Davenport v. Bartlett & Waring. land, which is not admitted by the amendment to the bill, making him a party. His answer, setting up the bankruptcy of Copeland, was not sworn to, and filed, and was not received as an answer to the bill. As the amendment to the bill, making him a party, did not admit that he had an interest in the litigation, but called upon him to answer, and state what interest he had, the only effect of his demuurrer to the bill, was to question the right to make him a party to the litigation; it certainly did not put in issue the bankruptcy of Copeland. His course can admit of no other interpretation, than, that he abandoned the pursuit of the claim, as upon the demurrer being decided against him, he did not answer the bill, but according to the statement of the record, if indeed that portion of it applied to him, consented that the cause should be referred to the master, to state the account. The amendment of a bill, has in general the effect to destroy the prior proceedings for a contempt. [1 Smith's Ch. P. 305.] It is insisted here, that the amendment, was one in which Davenport had no interest, and is not therefore within the rule as stated. We do not think so. The amendment was important to Davenport, because it introduced another party upon the record, who claimed, or might claim, the right to the money he owed Copeland. Although the amendment nullified the process of contempt, it did not make it necessasary that another subpoena should issue, and the obligation still continued, to answer the bill. Instead of answering the bill, Davenport appears before the master, and contests the settlement of the account, and after the account was stated, and not until the term when the cause was finally heard, does he appear and file his answer. In our judgment, this must be considered as a waiver of his right to answer the bill. The decree pro confesso is quite a matter of form, and set aside upon the appearance of the party. In this case, Davenport is not in the slightest degree prejudiced by the rejection of his answer, as, in point of fact, he raised before the master, the defence set up by the answer.. Whatever, therefore, might be the general rule, in such a case as this, where the answer has not been filed until after the account was stated, and especially, because the answer, if received, could not in the least vary the decree, we think no objection can Davenport v. Bartlett & Waring. be raised at the trial of the cause, or in this court, that a formal decree pro confesso was not rendered. No suggestion was made to the court, of the death of Bartlett, except in the answer of Davenport, which was not received, or acted on, by the court, and cannot therefore be considered here. Of the $6,000 which the complainants agreed to give Davenport, to quiet their title, and for his interest in the decree, it appears there was still due him $811 38, for which he held their note, and the Chancellor decreed that it should extinguish by that amount, the sum decreed to the complainants to be paid by Davenport, having at an early stage of the cause granted an injunction to his proceeding at law to enforce it. It might perhaps be well doubted, whether this injunction was properly granted, as it is not alledged in the bill, that Davenport is insolvent, and the complainants must have contemplated when they gave it, that it might be enforced before they had any claim on Davenport, as that depended on their being subrogated to the rights of Copeland. That decree has now been made, and we are at a loss to conceive, what possible benefit can result to him, from permitting this note to remain unsatisfied. It would seem, that if this is an error, it is one against the complainants, as their claim is reduced to a judgment, whilst his is but a chose in action. It is clearly for the benefit of the party who now complains of it, and at whose instance the Chancellor would have been authorized to make it against the objection of the complainant, as an extinguishment of so much of the debt. In this aspect, the Chancellor no doubt considered it, and if the offered benefit had been refused, it would doubtless have been omitted out of the decree, as the complainants could have had no motive in insisting upon it. We are clear in the opinion, that the decree should not be disturbed for this cause. It is further objected here, that the account is incorrect, in not allowing to Davenport the costs which were decreed to be paid by Copeland and Brown, in the suit of Davenport against them and others. This point does not appear to have been raised before the master, or if raised, that an exception was taken for his refusal to allow it; it cannot therefore be Davenport v. Bartlett & Waring. considered here. In addition it may be remarked, that it does not appear for what portion of these costs Davenport is responsible, or whether he has, in fact, paid any part of it. It appears that the complainants, in 1838, purchased the title of Holman's heirs, to the property they had previously purchased from Remsen & Jude, who purchased from Copeland. We are unable to see how this fact can be of any importance in this suit. The complainants do not rely upon it as the purchase of a title paramount to that of Copeland, and certainly Davenport has no right to object to it. His title was superior to that of the complainants, and if it be true that the title of Holman's heirs is paramount to all the rest, it would only show, that in their