author: Gibson, C. J.

text:
    Towers et al. v. The Tuscarora Academy.
    A sheriff's sale was made of land which was subject to a mortgage, subsequent to a charge of a legacy. A reference was made to auditors to report the facts, by whom depositions were taken after notice to the purchaser at the sheriff’s sale and to a purchaser from him. It was there proved that the purchaser agreed to buy at the sheriff’s sale subject to the mortgage, and the court decreed the proceeds of the sale to other and subsequent liens. The vendee of the sheriff’s vendee is concluded by the decree, and holds subject to the mortgage.
    Proof that notice was not given to him, or that the land was not sold subj ect to the mortgage, is inadmissible on the part of the vendee of the purchaser, or of the mortgagor, in a scire facias against them.

    In error from the Common Pleas of Juniata county.

      June 5 — 6. The trustees of the Tuscarora Academy issued a scire facias on a mortgage; to which James Mathers and others, terre tenants, appeared and took defence.
    The only material issue was that joined with the terre tenants;
      and the question was, whether the plaintiffs’ mortgage had been discharged by a sheriff’s sale.
    The land in question had been devised to Towers, in 1829, subject to a legacy.
    The mortgage in question was executed by him to plaintiffs in 1839.
    In 1843, a judgment was recovered against Towers; and the land in question was sold by the sheriff to Aitken.
    The sheriff petitioned the court to distribute, and to appoint an auditor to report the facts, stating that there were claimants for an amount exceeding the proceeds; among whom were the legatees, the present plaintiffs on their mortgage, and judgment creditors.
    The court appointed Mr. Kreider auditor, to report the facts. He reported, “that having given due notice, &c.,” the claimants on the fund were those above stated.
    The case was continued; and Mr. Doty appointed for the same purpose. Subsequently, as it would seem, Mr. Kreider was appointed commissioner, to take testimony. He reported, that having given notice to Aitken, the purchaser, and J. Mathers, the present terre tenant, who, it appeared, had purchased from Aitken, he took certain depositions on the 5th of July, which were filed the same day. These are stated in the report of Tower’s Appeal, 9 W. & S. 103; and the substance was, that Aitken had purchased expressly subject to the mortgage held by the academy.
    Doty, the second auditor, reported at February Term, that he had nothing further to report than had been stated by Mr. Kreider.
    Thereupon, the court excluded the present plaintiffs from claiming the proceeds on their mortgage, and distributed the fund among the prior and subsequent heirs.
    The reading of these reports and depositions was excepted to by defendants.
    They also offered to prove — but the evidence was rejected by the court — that the land had not been sold subject to the mortgage; that the depositions were taken at the instance of the present plaintiff’s attorney; that no notice had been given to Mathers or Aitkens, with regard to the appropriation.
    The court (Hepburn, P. J.) instructed the jury the record was conclusive, and the plaintiff was entitled to recover.
    Errors were assigned separately on the two issues: the first of which was on a plea of payment by the mortgagor; the second on the plea, by the terre tenant, that the lien had been discharged by the sheriff’s sale.

      I. 1. The admission of the proceedings relating to the distribution. 2. The rejection of the testimony stated above. 3. In charging that the sale did not, under the circumstances, discharge the mortgage debt.
    II. 1. The admission of reports, &c. 2. The rejection of the evidence. 3. The charge that the record was conclusive, and that plaintiffs could recover.
    In the plea filed by Mathers, the terre tenant, there was no allegation that he was a purchaser, without notice of the agreement by Aitken, nor was there any offer to prove that fact. It appeared, however, that by the decision, the auditor’s report of notice of the depositions was considered conclusive of notice to him before the distribution was made.

      Reed and Parker, for plaintiffs in error.
    Mathers was in fact a purchaser without notice of the alleged agreement by Aitken, and to bind him by such an agreement, notice must be clearly and distinctly brought home to him. He was not bound by the notice of the commissioner, nor was he a party to the proceedings for distribution. Notice must be from a party having interest: Kerns v. Swope, 2 W. 75. Nor is he estopped by the record,-for the matter' was but incidentally decided: 1 Greenl. Ev. 565; 4 W. 183; 8 S. & R. 495; 2 W. 459. The report of Kreider was after he was superseded, and was coram non judiee; it was, at best, but matter in pais, like an inquest, the truth of which may be controverted : 4 Yeat. 378; 2 lb. 232; 8 W. 170'; 1 Penn. R. 306,113.

      Watts, contri!.
    -The court decided that the mortgage was not payable out of the proceeds, which was confirmed by this court. If the purchaser was affected by that decree, it is conclusive: Marsh v. Pier, 4 Rawle, 273. He cannot aver that he had not notice, if the record avers that he had, or if such notice was given as the law requires: Baird v. Campbell, 4 W. & S. 191.
    By the act of 1836, the distribution is to be made by the court, who are to give notice by advertisement — any party in interest may have an issue, and may appeal by the act of 1827. The decree of distribution is therefore final,, or there could be no appeal: 1 Penn. R. 227. The presumption is that notice was given: Boal’s Appeal, 2 R. 38 ; for it was a final decision of the whole matter, and moreover the auditor’s report avers the fact to be so.

      June 13.

       There was no evidence on the subject of payment of purchase-money by the purchaser from the sheriff’s vendee: hence, it will be seen the question of the effect on a bonS, fide purchaser was not raised by the record: Bolton v. Johns, 5 Barr, 145.

   Gibson, C. J.

The purchaser was fatally mistaken in supposing that he had nothing to do with the application of the purchase-money, when it w.as before the Common Pleas for distribution, in the first instance, or subsequently before this court on appeal. Where there is a mortgage junior to the judgment on which the land has been sold, there may be a question, as there was then, whether the purchaser bought subject 'to it or free from it; and, having an interest in it, it is his business to attend to it as his particular concern, without citation or notice. He may not have known the state of the liens when he bid, nor am I prepared to say the law would impute a knowledge of it to him by way of presumption, were it material to do so ; but it would be inexcusable negligence to remain ignorant of it at the return of the writ, or to blindly acquiesce in the application of the purchase-money, as he might have safely done, before the act of 1830. That statute has involved his interest in the distribution, and he is bound to watch it, without waiting to be sent for when he is wanted. The equitable proceeding, to ascertain the available liens and the order of their payment, was given by the acts of 1827 and 1836, to end litigation, and do justice to all interests by a single operation, an issue being demandable in the course of it, “ at the request, in writing, of any party interested.” Is not the purchaser such? He is interested to see that a junior mortgage, where there is one, be paid; and before it is ascertained whether it is to come out of the fund, it may be necessary to ascertain, whether he bought the land clear of it. Besides, before that has been done, the aliquot parts of the judgment creditors cannot be settled. The question, therefore, must unquestionably be a subject of adjudication in the first instance; and who are the parties to be affected by the decision of it ? It is the interest of the purchaser to show that the mortgagee is a creditor of the fund, and it is the interest of the judgment creditors, to show that he is still a creditor of the land. The question lies between them; and as the mortgagee, having an unquestionable right to come upon the one or the other of them, has no interest in it, they are the parties to litigate it. The delay and circuity that would be produced, by allowing the purchaser to stand off till he should be called in to answer an ejectment by a vendee under the mortgage, though sufficiently vexatious, would be trifles in comparison with the mischiefs that would be produced by inconsistency of decision. The judgment creditors might succeed in throwing the mortgagee on the land, and the purchaser might sue-. ■ ceed in convincing a jury, that he ought to have been thrown on the price of it; and thus might his superior security be squeezed out in the press, without any fault of his own, by compelling him to settle the question between them in a separate proceeding with each of them. It is clear, from the injustice of such a result, that the struggle, in the case before us, ought to have been between the purchaser and the judgment creditors, and that if the former thought it was not his cue to take a part in it, it was his misfortune. It might perhaps be shown, if it were necessary, that the proceeding was in rem, or lis pendens; but independently of that, the purchaser was bound, without notice, to come in at the return of the writ, and defend his particular interest at his peril. Having had an opportunity to be heard, we are to treat his case as if he had been heard; and to hold that the decree concluded him.

