author: Per Curiam.

text:
    Crawford versus Murphy.
    1. In an action on a bond given to assignees, under a voluntary assignment, for purchase-money of real estate sold by them, given after acceptance of deed, it was Reid not to be a sufficient defence that the title was doubtful, or that a probable adverse claim existed in another, which was not asserted, the defendants being in undisturbed possession. In order to avoid payment it should be shown that such outstanding title is indisputable. See case of Ludwick v. Huntzinger, 5 W. & Ser. 51.
    2. P. §., the owner of an estate, demised the same to J. M. for the joint lives of himself and wife, and for the life of the survivor, reserving an annual rent of $150. A number of years afterwards, the lessor, by will, authorized his executors to sell and convey the whole or any part of his real estate, and the executors conveyed the demised premises to the said J. M. in fee, who, with his wife, afterwards, at the request of the executors, conveyed the same to F. S. subject to a, mortgage, and subject further to the “ conditions and terms of a lease” of the premises, bearing “ even date" therewith, to the same J. M. from the said F. M. S. No such lease was exhibited at the trial.
    When the deed by J. M. to F. M. S. was about being made, the executors aforesaid executed a written instrument declaring that the said deed should not be construed as a waiver of any claim which the said J. M. may have upon the estate of the said P. S. under the lease above referred to, but that the right of J. M. under the lease, shall remain as if tire deed in contemplation had not been executed.
    _ Afterwards, the said J. M., the lessee, made a voluntary assignment of all his estate, and his assignees advertised for sale a “ life estate” in the premises, subject to an annual rent of $150, and sold the same to the defendants in the case.
    It was Reid, that whether the declaration by the executors had the effect of saving the rights of J. M. under the lease, was not then involved in the case; but that as the purchasers from the assignees were in peaceable possession, F. S. not asserting any title to the life estate, they could not withhold the payment of the purchase-money.
    Error to the District Court of Allegheny county.

    A judgment had been entered in the District Court of Allegheny county, in favor of J. R. Murphy and J. S. Bonnet, assignees of James McDonnell, v. Robert Crawford, J. P. Ross, William Perkins, and Joseph Rogers. It was entered on a bond and warrant of the defendants, dated March 5, 1851, payable in nine months, for the sum of $1550. On January 5, 1852, a rule was directed to show cause why the judgment should not be opened and defendants let into a defence, &c. On Nov. 6, 1852, the rule was made absolute, the judgment to remain as security.
    The consideration of the bond was the purchase by Crawford and others from Murphy and Bonnet as assignees of James McDonnell, of a tract of land in Chartiers township, Allegheny county, containing about 45 acres, in which it was said it was believed, at the time of the sale, that McDonnell had a life estate subject to a rent of $150 per annum. In the affidavit under which the judgment was opened, failure of title in the defendants was alleged; and it was stated that the assignees had represented' at the sale, by published handbills and otherwise, that McDonnell was seised of a life estate in the premises, subject to the rent aforesaid, whereas it was alleged on the part of the purchaser that he was a mere tenant at sufferance, having no title whatever.
    James McDonnell derived his title from Philip Smith, deceased, who by his deed, dated Nov. 15, 1819, demised the premises to him for the joint lives of himself and wife, and the life of the longest liver of them, reserving an annual rent of $150.
    It was admitted on the trial of the case, that the then wife of James McDonnell had been dead about seven years.
    The said Philip Smith, by his last will and testament, dated December 22, 1838, authorized his executors therein appointed, to wit, James M., Peter C., and Joseph Smith, to sell and convey the whole or any part of his real estate situate in Philadelphia, or elsewhere.
    The said executors, by their deed of January 1, 1845, for the consideration of $3500, conveyed the premises in fee simple to James McDonnell, who, with his wife, by deed of September 29, 1845, conveyed the same to Frances M. Smith for the consideration of $500, and also subject to a mortgage given by James McDonnell to. Hierome Bonnet, and subject further “ to the conditions and terms of a lease of the above described premises and tract of land, bearing even date herewith, to said James McDonnell from Frances M. Smith aforesaid.”
    On the part of the plaintiffs in error, it was alleged that the recital of a lease from Frances M. Smith to James McDonnell was incorrect, there never having been such a lease made, or alleged to have been made, except by said recital.
    When James McDonnell and wife were about conveying to Frances M. Smith, .two of the executors of the will of Philip Smith, deceased, viz., Peter and Joseph Smith, gave to James McDonnell a written declaration executed by them as follows :

      “ Whereas : A deed is about to be executed, by James McDonaell to Frances M. Smith, for forty-three acres and sixty-two perches, in St. Clair township, Allegheny county; and whereas, the said deed might by possibility be misconstrued into a waiver of any claim which the said James McDonnell may have upon the estate of said Philip Smith, deceased, under a lease heretofore given by the said Philip Smith for the joint lives of James McDonnell and wife, recorded in vol. 27, page 217: Now, it is hereby distinctly understood and declared, that the aforesaid deed shall not be construed to have any such effect, but on the contrary, the right and claim of said James McDonnell, his executors, administrators, under said lease shall remain as if no such deed had been executed.
    “ Witness our hands and seals this 29th day of September, 1845.”
    This instrument was acknowledged on 15th March, 1851, and it was assigned to the defendants in the judgment (the plaintiffs in error), in April, 1851.
    On the 18th January, 1851, James McDonnell made a voluntary assignment of all his estate to James R. Murphy and Jerome Bonnet, in trust for his creditors. The assignees advertised the property for sale, by handbills, in which it was described as a “life estate in the farm now occupied by James McDonnell, containing 47 acres more or less, subject to an annual rent of $150,” and sold it at private sale on the same day, to Crawford and others, the plaintiffs in error, for $1550, for which they gave the bond in controversy. Notice was given at the date of the rule to show cause, &c., of the willingness of the plaintiffs in error to re-convey to the assignees the premises. James McDonnell, who was examined as a witness on part of the purchasers, testified that he conveyed to Frances M. Smith, at the request of the executors of Philip Smith.

    C. O. Loomis, who had the preparation of the papers connected with the sales, testified that both the assignees and the purchasers believed that McDonnell had a life estate in the property.
    May 2, 1853, verdict was rendered for the plaintiffs, subject to the opinion of the Court, whether the plaintiffs, upon the whole case, were entitled to recover.
    In July, 1853, judgment was entered for the plaintiffs.
    The opinion of Williams, J., was, in part, as follows:
    “ It is not necessary to consider all the questions raised by the defendant’s counsel in this case. There is no evidence that Frances M. Smith, under her deed from James McDonnell, is asserting any title or claiming any right to the life estate arising under his lease from Philip Smith. The deed to Frances M. Smith was made by McDonnell, at the request of her father’s executors, who, at the same time, executed and delivered to McDonnell a written declaration, expressly intended to save his rights under the lease from their testator, and to prevent his deed from operating as a conveyanee of his life estate. Whether the declaration has this effect, is a question not necessary to be now determined. It is admitted that the defendants have been in the undisturbed possession and occupancy of the premises since the date of the plaintiffs’ conveyance to them. Neither Frances M. Smith, nor any one claiming under her, is asserting any title to the life estate of McDonnell. The reserved question is, therefore, on the authority of Ludwick against Huntzinger, 5 W. & Ser. 51, ruled in favor of the plaintiffs.- In that case, which was an action on a bond for the purchase-money of land conveyed by the plaintiff to the defendant, the Court say: ‘It is not sufficient’ to rebut the presumption arising from acceptance of a deed and giving bond ‘to-offer or give evidence tending merely to show that the title which the purchaser has got is doubtful, or not merchantable, but he must show that it is positively bad, by proving a superior indisputable title to the land in a third person or party, who is asserting his right thereto by virtue of such title ; otherwise it may be that the purchaser will never be disturbed in his enjoyment of the land by reason of it; or if he should, he may have his remedy -on the covenants contained in the deed of conveyance made to him ; and if it be that he has taken no covenant for that purpose, it goes strongly to show that he agreed and was satisfied to take the title of the vendor pretty much at his own risk.’ These considerations are strongly applicable to the case of a sale of land made by assignees, under an assignment for the benefit of creditors. See also Schott v. McFarland, 7 Leg. Int. 58.
    It is therefore ordered that the prothonotary enter judgment in favor of the plaintiffs, on the verdict, on the payment of the verdict fee.
    The entry of judgment was assigned for error.

      G. P. Hamilton, for plaintiffs in error.
    It was said that by the deed of the. executors of Smith to James McDonnell, and the deed of McDonnell and wife to Frances M. Smith, the fee simple in the property became vested in her, subject to the mortgage upon it. That the estate in her could not be limited or qualified by the declaration of the executors, as they had no title—they having conveyed to McDonnell.
    The recital of a lease from Frances M. Smith to James McDonnell, in the deed to her, was said to be too indefinite to operate against her as an estoppel. It does not specify the quantity of the estate, the duration of the term, or the extent of the reservation: 1 Whar. 355-6; 7 Barr 199. It was said that there must be an eviction in order to give an action for breach of covenant of warranty; but that a substantial defect in the title was, in general, a good defence against an action for the purchase-money: 5 Bin. 361; 1 Ser. & R. 438, Steinhauer v. Witman; opinion of Yeates, J., Id. 445; 3 W. & Ser. 390.
    It was said, that the purchasers did not agree to run the risk of the title, appeared from the testimony of C. O. Loomis that both parties believed that McDonnell had a life-estate in the premises. That thus there was a mutual mistake, and that contracts made under mutual error, under circumstances material to their character and consequences, are invalid: Story’s Eq. ch. 5, page 121 to 193. In the advertisement by the assignees, the property is represented as a life estate. Such a misrepresentation may render the sale invalid: 5 W. & Ser. 478. It was said that the case of Ludwick v. Iluntzinger, 5 W. & Ser. 51, was not repugnant to this view, but in harmony with it. That in that case, the title was scarcely doubtful. That the facts in that case did not make it necessary to determine that the land must be actually claimed under the outstanding title.
    It was further said that the assignees had not charged themselves with the fund, nor were liable for it. That, therefore, if the title was manifestly bad, the judgment should be reversed.

