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county, by F. M. Overton, his deputy. In the petition it is alleged that the word "taken" as used in the certificate of the deputy clerk, was not intended to imply that the clerk had "taken" the bond as of his own authority, not in the sense in which the term is used in the statute authorizing bail, but merely in a clerical sense; that the clerk and his deputy, and each of them, did not agree to said bail, and approve said bail bond; but that the same was taken and approved by Jasper Nelson, sheriff of said county, before the defendant Boswell was released from custody. Construing the bond and the petition together, it is clearly alleged that the sheriff accepted and approved the bond, and under the authority of the Territory ex rel. Thacker, County Attorney, v. Sellers et al., 15 Okl. 419, 82 Pac. 575, he was authorized to do so. Bail is a delivery, or bailment, of the person to his sureties upon their giving (together with himself) sufficient security for his appearance; he being supposed to continue in their friendly custody, instead of going to jail. 4 Bl. 297. A similar idea as to the accused being in the custody of his bail, is found in our statutes. Section 5775, Wilson's Statutes, authorize the sureties on his bond to cause his arrest at any time before they are finally discharged, and at any place within the territory, and surrender him, without warrant; and at the request of his bail, the court, judge, or magistrate, shall recommit the party as arrested to the custody of the sheriff or other officer, and the party so committed shall therefrom be held in custody until discharged by due course of law. In the case at bar, Boswell was under indictment charged with the commission of a felony; was in the custody of the sheriff and confined in the county jail for safe-keeping. The defendant sureties herein voluntarily appeared, and, at their own request, jointly and severally acknowledged themselves to be indebted to the territory of Oklahoma in the sum of seven hundred dollars ($700.00) to be made and levied on their respective goods, chattels, lands, and tenements; to be void, however, if the said Thomas Boswell, who had been committed to jail at Mangum, in the county of Greer in the territory of Oklahoma, should personally be and appear before the district court of Greer county at the "next term" thereof, and from "term to term."

Stripped of all its verbiage and technicality, this was the plain obligation entered into by defendants. Upon its execution and delivery Boswell was released. At the next term of the district court of Greer county his name was called; he failed to appear. The defendant sureties were called, and requested to bring the body of the said Boswell into court and save their recognizance; they failed to respond, and offered no excuse for the absence of the defendant. A forfeiture of the bond was taken. Suit is brought

against these defendants, and now they rely upon "strict construction" to relieve them of their voluntary obligation; and while many of the authorities hold a doctrine of very great strictness against the state in favor of the sureties on recognizances to appear and answer to indictments, yet, they do not, in the absence of a special statute which must be strictly complied with, go to the extent of holding a bond similar to the one in this case invalid. In following "strict construction" many courts have ignored strict compliance. The latter is as important to the state and the public welfare, as the former is to the defendant. The territory demands nothing but what was nominated in the bond, but that it does demand, and is entitled to from the plain, ordinary, matter of fact construction of its conditions. There was no inducement or coercion, or fraud, or misrepresentation by the plaintiff, and there was no mistake on the part of the defendants. They voluntarily and knowingly assumed the obligation of paying $700 to the territory in case Boswell was released, and did not appear at the "next term" of the district court of Greer county. This it is admitted he failed to do, and that the defendants should now be required to comply with the conditions of an obligation which they voluntarily assumed, cannot be questioned. A contrary holding would encourage the commission of crime, prevent the enforcement of law, and defeat the ends of justice.

The judgment of the court below win therefore be reversed and remanded, with directions to overrule the demurrer to the peti tion, and proceed with the trial of said cause. All the Justices concurring.

(17 Okl. 146)

TERRITORY ex rel. THACKER, Co. Atty.,
V. CONNER et al.
(Supreme Court of Oklahoma. Sept. 5, 1906.)
Error from Probate Court, Greer County;
Todd, Judge.

Action by the territory, on relation of Thacker, county attorney for Greer county, against J. C. Conner and M. H. Dodson. Judgment for defendants, and relator brings error. Reversed.

Charles M. Thacker, for plaintiff in error.

GARBER, J. The facts in this case are identical with those in Territory ex rel. Thacker, Co. Atty., v. J. C. Conner et al. (No. 1,901) 87 Pac. 591, decided at this term of the court and not yet officially reported. And upon the authority of that case the judg ment of the court below in this case is reversed and remanded with directions to overrule the demurrer to the petition, and proceed with the trial of the cause.

Reversed and remanded at the costs of the defendants in error. All the Justices cou-, curring.

