The of thp court (Rost, absent,) was pronounced by

This suit is brought to recover the balance duo on a promissory noté of the defendant, which tho Union Bank had held,, and which tho plaintiff *186had paid'and'thereby become the owner of. It appears thati the plaintiff had: purchased from the defendant a plantation on which a stock mortgage existed in favor of tha-Union Bank; and, an order of seizure having been issued against it, the plaintiff paid to the bank the sum of$5,000, which the bank applied, withthe* consent of the plaintiff, to the payment of a note of the’defendant whieb<the bank held, and the balance to the stock note of the defendant which bore on the property mortgaged- For the balance due on this note thus paid by the plaintiff the-present action is instituted. A defence was set up, by way of exception, that the’ plaintiff had bound himself, for a sufficient consideration, to give the defendant live years to pay'the amount. The exception was sustained by the District Court;, and the plaintiff was non-suited. He has taken this appeal.

The note sued.on was-secured by a pledge of-" two hundred and thirty shares1 of the capital stock of the .Union Bank; and the agreement relied on by the-defendant purported, that the plaintiff was to give the defendant five years for' the reimbursement of the amount the plaintiff should pay for him-' to the bank, - on condition that he should transfer to the 'plaintiff the bank stock at the price-two, persons named should say it was worth, and give a mortgage upon certain-negroes, which were-also mortgaged to the bank, whenever McCalop, the plaintiff, should, desire if. No notice or requisition has been given to the defendant to transfer the stock- or execute the mortgage. This agreement was made, in October, -1847--.- It is proved by a memorandum signed by both parties, but written and bearing date on Sunday, the 7th February, 1848. It is contended by tho counsel for the- plaintiff that the contract itself was made on Sunday, and for that reason-is not valid, and cannotbe recognized as having any effect in a court of justice- Without deciding on the force-of this objection, we have only to statb that the agreement relied-upon to give the-defendant time is not proved to have been made on that day, but on some day in October, 1847. We have been referred to no authority for the opinion that'a memorandum signed on Sunday is not admissible as evidence to prove a contract made on another1 day. This case presents features of great irregularity throughout. The action is not properly brought,- the matter of defence is not well pleaded. The evidence, however, has been given on both sides, and the case must be determined on the state of things thus presented. We find nothing in the evidence which affects the validify of the agreement, nor do we find any default'on the part of the defendant as to the compliance with his part of it. The affair between the parties is still open, and ■ the contract thus partially executed by file plaintiff is subsisting, and, by reason of the agreement, the plaintiff’s action cannot be maintained. The rights of the-parties remain entire, and unaffected by the judgment of nomsuit.

Judgment affirmed'.