      Loomis, contrà.
    The assignees, in their deed, did not pretend to convey to plaintiffs in error “ the life estate of James McDonnell,” nor any other or greater estate than was held by James McDonnell at the date of the deed of assignment for the benefit of creditors, made by said McDonnell to defendants in error on the 18th day of January, 1851, as will appear by the following copy of the habendum in their deed:
    “ To have and to hold the above-mentioned and described tract of land, hereditaments and premises hereby granted, or mentioned or intended so to be, with the appurtenances, unto the said parties of the second part (viz. plaintiffs in error), their heirs and assigns, to their own proper use and behoof, for such estate, and under such rents and conditions as the said James McDonnell had and held the same at, and immediately before the time of the execution of the above-mentioned deed of assignment by the said James McDonnell to the said James R. Murphy and J. S. Bonnet, but for no larger or greater estate than the said McDonnell then and there had and held in the same.”

    The plaintiffs in error Have been in peaceable possession of the property purchased from the date of the deed of the assignees to them down to the present time, and no other person has yet asserted or prosecuted a claim to said property.
   Per Curiam.

This judgment is affirmed for the reasons given in the charge of the judge who tried the cause in the District Court. Judgment affirmed.


source: Caselaw Access Project

author: Woodward, J.

license: Public Domain

text:
    Miller versus Weeks.
    1. A note payable to the order of the maker is a negotiable note.

    2. In a suit on such a note against the person who was both drawer and endorser, it was averred in the narr. that the defendant made the note, and endorsed and delivered it to the firm which subsequently endorsed it, and that they endorsed and delivered it to the plaintiff: Held, that the title of the plaintiff was sot out therein with sufficient fulness and formality.
    3. A rule of Court having prescribed that in actions upon a note, a copy of which shall have been filed within two weeks from the return day, it shall not be necessary to prove the execution thereof, unless the defendant, by affidavit, shall have denied that it was executed by him: Held, that the copy of the note having been filed, and its execution not denied by affidavit, proof of its execution by the maker, or of its endorsement by him, was not necessary.
    4. In an action on a promissory note, the plaintiff’s attorney is privileged from being called upon to prove that the note in suit belongs to other persons than the plaintiff, and that the plaintiff is but a trustee with respect to it.
    5. When there is matter on the record by which to amend, the amount laid in the declaration may be amended in this Court by enlarging its amount. Therefore, when a judgment in an action of assumpsit on a promissory note was pending in this Court on writ of error, the declaration was allowed to be amended here by increasing the damages to the amount of the verdict, so as to include the interest which had accrued on the note after suit brought, a copy of the note being filed at or soon after the institution of the suit.
    Error to the District Court of Allegheny county.

    This was an action in assumpsit to November T. 1851, by John A. Weeks v. Alexander Miller, on a promissory note dated 26th May, 1851, signed by Alexander Miller, the defendant, for $5624.75, payable to his own order. It was endorsed, Alexander Miller; Winslow, Lanier & Co.; and in the'latter endorsement it was made payable to the order of John A. Weeks, the plaintiff.
    In the declaration, it was alleged that the defendant, on the 26th May, 1851, made his promissory note, and delivered it to Winslow, Lanier & Co., and thereby promised to pay to the order of said Alexander Miller $5624.75, in four months, &c., and that the said Alexander Miller endorsed and delivered the same to Winslow, Lanier & Co., and that they endorsed and delivered it to the plaintiff. It concluded to the damage of the plaintiff $6000.
    The writ was returnable on the 6th October, 1851; and on the 13th October, 1851, a copy of the note was endorsed on, and filed with the declaration. It was as follows:
    “ $5624.75. Pittsburgh, May 26, 1851.
    “Four months after date, I promise to pay to my own order, $5624.75, without defalcation, value received.
    Alexander Miller.”
    “Endorsed—Alex. Miller, pay to the order of John A. Weeks.
    Winslow, Lanier & Co.”

      In a.n affidavit filed at the institution of the suit, was claimed 15624.75, the amount of the note and interest from the 29th of September, 1851.
    The copy of the note was filed under the 1st rule of the District Court of Allegheny county, viz.: “ In all actions brought in this Court, upon any deed, bond, bill, note, or other instrument of writing, a copy of which shall have been filed within two weeks from the return day, to which the action is brought, it shall not be necessary for the plaintiff, on the trial, to prove the execution thereof; but the same shall be taken to be admitted, unless the defendant, by affidavit filed at or before the time of filing his plea, shall have denied that said deed, bond, bill, note, or other instrument of writing, was executed by him.”
    The pleas were non assumpsit want of consideration, payment with leave, &c., and set-off. .
    On the trial M. Holmes testified that he had seen Alexander Miller write, and that he believed the signature to the note to be his. M. O. Kurtz testified that he was clerk in the house of Kramer & Rahm, and that they received letters from the firm of Winslow, Lanier & Co., almost every day. They reside in New York, and the firm of Kramer & Rahm have money dealings with them—that they were their correspondents in New York. He said he believed this to be the signature of one of the partners. The reading of the note in evidence was objected to on the ground, 1. That the allegata and probata did not agree. 2. That there was not sufficient proof of the endorsement of Winslow, Lanier & Co. 3. That the note in suit was not such a negotiable instrument upon -which the plaintiff can sustain a suit in his own name, as it is drawn by the maker payable to his own order.
    The objections were overruled, and exception taken. The note was read.
    On part of defendant, Mr. Knox,'the plaintiffs’ attorney, was called, ánd it was offered to prove by him: 1st. That the note was transmitted to him by Winslow, Lanier & Co., for collection: 2d. That this suit was brought by him as their attorney, and at their instance: 3d. That the plaintiff is a mere trustee, and permits this suit to be brought for the benefit of Winslow, Lanier & Co. Further that there was no consideration for the note.
    Mr. Knox declined to state any information or communications made to him by his client, as having been made to him confidentially as his attorney.
    The objection of Mr. Knox was sustained, and defendants’ counsel excepted.
    The defendants’ counsel requested the Court to charge: 1. That the plaintiff could not recover under the declaration and the evidence in the case.' 2. That the note was not such a negotiable instrument as would entitle the plaintiff to recover in his own name. 3. That the declaration was neither certain nor definite, as whether the defendant was sued as drawer or endorser was uncertain. 4. That the plaintiff had failed to trace the title by proving the endorsements of the respective endorsers, and has proved no consideration paid or given by himself.
    These several propositions were negatived; verdict was rendered for plaintiff for $6078.91½, which appears to have been for the amount of the note and interest on it, from the 29th September, 1851.
    It was assigned for error; first, That the Court erred in permitting the note to be read—first, because the allegata and probata did not agree: second, Because there was no sufficient proof of the endorsement of Winslow, Lanier & Co. to the plaintiff : third, That this is not such a negotiable instrument, upon which the plaintiff can sustain suit in his own name, as it is drawn by the maker payable to his own order.
    2d. The Court erred in sustaining the objection of Mr. Knox to testify.
    The 3d, 4th, 5th, 6th, and 7th assignments were to the answers to the points; and the 8th was to the amount of the judgment, the plaintiff having claimed in his declaration $6000, and the verdict being for $6078.91½, and judgment having been entered on it.

      Woods, for plaintiff in error.
    It was said that Holmes proved the signature of Miller to the note only, not his endorsement. That Kurtz, the other witness, had never seen either the defendant Weeks, or Winslow, Lanier & Co., write. The letters mentioned by him were to the banking-house in which the witness was clerk, and it did not appear that he had ever read them. It was contended that his belief as to 'the endorsement of their name on the note was not based on sufficient knowledge.
    It was said that the plaintiff’s attorney was desired to state only what he had learned from Winslow, Lanier & Co. in the presence of the plaintiff, and the plaintiff’s declarations to others in his presence.
    Other assignments were remarked upon. As to the necessity of proving endorsements on a note, reference was made, in another case between the same parties, to Chitty on Bills, 571, 10th ed.
    That the judgment was erroneous, as it exceeded the verdict, reference was made to 3 W. & Ser. 333; 6 Barr 330.

      Knox, for defendant in error.
    It was not necessary to prove the endorsement, for a copy of the note having been filed, in conformity with a rule of Court, the execution of the note was to be taken to be admitted, there being no affidavit denying its execution. The term execution, in the rule, does not apply exclusively to the drawing of the note, but includes its endorsement also.
    In the affidavit the plaintiff claimed $5624.75 with interest from 19th September, 1851, which is the amount of the verdict. In the declaration the note was described, and it was stated when it became due; and at the time of the filing of the declaration $6000 covered the amount then due. The additional amount was interest which accrued subsequently. Cited 8 Ser. & R. 263; 2 Harris 83.
    It was contended that the declaration might be amended in this Court: 5 Binn. 572; 1 W. & Ser. 365; 5 Harris 180.
   The opinion of the Court was delivered, October 17, by

Woodward, J.

The note was negotiable, and was negotiated in due course, which gave the holder a right of action in his own name. The declaration sets forth his title with sufficient fulness and formality, and the copy of the note, endorsed on the declaration, furnished the defendant with precise notice of the character and extent of the plaintiff’s claim. Then under the pleadings in the cause and the rules of the District Court, the plaintiff was entitled to read the note in evidence without proving its execution or endorsements; but to take away all apparent grounds of objection, he proved the signature of the maker by Mr. Holmes, and gave evidence tending to prove that of the endorsers, which the Court submitted, as they were bound to do, to the jury.

These observations dispose of six of the assignments of error, and two only, the second and the eighth, remain.

