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county, by F. M. Overton, his deputy. In the against these defendants, and now they rely petition it is alleged that the word "taken" upon "strict construction' to relieve them of as used in the certificate of the deputy clerk, their voluntary obligation; and while many was not intended to imply that the clerk had of the authorities hold a doctrine of very "taken” the bond as of his own authority, great strictness against the state in favor of not in the sense in which the term is used the sureties on recognizances to appear and in the statute authorizing bail, but merely answer to indictments, yet, they do not, in in a clerical sense; that the clerk and his the absence of a special statute which must deputy, and each of them, did not agree to be strictly complied with, go to the extent said bail, and approve said bail bond; but of holding a bond similar to the one in this that the same was taken and approved by case invalid. In following "strict construcJasper Nelson, sheriff of said county, before tion" many courts have ignored strict comthe defendant Boswell was released from cus- pliance. The latter is as important to the tody. Construing the bond and the petition state and the public welfare, as the former together, it is clearly alleged that the sheriff

is to the defendant. The territory demands accepted and approved the bond, and under nothing but what was nominated in the bond, the authority of the Territory ex rel. Thack- but that it does demand, and is entitled to er, County Attorney, v. Sellers et al., 15 Okl. from the plain, ordinary, matter of fact con419, 82 Pac, 575, he was authorized to do so. struction of its conditions. There was no inBail is a delivery, or bailment, of the person ducement or coercion, or fraud, or misrepto his sureties upon their giving (together resentation by the plaintiff, and there was no with himself) sufficient security for his ap- mistake on the part of the defendants. They pearance; be being supposed to continue in

voluntarily and knowingly assumed the obtheir friendly custody, instead of going to ligation of paying $700 to the territory in jail. 4 Bl. 297. A similar idea as to the case Boswell was released, and did not apaccused being in the custody of his bail, is pear at the "next term” of the district court found in our statutes. Section 5775, Wilson's of Greer county. This it is admitted he failStatutes, authorize the sureties on his bond

ed to do, and that the defendants should now to cause his arrest at any time before they be required to comply with the conditions of are finally discharged, and at any place with- an obligation which they voluntarily assumin the territory, and surrender him, without ed, cannot be questioned. A contrary holdwarrant; and at the request of his bail, the ing would encourage the commission of crime, court, judge, or magistrate, shall recommit

prevent the enforcement of law, and defeat the party as arrested to the custody of the the ends of justice. sheriff or other officer, and the party so com- The judgment of the court below win Initted shall therefrom be held in custody therefore be reversed and remanded, with diuntil discharged by due course of law, In rections to overrule the demurrer to the peti. the case at bar, Boswell was under indict- tion, and proceed with the trial of said cause. ment charged with the commission of a fel- All the Justices concurring. ony; was in the custody of the sheriff and confined in the county jail for safe-keeping. The defendant sureties herein voluntarily

(17 Okl. 146) appeared, and, at their own request, jointly

TERRITORY ex rel. THACKER, Co. Atty., and severally acknowledged themselves to be

V. CONNER et al. indebted to the territory of Oklahoma in the (Supreme Court of Oklahoma. Sept. 5, 1906.) sum of seven hundred dollars ($700.00) to be Error from Probate Court, Greer County; made and levied on their respective goods, Todd, Judge. chattels, lands, and tenements; to be void, Action by the territory, on relation of however, if the said Thomas Boswell, who Thacker, county attorney for Greer county, had been committed to jail at Mangum, in against J. C. Conner and M. H. Dodson. the county of Greer in the territory of Okla- Judgment for defendants, and relator brings homa, should personally be and appear be- error. Reversed. fore the district court of Greer county at the

Charles M. Thacker, for plaintiff in error. "next term" thereof, and from "term to term."

