
    JAMES K. MELVIN v. HENRY EASLEY.
    The sale, privately, of a horse on Sunday by a horse-dealer to one knowing of the calling of the seller, was Held (Batjxb, J. dissmtienfe,) not to be such a violation by the buyer of the 118th ch. sec. I, of tlie Revised Statutes, as to prevent him from recovering io an action for a deceit and false warranty against the seller.
    This was an action on the case, for a deceit and false warranty on the sale of a horse, tried before Person,. J., at the Spring Term, 185T, of New Hanover Superior Court.
    The plaintiff gave in evidence a paper-writing acknowledging the receipt of the purchase-money, and warranting the horse in question to he “sound and healthy,” which was da: ted 8th of January, 1849, and witnessed by a subscribing witness. It was proved that the sale of the horse took place on the day preceding that set forth in the writing, to wit, on Sunday the seventh of that month, when the animal was deliver<ed. There was much evidence tending to show the unsoundsress of the property at the time of the sale, all of which, with the instruction of the Court, on that point, was submitted to the jury without exception. There was evidence that Easley, the defendant, «came t© the house of the plaintiff’s mother, on Saturday night, and that the sale took place next morning jnst after breakfast,; also, that the defendant said, in the hearing of the plaintiff, thathe was-ahorse-trader. There was no evidence that the plaintiff and defendant were known to each other before the time spoken of.
    The defendant’s counsel asked the Court to instruct the juay that if they should find that the ordinary calling of Easley was that of a horse-trader, and the plaintiff knew it, and the horse was sold oh Sunday, the plaintiff eeuld not recover.
    The Court declined giving the instruction asked, and the defendant excepted.
    • There was a verdict and judgment for the plaintiff, and the «defendant appealed.
    
      E. G. Haywood and Baker, for the plaintiff
    
      Troy and London, for the defendant.
   Pearson, C. J.

The defendant sold a horse to the plaintiff ■with a warranty of soundness which was false. The-sale was ¡made on .Sunday, in the country, no one being present, except the parties and a witness. The defendant was a horse-trader, which was known to the plaintiff. The question is, can the -defondant defend the action because the sale was on Sunday?

The defense is pnt on the statute, Rev. Statutes, ch. 118, sec. 1. “That all and ev-ery person and persons whatsoever, •shall, on the Lord’s day, commonly called Sunday, carefully apply themselves to the duties of religion and piety, and that ao tradesman, artificer, planter,‘laborer, or other person whatsoever, shall, upon the land ©r water, do, or exereise any labor, business, or work, of their ordinary callings .(works of necessity and charity only excepted) on the Lord’s day aforesaid or any pari thereof, on pain, that every person so offending, being of the age of fourteen years and upwards, shall forfeit and pay the sum of one dollar.” This-statute is taken from 29 Oar. 2, ch. 2, see. 1, which was enacted in this colony in 1741, a-nd re-enacted after the adoption of th-e-Constitution. My opinion is that the defense cannot be supported, and I put i't on on two- grounds :

I do not believe- the plaintiff comes within the operation: of the statute; Buying horses was not his “ordinary calling,”' so the statute d'oes not prohibit Min from doing so, or impose-any penalty upon him.

I admit that if a shop is kept open- on Sunday, or goods are-sold at auetion, the price cannot be recovered ; I also admit,, for the sake-of'th'e argument on this view of the ease, that the-defendant could not maintain an action- for the price of the 3-iorse. It is said the plaintiff linew the defendant was a horse-trader and concurred in his violation of the statute, and consequently, was partioeps-mminis. I>oes this- consequence-follow-? Iacrimes, there are accessories; in misdemeanors; all who-aid or concur are held to be equally guilty, and are-subject to like punishment with th-e-party who commits the-offense. This plaintiff is not guilty of violating- the- law, andi is not subjected to- a penalty,, so he cannot be partioeps orim.~ inis in tlie legal1 sense of the terms. He is no-t in-pari delicto7. and it is against the policy of the law, and will-defeat its object so to eonsidbr him-. The Court will no-t aid any persons who violates the law; therefore, the defendant c-ould not maintain an- action. This rule is- adopted' on the ground? of policy,., for the- purpose of preventing-a violation of the- law, and if' confined in its operation-to-the actual* offender, its application* will be salutary, but if it be-extended'to the party-who is not-an offender, so-far from- checking,- it will encourage a violation of it, by letting it be-known- to- “-horse-traders,”' “ shopkeepers” and “all whom it may e-onee-m,” that they may cheat with impunity, provided always, it may be don-e on tlie Xo7xTs day ! !' f The}»- will readily purchase “ this indulgence and dispensation” by paying “one- dollar;”' if it should; basiled for.

