and in the due course of trade, the acceptor is estopped in a suit against him by such holder.1 § 2414. Ratification of Contract Made on Sunday.As to whether a contract made on Sunday, and therefore void, can be ratified by a subsequent agreement, there is a conflict in the decisions; those of some states holding that a ratification may be made; others that it may not.3 If one, having taken property on Sunday in payment of an antecedent debt, afterwards sends a receipt for both the property and the debt, it is a ratification of the transaction. So evidence of an admission made on Sunday of a part payment of a promissory note on a week-day is admissible. The execution of a note by an accommodation surety on Sunday is void, although the note is dated on a week-day, and is delivered by the principal to an innocent payee on a week-day; and a request by the surety to forbear suit, and his notifying the payee of property of the principal to which he might resort, do not amount to a ratification." § 2415. Judicial Acts Performed on Sunday Void.— Judicial acts performed on Sunday are void.' Thus the following acts done on Sunday have been held void, viz.: Advertising a tax-sale in a Sunday paper; instructing the jury; issuing or serving a writ in a civil case;1o or a 1 Ball v. Powers, 62 Ga. 757; Heise v. Bumpuss, 40 Ark. 575; Cranson v. Goss, 107 Mass. 439; 9 Am. Rep. 45; Johns v. Bailey, 45 Iowa, 241; Knox v. Clifford, 38 Wis. 651; 20 Am. Rep. 28; Beman v. Wessels, 53 Mich. 594. Adams v. Gay, 19 Vt. 358; Campbell. Young, 9 Bush, 245; Melchoir v. McCarty, 31 Wis. 256; 11 Am. Rep. 605; Tucker v. West, 29 Ark. 386; Sayles v. Wellman, 10 R. I. 468; Gwinn v. Simes, 61 Mo. 335; Harrison v. Colton, 31 Iowa, 16; Blood v. Bates, 31 Vt. 147; Winchell v. Carey, 115 Mass. 151; 15 Am. Rep. 151; Clough v. Davis, 9 N. H. 500; Van Hoven v. Irish, 3 McCrary, 443; Sumner v. 10 Jones, 24 Vt. 317; Flinn v. St. John, 51 Vt. 334. 3 Plaistead. Palmer, 63 Me. 576; Day v. McAllister, 15 Gray, 433; Kountz v. Price, 40 Miss. 341. 5 Wilson v. Milligan, 75 Mo. 41. Beardsley v. Hall, 36 Conn. 270; 4 Am. Rep. 74. 6 Parker v. Pitts, 73 Ind. 597; 38 Am. Rep. 155. 7 Coleman v. Henderson, Litt. Sel. Cas. 171; 12 Am. Dec. 290; Story v. Elliott, 8 Cow. 28; 18 Am. Dec. 423. 8 Sawyer v. Cargile, 72 Ga. 290. State v. Green, 37 Mo. 466; Pulling v. People, 8 Barb. 384. 10 Story v. Elliott, 8 Cow. 27; 18 Am. Dec. 423; Shaw v. Dodge, 5 N. H. warrant of arrest in a civil case;' levying an execution;2 making an award; pronouncing or entering a judgment;* or a criminal judgment by a justice of the peace; 5 returning an execution; serving a notice." 6 § 2416. Ministerial Acts Valid. But ministerial acts are valid; as, for example, rendering a verdict;' making a foreclosure sale; 10 or taking the privy examination of a married woman to her deed." Publication of preliminary and other ordinances of a street improvement, required to be published in a paper of general circulation, is valid, though made in a paper published only on Sunday."2 § 2417. Traveling on Sunday.—In most of the New England states, a person traveling on Sunday, and injured by a defective highway, cannot recover damages of the municipal corporation. corporation. This doctrine, however, has 13 462; Butler v. Kelsey, 15 Johns. 177; 3 Story v. Elliott, 8 Cow. 27; 18 Am. Dec. 423. Arthur v. Mosby, 2 Bibb, 589; Houghtaling v. Osborn, 15 Johns. 118; Blood v. Bates, 31 Vt. 147; Allen v. Godfrey, 44 N. Y. 433. Ex parte White, 15 Nev. 146; 37 Am. Rep. 466. 6 Peck v. Cavell, 16 Mich. 9. Chesapeake etc. Co. v. Bradley, 4 Cranch C. C. 193; Field v. Park, 20 Johns. 140. Continuing a cause over from Saturday to Monday is not keeping a court open on the sabbath: Vanderwerker v. People, 5 Wend. 530. Baxter v. People, 8 Ill. 368; Huidekoper v. Cotton, 3 Watts, 56; Rosser v. McColly, 9 Ind. 589; Webber v. Merrill, 34 N. H. 202; Reid v. State, 53 Ala. 402; 25 Am. Rep. 627; Van Riper v. Van Riper, 4 N. J. L. 156; 7 Am. Dec. 576. In Huidekoper v. Cotton, 3 Watts, 56, the court say: "The ob jection goes to a great length; if it is unlawful or sinful to deliver the verdict verbally after Sunday has commenced, it must be equally unlawful to write and seal it up to be delivered on Monday; nay, to deliberate upon and discuss it after Sunday had commenced. Now, whether it would be less sinful, in fact and in its consequences, to keep a jury from Saturday night until Monday morning locked up without food, or to permit them to give a verdict, go home, and attend religious worship, we leave to casuists to discuss." 