Now as to the second : The defendant offered to prove that the note belonged to Winslow, Lanier & Co., the first endorsees, for whom the plaintiff was merely trustee, and that it was without consideration. The Court admitted this offer; but, when the defendant called Mr. Knox, the plaintiff’s attorney, to sustain it, he declined to state any communications made to him by his client, and the Court refused to compel him, and sealed a bill.

It would have been a grievous error in the Court to have compelled Mr. Knox to testify, in support of such an offer, to confidential communications made to him in the very cause trying. It is not merely the privilege of the attorney, but the rights of the party that forbid the disclosure of such communications, and therefore the attorney is not permitted to divulge them though willing to do so. The matter of the defendant’s offer was not Collateral to the action, but went directly to the heart of it; and the Court were right in holding that it must be proved by some other witness than the attorney of the plaintiff.

The 8th error assigned is, that the jury gave a verdict for $78.90 more than the plaintiff claimed in his declaration.

Although it is evident from the record that this excess was interest which had accrued pending the action, still we are of opinion that in assumpsit the plaintiff cannot have a verdict and judgment for more than the damages laid. He declines to remit the excess, hut asks leave to amend his declaration by increasing his damages so as to comprehend the verdict. In Spackman v. Byers, 6 Ser. & R. 385, where the damages found by the verdict exceeded the amount laid in the declaration, this Court held that the record might be taken back for amendment, and that the judgment, so amended, should be affirmed. But when there is matter on the record to amend by, and there is no possibility of surprise or injustice to the defendant, why send the record down for purpose of amendment, instead of allowing it to be done here ? A copy of the note on which the action was brought has been on the record ever since the institution of the suit, and nothing but the persevering resistance of the defendant has caused the interest to swell beyond the sum originally demanded. It is taking no undue advantage of him, therefore; it is indeed only administering the justice of the cause, to permit the plaintiff to amend here where we have the full record. This has been often allowed in regard to other amendments of equal or more materiality. The cases are collected and discussed by the late Judge Kennedy in Wampler v. Shisler, 1 W. & Ser. 370, where it was said that after a final judgment rendered and a writ of error brought, an amendment will be allowed in furtherance of justice, especially when the merits of the ease have been fully heard and tried, and when it appears that the matter assigned for error could have produced no possible injury to the party complaining of it. This case was followed and approved in Morris v. McNamee, 6 Harris, 180, and its principles are decisive in favor of the amendment which the plaintiff asks leave to make in this Court. He must therefore have leave.

And now, to wit, 17th October, 1853, this cause came on to be heard on the assignments of error and the motion for leave to amend, and was argued by counsel, and thereupon it is ordered that the declaration brought up here as part of the record be amended by inserting seven thousand dollars instead of six thousand dollars as the damages claimed; and this having been done by the prothonotary, it is ordered, adjudged, and decreed that the judgment of the District Court of Allegheny county be affirmed.


author: Black, C. J.

text:
    Jewell versus The Commonwealth.
    1. The Act of 1814 providing, inter alia, that pleading the general issue, or a trial any Court, civil or criminal, shall be a waiver of all errors and defects in the precept, venire, drawing, summoning, and returning of jurors: it was Held, that after conviction of murder in the first degree, it was too late to object to mistakes in the process as to the Christian and surname of some of the jurors by whom the verdict was rendered.
    2. In indictments for murder the Commonwealth’s counsel may challenge for cause.
    8. In an indictment for felony, an objectionable juror may, at the request of the district attorney, be directed to stand aside, and such person shall not be again called till the residue of the panel be exhausted; when the prosecuting officer may challenge the said juror for cause.
    4. In such a case, a juror may be excused from being sworn on account of indisposition. Such action of the Court is within its discretion, and not the subject of revision.
    5. If it do not appear from the record that persons not on the venire were called as jurors after the panel was exhausted, and upon an order of the Court for talesmen, it will be an irregularity. But such irregularity is, by the Act of 1814, cured by a trial on the merits.
    6. The names of the witnesses in such a ease need not appear in the body of the record. But if it were necessary, their names, in this case, appear upon the margin of the minutes of the Court, and are there marked as-sworn. The minutes are a part of the record.
    7. Everything in the office of the clerk, relating to the case, whether entered on the docket, or the minutes, or on separate papers, is part of the record.
    8. The presence in Court of a prisoner charged with a capital offence, at any time between the verdict and sentence, though very proper, is not necessary to the validity of the judgment.
    9. But his absence when a new trial was asked and reasons filed, and a time fixed for their argument, would at most vitiate the sentence; and he might he sentenced anew by this Court, or, if the sentence were reversed, the record might be remitted to the Court below, with directions to proceed in the case according to law.
    Error to the Court of Oyer and Terminer of Allegheny county.

    At October Term, 1852, of the Court of Oyer and Terminer for the county of Allegheny, David Jewell was indicted and convicted of murder in the first degree, the verdict being rendered on 8th December. The record showed that the prisoner was then present in Court. The docket entries showed to the following effect:
    On the 11th December a motion for a new trial was entered, and the Court ordered that the time for filing the reasons be enlarged until the 16th instant. On December 16, on motion of his counsel, the time for filing reasons was extended. On 18th December reasons were filed. On 20th December it was ordered by the Court that the motion for a new trial be taken up for argument on Wednesday, the 22d December. On 28d December, 1852, it was stated on the docket, prisoner present in open Court,
      motion for a new trial argued. And, December 24, 1852, prisoner present in open Court, motion for a new trial overruled by the Court. Same day, motion in arrest of judgment. Reasons filed, argued, and overruled by the Court. Same day, the prisoner, being still present in open Court, was sentenced. It did not appear from the record that the prisoner was in Court on the 11th December, when the motion.for a new trial was made; nor from that time till the 23d December; nor that any action occurred in Court in this matter on the 22d December.
    An application for an allocatur was made for the following-reasons, viz.:
    1. The record does not show that any witnesses were sworn and examined during the trial, on the part of the Commonwealth, or on part of the prisoner.
    2. The record does not show that the prisoner was present in Court during the whole of the trial.
    3. Because the record shows that two persons, to wit, Thomas A. Rowley and James Murdock were empannelled and sworn as traverse jurors, when the record of the rolls and venire for October Term; 1852, show that no such persons were on the rolls of that term.
    An allocatur was granted, and various assignments of error were made to the effect as follows:
    That the name of Wilson Woodburn appears in the panel annexed to the venire, but that name does not appear in the list set up in the office of the sheriff and of the clerk of the Court, as required by Act of Assembly. 2. That although the name of Wilson Woodburn appears on the panel returned with the venire, yet that in the jury list made out by the clerk of Oyer and Terminer, no entry is made of the name of Wilson Woodburn, but in the stead thereof, the name of Wilson Woodford was originally entered on the jury roll. And that, afterwards, the name of Wilson Wood-ford was changed by the clerk, to that of William Woodford, and that on the trial of the said cause, the name of William Woodford was called as a juror, to be empannelled in. said cause, and that the said Wilson Woodford, then being present, did not answer to the name of William Woodford, whereby the said defendant was deprived of the right which he would otherwise have had, of having the said Wilson Woodford on the panel for the trial of his cause. 3. That on the list put up in the offices aforesaid, the names of said Bredin Warren appears as one of the panel, which name likewise appears, by the venire, to have been the name inserted in the panel of jurors', which by the said writ the sheriff was directed to summon. And, it further appears, that, an alteration of the said name has been made in the venire, by prefixing the name Clement, before the name Bredin. So that the name reads Clement Bredin Warren, by which name the said Warren appears on the list of jurors in the said Court, and by which name he was called and sworn. 4. That the attorney for the Commonwealth having challenged said William Wilson, Stephen Hague, Stephen E. Mercer, William McCune and William Tilbrook, the same were set aside by the Court without the assent of the said David Jewell, whereby he was deprived of the benefit of having the said William Wilson, Stephen Iiague, Stephen E. Mercer, William McCune, and William Tilbrook empannelled as jurors for his trial. 5. That William Tilbrook, who, upon the showing of the prosecuting attorney, and without the assent of the said David Jewell, was stood aside by the Court, was afterwards challenged for cause by the prosecuting attorney, and not permitted to be empannelled on said jury, was not sworn upon his voir dire and examined thereupon as to the cause of challenge, nor is there any cause alleged why the said William Tilbrook should not have been forthwith empannelled on said jury. 6. That'said John Crawford, one of the jurors called, was excused by the Court from serving on the jury aforesaid, without the consent of the said David Jewell. 7. That the panel of jurors returned on the venire, and present in Court, was not exhausted at the time said Thomas A. Rowley and James Murdock, the two jurors who, with the other jurors, were empannelled to try the cause, were sworn upon the jury. 8. That there is no order of Court, as by law it is required, to summon and return from the bystanders, or from the county at large, so many competent and qualified persons as were necessary to fill up the jury for the trial of the cause in which the said David Jewell was impleaded. 9. That it does not appear that the witnesses alleged to have been examined, were sworn in due form of law. 10. That the said Thomas A. Rowley and James Murdock, two of the jurors who were empannelled for the trial of the said David Jewell, were not of the jurors summoned and returned on the venire issued by virtue of the precept of the judge, and returned as summoned on the same, and that no authority appears for. summoning and returning the said Thomas A. Rowley and James Murdock. 11. That the said David Jewell does not appear to have been present during the time occupied by the said Court in trying the said cause.
    Signed David Jewell.
    By the Act of 21st February, 1814, it is enacted: Sect. 1. Ho verdict hereafter given in any Court, civil or criminal, in this Commonwealth shall be set aside, nor shall any judgment in any Court be arrested or reversed, nor sentence stayed for any defect or error in the precept issued for any Court, or in the venire issued for summoning and returning of jurors, or for any defect or error in drawing, summoning, or-returning any juror or panel of jurors; but a trial or an agreement to try on the merits, or pleading guilty or the general issue in any case, shall be a waiver of all errors and defects in or relative and appertaining to the said precept, venire, drawing, summoning, and returning of jurors.
    Sect. 123d of Act of 14th April, 1834, provides, that the commissioners, &c., shall make out in alphabetical order two lists of the names of the persons so drawn, to serve as grand, petit, or special jurors, and one of the said lists they shall deliver to the sheriff of the respective county, and the other to the prothonotary or clerk of the proper Court, to be set up by them in their respective offices for the inspection of all persons concerned.
    On the minutes of the trial of this case it was noted—
    Challenged for cause by the Commonwealth:
    William Wilson, Stephen Plague, Stephen E. Mercer, William McCune, and William. Tilbrook.
    Stood aside by the Court for the present, and afterwards chalenged for cause by the Commonwealth:
    William Tilbrook.
    Excused by the Court:
    James Crawford.
    Talesmen called:
    Thomas A. Rowley and James Murdock.
    The jurors empannelled in the case were Clement Breden Warren, &c., &c., Thomas A. Rowley, and James Murdock.

