Thomas v. Hunter

29 Md. 406 | Md. | 1868

Miller, J.,

delivered the opinion of the court.

This case, by consent of parties, was submitted to the court and tried without the intervention of a jury; and before judgment entered a bill of exceptions was taken. The practice of the appellate court in such cases, as settled by Tinges v. Moal, 25 Md. 480, is that this court will not examine the facts in evidence, with a view to adjudge whether the finding of the court as to them was correct, and in this respect no appeal lies or will be entertained; but if a question of law is raised, and that appears from the record, it must be examined and decided, and in doing so, this court can look to the character of the facts only so far as may necessary or proper to understand or apply the law in question. The judge below delivered an opinion, stating his conclusions upon the facts and the law applicable thereto, and upon this appeal we must assume it was established by proof that the promissory note sued on was proved and had never been paid; that the plaintiff, before the war, and before its maturity, parted with the note, for value, to a bona ñde holder, at whose instance it was protested at maturity, and who remained its owner during the war; that after the war was over, the plaintiff became again the holder and owner of the note for value, and that subsequently, in December, 1866, whilst the plaintiff was such owner and holder, the defendant acknowledged the debt and promised to pay it.

There is nothing in the first objection to the finding of the court, that the claim was barred by limitations, unless the second objection that there was no sufficient evidence, in law, of a subsequent acknowledgment to remove the bar of the Statute, is sound. The only question upon this second objection, in view of the facts above stated and assumed to be established is, was the acknowledgment or new promise sufficient evidence in law, or, in other words, admissible in evidence to remove the bar of the Statute, it having been made on Sunday. This was the principal point argued at bar. Numerous decisions in England and in this country were cited, most of which are collected in the notes to 2 Parsons on Contracts, 757-760, where the provisions of the Statutes of many of the States relative to the observance of the Sabbath-day, or Sunday, are also set forth. The questions mainly discussed in these authorities relate to the validity of contracts made on Sunday, and the decisions are by no means uniform. The language of the Statutes varies in different States, and in some instances the same language has been differently construed by different courts. The validity of a contract made on Sunday is not, however, the question now before us. The suit is not brought on the admission or new promise as a contract, hut on the note, the original cattse of action, and the new promise is sought to be used as evidence to remove the bar of the Statute and restore the remedy. So far as the research of counsel or our own has extended, the precise question now presented has arisen and been decided in two States only. In Alabama, where the Statute provides that “ no worldly business or employment, ordinary or servile work, (works of necessity or charity excepted,) shall be done, performed or practised by any person on Sunday; ” it has been held that a promise to pay a debt, whether express or implied, if made on Sunday, does not take the case out of the Statute of Limitations. Baumgardner v. Taylor, 28 Ala. 687. On the other hand, in Pennsylvania, where the Statute enacts that “ no person shall do or perform any worldly employment or business whatsoever on Sunday, works of necessity and charity only excepted,” it has been decided that a bond, though-void because executed on Sunday, may still be used in evidence as an admission of a liability. Lea v. Hopkins, 7 Pa. St. 492. The distinction between the validity *of a contract and the admissibility in evidence of an admission, made on Sunday, is very clearly drawn in this latter case. “ The bond,” says Coulter, J., delivering the opinion of the court, “was void as a contract, because as a contract it would have been transacting worldly business on Sunday. But a man may acknowledge the truth on Sunday, and if he does, I do not know any rule that would prevent its being given in evidence against him. If a man writes a letter on Sunday and sends it to his creditor, who gets it on Monday, or even takes it from the office on Sunday, I presume it would be competent evidence against the debtor. As a bond or contract the suit is founded on it, and cannot be maintained, because it is against a public statute, but as an admission it is only evidence of'a previously existing liability. The suit is founded on the previous liability; the admission is only evidence of the fact that the defendant acknowledged that liability. We cannot carry the law so far as to say that the admission of a previously existing debt made on the Sabbath is not good.” The language of our statute (Code, Art. 30, sec. 178,) is “no person whatsoever shall work or do any bodily labor on the Lord’s day, commonly called Sunday, etc., works of necessity and charity always excepted ; ” and we adopt the conclusion of the Pennsylvania court, that we cannot carry this law so far as to say that it forbids the acknowledgment or new promise made in this case from being used in evidence for the purpose for which it was offered. We are to be distinctly understood as making no decision and intimating no opinion as to the construction or effect of this statute, except upon the precise point presented by this record for adjudication.

The third objection that the finding of the court, in favor of the plaintiff, is in contravention of the provisions of the Act of Congress of 1862, ch. 195, making liable to seizure and confiscation the property and credits of persons therein referred to, -is also untenable. The plaintiff was not the holder or owner of the note, or in any way interested in it, ^during the war. He had parted with it for value, before maturity, before the war commenced, and long before this law was passed. He acquired a new title to, and ownership of it after the war had ceased, and certainly there is nothing in this Act of Congress that, by any latitude of construction, can be held as intending to prevent a party, situated as the plaintiff was, from purchasing notes or acquiring property after the close of the war, or as making such property liable to seizure and confiscation. Nor was it necessary that the plaintiff should have obtained a pardon, or have complied with the provisions of the Amnesty Proclamation of the 29th of May, 1865, before he could' sue upon the note so acquired.

The fact that the plaintiff was not the owner or holder of the note during the war is also fatal to the fourth and last objection, that he was not entitled to recover interest upon it pending the war. The note at maturity was in the possession of the Merchants’ Bank of Baltimore, the holder and owner for value, as we must assume (Goodman v. Simonds, 20 How. 365,) at whose instance it was protested and in whose possession it remained until the close of the war. The defendant was a citizen of Maryland residing in Baltimore during the war, and is, under these circumstances, as much liable to the plaintiff for interest on this note as he would have been to any other purchaser thereof.

Judgment affirmed.