
    *JOHN W. HILL, plaintiff in error, v. JOHN W. WILKER, defendant in error.
    (Atlanta,
    January Term, 1871.)
    CONFLICT OF LAWS—PRESUMPTION THAT LEX LOCI CONTRACTUS SAME AS GEORGIA LAW.—Where 'a note was made and delivered in the purchase of a mining privilege at Pike’s Peak, in Kansas, on the Sabbath day, and suit thereon is brought in the Courts of this State, and there is no evidence of the lex loci contractus produced on the trial.
    
      Held, That the presumption of law is, that the law of the place where the note was made is the same as our own; especially will such presumption be made where a contrary presumption would be unjust to the Christian civilization 'of the age and in violation of the decalogue.
    
      SABBATH—NOTE MADE IN' PURSUANCE OF TRADE O'R BUSINESS—VOID.—As the laws of this State forbid, under penalties, any violation of the Lord’s day by the transaction of any business, trade or calling, a note made upon the Sabbath day, in pursuance of trade or business, will not be enforced by the courts of this State under the laws of this State, as such contract is void.
    Contracts made on the Sabbath. Before Judge Knight, Dawson Superior Court. September Term, 1869.
    Hill and others, on the 20th of May, 1860, gave to Wilker their promissory note. Hill was sued upon it. The note did not show where it was made nor where it was to be paid, but bound the makers to pay half of the proceeds of mining in Russel’s Gulch to Wilker, till the note was paid. He pleaded that the note was given for a miner’s claim at Pike’s Peak, upon Wilker’s warranting it as very valuable, when it was worthless, and that it was made on the Sabbath, in the ordinary work and worldly business of the parties, and not in a work of charity or necessity.
    
      Upon the first plea there was much evidence, pro and con, but it is immaterial here. The evidence showed that Hill and Wilker each resided in Georgia, and, with others, were at Russel’s Gulch, Pike’s Peak, Kansas, mining, when the note was given and that it was given to Wilker for a miner’s claim in said Gulch, on the Sabbath day. The occupation of the persons there, their customs, etc., were described as follows by a witness: “Some men bought and sold claims, others dug for gold, that being the common business of everybody on the Russel’s Gulch. There was no civil government where the note was given, no State, no county, no ' political ^division, no organized territory, no legislatures, no civil laws; the miners made bur laws: when a miner was aggrieved he would call a miners’ meeting, a chairman was called, he would put the question of grievance, a majority would decide in favor of or against the aggrieved, and. that decided the matter.” No other evidence of the laws of Kansas was introduced. It was .shown that the note ivas expected to be paid at Russel’s Gulch, /out of the proceeds of mining there.
    The Court was requested to charge the jury: 1st. That if this note was executed on the Sabbath day, in the business or work of the party’s ordinary calling, and not in the prosecution or pursuance of works of necessity or charity, the contract is violative of the law, against good morals, contrary to public policy, and plaintiff cannot recover on it. 2d. If the consideration of the note was a miner’s claim, sold by one or more miners to another or others, all engaged in mining at Pike’s Peak, then the note was given in the business or work of their ordinary callings and is void. 3d. That, while lex loci contractus is the general rule, yet, though made out of this State, and not illegal where it was made, if the contract involves any thing immoral, contrary to general policy or violative of the conscience of this State, it cannot be enforced here; that a contract made on the Sabbath, anywhere, is immoral, contrary to public policy, violative of the laws of this State, and cannot be enforced 'in our Courts. 4th. The common-law was, on the 20th of May, 1860, in force in Kansas, and, by it, contracts made on the Sabbath, connected with the business and works of one’s ordinary callings, were, void. 5th. That the lex loci contractus could not apply where the contract was made át a place without organization and without law. The Court refused to give either of 'those charges^ Reading them to the jury he remarked of them as follows: “If the note was given in this State, or if it was to be enforced in Georgia by its terms, or if it was in violation of any law of the place where made, then the Courts of Georgia 'will not enforce it. If the note is void according to the law of the place where made, it is void here. I am not satisfied that the giving of a note on the Sabbath is included *in this rule. If the laws of Kansas make void notes given on the Sabath day the Courts of Georgia will carry those laws into effect; it ought affirmatively to appear that the laws of Kansas do, in fact, make such notes void; If the' inhabitants had a custom which governed these contracts, a custom which made a note void, if made on the Sabbath day, then it would be void here.” And he further charged the'jury: “If this note was made in a place, in a State, in a territory, in a municipality, where it does not appear affirmatively that its laws make void all 'contracts made on the Sabbath day, then the contract would be valid. If the contract does not violate the laws of the place where it is made, it is not void, but valid; if made in Kansas, California, Alaska, the Courts of Georgia will enforce it according to the laws of the place where made. This' is called the comity of States, the comity of nations.”
    The jury found for the plaintiff. Defendant’s counsel moved for a new trial upon the grounds that the Court erred in said charges and refusals to charge. The new trial was refused and that is. assigned as error. (This cause was continued at last term for providential cause.)
    H. P. Bell, for plaintiff in error,
    said a note so made on ■the Sabbath, in this State, is void: Code, secs. 2696, 4492, 4493, 4494; 34th Ga. R„ 407 ; 12th, 582; 35th, 176; Ang. on Dim., 62; 1st Bouv. Inst., 260; 31st Ga. R., 607. Such note was void by the common-law: 31st Ga. R., 607 ; 20th Ohio R., 81; 5th Ala. R., 104; Towl v. Laraber, 26th Me.; 10th Ala. R., 566; 13th Shepherd, 464; Lovejoy v. Whipple, 18th Vermont R.; 3 Washburn, 319; 14th N. H. R., 133; 4th Indiana, 619.
    George D. Rice, for defendant,
    replied lex loci contractus governs: . Story on Prom. Notes, sec. 166; 2 Ga. R., 165; Story on Con. of D., sec. 241; 1st Smith’s D. C., 367; Code, secs. 8, 2696. And as to notes made in this State on Sabbath, 29th Ga. R., 526; 10th Mass. R., 312.
    
