#### Howe, Respondent, vs. Ballard, Appellant.

*January 31*—

February *18, 1902.*

*Laws of a foreign state: Evidence: Foreign statutes: Presumption as to construction: Contracts: Promissory note made in foreign state on Sunday: Yalidity.*

1. Where the written or unwritten law of another state is material to establish a cause of action or a defense in any action pending in any court in this state, such written or unwritten law cannot he considered except by consent of the parties, unless it 'be put in evidence under the statutory rules on the subject (secs. 4136, 4138, Stats. 1898).

2. Where the statute of another state is worded substantially the same as a statute of this state on the same subject, the judicial • construction of the foreign law will be presumed to be the same as that of the home statute, in the absence of evidence to the contrary.

*3763. In. tlie trial of an action in the courts of this state to recover on a promissory note given in the state of Kentucky on the Sabbath day, it appearing that the statute of the latter is substantially the same as that of this state, under which it is held that such a note is not enforceable, and the foreign statute being put in evidence without any proof of the foreign judicial construction thereof, defendant should have judgment of no cause of action.

[Syllabus by Marshall, J.]

Appeal from a judgment of tbe circuit court for Langlade cotmty: Joi-iN GoodlaNd, Circuit Judge.

*Reversed.*

Action to recover on a promissory note made and delivered in tbe state of Kentucky on Sunday, November 21,1897. Tbe defense relied on was that tbe note was void because executed and delivered on tbe Sabbatb day. Tbe statute of Kentucky relied on was put in evidence by stipulation, but tbe unwritten law of tbe state, tbe judicial construction of sucb statute, was not put in evidence. Tbe cause was tried by tbe court. Findings were filed to tbe effect that tbe note was made and delivered in tbe state of Kentucky on November 21, 1897, a Sabbatb day, in settlement of an account for merchandise sold to defendant some time prior *thereto;*that plaintiff traveled, on sucb day, some fifteen miles to collect said account; and that tbe statute of Kentucky, at sec. 1321, provides as follows :

“No work or business shall be done on tbe Sabbatb day, except tbe ordinary household offices, or other work of necessity or charity, or work required in tbe maintenance or operation of a ferry, skiff, or steam or street railroads. If any person on tbe Sabbatb day shall himself be found at bis own, or any other trade or calling, or shall employ bis apprentices, or other person, in labor or other business, whether the same be for profit or amusement, unless sucb as is permitted above, be shall be fined not less than two nor more than fifty dollars for each offense.”

As a conclusion of law tbe court found that tbe note was valid by Kentucky law, and that plaintiff was entitled to *377■judgment for the amount due thereon with interests and costs. Judgment was rendered accordingly.

Eor the appellant the cause was submitted on the brief of *Max Hoffman,*and for the respondent on that of *Finucane &*, *Honway.*

The respondent contended, *inter alia,*that the laws of Kentucky, where the note was executed and delivered, must gov■ern. , Edwards, Bills & N. (3d ed.), § 217; Tiedeman, Commercial Paper, § *507;Hull v. Augustine,*23 Wis. 383. Un-der the statutes of Kentucky, notes executed and delivered on the Sabbath were not void unless the business that constituted the consideration was transacted on the Sabbath. *Bay v. Cat-Zett,*12 B. Mon. 535; *Campbell v. Young,*9 Bush, 240; *Do-honey v. Dohoney,*7 Bush, 217; *Bice v. Comm.*3 Bush, 14; *Watts v. Comm.*5 Bush, 309; *Prather v. Harlan,*6 Bush, 187. Similar ruling under statutes of New York, Missouri, Nebraska, and Ohio. *Merritt v. Earle;*29 N. Y. 115; *Boyn-iton v. Page,*13 Wend. 425; *Watts v. Van Ness,*1 Hill, 76; *Smith v. Wilcox,*24 N. Y. 353; *Clover v. Cheatham,*19 Mo. App. 656; *More v. Clymer,*12 Mo. App. 14; *Horaceh v. Keebler,*5 Neb. 355; *Fitzgerald v. Andrews,*15 Neb. 52; *.Bloom v. Bichards,*2 Ohio St. 387.

MaRShall, J.

The vital question for consideration is this: Ts a promissory note, made and delivered in the state of Ken-ducky on the Sabbath day, in settlement of an account for merchandise, such making and delivery being part of a business transaction involving the collection of such account, valid 'by the Kentucky law *1*Erom the manner the question suggested is presented here, we apprehend that there was a similar presentation in the trial court, and that it was there assumed that the unwritten law of Kentucky, consisting of the decisions of its highest court construing the statute in question, was before the court for consideration without proof thereof. If so, manifestly, the court committed error. The *378statutes of another state and tbe decisions of its courts as well can only be considered by tbe courts of tbis state, when material to prove some fact essential to a cause of action or defense, when put in evidence in tbe way pointed out by our statutory rules of evidence (secs. 4136, 4138, Stats. 1898),. unless some other method is adopted by stipulation of tbe parties. No proof was offered in tbis case as to tbe unwritten law of Kentucky. Tbe trial court did not have notice of the judicial decisions of that state which have been cited to our attention. Neither have we such notice. *Slaughter v. Ber*nards, 88 Wis. 111. Tbe case must therefore be decided without their aid, though we will say in passing that it does not seem that they would vary the conclusion we have reached if' they were in evidence in the case.

It is considered that if the validity of the note were to be-tested by the statutes of this state it would be held void. There-can be no question abont that. A comparison of snch statute-with the Kentucky law fails to make any difference between the two, if one exists, sufficiently significant to be discoverable. The language of the Kentucky law is:

> “No work or business shall be done on the Sabbath day,”' etc. “If any person on the Sabbath day shall himself be-found at his own or any other trade or calling,” etc., “he shall be fined,” etc. Ky. Stats. § 1321.

The language of the Wisconsin statute is:

> “Any person who shall ... do any manner of labor or business or work,” etc., “on the Sabbath day, shall be punished,” etc. Stats. 1898, sec. 4595.

Both statutes clearly prohibit the doing of any business on the Sabbath day,' with certain exceptions not affecting this, case. Loaning money and taking a note therefor is business-within the meaning of the statute. *Troewert v. Decker,*51 Wis. 46. By the same reasoning the settlement of an old account for merchandise sold, and the talcing of a note therefor,, is business. Such acts by a person are business of his own,. *379are tbe following of ‘Tris own trade and calling,” witbin the-literal sense of tbe language of tbe Kentucky statute. In tbe absence of proof to tbe contrary, where proof of a foreign law is material to a cause of action or defense, and none is produced, we must presume tbat our own law on tbe same subject, and sucb foreign law, similarly worded, bave tbe same-meaning. *Slaughter v. Bernards, supra.*It follows necessarily tbat tbe note in question must be beld to be void by the-Kentucky law tbe same as it would be by tbe law of tbis state if it bad been made and delivered bere under tbe same circumstances as it was made and delivered there. Tbat conclusion renders consideration of any other question presented on tbe appeal unnecessary.

*By the Court.*— Tbe judgment is reversed and tbe cause remanded with directions to render judgment dismissing .the complaint with costs.