But perhaps the second point illustrated by these cases is put in the clearest light by those of Drury v. De Fontaine (g) and Fennell v. Ridler (h), in the former of which cases it was considered that the sale of a horse on a Sunday by a person not being a horse-dealer, the ordinary-calling of the plaintiff; and in the second, that a horse-dealer could not maintain an action upon a contract for the sale and warranty of a horse bought by him on a Sunday, it being obvious that, in doing so, he was exercising the business of his ordinary calling. In accord-ance with these cases, it has been decided that one tradesman giving another, on the Lord's day, a guaranty for the faithful services of a traveller is not, in doing so, exercising his ordinary calling (i) : and the same conclusion was come to in a still more recent case upon this subject, where it was decided that a recruiting officer enlisting a soldier on a Sunday is not executing his ordinary calling on the Lord's day (k).
(d) See Sandiman v. Breach, 7 B. & C. (14 E. C. L. R.) 96; Queen v. Nevill, 8Q. B. (55 E. C. L. R.) 452. See Bishop v. Elliott, 24 L. J. (Ex.) 229; 11 Ex. 113.
(e) Stat. 3 Car. 1, c. 1. (f) 1 Cr. M. & R. 422. (g) 1 Taunt. 131.
(h) 5 B. & C. (11 E. C. L. R) 406.
The cases in which the Act is most frequently sought to be applied are those of sales, of which you may see a remarkable instance in Simpson v. *Nichols (l).
This was an action for goods sold and delivered. The defendant pleaded that they were sold and delivered by him to the plaintiff in the way of his trade on a Sunday, contrary to the statute; the plaintiff replied, that, after the sale and delivery of the goods, the defendant kept them for his own use, without returning or offering to return them, and had thereby became liable to pay as much as they were worth. This replication was considered to be no answer at all to the plea. A case had been cited in the argument (m), where the defendant, having purchased a heifer of a drover on a Sunday, and having afterwards kept it and expressly promised to pay for it, was held liable by virtue of that
(i) Norton v. Powell, 4 M. & Gr. (43 E. C. L. R.) 42. See Scarfe v. Morgan, 4 M. & W. 270.
(k) Wolton v. Gavin, 16 Q. B. (71 E. C. L. R.) 48. (l) 3 M. & W. 240.
(m) Williams v. Paul, 6 Bing. (19 E. C. L. R.) 653. 302 promise. But Mr. Baron Parke observed (n) that, as the property in the goods passed by delivery, the promise made on the following day to pay for them could not constitute any new consideration, and therefore he doubted whether that case could be supported in law. Perhaps, however, the Court considered that case as within the rule mentioned, ante, page *203, and that the express promise there mentioned might revive the precedent consideration, which might have been enforced at law through the medium of an implied promise, had not the party been *exempted by the positive rule of law forbidding such a contract on the Lord's day (o).
Yet, from the application of the Act to these cases even there are some exceptions; some created by the Act itself, which permits food to be sold in inns and cookshops to persons who cannot be otherwise provided, and for the sale of milk at certain hours; others by 10
& 11 Will. III., c. 24, s. 14, which legalises the sale of mackerel before and after divine service; others by 6 &
7 Will. IV., c. 37, which allows bakers to carry on their business to a certain extent and under certain restrictions, see s. 14; and, indeed, even before the passing of that Act or of the 34 Geo. III., c. 61, on the same subject, it had been decided that a baker baking provisions for his customers was out of the purview of the Act altogether, that being a work of necessity (p); and there are other exceptions created by other particular enactments-as, for instance, in the case of hackney carriages.1
(n) Simpson v. Nichols, 5 M. & W. 702, note.
(o) See Scarfe v. Morgan, 4 M. & W. 270. See per Bosanquet, J., 6 Bing. (19 E. C, L. R.) 655.
(p) See R. v. Cox, 2 Burr. 785; R. v. Younger, 5 T. R. 449.
1 A contract, however, for the sale of goods made on Sunday, is not affected by the statute, unless it is a complete contract on that day: Butler v. Lee, 11 Ala. 885; Adams v. Gay, 19 Vt. 358, where the subject is elaborately examined. Thus, if the article was not to be delivered, or the price paid till another day, the contract would not be, under the Statute of Frauds, binding till that was done: Bloxsome v. Williams, 3 B. & C. (10 E. C. L. R.) 232; Beaumont v. Brengeri, 5 C. B. (57 E. C. L. R.) 301. So of a promissory note written on that day, but not delivered till another: Lovejoy v. Whipple, 18 Vt. 379; Clough v. Davis, 9 N. H 500. And although the consummation of the transaction may occur on Sunday, yet if the party seeking to enforce the rights growing therefrom, had ceased all his agency in the matter before that day, there will be no invalidation as to him; as where a case was submitted to arbitrators late on Saturday night, who made up their award early on Sunday morning, it was held that assumpsit might be maintained on the award, for the plaintiff had no voluntary agency in consummating the transaction on that day : Sargeant v. Butts, 21 Vt. 101; Richardson v. Kimball, 28 Me. 475.-r.
Another class of contracts falls within the prohibition of the Acts aimed against simony. There are two statutes on this subject: the 31 Eliz., c. 6, and 12 Anne, st. 2, c. 12; the former of which enacts that if any patron, for any corrupt consideration, by gift or promise, directly or indirectly, shall present or collate any person to any ecclesiastical *benefice or dignity, such presentation shall be void, the presentee shall be incapable of enjoying the benefice, and the Crown shall present to it (q).
(q) Goldham v. Edwards, 24 L. J. (C. P.) 189; 18 C. B. (86 E. C. L. R.)
When a contract for labour is entered into on Sunday, and the contract is afterwards performed by the labourer, the promisor cannot set up the illegality of the contract: Meriwether v. Smith, 44 Ga. 541. The vendor of property sold and delivered on Sunday may reclaim such property upon tendering to the vendee the price received: Tuckey v. Mowrey, 12 Mich. 378. A note dated and to take effect on Sunday, but made and given on a previous day is valid: Stacy v. Kemp, 97 Mass. 166. A contract not otherwise invalid, but void only because made on Sunday, is susceptible of ratification: Tucker v. West, 29 Ark. 386; Love v. Wells, 25 Ind. 503; Smith v. Case, 2 Or. 190, Contra, Day v. McAllister, 15 Gray, 433; Ryno v. Darby, 20 N. J. Eq. 231; Finn v. Donahue, 35 Conn. 216; Pate v. Wright, 30 Ind. 476; Bradley v. Rea, 103 Mass. 188; Harrison v. Colton, 31 Iowa, 16. See Pope v. Lynn, 50 Me. 83; Miller v. Lynch, 38 Miss. 344; Pike v. King, 16 Iowa, 49; Finlay v. Quirk, 9 Minn. 194; Foreman v. Ahl, 55 Pa. St. 325; Myers v. Meinrath, 101 Mass. 366; Whelden v. Chappel, 8 R. I. 230- s.