Judgment affirmed.


source: Caselaw Access Project

author: Burnside, J.

license: Public Domain

text:
    Brice v. Clark.
    Where one appeared before a justice of the peace, with a defendant in an execution, which was issued within twenty days after judgment recovered, and offered, that if the plaintiff therein would wait six months, he would pay it, which was acceded to by the plaintiff; and some time after the justice made the following entry upon his docket: “ J. B. appears, Nov. IWi, and acknowledged himself as bail, to be paid at the expiration of six monthsMeld, that although this was not a recognisance under the act of 1812, it constituted, as a promise for forbearance, and not to levy an execution, a good consideration to support an assumpsit.

    In error from the Common Pleas of Juniata county.

      June 6. This suit originated before a justice of the peace, and was brought by John Clark, the defendant in error, against Joseph M. Brice, the plaintiff in error, who appealed from the judgment of the justice to the Court of Common Pleas of Juniata county.
    The case is stated in the opinion of this court.
    Parker, for plaintiff in error.
    Peed, contó.

      June 14.
   Burnside, J.

There has been much litigation between the parties, and the paper-book is confusion from beginning to end. I gather from it, however, that John Clark, the defendant in error, sued P. S. Ligget, before Justice Berry, who had been recently commissioned under the amended constitution, on a promissory note, and on the 1st November, 1843, obtained a judgment for $56.72. An execution immediately issued to Constable Bell. Before the twenty days expired, Ligget and Constable Bell took Brice to the justice, and Bell said to Ligget, What will we do about this execution ? Ligget says, Will you take bail, and take it in for some time ? The justice said, Undoubtedly — we don’t want to be hard. Ligget said, Brice will bail me for it, if you will give us six months to pay it in.. The justice said, Yery good, he would take the responsibility on himself; but he desired them to be positive in having it paid at the expiration of six months. The justice then entered on his docket, “Joseph Brice appears November 19th, 1843, and acknowledged himself bail, to pay at the exjuration of six months.” Proceedings were stopped for more than that period: when communicated to Clark, he declared himself well satisfied with the proceedings of the magistrate. The justice’s transcript showed the execution issued to Constable Bell, returned on bail. An alias execution issued to Bell 20th May, 1844; the direction of this alias was altered to Thompson, another constable; but how or when does not appear. .A certiorari was then taken from the Common Pleas, and the execution set aside, and the proceedings remanded. The justice then issued a scire facias to Brice, as bail of Ligget, on which he entered judgment against Brice. From this Brice appealed to the Common Pleas. They went to trial, and Clark was obliged to take a nonsuit.

Being better advised, Clark commenced an original action against Brice, on his engagement to pay the debt in six months. He obtained a judgment before the justice, from which Brice appealed. Clark declared against him on his assumpsit and agreement to pay him the $58.91, being the amount of the judgment, with the costs, obtained before Justice Berry against P. S. Ligget, which he promised and agreed to pay to the plaintiff, in consideration of the plaintiff forbearing and giving Ligget a stay of six months from the 18th November, 1843, averring that he did forbear and give Ligget a stay of six months and upwards on the judgment.

The first error assigned is to the incompetency of the justice as a witness. It is untenable, and contrary to the settled and uniform practice of Pennsylvania. The justice had no interest in the issue trying.

2. Berry was a witness for the plaintiff. The defendants cross-examined and inquired of him whether he did not tell Collins certain things. Berry said he did not recollect; and then, for the purpose of discrediting him, Brice offered to prove that he did tell Collins. The absurdity of this assignment of error is manifest. The court was right in overruling the question.

8. In refusing the instruction prayed for in defendants’ second point, which was, that the alleged promise and undertaking having been made to Mr. Berry in his official character, and the justice having made a record thereof in his docket, as shown by the docket and testified to by him, the promise and undertaking were merged in the recognisance of record, and the plaintiff cannot recover.

To this the court answered, That if the entry on the docket of the justice contains the whole agreement between the parties, the plaintiff cannot recover; and whether it does or not, you will say from the evidence, as we before instructed you in answer to defendant’s first point.

The special bail required before a justice for the stay of execution, by the 23d section of the act of 12th July, 1842 (Dunlop, 868), is a bond or recognisance conditioned that no part of the property of the defendant, which is liable to be taken in execution, shall be removed, secreted, assigned, or in any way disposed of, except for the necessary support of himself or family, until the plaintiff’s demand shall be satisfied, or until the expiration of ten days after such plaintiff shall be entitled to have an execution, &c. ■There is not a tittle of evidence that such a recognisance was entered into before the justice; and Brice took advantage of this when a sei. fa. was issued against him. There is no ground for the allegation that the undertaking was merged in the recognisance made by the justice on his docket. What, then, is the case of Brice ? Why, if Clark would wait six months, the judgment should be paid. To this Clark acceded. The law is, that forbearance on a well founded claim is a sufficient consideration to support a promise: 1 Leigh N. P. 81. So an agreement to give up and forbear to sell the goods of a third person, against which the plaintiff had a bill of sale for a debt, is a sufficient consideration: 4 Taunt. 117. I know no reason why a promise to forbear and not levy an execution, is not a good consideration to support an assumpsit.

All the other errors were abandoned. They were unworthy o^ notice.

Judgment affirmed.


author: Coulter, J.

text:
    Ege v. Barnitz.
    Where tlie obligee in a bond assigned and guaranteed its payment, and after it became due and payable, requested the holder in writing, “not to put the said bond in suit at that time, as lie did not desire to have an action brought on the said bond:” it was held, in an action on the guaranty, that the duty or obligation resting on the holder by virtue of the guaranty, to use due diligence in prosecuting the said bond to recovery, was waived, and that the stipulation of guaranty became thereby absolute.
    The duty or obligation of the holder of a bond under a guaranty for its payment, if waived after the bond becomes due, by the written request of the guarantor not to sue, cannot be renewed or revived by a subsequent notice to sue, so as to throw the loss upon the guarantee; especially, when the obligor in such bond had become insolvent and left the state before the notice to sue was given.
    The holder of a bond under an assignment with guaranty, who at the written request of the guarantor forbore to bring suit against the obligor in said bond who became insolvent and left the state, is not bound, before bringing suit on the guaranty, to resort to a collateral security, unless it be embraced in, and made part of the original contract.
    In error from the Court of Common. Pleas of Cumberland county.