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A petition which sets forth a cause of action upon a promissory note alleging that it was executed on August 4, 1902, and fell due September 20, 1902. a copy of which was attached to the petition and reads: "On September 20th, we promise to pay," the year of maturity being left out, is good as against a general demurrer.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, §§ 1446, 1448.] 2. PLEADING-GENERAL DEMURRER.

Under the requirement of the Oklahoma statute that a demurrer shall specify distinctly the grounds therefor, a question of defect of parties, which is made a ground of demurrer, cannot be raised under a generai demurrer alleging simply a want of facts sufficient to state a cause of action.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, § 535; Cent. Dig. vol. 37, Parties, §§ 123, 134, 145.]

3. SUNDAY-CONTRACTS.

Under the statutes of Oklahoma forbidding public traffic on the first day of the week, a debt created for the sale of a domestic animal cannot be enforced, unless there is such a subsequent recognition of the indebtedness on a secular day as will amount to an acknowledgment of indebtedness, and a promise at that time, either express or implied, to pay.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Sunday. §§ 22-34.]

(Syllabus by the Court.)

Error from District Court, Kay County;

before Justice Hainer.

Action by W. M. Briley against A. Helm

hearing in the district court upon said demurrer, when the same was overruled. Thereafter at said term the cause came regularly on for hearing, no other pleading having been filed by defendant, when plaintiff introduced the note and testified that he was the owner and holder of the same, and that $10 was paid by defendant on August 7, 1902, to apply on the note. The evidence on the part of the defendant disclosed the fact that on Sunday, the 3d day of August, 1902, plaintiff sold to defendant a mule, taking the note now sued on in payment of the purchase price of the mule; that the note was dated on Monday, August 4th, but was actually given and the mule delivered on Sunday, the 3d, and the $10 was paid to apply thereon on Thursday, August 7, 1902. The evidence discloses that the trade was made, the mule delivered to IIelm & Son, and the note made, executed, and delivered by them to Briley at the grading camp of Helm & Son, and not otherwise in a public manner, or at a public place. This is the import of all the evidence in the case, and, at its conclusion, the court rendered judgment for the plaintiff for the amount due on the note, and for his costs. Whereupon the defendant filed his motion for a new trial, which being overruled, the cause comes to this court upon error.

W. K. Moore, for plaintiff in error.

GILLETTE, J. (after stating the facts). This was an action on a promissory note, as stated above. To the petition of plaintiff

& Son. Judgment for plaintiff, and defend-setting forth said note, a general demurrer ants bring error. Affirmed.

This action was originally commenced in the probate court of Kay county to recover a balance due upon a promissory note, the material allegations of the petition, omitting the title, being in the following words: "The plaintiff says there is due plaintiff from defendant, the sum of $60.00 on one certain promissory note bearing date August 4, 1902, and due Sept. 20, 1902, a copy of which note is hereto attached, marked Exhibit A' and made a part hereof. That there is credited on said note a payment of $10.00 leaving a balance due of $50.00." The petition concludes with a prayer for judgment in the sum of $50 and interest thereon. Exhibit A is in the following words: "Newkirk, O. T., August 4, 1902. On Sept. 20 we promise to pay W. M. Briley the sum of sixty dollars for value received at the First National Bank, Newkirk. A. Helm & Son. August 7 cash paid $10.00." The record does not show that any appearance was entered by defendant in the probate court, and, on the 29th of November, 1902, judgment was therein rendered in favor of plaintiff for the amount then due upon the note. Thereupon, within the proper time, defendant appealed the case to the district court, and there filed a general demurrer to the petition. At the February term, 1903, the cause came on for

was filed, which was overruled, and the plaintiff in error now urges in this court that. because the note does not specify the year in which it shall become due, sufficient facts are not stated to entitle the plaintiff to recover. The note was given August 4, 1902, and reads: "On September 20 we promise to pay Wm. Briley the sum of $60.00 for value received. received. ***" We think this language fairly implies that the September following the execution of the note was the time intended by the parties when such instrument should become due. The petition alleged that it was due September 20, 1902. besides at the time the court rendered judgment the court had before it the testimony of the defendant, A. Helm, who testified that the note was given for the purchase price of a mule, and that he gave the plaintiff a note due in 30 days for $60. This testimony fixed the year in which the note became due, leaving no uncertainty with reference thereto. Under the allegations of the petition that it was given on August 4, 1902, and became due September 20, 1902, we think the demurrer was properly overruled in the first instance, and the judgment of the court finding it due upon the proofs offered, was correct.

