Our statute for the observance of the Sabbath, employs terms of more unlimited import than the 29 Car. II. ch. 7, § 6, and has been repeatedly so adjudged. See O’Donnell v. Sweeney, 5 Ala. Rep. 467; Pierce v. Hill, 9 Porter’s Rep. 151; Shippey v. Easterwood, 9 Ala. Rep. 198.] These Cases are conclusive to show, that the note-now in question, if made on Sunday, is void, and if the con*569tract which led to it was made on the same day, no benefit ¡ chn be claimed from it. *
The only question then, which is open for decision in the present case is this, can it be inferred from defendants’ continued possession of the horse, that they have undertaken to pay the price stipulated under the void contract, or so much as he was worth. We think with Mr. Justice Park, that a man does not manifest a very great concern for the observance of the Sabbath, who after having avoided a contract because it was made on that day, still retains in his possession property, the consideration of it, for which he refuses to pay. But we are aware of no case in which a promise has been implied under such circumstances, and we think principle is opposed to it. None of the cases cited for the plaintiff in error go to this extent. In Paul v. Williams, 6 Bing. Rep. 653, a contract made on Sunday was held void; it was not contended that merely keeping “ the beast ” in possession, entitled the plaintiff to recover in assumpsit, but there was proof of an express promise-, and upon this ground, the defendant was adjudged liable. There can be no doubt of the correctness of that decision, for the contract being void, it did not effect a change of property; the plaintiff might have reclaimed it, and the defendant could not have been compelled to keep and-pay for it. To have entitled the plaintiff to his action, it was necessary that there should have been a demand and refusal of the property, or a promise to pay for it, or something equivalent to a promise.
So it has been held, that if goods are sold upon a condition which the vendee fails to perform, but retains the goods and converts them to his own use, the vendor, cannot, if he rescind the contract, waive the tort and recover the value of the goods in assumpsit, but his proper remedy is in trover. [19 Pick. Rep. 217.] Where there is an express contract, the law will not imply one. [9 B. & C. Rep. 59; 1 Cromp. Mees. & Rose. Rep. 315.] But where the vendee, under a contract which is void, or has been rescinded, has sold the property he is chargeable in an assumpsit, for money had and received. ^jfPick. Rep. 285.]
The facts recited in the bill of exceptions explicitly nega*570tive a demand; there is no evidence of a sale of the horse, or a conversion in any other manner; but the only predicate from which it is proposed to deduce a promise, is the defendants uninterrupted possession. This we have seen, being permissive, would not entitle the plaintiff to maintain even an action of trover, much less.assumpsit, by treating it as a sale; and there can be no pretence to recover upon a count for money had and received. It results from what has been said, that there is no error in the ruling of the circuit court.
It is clearly competent for the court in which a cause has been determined, to enter up judgment against a security for costs, on motion, and award execution accordingly. [Clay’s Dig. 316, § 26.] But in the case at bar, the attention of the court does not appear to have been called to the security with a view to its action against him; the clerk mero motu, it would seem upon a rendition of a judgment on a verdict, adjudged that the plaintiff and his security should be chargeable with the costs. So far as it respects the surety, the entry must be regarded as a clerieal misprision, and consequently amendable at the costs of the party complaining of it. Martin v. Avery, 8 Ala. Rep. 430, is unlike the present. There a motion was distinctly submitted to the primary court for judgment against the surety, and that motion, and the consequent proceedings, constituted the cause which was presented for revision; so that there could be no doubt of the right of the surety to sue a writ of error.
This court proceeding to correct the misprision as the statute requires, directs that the judgment against the security for the costs, be vacated, that the judgment in ■ all other respects be affirmed, that the plaintiffs in error pay the costs of this court, and that Dodson pay the costs of the court below. Thus leaving the surety to be regularly proceeded against in the circuit court.