      June 7. Jacob Barnitz, the defendant in error, brought case in assumpsit against A. G. Ege, the plaintiff in error, on the guaranty of a bond.
    It appeared from the evidence, as disclosed by the paper-hoolc, that C. N. Ege and A. G. Ege were, with others, children and legatees under the will of Michael Ege, deceased, which was proved on the 5th of March, 1827. The testator, by his will, appointed his executors trustees to superintend, manage, and cany on his estate, called the “ Carlisle Iron Works,” with all the lands, mills, and buildings appurtenant thereto, until his son, Andrew C. Ege, attained the age of twenty-one years; or, in case he died within age, then at the period when he would have attained full age. PIo then directed that all the money, stock, and personal property on hand at the time of his death, should be employed for the purpose of carrying on his works as aforesaid.
    He then, after giving the clear yearly income of Ms estate to his wife, in designated portions, for the maintenance and support of herself, and the support and education of each of his children, until the money arising from the sale of his estate should be distributed amongst Ms children, directed as follows: — “As soon as my said son, Andrew Galbraith Ege, shall attain the age of twenty-one years, or, in case of his death witMn age, then at the period when he would have been of full age, I authorize and empower my executors, or the survivor or survivors of them, to sell, convey, and dispose of my whole estate not before devised by me; provided the moneys arising from the sale thereof would yield an interest equal to or greater than the income derived from the estate in the hands of my executors; but in case the moneys so arising would not yield such interest, I direct my executors, or such of them as shall survive, to carry on the business of the works as usual, till such time as the whole estate can be disposed of on terms which will produce a sum the interest whereof will be equal to the income of the estate in the hands of my executors; or until my youngest son, Edward, shall attain full age;” when his estate rvas to be sold, and the proceeds thereof to be distributed in equal shares, to and amongst his widow and six children. It appeared that A. Gr. Ege was of age on the 6th of January, 1834, and Edward Ege, on the 25th of July, 1842. The estate has not yet been sold.
    On the 29th of November, 1836, A. G. Ege and wife, by deed, assigned and transferred all his interest in his deceased father’s estate to his brother, C. N. Ege, his heirs and assigns, &c. On the 22d of May, 1838, O. N. Ege gave A. G. Ege three bonds; one of ■which for $2,000, payable on the 1st of April, 1839, was assigned by A. Gr■ Bge, the defendant, to Jacob Barnitz, the plaintiff, on the 13th of June, 1838, and the payment of it then guarantied, as appeared by the following endorsement on the bond: “For value received, I assign the within bond to Mr. Jacob Barnitz, and guaranty the payment of the same. A. Gr. Bge.” On the 2d of June, 1838, A. G. Ege took from O. N. Ege an assignment of all his interest under the will of his deceased father’s estate, to secure the payment of the three bonds given by the latter to the former, as above referred to. This assignment, which was not delivered to Barnitz until 6th of May, 1841, was duly acknowledged and recorded on the 7th of June, 1838. On the margin of the record of this assignment, was the following entry, made at the request of the parties, by the recorder, on the 13th June, 1838: “ One of the bonds for $2,000, assigned to Jacob Barnitz, 13th .June, 1838.” On the 29th of December, 1839, after this assigned bond became due and payable, A. G. Ege, the assignor and guarantor thereof, addressed a written request, of which the following is a copy, to Jacob Barnitz, the holder:—
    “Whereas, I assigned to Jacob Barnitz, on the 13th June, 1838, a bond from my brother, Charles N. Ege, to me, conditioned to pay the sum of $2,000 on the 1st of April, 1889, and guarantied the payment 'of the same to the said Jacob Barnitz; now I hereby request the said Jacob Barnitz not to put the said bond in suit at this time against my said brother, as it is my desire not to have an action brought on the said bond. Witness my hand, 29th December, 1839.”
    C. N. Ege left the state in 1840, destitute of property. In 1841 A. G. Ege notified Barnitz to sue out the bond against his brother, C. N. Ege, and stated that if he did not proceed to collect the same, he would not consider himself any longer accountable for it under his guaranty. In the course of the trial, certain proceedings in the Orphans’ Court, at the instance of the Carlisle Bank against Mary Ege, executrix of Michael Ege, deceased, to compel her to state and file an account, were permitted to be read to the jury, under objection by the defendant, to show that proceedings were instituted in the Orphans’ Court by a creditor of C. N. Ege, and the action of the court upon them: and this, for the purpose of showing that any attempt to make the money in that way by Barnitz would have been fruitless. The “ Carlisle Iron Works” were estimated by several witnesses, at the trial in the court below, to be worth from $90,000 to $100,000. A mass of evidence was given on the trial, and several bills of exception to the admission and rejection of evidence taken, which it is unnecessary to notice here.
    The questions here were, as to the effect of the written request of A. G. Ege, addressed to Jacob Barnitz, not to sue; and whether, under all the facts in evidence, Jacob Barnitz, before suing on the guaranty, was bound to resort to the collateral security, and to pursue the executrix of Michael Ege’s estate, compel a settlement of it, and thus to make all that was available out of the same for C. N. Ege, and to appropriate it to the payment of the bond assigned and guarantied to him by A. G. Ege.
    The plaintiff requested the court to instruct the jury as follows:
    1st. That the condition of the contract of guaranty is, that the person to whom the bond is assigned and guarantied, shall pursue the debtor on the instrument assigned to insolvency.
    2d. This may be done either by proceeding on the bond to the insolvency of the debtor, or by showing that if suit had been instituted on it, nothing could have been recovered in such suit by reason of such insolvency.
    3d. That Jacob Barnitz, to whom the guaranty was given, was not bound, before suing A. G. Ege, to resort to a collateral security of the nature of the one given in evidence, which was not embraced in the written contract of guaranty, but retained by Ege, who, at the time of the assignment to Barnitz, had an interest in this security of more than double that of Barnitz, and which was not delivered to the latter till 6th May, 1841, after Ege had assigned his remaining interest to General Miller and to Samuel Alexander, more especially so, when the same is of doubtful efficacy, and the means of making it effectual are neither clear nor certain.
    4th. On the principles and for the reasons in the foregoing points, Jacob Barnitz was not bound to proceed against the estate of Michael Ege, deceased, on the assignment that was made by Charles N. to A. G. Ege, of the interest of the former in said estate; and his omission to do so, is no defence to this action, s i
    5th. That by the written request of A. G. Ege to Jacob Barnitz, of the 24th December, 1839, “ not to put the bond in suit at that time against C. N. Ege,” as it was the desire of the said A. G. Ege not to have an action brought on that bond, as stated in said paper; the said A. G. Ege was fixed for the amount; Jacob Barnitz’s right of action became perfect, and he was not bound to pursue C. N. Ege, or any one else, before resorting to A. G. Ege, the defendant.
    6th. That by said written request, the implied condition of the guaranty was taken away, and left an unconditional agreement on the part of the said A. G. Ege to pay the amount of the bond to Jacob Barnitz; and it would have required a new contract between Ege and Barnitz to impose an obligation on the latter to bring suit against C. N. Ege, after the date of said request.

      Defendant’s Points. — The court is respectfully requested to charge the jury on the following points:—
    1st. If the jury believe that, at the date of the assignment and guaranty of the bond, which is the subject-matter of this action, there existed an assignment of all the right and interest of Charles N. Ege in the estate of Michael Ege, deceased, to secure its payment, it enured, pro tanto, to the use of Jacob Barnitz, the guarantee, which he recognised and accepted as such by the memorandum thereof, made at his instance upon the record of said assignment; and by receiving the assignment itself from the defendant, on the 6th of May, 1841, he was bound to pursue this security for the payment of his debt, before he could maintain any action upon the guaranty against the present defendant.
    2d. If this assignment does afford a security for the payment of the said bond of Charles N. Ege, or any part of it, the plaintiff cannot recover in this action.
    3d. If the plaintiffs have shown, by their own testimony, that five-sevenths of the estate of Michael Ege, deceased, is now worth $40,000, and that the whole debts and liabilities amount only to $19,000, the residue of $21,000 belongs to and is divisible equally among the five legatees named in the will, excluding the shares of Peter and Edward: then there will be two of the said fifths, to wit, $8,400, applicable to the bond and assignment of Jacob Barnitz, under the evidence in this case.
    4th. That from the evidence given by the plaintiffs, to wit, the will of M. Ege, deceased, the assignment of Charles N. Ege’s interest in the estate, and that five-sevenths of the estate is of the value of $40,000 only, and the debts and liabilities of the estate are $19,000, and that Jacob Barnitz, the plaintiff, has instituted no proceeding to recover his money out of the estate, he cannot recover in this action.
    5th. If the jury believe that in the year 1841, the defendant called upon the plaintiff and notified him distinctly that he must proceed to collect the debt due from Charles N. Ege, and that if he did not, he would consider himself no longer liable as his guarantee, and repeated to him this notice in February, 1842, and that Jacob Barnitz disregarded the notice and neglected or refused to prosecute the claim, he cannot now recover against the present defendant on his guaranty, if the jury believe that Charles N. Ege then had and now has an interest under the will of his father, which is recoverable.
    The court (Hepburn, P. J.) answered the plaintiff’s points in the affirmative, and the defendant’s in the negative; which answers of the court below, upon the removal of the record to this court, by writ of error, at the instance of the defendant, were assigned for error.

