Shippey v. Eastwood , 9 Ala. 198 ( 1846 )

COLLIER, C. J.

‘By a statute passed in 1803, it is enacted, that “ no worldly business or employment, ordinal or servile work works of necessity or charity excepted,) &c. shall be done, performed, or practised by any person or persons within this State, on the Christian Sabbath, or first day of the week, commonly called Sunday; and every person being of the age of fourteen years or upwards, offending in the premises, shall for every such offence forfeit and pay the sum of two dollars.” This act goes quite beyond the 29 Caro. 11, ch. 7, § 6. That statute declares that no trades-man, artificer, workman or laborer, or other person whatsoever, shall do, or exercise any worldly labor, business, or worlr of their ordinary calling, upon the Lord’s day, works of necessity and charity only, excepted. [O’Donnel v. Sweeney, 5 Ala. Rep. 467; see also, Pierce v. Hill, 9 Porter’s R. 151.] The English statute restricts its prohibition to one’s “ ordinary calling,” while our statute goes so far as to prohibit “ worldly business or employment, ordinary or servile work,” except in the excepted cases. Mr. Justice Bailey,in his celebrated judgment in Fennell v. Ridler, 5 B. & C. Rep. 406, was of opinion that the act extended to every description of the business of a man’s “ ordinary calling,” as well as to what'was manual, and calculated to meet the public eye, as to that transacted in prívate; though in Bloxsome v. Williams, 3 B. & C. Rep. 232, he intimated a doubt whether it extended to business of the latter description. See also Smith v. Sparrow, 4 Bing. Rep. 84; 1 Taunt. Rep. 135. But it has been held, that the words “ worldly labor,” which occur in the statute of Charles the Second, are not confined to a man’s ordinary calling, but applies to any business he may carry on.

The statutes of some of the states of the Union, upon the subject we are considering, adopt the restrictive terms of the English enactment, while others are as broad and expansive as our own act. In those States whose statutes are similar to ours, it is said to have been held, that all contracts made in violation of the act are void, unless the decisions in Massachusetts form an exception. See Greer v. Putnam, 10 Mass. Rep. 312; 16 Pick. Rep. 247; Story on Con. 141-2, note 1; O’Donnell v. Sweeney, supra. It has been repeatedly determined, that a penalty inflicted by statute upon an' offence, implies a prohibition, and a contract relating to it is Void, even where it is not expressly declared by the statute that the contract shall be void. See Wilson v. Spencer, 1 Rand. Rep. 76; Mitchell v. Smith, 1 Binn. Rep. 118 ; Biddis v. James, 6 Id. 321; Seidenbender v. Charles, 4 Serg. & R. Rep. 159. Such a contract being void by positive law., it cannot be validated by a subsequent acknowledgement that it is obligatory, or an express promise to perform it. [Williams v. Paul, 4 M. & P. Rep. 532.

It is the obvious result of what has been said, that the second plea is good, and the replication, even if true, in point of fact is no answer to it. If this were the only plea, we should be constrained to reverse the judgment, because of the immateriality of the issue that was tried, in order that a repleader might be awarded, and the cause disposed of conformably to law. But we find that the cause was also submitted to the jury upon the plea of non assumpsit. The issue upon this plea was sufficiently broad to admit evidence of the fact alledged in the second plea, and also of any other matter which would avoid the effect of such a bar. If the making of the note on Sunday, did not make it void, but merely voidable, then perhaps it might be necessary to plead. the statute specially. But as a violation of the statute had the same effect upon the note as if it had been tainted with usury, or given for a gaming consideration, there -could be no more necessity for pleading the statute in the present case, than in those supposed. Complete justice may have been done the parties upon a trial under the material issue, and in the absence of a bill of exceptions showing the reverse, such must be the intendment of the law. Upon the replication admitting and avoiding the second plea, the verdict must have been returned for the defendant, unless there was a subsequent promise to pay the note. It may, in the state of the pleadings, be presumed, not only that the defendants made a subsequent promise, as replied, but it may be presumed, that there was a failure to make out any defence, or if any was set up, it was successfully countervailed.

The judgment of the Circuit Court is consequently affirmed.