SAN BERNARDINO, CAL., Jan. 6, 1883. MY DEAR SIR-Your favor of December 22, 1882, is received and contents noted. The Civil Code of California which has been in force since March, 1872, has been very beneficial in its operation; the arrangement of the various subjects is orderly and convenient; its declarations of the principles of the common law accurate and comprehensive. The use of it in our courts greatly facilitates the administration of justice, while affording authoritative and accurate rules in many cases where conflicting decisions of the courts of the various States had rendered matters uncertain. The profession of this State are well satisfied with this Code and would by no means dispense with it. There is no probability that it will ever be repealed. Yours truly, WILLIAM M. STEWART. HON. DAVID DUDLEY Field, 115 Broadway, N. Y. SAN FRANCISCO, CAL., Dec. 28, 1882. HON. DAVID DUDLEY FIELD, New York: DEAR SIR-I take the earliest opportunity of answering, but hastily, your favor of December 14. So far as my observation extends, the Codes have all worked well in this State. The Civil, Political and Criminal Codes all went into operation January 1, 1873. This was three years after I ceased to be Chief Justice of the Supreme Court of the State, and became United States Circuit Judge for the ninth circuit. Since I have occupied the position of United States Circuit Judge, the class of questions litigated has been to a great extent different from those arising in the State courts and I have had much less to do with State statutes, and so favorable an opportunity of observing the practical operation of the Code. But as far as my experience and observation go, the result seems decidedly favorable to the Code; and I think such are the views of our leading lawyers and State Judges. I have spoken to several attorneys upon the subject, and this is the view generally expressed. It really seems remarkable to me that the changes could have been made, however desirable, without producing greater temporary inconvenience. The fact that so little inconvenience resulted argues well for the Codes. Of course it is impossible, in view of our limited intellectual powers, to provide specifically for every conjunction of circumstances that is possible to arise; but as to the great body of the laws, the Codes present a more definite, concise, specific and unmistakable statement of the laws in force, which is also more readily found and understood, than is possible to be found in the common-law system independent of Codes. If a case arises which is not clearly provided for, the courts will of course, as heretofore, be compelled to determine the case upon the nearest analogies, and even to resort perhaps, to the analogies of the common law. As for myself, I should not hesitate to adopt the Codes. I think it will simplify the laws, and greatly facilitate their administration. Respectfully yours, LORENZO SAWYER. SAN FRANCISCO, CAL., May 2, 1882. MY DEAR SIR-Your favor of the 24th of April is at hand. I avail myself of the opportunity to renew a correspondence, which when maintained was a source both of pleasure and profit to myself. When the Codes were adopted in California there was some opposition to the system, but much less than was anticipated. After ten years experience the bench and bar of the State, with a unanimity most remark no op able, approve their workings and there is now position to the system of law reform which the Codes represent. It will always be matter of regret that the great State of New York did not avail herself of the opportunity offered by your labors, and at once adopt the Codes prepared. Her example would have been followed by sister States, and ere this, Codes would have been the rule. Of course as a Californian, my regrets are tempered by the knowledge that New York's opportunity lost was an opportunity found for my adopted State; one which allowed California to to earn and wear the proud distinction of being the first English-speaking community to supplement written Constitutions with written laws. Trusting that at this hour New York may reclaim as far as possible the opportunity thrown away; acknowledging our great obligations to yourself-with kindest wishes for your success, I am, Sincerely yours, HON. DAVID DUDLEY FIELD, CREED HAYMOND. 