The transaction by which the defendant gave a note of $44.64 to Mercy Whitcher, and indorsed $36 on the note in suit, was upon Sunday, and, being illegal, was not evidence from which a new promise could be inferred. Clapp v. Hale, 112 Mass. 368. The subsequent payments were voluntary payments to Mercy Whitcher, intended to be on her note of $44.64, and not on the note in suit. Nothing was paid on the plaintiff's note. The fact that the $44.64 note was void does not contradict the fact that the defendant paid and intended to pay that note, and is no evidence that he paid or intended to pay some other note, which at the time he did not see nor have in mind; nor was there any transaction between him and the holder in regard to the payment of the other note. The fact that the defendant paid a note which he was not obliged to pay, cannot be made to work a payment of another note, nor operate to renew it.
Judgment for the defendant.
STANLEY, J., did not sit: the others concurred.