If it be said this will prevent people from trading with them, the reply is, that is not the object of the statute, but to prevent “ tradesmen,” “ artificers, &c.,” from exercising their ordinary callings on Sunday, &c„,” so this action of the Court shifts the operation and fixes the burden on those not included, to the encouragement of those who are included in. the prohibition, and upon whom, alone, the penalty is imposed.

Our attention was called in the argument to a 2-emark of Bayley, Judge, in Bloxome v. Williams, 3 Barn, and Cress. 232, (10 E. C. L. Rep. 60.) In that case, the plaintiff did not lenow that the defendant was a horse-dealer, and it is held that he could 2-ecover, and the learned Judge incidentally says, “ if the plaintiff had known the defendant was a horsedealci’, such knowledge of the illegality of the contract would have prevented him from maintaining the action.” This was a mere dictum, not even called for‘in aid of the ai'gument. I cannot snppose that the learned Judge took time to consider of it, for he overlooks the fact, that the prohibition and the penalty apply to the defendant only.

In the second place, I do not believe a contract, like that under consideration, comes within the operation of the statute. A contract 2nade on Sunday, may be enforced by an action at co2nmon law. This is settled, Drury v. Defontaine, 1 Taunton, 130, in which it is decided that one, whose ordinary calling was to sell horses at auction, may recover the p2'iee of a horse sold on Sunday at private sale. The ordinary calling of the defendant was to sell hoi’ses at private sale, and I admit that this case co2nes within the words of the statute, although the sale was made in the country, where no oue was present except the parties and the witness. So the case of a Lawyei’, who sits in his room and reads a law-book, or writes a deed, or a merchant, who in his counting-room, posts his books, or an old lady, who sits by her fireside and knits, if done on Sunday, comes within the words of the statute. But my opinion is that the statute is void and inope2-ative in respect to cases of this kind, aud that its ope2-ation is confined fo manual, visible or noisy laboi-, such as is calculated to dis-

turb other people; for example, keeping an open shop or working at a black-smith’s anvil, or crying an auction in a town. The Legislature has power to prohibit labor of this kind on Sunday, on the ground of public decency, and to prevent public devotion from being disturbed ; in the same way as the exhibition of animals, or the sale of spirituous liquor within a certain -distance of a religious assembly is prohibited. But when it goes further, and on the ground of forcing all persons to observe the Lord’s day, and carefully apply themselves to the duties of religion and piety on that day, prohibits labor which is done in private, and which does not offend public decency or disturb the religious devotions of others, the power is exceeded, and the statute is void for the excess, by force of the “ declaration of lights,” sec. 19 : “ All men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences.” Ours is a Christian country, but Christianity is not established by law, and the genius of our free institutions requires that “ church” and “State” should be'kept separate. In England, religion is established by law. The head of the-•church is the head of the State, and the statute 29 Oar. 2, has full force and effect. Here, there is a different condition of things, and only such part of the statute as is necesssary to enforce public decency is of force and effect. In Fennell v. Fidler, 5 Barn, and Cress. 406, (11 En. C. L. Rep. 261,) the case of a private sale, by a horse-dealer, on Sunday, is held to be within the operation of the statute, on the express ground that “ the spirit of the act is to advance the interest of religion, —to turn a man’s thoughts from his worldly concerns and to -direct them to the duties of piety and religion, and the act cannot be construed according to its spirit, unlesss it is so construed as to check the course of worldly traffic.” This is the language of Bayffiy, Judge, who, in the case of Bloxome v. Williams, supra, expressed a doubt whether the statute applies to a bargain of this description, and inclined to think “ that it applied only to manual labor and other work visibly laborious, and the keeping of open shops.” This was while he was under the impression that the intention of the act was to promote public decency,” but afterwards, in Fennell v. Ridler, supra, upon further consideration, he expressed himself satisfied that “ there was nothing in the act to show that it was passed exclusively for promoting public decency, and not for regulating private conduct. Labor may be private and not meet the public eye, and so not offend against public decency, but it is equally labor, and equally interferes with a man’s religious duties.” So these two cases establish the po- * sitien, that considering the act as passed exclusively for promoting public decency, the case of a private sale would not come within its operation, and it was only b}r extending its object to the regulation of private canduct, and the enforcement of religious duties, that such a sale was brought within its operation ; this latter purpose is prohibited by our Constitution ; it follows that a private sale is not within the operation of the statute, so far as it can be allowed force and effect.

