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said: "Payment by one is payment by all, the one acting virtually as agent for the rest; and in the same manner an admission by one is an admission by all; and the law raises the promise to pay when the debt is admitted to be due." Willes, J., said: "The defendant has had the advantage of the partial payment, and therefore must be bound by it." Ashurst aud Buller, JJ., were of the same opinion.

Whitcomb v. Whiting, though not always approved, has been so frequently declared to be the law in this State that its force as authority cannot now be disputed. I have quoted the case almost at length with a view of an inquiry as to what the case decided. It will be observed that it does not appear in the report of the case that the note in suit was affected by the statute of limitations at the time the payment was

except the paragraph which will be quoted, contains any thing which could be nstrued to be an acknowledgment or promise. That paragraph is in these words: "It would be impossible for me to pay the note at this time; therefore I shall be a thousand times obliged to thee if thee will allow it to rest until John or I, or both, are in better condition to liquidate it." It is clear that there is not in these words au unqualified promise to pay immediately or on request. The preceding paragraphs of the letter identify the note sued on as that to which the correspondence related, and contain an admission by the defendant that he signed the note as surety for Woodward. Taken in connection with the defendant's admission that he signed the note, and his declaration of his present inability to pay, I think the words quoted are sufficient to warrant the implication of a qualified promise by the defend-made. Indeed it appears inferentially to have been ant to pay when his circumstances had so improved that he had the ability to pay. To make such a promise available the plaintiff was bound to furnish affirmative proof of the substantial fulfillment of the condi tion (Tanner v. Smart, Haydon v. Williams, supra: Scales v. Jacob. 3 Bing. 638; Ayton v. Bolt, 4 id. 105; Edmunds v. Downs, 2 C. & M. 459; Meyerhoff v. Froehlich, 4 C P. Div. 63; Tompkins v. Brown, 1 Den. 247; Wood Limitations, § 77); and of that there was no evidence. The verdict cannot be sustained on the new promise of the defendant.

To take the case out of the statute of limitations by a payment on account, the plaintiff relied on a payment made by Woodward, one of the joint makers of the note. Woodward sent a draft to the plaintiff for $100 in a letter directed to her, dated Durango, Cal., May 9, 1882. The plaintiff received the money on the draft, and June 1, 1882, credited it on the note. The letter remitting the draft gave no directions as to the appropriation of the money. The only reference to the subject is in these words: "Inclosed is draft for $100. It strained me to raise it, but I thought thee needed it." There was some evidence that there was another indebtedness on the part of Woodward to the plaintiff besides the note in suit. The judge left the question to the jury whether the payment was made on account of this note, under proper instructions, and I think there was sufficient evidence to justify the jury in finding that the payment was made thereon.

Woodward removed from this State shortly after the note was given. He resided in California when the suit was brought. Although the fact does not appear distinctly by the evidence, it is probable that his continued residence out of this State avoided the bar of the statute of limitations as against him. Butterworth resided in this State, and the statute was a bar to any action against him on the note at the time this payment was made. The problem presented by these facts is whether a payment on account by one joint promisor will remove the bar of the statute of limitations as against a co-promisor in whose favor the statute had attached when the payment was made.

The leading case on this subject is, of course, Whitcomb v. Whiting, 2 Doug. 652. In that case the declaration was in form on a promissory note executed by the defendant. Pleas, non assumpsit and non assumpsit infra sex annos. The plaintiff produced a joint and several note executed by the defendant and three others, and having proved payment by one of the others of interest on the note, and part of the principal within six years, and the judge thinking that was sufficient to take the case out of the statute as against the defendant, a verdict was found for the plaintiff. On rule to show cause before Lord Mansfield, Chief Justice, and Willes, Ashurst and Buller, Justices, the verdict was sustained. Lord Mansfield

otherwise, for no such point was made by counsel, and it is improbable that an available argument of so much plausibility, if not weight, should have been overlooked by counsel or passed by the court without comment. Lord Mausfield's reasoning that "payment by one is payment by all, the one acting virtually as agent for the rest," could apply only to a payment made in the interest of all; and the observation of Willes, J., that "the defendant had had the advantage of the partial payment, and therefore must be bound by it," would be wholly inapplicable if the defendant had been entirely released from his liability on the note by the statute when his copromisor made the payment. The report of this case affords no warrant for the assumption that it decided that a payment within six years before suit, by one promisor, would take a case out of the statute as against a copromisor, where the payment was made after the statute had effected a discharge of the latter from the joint obligation. The other leading English cases on the subject are Burleigh v. Stott's Admra.. 8 B. & C. 36, and Perham v. Raynal, 2 Bing. 306, more fully reported in 9 Moore, 566.