GARBER, J. The facts in this case are Stripped of all its verbiage and technical- identical with those in Territory ex rel. ity, this was the plain obligation entered into Thacker, Co. Atty., V. J. C. Conner et al. by defendants. Upon its execution and de (No. 1,901) 87 Pac. 591, decided at this term livery Boswell was released. At the next of the court and not yet officially reported. term of the district court of Greer county And upon the authority of that case the judg. his name was called; he failed to appear. ment of the court below in this case is reThe defendant sureties were called, and re- versed and remanded with directions to overquested to bring the body of the said Boswell rule the demurrer to the petition, and prointo court and save their recognizance; they ceed with the trial of the cause. failed to respond, and offered no excuse for Reversed and remanded at the costs of the the absence of the defendant. A forfeiture defendants in error. All the justices cow, of the bond was taken. Suit is brought curring.

(17 Okl. 314)

hearing in the district court upon said demurA. HELM & SON v. BRILEY.

rer, when the same was overruled. There(Supreme Court of Oklahoma. Sept. 5, 1906.) after at said term the cause came regularly 1. BILLS AND NOTES — ACTION PETITION

on for hearing, no other pleading having been GENERAL DEMURRER.

filed by defendant, when plaintiff introduA petition which sets forth a cause of ac- ced the note and testified that he yas the tion upon a promissory note alleging that it was executed on August 4, 1902, and fell due

owner and holder of the same, and that $10 September 20, 1902, a copy of which was at- was paid by defendant on August 7, 1902, tached to the petition and reads: "On Septem- to apply on the note. The evidence on the ber 20th, we promise to pay," the year of ma

part of the defendant disclosed the fact that turity being left out, is good as against a general demurrer.

on Sunday, the 3d day of August, 1902, plain[Ed. Vote. For cases in point, see Cent. Dig.

tiff sold to defendant a mule, taking the note vol. 7, Bills and Notes, SS 1-146, 1448.]

now sued on in payment of the purchase 2. PLEADING-GENERAL DEMURRER.

price of the mule; that the note was dated Under the requirement of the Oklahoma

on Monday, August 4th, but was actually statute that a demurrer shall specify distinctly the grounds therefor, a question of defect of

given and the mule delivered on Sunday, the parties, which is made a ground of demurrer, 3d, and the $10 was paid to apply thereon cannot be raised under a generai demurrer al- on Thursday, August 7, 1902. The evidence leging simply a want of facts sufficient to state

discloses that the trade was made, the mule a cause of action.

delivered to Ilelm & Son, and the note made, [Ed. Note.--For cases in point, see Cent. Dig. vol. 39, Pleading: $ 535; Cent. Dig. vol. 37, executed, and delivered by them to Briley Parties, ss 123, 134, 145.]

at the grading camp of Helm & Son, and not 3. SUNDAY-CONTRACTS.

otherwise in a public manner, or at a public Under the statutes of Oklahoma forbidding place. This is the import of all the evidence public traffic on the first day of the week, a

in the case, and, at its conclusion, the court debt created for the sale of a domestic animal cannot be enforced, unless there is such a sub

rendered judgment for the plaintiff for the sequent recognition of the indebtedness on a amount due on the note, and for his costs. secular day as will amount to an acknowledg- Whereupon the defendant filed his motion nent of indebtedness, and a promise at that time, either express or implied, to pay.

for a new trial, which being overruled, the [Ed. Note. For cases in point, see Cent. Dig.

cause comes to this court upon error. vol. 45, Sunday, SS 22-34.]

W. K. Moore, for plaintiff in error. (Syllabus by the Court.)

Error from District Court, Kay County ; GILLETTE, J. (after stating the facts). before Justice Hainer.

