land, 27 Michigan, 28 and especially in Pennsylvania 29 the doctrine still persists to a limited extent.30 § 150. Promises to rectify mistakes, or previous illegal transactions. In every jurisdiction whether or not it professes to accept the doctrine of moral consideration, there are certain promises which are enforceable without present consideration, however difficult it may be to explain the reason for their enforcement. In some jurisdictions promises of this sort are more numerous than in others but in every jurisdiction there are some promises of this sort. These cases will now be separately considered, and first may be mentioned, promises intended to rectify a previous mistake or illegality. A promise to rebate to a judgment debtor so much of a judgment as is based on a plain error, for the correction of which no legal remedy remains open, has been enforced in several jurisdictions.31 Such decisions can be supported only on the ground of moral consideration. And in a number of cases it is held that where a benefit of pecuniary value is furnished with no intention to make a gift, though with no previous request, a subsequent promise by one who receives the benefit may be enforced.32 27 Pool v. Horner, 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. 29 Hemphill v. McClimans, 24 Pa. 367; Landis v. Royer, 59 Pa. 95; Stebbins 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; Weihing 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, 306, 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 modern 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. 657, 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. R. A. (N. S.) 534 (a promise to pay a tenant for driving a well); Booth v. Fitzpatrick, 36 Vt. 681 (promise to pay for keeping a bull). See also Viley v. Pettit, 96 Ky. 576, 29 S. W. 438; Oakes v. Cushing, 24 Me. 313; Silverthorn v. Wylie, 96 Wis. 69, 71 N. W. 107, and cases cited supra, § 146. But see contra cases supra, § 145, ad fin. 33 See infra, §§ 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 v. Case, 2 Ore. 190; Cook v. Forker, 193 Pa. 461, 44 Atl. 560, 74 Am. St. Rep. 699; Sayles v. 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; Melchoir 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 facts 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 86 N. W. 551. See infra, §§ 1707, Decker, 51 Wis. 46, 8 N. W. 26, 37 Am. Rep. 808; Williams v. Lane, 87 Wis. 152, 158, 58 N. W. 77. 1708. 35 Heller v. Crawford, 37 Ind. 279; Reeves 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; Troewert v. 36 See cases cited supra, n. 34, other than those cited supra, n. 35. 37 See supra, §§ 103 et seq. 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 § 151. Ratification by an adult of a contract made during infancy. It is everywhere the rule of the common law that a promise by an adult to fulfil an obligation entered into during infancy makes the obligation binding, or (as perhaps the matter should more accurately be stated) deprives him of his privilege to avoid the transaction.40 In England, by Lord Tenterden's Act 41 the ratification of the infant in order to be binding was required to be in writing. This statute has been copied in several American States.42 By a later English statute 3 all 38 See further as to Sunday contracts, infra, §§ 1700 et seq. Barnes v. Hedley 2 Taunt. 184; Flight v. Reed, I H. & C. 703; Garvin v. Linton, 62 Ark. 370, 35 S. W. 430, 37 S. W. 569; Kilbourn v. Bradley, 3 Day, 356, 3 Am. Dec. 273; Houser v. Planters' Bank, 57 Ga. 95; Sanford v. Kunz, 9 Idaho, 29, 71 Pac. 612; Kassing v. Ordway, 100 Iowa, 611, 69 N. W. 1013; Vermeule v. Vermeule, 95 Me. 138, 49 Atl. 608; Peters Shoe Co. v. Arnold, 82 Mo. App. 1; Early v. Mahon, 19 Johns. 147, 10 Am. Dec. 204; Hammond v. Hopping, 13 Wend. 505; Sheldon v. Haxtun, 91 N. Y. 124, and see cases cited infra, § 1683. Cf. Austin v. Burgess, 36 Wis. 186. 40 Edmond's Case, 3 Leon. 164, s. c. Godb. 138; Keane v. Boycott, 2 H. Bl. 511; Allen v. Allen, 2 Dr. & W. 307; Edwards v. Carter, [1893] A. C. 360; In re Huntenberg, 153 Fed. 768; Walker v. Arkansas Nat. Bank, 256 Fed. 1, 5 (C. C. A.); Flexner v. Dickerson, 72 Ala. 318; Vaughan v. Parr, 20 Ark. 600; Wall v. Mines, 130 Cal. 27, 43 62 Pac. 386; Fetrow v. Wiseman, 40 Ind. 148; Ward v. Ward, 143 Ky. 91, 136 S. W. 137; Monumental Bldg. Assoc. No. 2 v. Herman, 33 Md. 128; Owen v. Long, 112 Mass. 403; Edmunds v. Mister, 58 Miss. 765; Highley v. Barron, 49 Mo. 103; New Hampshire Mut. F. Ins. Co. v. Noyes, 32 N. H. 345; Harner v. Dipple, 31 Oh. St. 72, 27 Am. Rep. 496; State v. Satterwhite, 20 S. C. 536; Means v. Robinson, 7 Tex. 502; Person v. Chase, 37 Vt. 647, 88 Am. Dec. 630; Stokes v. Brown, 3 Pinn. 311. See also infra, § 239. 419 George IV, Ch. 14, §5 (1828). 42 Arkansas, Kentucky, Maine, Mississippi, Missouri, New Jersey, South Carolina, Virginia, and West Virginia. See Stern v. Freeman, 4 Metc. (Ky.) 309; Lamkin v. LeDoux, 101 Me. 581, 64 Atl. 1048. 43 The Infant's Relief Act of 1874. See Fellows v. Wood, 59 L. T. (N. S.) 513; Nottingham Bldg. Soc. v. Thurstan, [1903] A. C. 6. contracts for the repayment of money lent or for goods sold other than necessaries, and all accounts stated with infants were made absolutely void and incapable of ratification.44 So drastic a statute as this, has not been enacted in any of the United States. $152. What amounts to ratification. What action on the part of the former infant is requisite to deprive him of his privilege or is sufficient permanently to avoid his contract is elsewhere considered.45 It is enough here to observe that whatever be the nature of the infant's privilege whether merely to disaffirm what would otherwise be good, or to validate what would otherwise be bad-a new promise made after he reaches maturity, though made without consideration, deprives him of that privilege. Nor is this a case merely of election, 46 for a new promise may impose liability upon the former infant though the consideration for his obligation has been wholly enjoyed 46 so that his acceptance of liability or surrender of a defence gives no correlative right. Nor is it properly speaking waiver, since its validity is not dependent on action by the promisee in reliance on the promise. § 153. Admission of liability or part payment are insufficient to terminate the right to avoid an obligation for infancy. Such admission or part payment of a debt as is generally held sufficient to avoid the bar of the Statute of Limitations ought more clearly to determine the right of an infant to avoid an obligation, since it is only the continuance of the original obligation, not the creation of a new one, which the plaintiff seeks to show. But the weight of authority is otherwise, 48 though many of the decisions are early ones, made at 44 Contracts of an infant not within the prohibited classes and which aside from statute were good unless avoided and therefore required no formal ratification, still have their common-law force in England. See Edwards v. Carter, [1893] A. C. 360; Viditz v. O'Hagan, [1900] 2 Ch. 87. 45 See infra, §§ 234, 239. 46 See infra, § 683. 48 Thrupp v. Fielder, 2 Esp. 628; Kendrick v. Neisz, 17 Colo. 506, 30 Pac. 245; Catlin v. Haddox, 49 Conn. 492, 44 Am. Rep. 249; Ford v. Phillips, |