Page:Federal Reporter, 1st Series, Volume 6.djvu/32

 20 FEDERAL EBPOBTEE. �Button at ail to acknowledge the mortgage, but they and their sons ail testify that they executed the mortgage at their son's house, in Augusta, on Sunday, July 7th. Campbell does net remember the day; but they ail agree that defendants and Campbell went to Eau Claire on Monday, the 8th, and con- summated the loan by delivering the papers to Ellis for the plaintiff, and getting the money. Ellia testifies that he also was acting as agent for the defendants in getting the loan for them. �So far as the question of aeknowledgement is concemed the defendants admit the acknowledgement under oath in their answer, and are, therefore, estopped from denying it on the trial. But they allege it was done on Sunday. Besides, I think the testimony of Button and Schroeder should b'e taken as conclusive that the acknowledgement was made on Mon- day, and I so find. �■As to the time of the execution, as that rests wholly on the testimony of the defendants and their family, I think I must find that it was done on Sunday; and if that fact alone makes the mortgage void, then the plaintiff, who was in New Jersey, and entirely innocent of any knowledge of the fact of defendants breaking the Sunday law in Wisconsin, must suf- fer in their stead, while the defendants must be rewarded for their crime in the sum of $1,200 ready money. But I amnot ready to believe that such is the law. �I think there is a general feeling among judges that the courts have gone quite far enough in holding con tracts void that have been entered into on Sunday. If the question were unadjudicated I would, for one, think it going far enough to hold that where the parties are mutually guilty, the court would not lend its aid to enforce a strictly executory contract entered into on Sunday ; but that when the contract is fully executed on one side, and the consideration passed, as in the borrowing of money or sale of and delivery of property, to require the defaulting party to restore the consideration and perform his agreement. According to some of the decisions, if I borrow a thousand dollars of my neighbor on Sunday, promising to return it at some future day, there is no con- ��� �