resident merchants and their agents, and this is presented by the instructions given to the jury at the request of the attorney of the Commonwealth. The 45th section of the revenue law declares "that any person who shall sell or offer for sale the manufactured articles or machines of other States or Territories, unless he be the owner thereof and taxed as a merchant, or take orders therefor, on commission or otherwise, shall be deemed to be an agent" for the sale of those articles and shall not act as such without taking out a license therefor. A violation of this provision subjects the offender to a fine of not less than fifty dollars nor more than one hundred dollars for each offense. The 46th section fixes the license tax of the agent for the sale of such articles, at twenty-five dollars. The license only gives him a right to sell in the county or corporation for which it is issued. If he sells, or offers to sell, in other counties or corporations, he must pay in each an additional tax of ten dollars. The section then declares that "all persons, other than resident manufacturers or their agents, selling articles manufactured in the State, shall pay the specific license tax imposed by this section." By these sections, read together, we have this result: the agent for the sale of articles manufactured in other States must first obtain a license to sell, for which he is required to pay a specific tax for each county in which he sells or offers to sell them; while the agent for the sale of articles manufactured in the State, if acting for the manufacturer, is not required to obtain a license or pay any license tax. Here there is a clear discrimination in favor of home manufacturers and against the manufacturers of other States. Sales by manufacturers are chiefly effected through agents. A tax upon their agents when thus engaged is therefore a tax upon them, and if this is made to depend upon the foreign character of the articles, that is, upon their having been manufactured without the State, it is to that extent a regulation of commerce in the articles between the States. It matters not whether the tax be laid directly upon the articles sold or in the form of licenses for their sale. If, by reason of their foreign character, the State can impose a tax upon them or upon the person through whom the sales are effected, the amount of the tax will be a matter resting in her character, and admit and require uniformity of regulation, affecting alike all the States; others are local, or are mere aids to commerce, and can only be properly regulated by provisions adapted to their special circumstances and localities. Of the former class may be mentioned all that portion of commerce with foreign countries, or between the States, which consists in the transportation, purchase, sale and exchange of commodities. Here there can, of necessity, be only one system or plan of regulations, and that Congress alone can prescribe. Its non-action in such cases, with respect to any particular commodity or mode of transportation, is a declaration of its purpose that the commerce in that commodity, or by that means of transportation, shall be free. There would otherwise be no security against conflicting regulations of different States, each discriminating in favor of its own products and citizens and against the products and citizens of other States." County of Mobile v. Kimball, 102 U.S. Commerce among the States in any commodity can only be free when the commodity is exempted from all discriminating regulation and burdens imposed by local authority by reason of its foreign growth or manufacture. The judgment of the Supreme Court of Appeals of Virginia must therefore be reversed, and the cause remanded to it for further proceedings in accordance with this opinion; and it is so ordered. discretion. She may place the tax at so high a figure A as to exclude the introduction of the foreign article and prevent competition with home product. It was against legislation of this discriminating kind that the framers of the Constitution intended to guard when they vested in Congress the power to regulate commerce among the several States. In Welton v. State of Missouri, we expressed at length our views on the subject, and to our opinion we may refer for their statement. No one questions the general power of the State to require licenses for the various pursuits and occupations conducted within her limits, and to fix their amount as she may choose, and no one on this bench-certainly not the writer of this opinion would wish to 'imit or qualify it in any respect, except when its exercise may impinge upon the just authority of the Federal government under the Constitution, or the limitations prescribed by that instrument. But where a power is vested exclusively in that government, and its exercise is essential to the perfect freedom of commercial intercourse between the several States, any interfering action by them must give way. This was stipulated in the indissoluble covenant by which we became one people. In a recent case we had occasion to consider at some length the extent of the commercial power vested in Congress, and how far it is to be deemed exclusive of State authority. Referring to the great variety of sub.. jects upon which Congress, under that power, can