It is the opinion of a majority of the court, for the reasons to be now stated, that the defendant’s exceptions must be sustained, and a new trial had.
The action is on a promissory note, to which the defendant has pleaded the statute of limitations. The plaintiff, in order to take the case out of the statute, relied on a payment made to her by the defendant within six years before the action was brought. It appears by the bill of exceptions that at the time of that payment a third person, daughter of the plaintiff and wife of the *370defendant, wrote by his dictation and in the presence of the plaintiff upon the back of the note as follows: “January 31, 1869. Received ten dollars.” The defendant offered to show by the calendar, and the plaintiff admitted, that January 31, 1869, was Sunday; and this appears to have been one of the facts in the case, upon which the rulings and instructions were based. This contemporaneous record or memorandum of the payment, made in the presence of both parties, was evidence to be considered by the jury together with the circumstances testified to at the trial ; and the jury would have been warranted in inferring that this statement of the date was correct, and known and assented to by both parties to be correct, at the time when it was written, and that the payment was therefore made on the Lord’s day. Bustin v. Rogers, 11 Cush. 346. Pearson v Shaw, 7 Irish Law, 1.
If the jury should be satisfied that the payment was made on Sunday, the case would stand thus: The plaintiff declares on a cause of action, under a simple contract, which accrued more than six years before the date of the writ. The defendant pleads the statute of limitations, which is a conclusive defence unless a payment within six years is proved. The fact of such payment is, therefore, a link in the chain of evidence necessary to sustain the plaintiff’s action. The statute prohibits and makes penal the doing of any manner of labor, business or work on the Lord’s day, except works of necessity and charity. Gen. Sts. c. 84, § 1. It is not pretended that the payment of this note was a work of necessity or charity. When any act, essential to constitute or complete the right to recover, is in violation of that statute, the plaintiff cannot demand the assistance of the judiciary to defeat the will of the legislature. The court will not assist either party to avoid or to take advantage of the illegal act, but will leave both parties as it finds them. The act stands effectual so far as it has been executed, but cannot be made the foundation or support of any executory obligation to be judicially enforced. A delivery of goods or payment of money on the Lord’s day may vest the property therein, or extinguish an existing obligation, so far as the property or money has passed from one party to the other, but cannot be availed of for any othei *371purpose. The courts will equally refuse to assist one party to recover back what he has thus paid or transferred; and the other party to deny that he has received it, or to assert any new rights by reason of such payment or transfer or in any degree founded thereon. Johnson v. Willis, 7 Gray, 164. Hammond v. American Ins. Co. 10 Gray, 306, 310. Myers v. Meinrath, 101 Mass. 366. Cranson v. Goss, 107 Mass. 439, 441. Moseley v. Hatch, 108 Mass. 517. Bumgardner v. Taylor, 28 Ala. 687. It follows that if the payment in question was made on the Lord’s day, the plaintiff cannot recover. Hxceptions sustained.