
    BERRILL v. SMITH.
    April 25, 1840.
    
      Rule to show cause why the nonsuit should not be taken off,
    
    1. Under the act of the 22d April, 1794, a contract made on a Sunday, for the hire of horses, to be used on an excursion of pleasure on that or any other day, is void, and the hiree cannot recover.
    2. Under the same act, a contract made, on Saturday for the hire of horses, to be used on an excursion of pleasure on Sunday, is void,: and plaintiff cannot recover.
    
      THIS case was called for trial before Judge Stroud and a jury. It was an action brought for the hire of certain horses by the plaintiff to the defendant. On the trial of the cause, after the plaintiff’s evidence had been heard, the judge directed a nonsuit to be entered, under the act of 11 March, 1836. The points ruled by the judge were as follows, viz.:
    “ 1. That a contract made on a Sunday for the hire of horses, to be used on an excursion of pleasure on that or any other day, was void.
    “ 2. That a contract made on a Saturday for the hire of horses, to be used on Sunday on an excursion of pleasure, was void.
    “In neither case could the plaintiff recover on such contract.”
    The plaintiff obtained this rule to show cause why the nonsuit should not be taken off, and assigned for reasons that the judge had erroneously ruled the points above stated.
    
      Vandyke, for plaintiff.
    Kennedy, for defendant.
    The counsel cited 11 E. C. L. R. 261; 3 Watts 263; Story on Bailments; 6 Watts 231; 1 Taunt. 136; 1 Binn. 118; 7 Bar. & Ores. 596; 5 S. & R. 302.
   Per Curiam.—

This rule must be discharged. It is not necessary to determine whether the contracts on which the questions in this case arise were void at common law or under the statute of 29 Car. 2, c. 71, sect. 1. Many nice distinctions have been drawn as to contracts for “ worldly business or employment” on a Sunday, both in England, under the statute, and in this state, under the act of 22d April, 1794 (Stroud's Purd. tit. Sunday). The latter act is more comprehensive than the English statute, for, in addition to its prohibition of “ worldly employment or business, it makes penal the practice of “ sports or diversion” on Sunday. Any contract, the consideration of which' is a thing prohibited under a penalty, is void. 1 Taunt. 136; Carth. 252; 5 Vin. Ab. 507; 4 Dall. 268; 4 Yeates 54.

In the case before us, the contract made on Sunday for the hiring of the horses, whether for worldly business or for purposes of pleasure, is void. Kepner v. Keefner, 6 Watts 231. The contract made on Saturday for the performance of an illegal act on Sunday, being founded on an illegal consideration, and standing in the same relation as a contract for gambling, is equally void, and the plaintiff was not entitled to recover.

Rule discharged.  