    On the list of jurors drawn and summoned, were the names of William Tilbrook, Wilson Woodford, Breden Warren.
    On the minutes, the names of a number of witnesses were stated on part of the Commonwealth and also in defence, and, it was a,dded, sworn.
    October 27, 1853. Barragh, for the prisoner.—It was said to be important that the forms of trial in criminal cases be observed: Dunn v. Commonwealth, 6 Barr 385; and that the record should show that they have been adhered to: 3 Ser. & R. 237; 5 Id. 315. The Act of 1718, 1 Smith’s Laws, 105, provides that witnesses shall be sworn or affirmed, and the form of the oath is prescribed. This Act is in force: Dunn’s Case cited. In an indictment, nothing material is to be taken by intendment or implication: 5 Barr 66; 6 Id. 386. It was contended that the docket entries only are the proper record; that the minutes of the clerk, though evidence of the ministerial acts of the Court, are not evidence of its judicial acts: 3 Pick. 282; 1 Starkie Ev. 256-7. The record should show that witnesses were called and sworn. It was said to be necessary, according to the' decision in Dunn’s Case, that the record should show that the prisoner was present in Court during the whole of the trial: 4 Black. Com. ; 1 Chitty Crim. Law 363; 3 Saund. 393; 6 Harris 104, Prme’s Case. Neither the minutes nor the record show his presence from the 8th till the 23d December. The 22d December was fixed for the argument, but neither the minutes or docket show that the Court met on that day. The prisoner should be present when a motibn for a new trial is argued: 2 Burr. 931; 1 Chitty Crim. Law 659; 2 Strange 826, King v. Johnson; 1 Chitty Crim. Law, 659.
    As to the third reason assigned in the application for an allocatur, that two persons, viz. Rowley and Murdock, were sworn as jurors whose names were not on the venire: The docket does not show that the panel was exhausted, and that a tales was awarded. Reference to 144th sec. of Act of 14th April, 1834, as to tales being awarded upon the order of the Court, when there shall not be a sufficient number of competent jurors present. As to the practice in awarding tales, reference was made to 2 Saunders 16-17; 3 Black. Com. 365; 4 Wash. C. C. R. 412. The Act of 1814 does not provide for the want of a precept, but only against defects: 3 Ser. & R. 303-4. Reference made to the omission of Middlesex, in Wilkes’ Case, 4 Burr. Rep.

      Flanegan, on part of the Commonwealth.
    The names of the witnesses in this case are entered on the minutes. From an examination through a period of above thirty years, it does not appear to have been the custom in Allegheny county to enter the names of witnesses on the docket, but only on the minutes. It was contended that the minutes were a part of the record, and from it the docket entries are made up. The latter, sometimes, is not made up for weeks or till after the end of the term.
    2. It was not necessary that the prisoner should be present in Court from the 11th to the 23d December.
    As to the third reason assigned in regard to the talesmen, it was said that the minutes showed that talesmen were called.
    As to the 2d and 3d assignments of error, it was observed that no objection was made at the time by the prisoner’s counsel. The jurors named in the 4th assignment were excused for having expressed or made up an opinion as to the case. Tilbrook was challenged for cause. Crawford was excused perhaps from sickness ; no objection was made at the time. That the 7th was incorrect. As to the 8th, it is not usual to note the order of the Court as to the talesmen. As to the 9th, the names of the witnesses appear on the minutes. 10th, that Rowley and Murdock were summoned as talesmen. 11th, replied to before.

      Shaler, for the prisoner.
    As to the propriety of adhering to form in criminal proceedings, reference was made to the opinion of Gibson, C. J., in Hartmann v. Commonwealth, 5 Barr 60. He remarked on the alteration in the names.of jurors who had been summoned, viz. in the names of Woodford and Warren, as having been made without the consent of the prisoner’s counsel. The clerk certifies that the name of the first was changed from Wilson to William; and to the other Clement was prefixed. Breden Warren was summoned, and the name of Clement Breden Warren put on the list. Case of Commonwealth v. Spring, Phila. case, cited. It was admitted that jurors may be set aside on motion of the Commonwealth’s counsel till the panel was exhausted; but that they must then be called and passed on. He contended that William Wilson and the four others were stood aside, but .that only Til-brook was acted on and challenged for cause. That for this reason the panel was not exhausted before talesmen were called.
    It was contended that the minutes are not part of the record, and that the awarding of a tales should appear by the record: 3 Coke’s Rep. 45.

    It was contended that the prisoner should have been present during the argument of the motion ; the argument of the motion for a new trial was a part of the trial. It should appear by the record that a venire issued; that the panel was exhausted, that a tales was awarded, and that the prisoner was present in Court during the whole proceeding.

   The opinion of the Court was delivered, October 29, 1853, by

Black, C. J.

The prisoner was found guilty of murder of the first degree, and sentenced to death in the Court of Oyer and Terminer for Allegheny county. A writ of error was allowed, and the governor suspended the execution of the sentence until the exceptions taken to the judgment could be examined in this Court.

It is unnecessary to say that we have no authority to look beyond the record. An error not apparent on the face of the recorded proceedings, however gross and improper it may have been, is not a subject of review here, and the prisoner has no more right to expect relief on account of such irregularities from us, than from any other five citizens of the state, who are invested with no judicial authority at all. His counsel, knowing our duty and their own, have confined their written specifications to those things which they allege to be errors on the record. We have considered them carefully, and will give our opinion briefly on every point which they embrace, and we wash our hands of everything else that may be in the ease.

The specifications are eleven in number, but some of them may be considered together, as requiring but a single answer.

1, 2, 3. A series of mistakes appear to have been made in the name of a juror who is called Wilson Woodhurn in one part of the process, Wilson Woodford in another, and William Woodford in another. The name of Clement Bredin Warren (the true name of another juror) was at first written “ Bredin Warren,” omitting the first name, but “ Clement” was afterwards prefixed, and by this, his full name, he was called and sworn. These facts constitute the substance of the three first specifications of error. If such objections were sufficient to set aside a judgment, the administration of criminal justice would be wholly impracticable. Very few cases would stand. It is almost impossible to avoid mistakes like these. The occurrence of them does not diminish the safety of an innocent man, and whatever may be the humanity of the law, the escape of the guilty is not one of its objects. It would be a great public misfortune if a person charged with an offence could sit by while he is tried by a jury to whom he makes no objection, and after a verdict against him on the merits of his cause, set it aside on account of accidental and unavoidable irregularities in the summoning or calling of the jurors, by which he was not prejudiced. But the legislature has not left the public interests in a condition so forlorn. By the act of 1814 it is provided that no verdict in any case, civil or criminal, shall be set aside or reversed for any defect or error in drawing, summoning, or returning any juror or panel of jurors, but all such defects or errors shall be cured by a verdict on the merits. If the law which regulates the selection of jurors be violated, the party in danger of being injured by it may challenge the array for that cause and refuse to be tried except by a legal jury; but he waives the irregularity if he goes to trial without objection. ;

4. The fourth specification asserts that the attorney for the Commonwealth challenged five jurors, and that they were set aside by the Court without the consent of the prisoner. By the record it appears that these jurors were challenged for cause. It is not denied that the right of the Commonwealth to challenge a juror for cause, is as clear as that of the party accused. This exception must have been taken under some misapprehension of the facts.

5. One of the jurors referred to in the specification last considered, was first stood aside on the request of the district attorney, and when called again was challenged for cause. This is in accordance with well settled rules. The Commonwealth in cases of felony has no right of peremptory challenge, but her representative, when an objectionable juror is called, may request that he be ordered to stand aside, and such juror shall not be again called until the panel be exhausted. Then the prosecuting officer may challenge him for cause, with as much effect as he could have done at first. This is what was done in the present case, and there was nothing irregular in it.

6. Another juror was excused without the consent of the prisoner. When a juror is disabled by sickness or other cause from sitting, the Court ought not to require him to be sworn. The Court must be permitted to judge what is a sufficient reason for excusing a juror. It is within their discretion, and not the subject of revision.

7, 8, 10. Two jurors were called and sworn whose names-were not on the venire. The record shows that they were , called as talesmen de circumstantibus. But it does not show that the panel was entirely exhausted, or that a formal order for the summoning of talesmen was made by the Court. We presume nothing against a prisoner in the condition of the unfortunate man now before us,, except what the record proves affirmatively. Because therefore it does not appear that the two jurors referred to were called after the exhaustion of the regular panel, and upon an order of the Court for talesmen, we are bound to say that an irregularity was committed. But agreeably to the act of 1814, already cited, it was cured by a trial on the merits. It was an error or defect in the- summoning” of two jurors, and is within the letter as well as the spirit of the statute. It was the prisoner’s duty to make this objection when the jurors were called, and not having done so then, it is for ever too late.

