JOSEPH DAWKINS, APPELLANT,

v.

LUKE W. SMITHWICK, APPELLEE

SEMMES, Justice,

delivered the opinion of the court:

This was an action on the case commenced ent against appellant, in Leon Circuit Couris of warranty, in the exchange of horses. To' tion, the appellant filed his plea of the general issue, and at the March term of said Court, 1850, a verdict was found for respondent, assessing his damages at seventy-five dollars. Afterwards, at the same term, on the 3d of April, the attorney for appellant moved the Court in arrest of judgment, on the ground that the declaration seeks to recover on a contract which is void, by reason of having been made on the Sabbath. This motion was overruled by the Court below, and from its decision, this appeal is taken.

The rule of law, as laid down by appellant’s counsel, in regard to motions in arrest of judgment, is fully recognized by this Court — that, whenever there is any defect appearing upon the face of the record, for which a writ of error would lie, and which has not been attacked by demurrer, the Court, upon motion, will arrest the judgment. 2d Archbold, 247. If the contract declared on in this case was void under the statute, by reason of its having been made on the Sabbath, it is very evident the plaintiff in the Court below was not entitled to a judgment, if the fact was properly presented by the pleadings.

An important preliminary question is presented for the consideration of this Court, and which arises from the pleadings in the case. It is, whether the appellant, having failed to set up by special plea the defence relied on in his motion in arrest of judgment, is not concluded by the verdict of the jury ? But it is insisted by counsel for appellant, that, by reason of matters intrinsic appearing on the face of the declaration, he was not driven to his special plea, but that his defence was available, either by general demurrer, or by motion in arrest of judgment. It is true that, if the declaration presents a case which would not entitle the plaintiff to judgment, by reason of substantial error appearing on its face, the motion in arrest should have been sustained.

That portion of the declaration which is important to the decision of the ease is in the following words : “ Luke W. Smithwick, plaintiff, by attorney, complains, áse., for that whereas the said plaintiff, heretofore, to wit, on the first day of July, in the year one thousand eight hundred and forty-nine, at Leon County,” fic.

It is said that the first day of July, as laid in the declaration, was the Sabbath, and that the Court will take judicial cognizance of the fact. This is true. 1st Chitty’s Pleadings, 217. 1st Strange’s Reports, 388. It does not, however, relieve the question from the difficulty, but involves another and an important inquiry, whether the time stated in the declaration was material to the issue ? If so, it was competent 'for the defendant to move in arrest of judgment; but if, on the contrary, the time was immaterial, the only mode of making the defence available was by special plea.

The time stated, in the declaration is laid under a videlv •cet, but this cannot affect the question ; for if the time be material, it can be traversed, notwithstanding the scilicet. The general rule, as laid down by Sir William Blackstone* is doubtless the correct one. He says, the true distinction is, where the time when a fact happened is immaterial, and it may have happened on another day, if alleged under a videlicet, it is not traversable; but when the precise time is the very point and gist of the action, then the time alleged under the videlicet is conclusive and traversable. 1st Blackstone’s Reports, 495. 4th Johnson’s Reports, 456, and see 2d Saunders, 291.

In personal actions, the pleadings must allege the time, including the day, month and year, when each traversable fact occurred. See Stephens’ Pleadings. And although it be true, that the time at which each material fact stated in the declaration took place, must be alleged, yet, as a general rule, the plaintiff is not bound to prove the time as stated, nor is it essential that the time as stated accord with the truth. Archbold’s Pleadings, 115.

The same rule of law which governs the venue, applies, also, to the stating of time — it extends to traversable facts only. In the case of the venue in transitory matters, the place is not material to the issue, and one may be alleged, and another proved. See Stephens’ Pleadings.

In illustration of the foregoing general principles, it has been held, that in assumpsit upon a contract, the day upon which it is made being alleged only for form, the plaintiffis at liberty to prove that the contract, (parol,) whether it be express or implied, was made at any other time. 2d Strange’s Reports, 806. 2d Salkeld, 561; and it is no objection that the day of the promise, as laid under a videlicet, brings it within the statute of limitations. 1st Chitty’s Pleadings, 257.

The statement, therefore, of the real and precise time is not necessary, or if stated, the party is not concluded by it, unless it constitutes a material part of the contract declared upon, or unless a written instrument is professed to be described. 4th Term Reports, 590.

In all actions on promissory notes, bills of exchange, &c., the date, being a material part of the contract, must be stated, so as to conform to the contract itself — the slightest variance will be fatal. 1st Chitty’s Pleadings, 115. But the day laid in a declaration on a parol contract is not material upon evidence. Ibid, note 66. In the case of an usurious contract, where time is the very gist of the matter, the real day must be stated and proved; (Stephens’ Pleadings ; and so it may be said in every case where the precise date of any fact is necessary to ascertain and determine with precision the cause of action.

In the case before the Court, time did not enter into the contract — it was no part of it. The plaintiff in the Court below was not concluded by the time stated in the declaration — it was competent for him to have proved the contract to have been made on any other day than that alleged.

If the time did enter into the contract and, consequently, was material, then it was traversable b}' the defendant; but in this case, the time could not be traversed, because the plaintiff was not bound to prove it as laid.

The case relied on by appellant’s counsel, in 1st Strange’s Reports, 388, is not inconsistent with the opinion of this Court. In that case, the question before the Court arose upon a writ of inquiry, which appeared to have been executed on the 15th day of June, which was Sunday — the Court determined that it would take notice of the day, without its being specially assigned for error, and that the execution of the writ being on Sunday was void by statute. 29th Car., 2, 5, 7. But in that case, the time was material — it was not controverted, it could not be controverted — it was a part of the record, and a material part in the execution of the writ — the Court was bound by it, and could not, in its judgment, look beyond it. The only principle determined was, that the Court would take judicial cognizance that the day on which the writ was in fact executed was Sunday. In this case, the first day of July, it is conceded, was the Sabbath; yet this Court cannot judicially lmow that the contract declared on was made on that day, though averred in the declaration, for the time as laid may be altogether different from the time as proved. .

The Court is, therefore, of opinion that the judgment of the Circuit Court, overruling the motion in arrest of judgment, was correct.

Judgment below affirmed.