Link v. Clemmens

7 Blackf. 479 | Ind. | 1845

Blackford, J.—

Clemmens, as assignee of the sheriff of Decatur county, brought an action of debt against Link and others on a replevin-bond. The hond is dated on the 10th of October, (Saturday,) 1840. First plea: That the said writing obligatory was not made and executed on the day the same bears date; but it was signed, sealed, and delivered on the 11th of October, 1840, which last-mentioned day was the first day of the week commonly called Sunday; wherefore the said writing obligatory is void. Second plea: There is no record of the supposed judgment in the declaration mentioned, remaining in said Court, &c. General demurrer to the first plea, and the demurrer sustained. Replication to . the second plea, that there is such record of the judgment, &c. The cause was submitted to the Court, and judgment rendered for the plaintiff.

G. H. Dunn, for the plaintiff. J. Dumont, for the defendant.

The main question in this cause is, whether or not a replevin-bond executed on Sunday is void?

The statute enacts, that if any person shall be found on the first day of the week commonly called Sunday, rioting, hunting, fishing, quarrelling, or at common labour, works of necessity and charity only excepted, shall be fined, &c. There is a proviso to the statute, but it does not affect this case. R. S. 1838, p. 219 ⁽¹⁾. We think the executing of this bond comes within the terms “ common labour,” and is a violation of the statute. That being the case, the bond must be considered void, as being a contract prohibited by law.

In this .case the goods were replevied on Saturday, and the statute required the replevin-bond to be executed within 24 hours after the replevy, R. S. 1838, p. 476; but Sunday, in such case, would not be counted. See Solomons v. Freeman, 4 T. R. 557.

The demurrer to the first plea should have been overruled.

Per Curiam.

— The judgment is reversed with costs. Cause remanded, &c.

(1) The English statute is different. It enacts that no tradesman, artificer, workman, labourer, or other person whatever, shall do or exercise any worldly labour or business or work of their ordinary callings upon the Lord’s day (works of necessity or charity only excepted.) 29 Car. 2. It is held that a farmer is not within the meaning of that statute ; and that if he were, his hiring of a servant for a year is not work done in his ordinary calling. Rex v. Whitnash, 7 B. & C. 596. So, it is held that the statute does not apply to an attorney; and that if it did, his agreement to be personally responsible for the debt of his client, is not a matter within his ordinary calling. Peate v. Dicken, 5 Tyrw. 116.