any carelessness, he fall into a ditch, the man who improperly dug it could have no excuse. A breach of duty to the state does not necessarily involve a breach of duty to the defendant in such cases, and when it does not, it is simply an irrelevant fact unless the law gives it relevancy in some express form.

The law requiring care in avoiding accidents defines a duty to individuals only. It is most frequently applied to travel upon highways of land or water; though it applies to all cases in which persons are so near together that they are liable to injure each other by accident. It recognizes the relation thus naturally arising, and declares the law of that relation to be mutual care. The rule that the party who sues must be without fault himself has no other object than to prevent such fault, in circumstances of danger, as may contribute to the injury. It does not allow a party who does not take proper care of himself in such circumstances to demand from another compensation for an injury which he may have himself occasioned.

In cases of this kind, the law does not inquire at all into the plaintiff's fault, except on proof that the defendant did the act from which the injury arises. Then if it appear that the injury was not willful, and then only, is it relevant to inquire whether the plaintiff with due care might not have avoided the injury, and this shows the only kind of fault which is admitted to silence his complaint: McCaraher v. Commonwealth, 5 Watts & S. 24. It must be a failure of duty under the circumstances of danger; a failure of duty to the party who caused the danger, so that it may be said that he brought the injury on himself.

We cannot see that sabbath-breaking is a fault of this description. If there is any secret and mysterious connection between such a fault and the event here complained of, then it falls under the rule, causa proxima non remota spectatur, for the law judges of such cases only "by the outward appearance." It is only when we can discover no human fault contributing to the accident that the law calls it an act of Providence.

It is said, however, that had it not been for the plaintiff's transgression of the law his boat would not have been at the defendant's dam when it was. True enough; and so might it be said. of boats and rafts arriving at Pittsburgh on Monday-they would not have been there on Monday had they not run on Sunday, and would have been saved from a certain accident then happening to them. But when we are investigating the causes or conditions of an event, we investigate all the circumstances of the time and place, and ascertain their influence. But the time is not one of

the circumstances of itself, and time cannot be a cause of anything except figuratively.

We acquire no additional light by the suggestion that the plaintiff had no right of highway on the Lord's day, for his worldly business; for this is only asserting one of the incidental results of the law. It could just as truly be said that a man's right to his farm, or factory, or boat, undergoes a similar qualification; yet no doubt he would have redress against any one injuring them willfully or carelessly. Besides, it was not for the protection of roads, but of the Lord's day, that the law was passed, and the plaintiff could not have been punished as for an unlawful use of the road.

The maxim of the Roman law, In pari delicto, etc., has no influence in the case. As the Romans applied it, it is a mere logical rule that where the judgment of the law is balanced on the evidence, that suit must fail. Then, quare non potentior sit, qui teneat, quam qui persequitur? Dig. 45, 1, 91, 3.

It is admitted here that in a case of willful trespass this defense could not be allowed; and we may take this admission as indicating a definition of the rule. Then in any other case it will be allowed, and all freight and wages earned by or on steamboats are tainted with illegality, if partly earned on the Lord's day; no insurance covers the risks of running on that day on inland highways, and all accidents must be absolutely charged to the carriers. Perhaps if these and other consequences had been suggested to the counsel they would have accepted them; but we cannot, for this would be adding penalties to the law that were not thought of when it was passed. Important as is the day of rest for man; important as are the religious institutions connected with it, and the civilization and moral refinement that grow out of and depend upon it and its institutions; important and necessary for all man's highest and noblest aims as is the religion which on that day sends forth its strongest influence we cannot protect it by any such latitudinarian interpretation of the law we are appointed to administer as is expected of us here.

Judgment reversed and a new trial awarded.

ACTIONS FOR INJURIES OCCURRING ON LORD'S DAY: Bosworth v. Inhabi tants of Swansey, 43 Am. Dec. 441, and note 442; Robeson v. French, 43 Id. 236; Specht v. Commonwealth, 49 Id. 518; and see exhaustive note to City Council v. Benjamin, Id. 616, on constitutionality of Sunday laws.

THE PRINCIPAL CASE WAS SUMMARIZED in Ranch v. Lloyd, 31 Pa. St. 369; and cited in Scully v. Commonwealth, 35 Id. 513, showing that in the princi

pal case the distinction was maintained between the law or duty of the boatman and the law or duty of the keeper of the highway, when it was decided that even unlawful boating is protected against obstructions of the navigation. In Sparhawk v. Union Passenger Railway Co., 54 Id. 401, it was cited to the point that we cannot supplement a defective case by an alleged infraction of the penal laws in the acts complained of. It was quoted from the principal case that a breach of duty to the state does not necessarily involve a breach of duty to the defendant.” And in Dale v. Knepp, 98 Id. 392, to the point that the law relating to the observance of the sabbath defines a duty of the citizen to the state, and to the state only.

66

POORMAN v. KILGORE.

[26 PENNSYLVANIA STATE, 365.]

IN-PAROL SALES OF LAND, ALL EVIDENCE OF VERBAL CONTRACT WILL BE REJECTED, if being taken as true it does not make out such a case as to entitle it to stand as an exception to the statute of frauds.