This was an action on a promissory note, as Action by W. M. Briley against A. Helm stated above. To the petition of plaintiff & Son. Judgment for plaintiff, and defend-setting forth said note, a general demurrer ants bring error. Affirmed.

was filed, which was overruled, and the This action was originally commenced in plaintiff in error now urges in this court that, the probate court of Kay county to recover

because the note does not specify the year a balance due upon a promissory note, the in which it shall become due, sufficient facts material allegations of the petition, omitting

are not stated to entitle the plaintiff to rethe title, being in the following words: “The

cover. The note was given August 4, 1902, plaintiff says there is due plaintiff from de- and reads: “On September 20 we promise fendant, the sum of $60.00 on one certain to pay Wm. Briley the sum of $60.00 for promissory note bearing date August 4, 1902, value received. * * We think this and due Sept. 20, 1902, a copy of which note language fairly implies that the September is hereto attached, marked 'Exhibit A' and following the execution of the note was the made a part hereof. That there is credited time intended by the parties when such inon said note a payment of $10.00 leaving strument should become due. The petition a balance due of $50.00." The petition con

alleged that it was due September 20, 1902, cludes with a prayer for judgment in the

besides at the time the court rendereil judgsum of $50 and interest thereon. Exhibit A ment the court had before it the testimony is in the following words: "Newkirk, 0. T.,

of the defendant, A. Helm, who testified that August 4, 1902. On Sept. 20 we promise to the note was given for the purchase price pay W. M. Briley the sum of sixty dollars for of a mule, and that he gave the plaintiff a value received at the First National Bank,

note due in 30 days for $60. This testimony Newkirk. A. Helm & Son August 7 cash

fixed the year in which the note became due, paid $10.00." The record does not show $”

leaving no uncertainty with reference therethat any appearance was entered by de- Under the allegations of the petition fendant in the probate court, and, on the that it was given on August 4, 1902, and be29th of November, 1902, judgment was there- came due September 20, 1902, we think the in rendered in favor of plaintiff for the demurrer was properly overruled in the amount then due upon the note. Thereupon, first instance, and the judgment of the court within the proper time, defendant appealed | finding it due upon the proofs offered, was the case to the district court, and there filed correct. a general demurrer to the petition. At the A second proposition presented by the February 'term, 1903, the cause came on for | plaintiff in error is that the suit was brought



against A. Helm & Son when it should have between parties capable of contracting, for heen brought against A. Helm and W. S. a lawful and valuable consideration. It had Helm as copartners under the firm name of relation to a subject-matter about which A. Helm & Son, and upon this proposition it it was lawful for the parties to contract, is urged that the court erred in overruling and was in all respects a valid contract, the demurrer to the petition. As before

As before except as it is vitiated by the provisions of the stated the demurrer was general, and this statute above quoted. The statute is a police ground we think could not be taken under regulation, penal in its nature and provia general demurrer. If there was a defect sions, and hence to be strictly construed. of parties defendant the demurrer should No court ought to refuse its aid to enforce have so specified, as the statute makes that such a contract as exists in this case on any a ground of demurrer, and further provides doubtful or uncertain ground. It would as follows: "The demurrer shall specify hardly be profitable at this late day to disdistinctly the grounds of objection to the cuss the origin and purpose of this class of petition." It is not sufficient to demur gen- legislation. It is enough that it exists, and

rally to a pleading, and under such demur- is properly included among the constitutionrer to undertake to raise a question of juris- al police powers of the state, and while the (liction, legal capacity, another action pend- claim in the case at bar is a just and legal ing or defect of parties. Under the require one which no honest man would ever rement of the statute that the clemurrer shall | pudiate, yet it grows out of as flagrant a specify distinctly the grounds therefor, it disregard and violation of the law as the is not sufficient to demur upon one statutory ordinary transactions of daily life will adground and undertake to rely upon it dif- mit. It is useless to extenuate the transferent ground. The rights of the parties up- action, either with excuses from the suron demurrer will be adjudged only upon rounding circumstances, or by a strained the grounds laid. All other grounds must construction of the language of the statute he held to have been waived, and in this in- to seek to place it beyond the purview of the stance any supposed right to object to the law. The enactment is not an arbitrary and ufficiency of the petition because of a de- ironclad regulation, but in the judgment fecit of parties is waived because of a fail- of this court, is a reasonable and proper ure to specify that as a ground of demurrer. exercise of the legislative power, in reference

