Finney v. Callendar ( 1862 )

By the Cowrt

Emmett, C. J.

There are two questions presented by this record. Eirst, whether a note executed on Sunday is of any validity ; and, secondly, whether a Defend* ant sufficiently interposes such a defence by simply alleging in his answer that the note sued upon was not made on the 10th day of October, 1861, the day alleged in the complaint, but on the 13th of said month, which appears on examination to have been Sunday, although there is no allegation of that fact.

We had the first question under consideration in the case of Brimhall vs. Van Campen, ante p. 13, and came to the conclusion that under our statute, a note made on Sunday in this State, is absolutely void.

As to the other question the Plaintiff claims that such an answer is deceptive, as indicating only that the time of making the note was mis-stated, without advising him of the de-fence relied upon. On the other hand the Defendants urge that the allegation is sufficient, the Court being bound, as they allege, to take judicial notice of the calendar time.

No authorities are cited by either party touching this point, nor have we found any in the search which we. have been able to make. It is not, however, of so much importance to the profession, in this State, how the question of pleading shall be decided, as that it shall be authoritatively settled.

The almanac has long been regarded and held as a part of the law of the land. It cannot be said to be a special law, therefore it must belong to the general law ; and being so, it is governed by the ordinary rule applicable to all general laws, and need not be specially pleaded. At least the necessity for making this an exception has not been demonstrated to us.

The order sustaining the Plaintiff’s demurrer to the answer of the Defendants is reversed, and the case remanded.