9. The record does not in the body of it state the names of the witnesses who were sworn for and against the prisoner. But on the margin of the minutes the names are noted, with the addition of the word “ sworn,” to each name. We are of opinion that the specification of error founded on this fact cannot be sustained,'for two reasons, either of which would be sufficient without the other. In the first place, it is not necessary that the names of the witnesses should appear on the record] any more than it is that the evidence should be set forth. And, secondly, if it were necessary, their names are here. It is sufficiently apparent that they were sworn'according to law; for when a witness is said to be sworn, it must be intended that he was legally qualified to give testimony.

11. The last specification is that the prisoner does not appear to have been present during the whole trial. The record shows that he was present during every stage of the proceeding, down to the time when the verdict was rendered; that he was also there when the motion for a new trial was argued, and when judgment of death was pronounced upon him. But he was not there when the motion for. a new trial was made, nor when the time was extended for filing reasons, nor when the reasons were filed, and a day fixed for hearing the argument upon them. We are of opinion that the presence of a prisoner charged with a capital offence, at any time between the verdict and sentence, though very proper, is not necessary to the validity of the judgment. His counsel may ask for a new trial in his absence. But if we thought this exception sustainable, the prisoner would not be helped by it. It relates to a part of the case which comes after the verdict, and at worst it could not do more than vitiate the sentence. Looking at it in that light, it would he our duty to sentence him anew, or perhaps to reverse the sentence and remit the record with directions to proceed according to law, beginning at the point where the error was committed. But the granting or refusing of a new trial is purely discretionary, and nothing connected with the manner of its refusal can he the subject of error here.

The loose manner in which records are kept in Pennsylvania, makes it necessary that we should consider everything found in the office of the clerk and relating to the case, a part of it, whether it be entered on the docket or on the minutes, or in separate papers. We have no other record than what can be made up in this way by combining everything together. We cannot reject an entry on the minutes, any more than a docket entry. We have therefore considered the minutes as part of the record.

We have examined all these exceptions carefully. We have not for a moment forgotten that the life of a human being hangs upon our decision. But we are all of one mind, that the prisoner’s case is beyond our reach. We can give him no relief without violating those laws which we are here to guard and defend. If we could set aside the judgment for such reasons as he has presented, we would render justice impossible in many cases, and expose society unprotected to the danger of the worst crimes.

Judgment affirmed.


text:
    Johnston versus The Commonwealth.
    1. Special pleading before a justice of the peace, though not to be encouraged, is not unlawful; and when a defendant has pleaded specially, and the plaintiff demurs to his plea, the facts therein alleged are regularly on the record and become substantive ground for judgment.
    2. In a conviction under the Act of 22d April, 1794, for performing worldly employment on Sunday, it should appear what the work was for which the defendant was convicted; but as the whole record is to be taken together, it is sufficient if the description of the work appear in any part of it.
    3. Driving an omnibus, as a public conveyance, daily, and every day, is worldly employment, and not a work of charity or necessity within the meaning of the Act of 1794, and therefore not lawful on Sunday.
    4. A contract of hiring by the month does not, in general, bind the hireling to work on Sundays; and if his work be such as the statute forbids, an express agreement to perform it on Sunday will not protect him, for such a contract is void.
    5. Though travelling does not in a legal sense fall within the description of worldly employment intended to be prohibited, yet the running of public conveyances on Sunday is forbidden by the statute.

      This was a certiorari issued from the Supreme Court to A. McMaster, an alderman of the city of Pittsburgh, in the matter of a proceeding before him in the name of the Commonwealth of Pennsylvania v. William Johnston.
    It appeared from the proceedings, that on the 5th September, 1853, the said William Johnston was charged with having, on the 4th September, 1853, performed certain worldly employment on the Lord’s-day, commonly called Sunday. A summons issued on the 6th day of September, and after service of it, the case was continued. On 22d September, counsel on the part of the Commonwealth and on part of the defendant appeared. Several pleas were filed, and witnesses were examined. The record of the aider-man concluded as follows:.
    “ Be it remembered that on the 26th day of September, a. d. 1853, William Johnston, omnibus driver, is convicted before me, one of the aldermen in and for the city of Pittsburgh, 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, the 4th day of September, A. D. 1853, in driving certain horses, to which was attached an omnibus, in which certain persons were carried over the streets of the city of Pittsburgh, and from the said city over and along certain roads within the county of Allegheny, contrary to the Act of Assembly in such case made and provided, and I do adjudge him to forfeit for the same, the sum of four dollars, to be distributed as the Act of Assembly directs.
    “ Given under my hand and seal, the day and year aforesaid.
    Signed A. McMaster, Alderman.”
    From the testimony it appeared that the said William Johnston was employed as the driver of an omnibus, which, with others, was known as the Excelsior Line; and that he drove from Pittsburgh to Lawrenceville, a distance of about three miles, and back.
    In the second plea, it was pleaded that the defendant, in driving the horses attached to the omnibus, was doing a work of necessity in this : That the said omnibus was accustomed to run at regular and stated times on Súnday, to and from regular, fixed, and known stations, from Lawrenceville to Fifth street in Pittsburgh, a distance of three miles, for the public conveyance of passengers and persons travelling to and from sundry churches, meeting-houses, and places of divine worship, which they are accustomed to attend on the Lord’s-day, &c.; and to and from their houses and other places at and between said stations, to which said passengers are travelling upon their necessary business, and for the performance of their religious and charitable duties, and for health and recreation, on Sunday.
    In the third, it was alleged that the defendant was doing a work of necessity in this: That the omnibus was a vehicle for the public conveyance of persons travelling to and from the city of Pittsburgh—running from certain fixed stations, at fixed and regular periods, and for a cheap fare, “ there being no other mode of conveyance for persons between said places;” and that the defendant was driving the horses “ for the public conveyance of persons travelling on said roads, to and from their accustomed places of religious worship, on Sunday; and to and from their houses and other places to which persons were travelling on Sunday, as he lawfully might do.”
    In the fourth plea, it was alleged that the defendant, in driving the horses, was doing a work of necessity in this: That the said omnibus was a vehicle for the public conveyance of persons travel-ling over and upon said streets and roads in the information mentioned, daily, each and every day of the week, including Sunday, and that he was hired and employed by the proprietors of said horses and omnibus to drive the horses, &c., at and for a certain price per month; and at the time mentioned in the information, he was engaged in fulfilling the contract on his part, “ the public conveyance of persons travelling over and upon said roads and streets by driving horses attached to said omnibus, on Sunday, being a work of necessity and lawful on that day for the purpose aforesaid.”
    To the second plea, it was replied, that there was no necessity for .the driving of the horses, &c., on the Lord’s-day; and that the said omnibus was not driven for the accommodation of any particular class of persons, but in the same manner, for the same purposes, as on other days of the week; and that it was run for the purpose of carrying passengers to taverns, drinking-houses, and other places of resort; and was driven without reference to the hours of going to church or the accommodation of those persons who were accustomed to attend churches, &c.
    To the third plea it was replied, that the defendant was driving the horses, &c., “ in the course and exercise of his worldly employment or business, on the Lord’s-day,” &c.
    The fourth plea was demurred to.
    By the second section of the Act of 25th September, 1786, for the prevention of vice and immorality (2d Vol. of Dallas’ Edition of the Laws, p. 475), it was enacted, “ That from and after the first day of August next, if any person shall do or perform any worldly employment or business whatsoever on the Lord’s-day, commonly called Sunday (works of necessity and charity only excepted),or shall use or practice any unlawful game, hunting, shooting, sport, or diversion whatsoever, on the same day, and be convicted thereof, every such-person so offending shall, for every such offence, forfeit and pay the sum of thirty shillings, to be levied by distress, or in case he or she refuse or neglect to pay the said sum, or goods and chattels cannot be found whereof to levy the same by distress, he or she shall suffer six days’ imprisonment in the house of correction of the proper county.”
    Sec. 3. “ Provided, always, That nothing in this Act contained shall be construed to prohibit the dressing of victuals in private families, bake-houses, or in lodging-houses, inns, and other houses of entertainment, for the use of sojourners, travellers, or strangers, or to hinder watermen from landing their passengers, or stagecoaches or stage wagons from carrying travellers (having the consent of a justice of the peace upon extraordinary occasions), on the Lord’s Day, commonly called Sunday, nor to the delivery of milk or other necessaries of life before nine of the, clock in the forenoon, nor after five of the clock in the afternoon of the same day.”
    By the first section of the Act of 22d April, 1794, it is provided : “If any person shall do or perform any worldly employment or business whatsoever, on the Lord’s Day, commonly called Sunday, works of necessity and charity only excepted, or shall use or practise any unlawful game, hunting, shooting, sport,,or diversion whatsoever, on the same day, and be convicted thereof, every such,person so offending shall, for every such offence, forfeit and pay four dollars, to be levied by distress; or in case he or she shall refuse or neglect to pay the said sum, or goods and chattels cannot be found whereof to levy the -same by distress, he or she shall suffer six days’ imprisonment in the house of correction of the proper county: Provided always, That nothing herein contained shall be construed to prohibit the dressing of victuals in private families, bake-houses, lodging-houses, inns, and other houses of entertainment, for the use of sojourners, travellers, or strangers, or to hinder watermen from landing their passengers, or ferrymen from carrying over the water travellers or persons removing with their families, on the Lord’s Day, commonly called Sunday, nor to the delivery of milk or the necessaries of life before nine of the clock in the forenoon, nor after five of the clock in the afternoon of the same day.”
    October 27, 1853. Stokes, with whom was Shaler, for the plaintiff in error.—It was said that the record raised the question whether it was unlawful to travel on Sunday; for if travelling be lawful, the necessary means of doing so are lawful. It was said that travelling does not in a legal sense fall within the description of worldly employment or business: 5 W. & Ser. 302, Jones v. Hughes; 6 Barr 417, Logan v. Mathews. The traveller being justified, those who aid him in doing so are excusable.
    The word necessity in the Act of 1794, does not import an absolute physical necessity, but should be construed-as permitting those means that are useful or convenient, if not essential to travellers. It was said that the Act of 1794 legalized travelling, and exempted from its penalties all who were by occupation devoted to the convenience of travellers. It was said that the Act should be construed strictly, as it was in restraint of the natural right of the citizen.

