actions are continually brought against sheriffs in a county different from that in which they live, or in which the facts complained of took place ; and yet we hear nothing of such actions being local. We think there is no ground for this objection to the action.

Judgment on the verdict. 
      
      
        Numbers xv. 33.
     
      
      
        Vide Appendix to Hutch. Hist, of Mass.
      
     