The opinion of the Court was delivered by
Huston, J.The defence in this case was, that the contract, which was the foundation of the plaintiff’s action, was made on Sunday; and we think the court erred in putting the burthen of proof when it was made, upon the plaintiff: it was the allegation of the defendant, and he must sustain it by proof. If the plaintiff had been present at the delivery of the horse on Sunday, the presumption might be as stated; but can it be that the defendant, by going on Sunday and taking away the plaintiff’s horse, left for sale, and because it was Sunday, got the horse for nothing? There are cases where delivery is essential to the completion of the contract; but there are others where the sale is good without delivery. Perhaps no actual delivery was contemplated by these parties: the bargain may have been made, and a verbal order to the vendee to get the horse, upon which he would have been delivered upon Monday or any other day.
If it had appeared that the plaintiff delivered the horse on Sunday, our respect for the rule which prohibits the making of contracts on that day, would induce us to say that the contract was then made; but he did not deliver him or know when he was delivered. The only act done on Sunday, was by him who now seeks to take advantage of it. Zeal for religious observance of the Sabbath is commendable, but it may exhibit itself in a very questionable shape. It can not avail a defendant who has the possession of property without paying for it, unless he proves that the plaintiff has violated some law, human or divine. The error consists in forgetting that he who sets up a defence must prove it, and can not call upon the other party to negative what is not proved. The defendant would have got the horse if the sale had been made on Saturday; his taking him away on Sunday, was no proof that he bought him on that day.
Judgment reversed, and venire de novo awarded.