A second proposition presented by the plaintiff in error is that the suit was brought

against A. Helm & Son when it should have been brought against A. Helm and W. S. Helm as copartners under the firm name of A. Helm & Son, and upon this proposition it is urged that the court erred in overruling the demurrer to the petition. As before As before stated the demurrer was general, and this ground we think could not be taken under a general demurrer. If there was a defect of parties defendant the demurrer should have so specified, as the statute makes that a ground of demurrer, and further provides as follows: "The demurrer shall specify distinctly the grounds of objection to the petition." It is not sufficient to demur generally to a pleading, and under such demurrer to undertake to raise a question of jurisdiction, legal capacity, another action pending, or defect of parties. Under the requirement of the statute that the demurrer shall specify distinctly the grounds therefor, it is not sufficient to demur upon one statutory ground and undertake to rely upon a different ground. The rights of the parties upon demurrer will be adjudged only upon the grounds laid. All other grounds must he held to have been waived, and in this instance any supposed right to object to the sufficiency of the petition because of a defect of parties is waived because of a failure to specify that as a ground of demurrer.

The only other defense offered is that the note was executed and delivered on Sunday, and is in violation of the statute concerning Sabbath breaking, and is therefore void. The note was given for a valuable consideration, and, it is conceded, is perfectly valid and binding on the maker unless it is rendered invalid by statute above referred to. The statute invoked as a defense in this cause is sections 1960 to 1970, inclusive, art. 4. c. 25, Wilson's Rev. & Ann. St. which read: Section 1960: "The first day of the week being by general consent set apart for rest and religious uses, the law forbids to be done on that day certain acts deemed useless and serious interruptions of the repose and religious liberty of the community." Section 1963: "The following are the acts forbidden to be done on the first day of the week, the doing of any of which is Sabbath breaking: (1) Servile labor. (2) Public sports. (3) Trades, manufactures and mechanical employments. employments. (4) Public traffic. (5) Serving process unless authorized by law so to do." These five subjects are elaborated and defined by the Legislature in the five following sections; the fourth clause. "Public traffic." being enlarged to read: "All manner of public selling, or offering or exposing for sale publicly, of any commodities upon the first day of the week, is prohibited." etc.

The common law made no distinction between the Lord's Day and any other day. Contracts entered into on that day were as valid as those made on any other day. The contract in suit was voluntarily entered into,

between parties capable of contracting, for a lawful and valuable consideration. It had relation to a subject-matter about which it was lawful for the parties to contract, and was in all respects a valid contract, except as it is vitiated by the provisions of the statute above quoted. The statute is a police regulation, penal in its nature and provisions, and hence to be strictly construed. No court ought to refuse its aid to enforce such a contract as exists in this case on any doubtful or uncertain ground. It would hardly be profitable at this late day to discuss the origin and purpose of this class of legislation. It is enough that it exists, and is properly included among the constitutional police powers of the state, and while the claim in the case at bar is a just and legal one which no honest man would ever repudiate, yet it grows out of as flagrant a disregard and violation of the law as the ordinary transactions of daily life will admit. It is useless to extenuate the transaction. either with excuses from the surrounding circumstances, or by a strained construction of the language of the statute to seek to place it beyond the purview of the law. The enactment is not an arbitrary and ironclad regulation, but, in the judgment of this court, is a reasonable and proper exercise of the legislative power, in reference to a subject greatly in need of both regulation and restraint. Courts are created to administer the law, and may not palliate or excuse any infraction of it, however excusable it may appear by reason of the frequency of its violation. The sale of the mule and the making and the execution of the note was "public traffic" within the intent and meaning of the law, and therefore in direct violation of it, and, this being granted. neither party to the transaction is entitled to receive any aid at the hands of the courts. unless there shall be found something in the transaction which brings it within some one of the exceptions and reservations contained in the statute or such subsequent recognition of the contract as will work its affirmance and give it vitality.

There is nothing in the record to indicate that either of the parties belong to any class or sect of people who keep any other day of the week than Sunday as "holy time," on which they abstain from labor and the usual vocations of life. Neither was the transaction one falling within any of the exceptions or reservations of the act. It therefore remains only to inquire whether there was such subsequent recognition and acknowledgment of debt as will amount to a new contract, and such promise to pay as will authorize the courts to extend their aid in its enforcement, and this phase of the case is entitled to the more serious consideration because it is believed the moral sense of the people of this territory would esteem it a morally dishonest act for a debtor to refuse to pay a just debt because the

evidence of it was executed qu the Lord's Day. Christians may differ very widely as to the proper outward manifestations of religious faith, but they cannot differ as to what are the essential elements of honesty or dishonesty, and it is with these latter elements that temporal courts have to deal. The record discloses that four days after the execution and delivery of the note, to wit. on the Thursday following, the parties again met, and the plaintiff in error, with full knowledge of all the facts and circumstances connected with the transaction, at the special instance and request of defendant in error, voluntarily paid $10 to apply on the note not then due, and upon which no action. could at that time be maintained, even if it were without infirmity of any kind or nature. This, we think, under the circumstances of this case, was equivalent to saying to defendant in error: "I am justly and honestly indebted to you in the sum of $60 for the mule which I have already received from you, and I am willing to pay the note you hold for the same."

