l. promissory note: assignment of nonnegotiable paper: defenses. — I. The note sued upon is non-negotiable by the law-merchant, but under our statute is “ assignable by indorsement thereon, or by other ‘writing, and . . . ^ . . . the assignee shall have a right ol action m a ° » Jus own name, subject to any defense or set-off, legal or equitable, which the maker or debtor had against any assignor thereof before notice of his assignment.” Rev., § 1796.' The defendant pleaded a set-off which accrued to him against the payee of the note, Jenkins, while he was the owner and holder of it. It was therefore a legal set-off which the maker had against the assignor thereof before notice of the assignment, and subject to which the plaintiff must have taken the note. Hence, the court erred in sustaining the plaintiff’s demurrer to the set-off.
a Sunday: promfssray note. II. The plaintiff introduced the defendant as a witness, and by him proved that he executed the note in Missouri, And the bill of exceptions recites that “the court took judicial notice that January 1, 1860 (the date of the note), was Sunday.” Our statute makes it a penal offense to be “ engaged in any labor” (the work of necessity and charity only excepted) on Sunday. There is a proviso to the first section of the act that nothing therein contained shall be construéd to extend to those who conscientiously observe the seventh day, etc. The statute imposes a penalty for doing certain things on Sunday, and that implies a prohibition, making *114the doing of the things prohibited unlawful. Pike v. King, 16 Iowa, 49, and cases there cited. It was held in Reynolds, for use, etc., v. Stevenson, 4 Ind. 619, that the making of a promissory note on Sunday was “ common labor” within the meaning of their statute, and such note was held void. See, also, Allen v. Deming, 14 N. H. 133; Towle v. Larrabee, 26 Me. 464; Adams v. Hamell, 2 Doug. (Mich.) 73, and Link v. Clemens, 7 Blackf. 479; 4 Western Jur. 92. Following .these authorities the note in this case must be void, for in the absence of any.proof to the contrary the laws of the State of Missouri will be presumed to be the same as in this State. Bean v. Briggs, 4 Iowa, 464.
3. — exceptions: penal statutes: onus, But it is claimed that there is no showing in this case but that the parties to the note conscientiously observed the seventh day; in which case the note would _ . t t mi ^ . not be invalid. Ihe rule, however, is that where the proviso of a criminal or penal statute exempting certain persons or cases from its operation is disconnected from the statutory description of the offense, the burden of showing the exemption is on the party claiming it. Hirn v. The State, 1 Ohio St. 15, and cases cited; 1 Whar. Am. Or. Law, §§ 378 to 380, and authorities cited in the notes.
i. — recovery contract. But, even if the note be found void, it may not necessarily follow that the plaintiff cannot recover upon the original consideration by so amending his. petition as to-adapt it to such claim.