The only other defense offered is that to a subject greatly in need of both regulathe note was executed and delivered on Sun- tion and restraint. Courts are created to day, and is in violation of the statute con- administer the law, and may not palliate or cerning Sabbath breaking, and is therefore excuse any infraction of it, however excusvoid. The note was given for a valuable able it may appear by reason of the freconsideration, and, it is conceded, is perfectly quency of its violation. The sale of the mule valid and binding on the maker unless it is and the making and the execution of the rendered invalid by statute above referred note was "public traffic" within the intent to. The statute invoked as a defense in this and meaning of the law, and therefore in dicause is sections 1960 to 1970, inclusive, art. rect violation of it, and, this being granted, 4. c. 25, Wilson's Rev. & Ann. St. which neither party to the transaction is entitled rrad: Section 1960: "The first day of the to receive any aid at the hands of the courts, week being by general consent set apart unless there shall be found something in the for rest and religious uses, the law forbids transaction which brings it within some one to be done on that day certain acts deemed of the exceptions and reservations contained useless and serious interruptions of the re- in the statute or such subsequent recognition prose and religious liberty of the community." of the contract as will work its affirmance Section 1963: “The following are the acts and give it vitality. forbidden to be done on the first day of the There is nothing in the record to indicate week, the doing of any of which is Sabbath that either of the parties belong to any class loreaking: (1) Servile labor. (2) Public or serot of people who keep any other day Sworts.

(3) Trades, manufactures and me- of the week than Sunday as "holy time," chanical employments. employments. (1) Public

(1) Public traffic. on which they abstain from labor and the () Serving process unless authorized by law usual vocations of life. Neither was the so to do." These five subjects are elaborated transaction one falling within any of the exand defined by the Legislature in the five ceptions or reservations of the act. It therefollowing sections; the fourth clause, “Pub- fore remains only to inquire whether there lic traffic," being enlarged to read: "All was such subsequent recognition and acinanner of public selling, or offering or ex- knowledgment of debt as will amount to posing for sale publicly, of any comunities a new contract, and such promise to pay upon the first day of the week, is prohibit- as will authorize the courts to extend their ed," ete.

aid in its enforcement, and this phase of The common law made no distinction be- the case is entitled to the more serious contween the Lord's Day and any other day. sideration because it is believed the moral Contracts entered into on that day were as sense of the people of this territory would valid as those made on any other day. The esteem it a morally dishonest act for a debt. contract in suit was voluntarily entered into, or to refuse to pay a just debt because the evidence of it was executed on the Lord's Citing Adams v. Gay, 19 Vt. 358; Harrison Day. Christians may differ very widely v. Colton, 31 Iowa, 16. as to the proper outward manifestations of It inust be conceded there is very conreligious faith, but they cannot differ as to siderable confusion and conflict in the courts what are the essential elements of honesty of the various states as to whether or not or dishonesty, and it is with these latter a contract admitted to be in violation of the elements that temporal courts have to deal. Sunday law is one that can be ratified by any The record discloses that four days after act of mere acquiescence, but, however that the execution and delivery of the note, to may be, all are united in holding that the wit, on the Thursday following, the parties making of a contract on Sunday will not pre. again met, and the plaintiff in error, with full vent the parties from making the same conknowledge of all the facts and circumstances tract over on a week day, and the same thereconnected with the transaction, at the special | after being binding on the parties and eninstance and request of defendant in error, forceable by the courts, even though the voluntarily paid $10 to apply on the note Sunday transaction might have been punnot then due, and upon which no action ished as provided by the law. Many courts, could at that time be maintained, even if however, hold that any act which amounts it were without infirmity of any kind or to a recognition of the contract made on nature. This we think, under the circum- Sunday, will be construed to be in affirmance stances of this case, was equivalent to say- and ratification of the same, and thereafter ing to defendant in error: "I am justly and binding upon the parties. See Adams v. Gay, honestly indebted to you in the sum of $60 19 Vt. 3.18; Williams v. Paul, 6 Bing. (Eng. for the mule which I have already received C. P.) 672: Saginaw, T. & II. R. C. v. Chapfrom you, and I am willing to pay the note pell, 30 Jich. 1.20, 22 X. W. 278; Wilson v. you hold for the same."