115 Broadway, N. Y. SAN FRANCISCO, CAL., Dec. 21, 1882. HON. DAVID DUDLEY FIELD, New York City: MY DEAR SIR-I have been shown the report of a special committee of the Bar Association of New York, urging the rejection of the proposed Civil Code. To this report are annexed extracts from two letters written by John T. Doyle of this city, to Albert Matthews, one dated April 22, and the other May, 28, 1882. Having been chairman of the commission which framed the Codes of California, or rather which adapted your work to the laws of California, I may be fairly presumed to have some knowledge of their history. Prior to the appointment of the committee of which I had the honor to be chairman, a revision committee had xeisted in California, but that commission did very little work, if any. When the law was passed providing for the commission of which I afterward became a member, it was feared that no better results would follow, and for this reason the existence of the commission was limited to about twenty months. To do the work in that period required the constant, untiring efforts of every member of the commission, and it was not and could not be expected that that work should be perfect. At the request of the commission, and prior to the presention of its work to the Legislature, Governor Booth named two very distinguished gentlemen as an advisory committee-Siduey Johnson, who had formerly practiced at New Orleans and was a civil lawyer of great ability, and Charles A. Tuttle, whom you know. After the adoption of the Codes it was thought advisable by the governor of the State and by the commission, that a careful and thorough revision should be made, and again, at the suggestion of the Code commission, the governor appointed a commission consisting of Mr. Justice Field, Mr. Jackson Temple, a justice of the Supreme Court of California, and John W. Dwinelle, an eminent member of the legal profession, to examine the Codes and to suggest such amendments as their judgment might dictate. This commission spent several months in the work, and suggested the amendments which were adopted at the first session of the Legislature thereafter, and to which Mr. Doyle in his letter refers. Very many of these amendments relate simply to changes in the language; for instance, as you will remember the words “primary evidence," were used in your draft of New York Codes in the place of “prima facie" evidence. The Code commission, of which I was a member, followed your draft. The last commis sion, out of deference to the opinion of the profession in this State, which did not seem to like the change, restored the words "prima facie." As the word "primary" was used in very many sections this change alone necessitated many amendments. Mr. Doyle seems to think that the fact that the most of the legislation of the State is in the shape of amendments to the Code is an evidence that the Codes have not fulfilled the purpose for which they were adopted. My idea has always been that, when the time shall come that no other bills are introduced in a legislative body than amendments to existing Codes, we shall have a set of laws as nearly perfect as mankind can make them. When that time comes the Codes will have covered the whole field of legislation. Mr. Doyle complains that the Legislature, by amending one section of a given Code, may do great injury by reason of the Legislature not having knowledge of other provisions of the same Code. If,this objection can be urged against a Code system, it is overwhelming when urged against the system which existed in California prior to the adoption of the Codes. Thousands of statutes and the whole body of the common law of England, so far as it was applicable, were in force in California, and the average member of the Legislature was then utterly at a loss to determine what the effect upon that immense body of laws any given legislative act would have. The political Code of California contains about 4,500 sections, and covers almost every subject of legislation relating to governmental affairs. California, in territorial extent, is an empire; its Legislature deals with every interest known to other States in the Union, and with many that are elsewhere unknown. The political Code treats of the sovereignity of the people of the State, of their political rights, of the persons subject to its jurisdiction, political divisions, seat of government, legal distances, the public officers, their duties, of elections, of education, State militia, of the public institutions for the insane, deaf, dumb and blind, State library, Supreme Court library, and various other public institutions, of the public ways, of immigration, preservation of the public health, registries of birth and marriage, of dissection, of cemeteries, lost and unclaimed property, marks and brands, weights and measures, hours of labor, time, money of account, auctions, fires and firemen, licenses, the public lands of the State, Yosemite Valley, and Big Tree Grove, State burying ground, of revenue in every form, the government of cities and the duties of officers thereof. Every change made in the revenue system, every change relating to the duties of a public officer in the the subject. and this change of view was the result of his observations of the working of the Codes. It is unusual now to hear any one object to the system; on the contrary, there is a very strong feeling in the profession, growing every day, that there should be a constitutional amendment passed, under which a permanent Law commission should be established, the members of which should hold office for long terms, and be disqualified from holding any other office, and to which commission all bills introduced into the