      
      SABBATH—BUSINESS OR ORDINARY CALLING—SERVICE—LEGAL NOTICE.—“Sunday is dies non juridicus, and_ service cannot be made, or legal notice given on that day, or the business or the business or work of ordinary callings done. Code, § 4, subsection S, § 4579; (Bass v. Irvin,) 49 Ga. 436; (Neal v. Crew,) 13 Ga. 93; (Cheeseborough v. Van Ness,) 12 Ga. 380; (Gholston v. Gholston,) 31 Ga. 638; (Dennis v. Sharman,) 31 Ga. 607; (Hill v. Wilker,) 41 Ga. 449; (Ellis v. Hammond,) 57 Ga. 179; (Morgan v. Bailey,) 59 Ga. 683; (Weldon v. Colquitt,) 63 Ga. 449.” Sawyer v. Cargile, 73 Ga. 391.
      SAME—SAME—CONSTRUCTION OF STATUTE.—The validity of a contract executed on Sunday is to be determined alone by the statute law in force at the time of the execution of the contract, and when the statute governing the question declares that “no tradesman, artificer, workman, laborer or other person whatsoever shall do or exercise any worldly labor, business or work of their ordinary calling upon the Lord’s day (works of charity and necessity excepted)” only those contracts which may be properly included as coming within the ordinary callings of the parties thereto are affected by the inhibition of ithe statute. A marriage contract is not one which falls within the “ordinary calling” of the parties to the same. Hayden v. Mitchell, 103 Ga. 431, 30 S. E. Rep. 287, citing the principal case.
      SAME—RECEIVING VERDICT FROM JURY.—A judge of the superior court cannot open court and receive a verdict from the jury on the Sabbath-day and such a verdict so rendered is illegal and a nullity. Bass v. Irvin, 49 Ga. 436, citing the principal case.
      SAME —ISSUANCE OF WARRANT—ARRESTS—HOLDING COURT OF INQUIRY.—In a time of peace, and when the magistrates of the countryi are not overwhelmed with police business to an extent rendering it impracticable to dispatch the same without encroaching upon the Sabbath, a court of inquiry cannot be begun and held on Sunday for the examination and commitment of offenders, not even of Sabbath breakers, rioters or disturbers of public worship. Warrants may issue and arrests be made, but examination and trial cannot be commenced until Monday. Weldon v. Colquitt, 63 Ga. 449, citing the principal case.
      SAME—TAKING BAIL BOND.—It is lawful to take a bond on Sunday admitting a prisoner to bail, the same being in favor of liberty, and in the nature of a work of charity to a human being in distress. Weldon v. Colquitt, 62 Ga. 449.
    
