
    Delamater against Miller—Certiorari from a Justice’s Court.
    
    bomThTperform a con-day. “where ™eperf0^od demand, yet necessary ¿ 33 where he has j&f powe? to it up to a third peison‘ perform : as where a bailee promises to deliver a watch on demand, to the owner, but instead of doing- this, g-i
    Assumpsit, by Miller against Delamater; for that the former had exchanged his horse with one Schermerhom for his (S’s) watch, which was in Delamater’s possession at his (D’s) house ; and which he, being present at the contract, agreed to keep and deliver to Miller, who said he should call for it on the Saturday following. Miller did not demand it till the Sunday following, when Delamater refused to deliver it, assuming to retain it for a dollar due him from Schermerhom ; and he afterwards gave up the watch to Schermerhom, who sold it. Judgment for the plaintiff.
    
      J. A. Vanderpoel, for the plaintiff in error.
    S. Cheever, for defendant.
   Curia,

The defendant was not bound to regard the demand on Sunday ; (vid. Cowen’s Treatise, 135, and the cases

there cited) hut, as the defendant parted with the, watch, and thereby put it out of his power to pcfform the, contract, the plaintiff was excused from the necessity of making any demand, (Sir Anthony Main’s case, 5. Rep. 21 *r~fhe 2d resolution in that case.)

And the judgment was affirmed. 
      
      
         -The cases referred tp there, ■ though they apply tp this case in principle, yet relate more immediately to the question, whether a contract or sale made on Sunday -s void. Morgan v. Richards, (1 Browne's Penn. Rep. 171,) decides such a contract tp be void at the common law. ' Drury. v. Defontaine, (1 Taunt. 131,) denies that a sple on Sunday was void at the. common law; but admits, that where any act is forbidden under a penalty, a contract to do it, is now held void. It overrules the case of Comyns v. Boyer, (Cro. Eliz. 485,) where it was hplden that, though it be penal by statute to sell on Sunday, at a fair, yet the sale is not void. In Drury v. Defoniaine, the question was whether the sale of a horse on Sunday was void, and held that it was npt, because the statute, (29, Car. 2.) which is the Only one that can apply, says, merely, that “ no person whatsoever shall do or exercise any worldly labour, business or work, of their ordinary, callings, upon the Lord’s dayand because this sale was not work of the vendor’s ordinary calling, the sale was good. Our statute (2 R. L. 193, sess. 36, ch. 24, s. 1,) is, “ that there shall be no travelling, servile labouring or working, &c.” on that day, without confining it to work in one’s ordinary calling. In Geer v. Putnam, (10 Mass Rep, 312,) a promissory note, given on Sunday, was holden'good, though the party, whp set up the defence, had lost a debt in Connecticut on the same ground; where the Supreme Court have decided that contracts made on Sunday are void, (Vail v. Mumford, decided in 1789, cited in 1 Swift's System, 367.) that a party is not bound to perform a contract to deliver goods on Sunday, though' the agreement be express tp deliver them on that day,, vid. Avery et al. v. Stewart et al. (2 Conn. Rep. N. S. 69.) In Swan v. Broome, (1 Bl. Rep. 496,) Sunday was much considered in relation to the Courts^ and. their pyo*„ ■pess, as well as to (¡¡extracts.
     