69 Ind. 544 | Ind. | 1879
This was a suit by the appellant, against the
To the appellant’s complaint, the appellees Barnes and Josiah Dunklebarger jointly answered, in two paragraphs, of which the first was a general denial, and the second paragraph stated special matter by way of defence.. The appellant demurred to the second paragraph of said answer, for the alleged insufficiency of the facts therein to constitute a defence to this action, which demurrer was overruled by the court, and to this decision the appellant excepted. The appellant failed and refused to reply to the second paragraph of said answer; and the court rendered judgment thereon, in favor of said appellees,.and against said appellant, for the costs.
From this judgment the State has appealed to this court, and has here assigned as error the decision of the circuit court in overruling its demurrer to the second paragraph of the appellees’ answer.
The appellees alleged, in substance, in the second paragraph of their answer, that all the proceedings upon which the recognizance bond sued on was founded, and the execution and approval of said bond, took place on the first day of the week, commonly called Sunday, and that the: said bond was therefore void.
It is evident from the allegations of this paragraph of answer, that it is founded upon the theory that the proceedings which preceded and led to the execution and! approval of the bond in suit, and the execution and approval of such bond, were each and all “ acts of common labor,” within the scope and meaning of that expression,... as the same is used in “ An act for the protection, of. the?
In section 36 of the criminal code of this State, it is expressly provided, that í( An arrest may be made on any day, or at any time of the day or night.” 2 R. S. 1876, p. 379.
Section 5 of the same act made it the duty of the justice, when the prisoner was thus brought before him, if a continuance were not granted, “ forthwith ” (Sundays not excepted ) “ to h.ear the cause, and either acquit, convict and punish, or hold to bail the offender, if the offence be bailable, or * * * if the offence be not bailable, commit him to jail, as the facts and the law may justify.” 2 R. S. 1876, p. 670.
Under these statutory provisions, we are of the opinion, that all the proceedings which preceded and led to the execution and approval of the bond in suit, in this case, and such execution and approval .of said bond, although each and all of the acts done in connection therewith were done on the first day of the week, commonly called Sunday, were authorized by law and were not void. The case of King v. Strain, 6 Blackf. 447, although a civil suit, is much in point on the question we are now considering. The case was an action of debt, against a sheriff, for suffering an escape from an arrest on an execution. One of the special pleas showed that the execution on which the arrest was made had been issued on Sunday, the proper affidavit having been made ; that
“We think the privilege of regaining personal liberty, on the terms prescribed by the statute, (which is indeed a right secured by the constitution.) should be coequal with the power of imprisonment; and as this power, under certain circumstances, may be exercised on the Sabbath, so, we think, may the constitutional and statutory remedy be applied on the same day.”
It seems to us, that the doctrine of the case cited is applicable with equal, if not stronger, force, to the case at bar. The defendant Douglass was lawfully arrested on the first day of the week;' it was his constitutional and statutory privilege to enter into a recognizance with sureties, on the same day, and thus regain at once his personal liberty; and the execution by him and his sureties, of such recognizance for such purpose, and the approval of such recognizance by the proper officer, on the same day, were legal, valid and binding acts, under the circumstances of this case. It follows, therefore, that the facts alleged in the second paragraph of the appellees’ answer were not sufficient to constitute a defence to this suit, and that the State’s demurrer to said paragraph ought to have been sustained.
The judgment is reversed, .at the appellees’ costs, and the cause is remanded, with instructions to sustain the