      Watts, Graullagher, and Gfraham, for plaintiff in error.
    The plaintiff in error having assigned the bond and guarantied the payment of it, he at the same time held a transfer or assignment of the obligor of the bond, of all his interest in his father’s estate, as collateral security for the payment of that bond; we say, first, that the mere assignment of the bond was an equitable assignment of all the collateral securities for its payment, and, again, that the fact of the guarantor and guarantee having gone into the recorder’s office, and marked upon the record of the deed which secured the bond, that it had been assigned to the defendant in error, was an actual transfer in equity of that collateral security: 2 Story’s Eq. 379, sec. 1044; 4 Sim. 607; 1 Mad. Bep. 53; 5 Wheat. 277; 5 Peters, 598; and the same principle would apply to the assignment of part of the debt: 4 Bro. Oh. B. 64. And the law is so settled in Pennsylvania: 4 Penn. S. Bep. 251; 4 W. & S. 94; 9 S. & B. 304. The defendant in error was, therefore, bound to pursue all the remedies in his power to collect Ms money from the debtor, before he can resort to an action on his warranty: 6 Barr, 41; 1W. & S. 204. If it appears, therefore, as it indisputably does, by the evidence, that the obligor in the bond had estate sufficient to pay the debt growing out of his father’s estate, which was secured by the assignment of it, he was bound to pursue it, and collect his debt. It is not a sufficient answer to this to say, that there was difficulty in the pursuit; be it so, but such difficulty he was bound by the contract of guaranty to encounter ; for the law is, that he must pursue the obligor to insolvency, and his estate so far as to show that it cannot be reached. Why was the collateral security transferred to him, but to enable him to collect Ms debt ? and he might, for that purpose, at the same time pursue the obligor and the collateral security. The court below, by their instruction on this subject, took the whole case from the jury, and decided the cause.
    On the other point in the cause, we contend that a sensible construction is to be given to the act of the party. At one time, he requests the holder of the bond not to bring suit at that time. Can it be that this so changes the relation between the guarantor and guarantee, as to place the former entirely in the power of the latter, that he could never thereafter insist upon suit being brought ? Certainly, this would not be a sensible construction of the act of the guarantor, but he might at any time thereafter request and require suit to be brought: such reqmsition was made, and the court say it amounted to nothing; in this there was erroi*.

      Biddle and Heed, contra.
    The contract for the transfer of the bond, including the guaranty, is distinct and different from the contract for the collateral security, if any such were made. The assignment of the bond by A. G. Ege to Jacob Ba'rnitz, was on the 13th of June, 1838. The assignment of C. N. Ege of Ms interest in his father’s estate, was not handed over to A. G. Ege until 6th May, 1841. On the margin of the record of the assignment on the .docket was entered, that J( one of the bonds for $2,000, assigned to Jacob Barnitz, 13th June, 1838.” But this was no transfer of the security. The assignment of Charles N. Ege’s interest in his father’s estate, was for securing the payment of the three bonds given by him to A. Gr. Ege, which fell due at different periods. At the date of the assignment of the bond in question, A. Gr. Ege held C. N. Ege’s assignment referred to, as security to himself for the other two bonds. The right to the security furnished by this paper, remained in A. Gr. Ege. No right to the interest of C. N. Ege in his father’s estate was vested in Barnitz by the transfer of the bond, because no such right passed by the transfer of a part only of the fund as the security. This point is fully decided in Mandeville v. Welsh, 5 Wheat. 285. The object of the second transfer is obvious. Barnitz held the guaranty of A. Gr. Ege. This second agreement was in the nature of a collateral security, that A. Gr. Ege would make good his guaranty. Barnitz then held three securities, viz : the bond on C. N. Ege, the direct guaranty for its payment by A. G!. Ege, and the transfer of a portion of the interest of C. N. Ege in his father’s estate, when it should become due; and this was not given him by C. N. Ege, but by A. Gr. Ege. C. N. Ege became insolvent and left the state, when the guaranty of A. Gr. Ege became absolute; and Barnitz having two securities from him, viz: his guaranty and the assignment of C. N. Ege’s interest, he had a right to resort to either, or both, until he obtained satisfaction: 2 Dali. 115. The assignment of the bond did not carry with it C. N. Ege’s interest, &e.: Mohler’s Appeal, 5 Barr, 418. A person having two securities, one primary and the other collateral, not bound to pursue both. That could not have been done in this case, because, under the will of M. Ege, deceased, C. N. Ege had no present interest in the estate. It was devised to be sold, and when sold he was to have a portion of the proceeds of sale. But it is not yet sold, and whether he will ever have any interest after the sale, is uncertain, or unknown. Barnitz had neither the right nor power to proceed on the alleged transfer of C. N. Ege’s interest. A. G-. Ege still continued the owner of it, and held the evidence of it, at all events, as trustee for the holders of the three bonds respectively referred to in it. Barnitz’s interest in it did not go beyond the right to receive his fro rata portion, if the money had been collected: 13 S. & R. 311. It had no quality of negotiability : Leas v. James, 10 S. &■ R. 307. If a creditor for goods sold take a chose in action as collateral security, he may sue on his original account, and is not bound to resort to his collateral security. This is not the law when the second security was taken by agreement, in substitution or place of tbe first, but was collateral or secondary: Lyon v. Huntingdon Bank, 12 S. & R. 61. After tbe bond fell due, on tbe 24th December, 1889, tbe guaranty of A. G. Ege to Barnitz became absolute and unconditional by Ege’s request in writing, that bis brother should not be sued. This created a new relation between tbe parties by contract, and this was never • changed. Tbe request to sue C. N. Ege after be had become insolvent and left the state, was of no avail. Request is as defective in form, as in substance: 3 Barr, 264, 404; 15 S. & R. 30; 8 Watts, 258, 361, 363. The only implied obligation upon Barnitz, under his guaranty, was to pursue C. N. Ege to insolvency: 16 S. & R. 82; Johnson v. Chapman, 3 P. R. 18; 1 W. & S. 203. The implied condition is only coextensive with the guaranty; it applies to nothing else. It does not cover distinct and different contracts 40 Law Lib. 73.

      June 12.

   Coulter, J.

