Marshall v. Russell , 44 N.H. 509 ( 1860 )

Bartlett, J.

The note in suit was not made or delivered on Sunday, and its execution was not in violation of either the letter or the spirit of section 1 of chapter 118 of the Rev. Stat., which provides that “ no person shall do any work, business or labor of Ms secular calling, to tbe disturbance of others, works of necessity and mercy excepted, on the first day of the week, commonly called the Lord’s day.” The note was in effect a mere contract, lawfully made, for the payment of a sum of money, with interest to be reckoned as commencing to run on a certain Sunday, and the statute no more prohibits contracts by which interest commences to run on Sunday than it does contracts by which interest runs on Sundays.

The other objection is not that the declaration alleges the note to have been made on Sunday, and if it were, perhaps an amendment, if necessary, might be made after verdict; see Whittier v. Varney, 10 N. H. 304 ; Marshall v. Riggs, 2 Strange 1162 ; Wilder v. Handy, 2 Strange 1151; but that the note varies from the declaration. The declaration is not before us, and it does not appear, nor is it suggested, that the date of the note is not correctly stated in the declaration ; and if its date is correctly stated, there is no variance in this respect, even if the note appeared to have been in fact made upon a day different from that alleged. 1 Chit. Pl. 257, 258; 2 Greenl. Ev., sec. 160; 1 Saund. Pl. & Ev. 260. There must be

Judgment on the verdict.