In Burleigh v. Stott's Admr., the suit was against the administrator of Stott, one of the makers of a joint and several promissory note. The note was dated March 4, 1818, and payable to Robert Burleigh, the plaintiff, on demand. Stott died March 3, 1821. The suit was brought October 3, 1826. It appeared that Thomas Burleigh, the other maker, and who was the principal debtor on the 10th of October, 1818, paid the interest on the note to that day, and on the 10th of October, 1820, the interest then due, and a sum on account of the principal, without the knowledge of Stott. These payments were made by Burleigh whilst the joint liability of himself and Stott subsisted; and as was said by olroyd, J., Stott had the benefit of the part payment, and he ought to bear the burden. The court following Whitcomb v. Whiting, gave judgment for the plaintiff.

In Perham v. Raynal, one of the defendants was surety on a joint and several note, and within six years before suit a co-defendant, who was the principal debtor, had acknowledged the debt to be due. It does not appear in either report of the case whether the acknowledgment was before or after the bar of the statute. The questions discussed and decided were whether Whitcomb v. Whiting was law, and whether an acknowledgment by the principal debtor could affect a surety.

The only cases in the English courts which directly. decide that payment by one copromisor after the bar of the statute had attached would deprive the other promisor of the benefit of the statute, are Channell v. Ditchburn, 5 M. & W. 494, and Goddard v. Ingram, 3 Q. B. 839.

In Channell v. Ditchburn the suit was against the

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makers of a joint and several promissory note. The proof was of the payment of interest by one of the makers within six years from the commencement of the suit, but more than six years after the note became due. The debt had been once barred by the statute, and the court held that it was revived against both the makers by the payment of interest by one. The case was decided on the assumption that Whitcomb v. Whiting was a parallel case, and on the authority of Manderston v. Robertson, 4 Man. & R. 440. On looking at the report of Manderston v Robertson it will be found that that point was not adverted to.

In Goddard v. Ingram 'the suit was against surviv ing partners to recover the balance of a debt due on partnership account, on which one of the partners had made a small payment after the whole account was barred. The payment was made after the dissolution of the partnership, and when the partner making it was "in the jaws of bankruptcy," and the jury found that the payment was made by him in concert with the plaintiffs, in fraud of his copartners. This case was decided after Channell v. Ditchburn, and there was also prominent in it the question of the agency of partners in the matter of partnership business after a dissolution of the firm. The court set aside a verdict for the defendant without stating the grounds of decision, or assigning any reason except that they could not forbear to act on the numerous authorities.

There is another class of cases which will throw light on the principle involved in the matter under discussion. I refer to those decisions which hold that payment by one promisor after the death of his copromisor will not revive the debt as against the personal representatives of the latter. Of this class Atkins v. Tredgold, 2 B. & C. 23, is the leading case. The suit there was against the executors of John Tredgold on joint and several promissory notes made by John Tredgold and Robert Tredgold, bearing date respectively January 17, 1806, and January 17, 1809. John died in March, 1810, and Robert continued to pay the interest until May, 1816. The court, consisting of Abbott, C. J., Bayley, Holroyd and Best, JJ., held that the payments made after the testator's death did not take the case out of the statute. All the judges distinguished the case from Whitcomb v. Whiting, and declared their unwillingness to extend the principle of that decision. Bayley, J., speaking of Whitcomb v. Whiting, distinguished that case from the case then before the court, in that the statute had attached before the payment was made by Robert; and "therefore," he said, "John Tredgold being at that time protected, could not be subjected to any new obligation by the act of Robert." Holroyd, J., referring to Whitcomb v. Whiting, said, "that case has gone far enough, but it does not govern the present. There the defendant Whiting was liable upon a joint promise at the time the payment was made. The court decided that when one of two joint promisors pays a part, that was to be considered in law as a payment by both. But here at the time when the payment was made, the joint contract had ceased to exist; for it was determined by the death of John Tredgold."

