27 Pool v. Homer, 64 Md. 131, 20 Atl. 1036; Robinson v. Hurst, 78 Md. 59, 26 Atl. 956, 20 L. R. A. 761, 44 Am. St. Rep. 266. But see Linz v. Schuck, 106 Md. 220, 67 Atl. 286, 124 Am. St. Rep. 481, 11 L. R. A. (N. S.) 789; Lyell v. Walbach, 113 Md. 574, 77 Atl. 1111, 33 L. R. A. (N. S.) 741.
28 Edwards v. Nelson, 51 Mich. 121, 16 N. W. 261.
29Hemphill v. McCumans, 24 Fa. 367; Landia v. Royer, 59 Pa. 95; Steb-bins v. Crawford County, 92 Pa. 289, 37 Am. Rep. 687; Holden v. Banes, 140 Pa. 63, 21 Atl. 239; Anderson v. Best, 176 Pa. 498, 35 Atl. 194; Sutch's Estate, 201 Pa. 305, 50 Atl. 943. See an article on Moral Consideration in Pennsylvania by J. P. McKeehan, 9 The Forum, page 1.
30 See also Montgomery v. Downey, 116 Ia. 632, 88 N. W. 810; Waning v.
Kurfes, 12 Ky. L. Rep. 893; Taylor v. Hotchkiss, 81 N. Y. App. Div. 470, 80 N. Y. S. 1042, affd. 179 N. Y. 546, 71 N. E. 1140; Ferguson v. Harris, 39 S. Car. 323, 17 S. E. 782, 39 Am. St. Rep. 731; Willoughby v. Willoughby. 70 S. Car. 516, 50 S. E. 208; State v. Butler, 11 Lea, 418 (cp. Shugart v. Shugart, 111 Tenn. 179, 76 S. W. 821); Muir v. Kane, 55 Wash. 131, 104 Pac. 153, 26 L. R. A. (N. S.) 519; Olsen v. Hagan, 102 Wash. 321, 172 Pac. 1173; De Voin v. De Voin, 76 Wis. 66, 44 N. W. 839.
31 Turlington v. Slaughter, 54 Ala. 195; Doyle v. Reilly, 18 Ia. 108, 85 Am. Dec. 582; Cameron v. Fowler, 5 Hill, 308, 309. See also Stebbins v. Crawford County, 92 Pa. 289, 37 Am. Rep. 687.
32 Drake v. Bell, 26 N. Y. Misc. 237, 55 N. Y. S. 945: (cf. s. c. 46 N. Y.
In some cases also new promises to pay an obligation morally owing but unenforceable because of the illegality of the transaction out of which the moral obligation arose, have been enforced. This doctrine has been applied especially in regard to Sunday contracts, and usurious contracts. Such cases demand first, an inquiry whether public policy permits enforcement of the new promise and, second, whether lack of consideration forbids recovery even though public policy permits it. The distinction between a transaction which is malum prohibitum and one which is malum in se is not much favored by modem authorities, but it is obvious that no new promise arising out of a seriously criminal transaction could be enforced.33 It is because usurious contracts and contracts made on Sunday do not seem to many courts morally offensive, that subsequent promises to perform them have not been held against public policy; and in a number of jurisdictions it has been held that by a new promise or by ratification the obligation of a contract made on Sunday can be made enforceable or a new contract created.34 In some of the jurisdictions which thus enforce the new obligation arising on a secular day subsequent to the Sunday on which the contract was made, it is essential that there shall be an express new promise; ratifica-
App. Div. 275, 61 N. Y. S. 667, a promise to pay a mechanic for repairs made by mistake on the defendant's house); Glenn v. Savage, 14 Oreg. 567, 577, 13 Pac. 442; Edson v. Poppe, 24 S. Dak. 466,124 N. W. 441, 26 L. It. A. (N. S.) 534 (a promise to pay a tenant for driving a well); Booth v. Fitzpat-rick, 36 Vt. 681 (promise to pay for keeping a bull]. See also Viley v. Pet-tit, 96 Ky. 576, 29 S. W. 438; bakes v. Crahing, 24 Me. 313; Silverthom v. Wylie, 96 Wis. 69, 71 N. W. 107, and cases cited supra, Sec. 146. But see amtra cases supra, Sec. 145, ad fin.