CONTRACTS BETWEEN PARENTS AND CHILDREN must be proved by direct, positive, express, and unambiguous evidence. The terms must be clearly defined, and all the acts necessary to a contract's validity must have especial reference to it, and nothing else.

WHERE CHILDREN WORK FOR PARENTS AFTER ARRIVING AT AGE, the law implies no contract on the part of the parent to pay for the services. No SALE OR GIFT CAN BE INFERRED FROM a parent giving a child the use of a farm or house, and promising a gift of the same at his (the parent's) · death.

LAW WILL NOT INFER GIFT FROM PARENT TO CHILD where his acts can be readily accounted for as founded on other intentions.

IMPROVEMENTS MADE BY CHILD ON HIS PARENTS' LAND on the promise that the land would be given to him at his father's death will not take the case out of the statute of frauds.

EJECTMENT. The court below submitted the facts to the jury, and instructed them as follows: "The contract, according to Jacob Poorman, was that defendant should have the land, paying plaintiff one third of the grain and hay during his life, and after plaintiff's death defendant was to have the land absolutely, or as the witness expresses it, it was to be his. If the jury find this contract established by the proof and the other material facts we have pointed out, we then say the defendant has shown a case which is sufficient to relieve his title from the operation of the statute of frauds, and the verdict should be for him." The jury found for defendant, and plaintiff removed the cause to this court by writ of error.

Cowan, for the plaintiff in error.

Foster, for the defendant in error.

By Court, LowRIE, J. Wherever we notice a change in the administration of legal principles, gradually progressing for a considerable period and under a series of judges, it may be very safely assumed that it has a much more legitimate foundation than that of judicial arbitrariness. This is illustrated by the practice under the statute of frauds and perjuries; and we very naturally ask, how happens it that any exceptions at all have been made to a statute so general and so peremptory in its terms, and that judges are now so much inclined to restrict the sphere of those exceptions?

However we may define that portion of the law which courts of equity take as their guide, it is very apparent that the equitable exceptions that have been made to this statute have gone upon the principle of correcting the law in that wherein it was, by reason of its universality, defective. They proceed upon the assumption that our experience furnishes no universal rules, either for legislation or jurisprudence, but only general ones. Though we give to laws the form of universality, yet they must always be subject to modification or exception, when a new experience arises to which they are not justly adapted. To regard them otherwise would be to treat them as mere arbitrary rules, and not, as they ought to be, a generalization and improvement of the results of our social experience. The demands of natural justice and the nature of our minds impose upon us the necessity of excepting out of the letter of the law those cases that are not equitably within its intention, and this necessity finds its expression and its measure in many accepted rules of interpretation.

The English statute of frauds and perjuries was passed in 1676, and was intended to change the common law theretofore existing, by which title to land could be passed by livery of seisin without writing; and to get clear of the frauds, perjuries, and subornation of perjuries, and the uncertainties of titles that had grown out of the old law. But as the customs of the country can never be suddenly and entirely broken down even by an act of parliament, it was natural that many cases should arise, founded on the old customs, where great injustice would be done unless the statute should receive an equitable interpretation; and the presumption that the legislature did not intend any innovation on the common law, further than the case absolutely required, came in aid of such an equitable interpretation as would ease off the severity of the operation of the new enactment. But exceptions founded on this principle must natu

rally be but temporary expedients, which must die away when the new law itself has become part of the general customs of the country. We might say that there is a natural provision for this sort of indulgences in the fact that no man is perfect enough to bear a strict application of rules, and very few hearts are hard enough to enforce, without flinching, the letter of the law, when it results in upholding injustice.

When the settlement of Pennsylvania commenced, the English statute had not broken down the old customs relative to passing titles to land, and we did not at first adopt it as part of our law: Hyam v. Edwards, 1 Dall. 1. And when our statute was passed in 1772, of course it was necessary to treat the old customs of granting lands with the indulgence already indicated. And as with us, and on account of the small value of our lands, our customs in relation to conveyances were more loose than they had been in England: Duncan v. Walker, 1 Yeates, 220; Paxton v. Price, Id. 500; Campbell v. Lear, 2 Id. 124, 379; Bonnet v. Devebaugh, 3 Binn. 187-this indulgence here was greater than theirs. But here as there it was evidently temporary, and in its very nature it presented a caution against its own per

manence.

This temporary reason influenced also the recognition of the statutes providing for the recording of titles and for the limitation of actions and of liens of judgments; but it has answered its purpose, and now the only difficulty is to know how to fall back upon those essential exceptions to which all laws are in their very nature subject; because no people can bear an entirely literal and unbending application of any rule of law. We can make this regression intelligently only by carefully noticing the experience of the past, and not by ignoring and rudely rejecting all the modifications with which the statute has been applied in practice. If we attempt to gain at one bound our true position, we shall probably light beyond it. Even in seeking the correction of admitted error, our experimentations must be grounded on our experience.

A delivery of possession in pursuance of a verbal contract is now regarded as essential to the enforcement of it; but there is a plain reason why it ought not to be treated as securing that result, or as having as much force now as it once had. When livery of seisin was at common law a sufficient form of transferring title to land, it was an open and notorious act performed in the presence of the neighbors, accompanied by the symbolical delivery of the turf or twig and the declaration of the quantity