
    Commonwealth ex rel. v. Keithan.
    A case stated was filed in the common pleas June 4,1888, wherein it was agreed that the defendant, on Sunday, May 20, 1880, sold and delivered ice cream, bread and cakes from his restaurant, at all hours of the day, to persons who either ate them on the premises or carried them away. The case stated further provided: ‘‘If the court be of opinion that the sale of ice cream, cakes and bread, as aforesaid, •on the day aforesaid, was a violation of the Act of April 22,1794, prohibiting the performance of worldly employment on Sunday, and that the defendant was liable for the payment of said penalty, if the suit had been brought in proper time, then judgment to be entered for the amount of the penalty for the plaintiff, but if not judgment for defendant.” The court below entered judgment for the defendant. Held that a 'writ of error should be quashed, in such case.
    Feb. 20, 1889.
    Error, No. 57 Jan. T. 1889, to C. P. Schuylkill •Co., to review a judgment for defendant on a case stated wherein the Commonwealth ex rel. John H. Kurtz was plaintiff, and Frederick Keithan was defendant, at Sept. T. 1888, No. 33. .Sterrett and Mitchell, JJ., absent.
    The case stated was as follows:
    “And now, June 4, 1888, it is hereby agreed by and between the parties to the above suit,, that the following case be stated for the opinion of the court in the nature of a special verdict. The defendant has not a licensed inn, tavern, or eating house, under the liquor laws of the state. The defendant furnishes no food or eatables to his customers, to be eaten on the premises or to be carried .away, except ice cream, cakes and bread.
    “ Frederick Keithan, the above named defendant, is a resident •of Shenandoah, and the proprietor of an ice cream saloon, and a cake and bread bakery, and, in the conduct of said business, makes ice cream, and bakes bread and cakes for sale to the public.
    “ On Sunday, May 20, 1888, the defendant sold and delivered, .at all hours during said day, ice cream, bread and cakes to divers persons who came to his store or saloon, and the same was eaten on the premises and, in some instances, ice cream, cakes and bread were -carried away by his customers.
    “It is urged by the commonwealth that the sale of the ice ■cream, cakes and bread as aforesaid, on the day aforesaid, was in violation of the Act of Assembly of April 22, 1794, commonly known as the Sunday Law, and that the said defendant was subject .to the penalty imposed by the said Act, to wit: the sum of $4. If the court be of the opinion that the sale of ice cream, cakes and bread, as aforesaid, on the day aforesaid, was a violation of the said Act of Assembly, and that the defendant was liable for the payment -of the said penalty, if the suit had been brought in proper time, then judgment to be entered for the amount of the penalty for the plaintiff, but if not, then judgment to be entered for the defendant. The costs to follow the judgment, and either party reserving the .right to sue out a writ of' error therein.”
    Judgment was entered for the defendant in an opinion by • Green, J., following Com. ex rel. v. Bosch, 15 W. N. C. 316.
    
      
      The assignments of error specified that the court erred, 1, in the interpretation of the facts in the case stated ; 2, in deciding that “ the business of making and furnishing bread, cakes and ice cream to customers, etc., on Sunday, is protected, because said business comes within the protection of the Act of Assembly of 17943, in regard to the interpretation of said Act of Assembly; and, 4, in not entering judgment for the commonwealth, under the facts and the law, in the case stated.
    • The Act of April 22, 1794, § 1, provides as follows: “ If any person shall do or perform any worldly employment or business whatsoever on the Lord’s day, commonly called Sunday (works of necessity and charity only excepted), shall use or practice any unlawful game, hunting, shooting, sport or diversion whatsoever on the same day, and be convicted thereof, every such person so offending shall, for every such offense, forfeit and pay four dollars, to be levied by distress; or in case he or she shall refuse or neglect to pay the said sum, or goods and chattels cannot be found, whereof to levy the same by distress, he or she shall suffer six days’ imprisonment in the house of correction of the proper county: Prometed always, That nothing herein contained shall be construed to prohibit the dressing of victuals in private families, bake houses, lodging houses, inns and other houses of entertainment, for the use of sojourners, travelers or strangers. . . .”
    Section 4 of said Act provides: “Provided always, That every such prosecution shall be commenced within seventy-two hours after the offense shall be committed.”
    
      S. G. M. Hollopeter, for plaintiff in error.
    
      J. S. Whitehouse and J. H. Pomeroy, for defendant in error.
    Feb. 20, 1889.
   Per Curiam,

Writ quashed. There is no case presented.

On the merits, attempted to be raised in the above case, see Burry’s Ap., supra, p. 89, cited in the paper book of counsel for plaintiff in error.  