*35ON PETITION FOR A REHEARING.
Buskirk, J.The appellant has filed an earnest and able' petition for a rehearing. The rehearing is asked on two grounds. First, that the court erred as to the law of the case as expressed in the opinion heretofore delivered. Second, that since the rendition of the decision in this case, it has been ascertained that the note sued on was executed on Sunday.
We háve had no difficulty or hesitation in overruling the petition on the first ground. We are entirely satisfied with the opinion heretofore delivered. We have, in several cases, since the rendition of said judgment, referred to and approved the principles contained in the original opinion in this case, and entertain no doubt that the law is correctly stated.
The second point relied upon is for the first time presented for our consideration. It has been the long and well-settled practice of this court, not to consider on a petition for rehearing a question that was not presented and considered on the original hearing of the case; but, aside from this question of practice, a majority of the court are of the opinion that the question Sought to be raised does not arise upon the demurrer to the complaint The point insisted upon is, that the note having been executed on the first day of the week, commonly called Sunday, it is absolutely void. By the common law, a contract made on Sunday was valid, and such a contract only becomes invalid under .and by force of our statute, which makes it unlawful for persons to perform common labor, or pursue their usual avocations, on Sunday. But there is an exception in this statute in favor of “such as conscientiously observe the seventh day of the week.” The exception being in the body of the statute, it is necessary that it should be shown by proper averments that the act complained of does not come within the exception. This cannot be done by demurrer, but must be done by answer. Our statute only'affects such persons as do not conscientiously observe the seventh day of the week, and, consequently, a contract made on the first day of the week by *36persons who conscientiously observe the seventh day of the week is valid, and can be enforced in our courts.
W A. McKenzie, for appellant. L. M. Campbell, for appellee.But there is another reason why the question cannot be properly raised by demurrer. Contracts that are prohibited by law because they are, in their nature, contrary to public policy, or repugnant to the good of society or public morals, are void, and in their very nature incapable of subsequent ratification. But contracts void only because made on Sunday, proper and lawful m all other respects, stand on a different, basis, and form an exception to the general rule, that void contracts are incapable of subsequent ratification. Love v. Wells, 25 Ind. 503.
The contract sued upon, although void under our statute, was capable of subsequent ratification. The question should have been raised by answer, so as to have given to the plaintiff the opportunity of replying a subsequent ratification. The note was executed on the first day of September, 1867, which was on the first day of the week. The ground of demurrer was, that the complaint did not contain facts sufficient to constitute a cause of action. A majority of the court,, for the reasons above stated, are of the opinion that the petition for a rehearing should be overruled.
Pettit, C. J., is satisfied with the correctness of the original opinion, but is of the opinion that the question as to the validity of the contract was properly raised by the demurrer, and is, for that reason, in favor of granting a rehearing.