Legislature should be referred for form and style. That by the commission such bills should be placed in the form of amendments to the Codes. I am satisfied that but a short time will elapse before something of this kind will be introduced into the fundamental law of California. If you desire it, I think I could get a concurrence in these views from nearly all the leading members of the profession in this State. With kind regards, I am very truly, Your friend, CREED HAYMOND. } THE ARLINGTON, WASHINGTON, D. C., Feb. 2, 1883. HON. DAVID DUDLEY FIELD, New York: MY DEAR SIR-I have seen and read the letter of the Hon. Creed Haymond to you, under date December 21, 1882, in relation to the Codes of California and the estimation in which they are held by the legal profession and the people of that State. I take occasion to say that I concur fully in all that Mr. Haymond has said. The adoption of the Code system in California has been a step in advance which the people of California will never retrace. Yours truly, S. W. SANDERSON. AGENT LIABLE TO PRINCIPAL FOR PROCEEDS OHIO SUPREME COURT, JANUARY TERM, 1883. NORTON V. BLINN.* While courts will not enforce an illegal contract between the parties, yet if an agent of one of the parties has, in the prosecution of the illegal enterprise for his principal, received money or other property belonging to his principal, he is bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction. State, every change relating to our great commercial A interests, must be by way of an amendment to the political Code. Taxes are levied every two years and and the levy is made by an amendment of a given section of the Code. It follows therefore that a vast field of legislation is covered by that Code, and that when amendments to it become unnecessary we shall have no further use for the legislative bodies. This it seems to me, is an argument in favor of rather than against the Code system. The Civil Code of California, although a new Constitution, has been adopted, stands about as it did when the work of the last commission was completed, and as an evidence of the satisfaction of the people with it 1 can point to the fact that at the last session of the legislature but one single amendment to that Code was adopted, and that amendment related to religious, social and benevolent corporations. You were well acquainted with the late Judge Delos Lake, one of the ablest lawyers of our State, one of the most violent opponents of a Code system. Prior to his death he had materially changed his views upon CTION to recover moneys advanced to make purchases and profits on purchases made. The facts were these: About the first of May, 1872, Chester Blinn placed in the hands of Jesse S. Norton, at Toledo, Ohio, the sum of $500 to be by him invested as agent for Blinn in options on wheat at Milwaukee, Wisconsin, or Chicago, Illinois, with instructions to invest the money as he would his own. Norton, through his brokers, James Keller & Co., immediately purchased in his own name, but for the sole benefit of Blinn, five thousand bushels of wheat at seller's option for June delivery at $1.42% per bushel, and deposited the money of Blinn as a margin of ten cents per bushel. At the date for delivery the price of wheat had advanced so that a profit of $325 was realized on the transaction. This money, principal aud profit, was reinvested by Norton in subsequent transaction of like nature for Blinn's benefit, but by reason of a decline in the market price of wheat in the latter part of June, the whole amount was lost. * Appearing in 39 Ohio State Reports. These transactions were mere speculations or ventures on the future price of wheat, without any intention that the wheat would be either paid for or delivered, but with the intention that settlement between the buyer and seller would be made on the difference between the price stated in the contract and the market price at the date named for delivery. Such transactions were unlawful in the States of Illinois and Wisconsin, as well as in the State of Ohio. The original suit was brought in the Court of Common Pleas of Lucas county by Blinn against Norton to recover the sum of $525 (the sum advanced aud profit on the first venture), with interest. On the trial testimony was offered by the plaintiff tending to prove that defendant had no authority to invest plaintiff's money save in a single purchase, namely, the purchase of 5,000 bushels as above stated, whereupon the plaintiff requested the court to instruct the jury as follows: If the jury shall find from the testimony, that on or about the time stated in the petition, the defendant received from the plaintiff the sum of $500 of the money of the latter, under an arrangement that the same should be invested by the defendant in wheat transactions, of the illegal character mentioned in the answer, for the benefit of the plaintif; that said money was so invested by the defendant, and a profit realized thereon; and that before the commencement of this action