act, we said that "some of them are National in their CTION to foreclose a mortgage. The opinion states the case. From an order of the General Term, reversing a judgment in favor of plaintiff, plaintiff appealed. Cornelius E. Stephens, for appellant. George Burrows, for respondents. ANDREWS, J. The mortgage from Levi to the plaintiff was given to secure the mortgagee for any indorsements he had made, or should thereafter make, for the mortgagor, or the firm of Levi & Miller, to the amount of $6,000. It was dated May 2, 1874, and was recorded May 3, 1874. The first indorsement was made May 7, 1874, and the last October 16, 1874. The plaintiff has been compelled to pay the indorsed paper, and has advanced for that purpose the sum of nearly five thousand dollars over and above all payments made by the mortgagor. This action is brought to foreclose the mortgage, and the only controversy relates to the priority of lien as between the mortgagee and judgment creditors of the mortgagor, whose judgments were obtained subsequent to the mortgage, but prior to the indorsement by the plaintiff of some of the notes paid by him, which enter into and form part of the mortgage debt. The question is whether the mortgage is a paramount lien to the judgments, as to that part of the mortgage debt arising out of the indorsements made after the judgments were docketed. It is not claimed that the plaintiff had actual notice of the judgments when he indorsed the paper, and it is found by the referee that he never had personal notice or knowledge, or any notice, of their existence until after the indorsements had been made. The judgments were docketed in the county where the mortgaged premises were situated. If the docketing of the judgments was constructive notice to the plaintiff of their existence, then he had notice of the judgments; otherwise he had none. There is no question as to the validity of mortgages to secure future advances or liabilities. They have become a recognized form of security. Their frequent use has grown out of the necessities of trade and their convenience in the transaction of business. They enable parties to provide for continuous dealings, the nature or extent of which may not be known or anticipated at the time, and they avoid the expense and inconvenience of executing a new security for each new transaction. It is well known that such mortgages are constantly taken by banks and bankers as security for final balances, and banking facilities are extended and daily credits given in the commercial community in reliance upon them. Mortgages for future advances have sometimes been regarded with jealousy, but their validity is now fully recognized and established. Bank of Utica v. Finch, 3 Barb. Ch. 294; Truscott v. King, 6 N. Y. 147; Robinson v. Williams, 22 id. 380; Shirras v. Caig, 7 Cranch, 34; Lawrence v. Tucker, 23 How. (U. S.) 14; Leeds v. Cameron, 3 Sumner, 492. There can be no doubt, therefore, that the mortgage in this case, as between the parties to it, is a valid security for the plaintiff's debt. It is equally clear that to prefer an intervening incumbrance over the claim of the plaintiff would violate the understanding of the parties to the mortgage at the time it was executed, for the plain inference was that the interest of the mortgagor in the land, as it existed when the mortgage was given, should be bound as security for all liabilities which the plaintiff might incur as indorser upon the faith of the mortgage. It could not have been intended that the plaintiff should be deprived of any part of the security of the mortgage for any part of the indorsed paper. It would have been a clear breach of duty on the part of the mortgagor if he had, without notice to the mortgagee, voluntarily incumbered the land by liens having priority of the mortgage, and then applied to the plaintiff for and procured further indorsements. gage; and one of the questions was whether the mortgagees, who had made advances to the mortgagors on the faith of the mortgage after they had conveyed to the defendants, but without notice of their title, could enforce the mortgage for such advances, and it was held that they could, Marshall, C. J., saying that the mortgage stood as security for "the payment of debts still remaining due to them, which were either due at the date of the mortgage or were afterward contracted upon its faith, either by advances actually made or incurred prior to the receipt of actual notice of the subsequent title of the defendants." The effect of the registry laws was not involved, and the case was decided upon the general equities. The advances in Shirras v. Caig were optional; that is, the mortgagees were not bound to make them; and the same is true of the advances in Gordon v. Graham, supra. Shirras v. Caig has been frequently cited with approval by the courts in this State, and its authority, so far as I know, has not been questioned. Brinkerhoff v. Marvin, 5 Johns. Ch. 320; Griffin v. Burtnett, 4 Ed. Ch. 673; Truscott v. King, supra; Robinson v. Williams, 22 N. Y. 380. It must, I think, be conceded that independently of the registry laws, according to general principles of equity, the lien of the plaintiff's mortgage is superior to the lien of the judgments, as well for indorsements made prior to their