These two cases turn upon the construction of the same statute, and are therefore considered in one opinion.
The first is an action of assumpsit to recover the purchase money paid for a horse bought on Sunday. The plaintiff tendered a return of the horse for breach of warranty of soundness, which was refused, and sues for the price paid for it. The sale was on Sunday. The plaintiff was nonsuit and has exception.
The second is an action on the case to recover damages sustained for negligently letting a carriage that was unsafe and unsuitable for the uses for which it had been hired. The hiring was on Sunday, and the damage suffered was on Sunday. The plaintiff was nonsuit and has exception.
*562To both cases § 20, of c. 124, of R. S., is interposed as a defense. In reply § 116, of' c. 82, of R. S., is invoked in the first case, and the act of 1895, c. 129, in the second case. The former statute, inherited from Massachusetts, was upon the erection of pur state enacted in 1821, c. 9, § 2. Among other things it prohibits business, except works of charity or necessity, upon the Lord’s Day. By a long line of decisions this court has held that, by reason of that statute, a contract made on Sunday is void between the parties, and that the consideration therefor cannot be recovered back, and that a tort arising from such contract will not support an action for damages. Towle v. Larrabee, 26 Maine, 464; Hilton v. Houghton, 35 Maine, 143; Morton v. Gloster, 46 Maine, 520; Bank of Cumberland v. Mayberry, 48 Maine, 198; Pope v. Linn, 50 Maine, 83; Tillock v. Webb, 56 Maine, 100; Parker v. Latner, 60 Maine, 528; Plaisted v. Palmer, 63 Maine, 576; Meader v. White, 66 Maine, 90; Mace v. Putnam, 71 Maine, 238; First Natl. Bank of Bar Harbor v. Kingsley, 84 Maine, 111.
This act of 1821 was found, in practice, to work a fraud, by allowing one party to a Sunday contract to retain his fruit of the transaction and to give the other party none, so the legislature, in 1880, (R. S., c. 82, § 116,) enacted that he who receives a valuable consideration for a contract made on Sunday shall not defend against it on that ground until he restores the consideration. That is, if he will repudiate the contract he must first restore his gains from it. A wholesome doctrine, that will not allow a desecration of the Lord’s Day to become a cheat.
In the first case at bar, the defendant sold a diseased horse for sound, took the purchase money as the price of a sound horse and tries to keep it because he cheated on Sunday, or warranted the horse sound on Sunday, both of which he might do under the statute of 1821 and not be accountable therefor. The plaintiff tendered a return of the horse, which was refused. The tender operated to rescind the contract. It restored the parties to the same condition they were in before the sale, and the purchase money became the plaintiff’s. The defendant cannot resist its return because of the old Sunday law. The same result would *563have followed had the plaintiff sued upon the contract for a breach of warranty. The defendant could not then have defended until he had returned the consideration that he had received for making the warranty. Such return would have precluded a recovery, for the damages might have been more than the price paid, had not the contract been void, for the plaintiff would have been entitled to the benefit of his bargain, that is, the horse, if sound, might have been worth more than the purchase price above what he was worth in the condition sold, unsound. A return of the horse, followed by a suit for the price paid, amounts to substantially the same thing as a suit for breach of the warranty. In either case the statute of 1880 bars the defense of Sunday contract until the price paid shall have been returned. Wentworth v. Woodside, 79 Maine, 156; Berry v. Clary, 77 Maine, 482; Bank v. Kingsley, supra.
In the second case at bar, the plaintiff procured another to hire for her, on Sunday, a horse and carriage for driving. The carriage let was unsafe, whereby the plaintiff was injured. She sues for damages received from the defective carriage while driving on Sunday. The act of 1821, as before seen, would bar recovery, Wheelden v. Lyford, 84 Maine, 114; but the legislature enacted in 1895, c. 129, that the act of 1821, R. S., c. 124, § 20, shall not bar “any action for a tort or injury suffered on Sunday.” The plaintiff’s injury was suffered on Sunday by defendants’ tort, that is, their negligence in letting an unsafe carriage. It matters not whether the plaintiff’s action be assumpsit for breach of an implied warranty to furnish a suitable carriage, or case for negligence in not so doing. In either case, the action would be for an “injury suffered” on Sunday, and this the act of 1895 expressly excepts from the operation of the statute of 1821.
.Exceptions sustained.
Both actions to stand for trial.