said sum of $500, and the profits so made, came into and are still in the hands of the defendant; or that he received credit therefor in the final settlement of his accounts with the brokers through whom said business was transacted, then the plaintiff is entitled to recover said money from the defendant; nor in such case, can the defendant avoid his liability to account for said moneys by showing that by the understanding between the plaintiff and himself, said money was to be employed in illegal transactions in wheat of the nature stated in his answer; and that said money was employed, and said profits realized in such transactions." Which charge the court refused to give, and to such refusal the plaintiff excepted. The verdict of the jury was in favor of the defendant, and judgment was rendered accordingly. This judgment on petition in error was reversed by the District Court, and this proceeding is to reverse the judgment of the District Court. Haynes & Potter, for plaintiff in error. C. H. Scribner and J. M. Ritchie, for defendant in error. MCILVAINE, J. While it has ever been the policy of the law to leave the parties to an illegal transaction where it finds them by refusing relief to either in respect thereto, it has on the other hand never regarded property or money employed therein or produced thereby as common plunder to be seized or retained by others in no way interested in such business. The question however in this case, arising on the refusal of the Court of Common Pleas to charge the jury as requested by the plaintiff is: May an agent who has transacted illegal business for his principal and has received money belonging to his principal and accruing from such business, defend himself, in a court of law, against liability to account theretor, by showing such unlawful business and his connection therewith as such agent? If the agent receiving such money had not been employed in conducting such business, it would seem to be quite plain, upon principles of purest morality, that he should account to his principal therefor; but where the sole employment of the agent was to manage and conduct the unlawful transactions, it seems to me, a much more difficult question arises. In the latter case the agent is a particeps criminis. In offenses against trade, and the like, the law, regulating the administration of penal justice, does not recognize the relation of principal and agent, unless the agent be an innocent instrument merely. In such cases the guilty offenders against the law are all principals; hence as between such, with some show of reason it might be said, that the law will afford no redress by civil remedies. The rulings upon this question however have been so uniformly the other way, it becomes our duty to follow them, unless we find them totally repugnant to public policy and morality. Upon a careful examination of the authorities, we find no such repugnancy -indeed they commend themselves to our judg ment. In the first place the rule which denies civil remedies in such cases applies only to the parties to the illegal transaction. Public policy does not require that one engaged in an unlawful enterprise should, by pleading it, shield himself from liability for the wages of his employees, agents or servants. It is enough that the rule should be enforced as between those who have some interest in the enterprise as principals. In the second place, it is contrary to public policy and good morals, to permit employees, agents, or servants to seize or retain the property of their principal, although it may be employed in illegal business and under their control. No consideration of public pol icy can justify a lowering of the standard of moral honesty required of persons in these relations. And again if parties to an illegal contract waive the illegality, and honestly account as between themselves, no other person can be heard to complain of such accounting. Hence we think, that if in making such settlement one of the guilty parties should deliver property or money to an agent of another to be delivered by the agent to his principal, such agent is bound to account therefor to his principal. A leading case on this question is Tenant v. Elliott, 1 Bos. & Pul. 2, where the defendant, a broker, affected an illegal insurance for the plaintiff on a ship, and after a loss the underwriters paid the amount of the insurance to the defendant, who refused to pay the same over to plaintiff, on the ground that the insurance contract was illegal. Judgment for the plaintiff. Eyre, C. J., said: "The defendant is not like a stockholder. Whether he who has received money to another's use on an illegal contract, can be allowed to retain it, and that not even at the desire of those who paid it to him? I think he cannot." In Brooks v. Martin, 2 Wall. 70, it was held by the Supreme Court of the United States, that "After a partnership contract confessedly against public policy has been carried out, and money contributed by one of the partners was passed