rendition as for those subsequently made without notice. It remains to consider whether, under the statutory system for the registry of liens, the docketing of the judgments was constructive notice to the plaintiff. If the docketing of the judgments was constructive notice to him of their existence, then, unquestionably, the judgments have preference to the plaintiff's mortgage as to all advances subsequently made. The general principle of construction of the registry laws upon the point of notice is that the registration of incumbrances is notice to subsequent incumbrancers only. They are prospective and not retrospective in their operation. Stuyvesant v. Hall, 2 Barb. Ch. 151; King v. McVickar, 3 Sandf. Ch. 192; Howard Ins. Co. v. Halsey, 8 N. Y. 271. The plaintiff's mortgage was first made and first recorded, and regarding these facts only, the mortgage was the prior lien. It is claimed, however, that the mortgage did not become an actual lien or incumbrance until the indorsements were made, and that as to each indorsement it became in effect a new mortgage as of the time when the indorsements were made, and that the plaintiff must therefore be decided to have had notice of the judgments when the subsequent indorsements were made. It is manifectly true that the mortgage did not become an actual charge on the land so as to be enforceable by the plaintiff, until he had incurred liability as indorser. But the plaintiff's mortgage was an instrument capable of being recorded under the statute before any liability had been incurred. It is the general practice to record mortgages and docket judgments taken to secure future advances and contemplated liabilities, before an actual indebtedness arises. On being recorded, the record is notice to subsequent purchasers and incumbrancers, and they are put upon inquiry and have the means of ascertaining to what extent advances have been made, and by notice to prevent further advances to their prejudice. In Truscott v. King, 6 N. Y. 147, judgment had been entered on a bond and warrant of attorney for $20,000, to secure existing and future liabilities, and Jewett, J., said there could be no doubt that the judgment in its inception was a valid security upon the land to the full amount, whether a debt only in whole or part then existed, if it was agreed at the time that it should be given as an indemnity for advances thereafter to be made, or such advances were thereafter made. In Robinson v. Wil If the judgments have a preference over the plaintiff's mortgage, as to indorsements made after the judgments were docketed, it must result from some superior equity of the judgment creditors, or from the effect of docketing the judgments, as constructive notice to the plaintiff of their existence. The authorities are clear to the point that upon general principles of equity no such preference can be claimed. In Gordon v. Graham, 2 Eq. Cas. Abr. 590, Lord Chancellor Cowper is reported to have held that a first mortgagee with a mortgage covering future advances has priority, not only for what may be due to him at the time of a second mortgage, but also for advances made by him after notice of the second mortgage. This case was doubted in England as to the point reported to have been decided, that the first mortgage was entitled to a preference for advances made after notice of the second mortgage, and in Hopkinson v. Rolt, 9 H. L. Cas. 514, this doctrine was overruled; but the court distinctly recognized and affirmed the doctrine that the first mortgagee was protected as to advances made after the second mortgage without notice. The case of Shirras v. Caig, 7 Cranch, 34, is a leading case in this country upon this point. The mortgage in that case was executed to secure existing debts and future advances. The mortgagors subsequently conveyed the equity of redemption to the defendants, who were bona fideliams, 22 N. Y. 386, a mortgage had been executed to purchasers and had no notice of the plaintiff's mort secure future liabilities of the mortgagor to the Hollis ter Bank, on paper which might be discounted by the bank for the mortgagor. The mortgage was recorded on the day it was executed, and before any liabilities had been incurred. Davies, J., in giving the opinion of the court, said: "The recording of the mortgage was notice that the Hollister Bank had a mortgage on the premises for the purposes therein specified." It does not, I think, aid the argument of the counsel for the judgment creditors to show that the plaintiff had no claim on the land for the indorsements in question until after the docketing of the judgments, or that by our law a mortgage is a mere lien or security, and not a title. The question is, Was the mortgage when executed a conveyance within the recording act? I think it was, and if so, then the plaintiff was entitled to put it upon record. It was a potential lien for its full amount, of which subsequent purchasers or incumbrancers had notice. They were informed by the record of the existence of a bond containing the condition upon which the mortgage was given, and through that, of the agreement between the parties, that the interest of the mortgagor in the land, as it existed at the date of the mortgage, was pledged for any indorsements which the plaintiff might make up to the limit fixed; for this, as we have said, was the plain reading of the transaction. It would be inequitable to permit third persons to deal with the mortgagee in respect to the land to the prejudice of the plaintiff's security, without notice to him, or to allow a subsequent purchaser or incumbrancer, having notice by the record, to acquire a preference over the mortgage for indorsements made upon the faith of the mortgage after the second incumbrance, in ignorance of the intervening lien or title. The question presented in this case has not been decided in this Sttate by the court of last resort. In Brinkerhoff v. Marvin, 5 Johns. Ch. 320, the chancellor, after referring to the observation of the court in Livingston v. Mclnlay, 16 Johus. 