tain doctrines are common to all. A much broader field is covered by the legislation in this country than in England. There, it will be seen, the statute simply prohibits a certain class from pursuing their usual occupations; but here the intention is mainly to prevent all secular work of any kind by any person. In some states, however, the English legislation has been almost literally transcribed, and the construction there given adopted. Pending a judicial interpretation of the Statute of Charles, a doubt was expressed whether it applied to private transactions not visible to the public at large: Bloxsome v. Williams, 3 B. & C. 232; and this was followed in New York and North Carolina: Boynton v. Page, 13 Wend. 425; Melvin v. Easley, 7 Jones, Law (N. C.), 356; but it was subsequently held that the statute included all business or work, public or private, done in the ordinary calling of the persons therein specified: Fennell v. Ridler, 5 B. & C. 406,1 although but one such offence can be committed on the same day: Crepps v. Durden, Cowp. 640; 1 Sm. Lead. Cas. 1073. And the true construction of the words "ordinary calling" has been declared to be "not that without which a trade or business cannot be carried on, but that which the ordinary duties of the calling bring into continued action. Those things which are repeated daily or weekly in the course of a trade or business are parts of the ordinary calling of a man exercising such trade or business:" Rex v. Whitnash, 7 B. & C. 596; Drury v. Defontaine, 1 Taunt. 131; Smith v. Sparrow, supra; Wolton v. Gavin, 16 Ad. & E. (N. S.) 48; Hazard v. Day, 14 Allen 487; State v. Conger, 14 Ind. 396; Salter v. Smith, 55 Ga. 245.2

1 "One of the ablest judgments ever delivered :" BEST, C. J., in Smith v. Sparrow, 4 Bing. 84. The dictum of PARK, J., in the latter case, that the "worldly labor and business," mentioned in the Statute of Charles, was not qualified by the subsequent phrase, "or work of their ordinary callings," has never been followed.

2 Hence it is not the ordinary calling of a farmer, to hire a laborer: Rex v. Whitnash, supra; of an attorney (if within the statute at all), to become responsible for his client: Peate v. Dicken, 1 C., M. & R. 422; or of a creditor to release a debt: Allen v. Gardiner, 7 R. I. 22; and the burden of proving this ordinary calling is, under statutes similarly expressed, obviously upon the party pleading the statute: Sanders v. Johnson, 29 Ga. 526; Commonwealth v. Hart, 11 Cush. 135.

Under the New Hampshire act providing that "no person shall do any work, business or labor of his secular calling to the disturbance of others," it is held that all secular work is prohibited, without regard to the ordinary calling of the offender, and is, moreover, to "the disturbance of others," if done in their presence, whether with or without their consent: Smith v. Foster, 41 N. H. 218; George v. George,

Many of these statutes contain an exception in favor of that not inconsiderable class of the community who have adhered to the traditional seventh day as a Sabbath, while others are less charitable, and are enforced against all denominations, regardless of their religious faith. And the constitutionality of this species of legislation has been so often affirmed that it is no longer an open question: Commonwealth v. Wolf, 3 S. & R. 48; Specht v. Commonwealth, 8 Penn. St. 312; Society v. Commonwealth, 52 Id. 126; City v. Benjamin, 2 Strob. 508; Lindenmuller v. People, 33 Barb. 548; Neuendorff v. Duryea, 69 N. Y. 557; Shover v. State, 5 Eng. 259; Voglesong v. State, 9 Ind. 112; Foltz v. State, 32 Id. 215; Commonwealth v. Colton, 8 Gray 488; Karwisch v. Mayor, 44 Georgia 204; State v. Ambs, 20 Mo. 214; Ex parte Andrews, 18 Cal. 678; Ex parte Bird, 19 Id. 130; Gabel v. Houston, 29 Texas 335; Commonwealth v. Has, 122 Mass. 40.1

The exception in favor of works of necessity or charity is universal, although the circumstances constituting a "necessity" within the meaning of these statutes must constantly vary, for "necessity itself is incapable of a sharp definition," and the question is determined by the moral fitness or propriety of the work: Commonwealth v. Nesbit, 34 Penn. St. 409; Flagg v. Millbury; 4 Cush. 243. So, "charity must include everything which proceeds from a sense of moral duty, or a feeling of kindness and humanity, and is intended wholly for the purpose of the relief or comfort of another, and not for one's own benefit or pleasure:" Doyle v. Lynn Railroad, 118 Mass. 197.