into other forms-the results of the contemplated operation completed, a partner in whose hands the profits are, cannot refuse to account for and divide them on the ground of the illegal character of the original contract." In Baldwin v. Potter, 46 Vt. 402, it was held that "an agent is bound to account to his principal for money received in the course of his agency, for goods sold by his principal on orders obtained by him as such agent on commission, although such sales as between the principal and purchaser be illegal and void." In Evans v. Trenton, 4 Zab. 761, it was held "the mere agent of a party to an illegal transaction cannot set up the illegality of the transaction in a suit by his principal to recover money that has been paid to such agent for his principal on account of the illegal transaction. This defense can be set up only by a party to the illegal transaction." In this case the illegal transaction was accomplished through the agent. See also Wood on Master and Servant, section 202, where it is said: "While the courts will not enforce an illegal contract, yet if a servant or agent of another has, in the prosecution of an illegal enterprise for his master, received money or other property belonging to the master, he is bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction." The doctrine of these authorities, and many others which might be cited is recognized, applied and enforced in German, etc., Church v. Stegner, 21 Ohio St. 488, wherein it is held: "While a promissory note given to and discounted by a corporation for a loan of money in the course of an unauthorized banking business will not be enforced, yet where the treasurer of such corporation has taken and appropriated to his private use moneys deposited with it contrary to the statute against unauthorized banking, and being unable when called on to refund the same, secures it by his promissory note, such note will not be held to have been given in the course and furtherance of an illegitimate business, and an action will lie thereon." Judgment of District Court affirmed. COMPUTATION OF TIME-WHETHER SUNDAY INCLUDED OR EXCLUDED. MAINE SUPREME JUDICIAL COURT AUGUST 25, 1883. CRESSEY V. PARKS.* When a statute gives a definite number of days for doing an act, and says nothing about Sunday, the days are consecutive, and include Sunday. And when the day on which the act is to be done falls on Sunday, the act must be done on the next day. When chattels distrained are to be sold in a specified time, the day of seizure is excluded, and the day of sale included in the reckoning. Thus goods seized on the eighth are to be sold on the twelfth, when they are to be sold in four days after seizure. Α' CTION of trespass. The opinion states the facts. Case brought here on exceptions. By stipulations in the exceptions, if they were not sustained, the defendant was to be defaulted, and damages were to be assessed by the clerk. D. F. Davis and C. A. Bailey, for plaintiff. Barker, Vose & Barker and A. L. Simpson, for defendant. APPLETON, C. J. This is an action of trespass against the defendant, a collector of taxes for the town of Glenburn, for seizing and carrying away six tons of the plaintiff's hay for the non-payment of his taxes and selling the same. By Revised Statutes, ch. 6, § 104, "If any person refuses to pay the taxes assessed against him * * * the collector may distrain him by his goods and chattels * ** and keep such distress for the space of four days at the expense of the owner, and if he does not pay his taxes within that time, the distress shall be openly sold at vendue by the officer for its pay The hay was seized for taxes on Saturday, January 8th, and advertised for sale on Thursday, the thirteenth, and thence the sale adjourned to Friday, the fourteenth, when the property seized was sold. In computing time, the day of the seizure is not to be reckoned. The rule is thus stated by Bishop in his work "On the Written Laws, 107." When a statute specifies a particular number of days, weeks, or years the computation should be made by adding, for in*To appear in 75 Maine Reports. stance, to the ascertained number of the day in the month, the statutory number. Thus an enactment passed on the fifth day of the month, to take effect in ten days, will go into operation on the fifteenth day of the month, because the sum of ten and five is fifteen. The rule of reason therefore may be stated to be, "that of the two extreme days, the one shall be included and the other excluded in the reckoning." The term specified by the statute for sale is four days after seizure. The collector keeping the property seized beyond the time in which it could be legally sold, is thereby a trespasser ab initio. Brackett v. Vining, 49 Me. 356; Farnsworth Co. v. Rand, 65 id. 19. The statutes in Massachusetts on this subject are similar to those of this State. The time when the sale was to be made became an early subject of discussion. In Caldwell v. Eaton, 5 Mass. 399, Parsons, C. J., in considering the