Milligan, 7Mo. 11; Banks v. Worts, 13 Ind. In the case of Van Iloren v. Irish (C. C.) 203; (lough v. Davis, 9 N. II. 500; Harri10 Fed. 13 (Minn.) it is stated in the syllabus: son r, Colton, 31 Iowa. 16; King v. Fleming. “Affirmance on a week day of a contract 72 Ill. 21. 22 Am. Rep. 131. of bargain and sale entered into on Sunday, The question here presented is before this and void for that reason, makes it valid." court for the first time, and we are now That was a case of a sale of a bunch of cat- called upon for a rule of law governing tle, the sale made on Sunday and $100 paid Sunday contracts subsequently recognized on the purchase price. Afterwards on a upon a secular day. That the contract when week day the contract of sale was somewhat executed was void, and not enforceable under changed, and the $100 retained as part per- the provisions of our statute, we do not hesiformance. The plaintiff brought his action tate to declare, and, with reference to a subupon the latter contract, claiming it was a sequent recognition of the agreement on a contract made on a week day, but defendant secular clay, we are of the opinion, and denied that any other contract was made ex- therefore holdi. that a direct subsequent 'cept the one on Sunday. The court subinit- recognition of delt on a week day, which ted two questions to the jury, viz.: "(1) Was amounts at that time to an acknowledgment the contract, for breach of which damages of indebtedness, is a new agreement, and are claimed, entered into on Sunday? (2) If thenceforth binding upon the parties, and the contract was entered into on Sunday, in the case now under consideration we hold and void by the laws of Minnesota, was it that the payment of $10 on a secular day, afterwards reaffirmed on a week day?" and upon it lebt of $60), the price of a mule sold instructed the jury "that by the laws of Min- on a previous Sunday was such an acknowlnesota contracts of a secular character, and edgment of existing indebtedness as which are not works of necessity or charity, amount to il contract and promise to pay if finally consummated on Sunday, are void, at that time, and is therefore enforceable and no action can be maintained, either on in the courts of this territory. the contract or for the recovery of whatever l'inding no error in the record, the judymay have been done under the contract"; ment of the court below will be affirmed. and also instructed them "that contracts en- All the Justices concurring except HAINER, tered into on Sunday could be reaffirmel J., who presided on the trial of the cause afterwards.". The court also instructed the below, not sitting. jury "that the delivery of the cattle was evidence to be considered by them tending to show reaffirnance, as claimed by the plain

(17 Okl. 393) tiff." The jury found for the plaintiff, and

BIGGER v. BOARD OF COURS OF GARon a motion for a new trial the court says:

FIELD COUNTY. "The Vermont Supreme Court, and the latest (Supreme Court of Oklahoma. Sept. 6, 1906.) authorities, sustain the view taken in respect

APPEAL-PRACTICE-FILING BRIEFS. of the reaffirmance of Sunday contracts, in In a proceeding originating before the order, as said by Judge Redfield, to secure board of county commissioners, for the refund parties from fraud and overreaching practice

of money paiil on an erroneous assessment and

voirl tax solo certificate, where it appears that on Sunday by those who know their con

the county has the purchaser's money, without tracts are void, and cannot be enforced."

giving any consideration therefor, and the only appearance by the board is by motion in the brief upon counsel for defendant in error district court to dismiss the appeal, no attempt within forty days after filing his petition being made by the defendant in error to comply

in error with the rules of this court requiring briefs

* and the defendant in erto be filed, and the consideration of the legal ror shall have thirty days after service on propositions involved necessitating an extended him of plaintiff in error's brief, in which te investigation of the power of the board of county

serve and file answer brief. Proof of serycommissioners in such cases. Ileld, that this court will, under such conditions, particularly

ice of briefs must be filed with the clerk of because of the failure to file briefs, reverse the this court within ten days after service. In judgment of the trial court, and remand the case of failure to comply with the require cause for further action.