165, that if it was a part of the original agreement, a judgment might be entered as a security for future advances beyond the amount then actually due, in like manner as a mortgage may be held as a security for future advances, said: "The limitation to this doctrine, I should think, would be that when a subsequent judgment or mortgage intervened, further advances after that period could not be covered." The remark of the chancellor has been repeated in subsequent cases. Lansing v. courts of other States upon the question are conflicting. It would not be profitable to refer to them at length. They will be found cited in Jones on Mortgages, section 364, et seq. The doctrine that a party who takes a mortgage to secure further optional advances, upon recording his mortgage, is protected against intervening liens for advances made upon the faith and within the limits of the security, until he has notice of such intervening lien, and that the recording of the subsequent lien is not constructive notice to him, has, we think, been generally accepted as the law of the State, at least since the decision in Truscott v. King. It would not be wise, under the circumstances, now to adopt the opposite view, even though we should regard it as better supported by reason. It seems to us however that the doctrine which we have affirmed in this case is most consistent with equity, and establishes a rule reasonable and easy of application. The opposite rule imposes the burden of notice and vigilance upon the wrong person. The party taking the subsequent security may protect himself by notice, and as is said by Mr. Jarman in his notes to Bytherwood's Conveyancing: "No person ought to accept a security subject to a mortgage authorizing future advances without treating it as an actual advancement to that extent." These views lead to a reversal of the order of the General Term, and an affirmance of the judgment entered upon the report of the referee. All concur. DOING BUSINESS ON SUNDAY. WISCONSIN SUPREME COURT, JANUARY 11, 1881. TROEWERT V. DECKER. The Wisconsin statute provides that " any person who shall do any manner of labor, business or work, except only works of necessity or charity, on the first day of the week, shall be punished by fine," etc. Held, that the loaning of money on Sunday is "business," and presumptively illegal under this statute, and an implied promise to repay the money, upon which an action is maintainable, will not be raised by the fact that the borrower retains the same and converts it to his own use. A party claiming to be within the exemption of a statute has the burden of showing that he is so. Woodworth, 1 Sandf. Ch. 43; Barry v. Mex. Ex. Co., id. A 280; Goodhue v. Berrien, 2 id. 630. What was said by the chancellor in Brinkerhoff v. Martin was unnecessary to the decision of the case, but with the qualification that the first incumbrancer had notice of the intervening right when the subsequent advances were made, the observation is not open to controversy. Neither in that or any of the subsequent cases referred to, was it material to decide whether the record of the subsequent incumbrance was notice to the party holding the prior lien, and in none of them was this question considered. In Craig v. Tappen,2 Sandf. Ch. 78, it does not appear whether the first mortgagee had notice of the second mortgage when the subsequent advances were made. He knew that the second mortgage was to be given, and the inference that he knew of its existence when the advances were made is not an unreasonable one. 'In Truscott v. King, 6 Barb. 346, the Supreme Court expressly decided the point involved in this case in accordance with the view I have expressed. The judgment of the General Term was reversed on another point in this court, but one of the judges, who wrote an opinion of reversal, expressed his concurrence in the views expressed by Judge Parker in the court below upon the point now in controversy (see opinion of Edwards, J., 6 N. Y. 166). The adjudications in the CTION upon a promissory note. The opinion states the case. The court below found for plaintiff, and defendant appealed. Conrad Kretz, for appellant. Wm. H. Seaman, for respondent. CASSODY, J. This action is to recover for a sum of money alleged to have been "lent" to the defendant at his request, upon his promise to pay back the same whenever thereunto requested, but which had never been paid to the intestate, nor to the plaintiff as administrator, although the defendant had often been requested to repay the same before the commencement of this