question says: "The notice must be given forty-eight hours before the expiration of the four days. It is then a necessary consequence that they must be sold at auction, after they have been kept four days and no longer." In Titcomb v. Ins. Co., 8 Mass. 334, Sewall, J., says: "Shares taken on execution are to be exposed for sale in the same manner as by law prescribed when personal estate is taken on execution. The time for this purpose, allowed and determined by the general statute, is four days. Now when four days had expired and no sale had taken place, a new notice was necessary to legalize a subsequent sale." In Howe v. Starkworth, 17 Mass. 241, Parker, C. J., citing the last named case, says: "The sale under the execution would be bad by suffering more than four days to elapse between the seizure on execution and the sale." To the same effect is the decision in Pierce v. Benjamin, 14 Pick. 356. Such too is the recognized law in this State. "The day of seizure," remarks Shepley, C. J., in Tuttle v. Gates, 24 Me. 395, is not to be reckoned as one of the four, and the sale cannot be legally made after the fourth day." The day of seizure not being reckoned, the sale must be on the fourth day. Ordway v. Ferrin, 3 N. H. 69. If the day of the seizure as well as that of the sale, were both excluded, the defendant would be allowed parts of both those days beyond the time required by law. Bemis v. Leonard, 118 Mass. 502. The sale in the case at bar should have been on the twelfth. The defendant is not to have four whole days and parts of two others. The rule in England is that in case of goods distrained and sold within four days, the days must be calculated inclusively of the last, and exclusively of the day of taking. Robinson v. Waddington, 66 E. C. L. 753. In the Massachusetts statute, the phrase "for the space of four days" occurs as in that of this State. But the space of four days" embraces no more than four days. Such too has been the practical construction, as is clearly shown by the many decisions to which reference has been made. The main ground of defense is that Sunday is not to be reckoned as a day. The statute provides that the distress is to be kept "for the space of four days at the expense of the owner," and if the tax be not paid within that time, the distress shall be sold at vendue by the officer for its payment. The expression, "the space of four days," excludes no day. It implies consecutive days. "Sunday," remarks Byles, J., in Peacock v. The Queen, 93 E. C. L. 264, "at common law, is just like any other day." "Sunday," observes Lord Ellenborough, in Dreswell v. Green, 14 East, 537, "is as much a day to occupy space of time as any ohert day." When the statute prescribes the number of days within which au act is to be done, and nothing is said about Sunday, it is to be included. It was held in Carville v. Additon, 62 Me. 459, that it was no objection to the legality of the collector's proceedings that one of the four days during which the distress was kept was Sunday. So in State v. Wheeler, 64 Me. 532, it was decided the draft for jurors was valid, although one of the four days before the drafting was Sunday. Whenever the Legislature intend Sunday shall be excluded from the days within which an act shall be done, it is done in express terms, as in chapter 84, section 3. It is never left to implication. When goods are sold on execution, Sunday is excluded by statute from the four days during which the goods seized are to be kept. But Sunday is not excluded where the collector distrains for non-payment of taxes. Revised Statutes, ch. 6, § 104. "Where an act of Parliament gives a specified number of days for doing a particular act, and says nothing about Sunday," observes Hill, J., in Ex parte Simpkin, 2 E. & E., "the days are consecutive days, including Sunday." In Asmole v. Goodwin, 2 Salk. 624, it was held "as to business done out of court, as rules to plead within four days, etc. Sundays are reckoned the same as other days." The uniform current of authorities is in conformity with this decision up to the present time. Thus in Ex parte Simpkin, 2 Ellis & E. 392, it was decided that when an act of Parliament gives a specified number of days for doing a particular act and says nothing about Sunday, the days are consecutive days including Sunday. So in this country. In King v. Dowdall, 2 Sandf., section 131, Oakley, C. J., uses this language: "We know of no rule or principle by which it (Sunday) is to be excluded from the computation when it is an intermediate day," and we have supposed the law on the subject to be settled. The distress for taxes may be made on any day of the week, Sunday excepted. The law has not prohibited seizure on any week day. But the property seized cannot be sold on Sunday, not because Sunday is not a day, but because it is a day on which, by statute, the execution of civil process is prohibited. Revised Statute, ch. 81, § 78. No sale can be made on the preceding Saturday, when the seizure was made on