examine whether the act covenanted to be done could be legally performed on the Sabbath day or not, for if it could, then the plea is no answer to the plaintiff's action, the act not being done pursuant to the stipulation; if it could not be legally performed, then only might it be necessary to inquire whether this stipulation, being in itself illegal, could be enforced at all; and if it could, then whether the day next preceding, or the day next subsequent, is the legal day for the execution of it.

It is correct, as was advanced by the defendant's counsel, that no worldly labor or business ought to be carried on on the Sabbath day. It is at the least unseemly, subversive of good morals, and, as it appears to me, not in unison with the principles of our holy religion. But, however reprehensible such conduct may be in the general estimation, however injurious to the social state, by inducing a laxity of manners, and thereby lessening the weight of religious obligation; yet the only question in this court can be, could this payment and delivery of horses, from the facts appearing on this record, be legally made on the Sabbath day, by the defendant to the plaintiff?

In support of the negative of this proposition, the maxim dies dominus1 non est dies juridica, was cited and relied upon. And it was inferred that from the spirit of this rule of the common law, the payment and delivery of the horses on Sunday were within its prohibition. The application of that maxim upon the present occasion, would be giving it much too wide a field of operation. It is properly applicable to the ordinary proceedings of courts of justice. Lord Mansfield, in the case of Swann v. Swoome, has given a history of the law on the point. He says that anciently courts of justice did sit on Sundays; the ancient Christians using all times alike. This was for two reasons, first in opposition to the heathens, who were superstitious about the observance of days and times, conceiving some to be lucky and others to be unlucky. Secondly, to prevent Christian suitors from resorting to the heathern courts. But three canons were made, one in the year 517, another in 895, and a third in 932, prohibiting the holding pleas and adjudging causes on the Lord's day. These canons were received and adopted by the Saxon kings, were confirmed by William the Conqueror, and Henry the Second, and so became part of the common law of England. But I find it nowhere stated, that ever a canon was adopted prohibiting common labor, or other usual worldly business on Sunday. Lord Mansfield, in the case above cited, ob

1. Dominicus.

serves, that fairs, markets, sports, and pastimes, were not unlawful to be holden and used on Sunday at common law, and therefore it was requisite to enact particular statutes to prohibit the use and exercise of them upon Sundays, as there was nothing else that could hinder their being continued in use. It is true, that my Lord Coke, in his comment on the statute of Westminster the first, says, that there be dies juridici and dies non juridici, that dies juridici are dies domini, and that this was the ancient law of England, and extended not only to legal proceedings, but to contracts: 2 Inst. 264. The adjudged cases are, however, the other way; and even he, himself, in Macalley's case, decided that the arrest which was made on Sunday, was good, and urged that dies dominicus est dies juridicus: 9 Rep. 66; Cro. Jac. 279. The case of Comyns v. Bayer, Cro. Eliz. 425,' places this matter in a clear light. The defendant pleaded a sale in an open fair, but in stating the right to hold the fair, he did not except the case of the fair day falling on a Sunday, and it was urged that the plea was bad, because a fair held on Sunday, by 27 Hen. VI., c. 9, would be illegal. The court determined that the holding a fair on that day would be illegal, being contrary to the provisions of this statute; but that the contract would not be void. Since this case has been adjudged, the law has been changed; and it is now held, that if an act is forbidden under a penalty, a contract to do it is void. This case shows that there was nothing in the common law that would avoid a sale made on Sunday, otherwise it would have been unnecessary to have mentioned this statute of Hen. VI. to show the illegality, if the act of sale on Sunday had been considered void, independent of it.

In Waite v. The Hundred of Stoke, Cro. Jac. 496, the legality of traveling on a Sunday is recognized, and it is laid down that an arrest on Sunday, and other ministerial acts, are good, and that an original writ or patent bearing teste on Sunday is good enough, for the chancellor may seal writs or patents on any day. Thus an estate or title may be granted on Sunday. In the King v. Brotherton, 1 Stra. 702, an indictment at common law, not concluding contra formam statuti, for selling meat on a Sunday, was held bad on demurrer. These adjudged cases prove that, at the common law, acts not expressly prohibited might be done on a Sunday; and that contracts made, work and labor done, and even business of one's ordinary calling fol

1. Comyns v. Boyer, Cro. Eliz. 485.

AM. DEC. VOL. XXIV-30

lowed on that day, were not, on that account, ever considered by it as illegal.

This brings us to our act of 1741, c. 14, sec. 2. It says, "that all and every person and persons whatsoever, shall on the Lord's day, commonly called Sunday, carefully apply themselves to the duties of religion and piety, and that no tradesman, artificer, planter, laborer, or other person whatsoever, shall, upon the land or water, do or exercise any labor, business, or work of their ordinary callings (works of necessity and charity only excepted), nor employ themselves in hunting, etc., nor use any game, sport, or play, on the Lord's day aforesaid, upon pain, etc., to forfeit ten shillings, etc."

