Sec 386

As against a bona fide endorsee the maker cannot set up as a defence that the note was made on Sunday.1

Sec 387

Where the statute only prohibits business in a party's ordinary calling, a party cannot set up the statute against strangers dealing with him bona fide in ignorance that he was at the time exercising his ordinary calling. The mistake made by parties so dealing with him is a mistake not of law but of fact, and, if not negligent, it should not preclude such other parties from recovery. It is otherwise, however, with the party himself. He is barred from recovery, notwithstanding the fact that the other party was ignorant of his disability.2

Sec 388

Several of the statutes except cases of "necessity" and "charity," or " mercy." - The term " necessity" is not restricted to cases in which the party is physically required to do the act in question. " Necessity," in the sense of the statute, means such an extremity as requires labor in order to avoid serious peril.3 Hence, it has been held that a contract with a debtor is a necessity when otherwise the debt would be lost;4 and that repairing a road is a necessity when otherwise serious damage might ensue.6 On the other hand, it is not a necessity to visit a house to be moved into the next day for the purpose of determining whether it is in good order;6 nor is loading a steamboat with flour to avoid sudden closing of navigation;7

Endorsee without notice not bound.

Parties dealing bona fide are protected.

Exception to be liberally construed.

1 Supra, sec 382; Bank of Cnmberland v. May berry, 48 Me. 198; Allen v. Dem-ing, 14 N. H. 133; State Bank v. Thompson, 42 N. H. 369; Cranson v. Goss, 107 Mass. 439; Johns v. Bailey,.

45 Iowa, 241; Clinton v. Graves, 48 Iowa, 228. See, to same effect, Blox-some v. Williams, 3 B. & C. 232; Beg-bie v. Levi, 1 Cr. & J. 180; Saltmarsh v. Tuthill, 13 Ala. 390.

2 Supra, sec 385-6; Bloxsome v. Williams, 3 B. & C. 232; 5 S. & R. 82; Fennell v. Ridler, 5 B. & C. 406; Smith v. Wilcox, 19 Barb. 581.

3 See Stewart v. Davis, 31 Ark. 518.

4 Hooper v. Edwards, 18 Ala. 280. 5 Flagg v. Millbury, 4 Cush. 243.

6 Smith v. R. R., 120 Mass. 490. 7 Pate v. Wright, 30 Ind. 476.

nor is shaving by a barber.1 For a son to visit a father is an act of mercy;2 and so is visiting a sick friend or relative;3 but not volunteering to assist a neighbor in cleaning out his wheel-pit.4 A marriage may be validly solemnized on Sunday.® In Massachusetts and Pennsylvania, attendance at public worship is within the exception,6 though in Maine, it seems to be otherwise.7 - It has been ruled in Vermont, that honest belief in necessity is not enough to place a party within the exception. There must be actual necessity.8 - A contract on the Lord's day by overseers of the poor for relief of a pauper, is not void;9 nor is a subscription to a church.10 sec 389. It has been held in several jurisdictions, that a contract invalid from having been executed on Sunday cannot, after its completion, be ratified on a subsequent secular day, without some new consideration or modification giving it a fresh start.11 But though there may be no ratification, a new contract on a secular day may be implied, as we have seen, from the recognition of Sunday contracts cannot be ratified.

1 Phillips v. Innes, 4 Cl. & F. 234.

2 Logan v. Mathews, 6 Barr, 417; see McClary v. Lowell, 44 Vt. 116.

3 Gorman v. Lowell, 117 Mass. 65; Doyle v. R. R., 118 Mass. 195.

4 McGrath v. Merwin, 112 Mass. 167; citing Hall v. Corcoran, 107 Mass. 251.

5 Gangwere's Est., 14 Penn. St. 417.

6 Feital v. R. R., 109 Mass. 398; Com. v. Nesbit, 34 Penn. St. 398.

7 Tillock v. Webb, 56 Me. 100.

8 Johnson v. Irasbnrgh, 47 Vt. 28; see as to "honest belief," Wh. Cr. L. 8th ed. sec 88.

9 Aldrich v. Blackstone, 128 Mass. 148.

10 Flagg v. Millburg, 4 Cash. 243; Bennett v. Brooks, 9 Allen, 118; Doyle v. R. R., 118 Mass. 195; Allen v. Duffie, 43 Mich. 1; Dale v. Knapp, 11 Weekly Notes, 12; see contra, Catlett v. Trustees, 62 Ind. 365.

11 Supra, sec 384; Williams v. Paul, 6.

Bing. 653; Pope v. Linn, 50 Me. 83; Meader v. White, 66 Me. 90; Sumner v. Jones, 24 Vt. 317; Day v. McAlister, 15 Gray, 433; Tuckerman v. Hinkley, 9 Allen, 452; Cranson v. Goss, 107 Mass. 439; contra, Simpson v. Nicholls, 3 M. & W. 240; Finn v. Donahue, 35 Conn. 216; Reeves v. Butcher, 2 Vroom, 224; Ryno v. Darby, 20 N. J. Eq. 231; Tucker v. West, 29 Ark. 386; see Story on Cont. (Bigelow'snote), sec 756; Adams v. Gay, 19 Vt. 358; Shippey v. Eastwood, 9 Ala. 198. In Van Hoven v. Irish, U. S. Cir. Ct. Min. 1882, it was held that a sale invalid from being made on Sunday could be ratified on a week day, following, in this respect, Adams v. Gay, 19 Vt. 358; Harrison v. Colton, 31 Iowa, 16; in order, quoting from Redfield, J., "to secure parties from fraud and overreaching practised on Sunday by those who know their contracts are void and cannot be enforced." indebtedness on that day.1 And it is difficult to reconcile the position that such contracts are absolutely null with the position that they bind innocent endorsees without notice.2