(l) Such wagers were always void at common law. De Costa v. Jones, Cowp. 729, a wager as to the sex of a third person; Phillips v. Ives, 1 Rawle, 37, a wager that Napoleon Bonaparte would be removed from the Island of St. Helena before a certain time; Ditchbum v. Goldsmith, 4 Camp. 152, a wager that an unmarried woman would have a child by a certain day; Hartley v. Rice, 10 East, 22, a wager that a certain person would not marry within a certain number of years; Gilbert v. 8ykes, 16 East, 160, a wager on the duration of the life of Napoleon Bonaparte, at a time when his probable assassination was the subject of speculation; Evans v. Jones, 6 M. & W. 77, a wager that a certain prisoner would be acquitted on trial of a criminal charge. Some of these cases may have also proceeded upon the pound of public policy, and as having an injurious tendency in respect to public rights.

(m) Wagers upon the result of an election have always been considered as void, on both sides of the Atlantic, as being contrary to sound policy, and tending to impair the purity of elections. Ball v. Gilbert, 12 Met 397; Allen v. Hearn, 1 T. R. 56; M'Allister v. Hoffman, 16 S. & R. 147; Smyth v. M'Masters, 2 Browne, Pa. 182; Bunn v. Riker, 4 Johns. 426; Lansing v. Lansing, 8 Johns. 464; Vischer v. Yates, 11 Johns. 23; Yates 9. Foot, 12 Johns. 1; Rust v. Gott, 9 Cowen, 169; Stoddard v. Martin, 1 R. I. 1; Denniston v. Cook, 12 Johns. 876; Brush v. Keeler, 6 Wend. 260; Lloyd v. Leisenring, 7 Watts, 295; Wagonseller v. Snyder, 7 Watts, 348; Wroth v. Johnson, 4 Harris & McH. 284; Laval v. Myers, 1 Bailey, 486; David v. Ransom, 1 Greene, 388; Davis v. Holbrook, 1 La. An. 176; Tarlton v. Baker, 18 Vt. 9; Commonwealth v. Pash, 9 Dana, 31; Machir v. Moore, 2 Gratt. 267; Foreman v. Hardwick, 10 Ala. 316; Wheeler v. Spencer, 16 Conn. 28; Russell v. Pyland, 2 Humph. 131; Porter v. Sawyer, 1 Harring. (Del.) 617; Gardner v. Nolen, 3 id. 420; Hickerson v. Benson, 8 Mo. 8.

{mm) Ante, p. *626.

1 Gregory v. King, 58 QL 169; Merchants', etc. Co, v. Goodrich, 75 Ill. 554.

•757 *6. OF the Sunday Law.

In Great Britain and in this country, a view prevails concerning the obligation and sanctity of Sunday as the Sabbath, which differs somewhat from that which is generally adopted elsewhere in Christendom. (n) One or two laws were passed before England became Protestant; but the statute of 29 Charles II. c. 7, § 1, is the principal English statute. (o) Many cases, involving many different questions, have arisen under this statute. But most of them turn upon a peculiarity in its phraseology which is not generally copied in this country. This statute enacts that no person shall do any worldly labor, etc, upon the Lord's day, "of their ordinary callings." Hence any man may do anything, buy, or sell, or work in any way, on any part of Sunday, if not in his ordinary calling, without prohibition from this statute. Some nice distinctions have been made under this clause. (p) In this

(n) By the common law no judicial act could be done on Sunday. Swan v. Broome, 1 W. Bl. 495, 526, 3 Burr. 1595; Baxter v. The People, 3 Gilman, 368; Shaw v. M'Combs, 2 Bay, 282; True v. Plumley, 36 Me. 466; Hiller v. English, 4 Strobh. 486; Davis v. Fish, 1 Greene, la. 406. And in Story v. Elliott, 8 Cowen, 27, it was held, that an award made and published on Sunday was void, an award being a judicial act. But see Sargent v. Butts, 21 Vt. 09. But as to the making of contracts, and all other acts not of a judicial nature, the common law made no distinction between Sunday and any other day. Rex v. Brotherton, Stra. 702; Mackally's case, 9 Rep. 66 b, Cro. Jac. 280; Waite v. The Hundred of Stoke, Cro. Jac. 496; Drury v. Defontaine, 1 Taunt. 131; Story v. Elliot, 8 Cowen, 27; Kepner v. Keefer, 6 Watts, 231; Johnson v. Day, 17 Pick. 106; Bloom v. Richards, 2 Ohio St. 387.

(o) The first statute on the subject in England was 27 H. VI. c. 5. This was followed by 1 Jac. I. c. 22, § 28; 1 Car. I. c. 1; 3 Car. I. c. 1; 29 Car. II. c. 7. See Banks v. Werts, 13 Indiana, 203, and Amer. Law Mag. May, 1860, p. 423, for valuable remarks on the Sunday laws.