The court below cast this case mainly on the single point that, by the writing of Ege, dated the 24th December, 1839, addressed to Barnitz, tbe duty or obligation resting on Barnitz to use due diligence in prosecuting to recovery the bond assigned by Ege to Barnitz, was waived; and that thereby tbe stipulation of guaranty became absolute for tbe payment of the money. The writing requested Barnitz not to bring suit, adding, “As it is not my desire to have an action brought on the bond.” The use of due diligence by the guarantee, is for the benefit of the guarantor; and he may waive it, as he may waive or give up any other obligation or duty which the law implies for his advantage. And if he does so, it is more reasonable that he should bear any loss that accrues in consequence of his own act, than that it should fall upon the party who merely obeyed his directions^; On the same principle that a surety is not discharged when the obligee gives time to the principal at the request of the surety, on the bond. It is true that some two or more years afterwards, Ege notified Barnitz to proceed on the bond, but at that time the obligor had left the state. But the duty on the part of Barnitz to use due diligence had been waived, and by that waiver it was gone, and could not be required of Barnitz when its performance was impracticable so as to charge him with the loss. ;

But it is contended that Ege had an assignment of the interest of his brother, who was the obligor in the assigned bond in the estate of their father, as collateral security for the payment of this bond and two others — which assignment was delivered to Barnitz 6th May, 1841. The bond was given the 22d May, 1838, and the assignment was made the 13th of June, 1838, so that it formed no part of the original contract, and there is no evidence whatever that it was known to Barnitz at the time the bond was assigned to him, or that it entered into the contract — being a mere indemnity between the brothers, and liable to be revoked or annulled at their pleasure. After the assignment of the bond to Barnitz, that assignment did not carry this security with it; and its delivery to Barnitz did not authorize him to proceed for its recovery. But the interest of the obligor in his father’s estate was uncertain both in amount and the time of payment; the executors of the elder Ege being trustees to manage the estate, with power to sell upon certain contingencies. And it was only the share of the proceeds of “the sale to which the obligor was entitled. It has no similarity to a mortgage, which is carried by an assignment of the bond, the payment of which it secures. There the assignee may proceed on the mortgage and collect his debt. The only effectual way in which Barnitz could have made this fund available, was by proceeding on the bond, obtaining judgment, and issuing an attachment in execution, if, peradventure, that means would have been available. But this he was prevented from doing at the request of Ege, the guarantor. It is admitted that the obligor in the bond was altogether insolvent in 1842, the time when the guarantor requested Barnitz to bring suit, with the exception of this fund, and the obligor had left the state before that time. The fund is still in futuro, so that Ege will lose nothing by the indulgence which he requested Barnitz to give the obligor.

Judgment affirmed.


author: Bell, J.

text:
    Specht v. The Commonwealth.
    Tie 1st section of the act of the 22d of April, 1794, prohibiting the performance of any worldly employment or business on the Lord’s day, commonly called Sunday, works of necessity or charity only excepted, is not in conflict with the 3d section of the 9th article of the constitution of Pennsylvania, and is constitutional.
    Members of a society or sect, who conscientiously observe and keep the seventh day of the week as the Christian Sabbath, are, upon conviction for violating the first day of the week or Sunday, by working or performing any worldly employment, amenable to the penalties inflicted by the act of Assembly.

      The 1st section of the act of the 22d of April, 1794, only selects and sets apart the first day of the week, or Sunday, as a day of legalized rest, and enforces the observance thereof by legal sanctions; and is, essentially, but a civil regulation made for the government of man as a member of society.
    In error from the Court of Common Pleas of Franklin county.

      June 8. This case came into the court below on certiorari to George W. Toms, Esquire, a justice of the peace, to return the proceedings in a certain prosecution before him, at the suit of the Commonwealth, against one Jacob Specht. The justice, thereupon, returned the following proceedings:—
    “Be it remembered, that on the 17th day of August, A. D. 1846, Jacob Specht, cooper, was charged, on the oath of John Lidy, with having done and performed worldly employment and business on the Lord’s day, commonly called Sunday; with having been working at hauling manure on Sunday, 16th day of August, in said year 1846. Warrant issued on the 17th day of August, A. D. 1846, to Hugh M. Sibbet, constable of Quincy township. And now, this 20th day of August, A. D. 1846, the defendant is brought before me; and on the proof of having been engaged in worldly employment, in hauling manure, at the township of Quincy, in Franklin county, and commonwealth of Pennsylvania, on Sunday, the 16th day of August, A. D. 1846, on the oath of said John Lidy, and therefore it is considered and adjudged by me, George W. Toms, one of the justices of the peace of the county of Franklin aforesaid, that the said Jacob Specht, cooper, according to the form of the act of Assembly in such case made and provided, be convicted of having done and performed worldly employment or business, not being a work of necessity or charity, on the Lord’s day, commonly called Sunday. And I, the said justice of the peace, do therefore adjudge him, the said Jacob Specht, to pay a fine of-<$4, which sum, by so doing and performing, he, the said Jacob Specht, hath forfeited, to be distributed as the act of Assembly directs.”
    It appeared that on the trial before the justice, the defendant tendered the following plea in writing, to the justice, and requested him to enter it on his proceedings, which the justice declined to do:
    “ I, Jacob Specht, plead that I am a member, in full communion, of the Seventh Day Baptist Congregation, at Snowhill; and that I conscientiously believe, that the seventh day of the week is the true Sabbath of the Lord, and that I accordingly observe it as such.”
    The Court of Common Pleas affirmed the judgment of the justice; whereupon Jacob Specht, the defendant below and plaintiff in error, sued out this writ. The question here was: Is the 1st section of the act of the 22d of April, 1794, unconstitutional ?