      Brady and Williams, on the part of the Commonwealth.
    By the certiorari, the record only is removed: 2 Hill 9. Though the evidence is before the Court, it is not certified. No error has been assigned ; but the argument is that the conviction was erroneous, because the defendant was engaged in driving an omnibus on Sunday for the accommodation of travellers. It was said that the question raised by the record was not whether it was unlawful to travel on Sunday, but whether the running of a line of omnibuses on Sunday, as stated, was lawful. It was, however, said that the riding in an omnibus, as in this case, did not constitute the persons travellers. That a traveller means a person on a journey. Stagecoaches or stage-wagons, having the consent of a justice of the peace, upon extraordinary occasions, were excepted in the Act of 1786, but were omitted in the proviso to the Act of 1794, and watermen and ferrymen, &c., were inserted in lieu thereof.
    The question is not whether the Sabbath is to be observed; but whether it shall be violated: Com’th v. Wolf, 3 Ser. & R. 48; Specht v. The Com’th, 8 Barr 312; 2 Miles 402; Omit v. The Com’th, 9 Harris 426.
    Works of necessity and charity are the only exceptions in the Act. By the phrase necessity, the legislature did not mean uncontrollable necessity, but meant more than mere convenience. If some persons used, an omnibus for proper legal purposes, this would not justify the driving of it for the conveyance of all who chose to enter it. Omnibus driving is of the same character as driving stage-coaches, and that is not excepted in the Act of 1794. The driving of an omnibus is a worldly employment.

      Stanton, in reply.
   The opinion of the Court was delivered by

Woodward, J.

It has been suggested that it does not sufficiently appear from the magistrate’s conviction what the worldly employment was, for performing which on Sunday, the defendant was convictéd; but a reference to the record will show that the suggestion is groundless. Complaint was made before Alderman McMasters, of the city of Pittsburgh, .that the defendant had performed certain worldly employment on the Lord’s-day, commonly called Sunday, the 4th day of September, A. d. 1853. A summons was issued, and when the defendant appeared and ascertained the grounds of complaint, he did what was very unusual in a Justice’s Court, but which we cannot say was illegal, he put in several special pleas in the nature of confession and avoidance. To the fourth of his pleas, the Commonwealth demurred, and thus brought the facts therein alleged upon the record, and by admitting them made them a substantive ground of the judgment. , In this plea it was alleged by the defendant, that the omnibus and horses which he was driving on that day, were a “ public conveyance for the transportation of persons travelling upon the streets and roads, in the information mentioned, daily, each and every day of the week, including Sunday, and that he, the said defendant, was hired by the proprietors of the said horses and omnibus at and for a certain price per month, and a,t the time mentioned in said information, he was engaged in fulfilling the contract in that behalf on his part with the proprietors of the said omnibus.”

He did not allege that be was a traveller, nor that he was employed by travellers, but that he was executing a contract of service with the. proprietors of a line of public conveyances. The alderman, with these facts alleged and admitted before him, considered that such work was worldly employment within the meaning of the Act of Assembly, and proceeded, in the following words, to convict the said “ William Johnston, omnibus driver, 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, the 4th day of September, a. d. 1853, in driving certain horses, to which was attached an omnibus, in which certain persons were carried over the streets of the city of Pittsburgh, and from the said city over and along certain roads within the county of Allegheny, contrary to the Act of Assembly in such case made and provided;” and accordingly adjudged him to suffer the penalty of four dollars. This conviction must be taken in connection with the facts placed on the record by the plea-and demurrer ; and so taken, it is certain, to every intent, that the defendant was convicted for prosecuting on Sunday his occupation as an omnibus driver. The defendant himself having excluded every other conclusion, and, by legitimate means, developed the real issue with unwonted exactness, there is no room left for professional cavil or judicial astutia on this point. Special pleading, before a justice of the peace, is a novelty which is by no means to be encouraged; but when a defendant has been permitted to resort to this mode of getting his facts on record, it is too late for him, in a Court of error, to desert the facts, or to ask us to shut our eyes upon them.

Strictly stated, then, the question presented for our adjudication by the record brought up by this certiorari, is, whether omnibus driving, as an occupation, may be lawfully pursued on Sunday by a person hired by the month for that purpose.

Under the stat. of 29 Ch. 2, which forbids only labor in one’s “ ordinary calling on Sunday,” it is apparent the defendant would be obnoxious to the penalty, for his work was according to his “ ordinary calling,”—“daily, each and everyday of the week, including Sunday,” is his own descriptive language. Rut our Act of Assembly is more comprehensive in its terms than the English statute, as we took occasion to show at large, recently, in the ease of The Commonwealth v. Omit. With us not only are men prohibited from prosecuting their “ ordinary callings,” on Sunday, but from “any worldly employment or business whatsoever,” except works of charity and necessity, and such specific kinds of labor as are enumerated in the proviso of the Act. It is very manifest then, that omnibus driving is a forbidden business, unless it be a work of charity or necessity, or fall within the proviso That it is not within the proviso is apparent from the works enumerated, the dressing of victuals, the landing of passengers by water, the ferrying over the water travellers or persons removing with their families, and the delivery of milk or other necessaries of life. These are what the legislature exempted from the operation of the statute, and no man in his senses will contend that driving an omnibus by the month is either the one or the other of these things. Is it then a work of charity or necessity ? This is the only remaining question.

It is impossible to lay down any general rule as to works of charity and necessity. If the works enumerated in the proviso of the statute be taken as a legislative sample of works of necessity, it might be said, in general, that supplying the ordinary demands of our physical natures, and relieving from situations of peril and exposure, are necessary acts, which incur no blame; and perhaps all would agree, that visiting and administering to the sick and destitute, and labors for the spiritual welfare of men, are works both of charity and necessity. Certain it is, that against such there is no law,- and they may be performed on any day. Still, the exigencies of human life, which demand works of charity and necessity, are so numerous, and so diversified by attending circumstances, as to defy classification, and to forbid the attempt to prescribe a general rule. The best we can do is to judge of cases as they arise, and to treat them as within the prohibition, or the saving clauses of the statute, according to the specific features which each presents.

Omnibuses aye great conveniences in large towns and populous districts, and the driving them may, in many circumstances which it were easy to imagine, be both a necessity and a charity, and as such perfectly lawful on Sunday; but we are not now dealing with special cases, or extraordinary occasions, but with an ordinary every-day employment. The defendant’s fourth plea contains no suggestion of circumstances which might have rendered his act necessary. The justifying fact alleged is, that he was hired by the month, and was fulfilling his contract. But if the work was unlawful, his contract was void so far as regarded the Sunday labor; for it is well settled by the authorities, that if any act is forbidden under a penalty, a contract to do it is void: Kepner v. Keefer, 6 Watts 233, and the cases there cited. In general, a contract of hiring by the month does not bind the laborer to work on Sunday; yet, as the statute does not forbid every species of labor, but expressly licenses such as are mentioned in the proviso, it is obvious that a person hired by the month to perform any of those labors, may be required to perform them on Sunday. The defendant, however, is not within that category. He was not hired to execute an employment that is exempted from the penalties of the statute, or which, per se, is a work of charity and necessity. Not a circumstance is suggested on the record to distinguish his work on Sunday from what it was on any other day of' the week. As it is not pretended to have been a.work of charity or necessity on other days, it could not have been on Sunday. Running omnibuses is a mere secular employment, established and maintained for private gain; ministering, and intended to minister, not to the absolute wants of our common nature, but to the convenience of the public for a price. No reason can be assigned in favor of such an employment on Sunday, which might not be urged in behalf of every other form of productive industry. If, on a day set apart by Divine command, and human-legislation, as a day of rest, proprietors and drivers of omnibuses may prosecute their business, why may not farmers and mechanics pursue their equally useful, though less lucrative callings ? These employments,- like most other occupations, contribute, more or less directly, to the public convenience, and are followed on the same motive, precisely, which establishes and maintains omnibuses. If we construe the statute so as to license the one employment, we must, for consistency’s sake, pronounce that it does not forbid the others, and throw open the tavern, the store, the workshop, and the market-house on Sunday. If we decide that necessity and charity mean convenience (and this is the essence of the demand), we emasculate the statute, and sweep away the' guards which the legislature threw around, not only the morals of society, but the physical health and well-being of both men and beasts. If Sunday be thus surrendered to the fierce rivalry of efforts for promoting the convenience of the public, it might as well be blotted from the’calendar of days. But we have no right to give up this institution. It has come down to us with the most solemn sanctions both of God and man, and if we do not appreciate it as we ought, we are, at the least, bound to preserve it. We have no power to repeal the Act of 1794, nor to make its exemption of works of charity and necessity include works of mere convenience. Our duty requires us to construe the statute so as to accomplish its purpose, which was to enforce an observance of Sunday, instead of obliterating it. We therefore hold, that driving an omnibus as an ordinary public conveyance, is a work neither of necessity nor charity, within the meaning of the statute, and, consequently, that the defendant was properly convicted.