   *DOCHRANE, C. J,

This was an action brought on a promissory note, dated May 20th, 1860, given by Hill (in conjunction with others not sued), and payable to Wilker. On the trial of the case it was admitted that the note was. made and delivered on the Sabbath day, and the consideration is expressed to be, for a mining privilege at Pike’s Peak, in Kansas, where the note was made.

The main and controlling question made by the record, Is whether a note executed on the Sabbath day, and given In the business or work of the parties’ ordinary calling, and not in pursuance of works of necessity or charity, is such a contract as may be enforced under the laws of this State.

There is nothing disclosed by this record relative to 4he laws of Kansas on this subject, and the principle of lex loci, or the doctrine of comity, as to how far Georgia would permit contracts violative of her public policy to be enforced, conceding such contracts to be valid outside her territorial limits where made, but conflicting with her own system of laws and public policy, is a question we need not decide, as there is nothing in this record which would authorize this Court to presume such law or statutory provision to exist.

Sitting as we do to administer the laws of this State, in questions to be determined by our Courts, we are necessarily. governed by the laws as we find them existing here, except proof is made of different provisions of law existing when the contract sought to be enforced was executed. As a general rule the laws of the place where proved, lex loci contractus, will be administered by Courts wherever the enforcement of the contract is invoked. But to this general rule there are exceptions; for Courts will not lend their processes or powers to enforce laws which contravene the public policy, or are immoral or in conflict with the fundamental principles of conscience or morality pervading the legislation of the State when the power of such Court is invoked, and this Court, while it broadly and in the widest sense, recognizes comity upon all questions within its legitimate scope and» *operation, has nevertheless asserted in its prerogatives of justice these exceptions to the general rule.

In this case, however, the question is what construction Courts will give to the law of contracts, where there is no proof to the lex loci. And we hold in the absence of proof to the contrary, the legal presumption is, that the lex loci is the same as our own. We are sustained in this presumption by the fact that a contrary view would suppose the people of Kansas to have annulled the decalogue, and to have permitted by law the disregard of Christian obligation, and not only forgotten but violated the injunction, “Remember the Sabbath day to keep it holy; on it thou shalt-do no manner of work.” This State for over a century has recognized upon her statutes the sanctity of the obligation, and punished its violators. All worldly labor or work done in the ordinary calling of our people on the Lord’s day is forbidden under penalties, and only such acts as necessity invokes or charity inspires are exempted from their infliction.

This Court in 31st Georgia, 607, has expressly ruled that the payment of money on a note was a transaction in violation of the law, it being made on the Lord’s day or Sunday, and dfd not constitute such an acknowledgment of the debt as would raise the presumption of a promise sufficient to take the case out of the Statute of Limitations; that the act of paymer’t was void, and all the obligations growing out of it were null and void.

And this is the almost unbroken current of American authorities. “A promissory note given on a -Sunday is void as between the parties, and a subsequent promise to pay it will not make it valid:” Pope v. Lynn, 50 Maine, 83. “A note signed and delivered on Sunday is invalid:” 48 Maine, 198. A note given on Sunday for the price of a horse sold on that day is void: 26 Maine, 464. And the same doctrine is laid down in the following cases: 38 Mississippi, 344; 16 Iowa, 49; 9 Minnesota, 194; 8 Minnesota, 13 and 41; 99 New Hampshire, 500; 14 New Hampshire, 133; 19 New Hampshire, 233; 41 New Hampshire, 215; 4 Indiana, 619; 13 Indiana, 565; 1 Hant’s cases, Tennessee, 261; 3 Wisconsin, *343; 5 Alabama, 467; 10 Alabama, 566; 18 Alabama, 280; 25 Alabama, 528; 27 Alabama, 281; 18 Vermont, 379; 24 Vermont, 317; Michigan Reports, 2 Douglass, 73. And we might expand, if we had time, this cloud of authority in support of a doctrine almost without exception, and those rather in modification of the rule than in conflict with it.

Grouping however, this mass of authority from every section of this continent, we think it would be unjust to the Christian civilization of this age, to permit any- other presumption than the one we have laid down, to-wit: that, in the absence of proof of any law to the contrary, the presumption is that the law of this contract must be held to be the same as our own. And as our Courts have held all contracts made in the pursuance of the ordinary callings or business on the Lord’s day or Christian Sabbath, to be void, it follows that this Court so adjudges in the case at bar, and the judgment of the Court below is, on this ground, reversed.  