In the case of Van Hoven v. Irish (C. C.) 10 Fed. 13 (Minn.) it is stated in the syllabus: "Affirmance on a week day of a contract of bargain and sale entered into on Sunday. and void for that reason, makes it valid." That was a case of a sale of a bunch of cattle, the sale made on Sunday and $100 paid on the purchase price. Afterwards on a week day the contract of sale was somewhat changed, and the $100 retained as part performance. The plaintiff brought his action upon the latter contract, claiming it was a contract made on a week day, but defendant denied that any other contract was made except the one on Sunday. The court submitted two questions to the jury, viz.: “(1) Was the contract, for breach of which damages are claimed, entered into on Sunday? (2) If the contract was entered into on Sunday, and void by the laws of Minnesota. was it afterwards reaffirmed on a week day?" and instructed the jury "that by the laws of Minnesota contracts of a secular character, and which are not works of necessity or charity, if finally consummated on Sunday, are void, and no action can be maintained, either on the contract or for the recovery of whatever may have been done under the contract"; and also instructed them "that contracts entered into on Sunday could be reaffirmed afterwards." The court also instructed the jury "that the delivery of the cattle was evidence to be considered by them tending to show reaffirmance, as claimed by the plaintiff."

The jury found for the plaintiff, and on a motion for a new trial the court says: "The Vermont Supreme Court, and the latest authorities, sustain the view taken in respect of the reaffirmance of Sunday contracts, in order, as said by Judge Redfield, to secure parties from fraud and overreaching practice on Sunday by those who know their contracts are void, and cannot be enforced."

Citing Adams v. Gay, 19 Vt. 358; Harrison v. Colton, 31 Iowa, 16.

It must be conceded there is very considerable confusion and conflict in the courts of the various states as to whether or not a contract admitted to be in violation of the Sunday law is one that can be ratified by any act of mere acquiescence, but, however that may be, all are united in holding that the making of a contract on Sunday will not pre vent the parties from making the same contract over on a week day, and the same thereafter being binding on the parties and enforceable by the courts, even though the Sunday transaction might have been punished as provided by the law. Many courts, however, hold that any act which amounts to a recognition of the contract made on Sunday, will be construed to be in affirmance and ratification of the same, and thereafter binding upon the parties. See Adams v. Gay, 19 Vt. 358; Williams v. Paul, 6 Bing. (Eng. C. P.) 653; Saginaw. T. & II. R. Co. v. Chappell, 56 Mich. 190, 22 N. W. 278; Wilson v. Milligan, 75 Mo. 41; Banks v. Worts, 13 Ind. 203; Clough v. Davis, 9 N. II. 500: Harrison v. Colton, 31 Iowa, 16: King v. Fleming, 72 III. 21. 22 Am. Rep. 131.

The question here presented is before this court for the first time, and we are now called upon for a rule of law governing Sunday contracts subsequently recognized upon a secular day. That the contract when executed was void, and not enforceable under the provisions of our statute, we do not hesitate to declare, and, with reference to a subsequent recognition of the agreement on a secular day, we are of the opinion, and therefore hold. that a direct subsequent recognition of debt on a week day, which amounts at that time to an acknowledgment of indebtedness, is a new agreement, and thenceforth binding upon the parties, and in the case now under consideration we hold that the payment of $10 on a secular day, upon a debt of $60, the price of a mule sold on a previous Sunday was such an acknowledgment of existing indebtedness as to amount to a contract and promise to pay at that time, and is therefore enforceable in the courts of this territory.

Finding no error in the record, the judg ment of the court below will be affirmed. All the Justices concurring except HAINER, J., who presided on the trial of the cause below, not sitting.

(17 Okl. 393)

BIGGER V. BOARD OF COM'RS OF GARFIELD COUNTY.

(Supreme Court of Oklahoma. Scpt. 6, 1906.) APPEAL-PRACTICE-FILING BRIEFS.