Wednesday, because that would be against the provision of the statute requiring the officer to keep the property distrained four days. When then is the sale in such case to be made? The statutes must be construed together. The seizure may be made on any secular day. The property seized must be kept four days by statute. Its sale is prohibited on Sunday. Being lawfully seized, it must be sold. As it cannot be legally sold within three days, it must be sold on Monday because all official or executive action is prohibited on Sunday. The true rule on this subject is laid down In the matter of Goswiler's Estate, 3 Penn. 200, thus: "Whenever by a rule of court or an act of the Legislature, a given number of days are allowed to do an act, or it is said an act may be done within a given number of days, the day in which the rule is taken or the decision is made is excluded, and if one or more Sundays occur within the time, they are counted unless the last day falls on Sunday, in which case the act may be done on the next day." To the same effect is the opinion of the Supreme Court of Rhode Island in Barrows v. Eddy, 12 R. I. 25. In Hughes v. Griffith, 106 E. C. L. 323, it was held in the computation of time, that when the last day falls on a Sunday and the act is to be done by the party, it may be done on the next practicable day. The original notice being defective, no postponement can cure the original defect. "A valid sale cannot be made at an adjournment which would have been invalid if made on the day adjourned from." Wilson v. Sawyer, 61 Me. 531. Defendant defaulted. CONTRACT TO RUN BOAT ON SUNDAY INVALID. UNITED STATES CIRCUIT COURT, E. D. MICHIGAN, JUNE, 1883. GAUTHIER V. COLE. A contract which by its terms must be performed in part on Sunday made in Michigan to run a boat from one point to another in that State is void, though the boat in making the trip must pass through Canadian waters. ACTION on a contract. Motion for a new trial after a verdict directed for the defendants, on the ground that the contract was to be performed on Sunday. F. H. Canfield, for plaintiff. W. H. Wells, for defendants. BROWN, J. The contract provided that defendants should, upon request, send one of their steamers, in continuation of its Saturday's trip, from Alpena to the Duck islands or Cockburn island, upon the east shore of Lake Huron. Plaintiff's own testimony showed beyond contradiction that the steamers, upon their Saturday's trips from Bay City to Alpena, did not arrive at Alpena until about 3 o'clock Sunday morning, and that they advertised to leave Alpena for Bay City at 6 o'clock on Monday morning. The contract must therefore be performed between these hours. The testimony further showed that the usual running time from Alpena to the islands and back was 12 hours, and that the steamer would be detained there, lading and unlading, about two hours. That would bring her back to Alpena about 6 o'clock Sunday evening. * Comp. Laws, section 1984, provide that "no person shall keep open his shop, warehouse, or work-house, or shall do any manner of labor, business, or work, except only works of necessity [and charity, ** on the first day of the week." Defendants' contention that this statute must be speciall pleaded cannot be supported. It is true that in England, under the pleading rules of Hilary term, 4 Wm. IV., illegality of consideration must have been specially pleaded (Potts v. Sparrow, 1 Bing. N. C. 594); but the rule was otherwise at common law. 1 Chitty, Pl. (6th ed.) 511. In this State illegality of consideration may be shown under the general issue. Myers v. Carr, 12 Mich. 69; Dean v. Chapin, 22 id. 276; Hill v. Callaghan, 31 id. 425; Snyder v. Willey, 33 id. 489. This was also held to be the proper practice under the common-law system of pleading by the Supreme Court of the United States in Craig v. Missouri, 4 Pet. 410, 426. It is difficult, in this case, to see how the plaintiff can escape the application of the statute. Not only are contracts made upon Sunday void, but contracts to do any manner of work on Sunday are equally within the inhabition of the act. Allen v. Duffie, 43 Mich. 5; Smith v. Wilcox, 24 N. Y. 353; Berrill v. Smith, 2 Miles (Pa.), 402; Nodine v. Doherty, 46 Barb. 59; Adams v. Gay, 19 Vt. 358; Slade v. Arnold, 14 B. Mon. 287; Palmer v. City of New York, 2 Sandf. 318; Phillips v. Innes, 4 C. & F. 234. Nor does the fact that the contract is maritime take it out of the operation of the statute. While the ordinary labor incident to the navigation of a vessel must undoubtedly go on upon Sunday as well as other days, it is neither usual, nor under ordinary circumstances lawful to load or unload upon that day, or to require seamen to do any manner of work not demanded by the exigencies of the voyage. Thus in Pute v. Wright, 30 Ind. 476, plaintiffs agreed to purchase of defendants 3,000 barrels of flour for the purpose of shipping the same to New Orleans, and in anticipation of the completion of said purchase, engaged a steamer to take the |