Sec 382

By the statute of 29 Car. II. c. 7, s. 1, it is enacted that "no tradesman, artificer, workman, laborer, or other person shall do or exercise any worldly labor, business, or work of their ordinary callings, upon the Lord's day, works of necessity and charity only excepted." Business contracts made on Sunday have been in consequence held to be void.5 Statutes to the same effect exist in this country, and have been held constitutional;6 and which the agreement is based, and diminishes the motive of the creditor who is a party to the secret agreement, to act in view of the common interest in making the composition. Fair dealing and common honesty condemn such a transaction."Solinger v. Earle, 82 N. Y. 393, 396. As to cases of preferences under bankrupt law, see supra, sec 379.

Sunday contracts in most states void.

1 Danglish v. Tennent, L. R. 2 Q. B. 49. See Cockshott v. Bennett, 2 T. R. 763; Jackson v. Lomas, 4 T. R. 166.

2 Blacklock v. Dobie, L. R. 1 C. P. D. 265; Yeomans v. Chatterton, 9 Johns. 295; Wiggin v. Bush, 12 Johns. 306; Passmore v. Eldredge, 12 S. & R. 198; McClurg v. Lecky, 3 Pen. & W. 83; Connelly v. Walker, 45 Penn. St. 449.

3 Bank of Commerce v. Hoebner, 14 Cent. L. J. 293.

4 Hopkins v. Beebe, 26 Penn. St. 85 , York Bank v. Carter, 38 Penn. St. 446; Bentz v. Rockey, 69 Penn. St. 71.

5 Fennell v. Ridler, 5 B. & C. 406; Simpson v. Nicholls, 3 M. & W. 240; 5 M. & W. 704; R. v. Cleworth, 4 B.& S. 927. That at common law there is no such limitation, see Drury v. De-fontaine, 1 Taunt. 131; R. v. Brother-ton, Stra. 702; Bloom v. Richards, 2 Oh. St. 387; Benj. on Sales, 3d Am. ed. sec 552.

6 State v. Gurney, 37 Me. 149; State v. Barker, 18 Vt. 195; Com. v. Harrison, 11 Gray, 308; Specht v. Com., 8 Penn. St. 312; Schlict v. State, 31 Ind. 346; Foltz v. State, 33 Ind. 215; even on Jews, and persons conscientiously holding that Saturday is the true Sabbath, the statutes are obligatory.1 In some states, however, it is provided that the statute shall not apply to persons conscientiously keeping the seventh day of the week as Sabbath, provided they do not disturb others. And in Ohio it has been held that, a statute prohibiting "tradiug" on Sunday is void as to persons conscientiously holding the seventh day as the Sabbath.2 - The statutes vary in their terms. In some states the statute of 29 Car. II. as above given, is reproduced without material change. In other states every kind of secular labor on Sunday is forbidden, in others penalties are attached to secular labor without such labor being absolutely prohibited. As a general rule, however, all executory business transactions on Sunday, when prohibited by statute, have been held void.3 - Hence,.

Langabier v. Fairburg, 64 111. 243; State v. Anderson, 30 Ark. 131; State v. Amts, 20 Mo. 214; Bird ex parte, 19 Cal. 130.

1 Com. v. Hyneman, 101 Mass. 30; Cora. v. Has, 122 Mass. 40; Com. v. Wolf, 3 S. & R. 48; Specht v. Com., 8 Barr, 312; Philips v. Gratz, 2 Pen. & Watts, 412.

2 Cincinnati v. Rice, 15 Ohio, 225.

3 2 Pars, on Cont. 764; Benj. on Sales, 3d Am. ed. sec 556; Story on Cont. sec 753; Bryant v. Biddeford, 39 Me. 193; Meader v. White, 66 Me. 90; Allen v. Deming, 14 N. H. 133; Varney v. French, 19 N. H. 233; George v. George, 47 N. H. 27; Smith v. Bean, 15 N. H. 577; Snmner v. Jones, 24 Vt. 317; McClary v. Lowell, 44 Vt. 116; Robeson v. French, 12 Met. 24 (modifying prior rulings); Pattee v. Greeley, 13 Met. 284; Dickinson v. Richmond, 97 Mass. 45; Cranson v. Goss, 107 Mass. 441; Feital v. R. R., 109 Mass. 398; Connolly v. Boston, 117 Mass. 64; Allen v. Gardiner, 7 R. I. 24; Cameron v. Peck, 37 Conn. 555; Cincinnati v. Rice, 15 Ohio, 225; Sellers v. Dugan. 18 Ohio, 489; Adams v.