10 Sayles v. Smith, 12 Wend. 57; 27Am. Dec. 117. 11 Lucas v. Larkin, 85 Tenn. 355. 12 Hastings v. Columbus, 42 Ohio St. 585. 13 Hamilton v. Boston, 14 Allen, 475; Jones v. Andover, 10 Allen, 19; Bosworth v. Swansey, 10 Met. 363; 43 Am. Dec. 441; Conolly v. Boston, 117 Mass. 64; 19 Am. Rep. 396; Johnson v. Irasburgh, 47 Vt. 28; 19 Am. Rep. 111; Hinckley v. Penobscot, 42 Me. 89; Cratty v. Bangor, 57 Me. 423; 2 Am. Rep. 56; Feital v. R. R. Co., 109 been combated and discountenanced in other states.' In Massachusetts it is held that if a man, while traveling on Sunday, in violation of the statute, fastens his horse at the side of the road, and the horse is injured by the negligent act of another in driving against it, he cannot sustain an action of tort for the injury. So where one person, in assisting another to clean out a wheel-pit on Sunday, was injured, it was held he could not recover.3 So in Massachusetts, it has been held that damages cannot be recovered of a railroad company for an injury sustained at a railroad crossing through negligence of the company's servants while the plaintiff was traveling on Sunday. But in New York and other states a carrier cannot set up as a defense to an injury to a passenger that the latter was traveling on Sunday. It is held in Pennsylvania that the fact that a person was on Sunday unlawfully engaged in a worldly employment does not prevent him from recovering damages against one who obstructs a navigable stream; and a traveler on Sunday may recover for injuries then received by a ferocious dog. So in Mass. 398; 12 Am. Rep. 720; Davis v. 1 Dutton v. Weare, 17 N. H. 34; 43 Am. Dec. 590; Schmid v. Humphrey, 48 Iowa, 652; 30 Am. Rep. 414; Sutton v. Wauwatosa, 29 Wis. 21; 9 Am. Rep. 534; Platz v. Cohoes, 89 N. Y. 219; 42 Am. Rep. 286. To walk out on Sunday a short distance, as for exercise, is not traveling: Hamilton v. Boston, 14 Allen, 25; O'Connell v. Lewiston, 65 Me. 34; 20 Am. Rep. 673; Davidson v. Portland, 69 Me. 116; 31 Am. Rep. 253. Nor to make a social call: Barker v. Worcester, 139 Mass. 74. ? Lyons v. Desotelle, 124 Mass. 387. McGrath v. Merwin, 112 Mass. 467; 17 Am. Rep. 119. A conductor of a street-railway car, performing his ordinary duties on Sunday, is both "laboring" and "traveling," and can maintain no action for an injury by collision with a car of another com pany while so employed: Day v. R. R. Smith v. R. R. Co., 120 Mass. 490; 21 Am. Rep. 538; or on a horse-railroad: Stanton v. R. R. Co., 14 Allen, 485; or on a vessel: Wallace v. Nav. Co., 134 Mass. 95; 45 Am. Rep. 301; or while traveling on a railroad train: Bucher v. R. R. Co., 131 Mass. 156; 41 Am. Rep. 216. 5 Carroll v. R. R. Co., 58 N. Y. 126; 17 Am. Rep. 221; Mohney v. Cook, 26 Pa. St. 342; 67 Am. Dec. 419; Opsahl v. Judd, 30 Minn. 126. An action will not lie against a carrier for breach of its general duty in failing to carry passengers on Sunday: Walsh v. R. R. Co., 42 Wis. 23; 24 Am. Rep. 376. 6 Mohney v. Cook, 26 Pa. St. 342; 67 Am. Dec. 419. 7 White v. Lang, 128 Mass. 598; 35 Am. Rep. 402; Schmid v. Humphrey, 48 Iowa, 652; 30 Am. Rep. 414. Indiana, that the injury for which a brakeman sues the company employing him was received on Sunday does not preclude a recovery, although it is unlawful to labor on Sunday.1 In New Jersey, under a statute prohibiting Sunday traveling, save for necessity or charity, with the proviso that railroad companies may run one train a day each way "for the accommodation of citizens of this state," a passenger on such train, though not traveling for necessity or charity, may recover for the negligence of the company.2 § 2418. Hiring Horses on Sunday. It is held in Rhode Island that the owner of a horse who lets it on Sunday to be driven for pleasure to a particular place cannot recover damages in case the hirer negligently injures it, or drives it to a different place, and it is injured. The same doctrine was at one time held in Massachusetts, but it is now abandoned, and has likewise been denied in other states. § 2419. Works of Necessity or Charity. The statutes generally except acts or works of necessity or charity. "By the word 'necessity,"" it is said, "we are not to understand a physical and absolute necessity, but a moral fitness or propriety of the work and labor done under the circumstances of any particular case."" The following 1 Louisville etc. R. R. Co. v. Frawley, 110 Ind. 18. 