Hence discharging filial or parental duties, McClary v. Lowell, 44 Vt. 116; Logan v. Mathews, 6 Penn. St. 417; Horne v. Meakin, 115 Mass. 331; releasing prisoners: Salter v. Smith, 55 Ga. 244; Johnston v. People, 31 Ill. 469; or ministering to illness or distress: Gorman v. Lowell, 117 Mass. 65; Doyle v. Lynn, 118 Id. 197, are never considered as violating any written law. Nor do the statutes apply to the performance of ordinary domestic services:

47 Id. 27; while under the statute of Ohio prohibiting common labor," only "manual" labor is forbidden: Bloom v. Richards, 2 Ohio St. 388.

1 Ex parte Newman, 9 Cal. 502, which asserted a contrary doctrine, is practically overruled by subsequent cases in that state. In Shreveport v. Levy, 26 La. Ann. 671, an ordinance allowing Hebrews to work upon Sunday was declared invalid, and in Cincinnati v. Rice, 15 Ohio 225, the converse was decided, as the statuto of Ohio does not apply to that religion.

Rex v. Cox, 2 Burr. 785; King v. Younger, 5 Term 449; Crosman v. Lynn, 121 Mass. 301; Commonwealth v. Nesbit, 34 Penn. St. 398; and executing a will has never been deemed to be either work, labor or business within these acts: Bennett v. Brooks, 9 Allen 118; Beitenman's Appeal, 55 Penn. St. 183; Weidman v. Marsh, 4 Penn. Law Jour. R. 401, 406; George v. George, 47 N. H. 27.

So, the necessity may arise out of particular trades or occupations. Thus vessels may sail and seamen must work: Philadelphia Railroad v. Towboat Co., 23 How. 219; Ulary v. The Washington, Crabbe 208; The Cyane, 1 Sawyer 151; Calder Company v. Pilling, 14 Mees. & Wels. 76; and so of the transportation of the mail: Commonwealth v. Knox, 6 Mass. 76. Nor are common carriers exempt from responsibility for the safe custody of goods upon that day: Powhatan Co. v. Appomattox Co., 24 How. 247; United States v. Powell, 14 Wall. 494; Merritt v. Earle, 29 N. Y. 115; Jones v. Transportation Co., 50 Barb. 193; Stallard v. Great Western Co., 2 B. & S. 419. So, too, highways must remain open for all necessary travel: Murray v. Commonwealth, 24 Penn. St. 270; McArthur v. Green Bay Co., 34 Wis. 139; Flagg v. Millbury, 4 Cush. 243,' and property exposed to imminent danger may always be preserved: Parmalee v. Wilks, 22 Barb. 539; Morris v. State, 31 Ind. 189; Hooper v. Edwards, 18 Alabama 281; McGatrick v. Wason, 4 Ohio St. 566.

A contrary doctrine obviously prevails when the work is simply one of convenience or profit: Jones v. Andover, 10 Allen 18; Commonwealth v. Sampson, 97 Mass. 404; Commonwealth v. Josselyn, Id. 411; McGrath v. Merwin, 112 Id. 467; Johnston v. Commonwealth, 22 Penn. St. 102; 2 Am. Law Reg. 432, 517; Pate v. Wright, 30 Ind. 476.2

1 To one travelling in violation of a statute, however, it is clearly no justification that the highway was then open: Scully v. Commonwealth, 35 Penn. St. 511.

2 In Pennsylvania it has been considered that running street cars on Sunday was against the statute: Commonwealth v. Jeandell, 2 Grant 506; 3 Phila. R. 509; Sparhawk v. Union Pass. Railway, 54 Penn. St. 401; but familiar as the practice is, no conviction has ever occurred under these decisions, and the contrary was intimated in the recent case of Augusta Railroad v. Renz, 55 Ga. 126, wherein it was said: "In view of the dependence of the people for travel, in the cities where street railroads have been established, by that mode of conveyance in going to church, visiting the sick, &c., we are not prepared to hold that the running of street railroads in cities and the vicinity thereof, where the same have been established, on Sunday, is not a work of necessity."