The cases cited from the New England States have no bearing. Their statutes prohibit all secular labor on the Sabbath, and the notions there entertained are far more strict and intolerant, than the sentiments that have heretofore prevailed in this State.

The general tone of State v. Williams, 4 Ire. Rep. 400, and Shaw v. Moore, 4 Jones’ Rep. 25, fully accords with this conclusion. In my opinion there is no error.

Manly, J. The defense raises two points : First, whether the transaction, as to either of the parties, was unlawful under the provisions of the Rev. Stat., c. 118 ; and, secondly, whether the plaintiff’s complicity was such as to deprive him of redress upon the contract, in case it was unlawful for the other. My opinion is adverse to the defense upon the first of these points.

The range of operation to be given to the statute, under the restraining influence of the Rill of Rights, embraces only the public conduct of the citizen and cannot be intended, or so construed, as to apply to his private conduct.

This is inferable from several considerations, but mainly, as I think, from the uniform habits and customs of our people, putting, practically, this construction upon it, and from the omission on the part of the Legislature to exempt from the operation of the law, certain acts (neither of necessity nor charity) which we suppose it certainly would have done, if it had intended the law to apply generally to the class of cases to which they belong — such as cooking in private families, and in inns, and victualling houses — the work of a ferryboat, of coaches upon rail and other roads, and boats upon waters, in their ordinary calling. An absolute and entire suspension of all secular employment, which would be implied in the prevention of these, and in a strict construction of our statute, has never been supposed to be compulsory in any part of our country, except, perhaps, at one time in New England, by force of their peculiar laws. In North Carolina, it would be clearly contrary to the fundamental law to attempt an enforcement of that part of our statute which enjoins upon all persons a careful application of themselves, on the Lord’s day, to the duties of religion and piety. To enforce such an injunction, it must first be settled by the State, what specific duties are embraced in our obligations to God, and all men be then called upon to conform to the State ritual. This is forbidden by our Bill of Rights, (sec. 19,) and would be violative of religious freedom, without which, society could not be held together by the ties which at present bind it.

So, we are of opinion it is against the spirit of our legislation, and, therefore, not in the contemplation of the Assembly, to restrain the private conduct of the citizen whore there is no offense against1 public order and decency, and no disturbance of others in their proper observance of the day. At common law, the religious observance of Sunday has never been considered a duty of perfect obligation. This is true, even in England. Restraints, therefore, upon the conduct of the citizen on that day, is matter dependent upon express legislative provision, and it would be against rule to extend these beyond the plainly expressed will of the Legislature.

I entertain no doubt, the Legislature of the State has the power, under the Constitution, to prohibit work on Sunday, as'a matter pertaining to the civil well-being of the community, and I am also well convinced there is nothing- more essential to the physical, social, and religious elevation of a people, than the institution of a weekly day of rest — a day set apart, especially, for recreation and for- the- worship of Almighty God. But this is not the point. It is, how far the 'Legislature has thought proper, actually, to- take-this matter in hand, in aid of the teachers of religion, and to-enforce, by law, the observance of Sunday. The leading idea in- the original framework of our government, an>d in the subsequent legislative and executive action under it, has been to leave-men as free as is consistent with safety — -to interfere no more with social liberty, by law, than is needful to secure order and the rights of each and every one. Outside of this, it is left to the individual citizen to govern himself — guided by the religious and moral teachings to which he is accustomed to resort, and lienee the spirit of individual responsibility, of independence and self-reliance, which is so remarkably characteristic of the American people-, and which has given such force and effect to our institutions. Of all the classes of human rights, those which belong to- conscience, in the worship of God, are held the most sacred. They cannot be touched without arousing pubic- attention and censure, and it is the last subject on which the State would resort to legislation, not actually needed for political safety and repose.