      Stevens and Brady, for plaintiff in error.
    This record raises the question of the constitutionality of the act of 22d April, 1794.
    At common law it was no offence to transact innocent business on Sunday. It is made criminal by act of Assembly alone. That act of Assembly, we contend, violates the 3d section. of the 9th article of the constitution of Pennsylvania.
    We are aware that more than thirty years ago, this' question was decided against us by the Supreme Court of this state, by two judges, one of whom was just closing a long life of usefulness, and was then of great age. The other was just entering upon his judicial career. But questions of much less importance to the happiness of society, and the unalienable rights of man, have been, not unfrequently, reconsidered by this court. ,. An important principle of the law of evidence, which had stood the test of more than forty years, and of repeated deliberate decisions of this court, was lately reversed and totally changed in Post v. Avery, and subsequent cases, because it was believed to work injustice in questions of property. The legislature, as in this case, had refused to alter the law as established in Steele v. The Phoenix Insurance Company; and the court, in the exercise of an undoubted right, corrected it themselves. We are, therefore, bold to ask them to re-judge and correct the judgment of the Supreme Court in a question which deeply affects and grieves the consciences of inoffensive and pious men, eminent for honesty, peacefulness, and orderly conduct.
    Does this act of Assembly “ control or interfere with the rights of conscience ?” It evidently treats the first day of the week as a holy, a sacred day; and it prohibits labour on that day, not for the - purpose of giving rest to man, as a mere civil regulation, but because it profanes the Lord’s day.
    We have other holidays. We have political Sabbaths, such as the 4th of July, and 22d of February. We reverence them as days of great political events. But we do not enforce their observance by legislation. But the act in question compels all to observe Sunday as a sacred day. To oblige men to refrain from labour out of regard to its holiness, is to “ control” their religious observance, as much as if they were ordered to kneel before the altar, or the images of the Saints.. And to all those who conscientiously believe that it is not a holy day — that it is not the true Sabbath of the Lord, it is an “interference” with, and a constraint of their rights of conscience. It is no answer to say that the day of rest should be uniform among all. If it were a mere civil regulation, there might be some reason in it; but then it would be made a day of recreation — of relaxation; and most probably those days would not come so frequently. The French, when they discarded its religious character, when they worshipped the Goddess of Reason, and provided only for the rest of the people, fixed the tenth day. But I suppose it requires no other argument than reading the several acts upon this subject,-to prove that our legislation looks to enforcing the religious observance of the day. If the legislature can direct that religious observance, then there is no limit to their power over religious subjects. If they can direct the people to stay at home quietly, they can direct them to go to church, and if they can direct them to attend church, they can indicate the church to be attended. In short, if they have any power over religious subjects, they have all power. Such power would be a perfect union of church and state, so much abhorred by the people of this republic. It would inevitably lead to religious persecutions, and finally to civil and religious tyranny.
    The doctrine that the “ Christian religion is a part of the common law,” is, I suppose, the foundation and justification of this act. That doctrine was promulgated in the worst times, and by the worst men of a government that avowedly united church and state; in times when men were sent to the block or the stake on any frivolous charge of heresy. To deny transubstantiation or the supremacy of the Pope, was a capital offence under one reign; and to admit them was a capital offence under another. Men were punished as blasphemers for denying the divinity of our Saviour, because the “ Christian religion was a part of the common law.” Men were executed in great numbers by the civil power for denying the real presence, because that was a part of the Christian religion — and the Christian religion was a part of the municipal law. When the Protestants gained the ascendancy, to believe in the real presence was contrary to the ■ Christian religion, and therefore a violation of the law, and punished by the secular arm. For it is truly observed: “ That no set of men were ever found willing to suffer martyrdom themselves for conscience’ sake, who would not inflict it upon others the moment they obtained power.”
    As late as the nineteenth century, this pernicious doctrine led Lord Eldon to decide that Unitarians may be punished as blasphemers at common law, and not treated as Christians, notwithstanding the repeal of the statute of 9 and 10 Will. 8: 8 Merivale, 353, Atty. Geni. v. Pearson.
    How dangerous, therefore, is the aj>parently pious doctrine that the “ Christian religion is a part of the common law!” If it be true, all who disbelieve that religion are habitual breakers of' the law. The Jew, the Hindoo, the Pagan, are perpetual malefactors. They, of course, are beyond the protection of the law, or continually subject to punishment for conscience’ sake. These consequences of the doctrine were very satisfactory to the English government, in its origin. They enabled the tyrants of the fifteenth and sixteenth centuries to find a convenient excuse for sending to the block any one who became obnoxious to them. If such tyrant were a Roman Catholic, the heresy of the reformation was sufficient. If he were a Protestant, adhering to the church of Rome was equally so. This lauded principle found ready advocates in such bloody tools of tyrants as Jeffries, Audley, and Rich.
    What else was it but the doctrine “ that the Christian religion was a part of the law,” and to be enforced by the civil arm, that gave the Holy Inquisition such horrid force, and placed the civil and religious liberty, and the lives of nations of men, at the mercy of the bloodiest power that ever inflicted misery upon the human race, in the name of Demons or of Gods !
    This convenient doctrine enabled Henry the Eighth to dispose of all whom he chose to call his enemies, whether they were learned and conscientious gentlemen, like Sir Thomas More, or were wives of whose beauty he was weary. His successor, after robbing all the Jews of the kingdom of all their wealth, either sent them to death or banished them from the empire. And he was right, if this principle be right, for they were always violating the law, and of course deserved punishment.
    If this doctrine is to be the rule of action, where do you find its interpretation ? Where are to be found adjudged decisions of what this law teaches, so that the people may escape the perils of its violation? Are they to be seen in-the doings of the Council of Nice or the Diet of Augsburg ? Are they in the bulls of Hildebrand or the writings of Luther ? in the rigid doctrines of Calvin, or the more liberal opinions of Wesley? Does this part of the “common law” (adopted in Pennsylvania) command us to bow down before the image of the Virgin and the Saints; or, discarding all visible symbols, to worship the Unseen God ? This doctrine must drive us for refuge to the infallible church of Rome, where the decrees of the Pope are the unerring rule of this part of the “ common law.”
    The constitution of almost every state in the Union contains a section securing liberty of conscience.
    The constitution of the United States, as originally adopted, had no such provision.
    But the first Congress that met under it, added the following amendment:—
    “Art. 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
    This article is not as comprehensive as the one in the constitu- ' tion of Pennsylvania.
    It has already received a construction by both the Senate and House of Representatives of the United States, which has a strong bearing on the present question.
    I think I may safely say, that the constitutions of the United States and of Pennsylvania are founded on no religion, but on purely civil considerations — on the unalienable rights of man; one of which is that man shall not interfere with the rights of conscience.

    The constitution of South Carolina contains the following provision : “ The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall hereafter be allowed within this state to all mankind: Provided, That liberty of conscience thereby declared, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state.”
    This provision, qualified by the proviso, is not nearly as strong as ours.
    The city councils of Charleston passed an ordinance prohibiting, under penalty, all worldly employment on the Lord’s day — “to preserve peace and good order within the city” — thus proposing to bring it within the proviso. In 1836, a Jew sold goods on Sunday, and was prosecuted under this ordinance. Judge Rice, a very able and learned jurist, decided that the ordinance was unconstitutional and void. The opinion is elaborate and able, but has since been reversed, on the strength of the proviso, in an opinion more pious than able: Law Rep. for May, 1848, p. T.
    Virginia had previously declared a similar ordinance of Richmond void.
    The Supreme Court of Ohio, in the 15th vol. of her reports by Griswold, p. 225 — The City of Cincinnati v. Rice — declared a like ordinance void, as against those “ who conscientiously observe the seventh day of the week as the Sabbath.”
    The section in her bill of rights is an exact copy of ours.
    So far then as the authority of the United States, and of other states goes, this act is unconstitutional. And it seems to me it would be a reproach to this state, if it were not declared so.
    But suppose it were competent for the legislature to prohibit labour on the Sabbath, on account of its sacred character, it is certainly not competent for them to declare which day of the week is the Sabbath. That would be a palpable “ interference with conscience.” For I suppose it will be admitted that there is an honest diversity of opinion on that subject. My clients are firm believers in the holy character of that day, and they strictly keep it, as the record shows. But they believe that the Lord, who alone had the power to fix it, rested the seventh day, and sanctified it as His Sabbath. And that designating the first day of the week as the Lord’s day was a mere human invention.
    Is there not enough in sacred history to justify honest and intelligent men in holding such opinion, without being stigmatised as “capricious?” God having laboured six days, rested the seventh, and sanctified that day, as we are told in the history of creation. But I am not aware of any injunction to man to keep it holy, until God condescended to give laws to the Jews after their flight from Egypt.
    One of the Ten Commandments, given from the smoking top of Mount Sinai, says:—
    “ Remember the Sabbath day to keep it holy; six days shalt thou labour and do all thy work; but the seventh day is 'the Sabbath of the Lord thy God. In it thou shalt not do any work.”
    Here the time in which man shall work, and in which he- shall not, is fixed by Deity himself, in a manner too solemn to be forgotten or disregarded. It was pronounced with the voice of a loud trumpet, amidst the lightnings and the quakings of the Mount. And this day has been always kept by the Jews, from that time to the present; and by the early Christians, until the fourth century. (Tide Justin Martyr and Origen, passim.)
    Our clients believe that part of the decalogue which commands them to work six days, to be as binding on them as that which directs them to rest the seventh. And it must be confessed, that so far as earthly interests are concerned, it is quite as important. Did the world generally hold that salutary belief, and act accordingly, we should have less need of poor-houses, jails, and vagrant-laws.
    But if conscience directs them to work six days, and forbids them to work the seventh; and if the act in question prohibits their working on the first day of the week, then such act “ gives a preference to other modes of worship.” It allows some six full days to labour, and restrains others to five. This subtraction of one additional seventh of their time of labour, and consequently of their means of profit, operates as a penalty on their religious belief.
    It will not do to say that they are not compelled by law to work six days; they believe themselves to be so commanded by the decalogue — and that the act cutting off one of those days runs counter to the eternal mandate.
    The first day of the week came to be treated as the day of worship among Christians after the conversion of Constantine from Paganism. He had previously worshipped the god Apollo, whose sacred day was the first day of the week. When he abandoned Apollo for Christ, he retained some of the relics of Paganism. Among the rest was the holy day of his ancient God. By a formal decree, he directed his subjects who lived in towns and cities (he exempted country people from it on account of inconvenience), to worship God on the “ day of the Sun — die solis.” Hence that day came to be called “Sunday.” His decree may be found at length in the “Corpus Juris Oivilis, Book 3. tit. 12,” in these words:—
    “Omnes Judices, Urbanseque plebes, et cunctarum artium oflicialis venerabili die solis, quiescant. Ruri sed tamen et cetera.”
    Our act of Assembly is but. a copy and an enlargement of this decree of a bloody despot, who earned the glory of saintship by assisting at the council of Nice, and enforcing its decisions by his civil magistrates. (Eusebius, Bishop of Cesarea.)
    “ The 4th section of our act enjoins upon judges and magistrates to proceed and convict in a su,mmary way, all persons who shall profane the Lord’s day, as aforesaid; and if the forfeiture be not paid, to commit the offender without bail or mainprize to the house of correction, to be kept at hard labour, on bread and water only.” Religious intolerance could not invent a more odious law; nor one more repugnant to our constitution, and more opposed to the noble and independent injunction of St. Paul: — “Let no man therefore judge you in meat and in drink, and in respect of an holy day, or of the new moon, or of the Sabbath days.” — Col. ii. 16, II.

