Berry v. Clary

Decision Date25 August 1885
Citation77 Me. 482,1 A. 360
PartiesBERRY v. CLARY.
CourtMaine Supreme Court

Assumpsit on a promissory note. Plea, general issue with brief statement that the note declared on was made on Sunday. The superior court rendered a decision for the plaintiff, and the defendant alleged exceptions.

A. G. Andrews, for plaintiff.

Herbert M. Heath, for defendant.

FOSTER, J. The note in suit was made and delivered on Sunday. The defendant, therefore, must prevail, unless chapter 194, Pub. Laws 1880, (Rev. St. c. 82, § 16,) passed nearly four years after the date of the note, is retroactive, and precludes the defense set up in this suit. The statute provides that "no person who receives any money or valuable tiling as the consideration for a contract, express or implied, made and entered into on Sunday, shall be permitted to defend any action upon such contract on the ground that it was so made and entered into on Sunday, until he shall restore such consideration so received: provided, that nothing herein contained shall apply to any action now pending."

It is admitted that the consideration received for the note has not been restored. We are satisfied that the language of the statute in question is sufficiently comprehensive to apply to transactions arising, not only after its enactment, but also to those previously existing, with the exception therein named of actions pending at the date of its passage. In construing a statute like this, the court must consider the nature and reason of the remedy, and, from the language used, give effect to the intention of the legislature, if that can be ascertained. "And such a construction ought to be put upon a statute as may best answer the intention which the makers had in view." 1 Bac. Abr. 5. This intention is to be sought for by a careful examination and consideration of all its parts, and not from any particular word or phrase that may be contained in it. This is the guiding star in the construction of every statute. What was the object to be accomplished by this statute? Undoubtedly to make a party defendant to a Sunday contract do equity. While it is true that the verb "receives "is in the present tense, yet it is common knowledge that such forms of expression are oftentimes used in statutes, and when applied to the remedy are as properly appropriate to suits on past as future transactions. And while the proviso excluding its operations from pending suits, if taken alone, may not be sufficient of itself to embrace suits afterwards commenced on past contracts, nevertheless it should be considered with the other parts of the statute in ascertaining its...

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25 cases
  • State ex rel. Roth v. Waterfield
    • United States
    • Oklahoma Supreme Court
    • October 17, 1933
    ... ... It ... simply acts upon the remedy provided by law. Plaintiff had no ... vested right in any particular remedy, Berry v ... Clary, 77 Me. 482, 1 A. 360, so long as his right of ... action is not abolished and substantive right remains, ... Hewitt Logging Co. v ... ...
  • State ex rel. Roth v. Waterfield
    • United States
    • Oklahoma Supreme Court
    • October 17, 1933
    ...law to enforce the remedy. It simply acts upon the remedy provided by law. Plaintiff had no vested right in any particular remedy ( Berry v. Clary, 77 Me. 482), so long as his right of action is not abolished, and substantive right remains. Hewitt Logging Co. v. Northern Pacific Ry. Co. (Wa......
  • Kelly v. Dewey
    • United States
    • Connecticut Supreme Court
    • March 31, 1930
    ...841; Thompson v. Bulson, 78 Ill. 277; Gates v. Salmon, 35 Cal. 576, 95 Am.Dec. 139; Davey v. Burlington R. Co., 31 Iowa, 553; Berry v. Clary, 77 Me. 482, 1 A. 360; State v. Mayor, 35 N.J.Law, 197; Holl Deshler, 71 Pa. 299; Catlin v. Hull, 21 Vt. 152. A legitimate and often helpful means of ......
  • Farnsworth Loan & Realty Company v. Commonwealth Title Insurance & Trust Company
    • United States
    • Minnesota Supreme Court
    • June 28, 1901
    ...v. Mayor, 27 N.J.L. 185, 197; Gibson v. Hibbard, 13 Mich. 214; Harris v. Rutledge, 19 Iowa 388; Foster v. President, 16 Mass. 244; Perry v. Clary, 77 Me. 482; v. Singer, 90 Wis. 608; Dillon v. Linder, 36 Wis. 344; Campbell v. Iron-Silver Mining Co., 27 C.C.A. 646. The amount sought to be re......
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