33See infra, Sec.Sec. 1630, 1754, 1758. In James v. Haven, 185 Fed. 692, 107 C. C. A. 640, the court refused to enforce a promise to pay losses growing out of wagering contracts in cotton.
34 McKinney v. Demby, 44 Ark. 74;
Orr v. Kenworthy, 143 Iowa, 6, 121 N. W. 539, 136 Am. St. Rep. 728; Campbell v. Young, 9 Bush, 240; Gwinn v. Simes,.61 Mo. 335; Wilson v. Milligan, 75 Mo. 41; Reeves v. Butcher, 31 N. J. L. 224; Brewster v. Banta, 66 N. J. L. 367,49 Atl. 718; Telfer v. Lambert, 79 N. J. L. 299, 75 Atl. 779; Rosenblum v. Schachner, 84 N. J. L. 525, 87 Atl. 99; St. Louis, etc., R. Co. v' Swearingen, 31 Okla. 785, 123 Pac. 1122; Smith 0. Case, 2 Ore. 190; Cook v. Forker, 193 Pa. 461, 44 Atl. 560, 74 Am. St. Rep. 699; Saylesr. Wellman, 10 R. I. 465; Flynn v. Columbus Club, 21 R. I. 534,45 Atl. 551; Goss v. Whitney, 27 Vt. 272; Corey v. Boynton, 82 Vt. 257, 72 Atl. 987; Melohoir v. McCarty, 31 Wis. 252,11 Am. Rep. 605; Williams v. Lane, 87 Wis. 152, 158, 58 N. W. 77; Ainsworth v. Williams, 111 Wis. 17, tion by conduct being regarded as insufficient.35 In others of the jurisdictions in question, any subsequent recognition of the illegal Sunday contracts amounts to a ratification or adoption which will render the contract enforceable.36 It would seem, however leniently a Sunday contract may be regarded, that if it is forbidden by law no ratification is possible which relates back to the original transaction and makes it valid as of that time. To permit such a doctrine is to disregard the statute which prohibits Sunday contracts. But as to the creation of contracts on a subsequent secular day, it should be of no importance whether the renewal of a transaction entered into on Sunday is called an adoption of the old contract, or the creation of an independent new one. Under either mode of expression the transaction dates from the secular day and not from Sunday. The distinction between an express new promise and conduct indicating an intention to adopt the Sunday contract also seems unimportant. A promise implied in fact should in any case be as good as an express promise if the facta actually show an intent to be bound. The difficulty with enforcing either an express promise or one implied in fact is with regard to consideration if the facts do not show that there was sufficient consideration at the time of the adoption, or new promise. If the agreement was bilateral, and remains at the later secular day at least partly executory on each side, a fresh indication of assent by both parties will suffice unless the promise on one side or the other fails to fulfil the requirements for consideration in a bilateral contract.37 If the promise to be adopted is unilateral a consideration given on Sunday is insufficient. When there is no new consideration it is only on the ground of moral consideration that the transaction can be regarded as binding. For these reasons most jurisdictions which are opposed to the doctrine of moral consideration deny effect to a new promise in any form, express or implied, to carry out the Sunday contract unless circumstances are such as to show a new consideration.38 For reasons somewhat similar to those influencing decisions allowing the adoption of Sunday contracts, new promises to pay so much of an usurious indebtedness as is not tainted with usury, have been held enforceable; even though apart from a new promise no liability would have existed.39
86 N. W. 651. See infra, Sec.Sec. 1707, 1708.
35 Heller v. Crawford, 37 Ind. 279; Beeves v. Butcher, 31 N. J. L. 224; Riddle v. Keller, 61 N. J, Eq. 513, 48 Atl. 818; Rosenblum v. Schachner, 84 N. J. L. 525, 87 Atl. 99; Troewcrt v.
Decker, 51 Wis. 46, 8 N. W. 26, 37 Am. Rep. 808; Williams v. Lane, 87 Wis. 152, 158, 58 N. W. 77.
36 See cases cited supra, n. 34, other than those cited supra, n. 35.