Turning from the English decisions to the cases in our courts, we find Whitcomb v. Whiting approved and followed in Corlies v. Fleming, 1 Vroom, 349. In that case the suit was commenced July 11, 1861, against the two defendants, on a joint and several note given by them and one Farrington, since deceased, dated September 4, 1850. The interest on the note had been paid by Fleming every year to the year 1860, inclusive. Each payment of interest was made at a time when the joint liability of the defendants existed, and each one of these payments renewed the joint obligation for six years. Disborough v. Bidleman's Heirs, 1 Zab. 677, approved Whitcomb v. Whiting, and followed Atkins v.

Tredgold. The suit was against the heirs of a deceased obligor on a bond which was joint and several. This court and the Court of Errors held that a payment on the bond by the surviving obligor, after the death of his co-obligor, did not take the case out of the statute as against the heirs of the latter. This decision was made on the authority and reasoning of Atkins v. Tredgold, that the payment was not made whilst the joint obligation of the two parties existed, and that the agency of the one to act for and bind the other ceased when their joint liability was ended. Whitcomb v. Whiting was again approved in this court in Merritt v. Day, 9 Vroom, 32. That suit was against partners on a firm note. The payment by one partner, which was regarded as taking the case out of the statute, though made after the dissolution of the partnership, was before the time of limitation had lapsed. The chief justice in his opinion gives that circumstance special prominence, and in commenting on Whitcomb v. Whiting deduces "a right *** in either of the joint debtors to arrest by his sole act the running of the statute," "from the existence of the joint indebtedness," and "infers from the fact of the joint obligation and the unity of interest the agency to renew the contract as against the force of the statute."

We are bound by Whitcomb v. Whiting, for the reason I have mentioned; but the other English cases I have cited we are under no constraint to follow, except so far as they have already been adopted by our courts. The doctrine that a joint debt, when once barred by the statute, can be revived as against all the original debtors by the unauthorized act of one of them, adjudged in Channell v. Ditchburn and Goddard v. Ingram, has neither reason nor justice for its support. That such a doctrine was considered as either unjust or unwise is shown by the fact that in England it has been overturned by act of Parliament. 19 and 20 Vic., ch. 97, § 14. The true principle on which Whitcomb v. Whiting rests is that of the agency of joint debtors for each other, inferred from the unity of their interest, which makes the act of payment by the one the act of all-an agency which arising out of the joint indebtedness, subsists only so long as the joint indebtedness continues, and ceases as soon as the joint liability being determined, the parties become as strangers to each other. Atkins v. Tredgold and Disborough v. Bidleman's Heirs were decided on this reasoning, and there is no rational distinction between the determination of the joint interest of the parties by death and its termination by the bar of the statute of limitations, which makes the lapse of time a positive and legal bar in all cases within its provisions. Thorpe v. Corwin, Spenc. 311.

I have not referred to cases in the courts of our sister States. Whitcomb v. Whiting has given rise to so much discussion, with great diversity of views, and been so denied and qualified, not only by judicial decisions but by legislation, that a reference to the American cases would be of little profit. The courts of some of the other States have adopted the same views on this subject that we have expressed, as will be seen by the notes to Whitcomb v. Whiting, 1 Sm. Lead Cas.

The verdict should be set aside and a new trial granted.

EVIDENCE- DECLARATIONS AS TO PEDIGREE. MAINE SUPREME COURT, JUNE 10, 1884.

NORTHROP V. HALE.*

On the question of pedigree declarations are admissible. (1) When it appears by extrinsic evidence that the declarant

*To appear in 76 Maine Reports.

was lawfully related by blood or marriage to the person or family whose history the facts concern. (2) That the declarant was dead when the declarations were tendered. (2) That they were made ante litem motam. Thus in determining who are the rightful distributees of an intestate estate, the declarations of the intestate's sister (since deceased), in whose family the claimant was not only born and brought up, but in which the intestate herself also lived, when the claimant was born, and for several years thereafter, are admissible when made ante litem motam, for the purpose of showing that the claimant was the natural son of the intestate, who had not then been married.

APPEAL from the decree of the judge of probate.

The opinion states the case.

Nathan & Henry B. Cleaves and M. P. Frank, for plaintiff.

Drummond & Drummond and Clarence Hale, for defendant.

VIRGIN, J. This is an appeal from a decree of the judge of probate, wherein he ordered the distribution of an intestate estate and adjudged, against the claim of the appellant, that he was not the natural son of the intestate, but was the legitimate son of the intestate's sister.

