It is matter of law, that, whether any one besides the plaintiff and the defendant was present or not, the sale was business of the plaintiff's secular calling, done "to the disturbance of others," within the meaning of Gen. St., c. 255, s. 3. Varney v. French, 19 N.H. 233; Smith v. Foster,41 N.H. 215; Bank v. Thompson, 42 N.H. 369; George v. George, 47 N.H. 35.
The defendant is not estopped by the judgment in the trespass suit from setting up the Sunday law as a defence. The maxim, in pari delicto, c., was not established for the benefit of one party or of the other. The law does not leave the weaker at the mercy of the stronger, nor give the vendor a remedy by allowing him to retake the property illegally sold. It leaves the parties where their illegal contract left them: when executed, it will not assist the party who has parted with his money or property to recover it back; when executory, it will not compel performance. It would not leave the parties where their illegal contract left them if it did not maintain the title acquired by the contract. Williams was in possession of the cows, as of his own property, by the assent of Thompson. When the latter retook them, Williams was enabled to maintain trespass because Thompson could not be heard to controvert his title. Smith v. Bean, 15 N.H. 579; Coburn v. Odell, 30 N.H. 540, 552. The verdict must be set aside.
Nonsuit. *Page 250