Express provisions against Sunday travelling also frequently exist, and, in those states, as no legal duty to furnish a safe highway is then imposed, a town is not liable for damages happening upon that day by reason of defective roads: Johnson v. Irasburgh, 47 Vt. 32; s. c. 14 Am. Law Reg. (N. S.) 547, 553, n.; Bosworth v. Swansey, 10 Metc. 363; Jones v. Andover, 10 Allen 18; Connolly v. Boston, 117 Mass. 64; Cratty v. Bangor, 51 Me. 423;1 unless the person injured was either not travelling in the ordinary sense of the word, or was proceeding from motives of necessity or charity: Gorman v. Lowell, 117 Mass. 65; Crosman v. Lynn, 121 Id. 301; as a visit of a parent to his child: McClary v. Lowell, 44 Vt. 116; or walking for mere exercise: Hamilton v. Boston, 14 Allen 475; O'Connell v. Lewiston, 65 Me. 34: see Mc Gatrick v. Wason, 4 Ohio St. 566.2 But in actions of tort against individuals or common carriers it is no defence that the injury occurred upon Sunday, while the plaintiff was either travelling or engaged in his ordinary secular occupation: Mohney v. Cook, 26 Penn. St. 342; Philadelphia Railroad v. Towboat Co., 23 How. 217; Etchberry v. Levielle, 2 Hilton 40; Carroll v. Staten Island Co., 58 N. Y. 126; 65 Barb. 41; McArthur v. Green Bay Co., 34 Wis. 139; Sawyer v. Oakman, 7 Blatch. C. C. 290; Schmid v. Humphrey, 48 Iowa 652; see Cox v. Cook, 14 Allen 165; Richardson v. Kimball, 28 Me. 463, 475. "The law relating to the Sabbath defines a duty of the citizen to the state, and to the state only; and hence it may be very proper for the state to refuse a remedy against itself or against any of its subdivisions, where an injury arises from bad roads, to one who is unlawfully travelling upon the Lord's day. But we should work a confusion of relations and lend a very doubtful assistance to morality if we should allow one offender against the law to the injury of another, to set off against the plaintiff that he too is a public offender:" Mohney v. Cook, supra.

1 In Sutton v. Wauwatosa, 39 Wis. 21, a different rule was applied to the liability of a town for the destruction of property being transported upon Sunday over a defective bridge; but this has been ably reviewed in Johnson v. Irasburgh, supra; Alexander v. Oshkosh, 33 Wis. 277. The cases in New Hampshire are decided upon a statute permitting work or travel if no disturbance to others results: Dutton v. Weare, 17 N. H. 34; Norris v. Litchfield, 35 Id. 271; Corey v. Bath, Id. 531. 2"It is not an honest belief that a necessity exists, but the actual existence of the necessity which renders travelling upon the Sabbath lawful:" Johnson v. Irasburgh, supra; aliter in criminal prosecutions: Myers v. State, 1 Conn. 504.

An opposite doctrine prevails in Massachusetts: Stanton v. Metropolitan Railroad, 14 Allen 485; Feital v. Railroad, 109 Mass. 398; Smith v. Boston Railroad, 120 Id. 490; 11 Am. Law Rev. 780; Lyons v. Desotelle, 124 Mass. 387; but the cases there upon this point have been said "to depend upon peculiar legislation rather than on any general principles of justice or law:" Phila. Railroad v. Towboat Co., 23 Howard 218.

(To be continued.)

ANGELO T. FREEDLEY.

RECENT AMERICAN DECISIONS.

Supreme Court of Pennsylvania.

EASBY v. PATTERSON.

In an action for use and occupation, a contract express or implied must be proved. A. occupied the dock adjoining B.'s wharf on the river Delaware with lighters unloading a ship at the next wharf, so that no vessel could use B.'s wharf without the removal of the lighters. A. refused to pay dockage to B. There was no evidence that any vessel had been prevented from coming to B.'s wharf on account of this occupation. In an action for assumpsit for use and occupation brought by B., Held, that judgment of nonsuit was properly entered.

ERROR to the Common Pleas No. 4, of Philadelphia county. Assumpsit by William Easby against Robert Patterson & Son, for the use and occupation of plaintiff's dock.

On the trial, before THAYER, P. J., it appeared that the plaintiff was the owner of a wharf on the Delaware river, at the foot of Queen street, in the city of Philadelphia. The defendants were lightermen, whose business it was to load and unload vessels lying at the wharves. Between the plaintiff's wharf and the one adjoining, was a dock eighty feet in width, as required by the Act of Assembly of April 8th 1868.1 In June or July 1876, a vessel was lying in the dock, moored to the side of the wharf adjoining plaintiff's, and the defendants were employed in discharging the cargo or ballast, and occupied the dock room to within a few feet

1 "No license shall be granted under which a new wharf is to be built, unless the property from which said wharf is to be extended shall have appertaining thereto, sufficient breadth to have a dock or water surface at least forty feet wide on each side of such wharf, unless such Board of Wardens, by a vote of a majority of the whole board, shall decide that the public convenience demands a variance from this rule in any particular case:" Pamph. L. 756.

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