In the Supreme Court of Probate, to which the appeal was taken, the same question was submitted to a jury, who found against the appellant.

At the trial of the issue it appeared inter alia that the appellant was born in Steubenville, Ohio, and was brought up there in the family of the intestate's sister, in which also the intestate resided at the time of the appellant's birth, and for several years thereafter. The appellant tendered the “declaration of Mary Northrop (the intestate's sister) relative to the birth and parentage of John A. Northrop," the appellant. What the specific declarations were the bill of exception fails to disclose. It is sufficiently general to include declarations that the appellant was the lawful son of the declarant, which was claimed by the appellee. The admissibility of such a declaration would not be successfully challenged under any known rule of evidence. For the practice in such cases seems to be that some evidence of the requisite relationship (though the exact degree may not be essential perhaps, Vowles v. Young, 13 Ves. 140) dehors the declarations must be shown before they can be admitted. Futter v. Randall, 2 Moore & P. 24; Plant v. Taylor, 7 Hurl. & Nor. 237; Gee v. Ward, 7 E. & B. 514.

And this evidence is primarily addressed to the presiding justice, who, before admitting the declarations, must be satisfied that a prima facie case of the requi site relationship has been made out. Jenkins v. Davis, 10 Q. B. 313, 322; Hitchins v. Eardley, L. R., 2 P. & D. 248. And the facts shown, the birth, place of birth, the bringing up and name of the appellant, are ample prima facie evidence of relationship to warrant the admission of the declaration mentioned. 4 Camp. 416; Viall v. Smith, 6 R. I. 417. Still there is some apparent discrepancy in the practice. Blackburn v. Crawfords, 3 Wall. 175; Jewell v. Jewell, 1 How. 219, 231; Alexander v. Chamberlin, 1 Thomp. & Cook (N. Y. Sup. Ct.) 600.

But the appellant could not be aggrieved by the exclusion of a declaration which would disprove his claim, and his exception for such an exclusion could not therefore be sustained.

Yet considering the appellant's claim, together with the facts and admissions disclosed in the bill of exception, we can have no doubt that the declarations tendered and excluded had a direct bearing upon the issue, and that the question intended to be raised by the parties is; Whether, in determining who are the right

ful distributees of an intestate estate, the declarations of the intestate's sister (since deceased), in whose family he was not only born and brought up, but in which also the intestate herself lived when the appellant was born, and for several years thereafter, are admissible for the purpose of showing that he was the natural son of the intestate, who had not then been married.

All of the authorities seem to concur in holding that while her declarations would be competent to show the appellant to be her own illegitimate son, born before her marriage, and yet under a rule founded, as Lord Mansfield said, "in decency, morality and policy," her declarations would not be allowed to prove her own son illegitimate if born in wedlock. Goodright v. Moss, Cowp. 591; 1 Greenl. Ev., §§ 253, 344; Haddock v. B. & M. R., 3 Allen, 300; Abington v. Duxbury, 105 Mass. 287. Can her declarations be admitted to show the illegitimacy of her unmarried sister's son, born and brought up in her own family? This involves no bastardizing of her own issue.

Formerly the declarations of servants, physicians and intimate friends have been admitted at nisi prius in the English courts. But in Johnson v. Lawson, 2 Bing. 86, the court unanimously rejected the declarations of a deceased housekeeper. Best, C. J., remarked that the admission of evidence in such cases must be subject to some limits; limiting declarants to relatives connected by blood or marriage afforded a certain and intelligible rule; and if that were passed an almost endless inquiry as to the degree of intimacy between the family and the declarant might be involved. Since that decision all modern authorities exclude declarations coming from neighbors, intimate acquaintances, etc., of the family as being mere hearsay evidence. Vowles v. Young, 13 Ves. 147; Whitelocke v. Baker, id. 514; Jackson v. Browner, 18 Johns. 37, 39.

It has therefore become a universally recognized exception to the general rule excluding hearsay, based on various sound considerations, that as to certain facts of family history, usually denominated pedigree, comprising inter alia, birth, death and marriage, together with their respective dates, and, in a qualified sense, legitimacy and illegitimacy, declarations are admissible: (1) When it appears by evidence dehors the declarations that the declarant was lawfully related by blood or marriage to the person or family whose history the facts concern. (2) That the declarant was dead when the declarations were tendered. (3) That they were made ante litem motam. 1 Greenl. Ev., §§ 103 et seq. and notes; 1 Whart. Ev., §§ 201 et seq. and notes; 1 Tayl. Ev., §§ 571 et seq. and notes; Best Prin. Ev. (Am. ed.), § 498 and notes.