Thus far we have considered the question as it is presented on the record, apart, entirely, from the evidence taken before the alderman,- and printed in the defendant's paper-book. We might with propriety regard our duty, as a Court of review, finished at this point, for that evidence is no part of the record, and, because there is no bill of exceptions in a Justice’s Court, cannot be made part of it, and on certiorari we look at nothing outside of the record. Still, however, as the case is one of great public interest, and both parties desire an expression of our opinion in view of the evidence which is irregularly before us, we will in this instance, without intending a precedent, consider the case upon the facts presented. A brief, but faithful summary of the facts is as follows:

The omnibus which the defendant drove belongs to the Excelsior line, which plies between Pittsburgh and Lawrenceville, a distance of about three miles; they run every half-hour from their stand in Fifth street to Naser’s tavern in Lawrenceville, and on Sundays as on other days, except that on Sundays one trip less is usually made; it is a well-conducted line, from which the agents generally endeavor to exclude drunken and disorderly persons, but have not always been successful in doing this even on Sunday; there are several churches in Lawrenceville, but some of the inhabitants prefer attending church in Pittsburgh, and a portion of these, having no other vehicles, patronize the Sunday omnibus; it is patronized also by persons visiting the cemetery in the neighborhood of Lawrenceville, and by others who ride for recreation and other purposes; it is spoken of by 'some witnesses as a great convenience, especially as a mode for women and children to get to church in Pittsburgh; and several other witnesses describe it as an intolerable nuisance, and attribute to it the disorderly and licentious crowds who frequent the taverns and groggeries at Lawrenceville on Sunday. Such is the case upon the evidence.

Row the argument is, that though, in the abstract, running-omnibuses on Sunday may not be a work of necessity within the meaning of the statute, yet, inasmuch as this particular line furnishes 'people, otherwise unprovided, with means of attending churches and the cemetery, at a cheap rate, it becomes a work of necessity, and is lawful.

It is not our business to discuss the obligations of Sunday any further than they enter into and are recognised by the law of the land. The common law adopted it; along with Christianity, of which it is one of the bulwarks. Lord Coke, commenting on the maxim of the common law, “ Dies Dominions non est juridious,” says the Sabbath day is not dies juridious, for that ought to be consecrated to divine service. Besides the notorious indecency and scandal,” says Blackstone, in his Commentaries, vol. iv. 63, “ of permitting any secular business to be publicly transacted on that day, in a country professing Christianity, and the corruption of morals which usually follows its profanation, the keeping one day in seven holy, as a time of relaxation and refreshment, as well as for public worship, is of admirable service to a state, considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of all classes, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit. It enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness; it imprints on the minds of the people that sense of their duty to God so necessary to make them good citizens, but which yet would be worn out and defaced by an unremitted continuance of labor, without any stated times of recalling them to the worship of their Maker.”

It is apparent from these authorities, as well as from the whole history of the instituted Sabbath, and particularly from the preamble to our old Act of 1705, fully quoted in the Commonwealth v. Omit, that rest, and the public worship of Almighty God, were the primary objects of the institution, both as a divine and civil appointment; and it seems to me to follow, as a necessary consequence, that no means reasonably necessary to these ends can be regarded as prohibited. Hence, if an invalid, or a person immured for six days within the close walls of a city, requires a ride into the country as means of recuperation, which is the true idea of rest, there is nothing in the Act of 1794 to forbid the employment of a driver, horses and carriage on Sunday to accomplish it. Equally lawful is the employment of the same means to go to the church of one’s choice, or to visit the grave of the loved and the lost to pay the tribute of a tear. In a very high sense, and perfectly compatible with the statute, these are works of necessity and charity, and had this defendant shown that he was employed for these purposes, and that he was merely engaged in accomplishing them, he ought not to have been convicted. But such was not the case. He was not engaged in executing a special undertaking for either of these innocent purposes, but in performing a contract, by the month, for the driving a public conveyance. The labor for which he contracted was to be exactly the same on Sundays as on other days of the week. Some would no doubt avail themselves of the omnibus to ride for health and strength, to visit the cemetery, and to go to church, not only on Sunday, but on other days of the week; but he was, notwithstanding, a common carrier, pursuing his ordinary occupation, which was a worldly employment as truly as merchandise is. The motives of an occasional. customer do not determine the character of a man’s business. Its character is acquired from its general aspects, and from the intention of the person prosecuting it, rather than from those of the person patronizing it. The argument amounts to this ompibus driving may be pursued -'on Sunday exactly as on other days of the week, if anybody rides to church or the cemetery in it; though worldly employment in all its aspects, and actually contributing to idleness, dissipation, and disorder, yet it is so sanctified by this casual patronage, as to become a work of charity and necessity within the high significance of those words as used in the Act of 1794. A specious pretext, to make the most of it, to cover up a palpable violation of that law.

Had the persons riding to church or the cemetery been prosecuted, they might have alleged a proper and necessary work, or had the defendant been engaged specifically in carrying them, and running his omnibus for no other purpose, he would have been blameless; but, according to his own showing, he was fulfilling a contract of another kind, and with other parties. The attempt to give his business a different aspect from that which it has worn from the beginning, is abortive. Something has been said about the indelicacy of prying into the motives of passengers travelling in a public conveyance, to which I fully subscribe; but it is apparent that it is the defence which is guilty of this indelicacy. The Commonwealth complains against a line of omnibuses for running on Sundays as on other days—the defendant makes inquisition of the motives with which his passengers ride, with a view of finding some ground to justify his apparent violation of the law; and this, I agree, is an example which ought not to be encouraged in the conductors of a public conveyance.

Rut, it is said, judicial construction has established that travel-ling on Sunday is not a violation of the Act, and then it is argued, with an appearance of logical precision, that if the end be legitimate, and not forbidden by law, all the means which are appropriate, which are adapted to that end, may lawfully be employed to carry it into effect. This conclusion will be found, I think, to be too broadly stated. The Act of 1786 was essentially the same as the Act of 1794, but the proviso of that Act exempted, among other things, “ stage-coaches or stage-wagons carrying travellers, having the consent of a justice of the peace, on extraordinary occasions.” The legislature of 1786 seem to have intended not only to license travelling on Sunday with one’s own private means, but by public conveyances also, with the approbation of a justice, for, at that day, “stage-coaches and wagons” were the only public conveyances by land. But when the Act of 1794 was passed to supply that of 1786, this license of public conveyances W'as stricken out, and the words “ or ferrymen from carrying over the water travellers or persons removing with their families,” were inserted in lieu of them. Now as travellers who required the help of ferrymen were, like persons removing with their families, generally, perhaps at that day always, travellers by private conveyance, the true construction I apprehend of the Act of 1794 is, that whilst travelling by private conveyance is not forbidden, the running of public conveyances is. The Act forbids “ all worldly employment or business' whatever, not works of .charity and necessity,” except such as are enumerated in the proviso. But public conveyances are not only not enumerated there, but being in the proviso of the Act of 1786, from which that of 1794 was copied, were intentionally omitted in the latter. It would therefore be against all rules of construction to read the two provisoes alike, and the point in which the legislature has made them to differ? is decisive against public conveyances. The legislation which has been required to authorize railroad companies to run their cars on Sunday, indicate? that this is the true construction of the Act of 1794, and the dictum of Oh. J. Gibson in Jones v. Hughes, 5 Ser. & R. 302, is express to the same point. The prosecution in that case was for travelling on horseback, and after the defendant was discharged he brought an action of false imprisonment against the magistrate who issued the warrant of arrest; but this Court refused to sustain the action, the Oh. J. observing that “by the Act of 22d April, 1794, justices of the peace may punish in a summary manner for performing any worldly employment or business on the Lord’s-day; and although travelling does not, in a legal sense, fall within the; description of worldly employment or business, it is a subject on which a magistrate might readily be mistaken, for a carrier driving his team along the hightoay, which bears a striking resemblance-to travelling, would be in the exercise of his vocation, and if on Sunday, obnoxious to the penalty of the law.” Here the distinction is marked, which I suppose the legislature intended-^-travel-ling, ipso facto, is not forbidden, but public conveyances are, so that the conclusion that a lawful, end includes all appropriate means, however sound in some cases, is too broad for this occasion. The doctrine in Logan v. Matthews, 6 Barr 417, is coincident with this distinction. The conveyance hired there was for a special-purpose, and that a filial duty, and became the bailee’s private conveyance pro hac vice. Nor has any case been cited which conflicts with the distinction; and seeing that it is created by statute, it is worthy to be maintained, even if supported by no good reason. But there is a reason. Public conveyances that run regularly on Sunday, whether there are passengers or not, are much more likely to interrupt the exercises of religious meetings, and disturb the peace of neighborhoods, than private conveyances are; and, besides, they are pursuing a vocation, which like all other secular callings, it is the policy of the law to suspend on that day. A traveller, on the other hand, is away from his vocation. If travelling were a man’s ordinary employment, it might well be doubted whether he would be within the protection of the statute, for the clause of exemption mentions travellers, sojourners, strangers, and persons removing with their families; titles all these, which indicate absence from vocation, as well as home.

It is not necessary to decide whether the persons riding in the defendant’s omnibus between Pittsburgh and Lawrenceville could be considered travellers within the meaning of the Act, for they are not before us; and what is decisive against the defendant is, the confessed fact that he was driving, as his ordinary employment or vocation, a public conveyance. Granting that they were lawful travellers, he was engaged in furnishing them contraband means of conveyance.