(p) The language of the statute of 20 Car. II. c. 7, § 1, is, "that no tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor, business, or work of their ordinary callings, upon the Lord's day, or any part thereof (works of necessity and charity only excepted);" and "that no person or persons whatsoever shall publicly cry, show forth, or expose to sale, any wares, merchandises, fruit, herbs, goods, or chattels whatsoever, upon the Lord's day or any part thereof." The first important case in England, putting a construction upon these provisions, was Drury v. Defontaine, 1 Taunt. 131. It was there determined, that a sale of goods made on Sunday, which is not made in the ordinary calling of the vendor, or his agent, is not void by the stat. 29 Car. II. c. 7, so as to disable the vendor from recovering the price. And Mansfield, C. J., said: "We cannot discover that the law has gone so far as to say that every contract made on a Sunday shall be void, although, under these penal statutes, if any man in the exercise of his ordinary calling should make a contract on Sunday, that contract would be void." The next case was Bloxsome v. Williams, 3 B. & C. 232, which was an action for a breach of warranty on the sale of a horse, the sale having been made on Sunday. There, Bayley, J., said: "In Drury v. Defontaine, it was held, that the vendor of a horse, who made a contract of sale on a Sunday, but not in the exercise of his ordinary calling, might recover the price. I entirely concur in that decision, but I entertain some doubts whether the statute applies at all to a bargain of this description. I incline to think that it applies to manual labor and other work visibly laborious, and the keeping of country Sunday laws, * or "laws for the better observance of the Lord's day," as they were generally called, were passed in most of the colonies, and * are now in force in most of the States; but the prevailing distinction is between "works of necessity and mercy," or "necessity and charity," which are permitted, and all others which are prohibited. (y) open shops. But I do not mean to pronounce any decision upon that point" The case finally went off on other grounds. The next important case was Fennell v. Ridler, 5 B. & C. 406. It was there held, that a horsedealer cannot maintain an action upon a contract for the sale and warranty of a horse made by him upon a Sunday. Bayley, J., in delivering the opinion of the court, after adverting to the language of the statute, said: "The interposition of the word 'business' between the words 'labor and work' might justify a question, whether it included every description of the business of a man's ordinary calling, or whether it was not confined to such as was manual and calculated to meet the public eye. There is nothing, however, in the act to show that it was passed exclusively for promoting public decency, and not for regulating private conduct; and though I expressed a doubt upon this point in Bloxsome v. Williams, I am satisfied, upon further consideration, that it would be a narrow construction of the act, and a construction contrary to its spirit, to give it such a restriction. Labor may be private, and not meet the public eye, and so not offend against public decency; but it is equally labor, and equally interferes with a man's religious duties. The same may be said of business or of work. Each may be public and meet the public eye; each may be private and concealed. There is nothing, therefore, in the position of the word 'business' between those of 'labor and work,' which in our judgment can justify us in giving to it anything but its ordinary meaning; and it seems to us that every species of labor, business, or work, whether public or private, in the ordinary calling of a tradesman, artificer, workman, laborer, or other person, is within the prohibition of this statute." In Smith v. Sparrow, 4 Bing. 84, Parke, J., disapproved of the decision of Drury v. Defontaine, and said: "I think the construction put upon the statute, in that case, too narrow. The expression 'any worldly labor' cannot be confined to a man's ordinary calling, but applies to any business he may carry on, whether in his ordinary calling or not." Bat no such opinion was expressed by any other member of the court, and this construction was entirely rejected by the Court of King's Bench, in Rex v. The Inhabitants of Whitnash, 7 B. & C. 596, where it was held, that the statute only prohibits labor, business, or work done in the course of a man's ordinary calling; and therefore that a contract of hiring, made on a Sunday between a farmer and a laborer, for a year, was valid. And see, to the same effect, Scarfe v. Morgan, 4 M. & W. 270; Wolton v. Gavin, 16 Q. B. 48; Begbie v. Levi, 1 Cromp. & J. 180. There has been some question as to what persons are embraced: in the above provisions, under the words, "tradesman, artificer, workman, laborer, or other person whatsoever." In Sandiman v. Breach, 7 B. & C. 96, it was held, that drivers and proprietors of stage-coaches were not included; and therefore, that a contract to carry a passenger on a stage-coach on Sunday was valid. Lord Tenterden said: "It was contended, that under the words' other person or persons' the drivers of stage-coaches are included. But where general words follow particular ones, the rule is to construe them as applicable to persons ejusdem generis." And see, to the same effect, Rex v. Inhabitants of Whitnash, 7 B. & C. 596. In Peate v. Dicken, 1 Cromp. M. & R. 422, the court were inclined to hold, that an attorney was not a person included within the above words, but the point was not decided.