Hamell, 2 Doug. (Mich.) 73; Reynolds v. Stevenson, 4 Ind. 619; Pike v. King, 16 Iowa, 50; Sayre v. Wheeler, 31 Iowa, 112; 32 Iowa, 559; Murphy v. Simpson, 14 B. Mon. 419; O'Donnell v. Sweeney, 5 Ala. 467; Saltmarsh v. Tuthill, 13 Ala. 390; Hussey v. Roque-more, 27 Ala. 281; Block v. McMurry, 56 Miss. 217; Tucker v. West, 29 Ark. 386. Under the New York statute, while contracts for. work on Sunday are void; Watts v. Van Ness, 1 Hill, 76; the clause prohibiting exposures to sale does not prohibit private transfers of property. Boynton v. Page, 13 Wend. 425; Eberle v. Mehrback, 55 N. Y. 682. The same distinction exists in Ohio, Bloom v. Richards, 2 Oh. St. 387; and in California, Moore v. Murdock, 26 Cal. 514. In New Hampshire by statute only acts done on Sunday to "the disturbance of others" are prohibited; but under this statute it has been held that a pleading to be good, must aver the litigated act was done to " the disturbance of others." And under "disturbance of others" is included whatever draws the attention of others from the appropriate duties a bond made on Sunday has been held void;1 this being the case with a replevin bond;2 and so of notes made on Sunday.3 It is true that to a bona fide innocent holder for a valuable consideration of a note executed on Sunday the statute cannot be setup;4 but a suit cannot be maintained on an endorsement by an endorsee knowing the facts.5 A suit, also, cannot be maintained on a contract made on Sunday to do professional business;6 and so of loans made on Sunday;7 and of promises of the Sabbath. Varney v. French, 19 N. H. 233; Clough v. Shepherd, 31 N. H. 490. In Rogers v. Tel. Co., S. Ct. Ind. Jan. 13, 1882, 25 A. L. J. 203, 14 Cent. L. J. 174, it was held that a contract on Sunday for the transmission of a telegraph message may be void. The message, to follow the report in the Albany Law Journal (vol. 25, 203), was, " Come up in morning, bring all." The court said: "No rule is more firmly settled than the one under mention, and we cannot now depart from it. Courts cannot declare, as a matter of law, that the business of telegraphy is a work of necessity. There are doubtless many cases in which the sending and delivering of a message would be a work of necessity, within the meaning of our statute. But we cannot judicially declare that all contracts for the transmission of telegraphic messages are to be deemed within the statutory exception. Whether the contract is within the exception must be determined, as a question of fact, from the evidence in each particular case. We cannot adjudge that the message which the appellee agreed to transmit is one which comes within the statute permitting the performance of works of necessity. It reads thus: 1 Come up in the morning, bring all.' These words are to be taken in their ordinary meaning, for there is nothing ascribing to them any other or different signification. Upon their face they imply a friendly invitation to visit the sender. Such a message cannot be regarded as a ' work of necessity,' within the meaning of the statute. The contract for the transmission of the message having been made on Sunday, and the message not being one which can be treated as entitling it to be transmitted as a ' work of necessity,' the contract for its transmission must be adjudged incapable of enforcement."

1 Pattee v. Greely, 13 Met. 24. See generally Lyon v. Strong, 6 Vt. 216; Day v. McAllister, 15 Gray, 433; Ellis v. Hammond, 57 Ga. 179; Saltmarsh v. Tuthill, 13 Ala. 390; Hussey v. Roquemore, 27 Ala. 281.

2 Link v. Clemmens, 7 Blackf. 480.

3 Towle v. Lafrabee, 26 Me. 464; Pope v. Linn, 50 Me. 83; Tillock v. Webb, 56 Me. 100; Adams v. Gay, 19 Vt. 358; Goss v. Whitney, 27 Vt. 272; Pattee v. Greely, 13 Met. 284; Cranson v. Goss, 107 Mass. 440; Kepner v. Kee-fer, 6 Watts, 231; Johnston v. Com., 22 Penn. St. 102; Clough v. Goggins, 40 Iowa, 325; Rainey v. Capps, 22 Ala. 288.