action. The answer "admits the receipt of the money," but alleges that it was paid to him, and the contract and promise to repay the same were made on Sunday, and therefore denies the indebtedness. The undisputed evidence shows that the loan and promise were made on Sunday. The court found that the defendant had and received the money from the deceased on Sunday, "to be repaid * ** on demand," but that the defendant had "failed and neglected to repay "the same, or any part thereof, and as a conclusion of law that the plaintiff was entitled to recover the amount due. Section 4595, Revised Statutes, provides, among other things, that "any person who shall * * do any * manner of labor, business, or work, except only works of necessity and charity, * * on the first day of the week, shall be punished by fine not exceeding ten dollars." The court does not find, and there is no evidence to show, that the case comes within the exception named in the statute. The loan of money, and the promise to repay, alleged in the complaint and admitted in the answer, were clearly "business," within the meaning of this section, and hence it was presumptively illegal. If it was possible to bring the case within the exception named in the statute, the burden was on the plaintiff to do so. Bosworth v. Swanson, 10 Metc. 363; Jones v. Andover, 10 Allen, 18, 21; Hinckley v. Penobscot, 42 Me. 89. But it is urged by counsel with some plausibility, that although the contract was illegal and void, yet that the subsequent retention of the money without offering to return it, and the using of it, and the refusing to pay it back, constituted a ratification, and an implied promise to repay upon each subsequent secular day. In support of this theory counsel cite Williams v. Paul, 8 Bing. 653; Adams v. Gay, 19 Vt. 358; Gummer v. Jones, 24 id. 316; Brown v. Timmony, 20 Ohio, 82; Tucker v. Moury, 12 Mich. 378; Dodson v. Harris, 10 Ala. 566; Sayre v. Wheeler, 31 Iowa, 112. In Williams v. Paul the bargain was made on Saturday, and the price to be subsequently paid was agreed upon at the same time, subject to the defendant's approval of the property upon inspection the next morning, which was Sunday. Accordingly, on Sunday the inspection was had and the property approved and delivered. Subsequently, the defendant being applied to for the price, said he would settle at a time named. Failing to do so, an action was brought for the price and the plaintiff recovered a verdict, and the rule nisi to set it aside and enter a nonsuit under the statute of 29 Charles II, ch. 7, substantially like ours, was discharged by the Court of Common Pleas. Park, J., stated the grounds thus: "Here it appears that the defendant not only retained the animal, Eut made a new promise to pay subsequently to the Sunday, and his present refusal is not consistent with the practice of a very sincere Christian." Eight years after, in Simpson v. Nicholls, 3 Mees. & W. 240, 244, and a note to that case found in 5 id. 702, it was "doubted whether the case of Williams v. Paul could be supported in law," on the ground "that although the contract was void as being made on a Sunday, yet as the property in the goods passed by delivery, the promise made on the following day to pay for them could not constitute any new consideration;" and the Court of Exchequer held on demurrer that the plaintiff could *not recover the value, on the ground that the defendant, after the sale and delivery of the goods, kept them for his own use without returning or offering to return them. In Tuckerman v. Hinckley, 9 Allen, 454, it is said by Chapman, J., that "the case of Williams v. Paul, 6 Bing. 653, * * * is not to be relied on. In Kountz v. Dickson, 40 Miss. 341, 345-6, the court said: "We have examined these cases (among which are Williams v. Paul and Adams v. Gay, 19 Vt. 369, supra), * ** and we are constrained to say that they are founded on reasons which appear to us to set aside the most revered and firmly-settled principles of law applicable to the subject of illegal contracts. Were we to follow them we should have to overrule principles repeatedly and invariably recognized by this court." In Bantelle v. Melendy, 19 N. H. 196, Williams v. Paul is overruled, and the case of Simpson v. Nicholls, supra, followed, and the court held that "an illegal contract is incapable of ratification or of becoming the consideration of a subsequent promise." Williams v. Paul was followed in Adams v. Gay, supra, but in the later case of Sumner v. Jones, 24 Vt. 317, the court said: "Whatever may be the views of the English courts in relation to the case of Williams v. Paul, that case has been referred to in all the above cases (Barron v. Petles, 18 Vt. 385; Adams v. Gay, 19 id. 358; Sargent v. Butts, 21 id. 99); in some without the expression of any dissatisfaction, and in others by a direct approval of its doctrine. The principle of these cases must decide the present." And on page 322 the court said: "It is evident that the English authorities have not gone to this extent" (an affirmation and promise to pay the note implied by the retention of the goods as sufficient to sustain an action); "for while it has been held that a subsequent promise is sufficient to sustain a recovery for the value of the property, it has never been held in