
    HAYNES versus SLEDGE AND MAXY.
    Á writ, which appeared from the teste thereof, to have issued on Sunday, held void.
    But, ruled competent for a plaintiff by replication to a plea,< that a writ issued on Sunday/ to show facts authorising its issuance.
    
      Semble — that circumstances which would justify the service of process, under the statute of 1803, would likewise authorise its issuance.
    
    The plaintiffs below, Sledge and Maxy, declared against the defendant Haynes, in the action of trespass on the case. The defendant plead in abatement of the writ, that it had issued upon the Sabbath, and on demurrer, the Circuit Court held the plea bad, and gave judgment thereon for the plaintiff.
    
      The case was brought up, upon this point, from the Circuit Court of Montgomery.
    Goldtiiwaite, for Plaintiff
    Cited ? Comyn, 399 ; •2 Dye?', 183.
   By Mr. Justice Thornton:

This was an action of trespass on the case, brought by the defendants in error, who were plaintiffs below, against the present plaintiff. The only error assigned is, that the Court below sustained the demurrer of the defendants to the plea in abatement, filed by the plaintiff. The plea was, that the original writ issued on Sunday, as was apparent from its teste. The maxim of the Common Law “ Dies Dominicus non est juridicus,” as we learn from all the authorities, which we consult for its principles, expressly embraced and avoided every original process obnoxious to this objection.

There is no provision in our Constitution, or any enactment or our Legislature, which, by implication, or expressly, in the letter or spirit of it, abrogates this rule. The Declaration of Bights contains several clauses on the subject of religion; all of which have for their object, the preservation of the rights of conscience, and the security of the citizen from any violation of his civil rights, privileges, and capacities, by means of any religious testes, or ecclesiastical establishments. It is expressly said, no human authority ought in any case whatever, to control, or interfere with the rights of conscience. Now, if by express legislation, every original writ were declared void, which issued on Sunday; I could not say that such an act, was in violation of the letter, or spirit of the constitution. I -would rather incline to the opinion, that it would not be. For although a Jew, a Turk, or a religious sectarian of any conceivable faith, or persuasion, might fill the office of clerk; and the doing of the forbidden act, would be no hurt to his conscience, and a fruitful source of profit; yet, such a municipal regulation, of the functions of the office, would surely be no violation of the rights of conscience; nor unconstitutional preference, of one sect to another; nor establishment of religion by law. Then the Common Law rule doing the same thing, would be liable to no greater objection.

We do not hesitate to declare, that it is incompetent to the Judiciary, to abolish this rule of the Common Law. To decide that a writ issued on' Sunday, is valid, would be equivalent to saying, that the performance of the official duties of a large class of public functionaries, is as obligatory upon them, on this day, as on any other; for if the officer may do so, it might well be argued that he must) and we would by judicial decision, be imposing a duty upon him, contrary to the Common Law, which the Legislature have never, in this instance, thought proper to abolish.

We have a statute, making void to all intents and purposes, the service of any process on Sunday, except in criminal cases, or for a breach of the peace, unless upon affidavit made as prescribed, “ that under cover of the said first day of the week, the person liable, intends to withdraw, or escape from the State.” It would seem to me, that in those instances, where from the urgent necessity of the case, service of process is authorised, its issuance, is under the same circumstances, rendered a matter of duty; and being provided for the prevention of fraud, and iniquity, could not shock the moral, and religious sense of the community, as a general disregard of the Sabbath, assuredly would. If the writ in this case had been issued under circumstances making it an exception from the general rule, or if other facts exist, which would avoid the plea, it would have been competent to the party to have shewn it, by his replication ; and as by the decision of the Court, it was held that no such shewing was necessary, the opportunity will still be allowed for the plaintiff to do so.

Let the judgment be reversed, and thé cause remanded. 
      
       20 Vin.Ab.62, 63, title Sunday-7 Comy, Dig. 399-3d Burr. 1598.-2 Dyer, 168.
     
      
       Aik. Dig. 440
     