We have now considered the reasons which, drawn from the evidence in the case, have been urged against the conviction. We might have disposed of them in a word, on the ground that they could not arise on the record; but from respect to the parties and interests involved, we have preferred to discuss them, and to show, as I trust has been done, that the alderman was in the direct line of the statute, when, in view of the evidence before him, he decided that the defendant’s work was worldly employment or business, and not a work of charity or necessity. Doubtless some partial inconvenience will be experienced from stopping these omnibuses on Sunday; and if this prove too high a price for the good results that may accrue, the remedy must be sought, not in the Courts, but in the legislature. Whilst, however, this Act of Assembly remains unaltered by the legislature, it is not to be frittered away by judicial construction. Our fathers, who planted in our fundamental law the assertion of those immortal truths, that all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences, that no man can be compelled to attend, erect, or support any place of public worship; and that no human authority can in any case whatever control or interfere with the rights of conscience; enacted, also, the statutes of 1705, 1786, and 1794, for the suppression of worldly employments on Sunday. So far from conflicting with those invaluable rights of conscience, they regarded such statutes as indispensable to secure them. It would be a small boon to the people of Pennsylvania to declare their indefeasible right to worship God according to the dictates of their consciences, amid the din and confusion of secular employments, and with desecrations on every hand of what they conscientiously believe to be hallowed time. These statutes were not designed to compel men to go to church, or to worship God in any manner inconsistent with personal preferences; but to compel a cessation of those employments which are calculated to interfere with the rights of those who choose to assemble for public worship. The day was set apart for a purpose, and the penal enactments guard it, but they leave every man free to use it for that purpose or not. If he wish to use it for the purpose designed, the law protects him from the annoyance of others—if he do not, it restrains him from annoying those who do so use it. Thus the law, without oppressing anybody, becomes auxiliary to the rights of conscience. And there are other rights, intimately associated with the rights of conscience, which are worth preserving. The right to rear a family with a becoming regard to the institutions of Christianity, and without compelling them to witness hourly infractions of one of its fundamental laws—the right to enjoy the peace and good order of society and the increased securities of life and property which result from a decent observance of Sunday—the right of the poor to rest from labor, without diminution of wages, or loss of employment—the right of beasts of burthen to repose one-seventh of their time from their unrequited toil—these are real and substantial interests which the legislature sought to secure by this enactment; and when has legislation aimed at higher objects ? If we doubted the policy of the statute, it would nevertheless be our sworn duty to administer it faithfully; but with a profound conviction of its wisdom and value, we are resolutely opposed to a course of judicial construction, that would cheapen its demands and impair its power for good.

The judgment is affirmed.

Black, C. J., and Lewis, J., each delivered a dissenting opinion.


text:
    Smith & Co. for Cooper versus Ewer & Peck.
    1. A demand, to be set off, must belong to the party using it at the commencement of the suit.
    2. The mere possession of a note on its face- negotiable, having on it an endorsement in blank, which is offered as a set-off, is not evidence that it belonged to the defendant at the commencement of the suit. It is incumbent on the defendant to show that the claim attempted to be set off was acquired m proper time.
    Error to the District Court of Allegheny county.

    This was a suit brought on 25th March, 1852, in the name of James B. Smith & Co., for use of Lewis Cooper, v. John Ewer and Benjamin Peck, as partners. The action was brought to recover the amount of a book account of $982.57, with interest from February 28, 1852. On the trial a sworn copy of the book account, filed with the precipe, was given in evidence.
    On part of the defendants was then produced, as a set-off, a promissory note of James B. Smith & Co. for $931.01, dated April 14, 1851, at eight months, payable to the order of Stuart & Bro., and by them endorsed.
    On part of the plaintiff, was then given in evidence the assignment, dated October 29, 1851, of the claim in suit, to Lewii Cooper.
    Williams, J., charged the jury, that under the evidence in the, case, Cooper, the’ beneficial plaintiff, was bound to show that he was a purchaser for value of the claim in suit, in order to defeat, the defendants’ right to set off the note; that the assignment was not evidence of the fact that Cooper was a purchaser for a valuable consideration as between himself and the defendants; and that having failed to show this he was not, under the evidence, entitled to recover.
    Verdict for the plaintiffs for $42.99.
    See another suit for the use of Cooper, antea 36, &c.
    It was assigned for error, that the Court erred in charging that Cooper, the beneficial plaintiff, was bound to show that he was a purchaser for a valuable consideration, and that the assignment itself, although purporting to be for value received, was not any evidence of the fact.

      G. P. Hamilton, for plaintiff in error.
    As between volunteers, the first in time is first in right. The assignment to Cooper of the account was on the 29th October, 1851. There was no evidence when the defendants became the holders of the note offered to be set off. They should have shown that they acquired the ownership of it before the date of the assignment of the account to Cooper. There was no evidence on the subject, and no grounds for presumption. It was a question of fact requiring proof. The assignment to Cooper, purporting to be for value, was at least primâ facie evidence that he was a purchaser for valuable consideration. The possession of the note by the defendants was not any stronger evidence as regarded consideration.

      Selden, for defendants in error.
   The opinion of the Court was delivered by

Woodward, J.

This is the last of this batch of cases, and as the assignment to Cooper was fully proved in this case, the questions that arise upon it must be considered. The claim in suit was assigned to Cooper on the 29th October, 1851, and the action was instituted on the 25th March, 1852. The note which the defendants offered in evidence was drawn by James R. Smith & Co., on the 14th April, 1851, for $931, at 8 months, payable to the order of Stewart & Bro., and by them endorsed without date to the defendants. The defendants could not be affected by the assignment of their creditors’ claim to Cooper until' they received notice of it. Until such notice they were at liberty to arm themselves with liabilities of Smith & Co., and use them in defence of any action that might be brought on their own indebtedness. This doctrine, hinted in a variety of cases, was fully discussed by Mr. Justice Lewis, and settled by this Court in the case of Rider v. Johnson, decided at the last term in this district, but not yet reported. Cooper gave the defendants no notice of the assignment till suit was brought. But that was notice, for the writ told them he was on the record as the beneficial plaintiff. Bid the defendants hold the note of Smith & Co., at that time ? If they did, they had the right to set it off. If they did not, but obtained it subsequently, they had no right to set it off, whether the assignment was for a valuable consideration or not, for there is no rule better settled than that a debt or demand to be set off must exist at the commencement of the suit, and must at that time have belonged to the defendant: Huling v. Hugg, 1 W. & Ser. 418; Pennell v. Grub, 1 Harris 554.

Now here was a question of fact, of which the defendants held the affirmative, and by the general rule, as well as according to Pennel v. Grub, the onus was on them. What evidence is there that on the 25th of March, 1852, they held the note ? None, unless it can be inferred presumptively from the negotiability of the note. But negotiable notes are frequently transferred after maturity. We have various instances of this in the books. This note fell due in December, 1851; and if in the defendant’s hands then, they would doubtless have protested it for the purpose of fixing the endorser, and could easily have shown the fact. But if not in their hands, then what ground is there for presuming they obtained it before the 25th of March, 1852 ? The suit was not commenced till March, 1853, and it is quite as probable they would have looked up overdue paper in that year of preparation, as that they would have taken it in the three months that elapsed between its maturity and the institution of the suit. It is impossible to raise any presumption from the facts before us to supply the affirmative proof, which it is incumbent on the defendants to produce.

On this ground the instruction should have been adverse to the defence, and the judgment must be reversed and a venire de novo awarded.


author: Lewis, J.

text:
    Rice versus The Farmers’ and Drovers’ Bank.
    In an assignment of error to the admission or rejection of evidence, the bill of exceptions should be stated in immediate connection with the specification, or the full substance of the bill be stated.
    Error. to the Common Pleas of Greene county.

    This was the case of a scire facias issued in favor of The Farmers’ and Drovers’ Bank of Waynesburg, for the use of Houlsworth, v. William Rice, endorser of Davidson and Harris.
    On the trial, on the part of the bank was offered in evidence the record of a judgment No. 168, of September Term, 1842, in favor of the said bank against Davidson and Harris.

    Also, judgment No. 72, of March Term, 1844, entered the 19th of March, 1844, for §1015.81, in favor of said bank against Thomas Norris, endorser of Davidson and Harris. On this judgment several executions issued against Norris; upon which his farm was levied on and advertised to be sold; and on the day of sale was cried by the sheriff, when an arrangement was made between Norris and Houlsworth, by which the latter was to take an assignment of the judgment which was to be allowed as cash on the price of Norris’ farm; which Houlsworth was about purchasing. Accordingly this judgment, on the 3d of April, 1847, was assigned by the bank to Houlsworth.
    Also judgment No. 351, to March Term, 1843, in favor of said bank against William Rice, endorser of Davidson and Harris. Upon this judgment the present scire facias issued.

    To this scire facias the defendant plead payment, and payment with leave, &c.

      Upon the trial, after the exhibition of the original judgment against the makers and each of the endorsers, and the assignment by the bank to Houlsworth of the judgment, viz. Judgment No. 72, March Term, 1844, the plaintiff closed.
    It was stated on the paper-book that the defendant then produced evidence to establish as a defence, that he was a Subsequent endorser to Norris on the note on which judgments were originally obtained; that the drawers had fully indemnified Norris, by funds, property, and securities placed in his hands, and that in-consideration thereof Norris had released the drawers from any liability on account of what he had paid, or what he might have to pay on account of his endorsement; that the assignment aforesaid, by the bank to Houlsworth, was in pursuance of an arrangement between Houlsworth and Norris, the terms' of which, as disclosed, by the evidence, were, that if Houlsworth would purchase the judgment, Norris would let it come in as so much cash paid Houlsworth on the price of Norris’ farm, for which they were then bargaining.
    In order to rebut this defence, the plaintiff called Thomas Norris as a witnéss. To this witness the defendant objected; but the Court overruled the objection and admitted the wituess.
    To this the defendant’s counsel excepted.
    It was assigned for error, viz. “ The Court erred in admitting Thomas Norris as a witness.”

      Downey and Rowe, for plaintiff in error.

      Sayers and Black, for defendant in error.
   The opinion of the Court was delivered, September 22, by

Lewis, J.

The rule of Court requires that when the error assigned is to the admission or exception of evidence, the specification must quote the full substance of the bill of exceptions, or copy the bill in immediate connection with the specification. Any assignment not in accordance with this rule, will be held the same as "none.”

The specification of error in this ease, relates to the admission of Thomas Norris as a witness; but neither “ the bill of exception” nor “the full substance of it,” is stated “in immediate connection with the specification.” Indeed, neither of these important particulars is to be found in any part of the paper-book. The error assigned is therefore not sustained. It must, in accordance with the rule, be “held the same as none.”

Judgment affirmed.