The professed object of this statute was to further the observance of the Sabbath day, pursuant to the spirit of its original institution. This object is fully and forcibly expressed in its words, "that all persons whatsoever shall apply themselves to the duties of religion and piety;" and certainly the actions disclosed upon this record comport not with its injunction, but are directly contrary to the tenor of conduct contemplated by it. It would therefore seem to have been the intention of the framers of this statute to have totally interdicted all worldly labor whatsoever. Yet the rules of construction adopted and constantly adhered to by the courts in the case of penal statutes, will narrow down this intention so far as not to render all acts illegal and void, it having been decided that to do so there must be an express prohibitory clause. Now, in our act, the express prohibition is against work and labor of one's ordinary calling, and extends not to all kinds of labor indiscriminately, under any circumstances.

The case of Drury v. Defontaine, in Taunton's Reports,' shows the construction of the English judges upon their statute of 29 Car. II., c. 7; an act similar to ours, having substantially the same enactment, and in nearly the same words. The facts of that case, as far as they are necessary to be stated here, are these: The plaintiff, a banker by trade, sent his horse to Hull, who kept a commission stable, for the sale of horses by auction, for the purpose of being sold; the defendant came on a Sunday to the stable, tried the horse, and had leave from Hull to take him off for another to try him, to be returned by two o'clock, or the horse to be the defendant's at one hundred pounds. The horse was not returned till eight o'clock, when

1. Taunt. 131.

Hull refused to receive him, and an action was brought for the one hundred pounds. Defense, the contract made on Sunday. The court said that it does not appear that ever the common law considered contracts made on Sunday void; and the statute of Charles enacts, "that no person whatsoever shall do or exercise any wordly labor, business, or work of their ordinary callings on the Lord's day." To bring the case within the act, we must pronounce that either Drury or Hull worked within their ordinary callings on the Lord's day; but the sale of horses, by private contract, was not Drury's ordinary calling, nor was it Hull's; therefore, the sale must be held good. So in the case before the court, there is nothing to show that the work and labor, and business stated in the record, was of the ordinary calling of either of the parties, but in the nature of the transaction, quite the reverse-a private matter. However much, therefore, it is to be regretted, yet the act covenanted to be done on Sunday, might have been lawfully performed on that day, and not being done, the plea is no answer to excuse the non-performance.

Demurrer sustained.

SUNDAY.-Award made on, is void: Story v. Elliot, 18 Am. Dec. 423, note 426. Verdict returned on Sunday is valid: Van Riper v. Van Riper, 7 Id. 427. In the note to Coleman v. Henderson, 12 Id. 290, the validity of contracts made on Sunday, as well as judicial and other acts performed on that day, is considered at length.

TENDER.-In Brown v. Gilmore, 22 Am. Dec. 223, and the note thereto, 224, this subject is considered. See McNairy v. Bell, ante 454.

CRAWFORD v. STATE.

[2 YERGER, 60.]

AFFIDAVITS OF JURORS who tried a criminal case will be received upon a motion for a new trial, to prove facts which will vitiate their verdict. NEW TRIAL WILL BE GRANTED to a person found guilty of murder with a recommendation to mercy, when it appears from affidavits of some of the jurors that they were not satisfied of the prisoner's guilt, and assented to the verdict only, because they believed that the recommendation to mercy would be effectual.

THE opinion states the case.

By Court, WHYTE, J. This was an indictment for murder. The jury found a verdict in the following words, to wit: "We do say that the said Edwin Crawford is guilty of the murder in

manner and form as in the bill of indictment aforesaid against him is charged, and recommend him to the mercy of the chief magistrate of the state of Tennessee, on account of his former good character." A new trial was moved for in the circuit court, for misdirection of the court on several points submitted to him during the trial; and for not granting a new trial upon the matter disclosed by the affidavits of the defendant of Jacob Brasher, a juror, and of William H. Shelton and James McBride, jurors also. Brasher stated that when the jury retired to make up their verdict, he had very strong doubts of the guilt of the accused as to murder, under the law and facts of the case, and so expressed himself to his fellow-jurors, and refused to render a verdict of guilty against the defendant; that after the jury had been in their retirement some time, it was proposed that a verdict of guilty of murder should be rendered, and accompanying the same there should be a recommendation of the prisoner to the mercy of the governor, which recommendation, and the belief of this deponent that it would be effectual, could alone have induced him to have assented to the verdict of guilty which was rendered, as he was not at all satisfied of the guilt of the prisoner as to murder, and had he not believed that the prisoner would be pardoned on application to the governor, he never would have assented to it. He declares that his doubts of the guilt of the prisoner were so strong, and he was so far from believing that he had committed the crime of murder, that no consideration ever could have induced him to render the verdict which was rendered, but the belief which is above set forth. This deponent further states that he was ignorant of legal proceedings, and considered that if the prisoner were discharged, his mind would be satisfied and his objects effected. James McBride states it to be his belief that the verdict of guilty would not have been rendered in this case, but that it was proposed to find a verdict of guilty, and recommend the prisoner to the mercy of the governor. Deponent further states that two of the jury, Brasher and New, urged doubts of the guilt of the defendant, and it was suggested that at any rate a verdict might as well be rendered, for that there could be no doubt of a new trial, and it was not worth while to have the jury confined. Also that the jury were much alarmed at the prospect of not agreeing; and that said Brasher never did agree till the recommendation of mercy was added to the verdict, and the idea of a new trial advanced. William H. Shelton states that the said two jurors did not agree to the ver

1