those courts that a promise can be implied from the mere fact of a retention of the property, or that subsequent payments are equivalent to an express promise." In that case it was held that a note given on Sunday for a horse then purchased, and subsequent partial payments, and retention of the horse without offering to return the same, was such a ratification as would maintain a suit for the balance on the note. But this decision, as we have seen, was based upon former decisions in that State, acknowledged to be in conflict with the later English cases, and certainly in direct conflict with the whole current of Massachusetts cases. Meyers v. Meinrath, 101 Mass. 366. In this last case it was expressly held that "an action will not lie for the conversion of a chattel sold and delivered by the plaintiff to the defendant in exchange for auother chattel on the Lord's day, and retained by the defendant afterward, notwithstanding the return by the plaintiff of the chattel for which it was exchanged, and his demand for a corresponding return by the defendant." The later English cases, the New Hampshire and Massachusetts cases, are also followed in Maine. Pope v. Linn, 50 Me. 83. In the case of Tucker v. Mowry, 12 Mich. 378, it was held that the contract of sale and delivery made on Sunday was so utterly void that no title passed, and that therefore the vendor might on a subsequent day tender back the price and recover the property. No case is cited in support of this doctrine, except an early case in the same State, which is followed. But this is going much further than Williams v. Paul, and much further than the Vermont cases, for they allow subsesequent ratification, on the ground that the property passes, and that the transaction is not malum in se but malum prohibitum. Dodson v. Harris, 10 Ala. 566, goes on the same theory as Tucker v. Mowry, and the same remarks are applicable to it. The true rule seems to be stated by Maule, J., in Fivoz v. Nichols, 2 M. G. & S. 500, where he said: "The plaintiff cannot recover where, in order to sustain his supposed claim, he must set up an illegal agreement to which he himself has been a party." So Parker, C. J., in Smith v. Bean, 15 N. H. 577, said: "It is generally said of such illegal contract that it is void. If this were so, and the contract, in the broad sense of the term, were void, no property would pass by it; the vendor might reclaim the property at will, and being his property it would be subject to attachment and levy by his creditors in the same manner as if the attempt to sell had never been made. But this is not what is intended by such phraseology. The transaction being illegal, the law leaves parties to suffer the consequences of their illegal acts. The contract is void so far as it is attempted to be made the foundation of legal proceedings. The law will not interfere to assist the vendor to recover the price." These same remarks are quoted with approval by the court in Perkins v. Jones, 26 Ind. 502. In Holt v. Green, 73 Penn. St., Mercur, J., said: "The test, whether a demand connected with an illegal transaction is capable of being enforced by law, is whether the plaintiff requires the aid of the illegal transaction to establish his case. If a plaintiff cannot open his case without showing that he has broken the law, a court will not assist him. * * *The principle to be extracted from all the cases is that the law will not lend its support to a claim founded on its own violation." the supervisors to issue such bonds. It was also held that the fact that plaintiff affixed his signature on Sunday would not prevent him from obtaining an injunction against the issue of the bonds on the ground that the required number of signatures were not affixed on any secular day where he did not on any secular day authorize the presentation of such petition to the supervisors, and where nothing had been done by the railroad company to earn the bonds before, it was notified that plaintiff would resist their issue, and denied the validity of such signature. IMPLIED WARRANTY IN SALE OF In Tillock v. Webb, 56 Me. 100, Appleton, C. J., said: "The only consideration for the note is the liability of the defendant under a contract prohibited by law. But this cannot be regarded as a legal consideration. The rights of the parties remain as if no notice had been given. The original contract being void was not susceptible of ratification." The same rule obtains in Massachusetts, New Hampshire and Connecticut. Cranson v. Goss, 107 Mass. 440, and cases there cited. In Finn v. Danaline, 35 Conn. 216, the facts were substantially the same as here, and it was held that the plaintiff could not recover for the loan; nor in an action of general assumpsit upon a demand afterward made, as money of the plaintiff in the hands of the defendant, that a party could not be permitted to trace his title through an illegal act. The decisions of this court are clearly in harmony with the weight of authority upon the point here involved, as above indicated. In Moore v. Kendall, 2 Pin. 99, the court said: "Admitting the sale of the goods to have been made on Sunday, it by no means follows that it was void for all purposes. There was an actual transfer of prop-ACTION for damages by reason of the worthlessness erty from James