In view of these tilings, especially of the practical construction put upon the law by the usage of our people, from the beginning, (whieli is high- evidence of what was meant,) connected with the generality o-f the words used, I am of the opinion already stated, that it was not intended by our Legislature to act by the law wpon the private conduct of the citizen.

The transaction, out of which this controversy has arisen-, ■was, we suppose., (no-thing to the contrary being stated). prLvate — between the parties, in tire presence of a single individual, the wetness, and was net, therefore, within the purview' of the statute.

The decisions in the other States of our country, which have ■ l^eon cited in the'discussion, may be supported upon the particular phraseology of their respective statutes, and the sense in which they have been accepted and practiced by our people, and from the general course of legislation in those States. I refer to the cases of Robeson v. French, 12 Metcalf, 24; Lyon v. Strong, 6 Verm. Rep. 214; Northup v. Foot, 14 Wind. Rep. 249 ; Speeht v. Com. of Penn. 8 Barr’s. Rep. 313 ; Bloom v. Richards, 22 Ohio Rep. 387 ; City Council of Charleston v. Benjamin, 2 Strob. Rep. (S. C.) 508. To the point of legislative power, some of the eases which I have examined, (where the States have similar constitutional provisions to our own) are germain to the case before ns, but upon the construction of our statute, (hey are not believed to be so. As my difficulty is not upon the former, but upon the latter question. Ido not derive any considerable aid from them.

The English cases cited are in exposition of the 29 Charles 2, ch. 7, and establish the conclusion (after doubts) that the statute was intended to operate upon the private conduct of the subject. The force of this conclusion, in its bearing upon, our case, is impaired by important differences between the statutes in the twrn cases, and by important differences in the constitutional power of the two governments, affecting the construction. The cases referred to are, Bloxome v. Williams, 10 E. Com. L. Rep. 60; Fennell v. Ridler, 10 Do. 261; Smith v. Sparrow, 13 Do. 351; Williams v. Paul, 19 Do. 192 ; Scarfe v. Morgan, 4 Mees, and Welsby (Ex.) 270. Two things are especially noticeable upon an examination of these cases: First, the doubts of the English Judges, whether the statute should have the more extended operation, and second, their reluctance to construe it so as to make void private contracts, especially those that bad been partly executed. It seems, however, that these difficulties were finally overcome by force of the special provisions of the statute, and by force, as I suppose, of the powers and general course of legislation in the country. It will be perceived, by reference to the statute at large, (29 Charles 2) that it has many provisions giving it an operation manifestly upon the personal and private conduct of the subject, which our extract from it has n'ot. And when this is considered, in connection with the spirit of their laws and the religious establishment, as part of that law, conclusions upon the respective statutes may be in opposite directions without any violation of principle in either. In England, there is a Christian ritual established by law, with parliamentary provisions for inculcating it privately and publicly, and a consequent right in the government to decide matters of faith and matters pertaining to established rites. In our State, there is nothing of the sort, with the single exception, that officers of the State mnst be Christians, there is no privilege or disability on account of religion. The State eo-nfesses its incompetency to judge in spiritual matters between men or between man and his Maker, and leaves in all a perfect religions liberty to -worship God as conscience dictates, or not to worship him at all, if they can so content themselves. Both peoples are equally Christian, and governed in their affairs, national and personal, alike, by the principles of Christian morality, but the one, through its government, deems it proper to cooperate with the ministers of religion in fostering and enforcing, — the other abjures all pow'er to interfere, and leaves spiritual matters exclusively in the hands of the teachers of religion. Hence, the English cases are not regarded as entitled to the weight of authority here. Their Judges are interpreting a different statute, in many important particulars, from that which we are called upon to expound. Their constitution and parliamentary powers and usages are different, and in the light of such differences, the same minds would probably come to different conclusions.