In a proceeding originating before the board of county commissioners, for the refund. of money paid on an erroneous assessment and void tax sale certificate, where it appears that the county has the purchaser's money, without giving any consideration therefor, and the only

appearance by the board is by motion in the district court to dismiss the appeal, no attempt being made by the defendant in error to comply with the rules of this court requiring briefs to be filed, and the consideration of the legal propositions involved necessitating an extended investigation of the power of the board of county commissioners in such cases. Held, that this court will, under such conditions, particularly because of the failure to file briefs, reverse the judgment of the trial court, and remand the cause for further action.

(Syllabus by the Court.)

Error from District Court, Garfield County; before Justice James K. Beauchamp.

Action by L. A. Bigger against the board of county commissioners of Garfield county. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

J. M. Dodson, for plaintiff in error. Daniel Huett, County Atty., for defendant in error.

PANCOAST, J. This is a proceeding which was originally brought before the board of county commissioners of Garfield county, asking for refund of money paid to the county treasurer on an erroneous assessment, and alleged void tax sale certificate, the taxes being against certain church property in the city of Enid for sidewalk improvements. The record is very meager. A petition was presented to the board of county commissioners, setting up the fact of the erroneous, if not void, assessment, showing the description of the property and description of the walk, and to the effect that a large part of the walk was not abutting the lot owned by the church, and that the taxes, therefore, should not have been assessed against the church lot; also setting up a surrender of the tax deed and certificate, and asking that the money paid out be refunded. The commissioners, it seems, denied the petition. An appeal was taken to the district court, and there, on motion of the defendant below, the case was dismissed, on two grounds which were set up, the first being that the board of county commissioners had no jurisdiction of the subject-matter, and the second that the district court had no jurisdiction of the subject-matter.

The case necessitates a somewhat extended investigation of the power of the board of county commissioners in such cases. The county has the plaintiff in error's money, and it would seem there was no consideration whatever given for it. According to the contention of the plaintiff in error, the tax sale certificate is an absolute nullity. It seems that there ought to be some redress, but counsel for defendant in error, defendant below, seems to have contented himself with simply filing a motion in the district court, attacking the jurisdiction of the court, and in this court has not regarded the case as of sufficient importance to require him to file a brief. By Rule 6 of this court, it is provided that "in each civil case filed in this court, counsel for plaintiff in error shall serve his

brief upon counsel for defendant in error within forty days after filing his petition in error ** and the defendant in er

In

ror shall have thirty days after service on him of plaintiff in error's brief, in which te serve and file answer brief. Proof of service of briefs must be filed with the clerk of this court within ten days after service. case of failure to comply with the require ments of this rule, the court may continue or dismiss the cause, or reverse or affirm the judgment." Aldridge et al. v. Board of Education of the City of Stillwater, 15 Okl. 354, 82 Pac. 827. There have been numerous cases filed in this court, in which the rule with reference to filing briefs has been ignored. Generally, where the fault has been on the part of the plaintiff in error, the cases have been dismissed; but an order of dismissal would not be punishment for the failure of the defendant in error to file a brief in this case. Counsel in the presentation of cases on appeal owe a duty to this court, as well as to their clients, to properly brief their cases. To thoroughly investigate the legal propositions arising in this particular case would involve considerable labor on the part of this court. This labor would be lightened to a great degree by a properly prepared brief, citing the authorities, and directing the court's attention to the propositions involved in the appeal. It would seem that there should be a remedy by which the plaintiff in error could recover the amount of money paid out, for which he has received nothing; and, without going into the merits, of the case or making an extended investigation to determine the full rights of the parties herein, we have arrived at the conclusion that the judgment on this case should be reversed. We reach this conclusion partially because we think the motion to dismiss for want of jurisdiction was not well taken, and that the case should have been tried, but more particularly because of the failure and neglect of the defendant in error to file a brief.

The judgment of the trial court is therefore reversed, and the cause remanded for further proceedings in accordance with this opinion. All the Justices concurring.

(17 Okl. 449)

RAPP v. JENNINGS STATE BANK. (Supreme Court of Oklahoma. Sept. 6, 1906.) SALE-ACTION FOR PRICE ACCEPTANCE OF GOODS.

An acceptance of machinery under a contract to manufacture the same complete and put in running order, before the same is completed, in order to bind the parties, must be unconditional and unqualified, and intended as such where it modifies the terms of the original agreement; and, unless so accepted, an action will not lie on the contract of purchase to recover the purchase price thereof.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 451-455.]

(Syllabus by the Court.)

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