      . Will, contrá, would not discuss the question as to the origin of the first day of the week, or of the seventh day, as a season of rest. As Sunday has been observed, from the commencement of the Christian era until now, by ninety-nine hundredths of those recognised as Christians, he would consider it as the right day, having been established by long usage.
    The act of 22d of April, IT94, cannot be viewed as regulating religious exercises, or as interfering with the rights of conscience. It does not prevent any one from worshipping God as he chooses, or as his conscience dictates. It only punishes him, by a prescribed penalty, for following worldly employments on that day. As the legislature possess the power necessary for the government of a free state, can any rational doubt exist as to their power touching the matter in question ? The act operates solely as a political regulation. Its existence extends only to secular affairs. It furnishes repose to the weary, and gives rest to those in bondage. To all, it affords opportunities for reading, study, and reflection. From the first settlement of the state, Sunday has been kept: Colonial Records, vol. 1, page 33, sec. 36. As a vast majority of the people rest on this day, will it be pretended that the legislature cannot protect them in so doing ? Our laws in relation to acts which are mala prohibita, are designed to punish men for conduct deemed at variance with public policy. Fishing in numerous streams, indecent exposure of person, horse-racing, masquerading,' &c., are on this account interdicted. The Hebrew legislator, in his command as to the Sabbath, had temporal as well as spiritual matters in view, or he would not have directed rest for irrational animals.
    He would not inquire what conscience is: whether it is an innate principle, or merely the result of education. It is known to be different, in regard to the same thing, in different parts of the world, under dissimilar religious influences. If laws could be made to conform to all the religious caprices that frenzied fanaticism would suggest, there rvould not be days enough in the week to accommodate such conscientious scruples. Mohammedans would want Friday, another sect another day, &c., &c. * The laws against bigamy would have to be declared unconstitutional, because of the consciences of those who would desire a plurality of wives. And the laws which punish the fornicator and adulterer, and the person who commits incest, would be in the same category, on account of the conscientious scruples of the Battle-Axe Christians. One class would say that the school-law, by making them pay for the education of the children of others, was unconstitutional, while another •would allege the same against the militia-law, because it exacts a small fine for the non-performance of militia duty. Such positions have already been assumed. Listen to them, and qualms of conscience will be powerful in nullifying laws. In this state, where Christianity is said to be the basis of -our laws, there will be no day of rest: 11 S. & R. 406; 1 Penn. Rep. 13. Let there be no Sunday. Let it be known that the legislature cannot protect orderly persons in their rest and meditations, and soon we will see the cruel and rapacious uniting to oppress those over whom they have control. If the government cannot supervise the morals of the community, it must be impotent indeed !! But these men, whose tender consciences ask to have this act made void, settled here with the full knowledge of the law. Hence they have no just cause for complaint. The sect has, it is believed, had its rise since the settlement of the state. This court has already decided this question, and in South Carolina it was decided quite recently. Therefore, as the constitution is the same, the act of Assembly the same, and the circumstances of the country the same, that they were when former adjudications were had, no good reasons exist for a departure from them: and as this court holds that a law should not be declared unconstitutional without its provisions are manifestly so (2 W. & S. 277), it is hoped the judgment of the court below will be affirmed. As to the constitutionality of the law, he cited 1 S. & R. 34 ; 3 S. & R. 48; 17 S. & R. 160; 2 Penn. Rep. 417; and the Monthly Law Reporter, vol. 1, no. 1, page 7.
   Bell, J.

The plaintiff in error stands convicted under the first section of the act of 22d April, 1794. It prohibits, inter alia, any person to “ do or perform any worldly employment or business whatever on the Lord’s day, commonly called Sunday, works of necessity or charity only excepted.” It is said that as against those who conscientiously observe the seventh day of the week for the Sabbath, of whom the defendant is one, the statutory provision is in direct conflict with section 3d, article 9th, constitution of the commonwealth. It ordains, “ All men have a natural and indefeasible right to worship Almighty Grod according to the dictates of their own conscience; no man can, of right, be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consent. No human authority can, in any case whatever, control or interfere with the rights of conscience; and no preference shall be given by law to any religious establishment or modes of worship.”

The question thus raised is not presented to the court for the first time. It was here made as long ago as the year 1817, in the case of the Commonwealth v. Wolf (3 S. & R.; 4 S.); and, after argument, solemnly decided adversely to the position of the plaintiff in error. Until now, so far as we know, the soundness of this determination has not only passed unquestioned, but is incidentally recognised by other cases. Upon the maxim stare decisis, and looking only to the ordinary course of judicial administration, we might, perhaps, without impropriety, have declined to consider the question as an open one in Pennsylvania. But, impressed with the importance of preserving and protecting the unrestrained liberty of conscience guarantied by the constitution of the United States, and of the several states of the confederacy, including our own, and desirous of retrieving any error which, by possibility, might have been committed in so grave an inquiry, we have given close attention to the ingenious argument addressed to us by the counsel of the plaintiff in error, who, it is understood, represents a portion of our citizens belonging to a respectable Christian sect, which claims and keeps the seventh day of the week as the true Sabbath. The conclusion at which we have arrived, after much reflection, is in consonance with that before announced by this court in the case just alluded to.

The constitution of this state secures freedom of conscience and equality of religious right. No man, living under the protection of our institutions, can be coerced to profess any form of religious belief, or to practise any peculiar mode of worship, in preference to another. In this respect, the Christian, the Jew, the Mohammedan, and the Pagan, are alike entitled to protection. Nay, the Infidel, who madly rejects all belief in a Divine Essence, may safely do so, in reference to civil punishment, so long as he refrains from the wanton and malicious proclamation of his opinions with intent to outrage the moral and religious convictions of a community, the vast majority of whom are Christians. But beyond this, conscientious doctrines and practices can claim no immunity from the operation of general laws made for the government and to promote the welfare of the whole people. In the language of Chief Justice Gibson, the right of conscience, as understood under our organic law, “is simply a right to worship the Supreme Being according to the dictates of the heart; to adopt any creed or hold any opinion whatever, or to support any religion; and to do, or forbear to do, any act for conscience’ sake, the doing or forbearing of which is not prejudicial to the public weal” (Commonwealth v. Lesher, 17 S. & R. 160; enforced in Simons v. Gratz, 2 Penn. Rep. 416). Does the act of Assembly in question impinge upon this natural right or on the constitutional declaration which seeks to foster and protect it ? It is insisted, this question must receive an affirmative response, because, as it is said, the statute treats the first day of the week as a holy and sacred day, and prohibits labour as a profanation of the Lord’s day; and it is thus proved to be, not a mere civil regulation to give rest to man, but an attempt to exalt, by law, the religious belief of certain sects over that of others.