The defense is a novelty in North Carolina, and it has the singular demerit of being unconscientious, and at the same time, wearing a garb of Christian morality. I do not think it-■will do as the result of the construction of the statute as it now stands. If it be the purpose of the Legislature by that statute to .prohibit acts of the class now before us, it is due to the great importance of the principle involved, and to the fact, that it is contrary to the general tenor of the legislation of the State, to express it unequivocally, and not to leave it •to a doubtful construction. Should the public will desire further provision of law upon the subject, it may be speedily put right in the next General Assembly by proper statutory enactments.

The view which is thus taken of the first point, makes it unnecessary for me to express an opinion as to the other, about which, I entertain some doubts. The anomaly of the case is, that the act is not prohibited alike to both parties. For one, it is not lawful; for the other, it is; unless he be affected by knowingly dealing with the first. It is a matter of doubt, whether mere knowledge on the part of the purchaser, puts him in pari delicto, and makes him amenable for the violation of the statute. Upon this point I decline expressing an opinion ; but being of opinion with the plaintiff upon the first, point, I think the judgment below should be affirmed.

Battle, J.,

(dissentiente.) This is an action of trespass on the case, in which the plaintiff' declares in two counts: first, for a deceit, and, secondly, for a false warranty of soundness on the sale of a horse by the defendant to the plaintiff. On the trial, there was testimony tending to show that the sale was made on a Sunday; that the defendant was a horse-dealer, and that the plaintiff' knew it. The defendant’s counsel prayed the Court to instruct the jury, that “if they should find that the ordinary calling of Easley was that of a horse-trader, and the plaintiff' knew it, and the horse was sold on a Sunday, the plaintiff could not recover.” His Honor refused to give the instruction, and there was a verdict for the plaintiff. The bill of exceptions does not state whether the sale was made in a town or in the country, in public or in private, in the presence of many persons or of few ; so that the naked question is presented, whether the contract assuming it to have been made on a Sunday, was by the law of this State, void — as to either, or both, of the parties to it.

In the argument of this question, it was admitted by the counsel for the defendant, that the contract was good at the common law, but he contended that it was in violation of the first section of the 118th chapter of the Revised Statutes, and was, therefore, void as to both parties; so that neither could maintain any action upon it. The section and chapter of the act referred to, (which was in force when the contract was made) declares, “ That all and every person and persons whatsoever, shall, on the Lord’s day, commonly called Sunday, carefully apply themselves to the duties of religion and piety, and that no tradesman, artificer, planter, laborer, or other person, whatsoever, shall, upon the land or water, do, or exercise, any labor, business or work of their ordinary callings, &c.,” “on the Lord’s day aforesaid, or any part thereof, upon pain that every person so offending, being of the age of fourteen years and upwards, shall forfeit and pay the sum of one dollar.” This enactment in the Revised Statutes urns taken from the act of 1741, (see Rev. Code of 1820, ch. 30, sec. 3,) and is in very nearly the same words as the statute 29th Charles 2nd, ch. 7, sec. 1.

Upon the general principle, which has been repeatedly recognised by the courts, both of England and this State, that a conti'act made in contravention of the law, whether malum in se or malum prohibitum, cannot be sustained, it has been settled in the former country, that a contract of sale intered into on the Lord’s day, by any person in the exercise of his ordinary calling, is void. Thus, in the case of Fennell v. Ridler, 5 Barn. and Cress. 406, (11 Com. L. Rep. 261.) it was decided that a horse-dealer, who purchased a horse in the course of his ordinary business on a Sunday, could not recover on a warranty contained in the contract of sale. So, in Smith v. Sparrow, 4 Bing. Rep. 84, (13 Com. L. Rep. 351,) it was held} that an action would not lie on a contract made on a Sunday, although it was made by an agent, and although the objection was taken by the parly at whose request the contract was

entered into. The case of Bloxome v. Williams, 3 Barn, and Cress. Rep. 232, (10 Com. L. Rep. 60,) lays down the same-doctrine, but Bayley, J., who delivered the opinion pf the Court said, that the party who was not acting in his- ordinary1 calling, and was ignorant, of the fact, that the other party was-so acting, might recover upon such a contract. He intimates strongly, however, that if the plaintiff had known that the defendant was acting in his ordinary calling, he would have been regarded as having aided in the violation of the law, and, for that reason, could not have sued on the contract.