4 See infra, sec 386. That notes executed on Sunday are invalid, see further Adams v. Hamell, 2 Doug. (Mich.) 73; Parker v. Pitts, 73 Ind. 597; Dod-son v. Harris, 10 Ala. 566; Saltmarsh v. Tuthill, 13 Ala. 390. As to distinction between " void" and "voidable," see supra, sec 28.

5 Benson v. Drake, 55 Me. 555.

6 Peate v. Dicken, 1 C. M. & R. 422.

7 Finn v. Donahue, 35 Conn. 216.

relied on to take debts out of the statute of limitations.1 A valid contract, also, cannot be rescinded on Sunday,2 and a guarantee executed and delivered on Sunday is void, though the document guaranteed is to be delivered on a subsequent secular day.3 But when an agreement of sale was made on Sunday, the articles to be weighed and delivered on Monday, which was done, it was held that the vendor could recover for goods sold and delivered, though not on the contract.4 And a bond or note made on a Sunday, though on its face void, may be used as the admission of an antecedent debt.5 - The fact that preliminary bargaining was done on Sunday does not invalidate a contract completed on a subsequent secular day.6 Hence, where a bargain for goods is made on Sunday, but is not completed until the next day, when the goods are delivered, the case is not within the statute;7 though when the contract was actually made on Sunday, it is not taken out of the statute by preliminary bargainings on other days.8 Nor is the case taken out of the statute by a mere postponement of the removal of goods sold till the next day, if the bargain was completed and delivery made on Sunday;9 but a deed, bond, or note signed on a Sunday is valid, when delivered on the succeeding day.1 - No action of deceit, or for damages for fraudulent representation, or action on a warranty, can be based on a Sunday sale or trade.2

1 Haydock v. Tracey, 3W.&S. 507; Dennis v. Sherman, 31 Ga. 607; but see contra, Thomas v. Hunter, 29 Md. 406.

2 Benedict v. Batchelder, 24 Mich. 425.

3 Merriam v. Stearns, 10 Cush. 257.

4 Bradley v. Rea, 14 Allen, 20; Rosenblatt v. Townsley, 73 Mo. 536.

5 Haydock v. Tracy, 3 W. & S. 507; Lea v. Hopkins, 7 Penn. St. 492; see Stacy v. Kemp, 92 Mass. 166.

6 Goss v. Nugent, 5 B. & Ad. 58, and other cases cited Wh. on Ev. sec 1014; Stackpole v. Symonds, 3 Fost. 229; Goss v. Whitney, 24 Vt. 187; Stacy v. Kemp, 97 Mass. 166; Butler v. Lee, 11 Ala. 885; Bryant v. Booze, 55 Ga. 438; Peake v. Conlan, 43 Iowa, 297.

7 Benj. on Sales, sec 557; Smith v. Bean, 15 N. H. 577; Merrill v. Downs,.

41 N. H. 72; Lyon v. Strong, 6 Vt. 216; Adams v. Gay, 19 Vt. 358; Lovejoy v. Whipple, 18 Vt. 379; Mason v. Thompson, 18 Pick. 305; Winchell v. Carey, 115 Mass. 560; Cameron v. Peck, 37 Conn. 555; Sayles v. Wellman, 10 R. I. 465; Hening v. Powell, 33 Mo. 468; Fritsch v. Heislen, 40 Mo. 555; Lueb-bering v. Oberkoelter, 1 Mo. App. 399; Gwinn v. Simes, 61 Mo. 335; Rosenblatt v. Townsley, 73 Mo. 536.

8 Tillock v. Webb, 56 Me. 100; Smith v. Foster, 41 N. H. 215; Winchell v. Carey, 115 Mass. 560; Sayles v. Well-man, 10 R. I. 465. See Plaisted v. Palmer, 63 Me. 576; Bradley v. Rea, 914 Allen, 20; Day v. McAllister, 15 Gray, 433; Bryant v. Booze, 55 Ga. 438.

Allen v. Deming, 14 N. H. 138; Smith v. Beaw, 15 N. H. 577.