Levy and others vs. Smith.-Opinion of Court.

and forty-six acres; that thirty-four thousand acres of this tract is permanently covered with water, and that about one hundred thousand acres, over and above that covered with water, is unfit for agricultural purposes. The court below sustained the bill, so far as to decree that the thirtyfour thousand acres were not subject to taxation, but dismissed it as to all other matters; and from the decree, this appeal is taken.

The counsel for appellants contend-first, that the lands contained in this grant are exempt from taxation under the revenue laws of the State; and, secondly, that these revenue laws are unconstitutional.

The court has had no difficulty in considering these points, and it feels no hesitancy in saying that neither can be sustained.

The second section of the revenue law passed in 1845, and which is now in force, provides that "all the land in this State subject to taxation, shall be classed into three classes, or grades, viz: first, second and third rates," and upon lands falling within each of these grades, there is assessed a specific tax. Thompson, 87. By section fifth, (Ibid, 91,) it is made the duty of the owners of land to return to the assessors a particular description of the situation and quality of the same, and to which class it belongs.

It is said the provision of the act implies that there are lands in the State which are not subject to taxation, and that it is to be inferred that the Legislature designed to exempt pine and other lands unfit for agricultural purposes; otherwise, they would be put on the same equality with arable lands. The answer to this is obvious. The lands referred to in the statute, as being exempt from taxation, are those belonging to the United States, to public schools, and charitable and religious institutions. Thompson, 87. In order to establish an uniform system of taxation, the Legislature has seen proper to divide all other

Levy and others vs. Smith.-Opinion of Court.

lands in the State into three classes, and every description and quality of land must, of necessity, be embraced in one or the other of these grades.

It is not true that the effect of this revenue law is to place good arable lands on an equality with pine and other lands of inferior quality. They belong to different classes-there is a difference in the tax imposed, and the law has authorized the owners to discriminate, and assign to the proper class the respective qualities. It is in proof that these appellants exercised this power, and returned to the respondent the respective portions of the lands contained in this grant, as first, second and third qualities; and we do not understand why this classification, made by themselves of their own lands, should now be complained of as unjust or oppressive. It would be a most arbitrary construction of the revenue law to exclude from its provisions any land liable taxation, however, poor or inferior its quality. Such an interpretation would be against the manifest intention of the Legislature, and defeat the obvious end and purpose of the statute.

But it is said the constitution of the State authorizes the "General Assembly to adopt a system of revenue, having regard to an equal and uniform mode of taxation, to be general throughout the State;" and that the system adopted by the Legislature is not equal and uniform, for the reason that some lands embraced within the third class are of inferior quality to others. This may be true, and the same may be said of lands embraced within the other classes; but this is no reason for believing that the system is not one of equal and uniform character throughout the State. Some slight inequality in the value of lands included in the same class doubtless does exist; but it is not confined to one section, but prevails throughout the whole State; so that lands belonging to one person, and coming within any of the three classifications are subject to the same specific tax as all

Dawkins vs. Smithwick.-Points Decided.

other lands of a like character. The tax is equal, because it is in just proportions; it is uniform, because it conforms to the same rule. It is a specific, and not an ad valorem tax; and if it is not the most equitable and just, it is for the Legislature and not the courts to correct the evil. The system may not be free from defects. It is not the best and only mode by which equality in taxation can be secured still it cannot be expected that the Legislature could devise any mode whereby taxation could be so apportioned in every particular, as to operate with precise uniformity upon every individual.

The court is, therefore, of opinion that the revenue law of 1845, classing all lands in this State subject to taxation into three grades, and imposing a specific tax upon the same, is equal and uniform throughout the State, and that the law is constitutional.

Let the decree of the court below be affirmed.

JOSEPH DAWKINS, APPELLANT, V. LUKE W. SMITH WICK, APPELLEE.

In assumpsit upon a parol contract, the day upon which it is made being alleged only for form, the plaintiff is at liberty to prove that the contract, whether express or implied, was made at any other time.

When time enters into the contract and becomes material, it is traversable, and the plaintiff must prove it; and when time is material, it makes no difference that it is alleged under a videlicet.

When the time laid in the declaration was the Sabbath, the court will take judicial cognizance of the fact; yet, if the time is immaterial and laid under a videlicet, the court cannot judicially know that the contract declared on was actually made on that day.

In

such case the defendant, having failed to plead the fact and thus make the time material, cannot move in arrest of judgment.

Dawkins vs. Smithwick.--Argument of Counsel.

Luke W. Smithwick brought an action on the case, in the Circuit Court for the county of Leon, against, Joseph Dawkins, to recover damages for deceit practiced by defendant in an exchange of horses-the horse of defendant being represented to be sound when, in fact, he was diseased at the time, and continued so to be, so that he was of no value to plaintiff. The exchange was alleged to have taken place on the first day of July, 1849.

Plea not guilty, and verdict for the plaintiff at the Spring term, 1850.

The defendant then moved in arrest of judgment on the ground that the contract mentioned in the declaration was made on Sunday. The motion was overruled, and from the judgment of the court thereon this appeal was brought.

Maxwell, for Appellant.

1. 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. If the declaration pre

sents a case which would not entitle plaintiff to judgment, and the defendant fails to demur, advantage can be taken of the defect by motion in arrest. 2d Archbold, 247.

2. The court will take judicial notice of the days of the week, so that having any date given, it will look to the Almanac, which is the law of the land, to see the day of the week, and will apply any law that may arise accordingly. 1st Chitty's Pleadings, 249, 218. See, also, Hoyle v. Cornwallis, 1st Strange, 387-9, which is precisely in point with this case on this question. Upon the principle there established, if the record only states the day of the month, and that day is found by reference to the Almanac to be Sunday, this is sufficient to authorize a court to consider the fact that the day was Sunday an intrinsic part of the record. In the present case, the plaintiff bases his right to recover upon

Dawkins vs. Smithwick.-Argument of Counsel.

a contract stated by the declaration itself to have been made on a day of the month which the Almanac shows was Sunday. The fact, therefore, under the authorities cited, is sufficiently apparent upon the record.

But it was contended below that the time being stated under a videlicet, the plaintiff, under the rules of pleading, cannot be held to it strictly, but may prove any other time, and, therefore, the defendant could not avail himself of his objection by motion in arrest, but should have pleaded it. The rule of pleading does not apply where time is material, or of the essence of the contract, for then the "real day must be truly stated." 1st Chitty's Pleadings, 287. 3rd Durnford & East, 531. 2d Cowper, 671. These authorities show that where an usurious contract is declared upon the day must be truly stated, and if proof of any other day is made, the variance is fatal. So here, if the law is, that such a contract is void by reason of the day on which it was made, the day forms the gist of the matter, and must be correctly stated. If the plaintiff had alleged a different day, then the defendant, to avail himself of his defence, might have pleaded the fact that the contract was made on Sunday, or else he might have proved that fact, and then urged the variance as fatal, because of the materiality of that day to the rights of the parties.

The court not having given any opinion upon the other question presented by the counsel, viz: whether the contract, having been made on Sunday, is in violation of the statute of this State, and, therefore, void, it is not necessary to state the argument on that point.

Walker, for Appellee:

The error assigned by appellant is that the court refused to arrest the judgment.

The court could not arrest the judgment, unless for some error patent in the record. Appellant points out as error