Lord Chancellor Eldon said such declarations "are admissible upon the principle that they are the natural effusions of a party who speaks upon an occasion when his mind stands in au even position without any temptation to exceed or fall short of the truth, * * * that they must be from persons having such connection with the party to whom they relate, that it is natural and likely, from their domestic habits and connections, that they are speaking the truth and cannot be mistaken."

Lord Chancellor Erskine declared that the "law resorts to hearsay evidence of relations upon the principle of interest in the person from whom the descent is to be made out." Vowles v. Young, supra. This view was adopted by Prof. Greenleaf. 1Greenl. Ev., § 103. And Mr. Taylor sums up the authorities by declaring such declarations admissible coming from such sources, as relatives "may be supposed to have the greatest interest in seeking the best opportunities for obtaining, and the least reason for falsifying information on the subject." 1 Taylor Ev., § 571. Do not the

qualifications of Mrs. Northrop come fully up to these requisitions?

In Goodright v. Moss, Cowp. 591, the declarations of parents were held admissible, after their decease, to prove that their son was born before their marriage and was therefore illegitimate; and this case is not questioned on this point in Berkley Peerage case, 4 Camp. 401.

In Vowles v. Young, supra, a new trial was granted because the declarations of a husband, that his wife was illegitimate, were rejected.

In Haddock v. B. & Maine Railroad, supra, a mother's declarations were admitted to prove the illegitimacy of her daughter by showing that the mother was never married.

So where the question was whether the plaintiff's mother was the legitimate child of the ancestor, whose land was in dispute and the record showed the latter's marriage at a certain date, the ancestor's declaration -that "unless he made a will, Louisa (plaintiff's mother) could get nothing," was held competent to go to the jury on the question of her illegitimacy.

Viall v. Smith, 6 R. I. 417. See also Barnum v. Barnum, 42 Md. 251, 304.

It would seem therefore that the declarations of the intestate would be admissible to show that the appellant was her illegitimate son; and if the mother's declarations would be, why would not be those of the mother's sister, in whose family the child was born and brought up, and in which the mother lived at the time and for years after?

It is urged that there are some English authorities which somewhat tend otherwise.

from tracing their birth to a source which is deemed criminal by law.' Cooley v. Dewey, 4 Pick. 95. Hence bastards were said by the common law to be the "children of nobody," and could not transmit by descent except to their own offspring 1 Bl. Com. 459; 2 Kent Com. (12th ed.) 212-13; Hughes v. Decker, 38 Me. 153, 160. And such was the law in this State until 1838, when the Legislature, as have the legislatures of several other States, ameliorated the rights of illegitimate children. "This relaxation in the laws in so many States," says Chancellor Kent, "of the severity of the common law, rests upon the principle that the relation of parent and child, which exists in this unhappy case, in all its native and binding force, ought to produce the ordinary consequence of consanguinity." 2 Kent Com. (12th ed.) 214. By the statutes of this State, "an illegitimate child is the heir of his mother," and "his estate descends to his mother when he dies intestate without issue." R. S., ch. 75, §§ 3 & 4.

We are of the opinion therefore that inasmuch as the relationship of sister existed between the intestate and the declarant, and by force of the statute, that of mother and son between the intestate and the appellant, the declarations came literally within the exception and are consequently admissible; and that the jury should be allowed to pass upon their weight, if they find they were ever made in connection with the other testimony in the case.

Exceptions sustained. Peters, C. J., Walton, Danforth, Symonds and Emery, JJ., concurred.

[See Swink v. French, 11 Lea, 78; S. C., 47 Am. Rep. 277.]

LAWS.

In Bamford v. Barton, 2 Moo. & R. 28, where one K. | died seised of land, leaving none but illegitimate children, to whom he willed for life his property with remainder to his own lawful heirs, who brought eject- SUNDAY — PROMISSORY NOTE-CONFLICT OF ment claiming the devisees for life to be dead; and to prove it, offered the declarations of one of them, who had since died, to prove the decease of the other, Patterson, J., at nisi prius, held the declarations inadmissible on the ground that the declarant was not, in point of law, a member of the family of his reputed father. We also entertain the same opinion, and for the same reason.

