Amis v. Kyle

• Decision Date: 31 May 1820
• Citation: 10 Tenn. 31
• Parties: AMIS v. KYLE.
• Court: Tennessee Court of Appeals

10 Tenn. 31

AMIS

v.KYLE.

Supreme Court of Errors and Appeals of Tennessee.

May Term, 1820.

[ Per Curiam.]

This was an action of covenant brought upon a sealed instrument for the payment and delivery of horses, six months after the date. The day of payment and delivery fell upon Sunday, and the defendant pleaded a tender and refusal on the day following, to wit: on Monday; to which plea, the plaintiff demurred. The question is, was the tender a good one in law to discharge the obligation; all other requisites to constitute it a good tender being admitted, the time only being excepted to.

The tender not being made at the time agreed upon by the parties, will not excuse the breach of stipulation secured by the covenant in general cases; and therefore, it was argued, that Sunday not being a day for the transaction of worldly business, the day next following, or the day next preceding, must in law be deemed the day for the performance of the covenant, and consequently the plea exhibited facts amounting to specific defence against the plaintiff's action.

In the decision of this question, it will first be necessary to examine whether the act covenanted to be done could be legally performed on the Sabbath day or not, for if it could, then the plea is no answer to the plaintiff's action, the act not being done pursuant to the stipulation; if it could not be legally performed, then only might it be necessary to enquire whether this stipulation, being in itself illegal, could be enforced at all; and if it could, then whether the day next preceding, or the day next subsequent, is the legal day for the execution of it.

It is correct as was advanced by the defendant's counsel, that no worldly labor or business ought to be carried on on the Sabbath day. It is at the least unseemly, subversive of good morals, and as it appears to me, not in unison with the principles of our holy religion. But, however reprehensible such conduct may be in the general estimation, however injurious to the social state, by inducing a laxity of manners, and thereby lessening the weight of religious obligation, yet, the only question in this court can be, could this payment and delivery of horses, from the facts appearing on this record, be legally made on the Sabbath day by the defendant to the plaintiff?

In support of the negative of this proposition, the maxim, dies dominicus¹non est dies juridica, was cited and relied upon. And it was inferred that from the spirit of this rule of the common law, the payment and delivery of the horses on Sunday were within its prohibition. The application of that maxim upon the present occasion would be giving it much too wide a field of operation. It is properly applicable to the ordinary proceedings of courts of justice. Lord Mansfield in the case of Swann v. Swoome has given a history of the law on the point. He says, that anciently, courts of justice did sit on Sundays; the ancient Christians using all times alike. This was for two reasons: first, in opposition to the Heathens, who were superstitious about the observance of days and times, conceiving some to be lucky and others to be unlucky. Secondly, to prevent Christian suitors from resorting to the Heathen courts. But three canons were made, one in the year 517, another in 895, and a third in 932, prohibiting the holding pleas and adjudging causes on the Lord's day. These canons were received and adopted by the Saxon kings, were confirmed by William the Conqueror, and Henry the Second, and so became part of the common law of England. But I find it nowhere stated, that ever a canon was adopted prohibiting common labor, or other usual worldly business on Sunday. Lord Mansfield in the case above cited observes, that fairs, markets, sports and pastimes were not unlawful to be holden and used on Sunday at common law, and therefore it was requisite to enact particular statutes to prohibit the use and exercise of them upon Sundays, as there was nothing else that could hinder their being continued in use. It is true that my Lord Coke, in his comment on the statute of Westminster the first, says, that there be dies juridici a...