Rheem v. Carlisle Deposit Bank

76 Pa. 132 | Pa. | 1874

Mr. Justice Sharswood

delivered the opinion of the court, May 25th 1874.

It is very important that the Acts of Assembly providing for the observance of the Lord’s day, commonly called Sunday, should be enforced according to their true spirit and meaning. We are not called upon to discuss the policy of these statutes, but the legislature in the unquestionable exercise of their constitutional power have enacted that one day in seven, the first day of the week, shall be a day of rest, when all worldly employment and business shall be intermitted. By the Act of 1705, § 4, 1 Smith 25, no person or persons upon the first day of the week shall serve or execute or cause to be served or executed any writ, precept, warrant, order, judgment or decree, except in case of treason, felony or breach of the peace; but the serving of any such writ, precept, warrant, order, judgment or decree shall be void to all intents and purposes whatever. And the Act of April 22d 1794, § 1, 3 Smith 177, imposes a penalty upon any person who shall do or perform any worldly employment or business whatever on the Lord’s day, commonly called Sunday (works of necessity and charity excepted). It was said in Stern’s Appeal, 14 P. F. Smith 450, that judicial business in civil cases, done on Sunday, is violative of the common law. The notice from the attorney of the party to the sheriff in that case was not an order within the letter of the Act of 1705, though it is so termed in the case. It was a mere notice to him to proceed according to his duty under the writ of execution already in his hands. It cannot, I think, be doubted that any other notice by party or counsel in the course of legal proceedings would be equally ineffectual. Nor would it be necessary that a suit should be actually pending. Notices are often required to fix the liability of a party. Thus notice to a magistrate before commencing a suit against him for any act done by him in virtue of his office surely could not be served upon him on Sunday. Nor would it matter that it would have been in time if served on the following day. To fix an endorser with legal liability, a notice of non-payment is required. It is a step in the legal proceedings, though before the commencement of the suit. The party was not bound to receive or notice such a communication. It is against the spirit of the Act of 1705, to permit it to have any effect. Besides it was a part of the worldly employment or business of the teller of the bank, directly violative of the Act of 1794, an unlawful act on his part, and fell within the prohibition of that statute.

It is true that the English authorities hold that a notice of protest served on Sunday is to be considered as received on Monday: Byles on Bills 224. But our Act of Assembly is more comprehensive in its terms than the English statute of 29 Charles 2, cap. 7, which forbids only labor in one’s “ ordinary calling on Sunday,” whereas the statute of 1794 is aimed against “ any worldly employment or business whatever Johnston v. The Commonwealth, 10 Harris 108; Omit v. The Commonwealth, 9 Id. 432; Kepner v. Keefer, 6 Watts 233. If the plaintiff in error was not bound to receive the notice on Sunday, neither was he bound to open and read it on Monday. He said nothing to lull the officer of the bank into security. The mere taking of the notice from his hands in silence, though informed of what it was, cannot be construed into an agreement to accept it and a waiver of the irregularity. We must be careful not to open the door to exceptions which will fritter away the plain provisions of the law. Especially is it in the construction of written statutes that hard cases have made bad precedents. Thus wé have seen the Statute of Uses, of Frauds and Perjuries, and of Limitations, almost judicially repealed, by exceptions gradually introduced by construction. In such cases it is a safe rule, obsta principiis.

Judgment reversed, and a venire facias de novo awarded.