The opinion of the court was delivered, November 7th 1867, by
Woodward, C. J.— We have been considerably embarrassed in reviewing this case by the circumstance that the pleadings, if any were had, are not exhibited to us, but only certain agreements of counsel, which were substituted for the pleadings, and upon which the cause was tried and decided. It will be necessary to state the rise and progress of the cause, and the legal effect of these agreements, in order to an intelligent estimate of the errors assigned of record.
The action was debt by Carey W. Ahl, as endorsee, against Frederick Foreman, and a statement of the plaintiff’s cause of action was filed, which set forth that his claim was founded on a promissory note of the defendant to J. W. Ahl, dated 20th March 1865, for $2560, payable 30 days after date, upon which was a credit of $160, leaving a balance of $2400, and that the note was endorsed before maturity for a valuable consideration to the plaintiff, O. W. Ahl.
This statement was filed May 12th 1865, and on 20th September 1865 the counsel filed a written agreement that the cause should be considered at issue upon the present pleadings and that the plaintiff may, under his narr. now filed, offer any evidence that would entitle him to recover either on the note sued upon or upon the common money counts in assumpsit. And the defendant, under the plea of payment, may offer any evidence which would be admissible under any plea general or special and which may be an answer either in whole or in part to the plaintiff’s cause of action.
Before the date of this paper, to wit, on 30th June 1865, the plaintiff’s counsel had agreed in writing that upon the discontinuance of a suit by Foreman v. Ahl, the defendant in this case might make any defence, legal or equitable, which could be made by him if the note was still in the hands of the payee, and suit had been brought in his name reserving the right to use the payee as a witness if competent.
Upon these papers the cause went to trial, and it turned out that the note was made and delivered on Sunday, whereupon the *330learned judge ruled there could be no recovery on the note. But as the note was given for mules that were intended for the service of the government and some of the mules were not at hand to be delivered the Sunday night the note was given, the judge said, “ whether there could be a recovery on the common counts of the declaration depended upon whether the whole transaction was consummated on Sunday night by delivery of the mules on Sunday night, or not till Monday morning.” The evidence, as bearing on this part of the case, was that Foreman had a contract with the government for a lot of mules — that he met Ahl at the William Penn Hotel, Philadelphia, who said he had a lot of mules in the yard, that they went out to look at them by candlelight and then bargained for sixteen mules, for which the note was given at the rate of $160 the mule. Foreman offered $180 if Ahl would stand the government inspection, but Ahl agreed to take $160, Foreman to stand the government inspection.
It would seem that at the time and place of the bargain there were but fifteen mules in the pen, only thirteen of which belonged to Ahl, the other two to a man by the name of Johnson, who took his two mules the next morning. Ahl obtained and put in two others and made the endorsement on the note of $160, the price, no doubt, of the missing mule.
The evidence was that the contract was consummated on Sunday night. Not only was the note given but possession of the thirteen mules was transferred, and Foreman became liable for their keep from that night. The fact that the entry on the tavern books could not be made that night, because the book-keeper had gone to bed, is of no consequence, for it was done next morning in pursuance of their agreement the night before. The clerical act only verified the bargain of the night before.
Everything, therefore, was transacted on Sunday night except the delivery of the two mules. Now, if we should treat the contract as entire for fifteen mules and regard all that was done Sunday night as amounting to constructive delivery of the two mules, it is evident the plaintiff would have no more standing on his money counts than upon the note itself, because his action, however viewed in the pleadings, would be founded upon a contract fully consummated on Sunday. But perhaps the better view is, that though an entire contract the parties severed it in the performance and made it not the purchase and delivery of fifteen mules solido as one round and complete transaction, but the purchase of fifteen mules per capita at $160 the mule, and the delivery of possession mule by mule. In this view it is clear that whilst the plaintiff cannot steer clear of the Sunday law as to thirteen of the mules, he may as to the two delivered on Mon*331day, for as to them, though the bargain was begun on Sunday, it was not consummated until Monday.
We are to take it that the note is void because the court so ruled and the parties acquiesce. But under the agreements of counsel we are to imagine this action of debt to be assumpsit — are to imagine the payee of the note to be the plaintiff on the record and to imagine the common money counts, and that the plaintiff is proceeding on them to recover for the consideration of the note rather than for the note itself. But as to the thirteen mules it is manifest he stands no better upon the common counts than he would upon a special count or on his statement of the note as his cause of action.
As to that portion of the lot of mules, everything was done on Sunday night that was ever done to effect the sale. The making the note was the most innocent part of the transaction, because it was the least substantial part of it. The body and substance of the transaction was a negotiation for fifteen mules and a complete purchase of thirteen of them in violation of the Sunday Statute of 1794.
Although a court of justice would not undo the bargain if the parties had fully executed it, yet the law will not lend its aid to either of the parties to enforce such a bargain. It was worldly employment upon the Lord’s day in violation of the divine command and of our Statute of 1794, and according to many decisions of this court it was a void contract.
Thus stands the case upon the evidence. In the most favorable view of it that can be taken for the plaintiff, the utmost he could recover would be the price of the two mules delivered on Monday, and the court fell into error in suffering the jury to inquire into more than the liability of the defendant for those two mules. Whether entitled to a verdict for them will depend upon all the evidence in the cause, but not upon the Sunday law.
And we think the court erred in admitting the payee as a witness. It is true that in Evans v. Dela, 11 Casey 451, where the witness who was called to testify had passed the note away before its maturity by delivery merely and without endorsement, it was held that he was competent to establish the consideration, but in Baily v. Knapp, 7 Harris 192, and Katz v. Snyder, 2 Casey 511, the rule furnished by the case of Post v. Avery, 5 W. & S. 509, was applied to payees who had transferred negotiable paper by endorsement. And the disqualification, resting as it does in part on considerations of public policy, cannot be removed by a release of the endorser from his liability to the endorsee.
Very necessary is it to apply the rule in this case even if it be not generally applicable to endorsers, because counsel stipulated, by the paper of 30th June, that the defence should be conducted as if the note was still in the hands of the payee and suit had *332been brought in his name. If it were still in his hands and the suit were in his name no one would contend for his competency as a witness for himself.
The force of this objection is not parried by the circumstance that the suit is a proceeding upon the consideration of the note, and therefore, that the witness is not, in strictness of speech, to be considered as an endorser. If not an endorser he is the assignor of a chose in action coming in upon the record as plaintiff to recover it, and under the salutary doctrine of Post v. Avery, and the general principle that forbids a man to testify for himself in his own cause, his mouth ought to be stopped.
As to those parts of the charge in which the judge, in answer to the points, declared the effect of the evidence and stated the rules of law touching warranty, representation, deceit and fraud, we conceive the defendant has no just ground of complaint. Indeed, we see no reasons suggested in the assignment of errors for reversing the judgment save only the two already stated— the suffering a recovery for thirteen mules sold and bought on Sunday, and the admission of James W. Ahl as a witness.
The judgment is reversed, and a venire facias de novo is awarded.