anxiety to fortify their title they had purchased from Davenport a title of no value. This however, is a matter which cannot enter into this inquiry. Whether the title of Holman's heirs is good or bad, is a matter with which Davenport has no concern or interest whatever, as it is not set up by the complainant against either him or Copeland. This is not a case in which it was necessary to guard the interest of non-residents by a refunding bond, as was held to be necessary in Erwin v. Ferguson, 5 Ala. R. 167. Here it appears that Copeland appeared and moved to dismiss the bill; his answer too, is on file, disclaiming all interest in the controversy. Hilliard, the other non-resident, appeared and demurred to the bill, and consented, that if the demurrer was overruled, the master should state an account. These acts must be construed to be a voluntary submission by these parties to the jurisdiction of the court. They are not therefore in the predicament contemplated by the statute making a refunding bond necessary. The result of our examination is, that the decree of the. Chancellor should be affirmed. 9 198 93 504 9 198 Shippey and another v. Eastwood. 125 383 125 506 SHIPPEY AND ANOTHER v. EASTWOOD. 1. A plea to a promissory note that it was made on Sunday, in order to procure the discharge of the principal maker, who had been arrested on the same day, upon a charge of bastardy, is good; and a replication that the makers, with a knowledge of the facts alledged, "did ratify and acknowedge the note," and then "promise to pay the same," is not a sufficient answer to the plea. 2. When an immaterial issue is tried, a repleader will in general be awarded; but where the cause is also tried upon the general issue, and the party complaining may have had every advantage under it, which he could have had if the appropriate issue had been joined, upon the special plea, and there is nothing in the record to indicate that he was prejudiced, an appellate court will not reverse the judgment, that another trial may be had. Writ of Error to the Circuit Court of Pickens. THIS was a suit commenced before a justice of the peace, on a promissory note made by the plaintiffs in error, together with Uriah Kerby, on the 8th January, 1844, by which they promised to pay to the defendant the sum of $25, on the 1st day of April next thereafter, for the maintenance of the child. of Elizabeth Morehead, provided the child should live. Among other pleas, the defendant pleaded that the note in suit was not made for any work of necessity, or charity, but in the regular course of worldly business and employment; and (being so made,) was on the first day of the week, commonly called Sunday, under the following circumstances, viz: Uriah Kerby, the principal in the note, was arrested upon the Sunday on which the note was made, upon a charge of bastardy; that the child of which he was charged to be the father, was born of the body of Elizabeth Morehead, and that the note in question was made by Kerby, as principal, and the defendants as his sureties, in discharge of the arrest, on Sunday. To this plea the plaintiff demurred-his demurrer was overruled; and thereupon a replication was filed, alledging, that the defendants well knowing the facts stated in the plea, "did ratify and acknowledge the note sued on," and did Shippey and another v. Eastwood. then "promise to pay the same," &c. The cause was submitted to a jury, who returned a verdict in favor of the plaintiff for the amount of the note and interest, and judgment was rendered accordingly. P. MARTIN and B. W. HUNTINGTON for the plaintiff's in error. W. COCHRAN, for the defendant in error. COLLIER, C. J.-By a statute passed in 1803, it is enacted, that "no worldly business or employment, ordinary or servile work works of necessity or charity excepted,) &c. shall be done, performed, or practised by any person or persons within this State, on the christian Sabbath, or first day of the week, commonly called Sunday; and every person being of the age of fourteen years or upwards, offending in the premises, shall for every such offence forfeit and pay the sum of two dollars." This act goes quite beyond the 29 Caro. 11, ch. 7, § 6. That statute declares that no tradesman, artificer, workman or laborer, or other person whatsoever, shall do, or exercise any worldly labor, business, or work of their ordinary calling, upon the Lord's day, works of necessity and charity only, excepted. [O'Donnel v. Sweeney, 5 Ala. Rep. 467; see also, Pierce v. Hill, 9 Porter's R. 151.] The English statute restricts its prohibition to one's "ordinary calling," while our statute goes so far as to prohibit "worldly business or employment, ordinary or servile work," except in the excepted cases. Mr. Justice Bailey, in his celebrated judgment in Fennell v. Ridler, 5 B. & C. Rep. 406, was of opinion that the act extended to every description of the business of a man's "ordinary calling," as well as to what was manual, and calculated to meet the public eye, as to that transacted in private; though in Bloxsome v. Williams, 3 B. & C. Rep. 232, he intimated a doubt whether it extended to business of the latter description. See also Smith v. Sparrow, 4 Bing. Rep. 84; 1 Taunt. Rep. 135. But it has been held, that the words "worldly labor," which occur in the statute of Charles the Second, are not confined to a man's ordinary calling, but applies to any business he may carry on. The statutes of some of the states of the Union, upon the |