2 Smith v. R. R. Co., 46 N. J. L. 7. 3 Wheldon v. Chappel, 8 R. I. 230; Smith v. Rollins, 11 R. I. 464; 23 Am. Rep. 509. And see Parker v. Latner, 60 Me. 528; 11 Am. Rep. 210; Berrill v. Gibbs, 1 Pa. L. J. 313. 4 Gregg v. Wyman, 4 Cush. 322. Hall v. Corcoran, 107 Mass. 251; 9 Am. Rep. 30. 6 Woodman v. Hubbard, 25 N. H. 67; 7 Am. Dec. 310; Morton v. Gloster, 56 Me. 520; Frost v. Plumb, 40 Conn. 111; 16 Am. Rep. 18; Nodine v. Doherty, 46 Barb. 59; Stewart v. Davis, 31 Ark. 518; 25 Am. Rep. 576. Flagg v. Millbury, 4 Cush. 243; 7 Wilkinson v. State, 59 Ind. 416; 26 Am. Rep. 84. In Com. v. Sampson, 97 Mass. 407, it is said: "To save life, or prevent or relieve suffering, and this in the case of animals as well as men; to prepare needful food for man and beast; to save property, as in the case of fire, flood, or tempest, or other unusual peril, would unquestionably be acts which fall within the exception. But it is no sufficient excuse for work on the Lord's day that it is more convenient or profitable if then done than it would be to defer or omit it: Jones v. Andover, 10 Allen, 18. And we think that the ruling at the trial in this case was, on the whole, right, and that taking the sea-weed was not a 7 have been held "works of necessity or charity": To go to procure medicine for a sick child;' or to bring a maidservant home, in order that she may prepare needful food for the family; or to go a distance of eight miles to visit one's children, who are properly away from home;3 or to go to visit a sick friend in need of assistance; or to do pilotage; or contracting for the relief of a sick pauper;" or to preserve property exposed to imminent danger; or baking provisions for customers; or selling cigars to the guests of a hotel by the hotel-keeper;' or running a railroad train for passengers, mails, and express matter;10 or carrying cattle;" or making a subscription to the building of a church; 12 or repairing the tracks of a railroad; 13 or a contract made on Sunday to secure decent burial for one's wife, and to secure the presence of relatives at her funeral;14 or the labor expended by a man on Sunday in shipping car-trucks which he had sold and agreed to ship, when any longer delay was very dangerous from the risk of the navigation closing for the season, and the captain of the vessel (the only one procurable) refused to receive them. work of necessity within the meaning of the law. If a vessel had been wrecked upon the beach, it would have been lawful to work on Sunday for the preservation of property which might be lost by delay. But if the fish in the bay or the birds on the shore happened to be uncommonly abundant on the Lord's day, it is equally clear that it would furnish no excuse for fishing or shooting on that day. How it would be if a whale happened to be stranded on the shore, we need not determine.' 'Gorman v. Lowell, 117 Mass. 65. Crosman v. Lynn, 121 Mass. 301; citing Rex v. Cox, 2 Burr. 785; Rex v. Younger, 5 Term Rep. 449. 3 McClary v. Lowell, 44 Vt. 116; 8 Am. Rep. 366. Doyle v. R. R. Co., 118 Mass. 195; 19 Am. Rep. 431. 'Whitcomb v. Gilman, 35 Vt. 297; Parmelee v. Wilks, 22 Barb. 539. 8 R. v. Cox, 2 Burr. 787. 9 Carver v. State, 69 Ind. 61; 35 Am. Rep. 205. Aliter where the defendant is a keeper of a cigar-store, and sells to customers as on week-days: Mueller v. State, 76 Ind. 310; 40 Am. Rep. 245. 10 Com. v. R. R. Co., 80 Ky. 291; 44 Am. Rep. 475; or street-cars: Augusta etc. R. R. Co. v. Renz, 55 Ga. 126. 11 Philadelphia etc. R. R. Co. v. Lehman, 56 Md. 209; 40 Am. Rep. 415. 12 Allen v. Duffie, 43 Mich. 1; 38 Am. Rep. 159; Dale v. Knepp, 98 Pa. St. 389; 42 Am. Rep. 624. Contra, Catlett v. Trustees, 62 Ind. 365; 30 Am. Rep. 197. 13 Yonoski v. State, 79 Ind. 393; 41 Am. Rep. 614. 14 Gulf, Colorado etc. R. R. Co. v. Levy, 59 Tex. 542. |