ments of this rule, the court may continue or (Syllabus by the Court.)

dismiss the cause, or reverse or affirm the Error from District Court, Garfield Coun

judgment.” Aldridge et al. v. Board of Eduty ; before Justice James K. Beauchamp.

cation of the City of Stillwater, 15 Okl. 354, Action by L. A. Bigger against the board of

82 Pac. 827. There have been numerous county commissioners of Garfield county. cases filed in this court, in which the rule Judgment for defendant, and plaintiff brings

with reference to filing briefs has been igerror. Reversed and remanded.

nored. Generally, where the fault has been

on the part of the plaintiff in error, the cases J. M. Dodson, for plaintiff in error. Daniel

have been dismissed; but an order of dismisHuett, County Atty., for defendant in error.

sal would not be punishment for the failure

of the defendant in error to file a brief in this PANCOAST, J. This is a proceeding which

Counsel in the presentation of cases was originally brought before the board of on appeal owe a duty to this court, as well as county commissioners of Garfield county, to their clients, to properly brief their cases. asking for refund of money paid to the coun- To thoroughly investigate the legal proposity treasurer on an erroneous assessment, and tions arising in this particular case would alleged void tax sale certificate, the taxes

involve considerable labor on the part of this being against certain church property in the

court. This labor would be lightened to a city of Enid for sidewalk improvements. The great degree by a properly prepared brief, record is very meager. A petition was pre

citing the authorities, and directing the sented to the board of county commissioners,

court's attention to the propositions involved setting up the fact of the erroneous, if not

in the appeal. It would seem that there void, assessment, showing the description of

should be a remedy by which the plaintiff in the property and description of the walk,

error could recover the amount of money and to the effect that a large part of the walk paid out, for which he has received nothing; was not abutting the lot owned by the church,

and, without going into the merits, of the and that the taxes, therefore, should not have case or making an extended investigation to been assessed against the church lot; also determine the full rights of the parties heresetting up a surrender of the tax deed and in, we have arrived at the conclusion that the certificate, and asking that the money paid judgment on this case should be reversed. out be refunded. The commissioners, it We reach this conclusion partially because we seems, denied the petition. An appeal was think the motion to dismiss for want of jutaken to the district court, and there, on risdiction was not well taken, and that the motion of the defendant below, the case was case should have been tried, but more pardismissed, on two grounds which were set ticularly because of the failure and neglect up, the first being that the board of county of the defendant in error to file a brief. commissioners had no jurisdiction of the sub- The judgment of the trial court is thereject-matter, and the second that the district fore reversed, and the cause remanded for court had no jurisdiction of the subject-mat- further proceedings in accordance with this ter.

opinion. All the Justices concurring. The case necessitates a somewhat extended investigation of the power of the board of county commissioners in such cases. The

(17 Okl. 449) county has the plaintiff in error's money, and it would seem there was no consideration

RAPP V. JENNINGS STATE BANK. whatever given for it. According to the con- (Supreme Court of Oklahoma. Sept. 6, 1906.) tention of the plaintiff in error, the tax sale

SALE-ACTION FOR PRICE – ACCEPTANCE OF certificate is an absolute nullity. It seems

GOODS. that there ought to be some redress, but An acceptance of machinery under a concounsel for defendant in error, defendant

tract to manufacture the same complete and put

in running order, before the same is completed, below, seems to have contented himself with

in order to bind the parties, must be uncondisimply filing a motion in the district court, tional and unqualified, and intended as such attacking the jurisdiction of the court, and where it modifies the terms of the original agreein this court has not regarded the case as of

ment; and, unless so accepted, an action will

not lie on the contract of purchase to recover sufficient importance to require him to file a

the purchase price thereof. brief. By Rule 6 of this court, it is provided [Ed. Note.-For cases in point, see Cent. Dig. that “in each civil case filed in this court, vol. 43, Sales, &8 451-455.] counsel for plaintiff in error shall serve his (Syllabus by the Court.)

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