It has been said in argument here, that the latter proposition of the learned Judge was a mere dictum, not necessary to the decision of the cause, and, therefore, not fully considered by him. I cannot so regard it, because the fact that the plaintiff was ignorant of the other party’s calling, was stated as an exception to the general rule, and of course- admitted the rule.

In England, the doctrine is confined to persons having an-ordinary’' calling, and acting in the course of it; Drury v. Defontaine, 1 Taun. Rep. 131; Rex v. the Inhabitants of Whitemarsh, 7 Barn. and Cress Rep. 596; Sandiman v. Breach, Ibid 100. These cases all recognise the general rule, and I think that it may be considered well established in England, that where a contract is entered into by any person in the exercise of his ordinary business on a Sunday, he cannot recover upon it, nor can the other party do so, if he knew of the fact that the first was so acting when the contract was made.- — • From a note to the American edition of Smith on contracts, 264, (marginal page 181,) it appears that provisions more or less similar to those of the statute of Charles the second exist in nearly all the States in the Union, and that contracts in contravention of them are void. Thus, in Massachusetts, no action can be maintained for a deceit in the exchange of horses on a Sunday; Robeson v. French, Metc’f Rep. 24. Nor in Vermont for a breach of warranty on such a sale; Lyon v. Strong, 6 Verm. Rep. 214. In the case of Northup v. Foot, 14 Wend. Rep. 249, which was an action upon a contract entered into on Sunday in Connecticut, the Court held that it was v.eidibythe law of that State, and that neither an-, action on the case, fox" a deceit, nor in assumpsit, could be mairhtained’upon.it That-was the case of the sale- of a horse and, the suit was-brought by the vendee, which makesit direct authority in,< favor of my-view of the present case;.

If I understood the counsel: for- the plaintiff; he-did. not deny that if the present ease had; occurred, in England, his client could not have sustained the action. B.ut he insisted.that the construction of oura-et must be-different from that put outlie English, statute-,, because,.in, England, there is-an, established cburc-h, and their statute- was intended to compela better observation of Sunday by directing “that every person shall, on eveiy Lord’s day apply himself to the observation of the same, by exercising.- himself in the- duties- of piety and: time religion,” as was declared by Bayley, Judge, in the- above-mentioned case of Fennell v. Ridler. In this-State*.the counsel said, we have- no church, establishment,, and, our Bill of Rights declares “ that all men have aa unalienable right to-worship Almighty God according to the dictates of their own consciences.” (See Bill of Rights,, sec. 19..). He thence inferred that our act must be so construed as- not to enjoin upon any person the observation of Sunday as a religious duty, but only a political regulation,, and that it embraces- such acts- only as offend public decency.

I admit that we have not any church establishment and that the constitutions, both of this State and of the United States, forbid that there ever should be; but, yet it cannot be denied that ours is a Christian country, and that the constitution of North Carolina recognises the Christian religion as a part of our system of government. Without looking to other parts of it, the famous 32nd section of the Constitution expressly declares, “that no person, who shall deny the being of a God, or the truth of the Christian religion, or the divine authority of the old or new Testament, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office, or place of trust, or pro-