In Crispin v. Doglioni, 2 S. & Tr. 493, decided in the Probate Court in England in 1863, the plaintiff claimed to be the natural son of the intestate. To prove it he tendered the declarations of a deceased brother of the intestate. Sir C. Creswell, after remarking there was no case in point, held the declarations inadmissible, saying: "The admissibility of hearsay evidence is exceptional, and ought not to be carried further than the decisions in the books, for it is a departure from the first rule of evidence. I can well understand that when a matter is likely to be discussed and well known in a family, a member of the family may be allowed to give evidence of it; but in this case the plaintiff, according to his own account, is filius nullius, by our law. The question is whether a declaration of one brother may be admitted as to another brother having had intercourse with a woman, and having had a child by her; I think it ought to be excluded." We cannot perceive any objection to this ruling. No one can pretend that it comes within the exception admitting hearsay, for the putative father has no relationship with his bastard son, and hence the case is not applicable to the case at bar. Moreover the case is especially sound in England, and it might there be considered as applicable to a case having the same facts as in the case at bar. For by the common law, in order to "render odious illicit commerce between the sexes and to stamp disgrace on the fruits of it, notwithstanding the punishment usually fell upon the innocent, it was thought wise to prohibit the offspring

SUPREME COURT, E. D. ARKANSAS, APRIL TERM, 1884.

SWANN V. SWANN.*

A note made on the Lord's day, and valid by the law of the State where made, will be enforced by the courts of another State, by the laws of which such contract would be void.

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Ratcliff & Fletcher, for plaintiff.

Clark & Williams, for defendant.

CALDWELL, J. This suit is founded on a promissory note, of which the defendant is the maker and the plaintiff the payee. The defense is that the note was executed on the Lord's day. The proof shows that the note was executed on that day in the State of Tennessee, where the parties to it then resided, for the consideration of a valid pre-existing debt due from the defendant to the plaintiff. There is no place of payment fixed in the note.

In Tucker v West, 29 Ark. 386, a note executed in this State on the Lord's day was held to be void under the statute. This court takes judicial notice of the laws of the several States. Owings v. Hull, 9 Pet. 607; Railroad Co. v. Bank of Ashland, 12 Wall. 226.

By the law of Tennessee, where the note was executed, it is a valid obligation. In Amis v. Kyle, 2 Yerg. 31, the Supreme Court held that the statute of that State only prohibited labor and business in the 'ordinary calling" of the parties; and that isolated private contracts, made by parties outside of their ordinary calling, are not invalidated. This rule was carried to a great length in the case cited. An obliga

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*S. C., 21 Fcd. Rep. 239.

tion, to be discharged in horses, was made payable on the Lord's day, and the court held the contract valid, and that a tender of the horses, to have the effect of discharging the obligation, must be made on that day. This was held upon the ground that the sale and delivery of horses was not the ordinary calling of either of the parties. The attention of the court has not been called to any later exposition of the law of that State than is contained in this decision, and it will be assumed that there is none.

Under the rule established in Amis v. Kyle, it is obvious the note, which is the foundation of this suit, was valid in Tennessee. The execution of a note for a pre-existing debt was probably not the ordinary calling of either of the parties. If it was, the burden of proof was on the defendant to show it. Roys v. John son, Gray, 162; Bloxsome v. Williams, 3 Barn. & C. 232.

The doctrine of the Supreme Court of Tennessee is the doctrine of the early English cases under the statute of 29 Chas. II, ch. 7, which prohibited labor only in the "ordinary calling" of the parties. Drury v. Defontaine, 1 Taunt, 131; Bloxsome v. Williams, supra; Rex v. Whitnash, 7 Barn. & C. 596; Fennell v. Ridler, 5 id. 406; Rex v. Brotherton, 2 Strange, 702. It is also the doctrine of some of the American cases. Hellams v. Abercrombie, 15 S. C. 110; Bloom v. Richards, 2 Ohio St. 387; George v. George, 47 N. H. 27; Hazard v. Day, 14 Allen, 487. Of course the law of this State has no extraterritorial operation, and cannot affect the validity of contracts executed elsewhere on the Lord's day. And the general rule is that a contract valid by the law of the place where it is made is valid everywhere, and will be enforced by the courts of every other country. But there are exceptions to this general rule, and among them contracts against good morals, and that tend to promote vice and crime, and contracts against the settled public policy of the State will not be enforced, although they may be valid by the law of the place where they are made. Story Confl. Laws, 244; Westl. Int. Law, § 196; Whart. Coufl. Laws, § 490.