Moore to his brother, the plaintiff in error, and it was not possible thereafter for James or his assigns to recover it back. * * The point before us is simply this: whether any man, under any circumstances, can make a valid transfer of property on Sunday. If he cannot, the instructions were right; if he can, they were wrong. I think it would be carrying the rule of law further than the policy of the statute requires, and further than the current of decisions on this subject warrants, to deny that such a transfer, when actually completed without fraud, should stand between the parties." Following that decision, this court, in Hill v. Sherwood, 3 Wis. 343, held that "a contract or agreement made on Sunday will not be enforced in a court of law." Melchoir v. McCarty, 31 id. 252, is to the same effect, and thereto there was a subsequent promise. In Knox v. Clifford, 38 id. 656, the case of Hill v. Sherwood is referred to approvingly. In the case before us, unlike Williams v. Paul and Melchoir v. McCarty, there was no subsequent express promise, written or oral, and unlike some of the other cases referred to, there was no subsequent partial payment. Whether, in such last-mentioned cases, an action could be maintained to recover the balance of the loan, it is not necessary here to decide. Confining ourselves to the facts of the case here presented, and without questioning Melchoir v. McCarty, we desire simply to hold: (1) The loaning of money on Sunday is "business," within the meaning of the statute, and presumptively illegal; (2) any party desiring to bring himself within the exception of the statute has the burden of doing so; (3) the mere fact that a person borrowing money on Sunday retains it and converts it to his own use, does not raise an implied promise binding in law, and upon which an action can be maintained. The judgment of the Circuit Court is reversed, and the cause is remanded with directions to enter judgment for the defendant. NOTE. In Deforth v. Wisconsin & Minn. R. Co., decided by the Supreme Court of Wisconsin, May 10, 1881, which was an action brought by a tax payer of a town to restrain the issue of town bonds, it was held that where a town board of supervisors is authorized by law to issue bonds in aid of a railroad only upon the presentation of a petition therefor signed by a certain number of tax payers of the town, the procuring and affixing of such signatures on Sunday is "business," and is unlawful, and confers no authority upon SUPREME COURT OF VERMONT, MAY, 1881. GILCHRIST V. HILLIARD. There is an implied warranty in the sale of accounts, that they are genuine and real; and that they are what they appear to be accounts due and owing. There is an implied warranty in every sale that the thing sold is that for which it was sold; that it is substantially what it was described and purported to be. of accounts purchased by plaintiff from defendant. No fraud was practiced by the defendant. He was the owner of a stallion, and employed one Gleason to attend him; and this agent turned over to him these accounts, which he supposed were genuine. W. E. Smith, for plaintiff. Leslie & Rogers and L. P. Poland, for defendant. ROYCE, J. The accounts that the defendant sold and assigned to the plaintiff were, for all but $15, worthless at the time of the sale; not on account of the insolvency of the parties that they were represented to be against, but for the reason that the defendant had no valid accounts against the persons whose names appeared as his debtors upon the accounts assigned. In Long on Sales, 204, it is said that there is an implied warranty in every sale that the thing sold is that for which it was sold, or answers substantially to that description or representation. In Bank of St. Albans v. Farmers' & Mech. Bk., 10 Vt. 145, the court say that "it seems now well settled that a person giving a security in payment or procuring it to be discounted, vouches for its genuineness." In Thrall v. Newell, 19 Vt. 202, which was an action upon an alleged warranty that a note which had been transferred to the plaintiff was a good and valid note, and alleging that one of the. makers had recovered a judgment in a suit upon the note, upon the ground of his insanity at the time he signed it, although an express warranty was found and a recovery had upon that ground, the court strongly intimate that a recovery might have been had upon an implied warranty. They say that if one or both of the signatures to the note disposed of by the defendant had been forgeries, there would seem to be no question but that the defendant would be liable on an implied warranty. If the law would imply a warranty in such a case, why would not the same implication be made upon the sale of a fictitious chose in action? Here the accounts sold had no existence. The contingency upon which they were to become valid never happened, and the defendant was bound to make them what they appeared to be, accounts due and owing. He was not relieved from liability to that extent by any thing that appears to have transpired between the parties and Gleason. If the liability of the defendant were dependent upon the question of fraud in the sale, it might merit a different consideration. Upon the case as presented, the defendant is liable upon an implied warranty. |