Though it may have been a motive with the law-makers to prohibit the profanation of a day regarded by them as sacred — and certainly there are expressions used in the statute that justify this conclusion — it is not perceived how this fact can vitally affect the question at issue. All agree that to the well-being of society, periods of rest are absolutely necessary. To be productive of the required advantage, these periods must recur at stated intervals, so that the mass of which the community is composed, may enjoy a respite from labour at the same' time. They may be established by common consent, or, as is conceded, the legislative power of the state may, without impropriety, interfere to fix the time of their stated return and enforce obedience to the direction. When this happens, some one day must be selected, and it has been said the round of the week presents hone which, being preferred, might not be regarded as favouring some one of - the numerous religious sects into which mankind are divided. In a Christian community, where a very large majority of the people celebrate the first day of the week as their chosen period of rest from labour, it is not surprising that that day should have received the legislative sanction: and as it is also devoted to religious observances, we are prepared to esti-. mate the reason why the statute should speak of it as the Lord’s day, and denominate the infraction of its legalized rest, a profanation. Yet this does not change the character of the enactment. It is still, essentially, but a civil regulation made for the government of man as a member of society, and obedience to it may properly be enforced by penal sanctions. To say that one of the objects of the legislature was to assert the sanctity of the particular' day selected, is to say nothing in proof of the unconstitutionality of the act, imless in this the religious conscience of others has been offended and their rights invaded.

But it is argued, with apparent conviction of its truth, that to. compel men to refrain from labour, solely from regard to the imputed holiness of a particular day, is, within the meaning of the constitution, to “control” the religious observance, and to “interfere” with and constrain the consciences of those who honestly disbelieve the asserted sanctity of the selected day. We cannot assent to this. So long as no attempt is made to force upon others the adoption of the belief entertained by the governing power, or to compel a practice in accordance with it, so long is conscience left in the enjoyment of its natural right of individual decision and independent religious action. There is nothing to prevent the unrestrained expression of an adverse belief — though perhaps, with less of imposing effect than power lends to opinion, nor any hindrance offered to the full enjoyment of it, at least, so far as the exercise of religious devotion is involved. The error of the plaintiff’s position is that it confounds the reason of the prohibition with its actual effect, and thus mistakes the mere restraint of physical exertion for the fetters that clog the freedom of mind and conscience. But were this otherwise, the plaintiff’s argument is inapplicable to the act of 1194. The conclusions drawn from some of its language are as inexpressive of its practical operation, as of the principal intent of its makers. The phraseology used may indicate a conviction of the holy character of the first day of the week, but as this simple expression of an abstract opinion, which all other men are at liberty to adopt or reject, carries with it no obligation beyond the influence attendant upon the expression itself, it cannot be said a primary object of the act was, authoritatively, to assert the supremacy of Sunday as of Divine appointment. Had such been the intent, irrespective of its statutory character as a day of rest from secular employment, its framers would not have stopped short with a bare interdiction of labour and worldly amusements. Following the example offered by older states and communities, they would have commanded the performance of religious rites, or at least, some express recognition of the day as the true Sabbath. Such a requisition, we agree with the plaintiff in error, would be a palpable interference with the rights of conscience. But nothing like this is exacted. On the contrary, every one is left at full liberty to shape his own convictions, and practically to assert them to the extent of a free exercise of his religious views. In this, as in other respects, the conscience of each is left uncontrolled by legal coercion, to pursue its own inquiries and to adopt its own conclusions. In this aspect of the statute there is, therefore, nothing in derogation of the constitutional inhibition.

Nor, so far as I can perceive, is it obnoxious_to this accusation, in any other particular. It intermeddles not with the natural and indefeasible right of all men to worship Almighty God according to the dictates of their own consciences; it compels none to attend, erect, or support any place of worship, or to maintain any ministry against his consent; it pretends not to control or to interfere with the rights of conscience, and it establishes no preference for any religious establishment or mode of worship. It treats no religious doctrine as paramount in the state; it enforces no unwilling attendance upon the celebration of Divine worship. It says not to the Jew or Sabbatarian, You shall desecrate the day you esteem as holy, and keep sacred to religion that we deem to be so. It enters upon no discussion of rival claims of the first and seventh days of the week, nor pretends to bind upon the conscience of any man any conclusion upon a subject which each must decide for himself. It intrudes not into the domestic circle to dictate when, where, or to what god its inmates shall address their orisons; nor does it presume to enter the synagogue of the Israelite, or the church of the Seventh-day Christians, to command or even persuade their attendance in the temples of those who especially approach the altar on Sunday. It does not, in the slightest degree, infringe upon the Sabbath of any sect, or curtail their freedom of worship. It detracts not one hour from any period of time they may feel bound to devote to this object, nor does it add a moment beyond what they may choose to employ, Its sole mission is to inculcate a temporary weekly cessation from labour, but it adds not to this requirement any religious obligation.

Nor can it be objected against the statute that it gives a preference to any religious establishment or mode of worship. It leaves all free alike in the exercise of their distinctive religious tenets, saying to none, What doest thou? As I have said, the selection of the day of rest is but a question of expediency, and if from the choice falling on the first day of the week, the Jew and the Seventh-day Christian suffer the inconvenience of two successive days of withdrawal from worldly affairs, it is an incidental worldly disadvantage, temporarily injurious, it may be, to them, but conferring no superior religious position upon those who worship upon the first day of the week. The law intends no preference. The command to abstain from labour is addressed to every citizen, irrespective of his religious belief, and if an inconvenience results to some, it is a consequence of the generality of the provision. But this affords no argument against the constitutionality of the law, however strong the argument might he felt when addressed to the legislature as a reason for a modification of the statute.

The only remaining ground upon which the plaintiff in error attacks the validity of the statute, is found in the assumption 'that, in conscience, he is as fully hound to attend to his secular affairs upon the first six days of the week, as to cease from labour on the seventh. Were this so, the law which compels him to inaction upon one of the six, might well be regarded as an invasion of his conscientious convictions. But for this supposed article of his faith, his counsel refers us to no other warrant than that command of the decalogue which teaches, “ Remember the Sabbath day to keep it holy; six days shalt thou labour and do all thy work, but the seventh day is the Sabbath of the Lord thy God; in it thou shall not do any work.” But without other evidence than the mere suggestion of counsel, we cannot believe that the religious sect to which the plaintiff in error belongs, have so construed this commandment as to make it imperative on its members, literally, to labour on every day of the week other than the seventh. Such is not rationally its meaning, nor is it that assigned to the word by the ancient people to whom it was originally delivered by the Deity.

From the beginning even until now, it is regarded by them as intended to set apart a day of religious rest, but not as commanding six days of labour. Within six days the Israelite was directed to do all his work, in order that he might devote the seventh, uninterruptedly, to the service of God, but it was never imagined that he was under an imperative obligation to fill up each day of the other six with some, worldly employment. In the Commonwealth v. Wolf, the court rightly repudiates such a notion, and in this it has been followed by other tribunals. Indeed, the meaning of the command is so obvious as scarcely to leave room for construction; and accordingly, so far as we are informed, the practice of all who profess to believe in the Old and New Testaments, has been in consonance with the original interpretation.

Beside the adjudications already referred to, the determination to which we have attained is fortified by the recent decision of the Court of Errors of South Carolina, in the case of the City Council of Charleston v. Benjamin, decided in January, 1848, and is not impeached by The City of Cincinnati v. Rice, 15 Ohio Rep. 225, cited for the plaintiff in error. • This last case was determined upon the proviso of their statute, that nothing contained therein shall be construed to extend to those who, conscientiously, observe the seventh day of the week as the Sabbath. Did our statute offer a similar provision, this controversy would, probably, never have arisen.

Judgment affirmed.

His honour, Judge Coulter,, concurred in the judgment of the court, as to the constitutionality of the act of Assembly, but dissented from the grounds assumed in the argument. He held it to be constitutional, because it guarded the Christian Sabbath from profanation, and, in the language of the act, prohibited work or worldly employment on the Lord’s Lay, commonly called Sunday; and not because of the mere usefulness of the day as a day of rest and cessation from worldly labour.