The contention of the learned counsel for the defendant is that a court of this State ought not to enforce a contract made on the Lord's day in another State, though valid by the law of that State, because the contract is the result of an immoral and irreligious act, and its enforcement here would shock the moral sense of the community and violate the public policy of the State. Assuming, but not deciding, that the determination of this question must be the same in this court that it would be in a court of the State, we will proceed to inquire whether there is any principle upon which a court of the State could refuse to enforce the contract in suit.

The common law made no distinction between the Lord's day and any other day. Contracts entered into on that day were as valid as those made on any other day. The contract in suit was voluntarily entered into between parties capable of contracting, for a lawful and valuable consideration. It had relation to a subject-matter about which it was lawful to contract, and was a valid contract when and where it was made. No court ought to refuse its aid to enforce such a contract on doubtful and uncertain grounds. The burden is on the defendant to show that its enforcement would be in violation of the settled public policy of this State, or injurious to the morals of its people. Vague surmises and flippant assertions as to what is the public policy of the State, or what would be shocking to the moral sense of its people, are not to be indulged in. The law points out the sources of information to which courts must appeal to determine the public policy of a State. The term, as it is often

popularly used and defined, makes it an unknown and variable quantity-much too indefinite and uncertain to be made the foundation of a judgment. The only authentic and admissible evidence of the public policy of a State on any given subject are its Constitution, laws and judicial decisions The public policy of a State, of which courts take notice, and to which they give effect, must be deduced from these sources.

In Vidal v. Girard's Ex'rs, 2 How. 127, 198, it was objected by Mr. Webster that the foundation of the Girard College, upon the principles prescribed by the testator, was "derogatory and hostile to the Christian religion, and so is void as being against the common law and public policy of Pennsylvania." In replying to this argument the court said:

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"Nor are we at liberty to look at general considerations of the supposed public interests and policy of Pennsylvania upon this subject, beyond what its Constitution and laws and judicial decisions make known to us. * * * "

What is there, then, in the Constitution, laws and decisions of this State evincing a public policy hostile to the enforcement of contracts lawfully made in other States on the Lord's day? The Constitution of the State declares:

"No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given by law to any religious establishment, denomination or mode of worship above any other. * *** No religious test shall ever be required of any person as a qualification to vote or hold office; nor shall any person be rendered incompetent to be a witness on account of his religious belief." Const. 1874, §§ 24, 26.

So much of the statute of the State as has any bear ing on the question reads as follows:

"Sec. 1614. Every person who shall, on the Sabbath or Sunday, be found laboring, or shall compel his apprentice or servant to labor or perform other services than customary household duties of daily necessity, comfort or charity, on conviction thereof shall be fined one dollar for each separate offense. * * * ."

"Sec. 1617. Persons who are members of any relig. ious society, who observe as Sabbath any other day of the week than the Christian Sabbath or Sunday, shall not be subject to the penalties of this act, so that they observe one day in seven, agreeably to the faith and practice of their church or society."

It is obvious the statute does not attempt to compel the observance of the first day of the week as a day of rest as a religious duty. It would be a nullity if it did so.

In Bloom v. Richards, 2 Ohio St. 387, the courtThurman, J., delivering the opinion said:

"Thus the statute upon which the defendant relies, prohibiting common labor on the Sabbath, could not stand for a moment as a law of this State, if its sole foundation was the Christian duty of keeping that day holy, and its sole motive to enforce the observance of that duty."

And see, to the same effect, Specht v. Com., 8 Barr. 312; City Council of Charleston v. Benjamin, 2 Strobh.

508.

In this country legislative authority is limited strictly to temporal affairs by written Constitutions. Under these Constitutions there can be no mingling of the affairs of church and State by legislative authority. All religions are tolerated, and none is established. Each has an equal right to the protection of the law, whether Christians, Jews or infildels. Andrew v. Bible Society, 4 Sandf. (N. Y.) 182; Ayres v. Methodist Church, 3 id. 377, Cooley Const. Lim. 472. No citizen can be required by law to do, or refrain from doing, any act upon the sole ground that it is a

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