fit in the civil department within this State,” (see Amendments to the Constitution, Art. 4, sec. 2). Our governors and magistrates, then, must be Christians, and it seems to me to be a necessary consequence that our government is a Christian government; and so it was undoubtedly considered to be by all the great men, who, in the convention of 1835, took part in the debate on the proposed abrogation of the 32nd section j ust referred to. (See debates of the Convention of 1835). It is well known that the Christian sabbath, sometimes called the Lord’s day, but more commonly “sunday,” is a Christian institution, and I cannot perceive any good reason why our Legislature may not direct it to be observed by any person and in any manner, which.their wisdom may suggest for the happiness of the people and the welfare of the State, saving and reserving always to every person the right to worship God according to the dictates of his own conscience. The Bill of Rights seems to recognise the duty of all persons to worship Almighty God in some manner, and only leaves the manner to be determined by their own consciences. How the compelling them to abstain from their ordinary secular business on sunday, (the day usually set apart in all Christian countries for public worship and private devotion,) can interfere with their rights of conscience, is what I cannot well comprehend. Ruffin, O. J., did not seem to think so, when he gave the reasons of the Court for the decision in the case of the State v. Williams, 4 Ire. Rep. 400. It was there held that a master was not indictable, at common law, for compelling his slaves to do the ordinary work of the farm on Sunday. But it was strongly intimated that he might have been warranted for the penalty given by the act of Assembly, upon which I am commenting. Speaking on the propriety and political necessity, of keeping one day in the week for the purposes of “public worship, relaxation and refreshment,” the learned Chief Justice says, “that the institution, wherever it has existed, has proved to be a great good — promoting private virtue and happiness among all classes, and the public morals and prosperity. It is, there'fore, fit, that every commonwealth, and especially one in which Christianity is generally professed, should set apart, by law, a day for those purposes, and enforce its due observance by such sanctions as may seem adequate. By a statute in this State, the profanation of Sunday by working in a person’s ordinary calling, is punishable by a pecuniary fine, recoverable by a summary proceeding before a justice of the peace, Eev. Stat. chap. 119, sec. 1. As that statute does not make the offense indictable, it is not punishable in that mode, unless it be so at the common law.” In another part of the opinion, he thus expresses himself in relation to the Christian religion : “ In this State, however, although recognised as an existing, and as the prevalent religion, it is not, and cannot be, established by law in any form, nor as consisting of any particular doctrines, or imposing any special duties of worship, or of worship at particular places or periods. Therefore, however clearly the profanation of Sunday might be against the Christian religion, it is not, and could not here be made, merely as a breach of religious duty, an offense ; and much less can it be held an offense at common law. The Legislature, deeming it, as it does many other violations of Christian duty, detrimental to the State, may prohibit, and then it will be punishable to the extent, and in the manner pointed out by the Legislature.” He concludes his able opinion, by intimating that the Legislature might cause the observance of Sunday to be enforced by stronger measures than had been prescribed in the statute before spoken of. He says, “ but that is with the Legislature. If they think it needful, higher penalties may be laid, or the profanation of Sunday may be prohibited in general terms, and thereby it will become a misdemeanor and indictable.” In the whole of this opinion, it will be seen that Chief Justice, Buffin, did not once question the validity of the statute, nor intimate that it must be construed differently, here, from what he knew was the settled construction of the statute of 29th Charles 2nd, in England. It seems to me that the conclusion is irresistible, that the defendant, in the present case, might have been warranted for the penalty incurred by selling his horse, in the

ordinary conree of his business, on Sunday. If so, the act was unlawful, and the contract of sale void ; Sharpe v. Farmer, 4 Dev. and Bat. Rep. 122; Ramsay v. Woodward, Jones7 Rep. 508; Ingram v. Ingram, 4 Jones’ Rep. 188 ; Powell v. Inman, 7 Jones’ Rep. 28. The plaintiff was, in pa/ri delicto, because, with full knowledge that the- defendant was a horse-trader, he concurred in the violation of the law,, showing his consciousness that he was doing wrong by putting a false date' to the sale-note,, dating if on Monday, instead of Sunday, the day on which it ivas in fact given. In the conclusion to which I have come upon the constitutional question involved in this case, I am glad to find myself sustained by a case decided in Pennsylvania. In Specht v. The Commonwealth, 8 Barr’s. Rep. 313, it was held (affirming the previous decision of The Commonwealth v. Wolf, 3 Ser. and Rawle’s Rep.) that the Pennsylvania Lord’s day act was not at variance with the-provision in the State Constitution, declaring the right of freedom of conscience in religious matters ; and a conviction, under the act, of one of the sect called Seventh-day Baptists, was therefore affirmed, the decision being based upon the- ground of a day of rest being necessary to- the welfare of society, and that the mere- prohibition' of secular occupation did not interfere with the rights of conscience. (See the- case- referred to in a note to the 264th page of the Am. Edition of Smith on Contracts — m.—p. 181.) Similar decisions have been made in Obi©' and South Carolina, upon similar statutes, on the same grounds. See Bloom v. Richards, 22 Ohio Rep. 387; The City Council of Charleston v. Benjamin, 2 Strob. Law Rep. 508; Sedg. on Stat. and Com.' Law, 85, in note. I think the- judgment ought tO' be reversed, and a new trial granted.

Per Curiam,

Judgment affirmed.  