(r) In Flagg v. Millburv, 4 Cush. 243, it was held to be a work of necessity and charity to repair a defect in a highway, which endangers the public safety. And Wilde, J., said: "By the word 'necessity' in the exception, we- are not to understand a physical and absolute necessity; but a moral fitness and propriety of the work and labor done, under the circumstances of any particular case, may well be deemed necessity within the statute; and so it was decided, in the construction of a similar exception, in the prohibition against travelling on the Lord's day, in the statute of 1791, c. 58, § 2. Commonwealth v. Knox, 6 Mass. 76; Pearce v. Atwood, 13 Mass. 354. Now, when a defect in the highway is discovered on the Lord's day, which may endanger the limbs and the lives of travellers, it is not only morally fit and proper that it should be immediately repaired, but it is the imperative duty of the town which is bound to keep the highway in repair, to cause it so to be done, or to adopt means to guard against the danger, until it can be done; and work and labor for this purpose is no violation of the law or of religious duty." In Hooper v. Edwards, 18 Ala. 280, it was held, that if the exigency of a case be such as to render it necessary that a creditor, in order to save his debt, or procure indemnity against liability, should contract with his debtor on Sunday, such contract is not void, but comes within the saving of the statute; and it is the province of the jury to determine whether, under all the proof, it was justified by the necessity of the case." In Logan v. Mathews, 6 Penn. St. 417, it was held, that "the hire of a carriage on a Sunday, by a son, to visit his father, creates a legal contract," there being no evidence to show that the journey was a trip or excursion of pleasure. But in Johnston v. The Commonwealth, 22 Penn. St. 102, it was held, that driving an omnibus, as a public conveyance, daily, and every day, is worldly employment, and not a work of charity or necessity, within the meaning of the act of 1794, and therefore not lawful on Sunday. And in Phillips v. Innes, 4 Clark & F. 234, it was held by the House of Lords, in England, that an apprentice to a barber could not be lawfully required to attend his master's shop on Sundays for the purpose of shaving the customers, that not being work of neces1 Subscriptions on Sunday, taken for the support of public worship from a congregation assembled for religious exercises, may be sustained as a work of charity. Allen v. Duffie, 43 Mich. 1.

we * should infer some change of sentiment on this subject.

Formerly there were many instances of persons punished for baking provisions, or slaughtering animals, even in hot weather, on Sunday; but we have heard of nothing of the kind of late.

Another question has been before the courts, and though not reported, we should think it admitted of a definite answer. Are there certain things, of themselves, works of necessity or mercy? We should say, few or none; funerals would be, or baptisms, or other religious services as appropriate to the day. But making a will, for example, would be so, only when the particular circumstances of the case made it so. (s) And some question has arisen, whether the celebration of marriage on Sunday be a violation of law. It is the rule in this country, that marriage is a civil contract. But it is generally believed that it may be lawfully entered into on Sunday; either because the frequency of the thing has in some measure protected it by a usage, and the consequences of an opposite view would be disastrous, or because the contract of marriage is in the nature of a continuing contract, and may be regarded as made every succeeding day as long as the parties cohabit. But, regarded as a question of strict law, it might be found not without its difficulties. (t)

It seems now to be conceded, that a contract which is made in violation of the express provisions of the Lord's day acts, is void, like any other illegal and prohibited contract. (u)1 gity or mercy or charity. Lord Cottenham said: "This work is not a work of necessity, nor is it a work of mercy; it is one of mere convenience." In Ulary v. The Washington, Crabbe, 204, it was held, that a seaman was bound to work on Sunday, the nature of the service requiring it.

(s) Held, not to violate the law, in Bennett v. Brooks, 9 Allen, 118; Beitenman's Appeal, 55 Penn. St. 183. It was held in Maine, that a contract for the hire of a horse and carriage on Sunday, was not made legal by proof that it was for the purpose of carrying home one who had attended a religious meeting. Tillock v. Webb, 56 Me. 100. And in Indiana, the delivery of flour on a steamboat on Sunday, to avoid delay from the closing of navigation, was illegal. Fate v. Wright, 30 Ind. 476. See ante, note (p).

(t) In re Gangwere's Estate, 14 Penn.

St. 417, it was admitted, that a marriage celebrated on Sunday was valid; but upon the question, whether a marriage settlement, executed at the same time, was valid, the court were equally divided, and gave no opinion. In Commonwealth v. Nesbit, 34 Penn. St. 398, the court declared it to be no violation of the Sunday Statute for a servant to drive his master's family to church on that day.

(u) It is to be observed, that neither the English statute, nor those of this country, expressly declare that contracts made on Sunday shall be void. But the principle is well settled, and of general application, that all contracts made in violation of a statute are void. Lyon v. Armstrong, 6 Vt. 219; Robeson v. French, 12 Met. 24; Gregg v. Wvman, 4 Cush. 322; Hazard v. Day, 14 Allen, 487.

1 A note made on Sunday is not void at common law, and a note made in a foreign State on Sunday will not be held invalid, without proof of a law in that State forbidding it. O'Rourke v. O'Rourke, 43 Mich. 58.

For many years the rule prevailed in Massachusetts, that while the acting party, as the maker of a promissory note for example, was liable to punishment, the note itself was valid. A recent decision, however, has put the law in that State in harmony with the generally prevailing view. (v) Where a schedule of property was to be annexed to an assignment for the benefit of creditors, by the terms of the assignment, and was so annexed on Sunday, it was held in Massachusetts valid as against a subsequent attaching creditor. (w) It may be doubted whether such would be the doctrine of this court, since the case above referred to of Pattee v. Greely. In Michigan, a note made on Sunday, but falsely dated on Monday to avoid the defence of illegality, was held valid in the hands of an innocent holder for value. (ww)l