Thomas v. Hunter

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. ⁴¹² 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