#### Owen Murphy *v.*John A. Higdon.

Pleading — Amendment, Refusal of.

In an action on a note given for the difference in the exchange of horses, in which defendant set up breach of warranty, and- defendant filed an amended answer alleging that the contract was void as- having been made on Sunday, and thereupon plaintiff tendered an amendment of his petition, alleging that defendant converted the ¡horse which he-got from plaintiff for his own use, the amendment of the petition was properly refused.

APPEAL FROM HANCOCK CIRCUIT COURT.

December 7, 1872.

Opinion of

Judge Petees :

In an exchange of horses appellee executed to appellant his note for two hundred dollars as the difference between the horse he parted with, and the one he got from appellant.

*40This action was brought on the note after it matured, and appellee, as a defense in the first answer filed by him', pleaded that at the time of the exchange appellant represented that the horse he traded was sound in every particular, and that he, relying on the representation of appellant, made the exchange, but that very soon, thereafter he discovered said horse was unsound and diseased in his eyes.

In an amended answer appellee alleged that said contract for the exchange of horses was made, and said note was executed, and delivered on Sunday, or the Christian Sabbath, and that the parties were not members of any religious society that observed as the Christian Sabbath any other day of rest, than that on which the note was executed and delivered'.

After the amended answer was. filed, appellant tendered, and asked permission of the court to file an amended petition, in which he alleged that appellee converted the horse he got of him to< his own use, sold him and realized from the sale the sum of $150, and prayed judgment therefor.

This amendment the court bélow refused to permit appellant to file, and a verdict, and judgment having been rendered against him, he has appealed.

It is insisted for appellant that the court erred in refusing to1 permit him to file his amended petition, by which he sought to recover from appellee the value of the horse which he alleged he had converted, and to keep the one he got in exchange, an advantage which the law would not tolerate even if appellant had been without blame in the transaction.

These parties, as the evidence conduces ter show, exchanged horses on Sunday, which as this court decided in *Murphy v. Simpson,*14 B. Mon. 337, is a work, or business prohibited by the statute.

In that case an action was brought by Simpson against Murphy, with whom: he had exchanged horses, for an alleged unsoundness of the horse he had gotten. Murphy pleaded that the contract, or exchange, was made and executed on the Christian Sabbath, in violation of the statute prohibiting labor or business to be done on that day; the court below adjudged his. defense insufficient, and a verdict for forty dollars, and on an appeal by Murphy this court said exchanging, or as it is usually termed; swapping horses, is as much a trade, or business, as selling a horse or any other commodity would be; it is a violation of the statute when done on the *41Sabbath day, the act is illegal, and consequently no- contract arising out of it is enforceable.

James, *for appellant.*

*Bush■,*Williams, *for appellee.*

The statute should not be extended by construction to1 embrace cases which are not clearly within its meaning; but at the same time it should be fairly construed, with a view to the accomplishment of the objects contemplated by the Legislature in its enactment, and we concluded that the defense was a .valid one, and should have been sustained.

There is no perceptible difference in principle in the two cases, in the one quoted from the appellee had been injured by the exchange to the amount of $40. In this the injury may have been greater or less, but it is not material how that may be. The defendant may have the advantage contrary perhaps to the real justice of the case as between him and the plaintiff. This is not for the sake of the defendant, but on general principles of policy the court will not lend1 its aid to such a plaintiff. Both being equally in fault, the maxim *potior est conditio defendantes*applies; Chi. on Contracts, 731. The amended petition was therefore properly rejected, and there being no error in the giving and refusing instructions, the judgment is affirmed.

*43*Gazlay, Yeoman & Reenecke, for appellant.*